Terms in this set (159)

○ (d) Exceptions. These rules--except for those on privilege--do not apply to the following:
§ (1) the court's determination, under Rule 104(a) on a preliminary question of fact governing admissibility;
□ Relieves judges from applying the Rules of Evidence when deciding a preliminary question of fact. Judges make this type of determination whenever a party challenges the admissibility of evidence; those rulings may occur before or during trial
§ (2) grand-jury proceedings; and
□ The prosecutor exerts considerable control over these proceedings, sleecting what evidence to present. No judges presides over these inquiries and in the federal system neither the potential defendant nor any defense attorney attends.
□ Granting flexibility at this stage allows prosecutors to build a case; after hearing evidence that might not be admissible in court, the grand jury can subpoena more reliable forms of evidence
§ (3) miscellaneous proceedings such as:
□ Extradition or rendition
□ Issuing an arrest warrant, criminal summons, or search warrant;
□ A preliminary examination in a criminal case
□ Sentencing;
□ Granting or revoking probation or supervised release; and
□ Considering whether to release on bail or otherwise
® Focus on grand jury & sentencing
® Class notes: why might rules not apply to administrative agencies?
◊ Comparative informality of an administrative hearing
} Federal agencies have lots of power but they are less formal
} Free to adopt own rules of evidence
® Why might the authors say doesn't apply to grand jury?
◊ No adversarial system; no judge over it
◊ preliminary stage in criminal justice process; only there to determine if probable cause
® Why did authors say don't apply to sentencing?
◊ In almost all cases, we have the jury doing the sentencing
◊ But if the judge is the person, we let the evidence come in and let the judge deicde what to consider and what not to consider
◊ Rules of privilege are EXTREMELY IMPORTANT!!!
• Rule 1101. Applicability of the Rules.
○ © Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.
§ Even when the federal Rules of Evidence do not apply in their entirety, the rules governing privilege apply. If the privilege rule did not apply to grand jury proceedings, bail hearings, and other proceedings exempted from the federal rules, the confidentiality promised by those privileges would be breached.
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if....
(1) If the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context;...

○ What is a timely objection? Before the jurors learn about potentially inadmissible evidence
§ Done as soon as the ground for objection is known
§ Got to object in time for the judge to be able to do something about it; if jury has already heard it...objection may not be sufficient...may have to make motion
○ Appellate will say waived that objection by not making it on time
○ Pg. 42...Rodriguez case...untimely objection that leads to a waiver
§ Specific-->must be clear to what you are objecting to--gives both the judge and opponent notice about the basis for an objection
□ Generic objections mostly end up in waiver
□ Unless ground to objection is so obvious and everyone knows
○ If multiple reasons to object, should raise all those specifics....raising one specific objection will not prompt the trial judge to consider other grounds and will not preserve those other grounds for appeal.
• When one party objects to introduction of evidence, the opponent makes an offer of proof to show the judge what the evidence entails
○ If the opponent fails to make this offer, then he waives any objection on appeal
○ Offer of proof-->judge will say, "you have a couple options hear...(1) describe what witnesses's answer would have been or (2) could pretend jury is here and bring witness in and have them answer questions and I'll see if ok."
○ Jury is NOT there for an offer of proof-->if jury is there, the offer of proof is the evidence and haven't resolved a thing
○ Very important
○ Serve two purposes: (1) you may persuade the judge that she is wrong...judges make mistakes sometimes...might persuade judge to change the ruling (2) even if you still lose and the judge is nice about it you have now protected your record on appeal
○ Give offer of proof to have judge change his mind--do it to protect appeal
• Some states say if you lose your objection, you have to say "may the record show I..." this is rare...do not make you take that extra step
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(c) Court's Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

Rule 103. Substantial Right of a Party
• The ultimate result is not effected by what happened or should have happened
• Appellate courts often conclude that even though there was some error it was harmless because it could not have affected the result.
• The burden is on the prosecutor to show that it did not affect the substantial right.
○ Prosecutor must prove beyond a reasonable doubt that it was harmless.
• General rule: Failure to object constitutes a waiver.
• EXCEPTION: Plain Error/fundamental error (Arizona Courts):
○ In AZ, Fundamental error is defined as error that goes to the foundation of the case or takes from a defendant a right that is essential to his defense.
○ A fundamental error cannot be waived.
• 3 consequences:
○ Appellate opinions on evidentiary issues often are less definite than decisions on other legal points.
§ Court will usually not say much about it because it is a discretionary ruling.
○ Evidentiary battles, in practice, are won and lost at trial level.
§ Occasionally there will be a reversal or a remand, but most of the time these battles are won and lost at trial.
§ Appellate courts typically don't grant relief
○ Students who seek to be litigators must internalize the Rules of Evidence as complete as possible. Effective litigators know the language, number, and policies of each rule.
§ Evidence is admissible (a presumption) but rebuttable
§ Sometimes there will be constitutional reasons why evidence is not admissible
□ e.g. gun obtained illegally
® Gun is relevant but for constitutional reasons judge may have to exclude evidence
§ e.g. what husband told wife may be very relevant...but if objection because of husband and wife...inadmissible
§ Other rules talk about rules that are relevant but for one reason or another, we are saying not going to allow because even though it's relevant, there is a just and proper reason for excluding it
§ "irrelevant evidence is not admissible"
□ Presumption but not rebuttable presumption
§ Important to know what relevance info is and even though it's presumed admissible...doesn't mean always admitted
○ ***Whenever there is an objection based on relevance, the first question should be "do I object to this?" if I do what am I saying?" judge going to think..."what is the party offering the evidence trying to prove??" another way of saying this..."what is the purpose of the offer of the evidence??"
§ e.g. prosecutor in criminal case and laid foundation for cop to testify what d told him night...and prosecutor says "mr. jones...tell me what d said to you when you interviewed d?"
□ If prosecutor says "tell me what he said..." his opponent knows that he's going to use d's words against him; purpose is to show guilty as day.
§ e.g. when asking someone to repeat someone someone else said...asking witness to put words in other party's mouth
§ Anytime there's an objection, "relevance, your honor..." it boils down to..."what is offering party trying to prove?"
□ Judge will ask that in side convo with attorneys
□ "tell me what you are trying to prove"
• The simple word "may" signals that judges possess considerable discretion under Rule 403.
○ A judge "may" exclude evidence under that rule but, then again, a judge may not. Judges frequently differ in how they apply Rule 403; one judge will admit evidence that another judge would find prejudicial.
• The role of judicial discretion under Rule 403 means two things for litigators.
○ First, appellate courts rarely reverse Rule 403 rulings.
○ Second, and equally important, the discretionary nature of Rule 403 offers opportunities for persuasive advocacy.
§ Explaining prejudice or probative value concretely is the key to winning a Rule 403 motion.
§ A trial attorney who focuses the judge's attention on the specific unfair harm stemming from a piece of evidence may block the evidence from admission
§ CLASS NOTES: court may exclude evidence if probative value is substantially outweighed by a danger of one or more of the following:
§ Unfair prejudice
§ Confusing the issues, misleading the jury
§ Undue delay, wasting time, or needlessly presenting cumulative evidence
□ Unfair prejudice most common; less common
§ Most of the cases you will see deal with bullet number 1-->unfair prejudice
§ Rule 403--> "may" "substantially outweighed" "unfair prejudice"
□ If evidence is relevant and there's something that makes it prejudicial...that's usually not enough to convince a judge to exclude it
® Because rule 402 relevant evidence is presumably admissible
® So rule 403 says the danger of unfair prejudice has to substantially outweigh probative value
◊ Weighing process judges are called to do every time this issue arises
§ Rule 403 says evidence is relevant if it hurts party against its whom its offered...we assume party a is trying to prejudice party b
□ Fact that evidence prejudices a party doesn't mean it's excluded

