144 terms


Rulings on evidence Rule 1003- Offer of Proof (General Provisions)
Where a ruling excludes evidence, an offer of proof is required outside the presence of the jury, unless the substance of the evidence was apparent from the context, in order to preserve the issue for appeal.

If the error is not prejudicial to the outcome (i.e., outcome would not have been different), then the harmless error rule applies. Error is harmless if the jury would have reached the same verdict even if the error did not occur; no substantial rights are affected.

If no objection is made, the evidence will be admitted even if objectionable.

The only time a reversal will result from the admission of evidence despite an objection not being raised is when plain error is found—error that affects a substantial right of a party; a serious mistake that affects the verdict; i.e., prejudicial, reversible error—obvious, egregious.
Preliminary Facts (Rule 104(a)- Decisions the judge makes on the admissibility of evidence (General Provisions)
Court will decide on Preliminary facts, things like (1) competency—witness qualifications; (2) admissibility; and (3) privilege.
Preliminary Facts- Dying Declarations (Rule 104) (General Provisions)
a. For a dying declaration, the burden is on the judge when determining admissibility of evidence.
b. The standard used is the "preponderance of the evidence." And is outside the presence of the jury.
c. A judge is not bound by the rules of evidence when determining preliminary facts except with regard to privileges.
Preliminary Facts- Conditional Relevancy (FRE 104(b)) (General Provisions)
Where the admissibility of one item of evidence is conditioned upon the relevancy of another item of evidence, the judge shall admit such evidence if the judge makes the necessary preliminary finding.
(1) The judge must determine whether there is enough evidence for the jury to find that the necessary fact existed.

(Example: Two cars collide at an intersection. A rim of a tire was found two-hundred feet away. There is an expert who is prepared to testify that for that rim to be thrown that distance the car must have been traveling at 40 mph. This fact is only relevant if it can be shown that that rim came from one of the cars in the accident. The judge must determine if there is sufficient evidence from which a jury could conclude that the tire rim came from one of the cars.

The ultimate decision lies with the jury but whether the decision reaches the jury is for the judge to decide based on their conclusion that a reasonable jury could find that a preponderance of evidence shows the fact exists.
Limited Admissibility (Rule 105) (General Provisions)
1. The Rule
a. If evidence is admitted as to one party or for one purpose but inadmissible as to another party or for another purpose, the court shall restrict the evidence to its proper scope and instruct the jury accordingly.
b. The burden is on the opposing party to request a limiting instruction otherwise it wont happen.
Remainder of or Related Writings or Recorded Statements (Rule 106) Rule of completeness (General Provisions)
1. Rule of Completeness
a. Where a party introduces part of a writing or recording, the adverse party may (immediately) introduce any other writing or part of the writing, which, in fairness, ought to be considered.
b. This does not override the rest of the rules of evidence.
Judicial Notice (Rule 201)
a. Judicial Notice is a substitute for proof where the court accepts certain "Adjudicative" facts as true without requiring formal presentation of evidence.
Judicial Notice- Commonly Known Facts
The first kind of judicial notice is "Commonly Known Facts", which are not subject to reasonable dispute; generally known within the jurisdiction of the court.
Judicial Notice- Facts that are Capable of Accurate & Ready Determination
a. The second kind of judicial notice is facts which are "Capable of accurate and ready determination" by resort to sources of unquestionable accuracy.

b. These include such things as (1) the accuracy of radar; (2) blood tests; (3) DNA profiling; (4) historical records; (5) prevailing interest/mortgage rates; and (6) Father's Day 1984 was June 19th.

c. A court will not take judicial notice of such things as claims that the US Supreme Court is very conservative or that second-hand smoke causes lung cancer.
Judicial Notice- Facts Within a Judge's Personal Knowledge
a. The judge may not take judicial notice of a fact merely because it is within her knowledge.

b. For example, a judge that knows that a street runs one direction cannot simply take judicial notice because they know it unless everyone knows it
Judicial Notice- Mandatory Judicial Notice
a. Judicial notice is mandatory if requested by a party and court is supplied with the necessary information. But only in civil cases. In criminal cases it is only permissive.

b. Issues of judicial notice may be raised for the first time either pre-trial, during trial, or on appeal.
Judicial Notice- Contradictory Evidence
As a general rule, once a fact is judicially noticed, no contradictory evidence is permitted on that issue.
Judicial Notice- Effect of Jury Instruction on Judicial Notice
a. A civil jury must accept a judicial notice fact as conclusive.

b. A criminal jury may—but is not required to—accept a judicial notice as conclusive.
Judicial Notice- Exam Tip
The effect of a jury instruction on judicial notice is the most highly tested judicial notice issue.
Presumptions- (general and civil actions rule 301)- Burden of Production
The party that has the burden of going forward and producing evidence has the burden of production. This can shift during the trial.

One party at any given point of the trial has the burden of going forward with evidence.

For example, if an attorney is trying to prove his prima facie case for negligence but fails to show damages then the plaintiff has failed its burden of production.
Burden of Persuasion
a. The burden of persuasion refers to the degree to which a party's claims must be proven.

b. The burden of persuasion is set at one of three levels.

(1) Beyond a reasonable doubt
(2) Clear and convincing evidence
(3) Preponderance of the evidence
Burden of Proof
There are two ways to shift a burden of production: (1) affirmative defenses and (2) presumptions.
A presumption arises where one set of facts, Basic Facts, once established, gives rise to another set of facts, Presumed Facts, absent a contrary showing. (.e.g., mailing a letter. The basic fact is the mailing of the letter, the presumed fact is that it is received.)

Once the presumption is established the burden shifts to the opposite party to rebut or disprove the presumption if possible.
Presumptions- "Bursting the Bubble" Theory
Once the opponent presents sufficient evidence that the presumed fact is not true, the presumption disappears and the Bubble Bursts. The judge does not inform the jury of the presumption.
Presumptions- Rebutability of Presumptions
(1) Most presumptions are rebuttable in civil cases but not in criminal cases.

(2) In criminal cases, presumptions are rare and disfavored since if not rebutted, the result would be a judgment as a matter of law (which violates Due Process and is unconstitutional.

(3) There are some "so-called" presumptions that are irrebuttable; they are really not presumptions so much as they are simply rules of law. They are substantive rules that cannot be disputed.
Presumptions- Examples of irrebutable presumptions
In a negligence action, the defendant is age seven and the state has a statute that says a child age seven or below is incapable of negligence

As a matter of law there is an irrebuttable presumption that no matter how mature the seven year old is, there can be no finding of negligence.
Relevancy and its Limits- Admissibility in General- "Relevant Evidence"
Evidence which tends to make the existence of any fact more probable or less probable than it would be without the evidence is "relevant evidence."

It is not whether the evidence makes the existence of a fact more likely than not.
Relevancy and its limits- Admissibility in General- "Legal relevance"
(1) Evidence has logical relevance if it has probative value; that is, it is logically relevant if it has some logical tendency to prove or disprove a fact of consequence. (any tendency)

(a) When evidence that is logically relevant but still excluded by the court (by 403 or policy)

(b) Public policy considerations are balanced against the evidence's probative value.
Relevancy and its limits- Admissibility in General- "Admissibility of Relevant Evidence"
Relevant evidence is generally admissible; irrelevant evidence is inadmissible.
Relevancy and its Limits- Admissibility in General- "Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (Rule 403)"
a. Relevant evidence may be excluded if the probative value is substantially outweighed by the following six considerations: evidence that invites the jury to make a decision n an improper ground.

(1) Risk unfair evidence-
(2) Confusion of the evidence
(3) Possibility that it could mislead the jury
(4) Considerations of undue delay,
(5) Cumulative
(6) Repetitive
Relevancy and its limits- Admissibility in General- "Common Relevancy problems"
(1) In negligence and product liability cases, evidence of prior or subsequent accidents may be relevant to prove substantially similar circumstances by showing

(a) a dangerous condition existed; (b) a product is defective; (c) the cause of an accident; or (d) notice that a dangerous condition existed.