Memorize this rule
• A real time video tape of an event may be damaging evidence, but it is not unfair. As long as the affected party has an opportunity to cross-examine the filmmaker about perspective and editing, and to explain to the jury how the videotape might convey an erroneous impression, the tapes seems to be as accurate as--or even better than--eyewitness testimony.
• But if a photo or video shows only the effects of the crime, giving no indication of how the crime occurred or who was responsible, the possibility of unfair prejudice is more substantial.
○ The judge must decide whether the jurors' emotional reaction to the devastating effects of a crime will push them to blame the defendant, overlooking any exonerating evidence. This is the most unfair prejudice that photos, videos, and other visual aids may cause.
§ e.g. admit picture of wife's dead body, showing where bullet entered her v. not admitting picture showing children's bloody handprint
• Courts will almost always admit some photos of the victim to illustrate elements of the crime, but will exclude photos like the ones showing the children's hand, which greatly increase emotional reactions without adding new information.
○ Class Notes:
§ Video can be very good evidence
§ Anytime a judge excludes relevant evidence on basis of rule 403, the judge should say why. She needs to say why she is excluding relevant evidence
§ If she's denying the evidence...she should say why too
§ Rule 403 has a specific purpose-->comes into place in many situations...not just relevance e.g. hearsay
§ Morale for trial judges: protect your record; explain yourself why admitting or denying evidence
§ Judges has to protect record
§ Pg. 74-->McRae case shows whether probative value is outweighed by unfair prejudice
§ "this person died as a result of an accident" if he had plead a different defense...the photos at issue may have never been introduced at all; he opens the door to evidence that arguably might not be admissible if he used a different defense
□ Depends on context; depends on nature of offer
□ Now prosecutor can say..."I know these photos are gory, but proves that not an accident. Because shows bullet through head"
□ Not outweighed
§ Pg. 75-->bloody handprints on victim; photos
§ "lawyer's sole purpose in offering these photos is to inflame the jury, therefore, I'm going to find that whatever value those pics have is substantially outweighed by danger of jury being inflamed and highly prejudice against D"
□ Prosecutor could probably come up with theory why pics are relevant and should be admitted; but most judges will see right through that and say "sorry...not admitting a pic that shows children's fingerprints on mom's body...doesn't prove anything"
® e.g. what if the defense is..."he didn't kill the mom, someone else did and there's finger prints on her body to prove it."
® Now it's a different argument; judge may not rule differently; change context of what judge needs to know before can make a ruling
§ Rulings dependent on context and rule in which evidence is offered

Photo is only evidence of crime; only way state can prove certain things...then it's a different situation for the judge; changes equation
• Parties sometimes attempt to introduce evidence of an opponent's unconvential lifestyle, hoping that the juror's biases will lead them to view the opponent's negatively.
• Judges exclude some of these attempts under Rule 402, because the evidence simply isn't relevant
• Some courts have allowed evidence of a lavish lifestyle to establish motive.
• Recent cases also explore the admissibility of evidence revealing a party's racist attitudes and behavior. In some lawsuits, those attitudes are "of consequence" because they bear directly on claims of discrimination or other wrongdoing. In other cases, the evidence arises more tangentially and parties argue that the evidence of racism is more prejudicial than probative.
• The courts are very sensitive to the prejudicial impact of evidence that a party has expressed racist attitudes. On the other hand, where the evidence relates directly to the crime or other litigated issue, courts will admit it.
○ Class Notes:
§ Racist attitudes or racist behavior...are they relevant?
§ It depends.
§ Depends on context, purpose for which its being offered
§ e.g. pg. 77 Bowman-->statements in club's constitution; judge should have taken out statement about who is welcome and who is not
§ Have to be careful here because rule 403 is intended to be a tool to exclude parts that could unreasonably cause unfair prejudice
§ Rule 403-->balancing test; doesn't start out as a balance...relevant evidence is permissible....but party that wants it to be excluded have to show shift in balance
□ Depends on context; purpose of offer
§ e.g. pg. 78-->evidence is probative and highly inflammatory; cases say that we have to give parties chance to prove case;
§ Law says prosecutor has right to prove case; but rule 403 says we can stop her from doing it in a way that will be highly prejudicial to the D
§ In felton...prosecutor says this goes to motive
□ Defense atty says "I looked up elements and didn't see motive anywhere"
□ "The State need not prove motive, but you may consider motive or lack of motive in reaching your verdict"
□ Motive is not an element of any crime
® Chances of conviction higher if motive shown
• Our discussion of Rules 401 and 402 revealed that a party's stipulations does not eliminate the relevance of evidence offered by another party. Facts related to an element of a crime or civil crime, in other words, are "of consequence" even if the parties do not actually dispute the element. The presence of a stipulation, however, may affect the balance of unfair prejudice and probative value under Rule 403.
• Old Chief ruling includes three significant points related to Rule 403 generally and to the specific effect of stipulations under that rule.
○ First, the court noted that Rule 403's balancing test requires the court to evaluate unfair prejudice and probative value in the context of the full evidentiary record. The availability of alternative evidence, including stipulations, affects the Rule 403 balance.
○ Second, the court observed that with respect to most elements of a crime, the prosecution can choose to present detailed evidence rather than accepting a defendant's offer to stipulate
○ Finally, however, the court concluded that the calculus differs in the special context of the felon-in-possession statute. The statute itself does not distinguish among previous crimes; conviction of any felony bans the defendant from gun possession. The probative value of introducing evidence of the nature of the previous crime, therefore, is low.
§ Class Notes:
§ Pg. 81--Old Chief---offered to stipulate that he had been convicted of a felony, because he did not want the gov. to present specifics about his prior crime
□ Get in this more in rule 609??
6. Undue Delay, Wasting Time, and Cumulative Evidence
1. e.g. 83; Libby...gov after saying not contest importance of other matters; what if gov. did it anyway
a. Judge says..."okay gov. I said I wouldn't allow him to present evidence for every other issue...." you have now opened the door. Now evidence will come in. specific circumstance could have an affect on judge's ruling
a. Bars evidence of subsequent remedial measures
b. Sometimes after a plaintiff is injured, the defendant attempts to make conditions safer
i. If a p slips on the defendant's icy sidewalk, the defendant might start putting salt on the side walk
ii. Arm caught in factory machine, the manufacturer of the machine might change the machine's design to prevent future accidents
c. Torts
i. Evidence that the d made a change is relevant to prove the p's case; the change tends to prove a fact of consequence, that the original condition or practice was unreasonably dangerous.
d. Problems with admitting this evidence
i. First, it creates a perverse incentive for Ds
1) A D may postpone fixing a condition that injured the p, just so that the repair can't be used as evidence at trial
a) Encouraging Ds to make repairs promptly, without worrying about the effects of those repairs on pending litigation, is an important social policy.
ii. Second, juries may give too much weight to evidence of subsequent remedial measures
1) defendant's post-accident conduct often bears little relationship to her pre-accident negligence
2) The P's accident may have revealed a previously unknown danger, one that no reasonable person would have predicted but that the d then remedies
3) Or a defendant who exercised reasonably care before the accident may respond to the p's injury by taking precautions beyond those required by law
a) In both of these cases, the d's initial conduct was fully reasonable, but the jury may interpret the d's subsequent repair as an admission of fault
iii. Evidence of subsequent remedial measures, in other word, often causes unfair prejudice that substantially outweighs it probative value
e. Rule 407 addresses these two problems by restricting the admissibility of subsequent remedial measures
i. Encourages prompt repairs-->important social policy
f. Rule 407 however does not always bar evidence of subsequent remedial measures
i. The rule precludes this evidence only if the p uses the repairs to show that a d was negligent or otherwise at fault
ii. Ps may use evidence of subsequent remedial measures to prove other facts of consequent, such as the feasibility of repairs
1) Juries respond strongly to this evidence
a) Class Notes:
i) Even if something is technically admissible under rule 407--may still admit based on rule 403
ii) Pg. 104-108-->evidence handbook
i. As noted in the introduction or not a subsequent remedial measure is inadmissible depends upon the purpose for which it was offered
ii. If the p offers the subsequent remedial measure to prove negligence, culpable conduct, a defect in a product, a defect in a prduct's design, or a need for warning or instructions--in other words, to prove liability on the part of the d--the evidence is inadmissible
iii. However, if the p offers the evidence for any other relevant purpose. Rule 407 does not bar admission
iv. Two of these other purposes are ownership and control
1) If a d claims that it did not own or control the instrument that injured the p, the p may introduce evidence of subsequent remedial measures--not to prove that the original condition of the instrument was unreasonably dangerous, but rather as evidence that the D did not own or control that instrument
v. Other purposes: feasibility
1) Rule 407 specifically permits a party to introduce evidence of subsequent remedial measures against a party who disputes "feasibility."
2) A party disputes feasibility when it claims that it could not have remedied a dangerous situation because of economic, physical, or other constraints. Under these circumstances, evidence that the party did subsequently remedy the danger is strong evidence that the change was feasible. Rule 407 therefore allows litigants to introduce evidence of the subsequent remedial measure when an opponent disputes feasibility
a) The distinction between "feasibility" and "liability" appears amorphous at best
b) It is possible, however to show feasibility without establishing liability
i) e.g. a change might have been physically feasible, but economically costly
One. e.g. pressure cooker for example...National Presto might show that it always manufacturer cookers with or without locking devices--and that P had her choice of the two--but that the locking cooker costs twice as much
3) Remember that rule 407 does NOT exclude evidence of any measure taken by non-parties
a) Class Notes:
i) 407 is a good example of a rule that is ALSO a rule of admissibility
ii) If offered to prove one of these....judge may admit it
One. e.g. pg. 98 clausin slipped on rag; sued company that owned facility and company that occupied the facility
One. "we are just the owners have no control over ramp...get remedy from other defendant"
Two. Occupants have control over premise
Three. Clausin offered evidence that after accident; changed ramp with stairs... object
First. "we tried to fix it..." evidence can't come in to show our liability. Judge says..."your right...but purpose of offer is to show that you controlled the property...went to fix it-->control"
Second. Typically judge would admit evidence and give limiting instruction under rule 105..."not being admitted to prove that liable for fall; sole purpose of evidence is to demonstrate control"
Third. IMPORTANT POINT: if D hadn't raised issue of control, that evidence might not have been admissible.
1. Opening door
iii) e.g. 98-104
One. Problematic issues: (1) prove feasibility (2) impeachment
One. These are both bugaboos for trial lawyers and trial judges
Two. Evidence doesn't come in to prove liability but two of problematic ones (1) feasibility (2) impeachment
One. e.g. 99 freemont... remember that this becomes admissible evidence only if feasibility is controverted (dispute)
One. If the defense disputes feasibility of measure...now P can bring things in wouldn't have been able to
Two. If not disputed, evidence stays out
Three. Usually has to be disputed...don't technically have to mention it but clear that it's in dispute. Many courts will say it's in dispute until defense lawyer says its in dispute
Four. Something could be a dispute but jury could never know it...once raised in front of jury, open door
Five. Freedmon-->99
First. Did defense in freedmon dispute feasibility? YES-->claiming no safer way to design it; not possible to create a safer product
1. Opened door to P showing its feasible.
2. Strategy implications: don't ask president of company as defense atty...don't want him to say there's no safer way to design this product. That's going to be a problem. More subtle way to get across to jury that company not negligent nor strictly liable...did everything they could do. Avoid bringing into issue the feasibility of measures
3. Ethical issue as well...lawyer representing d company...ethical implication for him saying..."here's how you will testify when I ask you..." will come back to haunt you.
a. Impeachment is the process of discrediting a witness; we will study this concept in greater detail in chapter 17
b. One popular way to discredit a witness is to introduce evidence conflicting with witness's testimony
c. Trial judges look for a closer fit between the remedial measure and the testimony it is supposed to impeach. A judge is most likely to admit the evidence when (1) a witness makes a specific representation that conflicts with the subsequent remedial measure, (2) the witness makes an absolute declaration like "the produce was perfectly safe" or (3) the witness making the statement was personally involved in implementing the remedial measures
i. Class Notes:
1) Impeaching-->discrediting a witness
1) Impeach a witness on basis of prior inconsistent statement
2) Another way to impeach a witness-->show that they have a bias
a) e.g. witness employed by company x; called to stand to testify; witness might have a bias because really like their company; don't want to lose their job
b) e.g. d in case; home watching tv with mom...mom testifies..."do you love your son?" bias
2) Problem with rule 407-->trying to impeach ach witness
3) Define impeachment carefully
1) Goode pg. 107
a) Such impeachment should be permitted only where the witness either makes factual assertions thjat are contradicted by the subsequent remedial measure or claims that the produce or condition was the "best" or "safest" that it could be
b) Look at examples on pg. 107-108 in Goode
i) If president of company says machine safest as it could be and they changed the machine after injury
One. Opened door to impeachment evidence because of what he said
ii) e.g. expert claimed design of forklift was "excellent" and "proper"-->expert didn't say "best" or "only one possible"-->no impeachment evidence allowed
One. Implications for strategy
Two. Implications for ethical behavior as opposed to not so ethical behavior
First. Don't feed president testimony
c) If we say feasibility is always admissible & if we say impeachment questions is always admissible...we create exceptions that swallow the rule and no point for rule 407
a. Rules 105 (limiting instructions) and 403(unfair prejudice) complement Rule 407. If the judge admits evidence of subsequent remedial measures for a purpose other than proving liability the d can request limiting instructions. Under Rule 105, the judge must give that instruction if a party timely requests it. The instruction will attempt to explain the permissible use of the subsequent remedial measure to the jury, while restraining them from using that evidence to establish liability.
b. The d may believe that a limiting instruction is ineffective in preventing unfair prejudice
i. To address this problem, ds often urge the judge to exclude evidence of subsequent remedial measures under Rule 403, even if the evidence is admissible under Rule 407.
1) Judges sometimes agree and exclude the evidence under Rule 403
2) Rule 403 requires the d to show that the evidence's unfair prejudice (the chance that the jury will inappropriately use the evidence as proof of liability) substantially outweighs its probative value (the utility the evidence has in proving disputed ownership, control, or feasibility). In most cases, Judges decide that a limiting instruction will sufficiently reduce the unfair prejudice to admit the evidence.
1) Class Notes:
a) Do I ask a court for a limiting instruction?
i) Under rule 105, if I ask for it, judge will give it
ii) But you might say to yourself..."maybe I create more of a problem if I ask for a limiting instruction or just let it go and worry about it in closing statement..."
One. Tactical choice you need to make as lawyer
First. Might ask yourself..."why call the jury's attention to it again?" strategic; technique decision for lawyer to make
iii) If rule 407 doesn't work...try rule 403
One. Very clear about when subsequent remedial evidence is admissible and when it is not
Two. Know the difference between feasibility and impeachment
a. Rule 408, facilitates civil settlements and negotiations that precede them. The rule protects settlement offers, as well as statements made during settlement discussions, from admission at trial
i. Reflects concerns about the unfair prejudicial effect of settlement offers
ii. Rule 408 exists, in part, to prevent juries from interpreting settlement offers as conclusive evidence of liability
iii. The primary rationale behind Rule 408, therefore, is policy justification to ensure that parties are not inhibited from making offers or statement during the settlement negotiation process. To further the social policy favoring settlements, Rule 408 shields most of that process from admission at trial
1) Class Notes:
a) This exception--Rule 408, just like rule 407 is based on policy
i) We want to encourage parties to settle their case; so what we do is we say evidence of what you say and do during compromise negotiations are not admitted into court
One. But there are some exceptions
Two. Civil
b) Rule 408(a): Prohibited uses. Evidence of the following is not admissible--on behalf of any party--either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction
i) Different kinds of impeachment treated differently by this rule
c) Rule 408(b): Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
d. Broadest reach: What is excluded?
i. First, rule 408 applies to ALL parties
ii. This means that a party cannot introduce any evidence of settlement offers or negotiating statements, not even evidence of their own offers or statements. The drafters of the rule concluded that introducing any evidence from settlement negotiates might chill settlement discussions
iii. Second, rule 408 defines compromise offers and acceptances very broadly
iv. Finally, the rule protects all conduct or statements during compromise negotiations, not just the operative offers and acceptance. The common law shielded settlement offers and acceptances but no other statements made during negotiation.
e. What is still admissible?
i. First, the rule repeatedly uses the word "claim".
1) For rule 408 to apply, the disagreement between parties must have matured into a claim
ii. Second, rule 408 requires that the parties dispute some aspect of the claim. If both parties agree that liability exists and also agree on the extent of damages, Rule 408 doesn't shield their discussions
iii. Third, to invoke Rule 408's shield, the statements or conduct must occur during compromise negotiations or while compromising or attempting to compromise the claim. A formal settlement conference almost always qualifies as an attempt to compromise the claim, but courts often disagree about whether other communications are part of compromise negotiations