(2) In negligence and product liability cases, evidence of prior or subsequent accidents may be relevant only if the other accidents occurred under substantially similar conditions, that is, only if there was a "substantial identity of material circumstances.
Relevancy and its limits- Absence of "Similar Accidents"
(1) The absence of similar accidents can be used to rebut a claim that there existed a dangerous condition or to show lack of negligence.
Relevancy and its limits- Other Types of Evidence
a. Direct evidence does not require that an inference be made. Direct evidence is where, if you believe it, the conclusion the party offering it wants drawn is immediately drawn by the jury. "I saw the d shoot the victim" If believed they jury will conclude the D shot the victim.

b. Circumstantial evidence requires that an inference be made. It is where the proof of one fact invites the inference of another fact logically. For example, if a witness testifies "I didn't actually see defendant shoot victim, but I heard the gunshot, immediately turned around, and saw defendant running down the alley," this testimony permits the inference that defendant shot the victim. Just as significant s direct evidence.

c. Real evidence refers to objects (like the murder weapon) relevant to the case.
Character Evidence (civil cases)
1. Civil Cases (FRE 404(a)): Tells us when and under what circumstances can be used. Character evidence not used often is civil cases.

a. In general, character evidence is inadmissible to prove conduct in conformity therewith.
EXCEPTION: Defendants and victims in a criminal case when the defendant opens the character issue.
EXCEPTION: Where character is an essential element of a cause of action, claim, or defense. (Then can use opinion, reputation, or specific acts)- Almost never the case though

b. Ordinarily character must be proved only by (1) reputation and (2) opinion. (1) Specific acts rarely used to prove character.

c. Specific causes of action where character is an issue include the following: (1) Defamation cases- In the case the plaintiff has to prove the statement was false. The defendant can prove it to be true and either side can use all three; (2) Child custody cases. The character of the parents is at issue; (3) Negligent hiring case; (4) Negligent entrustment
Character Evidence (criminal cases)
a. Entrapment, criminal fraud, and perjury are the few instances where character is at issue in a criminal case.

b. An important caveat to note is that, when the criminal defendant claims self-defense, the victim's character is not at issue in the strict sense.

c. It is also important to note that, in criminal cases, it is relatively rare that a criminal defendant's character is an essential element of a charge or defense.
Character Evidence (criminal cases) Rule 404(a)(1)- Defendant's use of character evidence
FRE 404(a)(1)- puts decision to use in the hands of the defendant
(1) The prosecution may not initially introduce evidence of defendant's bad character.

(2) The defendant can raise his character as part of his defense but is limited to opinion and reputation evidence only. (Not prior acts so no specific incidents)

(3) Testimony about a pertinent trait of the defendant (the defendant's good character) must first be raised by the defendant. That is, a defendant may "open the door" with reputation or opinion evidence of his good character to prove his innocence and the prosecution may so rebut.

(4) Once the door to character evidence has been opened, the prosecution may rebut with reputation or opinion evidence but once again no prior acts.
Character Evidence - Attacking victims Character
FRE 404(a)(2)
(1) A D may offer reputation or opinion evidence of the bad character of the victim (to show defendant acted in self-defense) and the prosecution may rebut the same way. (usually self defense)
(2) If all D says is that he acted in self-defense, the prosecution may NOT offer evidence of D's character for violence.
(3) BUT, If D offers evidence of victim's character for violence, the prosecution may rebut with evidence of the victim's character for nonviolence/peacefulness. And may bring in evidence showing the defendant's character for violence. (Both doors)
(4) In a homicide case, as soon as the D claims self-defense the prosecution can bring in character evidence to show that the victim was peaceful. D does not have to do anything else to open this door.
(5) For the most part evidence is limited to opinion and reputation evidence but If D calls witnesses to testify to his "good character" the prosecution can then cross those witnesses on specific instances to rebut the "good character" evidence, need good faith basis though. But the prosecution cannot use extrinsic evidence to prove these specific instances.
(6) The only time that these rules do not apply is for rape cases or sex crimes.
Character Evidence Offering evidence of specific acts, not to show character, but to show MIMIC (list not exhaustive)
FRE 404(b) "MIMIC" Rule- Can offer evidence of specific acts for any other purpose other than to prove character trait. (this list is not exhaustive)

1.) MOTIVE- e.g., D murdered V to prevent him from testifying; 2.) INTENT- e.g., when D has that amount of drugs in the past he sells it rather than uses it; 3.) MISTAKE (absence of mistake through the doctrine of chances)- Where there are past incidents that show this time was not a mistake. (e.g., the man who had three wives die from drowning); 4.) IDENTITY- Proof of someone's M.O; 5.) KNOWLEDGE (e.g., d knows how to open a safe in a certain way); 6.) OPPORTUNITY (e.g., person was seen with the weapon before the crime); 7.) PREPARATION- (e.g., evidence that person stole car the day before to use in a bank robbery); 8.) PLAN OR SCHEME - (e.g., overall plan or scheme of which each act is a constituent part of the lager crime)

(3) MIMIC evidence may have occurred before, during, or after the date of the offense.
Character Evidence (criminal cases) Habit: Routine Practice (Rule 406)
Habit: Routine Practice (Rule 406) (do not use to substitute in character evidence)

a. Evidence of the habit of a person, or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity of the habit.

b. Habit is the way someone almost always responds to repeated stimuli. (e.g., every time someone gets in a car they put on their seatbelt) Don't use habit as it is used in common parlance.

c. A party may testify to his own particular habit.
Relevancy and its limits: Legal Relevancy (FRE 407-411)- Subsequent Remedial Measures
a. Evidence, even though relevant, may be barred due to public policy considerations.

b. Subsequent Remedial Measures (SRMs) (Rule 407)

(1) Evidence of SRM is inadmissible to prove negligence, culpable conduct, design defect, or the need for a warning.
(2) SRMs can be used (1) to show ownership or control, (2) to impeach, (3) to show the feasibility of precautions; or (4) impeach
(3) The timing of the remedial measures covered by this rule must be subsequent to the incident at issue in the case.
(4) The public policy of this rule is to encourage persons to fix dangerous conditions and to make products safer.
Relevancy and its limits: Legal Relevancy (FRE 407-411)- With respect to the Feasibility of Precautions
(1) If defendant claims "a different accelerator design was not feasible" to prevent such accidents, evidence that defendant did make subsequent changes to make the design of the accelerator safer is admissible to refute defendant's claim; this rule applies in negligence and products liability cases.
Compromise and Offer to Compromise (Rule 408)
(1) In general, evidence of an offer to settle a claim, which is disputed either as to validity or amount, is inadmissible to prove liability.
(a) Need a claim
(b) A dispute over the claims validity or amount
(c) An offer to settle

(2) The public policy of this rule is to encourage court settlements.
(3) Evidence of an offer to compromise may not be used to impeach with a prior inconsistent statement.

(4) An exception to the general rule exists; evidence of a compromise or offer to compromise is admissible (1) to show bias or prejudice (e.g. witness was part of the suit but settled); (2) to negate a contention of undue delay; or (3) to show efforts to obstruct a criminal investigation.

Note: There must be a dispute as to amount or fault (liability); an offer is admissible as an admission if both fault and damages are admitted.
Payment of Medical and Similar Expenses (Rule 409)
(1) Evidence of offering to pay medical (hospital or similar) bills is inadmissible to prove liability for an injury. Statements made while medical expenses are made are admissible.

(2) Can be made by spouse or agent of the D and still be protected
Inadmissibility of Pleas, Plea Discussions, and Related Statements (Rule 410)-
Statements that are inadmissible against the DEFENDANT in a criminal case. Has to be with the prosecuting attorney or their agent.
(1) A plea and any statements made during plea negotiations by a defendant in a civil or criminal proceeding will be inadmissible against the defendant in a later proceeding.
(2) This rule applies to (1) pleas of guilty later withdrawn; (2) pleas of nolo contendere (no contest); and (3) offers to plead guilty (i.e., any statements by defendant during plea negotiations).
(3) This rule does not apply to statements made to the police—only to statements made to the prosecutor (a plea bargain is a contract).
(4) If the defendant signs a waiver that allows the prosecution to use the statements in trial to impeach him the courts will accept the waiver and allow the statements.
(5) The rule only applies to issues after withdrawal from plea negotiations. The prosecution cannot use those statements against the D during that trial. If however, the D does plea and admits guilt, both his admission and his statements can be used against him in a latter trial.
Liability Insurance (Rule 411)
Same rule as for subsequent remedial measures

(1) In general, evidence that a person was or was not insured is inadmissible to prove negligence or fault.