iv. Finally, rule 408 excludes statements and conduct made during compromise negotiations ONLY when a party offers that evidence for one of the three purposes specified in the rule. Those purposes are:
1) To prove the validity or amount of a claim
2) To disprove that validity or amount
3) To impeach a witness's testimony through a prior inconsistent statement or contradiction
f. Still more limiting language
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
i. Section B underscores the fact that Rule 408 prohibits introduction of evidence for some purposes but no others
1) Confirms that parties may introduce evidence from settlement negotiations for any purpose other than the forbidden ones specified in section a.
2) Second b also offers three examples of other purposes
a) The list however is not exclusive
ii. Second, the text at the end of subsection (a)(2) allows some settlement statement to be used during criminal trial
iii. The new language in Rule 408 allows prosecutors and defendants in criminal cases to introduce evidence from one category of civil settlement negotiations
iv. The Advisory Committee explained that it was allowing introduction of evidence from these settlement discussions, despite the strong policies favoring confidentiality of settlement negotiations generally because where an individual makes a statement in the presence of Gov. agents, its subsequent admission in a criminal case should not be unexpected
1) The exception for statements made during attempts to settle regulatory or quasi-criminal investigations cuts against the underlying rationale of Rule 408, which seeks to encourage uninhibited settlement discussions
v. Subsection (a)(1) continues to prohibit prosecutors and criminal defendants from introducing evidence of civil settlement offers, promises, and acceptances in criminal proceedings
a) Class Notes:
i) Notice what a party says during settlement negotiations could be extremely relevant but for policy reasons we say..."yeah that's statement is highly probative...but not allowed in evidence." Rule 408
One. Rule 408
First. Applies to ALL parties
Second. It is premised on a very broad definition of phrase "offers and acceptances.." courts generally say if we are trying to determine if something constitutes as an offer and acceptance
Third. Rule 408 protects not only offers and acceptances made during negotiations but conduct done and statements made during negotiations!!!
ii) Rule 408 applied VERY broadly
iii) Examples 108-110...evidence all excluded
One. Trying to show how broad rule 408 is
iv) Rule 408: holes in net
One. Applies ONLY to a claim
First. What is a claim?
Two. Applies ONLY to an actual dispute
Three. Evidence offered must have been done or said during compromise negotiations
v) Pg. 114
a. Rule 408 broadly prohibits the use of settlement discussions to prove liability or damages, disprove those elements, or impeach a witness with inconsistencies
b. The rule, however, permits use of evidence from settlement discussions for other purposes
c. For example, a party may use evidence of settlement discussions to counter an argument that they delayed in pursuing their claim
i. Class Notes:
1) Are situations where settlement discussion are admissible
a) Pg. 119. Lily case.
i) Why admissible?
One. Lily argued that they delayed termination of contract; lily opened door by claiming waived complaint
First. D wants to counter it with something; showing that they were in settlement negotiations
Second. Lily opened the door to it by saying "you continued to do it." other side allowed to rebut that
ii) Pg. 120. Gen-x case
One. Why admissible?
First. Purpose not forbidden by rule 408; not being offered for one of the improper purposes of rule 408
Second. "it's okay!"
Third. The party offering it not doing to impeach, disputing validity of claim or amount other side is asking for, outside of rule 408. allow them to bring it in
b) Presentation
i) Hernandez v. State
One. Incident that occurred during state park; Hernandez and family arrived at lake to go fishing; it was dark outside; Hernandez first visited campground to get bait; told bait sold at marina store; Hernandez decides to walk to marina store; takes shortcut; steps over fence and walks down hill; falls over rand gets hurt
Two. Hernandez files claim with state
Three. At trial, state tried to introduce statements that weren't consistent with what he said in depot; evidence came in
First. Jury found in favor of state
Second. Appeal upheld admissible of evidence; said that when he submitted claim dispute hadn't arose yet
1. Rule 408 doesn't apply
2. Supreme court reviewed it and said rule 408 would have applied...
1. Said state introduced evidence to show inconsistencies in testimony
2. Allowed evidence
3. Public policy: supposed to promote truthfulness
1. Allowing the use of impeaching evidence puts parties on notice that they should not make false statements or representations
4. Attorney filed it; no response...no dispute yet
Third. Did not have a full court; so had court of appeals judge called up
1. Dissent closer to what rule says
2. Dissent hit nail on head in terms of what rule actually said
3. What is boiled down to what supreme court wanted to write about it; worried about lawyer ethics
1. Lesson to lawyers: don't overstate; file complaint...don't overstate
1. What you say on his behalf is binding on him
a. Another common was to impeach a witness is to show that the witness made an earlier statement that was inconsistent with the witness testimony on the state. It is important to understand the difference between these two types of impeachment, because Rule 408 allows parties no use settlements for the first type of impeachment (bias) but not the second (inconsistency)
b. The distinction derives from the rule's underlying goal of encouraging settlements
c. Introducing settlement-related evidence to show a witness's bias has little chilling effect on those compromise negotiations
d. Allowing parties to introduce evidence of inconsistent statements made during settlement negotiations on other hand would greatly impair Rule 408's goal
e. Parties sometimes bargain for an apology; to secure agreement a party might be willing to profess blame even when the law would not impose liability. Taken out of context settlement talk might mislead the jury
i. Class Notes:
1) AZ disagrees with this
2) Supreme court wanted to say something about lawyer ethics and found this was the proper way to do it
3) Pg. 122 and 123
a) Why does rule 408 draw this distinction between discrediting a witness by showing bias (settlement evidence allowed) and impeaching the witness with prior inconsistent statements (settlement evidence disallowed)? The distinction derives from the rule's underlying goal of encouraging settlements. Introducing settlement-related evidence to show a witness's bias has little chilling effect on those compromise negotiations. The alleged bias often involves a third party who is no longer an active litigant. Bias of this nature, moreover, has strong probative value; if a witness has a financial stake or other strong interest in one party's recovery, the jury should know about that bias when evaluating credibility
a. The rule excludes evidence of offers to pay medical expenses, as well as payment of those expenses, when offered to prove liability
b. Rule 409 thus encourages individuals and negotiations to pay medical expenses for people who have been injured
c. The rule furthers important humanitarian objectives by removing a factor that might discourage some potential litigants from paying medical expenses of injured individuals.
d. The rule also advances important business and judicial purposes. Some businesses find it beneficial to pay immediately the medical expenses of individuals who are injured in connection with their business. These payment (1) promote good customer relations, (2) encourage rapid settlement of any legal claims that develop, and (3) sometimes reduce the extent of damages by treating injuries before they develop expensive complications.
e. Rule 409 allows potentials ds to pay medical expenses without worrying about PS using evidence of those payments against them at trial to prove liability. Rule 409 is also justified as a specific application of 403
a. Class Notes:
i. Easiest
ii. Based on policy:
1) Encouraging individuals to pay medical expenses for others have been injured
iii. Rule 409-->reduce damages...prevent future loss; serves public policy
1) Maybe mitigate injury by treating him right away; law wants to further that
iv. Rule 409 has a warning
1) Has its limits
2) If it's being offered for a purpose other than proving liability, culpability...can come in for other things. Can't come in to prove liability or responsibility
3) No admissible or permissible to prove liability for injury
v. Pg. 130 Hughes
1) Slipped and fell on restaurant floor, claimed hurt because staff kept floor wet; guy says..."I have told the staff not to mop the floor like this when people are in the restaurant"
a) Not protected by rule 409
i. Rule 409 focuses quite narrowly on offers or promises to pay medical expenses. The rule does not protect any other types of statements, even if they occur in connection with offers to pay medical expenses.
ii. Congress and the Advisory Committee wanted to encourage parties to pay the medical expenses of injured parties, not to immunize other statements suggesting fault
b. Medical, Hospital or Similar Expenses
i. Rule 409 only protects promises to pay medical, hospital or similar expenses resulting from an injury
1) The rule does not encompass offers to pay lost wages, repair an automobile, or compensate an injured party for other types of economic or property damage
2) The rule's drafters, concluded that society's special concern for promoting payment of medical expenses justified excluding potentially relevant evidence from trial
c. To prove liability
i. Rule 409 only excludes evidence if it is offered for a particular purpose: to prove liability for the injury
1) Class Notes:
1) Pg. 131...Kerry King
G. Rule 403 Yet Again
a. Even if a medical payment is admissible under Rule 409, an attorney may attempt to exclude that evidence under Rule 403; Rule 403's balancing test serves as a backstop for Rule 409, just as it does for other rules
b. Remember that if Rule 409 or any other rule excludes a piece of evidence, then Rule 403 has no role left to play; Role 403 cannot rescue evidence that another rule has rejected. But when evidence passes through the Rule 409 "net" Rule 403 operates as a final check on the fairness of admitting the evidence. In other words, Rule 403 is the final "net" filtering evidence before the judge allows the evidence in the courtroom
c. Rule 403 is discretionary; there is no guarantee that a judge will exclude evidence under that provision.
i. Class Notes:
1) Rule 403 is a back up
2) Evidence should be excluded on basis of rule 409; rule 403 is a back up
a. The judicial system has a strong interest in encouraging criminal ds to bargain with prosecutors and reach plea agreements
b. Courts and commentators recognize that the plea bargaining system holds risks of unfairness for ds
c. Rule 410 precludes some evidence of offers to plead guilty, as well as statements made during plea bargaining. In doing so, the rule advances both the social interest in plea bargains and the policy concern for protecting ds who participate in the bargaining process.
d. Rule 410 also prevents the jury from hearing unfairly prejudicial information
i. Most jurors who hear that a d engaged in plea bargaining will assume that the d is guilty
ii. In criminal trials where the prosecution must prove guilt beyond a reasonable doubt, this type of shortcut reasoning is particularly dangerous
iii. Rule 410 does NOT exclude evidence of final guilty pleas entered as the result of a plea bargain
e. Rule 410 is analogous to Rule 408, which governs the inadmissibility of settlement negotiations in the civil context
i. Both protect offers and statements made during settlement negotiations to encourage those settlements and to prevent unfairly prejudicial info from reaching jurors
1) Class Notes:
1) Rule 408 applies to any party
2) Rule 410 applies to admission of evidence against a criminal defendant
3) Pg. 137...Sally Soprano. During plea bargains...Sally admits responsible for crime
a) Negotiations fail
b) Prosecutor cannot introduce soprano's admission of responsibility
c) Prosecutor's statement could be admissible though
4) Pg. 138
a) 4 things that not admissible under rule 410:
i) A guilty plea that was later withdrawn...
One. Sometimes d will enter plea of guilty and then later think..."damn that was dumb"
Two. If the judge permits d to withdraw plea of guilty
Three. Prosecutor can't use plea against d
ii) A nolo contendere plea
One. No contest
Two. Judges who hear guilty pleas will occasionally be presented with a no contest plea: "judge, I'm not going to admit the conduct...going to plead no contest..." just like a guilty plea in sentencing; subject to same penalties...no contest plea is not admissible in a civil case against that defendant
iii) A statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
iv) A statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea
One. 3 and 4...aren't terribly important; overlap.
i. If a party introduces one statement from a plea bargaining session, another party may introduce additional statements from the same session when fairness requires consideration of those additional statements
ii. Second exception, is for perjury prosecutions. The gov. may introduce some statements otherwise protected by the rule when necessary to prosecute a d for perjury or false statement. For this exception to apply, the d must have made a statement "under oath, on the record, and with counsel present."
1) Exception is a limited one
2) If the judge rejects the plea on the d withdraws it, this final provision of rule 410 allows the government to use statements from the in-court examination to prosecute the d for perjury
a) Class Notes:
a) Pg. 137 Sally Soprano engages in a series of financial transactions that appear to violate the federal money laundering laws. During a plea bargaining session, Soprano admits that she was "responsible" for the transactions. In return, the prosecutor acknowledges that Soprano had good intentions for some of her actions. Negotiations ultimately fair and Soprano proceeds to trial on the money laundering charges. Both Soprano and the prosecutor-attempt to introduce statements made during the bargaining session
i) She can admit what prosecutor said to her
ii) He can't use her words against her
iii) Another rule might figure into this:
One. Situations where it only seems fair where prosecutor tells context
First. Prosecutor needs to provide context for his statement to her
Second. RULE 106-->completeness....judge might be inclined after hearing lawyer's argument and say " shouldn't let you do this..." but will allow it because on statement in a vacuum doesn't mean a lot
Third. Rule 106-->suggests that maybe fairest way to do that is put entire convo and put in context; let jury hear whole convo or at least those two parts of it
Fourth. First exception on rule 410 has to do with fairness
b) Other exception makes a whole lot more sense: "perjury exception"
i) Pg. 143...the second exception recognized by Rule 410 is for perjury prosecutions. The government may introduce some statements otherwise protected by the rule when necessary to prosecute a defendant for perjury or false statement. For this exception to apply, the D must have made a statement "under oath, on the record, and with counsel present"
One. Make things better if encourage truthfulness during settlement negotiations and disincentive people lying
c) Summarize rule 410
i) Biggest issue is what are plea discussions?
One. Before rule 410 ius going to apply...we need to know its an effort to settle the case
First. In most situations it's pretty easy to tell what a plea discussion is and what it isn't
1. In maricopa county court...very common to have discussion with judge, two attorneys, defendant...usually it's the defense atty who asks for it. May have a client who just isn't getting it.
2. They are on the record; court reporter there to record everything
ii) Pretty easy to tell what a settlement discussion is
One. Not a settlement discussion-->at scene of crime; d being arrested; talking to cop about plea bargain; police officer says "not the person you talk to about this"
d) Pg. 145 Danny Guerrero; Guerroro voluntarily attended a metting with FBI agent; said that he wanted to cooperate and declined with opportunity to call an attorney; he asked Hilley what cooperation would mean; Hilley told Guerrerro that courts usually consider whether a D has cooperated, but the U.S> Attorney Vernier would decide whether to charge Guerrero. Hilley stressed that he had no control over the courts or prosecutor, and could make no promises.
i) Guerrero asked to speak directly to Vernier, who came briefly to the FBI aoffice. Verier told Guerrero that his cooperation would be taken into consideration in any future handling of cases involving him, that the decision whether to cooperate was his choice, and that he had the right not to cooperate. After Vernier left, Guerror admitted paying kickbacks to several Guam officers. Guerror tried to claim during plea bargain when state tried to bring convo in
One. The district court denied Guerrero's motion, allowing the government to use the contested statements at trial
e) Compare with
i) Pg. 146 Riyaid Swidan for distribution of LSD
One. One judge allows them to use; other judge doesn't
Two. Swidan had an attorney
Three. Swidan-->had been indicted
First. What d subjectively believed
Second. In first case, told him not engaged in plea negotiations
Third. In swidan...told him interested in deal;
Fourth. Has to be objectively reasonable belief on swidan's part

Four. Guerro-->not plea negotiations-->timing is the big thing...before indicted
Five. Look at all circumstances between whatever happened to parties
First. Formality of proceedings
Second. Who is actually there (prosecutor there)
Third. Say "is there a basis for this d to subjectively believe these were plea discussions?"
1. Then ask..."was his or her believe objectively reasonable?
a. What is Liability Insurance?
i. The phrase "insured against liability" includes two limits that restrict Rule 411's application. First, the rule only excludes evidence of liability insurance.
ii. This type of insurance compensates the policy holder for specified type of damages owed other people
1) e.g., car insurance, medical malpractice
iii. Health insurance is NOT a form of liability insurance
iv. Rule 411 applies only to liability insurance and courts should invoke it only in that context
v. The second question raised by the phrase liability insurance concerns indemnity agreements
1) Indemnity agreements are similar to liability insurance in one respect: under an indemnity agreement, one party agrees to reimburse another party for damages if a specified form of liability arises. In other ways, however, indemnity agreements differ significantly from insurance. They are usually one time agreements between parties do not require the ongoing payment of premiums and do not spread the risk of financial loss over a large number of people
vi. For What Purpose is the Evidence offered?
1) Rule 411 only precludes evidence if it it offered to prove fault--that is, if offered to prove whether the person acted negligently or otherwise wrongfully.
2) Any purpose other than proof of liability is permissible under Rule 411 as long as the purpose is relevant to the dispute
3) When evidence of insurance is admitted for limiting purposes, a party may request a limiting instruction.
a) Class Notes:
a) Judge reads indemnity agreement and decide if works likes liability insurance or not
i) Idemnity agreement may or may not work here
b) Want examples...look at goode pg. 118
• The rules take a permissive view toward admitting evidence
• The rules allow jurors to hear the testimony of almost any witness who has knowledge relevant to the case.
• The juror, rather than inflexible rules, decide whether to believe the witness