(2) Exceptions to this general rule exist. Evidence of liability insurance may be admitted for another purpose, such as (1) proof of agency, (2) ownership or control, and (3) bias or prejudice of a witness
Sexual Conduct (Rape Shield)
a. In sex offense cases, the Rape Shield law provides a broad rule of exclusion (Rule 412). Designed to protect women from undue harassment who complained of rape and later appeared to testify.
b. According to the Rape Shield law, in any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show the alleged victim's sexual behavior, sexual predisposition, and other sexual history is excluded.
c. However, there is an exception to the Rape Shield law. In a criminal case, specific acts are admissible in three instances:

(1) If the defendant alleges consent and there was a previous sexual relationship then evidence of that previous relationship is allowed to show that this sexual incident was consensual.
(2) To show where DNA evidence on the victim's body came from other than the defendant (e.g., the victim has seamen from an unknown person on her body)
(3) If evidence of other sexual conduct is essential to adhering to the defendant's constitutional rights. (i.e., his constitutional rights compel the introduction of the evidence.) This is not a well-defined exception. Where it is essential to the defendants case, like showing a motive for making the accusation of rape.
Evidence of Similar Crimes in Sexual Assault and Child Molestation Cases
a. Where D is accused of child molestation or sexual assault, specific acts by the D are admissible and may be considered as they bear on any relevant matter (including propensity or disposition to commit sex offenses).
b. In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of sexual assault or child molestation, specific acts by the D are admissible.
c. A Rule 403 limitation exists whereby these specific acts are admissible subject to the discretion of the judge; thus, such specific acts may be ruled inadmissible if, in the judge's discretion, the evidence is too gruesome or may confuse the jury.
d. These prior acts used in criminal cases need not have been tried (i.e., a prior conviction or arrest is not required); they can simply be allegations which meet the "preponderance of the evidence" standard.
e. These specific acts need not have been prior to this particular act; they must simply be prior to this prosecution.
f. The judge must find that a jury could believe the evidence by a preponderance of the evidence. Thus a conviction will be allowed but it can be less than that.
Privileges- Generally Rule 501
Rule 501
a. Absent contrary provision by the Constitution, Congress, or the US Supreme Court, the law of privilege is governed by the principles of the Common Law, subject to superseding state law.

b. Application
(1) In diversity actions, the privilege of a witness is determined by state law.
(2) In federal question cases and criminal cases, the privilege of a witness is determined by common law.
Privileges Privilege Under Common Law
a. Privileges are an exception to the ordinary rules of law that no one has a right to (1) refuse to be a witness, (2) refuse to disclose any matter, or (3) refuse to produce any object or writing.

b. Confidential Communication Privileges
(1) There are four confidential communication privileges recognized in federal courts and in all 50 states:
(1) lawyer-client,
(2) psychotherapist-patient,
(3) clergyman, and
(4) husband-wife (spousal and marital).

c. Analysis of a privilege
(1) Whether there was a protected relationship
(2) Whether there was a communication within that relationship
(3) Whether the parties took adequate steps to ensure that the communication would be confidential
(4) Who is the holder of the privilege?
(5) Whether the privilege has been waived
(6) Whether an exception applies
Privileges: Lawyer-Client Privilege
a. The client is the holder and may refuse to disclose (and prevent other persons from disclosing) confidential communications made for the purpose of seeking professional/legal advice or services.

1.) Just having a conversation with a lawyer does not mean it is privileged
Privileges: Lawyer-Client Privilege - Confidential communications
Confidential communications include oral and written statements as well as conduct intended to be confidential; they do not include observations.

1.) So if a lawyer sees his client come in with blood stained clothing his observation is not privileged and he can be compelled to testify about it.

Preexisting documents (e.g., bank records, deeds) are not privileged but the discussion about them would be.
Privileges: Lawyer-Client Privilege - Work Product
Work product (material prepared by the attorney in anticipation of litigation) is privileged.
Privileges: Lawyer-3rd parties
If a third party is present during an attorney-client conversation, the attorney-client privilege extends to that third party if that party's presence is essential or necessary to further the purpose of the representation.

1.) So investigators or even Dr's used in preparation of trial can be covered by the attny-client privilege. Don't jump right away to psychotherapist or Doctor privilege

The presence of attorney representatives—including people hired by the attorney to assist in the rendition of legal services—during an attorney-client conversation does not destroy the privilege. / The presence of unknown eavesdroppers does NOT destroy the privilege; however, known or anticipated eavesdroppers do destroy the privilege.
Privileges: Lawyer- Clients, lawyers and who has the privilege
A. Clients include any person (public officer, corporation, or association) who is seeking professional legal services or consulting with the possibility of obtaining such legal services.

B. Lawyers include any person authorized or reasonably believed by the client to be authorized (i.e., disbarred attorney, never licensed) to engage in the practice of law in any state or nation.

C. The holder of the privilege is the client; thus, the client may claim the privilege or the client's lawyer may claim the privilege on the client's behalf.
1.) The privilege also survives the death of the client so the attorney is not free to disclose the information even after the client dies.
Privileges: Lawyer- Waiver of the Lawyer-Client Privilege (Rule 502)
Waiver of the Lawyer-Client Privilege (Rule 502)
1) Failure to assert a privilege in a timely manner usually results in a waiver. However, the privilege is waived only to the extent to permit reasonable scrutiny by the opposing party (partial waiver).
(2) A waiver of a privilege generally operates as a partial waiver.
(3) A "blanket" or total waiver results only if (1) the waiver was intentional and (2) both the disclosed and undisclosed info concerns the same subject matter.
(4) 502 deals with inadvertent waiver- The waiver is limited to the disclosed info.
(5) Ct still might not enforce the waiver if:
a.) the client intended to waive the privilege;
b.) whether the client took reasonable steps in order to protect the information (e.g., the attorney's paralegals were the ones who accidentally disclosed but the attorney had (previously) trained them on what was confidential and how to properly handle it);
c.) and whether the client took timely steps to remedy the disclosure once it was discovered.
Privileges: Lawyer-Situations Where There is No Lawyer-Client Privilege (exceptions)
Situations Where There is No Lawyer-Client Privilege (exceptions)
(1) The lawyer-client privilege is inapplicable where the client communicates on-going or future crime or fraud. (when the lawyer involves himself in the criminal activities of the client)
(2) The lawyer-client privilege is inapplicable where there is a suit between the lawyer and client (e.g., malpractice).
(3) The lawyer-client privilege is inapplicable where two or more clients have the same lawyer and later the joint clients have a falling out which results in litigation, the matters they discussed with the lawyer are not covered unless the clients specifically agree otherwise.(however the clients can agree that it will be confidential if the clients have a falling out and that will preserve the privledge)
(4) Client identity is generally not privileged unless disclosure of the identity would disclose other privileged matters.
(5) Fee arrangements are not privileged unless the disclosure of the fee arrangement would disclose other privileged matters.
Privileges: Lawyer- Duration of Lawyer-Client Privilege
1) The lawyer-client privilege begins upon the initial contact and persists beyond the client's death.
Privileges: Physician and Psychotherapist-Patient Privilege
a. The FRE does not recognize a physician-patient privilege; where such a privilege exists, it must be created by a state law.
b. The FRE recognizes psychotherapist-patient privilege; it protects confidential communications between a licensed psychotherapist and a patient who is seeking a diagnosis or treatment for a medical condition (medical or emotional).
c. This privilege extends to licensed social workers, psychologists, mental health specialists, psychiatrists, and marriage counselors but not to educational and vocational counselors.
d. Exceptions to the Psychotherapist-Patient Privilege

(1) This privilege does not extend to the following four circumstances:
(a) Statements made in commitment proceedings
(b) Statements made during court ordered examinations such as to determine sanity.
(c) Claims for damages where psychological damages are part of the claim but only if it is for some specific psychiatric condition. Having garden-variety pain and suffering wont necessarily waive the privilege. But claiming ptsd would waive the privilege.
(d) If patient tells psychotherapist of future crimes where someone is in danger or is part of the crime.
Privileges: Spousal (Testimonial) Privilege
a. The spousal (testimonial) privilege not to testify against one's spouse in a criminal proceeding is held by the witness; in other words, if the spousal witness wants to testify against a spouse, the non-testifying spouse cannot preclude the testimony. (covers all observations and communications between the parities even those before they were married)
b. The spousal (testimonial) privilege is lost upon divorce. (at time of the testimony)
c. The spousal (testimonial) privilege has two exceptions.
(1) If d is charged with a crime against the testifying spouse; or
(2) If d is charged with a crime against the children of the witness and the D.
Privileges: Spousal (Testimonial) Privilege- Marital Communications Privilege
Marital Communications Privilege (only covers communications (no observations) that occurred while married)
(1) The marital communications privilege can be asserted by either spouse in either civil or criminal proceedings.
(2) The marital communications privilege protects only confidential communications between spouses during the time of their marriage.
(3) The marital communications privilege is not lost upon divorce.
(4) The marital communications privilege does not extend to the following three circumstances.