The Basic Rule: Everyone is Competent.

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.
• The federal rules allow even young children and mentally incompetent adults to appear as witnesses; it is up to the opposing counsel to expose any weaknesses in their credibility or testimony
○ e.g. pg. 158
§ EXAMPLE: The United States Charged Herman Harris and several codefendants with numerous drug-related crimes. Esker Dodson testigied for the prosecution against the defendants. Dodson admitted that he had used substantial amounts of heroin for several years and that he had ha a fix within two days of his testimony. After his first day of testmony, Dodson was hospitilized and received Demerol for pain relief. When he returned to the stand, the judge frewuently had to remind Dodson to speak up; the witness was also "bouncing" and "nodding on the stand"
• Rule 601 includes no standard for defining competence.
○ "every person is competent" except as otherwise provided in the rule
§ Class Notes:
□ Judges allowed to make call whether witness competent or not e.g. child too young, witness high as a kite
® Judge will talk to kid and ask different questions
® "you know the difference between a truth or a lie?" if says no...judge might say "not competent"
□ Rule 601 starts with rebuttable presumption that all witnesses called to court are competent to testify
® "let everybody testify" unless there's a reason not to let them testify
◊ If witness doesn't have whole perception or ability to recall what happened or can't communicate what they say or heard, let the cross-examiner point those things out
◊ That's the way the rule resolves the issue
◊ If witness meets competency but has low threshold...let other side test ability to communicate
• Rule 602 does prevent witnesses from testifying to matters that they heard about from other but did not observe firsthand.
• Personal knowledge implies that a witness is capable of apprehending an event, remembering it, and describing it to others. If a witness lacks ability to fulfill these functions--because of youth, mental impairment, or any other reason--the witness may not have sufficient personal knowledge to testify
○ Even in such cases, however, the preference towards admissibility usually prevails
§ Class Notes:
□ Witnesses must always have personal knowledge
® Except for expert witnesses
□ Even with the strongest rules there are exceptions
□ Very few rules apply to all cases
□ Rule 602--personal knowledge part of foundation
® When testifying ask them "where were you on day ____" -->start laying foundation
® Have to lay foundation that she has personal knowledge about that before she states any testimony
□ Pg. 165 Darwin
® Drawin is on trial for stabbing Xavier to death on the evening of March 6. Darwin's neighbor Louise testifies that, at about 8 p.m. on March 6, she saw Darwin enter his home holding a knife. Darwin's counsel objects that Louise lacks personal knowledge of the stabbing
◊ Louise lacks personal knowledge of the stabbing but she has personal knowledge of a relevant piece of circumstantial evidence: the fact that Darwin was holding a knife around the time that the stabbing occurred. She can testify to that fact
□ Pg. 167 Arvin Adler and Betty Babcok
□ Pg. 168 McCrary-El
® Jerry McCrary-El, a prison inmate, claimed fthat three prison guards beat him in his cell without provocation. He sued the guards and offered the testimony of Antonio Hones who was housed in the neighboring cell. Jones claimed that a crack at the corner of his cell door, which measured about an inch and a half, allowed him to see into the prison corridor and witness part of the confrotation between McCrary-El and the guards
◊ The district judge examined a diagram of the cells, listened to Jones's description, and concluded that Jones had not been able to see the relevant parts of the confrontation. No reasonable person, moreover, would believe that Jones could have seen "anything of relevance." The judge excluded Jones's testimony as lacking personal knowledge, and the court of apeals upheld this decision

Judge cole would have let him testify and cross examine him
• The first words out of any witness's mouth is an oath or affirmation
• The oath or affirmation impresses the witness with the seriousness of the courtroom testimony and reminds him of the obligation to speak truthfully.
○ The oath or affirmation also lays the basis for a perjury prosecution if a witness lies on the stand
• Rule 603 govcerns oaths or affirmations in federal court.
○ The rule is quite open-ended, allowing witnesses to choose between an oath or affirmation and imposing no particular format for either.
§ An oath traditionally includes the word "swear" and a reference to "God"
§ And affirmation is a promise to tell the turth that omits religious references and uses the word "affirm" rather than swear
○ Judges sometimes invoke this rule to prevent a very young or mentally inform witness from testifying.
○ Rule 603 establishes a minimal standard of competency that all witnesses must meet
§ Judges use this power very sparingly
□ They are more likely to allow the witness to testify
○ If a witness refuses to make an oath or affirmation that satisfies Rule 603, then the judge will exclude the witness's testimony.
○ Rule 603 does not require a witness to utter particular magic words to satisfy its requirement.
§ The drafters attempted to craft a requirement that would accommodate any set of religious beliefs or non-belief. Even if these beliefs are unfamilar to trial judges, they should try to find a way to accmodate them.

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.
§ Class Notes:
□ Goode...pg 168
□ Just care about witness is impressed upon their conscience the duty to testify truthfully
® Hope that with some witness will be duly impressed by proceedings
• Direct Examination by the attorney who called the witness
• Cross examination by the attorneys for other parties
• Redirect examination by the attorney who called the witness if necessary
• Recross examination by attorneys for other parties, if necessary
• Additional rounds of redirect and recross

• Rule 611 is a broad provision that sets out different rules for each of these stages

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

• The first part of the rule gives the judge the general power to control how witnesses are examined during any stage of the witness's testimony.
○ This allows a judge to prevent an attorney from badgering a witness or confusing the witness with complex or compound questions
• The second and third parties of the rule work together to ensure that a witness uses his own words to tell the story about what happened
○ Leading questions are generally not allowed on direct examination; the attorney must use the witness's own words to build her case
○ But these questions are allowed on cross exam when the opposing counsel is limited to exploring topics covered on direct rather than developing a new case
§ Class Notes:
□ Let the attorney who called the witness be the last person to question the witness
• Trials occur months or years after the event giving rise to a criminal charge or civil claim.
○ Memories fade
○ May not be able to recall key details in court
○ Even a witness with a strong memory may not remember all of this info on the stand
• If a witness recalls, the general outlines of an incident but is having trouble reciting details, the judge may fallow the lawyer to "lead" the witness even in direct exam
• But they diminish the persuasive impact of the witness's testimony because the jury hears the attorney suggesting answers to the witness
• The lawyer might ask a series of increasingly specific questions
○ Questions like these, however, will make the witness seem even less credible
• Rule 612 gives the attorney another option: she can refresh the witness's recollection with a document or other item
○ Any document can be used, as long as the witness states that it will help her remember the necessary info
• But whatever kind of writing is used, the witness must first state that (1) she does not remember the answer to the question being asked; and (2) seeing the writing will "refresh her recollection"
○ These two statements lay the foundation for the writing being used to refresh recollection
• After the witness reviews the writing, the examining attorney will ask whether the writing has refreshed her recollection. This question is meant to ensure that the witness testifies only about what she remembers--not about things she read but can no longer recall
• Rule 612 acknowledges that judges often allow witnesses to refresh their recollection in this way
○ Class Notes:
§ Might not have full command of details; keep in mind that it often takes a yr or more to go to trial, witness memory often needs to be refreshed
§ If you have a witness on a witness stand and have to refresh memory on multiple times during testimony...will that make her testimony more believable or less believable?
□ Does not impress juries at all
□ Especially with police officers
® e.g. dui case and events took place a yr and a half ago and between then and now police officer has been in many investigations
◊ Can't expect her to remember it; read police reports before trial
§ Rule #1:
□ Criminal cases & your witness...talk to them before trial and remind them that they are going to testify and read reports ahead of time
® No one will expect her/he to have immediate and total recall of all details of the event
® You will be much better off if doesn't have to have memory refreshed a bunch of times
§ Before you get to refreshing recollection, other things you can do
□ e.g "officer what time did you get there?" -->can I lead her a little bit...probably
® "was it morning or afternoon?" may clue witness in
® Before you start going to trouble to use document to refresh memory, there's things you can do to try to remind her.
§ Toy are a prosecuting a criminal case; police officer named jones is your key witness
□ You have asked her what time she went to the area of town where the incident in question happened. After she says she does not remember the time, ask her if looking at her police report will refresh recollection. If she says "yes," ask the clerk to mark the report as Exhibit X. Show the report to opposing counsel, then hand it to the witness and, after she confirm that it is her report, ask her to look at it. If it refreshes her recollection, ask her to set the report aside and tell you what time she went to the scene of the incident. Do not allow her to "read" the report aloud--her testimony will be (inadmissible) hearsay because it will be the document, not the victim doing the "testifying."
® Laying foundation for refreshing her recollection when ask if police report
® Mark as exhibit even if no one uses it
® Ask clerk to mark report
® Show report to opposing counsel--courtesy
® Ask her to look at report
◊ Ask her if it refreshes her memory
◊ If she says no...
◊ If she says yes...then you tell her to set report down or put it upside down on witness stand
} Make sure she isn't reading from document
- Not refreshing recollection
- Jury a lot more impressed if her memory refreshed after reading
® What if looking at her report does not refresh her recollection and you know of no other way to refresh?
◊ 2 techniques in law dealing with refreshing memories and document
} (1) present recollection refreshed--rule 612
} (2) past recollection recorded--Rule 803(5)
- Hearsay exception
® Present recollection refreshed
◊ Documents
◊ Not really refreshing memory; repeating whats in report
} Hoping will refresh her memory to whats in report
} It's a legal fiction

But we permit it to happen because it helps things move along
• Using a writing to refresh a witness's recollection is an efficient and persuasive way to improve live testimony.
○ Rule 612 facilitates this process by allowing the opposing party to use the writing in various ways; this ensure that the attorney who is refreshing recollection does not abuse the process