(a) If the litigation involves a crime by one spouse against the other or their children.
(b) Divorce proceedings
(c) Spouses jointly charged with the same crime.
Privileges: Religious Privilege
Religious Privilege (Priest Penitent or Clergyman Privilege)
a. This privilege protects confidential communications made from penitent to clergyman in his professional capacity as spiritual advisor.
b. The statement needs to have been made under conditions of confidentiality.
c. Can be asserted by any and all parties
d. No exceptions to the privilege
Privileges: Identity of informer
A newsperson has no First Amendment privilege to refuse to disclose the identity of his sources; however, states can provide "shield laws" to afford such a privilege.
Privileges: Executive Privileges
a. This is a court-created privilege (U.S. v. Nixon (1974)); the US Supreme Court recognized such a Constitutional privilege for the President.
b. Courts decide whether privilege applies.
(1) More likely to sustain specific executive privilege claims involving national security.
Privileges: Fifth Amendment Privilege Against Self-Incrimination
a. A Constitutional privilege that applies only to evidence that is "testimonial."
1.) Statements that could be used against them in criminal proceedings
b. Presentations of real and demonstrative forms of evidence are not protected (e.g., blood, hair, fingerprints, scars).
c. The accused in a criminal trial has a Fifth Amendment privilege to refuse to take the stand.
d. The prosecution may not comment on defendant's refusal to take the stand. However, an inference is permissible in a civil case if a party pleads the fifth.
e. Witnesses or parties in civil cases must assert the Fifth Amendment privilege on the stand.
f. The Fifth Amendment does not apply when the witness waives the privilege and when the witness is given immunity.
g. Immunity
(1) Transactional immunity, which is seldom used in the federal courts, prevents a witness from being prosecuted for any crime referred to in the testimony; (2) Use immunity, which is more common, prohibits the government from using both the actual testimony of the witness, and any evidence derived therefrom, against the witness.
Witnesses- Generally (General Rule of Competency (Rule 601))
a. Every person is competent to be a witness. So age, mental acuity etc... does not go to excluding a witness but instead go to the weight the jury gives to the testimony.

b. Excusing a Witness
(1) A court may excuse any witness if the probative value of the witness' testimony is outweighed by unfair prejudice.

c. Dead Man's Statutes (state law)
(1) Unlike Dead Man's Statutes, the FRE does NOT disqualify any witness (survivor) from testifying about any transaction involving the decedent. The statutes say that a witness cannot testify about conversations with a dead person.
(2) If a state has a Dead Man's Statute, the federal court will apply it under the Erie doctrine.
Witnesses- Lack of Personal Knowledge (Rule 602))
a. A witness may only testify to matters about which he has personal knowledge. (Observations made with one of their five senses). It also applies to all hearsay declarants except to party opponents.
b. Lay witnesses must have personal knowledge acquired by means of one of their five senses.
c. Expert witnesses may testify on the basis of vicarious knowledge (because an expert stands on the shoulders of those in the field who have come before).
Witnesses- Oath or Affirmation (Rule 603))
A witness must declare to testify truthfully by oath or affirmation "in a form calculated to awaken his conscience." The key is that the witness understands that their testimony is given subject to the pains and penalties of perjury.
Witnesses- Interpreters (Rule 604))
An interpreter is qualified the same way as an expert witness, and must take an oath or affirmation.
Witnesses- Competency of Judge as Witness (Rule 605))
a. The presiding judge may not testify in that trial as a witness.
b. The objection is automatic and need not be made in order to preserve it for appeal.
Witnesses- Competency of Juror as Witness (Rule 606(a))
a. A juror may not testify as a witness before the jury of which he is a member.
b. The objection to such testimony shall be heard outside the presence of the jury.
c. A juror may not testify (or provide an affidavit) as to the manner in which the jury reached its decision. For example, a juror cannot testify with respect to (1) any statements made during deliberations, (2) thought processes by which jurors reached their decisions, or (3) votes taken to reach the verdict.
d. A juror may testify as to improper outside influences. For example, a juror may testify as to (1) extraneous prejudicial information improperly brought to the juror's attention, (2) whether any outside influence was improperly brought to bear on any juror, and (3) clerical/secretarial error (i.e., mistakes on the verdict form).
e. A juror's affidavit is admissible if it concerns whether a juror (1) brought a newspaper into the jury room, (2) made an unauthorized visit to the scene, (3) accepted a bribe, (4) conducted an out-of-court experiment, (5) received any threat, (6) had improper communications with court personnel, or (7) brought a bible into the jury room and read passages suggestive of defendant's guilt to other jurors.
Witnesses- Impeachment (Who May Impeach (Rule 607))
The credibility of a witness may be attacked by any party, including the party calling the witness.
Witnesses- Impeachment (Collateral Matter Rule)
a. Extrinsic evidence on collateral matters is inadmissible to impeach a witness.

1.) Collateral Matters- Matters that are not of consequence to the determination of an action.

b. Extrinsic evidence refers to all evidence other than intrinsic evidence, that is, all evidence other than evidence produced by testimony from witness on cross-examination.
Witnesses- Impeachment (Methods of Impeachment)
a. According to the Supreme Court, bias or prejudice is always material (never collateral) and so extrinsic evidence can be used to bring out or show that bias or prejudice.

b. Sensory defects—a difficulty or inability to observe, communicate, remember—are always relevant, never collateral.
Witnesses- Impeachment : Evidence of Witness's Character for Untruthfulness (Rule 608a)
a. A witness's character for untruthfulness is always material and may be attacked by using reputation or opinion evidence through another witnesses testimony through opinion or reputation. The party who called the witness can then introduce evidence of the witness's character for truth telling.
b. A witness's character for truthfulness can be shown by reputation or opinion evidence only if the witness's credibility for truthfulness has first been attacked. (Rehabilitating evidence)
c. Cross-examination about specific acts that reflect on his truthfulness such as perjury or fraud is acceptable.
d. Evidence of Witness's Conduct or Bad Acts (Rule 608a)

(1) Specific instances of the conduct of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness's credibility.
(2) If the witness lies about the specific instance, extrinsic evidence is inadmissible to prove the prior dishonest act.
(3) The examiner is bound by the witness's answer in the sense that extrinsic evidence cannot be introduced to contradict witness's answer, but examiner may ask follow-up questions to try and get the witness to admit or change answer.
Witnesses- Impeachment (Impeachment by Evidence of Conviction of Crime (Rule 609))
Applies in both civil and criminal cases; applies to all witnesses.
1.) For a witness, the past felony comes in subject to 403
2.) For a defendant, the past felony does not come in unless prosecution can show the probative value outweighs the prejudicial value.
Witnesses- Impeachment (Impeachment by Evidence of Conviction of Crime (Rule 609))
Felonies—FRE 609(a)(1)
(1) Subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice).
Witnesses- Impeachment (Impeachment by Evidence of Conviction of Crime (Rule 609))
Crimes where judge can readily determine involved dishonesty or false statement—FRE 609(a)(2)
(1) Always Admissible as a matter of right (i.e., no balancing), as long as less or equal to 10 years old.
a.) Perjury
b.) Bigamy
c.) Fraud
Witness: Evidence of Conviction of Crime (Rule 609)) FRE 609(b) 10-Year Rule
FRE 609(b) 10-Year Rule
(1) Convictions more than 10 years old are inadmissible to impeach unless the probative value substantially outweighs the prejudicial effect. Notice to the opponent is required.
(2) The 10-year time limit is measured from the start of the later of either (1) the date of conviction or (2) the date of release from confinement. Whichever is later.
(3) If more than ten years there must be a showing that the probative value substantially outweighs the prejudicial effects.
Witness: Evidence of Conviction of Crime (Rule 609)) Juvenile Adjudications
(1) Inadmissible against the accused if he testifies.
(2) For all other witnesses, discretionary (civil or criminal cases)—admissible, subject to the court's discretion. First determine if the testimony would be admissible if the witness were an adult and, if so, then determine If admission is necessary for a fair determination of the issue of guilt or innocence.
Witness: Evidence of Conviction of Crime (Rule 609)) Convictions under Appeal
(1) Convictions under appeal are admissible, but evidence that the conviction is under appeal is also admissible.
(2) If defendant has been pardoned it can no longer be used.
Witness: Evidence of Conviction of Crime (Rule 609)) Arrest records, indictments, and other charges
These are inadmissible under Rule 609.
Witness: Evidence of Conviction of Crime (Rule 609)) Impeachment
(1) A witness can be impeached if they have entered a guilty plea in a prior case
(2) If the person did not testify when they were convicted then their conviction cannot be used as evidence of their character for truth telling
Witness: Religious Beliefs or Opinions (Rule 610)
a. Evidence of a witness's religious beliefs is inadmissible to impair or enhance credibility.
b. Cannot ask whether witness thinks the D is innocent or guilty.
Witness: Procedural Issues
a. Typically will use pre trial motions in limine to request the previous motions not be used to impeach. If denied that motion cannot be appealed unless the D testifies and the convictions are used to impeach him.
b. If defendant brings up convictions themselves they cannot raise the judges denial of their motion on appeal.
Examination of Witnesses- Mode and Order of Interrogation and Prosecution
a. The judge (the court) shall control the examination of witnesses and presentation of evidence to effectively ascertain the truth and prevent harassment of witnesses.
b. Leading Questions—Rule 611
(1) On direct examination, leading questions are generally not allowed.
(2) On cross-examination, leading questions are allowed but limited to the scope of direct and to matters affecting credibility (impeachment questions). And cannot use if cross-examining own witness
(3) Although generally not allowed on direct examination, leading questions may be appropriate in the following five circumstances: (1) hostile witnesses, (2) adverse witnesses, (3) child witnesses, (4) to solicit preliminary background information, and (5) to refresh witness's recollection.
Examination of Witnesses- Writing Used to Refresh Memory
Refreshing recollection showing the witness something to jog their memory. They testify separate to the writing shown to the witness. Don't need to bring into evidence but adverse party has right examine, show jury etc...
a. There are five procedural steps to refresh a witness's memory:
(1) Give or show a copy to the judge
(2) Give copy to opposing counsel
(3) Mark it for identification
(4) Ask the witness to read the document silently,
(5) Take the document back and ask the witness to testify independent of the document from their refreshed recollection.
b. Using Privileged Material to Refresh
(1) Where privileged material is used to refresh, the court will rule a waiver has occurred and allow the adverse party to inspect.
Examination of Witnesses- Prior Statement of Witness (Rule 613)- One of most common impeachment
a. A prior inconsistent statement ("PINS") is not "sworn" and is admissible only to impeach. Not to prove the assertions in the PINS but to show that witness is inconsistent.
b. PINS may be oral or written; the contents of the writing need not be shown to the witness but must be shown to opposing counsel upon request.
c. Foundation requirement
(1) Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided
(i) The witness is afforded an opportunity to explain or deny the evidence at some point during the trial and (ii) opposing counsel is afforded an opportunity to interrogate the witness unless the "interests of justice" require otherwise.
d. Statements made under oath
(1) If statement was made under oath then it can be used substantively to prove the truth of the statement.
e. Additional requirements
(1) A party cannot call a witness simply to impeach them with a prior inconsistent statement, need to elicit substantive statements
Examination of Witnesses- Calling and Interrogation of Witness by Court (Rule 614)
a. The court (the judge) on its own motion may call witnesses and all parties may examine any witness called by the court.
b. The court may also interrogate any witness called by a party.
Examination of Witnesses- Forms of impeachment that constitute an attack on the witness
a. If the character of a witness is attacked by calling other witnesses or attacked on cross examination with prior acts which suggest a character for untruthfulness or by impeachment through use of criminal convictions then it is clear that character is being attacked and now the opposing party can call witnesses to testify to the truthfulness of the attacked witness
b. However, merely showing that a witness is biased or prejudiced is not an attack on the witnesses' character for telling the truth, neither is simply using a prior inconsistent statement and does not allow calling of witnesses to show the attacked witnesses character for telling the truth.
c. Contradicting the witness depends on the circumstances.
Examination of Witnesses- Exclusion of Witnesses (Rule 615)
a. In general, at the request of a party, the court shall order witnesses excluded, so that they cannot hear testimony of other witnesses.
b. However, there are three exceptions to this rule; it does not authorize the exclusion of the following:
(1) Cannot exclude a party to the case
(2) Cannot exclude someone essential to the case (e.g., the lawyers)
(3) Police officers, investigators, etc in criminal cases
(4) Statutory individuals (expert witnesses etc...)
Examination of Witnesses- Remedy
a. Can be a mistrial
b. Opposing party needs to show that it was not a harmless error.
Opinions and Expert Testimony: Acceptable Testimony: Opinions by lay witnesses rule 701
If the witness is not testifying as an expert, any testimony given that is an opinion or an inference must be (1) rationally based on the perception of the witness, (2) based on personal knowledge, and (3) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
Opinions and Expert Testimony: Acceptable Testimony: Opinions by lay witnesses- Proper Scope of Non-Expert Opinion Testimony
Proper Scope of Non-Expert Opinion Testimony
(1) Examples of the proper scope of non-expert opinion can be remembered using the mnemonic "VEMPSS."
Value of land
Emotional state of others (not a clinical diagnosis) (e.g., depressed, upset, drunk)
Measurements (e.g., speed, height, weight)
Physical states (intoxication, fat, slim)
Sensory descriptions(sight sound taste etc.
Sanity of testator (in will hearings)
Opinions and Expert Testimony: Acceptable Testimony: Opinions by lay witnesses- Improper Scope
(1) Opinions on legal matters (contributory negligent, the forming of a contract, the use of excessive form) stated in legally conclusory terms are not appropriate. (e.g., he is guilty, he was negligent)
Opinions and Expert Testimony: Acceptable Testimony: Testimony by Experts (Rule 702)-
Testifies to scientific, technical or other specialized matters on the basis of qualifications the person has gained through study, training, experience, etc... Questions is whether the person would be able to help the jury understand the issue better.
Opinions and Expert Testimony: Acceptable Testimony: Testimony by Experts (Rule 702)-Requirements
a. To testify as an expert, the witness must meet certain requirements ("SKEET").
Opinions and Expert Testimony: Acceptable Testimony: Testimony by Experts (Rule 702)-
If the witness is testifying as an expert, the subject of that testimony must be (1) appropriate and (2) relevant or helpful to assist the jury.

If the witness is testifying as an expert, any testimony given that is an opinion must be based on reliable methods, devices, or techniques and reliably applied to the facts of the case.
Opinions and Expert Testimony: Acceptable Testimony: Testimony by Experts (Rule 702)- Daubert test
Daubert's Guidelines for Determining Reliability of Expert Testimony
(1) The Supreme Court offered a list of factors ("TAPES") that could be considered by judges when determining the reliability of an expert's opinion testimony. (look to other testimony or affidavits)

Theory tested? (has the theory been tested by others?)

Acceptance (is the theory generally accepted in the scientific community?)

Peer review (has the method been reviewed in journals in the field)

Error rate (is there a known error rate? Just because there is one does not make it unreliable but want it to be acceptable)

Standards (has the scientific community developed standards to apply the theory?)
Opinions and Expert Testimony: Acceptable Testimony: Basis of Opinion Testimony by Experts (Rule 703)
1. Three Bases
a. The expert's opinion testimony can be based on the expert's own personal knowledge. (in the field, before or at trial)- Could be the physician that did the surgery
b. The expert's opinion testimony can be based on facts or hypotheticals presented to them at trial. (given photographs, depos, reports, hypothetical questions etc...)
c. The expert's opinion testimony can be based on facts acquired prior to trial even if facts that are not usually allowed at trial; these out-of-court facts must be of the type "reasonably relied upon" by other experts in the particular field.
Opinions and Expert Testimony: Acceptable Testimony: Disclosure of Facts or Data Underlying Expert Opinion (Rule 705)
Direct v Cross-Examination
a. Because an expert can consider evidence that is not allowed in court, an expert may testify and give reasons without first testifying to the basis of the opinion (i.e., underlying facts or data), unless the court requires otherwise; however, the expert may be required to disclose these facts on cross-examination, who can always ask about the evidence
b. The person who is using the witness can only have the witness bring out the inadmissible underlying facts if the judge finds that the probative value outweighs the risk of evidence. Any time the evidence is allowed in the judge will give a limiting instruction.
Opinions and Expert Testimony: Acceptable Testimony: Opinion on Ultimate Issue (Rule 704)- General Rule
a. An expert may give an opinion or inference that embraces an ultimate issue.
b. Can give testimony on cause of illness or death; if a product was dangerous, a design was defective, whether a document was forged; what the standard of care is in a med mal case.
Opinions and Expert Testimony: Acceptable Testimony: Opinion on Ultimate Issue (Rule 704)- Limitation in Criminal Cases
a. An expert may not give an opinion as to whether a criminal defendant did or did not possess the mental state or condition that constitutes an element (or defense) of the crime charged. (e.g., whether a witness was telling the truth, whether the d is guilty, whether there was a narcotics transaction, etc...)
b. There is an exception to criminal cases with claims of insanity: cannot ask the witness whether the d was sane or insane at time of offense, or that at the time he was suffering a mental defect that kept him from conforming to the requirements of law. Can lead jury down the path to make the conclusion but cannot state it themselves.
Hearsay- Definitions Rule 801
a. Hearsay is an out-of-court statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted.
1. Declarant- person who made statement
2. Witness- Person repeating statement in court
b. A Rule 801 statement is either (1) an oral or written assertion or (2) conduct intended as an assertion.
c. Assertive conduct is conduct intended to communicate as a substitute for words (e.g., pointing a finger to give a direction; shaking a head yes or no; a smile, wink, or obscene gesture; a sketch by a police artist).
d. Non-assertive Conduct
(1) Non-assertive conduct is non-hearsay.
(2) The following are some examples: (1) videotape showing a defendant's demeanor; (2) defendant walking with a limp or an unsteady gait due to injury or intoxication; (3) defendant talking with slurred speech; (4) defendant hiding from police or fleeing the scene; and (5) defendant hiding evidence.
Hearsay- Analysis of Hearsay Issues
1. Focus on the words in question (identify the words)
2. Determine who the declarant is
3. Ask whether the words or conduct constitute an assertion
4. What is the purpose of the assertion? (Offered for the truth of that assertion?)
5. Is there an exception?
Hearsay- Evidence Offered for Non-Hearsay Purposes
1. To show the effect on the listener (e.g., whether someone received notice)
2. Motive (e.g., your wife has been sleeping with the neighbor)
3. State of mind (e.g., "I am napoleon" to show that you were crazy)
4. Verbal acts (words that have meaning by their utterance, e.g.,, offer and acceptance statements, some words constitute a crime "I will have sex with you for $500")
5. Impeachment
6. Words of the nature of a person (e.g., Proof of life), or state of a place (e.g., I would like to put $50 on "little Johnny" at pimlico" if used to prove that the place called is a gambling establishment)
Hearsay- Statements which are Not Hearsay (Rule 801(d))- Admissions- AKA Statements by party opponent and adoptive admissions
1. Admissions- AKA Statements by party opponent
a. Direct admission is a statement of a party offered against him by his opponent.
b. Adoptive admission is an admission by express, by conduct or by silent acceptance of some other person's statement. IF:
1. Need to show D heard the statement
2. Show D understood the statement
3. A reasonable person in those circumstances would have denied the statement
i. Tricky example: Two D's are arrested and placed in the back of a police car. One D says to the other, "They caught us red handed this time". The second D says nothing. At trial the prosecution wants to use the second D's silence to show that he adopted the first d's statement. When made in presence of police there are two issues:
a. 1st is constitutional- If read his Miranda rights then the statements can be used against him. If not the statement cannot be used against him.
b. 801(d) - Might argue that a reasonable person would not have said anything so even if Miranda was given it might not get in.
c. Other factors- Declarant does not need to have personal knowledge is not subject to the opinion rule and does not have to be in court.
Hearsay-Statements which are Not Hearsay (Rule 801(d))- Statements by Agents
a. Two kinds of agents:
1. Authorized admissions- those designated by the party to make statements (e.g., Press officer, lawyer)- These statements are admissible against the defendant
2. Employee (Vicarious) Admission is a statement of a party's employee offered against the party by the opponent; the statement (1) must be made during the existence of the relationship and (2) must concern a matter within the scope of employment, then admissible
i. Person does not have to be acting within the scope of employment at time of statement as long as statement relates to the scope of employment
Hearsay-Statements which are Not Hearsay (Rule 801(d))- Co-conspirator's/Joint venture statements
Co-conspirator's/Joint venture statements
a. Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators, even if they are not aware that a conspiracy exists. If the statements were made during and n furtherance of the joint venture or conspiracy.
b. A statement of a co-conspirator/joint venture can be used against another co-conspirator if four requirements are met.
(1) Both the declarant and the person against whom it is offered were part of the conspiracy at time the statement was made.
(2) Statement must be made in furtherance of the conspiracy
(3) Statement must be made within the scope of the conspiracy
(4) Must prove the relationship in question (co-conspirator/joint venture etc.)- Statement can be used to prove the relationship but need more. The statement alone is not enough.

Direct admissions should be identified not as "exceptions to the hearsay rule" but as "non-hearsay"; a non- hearsay rationale for admission of evidence is preferred to rationales based on a hearsay exception. Also, the arty opponent non hearsay rule is the preferred answer if available.
Hearsay-Statements which are Not Hearsay (Rule 801(d))- Prior Statements as Hearsay Exemptions
Non-hearsay, not an exception
a. For a prior statement to be a hearsay exemption, there are two key requirements: (1) witness must testify at a trial or proceeding and (2) the declarant must be subject to cross-examination concerning the statement.
b. Prior Inconsistent Statements—FRE 801(d)(1)(A)
(1) A prior inconsistent statement is permitted to be offered for its truth if it was "sworn," that is, if it was subject to penalty of perjury (under oath) at a trial, deposition, or other proceeding.
(2) A prior inconsistent statement made as part of grand jury testimony can be offered for its truth.
(3) A prior inconsistent statement made as part of a coroner's inquest can also be offered for its truth.
(4) In contrast, a prior inconsistent statement contained in an affidavit is not admissible to prove the truth of the matter asserted.
c. Prior Consistent Statements—FRE 801(d)(1)(B)
(1) A prior consistent statement is permitted to be offered for its truth if offered to rebut a charge of recent fabrication or improper influence (e.g.,want to rebut the charge that snitch is lying to get a deal) subject to the above-mentioned requirements.
Hearsay-Statements which are Not Hearsay (Rule 801(d)) Prior Identifications—FRE 801(d)(1)(C)
(1) A prior statement of identification of a person made after perceiving him can be admissible. (e.g., lineups, show-ups)
Hearsay-Statements which are Not Hearsay (Rule 801(d))- Additional requirements
Additional requirements for prior statements and identification

1.) The witness must testify at the hearing the statement is offered and
2.) Witness must be subject to cross-examination.
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Present Sense Impression
1. Present Sense Impression—Rule 803(1)
a. A "present sense impression" is not excluded by the hearsay rule, even if the declarant is available as a witness.
b. A "present sense impression" is a statement made by the declarant experiencing or observing an event describing or explaining an event or condition made while or immediately after perceiving it. ("he's got a gun!!")
c. A "present sense impression" has the following characteristics.
(1) Personal knowledge
(2) Spontaneity
(3) Can be oral or written
(4) If it is not at the time or immediately afterwards it wont qualify
(5) Don't need to know who the person is who said it
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Excited Utterance
Excited Utterance—Rule 803(2)
a. An "excited utterance" is not excluded by the hearsay rule, even if the declarant is available as a witness.
b. An "excited utterance" is a statement relating to a startling event made while the declarant was under the stress of excitement caused by the event or condition.
c. An "excited utterance" has the following characteristics.
(1) Personal knowledge
(2) Does not need to be immediately afterwards, what matters is if the person is still under the excitement of the startling event.
(3) Look for crying, bleeding, voice cracking etc...
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Statements of a Then-Existing Mental, Emotional, or Physical Condition
a. A statement of a "then-existing mental, emotional, or physical condition" is not excluded by the hearsay rule.
b. It is admissible if relevant to show declarant's state of mind. (in order to prove the condition, e.g., use "my leg hurts" to show the declarant's "leg hurt"
c. Characteristically, such a statement need not have been made to a medical person.
d. This exception to the hearsay rule does not include statements of prior-existing conditions (e.g., "I had a headache" or "I did not get any sleep last night").
e. Does not include statements of memory or belief; however, statements of memory or belief made by a testator are admissible (the "Will" exception).
f. Statements of intent or plan "I plan going to go the cabin tomorrow for two weeks" can be used.
g. Statements about the cause of the then existing condition are not admissible ("My arm hurts, I hurt it in the car accident" the statement "my arm hurts" is admissible, the statement "I hurt it in the auto accident" is not). The exception is in a will contest.
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Statements for Purposes of Medical Diagnosis/Treatment—Rule 803(4)
a. A statement for the "purpose of medical diagnosis or treatment" is not excluded by the hearsay rule, even if the declarant is available as a witness.
b. Characteristically, statements for the "purpose of medical diagnosis or treatment" can be made to any medical personnel or other person for the purpose of transmitting the statement to medical personnel.
c. Statements for the "purpose of medical diagnosis or treatment" must be useful for diagnosis and treatment. However, no treatment needs to be given. Don't need to be made to doctor. Can be someone who will relay the info to the doctor or other medical personnel. Also statement does not need to be made by the person getting treatment.
d. Need to distinguish statements that are pertinent to diagnosis or treatment from other statements that deal with fault etc... Need to redact if possible. If not possible it might excluded or given a limiting instruction.
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Past Recollection Recorded—Rule 803(5)
a. A "past recollection recorded" is not excluded by the hearsay rule, even if the declarant is available as a witness.
b. A "past recollection recorded" may be used where the witness has a present memory problem—the witness must lack sufficient current memory of the event to testify fully and accurately.
c. To introduce a "past recollection recorded," the following requirements must be met.

(1) The record is on a matter the witness once knew about but know cannot recall well enough to testify fully and accurately;
(2) Was made or adopted by the witness when the matter was fresh in the witness's memory; and
(3) Accurately reflects the witness's knowledge
d. The adverse party has the right to (1) inspect the recorded past recollection; (2) use it in cross-examination; (3) show it to the jury for comparison; and (4) introduce relevant portions into evidence.
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Records of Regularly Conducted Activity—FRE 803(6)
A. The "Business Records Exception" applies to any report of acts or events made at or near the time by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business to make such a record or report.
B. A business record that falls outside the hearsay rule has the following characteristics or meets the following requirements.
(1) Records kept in regular course of business.
(2) Routine practice to keep this kind of record
(3) Record made at or near the time of event
(4) Person who made record has to have personal knowledge of the information in record and has to have had a business duty to report or record the knowledge. So information from outside sources that end up in business files does not count.

d. Examples of records made in the "routine practice" of a business include things such as police accident reports, sales receipts, hospital records, and payroll records.
e. Authentication of the business records can be made by either the custodian of the records or other qualified witness or by affidavit or stipulation.
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Absence of Entry in Records—FRE 803(7) and (10)
a. Evidence that a matter is not included in records or data compilations kept in accordance with the business or public records may be admitted to prove the non-occurrence of the event or the non-existence of the matter.
b. Foundation: the witness must testify that he (1) is familiar with the records, (2) diligently searched the records, and (3) found no record of the event.
c. E.g., Proving someone does not have a license to carry a firearm. Subpoena the place that keeps those records and they must send someone or an affidavit that says that there is no record in accordance with the requirements above.
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Public Records and Reports —FRE 803(8)
a. A "public record or report" is not excluded by the hearsay rule.
b. Similar foundation as business records, except proponent need not show the record was routinely made at or near the time.
c. "Public records and reports" include records, in any form, of public offices or agencies, setting forth (1) the activities of a public office or agency (passports or licenses) or (2) matters observed pursuant to duty imposed by law as to which there was a duty to report (e.g., records from the whether bureau) .
d. In criminal cases, this category does not include matters observed by police officers and other law enforcement personnel. Would violate the confrontation clause.
e. In civil cases, factual findings from official investigations pursuant to authority granted by law are generally deemed to be trustworthy; however, these records are inadmissible if the way they were prepared shows a lack of trustworthiness. (If there were some reason e.g., prepared in anticipation of litigation, that would make it not trustworthy)
1. Party opposing introduction has burden of raising and proving issue of untrustworthiness.
f. Fact-finding reports are inadmissible against the defendant in a criminal case. They are admissible against the government however
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Records of Vital Statistics—FRE 803(9)
Records or data compilations of births, deaths or marriages are admissible if the report was made to a public office pursuant to requirements of law.
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Additional miscellaneous rules
1 . Family Records—FRE 803(13)
a. Statements of fact concerning personal or family history contained in such things as family bibles, genealogy charts, inscriptions on family portraits, engravings on tombstones, and urns are not excluded by the hearsay rule, even if the declarant is available as a witness.
2. Statements in Ancient Documents—FRE 803(16)
a. Includes statements in a document in existence 20 years or more whose authenticity is established.
3. Market Reports, Commercial Publications—FRE 803(17)
a. This category includes statements of objective facts but not opinions.
b. Examples include such things as telephone directories, credit reports, retail sales catalogs, Kelly Blue Books, the Yellow Pages, and the Wall St. Journal.
4. Learned Treatises—FRE 803(18); a. The "Expert Exception" includes statements made in treatises, textbooks, journals, and periodicals.; b. A foundation for the "learned treatises" authoritativeness must be established by (1) judicial notice, (2) expert testimony, or (3) stipulation.
(1) Subject areas include medicine, art, science, and history.
(2) Cannot use the treatise itself as an exhibit
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- Declarant must be unavailable: Judgment of Previous Conviction—FRE 803(22)
a. Final judgments of previous convictions for felonies are admissible.
b. The judgment may be used to prove any fact that was essential to the judgment.
c. Civil case: Judgment may be used by any party for any purpose.
d. Criminal case: If offered by prosecution for purpose other than impeachment, judgment must have been against the defendant.
Hearsay- Hearsay Exceptions: Availability of Declarant Irrelevant (Rule 803) (justified by reliability)- : Judgment as to Personal, Family, or General History, or Boundaries
Final judgments, if essential to a particular case, are admissible.
Hearsay- Hearsay Exceptions: Testimony of Declarant Unavailable (Rule 804)
To recall what constitutes "declarant unavailability," use the mnemonic PRISM.

Incapacitated (in hospital, no memory, etc..)
Subpoena (Cant be found)
Memory (lack of)
Hearsay- Hearsay Exceptions: Testimony of Declarant Unavailable (Rule 804) Declarant Unavailability (Rule 804(a))
a. A declarant is deemed unavailable if he asserts a privilege successfully (based upon the judge's ruling).
b. A declarant is deemed unavailable if there is a refusal to testify despite a court order.
c. A declarant is deemed unavailable if there is incapability due to death or then-existing physical or mental illness.
d. A declarant is deemed unavailable if absent despite a good-faith attempt to procure a witness's attendance (i.e., subpoena).
e. A declarant is deemed unavailable when, as a witness, the declarant testifies to a lack of memory.
Hearsay- Hearsay Exceptions: Testimony of Declarant Unavailable (Rule 804) Former Testimony—Rule 804(b)(1)
a. If the declarant is unavailable as a witness, former testimony of this declarant is not excluded by the hearsay rule.
b. The unavailable declarant's former testimony may be used for its truth only if the following requirements are met.

(1) The declarant made statement under oath in previous proceeding
(2) In previous proceeding
(3) Party against whom the testimony is offered had an opportunity to cross examine with a similar motive.

c. A deposition of a witness taken in a civil case may be admissible in a criminal case arising out of the earlier civil case.
d. Testimony against the accused from a preliminary hearing may be admitted as former testimony at trial if plaintiff witness is unavailable because opportunity and similar motive tests are usually satisfied.
e. Grand Jury testimony is not admissible.
Hearsay- Hearsay Exceptions: Testimony of Declarant Unavailable (Rule 804) Statements Under Belief of Impending Death—Rule 804(b)(2)(dying declaration)
a. With respect to "dying declarations", the judge determines whether declarant subjectively believed death was imminent (up to judge n a 104(a) determination). Death need not actually result under the federal rules.
b. Statements (includes a sketch) must be made in connection with cause or circumstances death. Admissible only in civil proceedings and homicide cases.
Hearsay- Hearsay Exceptions: Testimony of Declarant Unavailable (Rule 804)- Statements Against Interest—FRE 804(b)(3)
a. Typically, these are not statements by a party to the case but by other persons.
b. These statements are not excluded by the hearsay rule if three requirements are met: (1) the declarant is unavailable, (2) the declarant is a non-party, and (3) the statement was against the declarant's interest when made. (question s whether a reasonable person in the persons shoes would have perceived the statement would exposed them to a judgment against their interest.)
c. In a criminal case, if either side uses such a statement there must be corroborating evidence.
Hearsay- Hearsay Exceptions: Testimony of Declarant Unavailable (Rule 804) Statement of Personal or Family History—FRE 804(b)(4)
a. The "Pedigree Exception" refers to statements concerning the declarant's own relationship by blood, adoption, or marriage or other similar fact of personal or family history.
b. A women finds her long lost fathers and he says, "here's my girl" That statement can be later used at a contested testament proceeding
Hearsay- Hearsay Exceptions: Testimony of Declarant Unavailable (Rule 804)- Forfeiture by Wrongdoing—FRE 804(b)(5)
a. A statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the Hearsay Rule).
b. The wrongdoing waives rights to hearsay and confrontation clause objections
c. Person must have had the intent to prevent the person from testifying.
Hearsay- Hearsay Miscellany: Confrontation Clause
1. Confrontation Clause- only in criminal cases where the testimony is being used against the D.
a. "testimonial" hearsay statements will be inadmissible unless the D is given an opportunity to cross-examine the declarant. The CC will be satisfied if cross-examination occurred at the time the statement was made or at trial.
b. "Testimonial evidence" is where the primary purpose of the police interrogation is to prove past events relevant to later criminal prosecution.

d. "Non-testimonial evidence" includes situations where the primary purpose of the statement is to aid police during an ongoing emergency.

f. 911 calls may be testimonial or not, depending on the circumstances of the call.

g. Melendez-Diaz test- If there is a lab report introduced against the defendant generated for use in those proceedings there must be a witness who produces such documentation whom the defendant can cross examine.
Hearsay- Hearsay Miscellany- Hearsay within Hearsay (aka, "Multiple Hearsay") (Rule 805)
a. When faced with two (or more) out-of-court statements, both the primary statement and the included statement must have a separate basis for admissibility. Otherwise, the entire statement is inadmissible.
b. It is vital to identify each declarant, and their statement, identify why it is being offered and find an exception for each hearsay
c. Remember the bubbles
Hearsay- Hearsay Miscellany: Attacking and Supporting Credibility of Declarant (Rule 806)
Impeachment of a hearsay (out-of-court) declarant is accomplished in the same way a declarant on the stand is impeached.
Hearsay- Hearsay Miscellany: Residual Exception (Rule 807)
A statement not otherwise covered by an exception to the hearsay rule is nevertheless not excluded by the hearsay rule under certain circumstances:

(1) statement must be more probative on point than any other evidence; (2) the party must give notice to the opposing party; (3) the statement must concern a material issue; and (4) the judge must ultimately determine whether, in the interest of justice, the statement should be admitted.
Authentication and Identification - Requirement of Authentication or Identification (Rule 901): As Condition Precedent to Admissibility
a. As a condition precedent to admissibility, authentication requires evidence sufficient to support a finding that the matter in question is what its proponent claims it to be.
b. The "Sufficiency" Requirement
(1) For purposes of authentication, evidence is "sufficient" if a reasonable juror could find, by a preponderance of the evidence, that it is "genuine." (i.e., jury could conclude that the thing is what the party claims it to be)
(2) Evidence that is "sufficient" for purposes of authentication must be admitted by the judge; the jury, however, has the final decision as to how much weight to give it.
Demonstrative Evidence
a. Demonstrative evidence is a type of tangible evidence for which its relevance depends on its ability to explain or simulate material facts in the case.
EXAMPLE: Maps, charts, diagrams, scale models, and visual aids.
b. Foundation
(1) Demonstrative evidence must "fairly and accurately" represent the scene and the witness who testifies to this must be substantially familiar with it.
Real Evidence
a. Real evidence—physical evidence actually connected to the case—is another type of tangible evidence.
EXAMPLE: Writings, recordings, x-rays, photographs, computer printouts, and self-authenticating documents.

b. To Authenticate
(1) Real evidence may be authenticated by testimony from personal knowledge; (2) Real evidence may also be authenticated by its distinctive characteristics.

c. Fungible Items
(1) Authenticating fungible items requires an accounting of its whereabouts from the time of issue until trial (chain of custody); (2) A break in the chain of custody does not automatically render the item inadmissible but will go to the weight of that evidence.

d. Photographs and X-rays
(1) For these examples of real evidence to be authenticated, they must be an accurate portrayal of what it depicts; (2) Authentication by the photographer or x-ray technician is not required; (3) Can be authenticated through process
Authentication and Identification - Documents
a. Documentary evidence is a type of real evidence.
b. To Authenticate
(1) Documents can be authenticated by someone who has first-hand knowledge of the document.
(2) Can be a custodian, an expert, the person who prepared it or even the jury
c. The "Reply" Doctrine
(1) Documents can be authenticated with circumstantial evidence. For example, a reply to a letter is circumstantial evidence that the reply was written by the person to whom the original letter was sent.
d. Ancient Documents
(1) For documents that are more than 20 years old, they are authenticated if they are found in the place where one would expect it to be found.
Authentication and Identification - Handwriting
a. Handwriting can be authenticated by (1) a layperson with familiarity with a person's handwriting, (2) by expert testimony, or (3) by comparison by the trier of fact.
b. If authentication of handwriting is done by testimony from a layperson said to be familiar with a person's handwriting, that familiarity cannot be acquired for purposes of litigation.
Authentication and Identification - Voice Identification
a. All voices must be identified when a phone conversation or recording is offered in evidence.
Authentication and Identification - Telephone Calls
a. To authenticate that an outgoing call was made to a particular phone number, show that the call was answered by the person to whom that number is assigned.
b. To authenticate that an incoming call was made from a particular phone number, show that there is a reliable process whereby you are able to identify the source of the call or use circumstantial evidence.
c. To authenticate that a call involved a business, show that the call was made to the number assigned to that business and that the conversation related to transactions reasonably engaged in by that business.
Authentication and Identification - Experts
a. Experts may testify to describe how a scientific or technical method produces a specific result and may show how such a process is accurate.
b. Experts may also authenticate a scientific device under Daubert (or Frye).
Authentication and Identification - Self-Authentication (Rule 902)
1. Mnemonic CONTAC
a. Certain documents need no foundation witness to prove they are genuine; among these self-authenticating documents, six are frequently tested on the MBE ("CONTAC").

Certified documents (they bare a seal)
Official publications
Trade inscriptions
Acknowledge documents (notarized documents)
Commercial paper
Authentication and Identification- Summary
1. Mnemonic OPRAH
a. When analyzing issues in this area, consider the following considerations ("OPRAH"):
Original writing (best evidence rule)
Contents of writing, recordings, and photographs: Original Document Rule/Best Evidence (Rule 1002)
Rule 1002
a. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
b. Purpose
(1) Reduce the risk of fraud, forgery or mistake.
COMMENT: This rule broadly covers every tangible process to record words, letters, numbers, pictures, and sounds.
EXAMPLE: Fax, email, Xerox copy, carbon copy, videotape, CD/DVD/MP3, x-rays.
Contents of writing, recordings, and photographs: Original Document Rule/Best Evidence (Rule 1002)- Applicability
a. The "Best Evidence Rule" applies only where the contents of a writing are in issue.

b. Legally Operative Documents
(1) The contents of a writing are in issue with respect to legally operative documents; the contents of such documents shape, establish, destroy some legal relationship; (2) The contents of a writing are in issue also with respect to documents whose contents are relevant to proving some material fact to the case.

c. Independent Source Rule
(1) The "Best Evidence Rule" does not apply when there is an independent source to prove a material fact to the case; (2) Examples include sales receipts, birth certificates, death certificates, and marriage certificates; (3) If, however, a writing is offered to prove a material fact even when there is an independent source to prove this fact, the original must be offered unless otherwise excused.

d. Inscribed Chattel- does not apply
(1) The "Best Evidence Rule" does not apply to inscribed chattel (e.g., license plates, police badges, tombstones, road signs).
Contents of writing, recordings, and photographs: Original Document Rule/Best Evidence (Rule 1002)- Originals
a. An original includes either the original itself or a duplicate. It applies when you try offer the document.
b. Substitutes for Originals
(1) There are three substitutes for originals: (1) duplicates (Xerox copies), (2) certified copy of a public record, and (3) summaries of voluminous records.
(2) It operates the same as the original documents unless there is an issue raised about authenticity.
(3) Summaries of the original can be used if the original is too voluminous the originals must be made available to the other side.
Contents of writing, recordings, and photographs: Admissibility of Other Evidence of Contents (Rule 1004): Mnemonic LOCS
1. Mnemonic LOCS
a. The original of a writing, recording or photograph is not required if one of the following four circumstances ("LOCS") applies.
Lost or destroyed (original is)
Obtaining the original is not possible through the judicial process
Controlling party failed to produce the document even though given proper notice
Secondary evidence
Contents of writing, recordings, and photographs: Summaries (Rule 1006)
1. Contents of Voluminous Writings, Recordings or Photographs
a. If the contents are so voluminous that they cannot conveniently be examined in court, they may be presented in the form of a chart, summary, or calculation.
2. Foundation
a. Show that the originals themselves would be admissible.
b. Give the opponent reasonable pretrial access.
c. Have summaries properly authenticated by the preparer.