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party's Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or — if justice so requires — declare a mistrial.
• Although subsection (2) gives the judge discretion to apply the rule to pre-testimony preparation, judges rarely do so.
○ Rule 612 gives adverse parties the right to (1) inspect any writing the witness uses to refresh recollection, (2) cross-examine the witness on the writing, and (3) introduce the relevant portions of the writing into evidence
§ Attorneys, in other words, may refresh a witness's recollection but only at a price: the opposing party will be able to see the writing used for refreshment to cross examine the witness about the writing and to introduce portions of the writing into evidence
• Note that the adverse party may introduce a writing used for refreshment into evidence even if the writing would not otherwise be admissible
○ Rule 612 in other words, trumps other rules of evidence when an adverse party invokes it; the rule gives the adverse party the right to introduce the writing for the limited purpose of asserting the witness's credibility
• The "refreshing" party may also try to introduce the writing into evidence, but only if the writing is already admissible under the rule; Rule 612 does not offer any help
• Three procedural issues that may arise when writings are used to refresh recollection
○ (1) first, the rule outlines procedures for determining which portions of a writing to admit when only part of the document relates to a witness's testimony
○ (2) second, the rule discusses remedies if a party refuses to produce a writing used to refresh recollection
○ (3) finally, the rule makes clear in its opening phrase that it is subject to Jencks Act, which governs discovery in federal criminal; trials
□ Class Notes:
® Rule 612 talks in terms of writings
® Sometimes its not a writing at all though
◊ Could be all kinds of things
◊ e.g. photo, video,
◊ e.g. normally police report
◊ But sometimes can be document they are not author of
} That's okay
} Rule does NOT say it has to be a writing prepared by person on stand
} **just about anything can be used to refresh recollection
® As long as you've laid foundation, it doesn't matter what you use to refresh recollection
® Refreshing recollection-->doesn't matter if document violates a bunch of rules; as long as not offering as evidence
® Have to lay foundation
® Sometimes adverse party may want to offer that form of memory recollection as evidence
® We are trying to encourage lawyers to have their witnesses read relevant document before testifying
• In order to use a writing to refresh a witness's recollection, the attorney should follow give steps
○ (1) establish that the witness does not recall the answer to a question
○ (2) describe the writing she wishes to use to refresh the witness's recollection and ask if that writing would refresh the witness's recollection
○ (3) show the writing to the witness. The witness will examine the writing and put it aside
○ (4) ask whether the writing has refreshed the witness's recollection or helped her to remember. The witness should answer yes, and then she can answer the original question from her refreshed recollection.
○ (5) either before or during this process, the attorney must be sure to give the opposing counsel a copy of the writing
□ Class Notes:
Testifying form Original Memory
• Often, however, it is obvious that the witness is not really testifying from a refreshed memory; instead she is parroting info quickly memorized from the writing.
• In this type of situation, opposing counsel can ask to "voir dire" (examine) the witness on her recollection
○ Opposing counsel will try to show the judge that the witness does no independently recall the events recorded in the writing
○ If the opponent persuades the judge that this is the case, the judge will not allow the witness to testify further on the matter: a witness with no independent recollection lacks the personal knowledge required by Rule 602 to testify
• The opposing counsel usually does not challenge the witness
§ Class Notes:
What Type of Writing?
• Rule 612 does not limit the type of writing a witness may use to refresh recollection
○ The writing may be a handwritten note on a napkin or a deposition transcript
○ The writing doesn't even have to be one the witness prepared
• The writing does not have to be writing at all
○ e.g. audiotapes, photographs
• Two practical limits on an attorney's creativity
○ (1) the jury's perception, and
○ (2) opposing counsel's rule 612 rights
• Most often the writings under rule 612 are documents that genuinely help the witness and buttress her credibility
○ Class Notes:
Refreshing Memory Before Testifying
• Rule 612 liberalized this rule by granting parties access to documents that a witness reviews for refreshment before taking the stand if justice requires that access. Courts, however, tend to limit an adverse party's right to see documents that a witness reviews before testifying
○ Class Notes:
Adverse Parties
• The phrase "adverse party" in Rule 612 allows any party who did not initiate the refreshment of a witness's recollection to claim the rule's protection. If a party refreshes a witness's recollection on direct exam, then other parties may invoke Rule 612 for cross exam.
○ Class Notes:
Effect of Introducing the Writing
• If the adverse party does choose to admit the writing into evidence, courts have held that unless the writing is admissible on other grounds--the jury may use the writing only to assess the witness's credibility
• When a party introduces a document under Rule 612 and the document is not independently admissible under other rules, the judge will give the jury a limiting instruction explaining how to use the document.
○ Class Notes:
• A trial lawyer who confronts damaging testimony from an opponent's witness can draw upon ten different tactics to combat that evidence
○ (1) Exclude the Evidence Through a Specialized Rule
§ e.g. relevance, competence, personal knowledge
○ (2) Claim Unfair Prejudice, Confusion, or Delay.
§ Rule 403
§ After considering objections under the other, more specific rules of evidence, trial lawyers always evaluate the possibility of a Rule 403 objection
○ (3) Complete the Story
§ Sometimes additional info reduces or eliminate the negative effect of testimony
Sometimes counsel can use cross exam to elicit positive info from a witness, completing the story in a way that helps her client. Other times, counsel may introduce the positive info through a direct or rebuttal witness of her own
○ (4) Clarify the Ambiguous Testimony
○ (5) Show Impairment of Perception or Recollection
§ A lawyer may try to show that an opponent's witness perceived an event incorrectly or recalls it inaccurately
○ (6) Demonstrate Inconsistencies
○ (7) Rebut the Evidence
§ A party may introduce evidence that contradicts a witness's testimony
○ (8) Show Bias
§ Revealing a witness's bias is so important that courts will admit otherwise prejudicial info to show the extent of that bias
§ Several ruules makes special exceptions to accmodate proof of bias
□ Rule 411, for example, specifically allows parties to introduce evidence of liability insurance when the insurance is relevant to establish a witness's bias
□ Other rules, like Rule 407 (subsequent remedial measures) and Rule 409 (medical expenses) do not include express exceptions for bias but implicitely allow proof of otherwise inadmissible evidence when offered to show a witness's bias
○ (9) Attack the Witness's Character for Truthfulness
§ Trial attorneys sometimes try to discredit a witness by showing that the witness is a generally untruthful person. If the witness has lied in other situations, the jury may conclude that the witness is lying on the stand. Witness rarely admit that they are habitual liars, so lawyers attempt to prove a witness's untruthful character in other ways
○ (10) Introduce Expert Testimony about Evidence
§ Courts understandably approach this type of testimony with great caution, but we will consider its admissibility when we study the rules governing expert testimony
□ Class Notes:
® Two rules of exclusion--
® 3,4, 7, 10-->
◊ Offense tools
} Go on the offense when cross-examining that particular witness
} Most of the time, cross-examine is defensive, but want to remind lawyers can go offensive on cross-exam
- Tactic 3--complete the story
w Not uncommon for person to be called that helps one side and some stuff helps other side too
w You take the offensive and focus on good things witness has to say about that case
® Prior inconsistent statements very powerful tool
§ Bias is so important--sometimes loosen up reigns if testimony goes to witness's bias
□ Witness bias is so crucial to that witness's credibility
® e.g. testified on behave of company B....you own company B...bias
® So crucial to the jurors assessment of witness credibility
§ Attack the witness's character for truthfulness--save for later
• One of the most powerful impeachment techniques in a trial lawyer's toolbox is to show that a witness made inconsistent statements at different times. If an attorney can show that a witness's courtroom testimony conflicts with statements the witness made outside the courtroom, the attorney will significantly undercut the witness's testimony
• Although prior inconsistent statements are an effective impeachment tool, they raise problems of their own. Some witnesses make many inconsistent statements. Proving that the witness made each of these statements is time consuming and could distract the jurors from the important issues in the case. The rules of evidence, therefore, restrict how parties use prior inconsistent statements
• Extrinsic evidence
○ Extrinsic evidence is any evidence other than testimony from the witness currently on the stand
○ Extrinsic evidence takes more time to present and causes more distractions
○ Each new witness or piece of evidence ripples in the trial
○ The evidentiary rules allow impeachment with extrinsic evidence under some circumstances but they place more restrictions on that type of impeachment
• Collateral matter
○ A collateral matter is relevant to the case solely because it impeaches a witness.
○ Collateral matters consume time and distract the jury
○ The combination of extrinsic evidence and collateral matters is the most disruptive of all
• non-collateral matter
○ Non-collateral matter in contrast, proves a fact in consequence other than impeachment
○ If a piece of evidence proves a fact in consequence and impeaches a witness, then it is non-collateral
• Judges use their discretion under Rules 403 and 61 to prohibit extrinsic evidence of prior inconsistent statement on a purely collateral matter.
○ Evidence of this nature causes delay and confusion that substantially outweighs its probative value (rule 403) and disrupts the orderly presentation of evidence (Rule 611)
• The rules, on the other hand, allow parties to present extrinsic evidence of prior inconsistent statements related to non-collateral matters
○ But demonstrating inconsistencies in a witness's statement about a fact of consequence to the litigation is central to the truth-finding function of trials
○ The rules, therefore, allow this process.
Non-Extrinsic Evidence Extrinsic Evidence
Non-Collateral Matter Cross-examiner asks Wilma, "Didn't you tell your friend Sharon testifies that Wilma told her that Fred hit Betty
Sharon that Fred hit Betty?"

Allowed. Allowed, subject to procedures in Rule 613
Collateral Matter Cross-examiner asks Wilma: "Didn't you tell the police that you drove to the golf course that day?" Police officer testifies that Wilma told him she drove to the golf course. Prohibited under Rules 403 and 611

Allowed, subject to some outer limits under Rules 403 and 611.

○ Although evidence of bias must comply with other rules (such as the rule against hearsay), bias is never collateral. Instead, it is one of the favored forms of impeachment allowing extrinsic evidence
○ Similarly, parties can rely upon extrinsic evidence to show that a witness's perception was impaired. A party may call a witness's friend to testify that the witness always wears eyeglasses
§ These types of evidence are extrinsic--they go beyond questioning the witness on the stand--but they do not violate rules 403 or 611 because of their strong probative value
○ The bar on extrinsic evidence for collateral matter, in fact, only applies to a few types of impeachment.
§ The first is prior inconsistent statements
§ The second is impeachment by contradiction, in which an attorney uses evidence other than a witness's prior statement to show that the witness lied on the stand
□ Class Notes:
® Other party can request to see it
® Rule 613 is only talking about ONE technique of impeachment
® Extrinsic Evidence--any evidence other than testimony from the witness who is currently on the witness stand
® Collateral Matter--any matter that is relevant to the case being tried solely to the extent it impeaches a witness
◊ If it's not material to anything else in case except impeaching that witness...it's a collateral matter
® If we are talking about something that's extrinsic and collateral...party isn't allowed to use it to impeach
◊ It will be excluded on impeachment
® Confusion most likely to arise with
◊ Extrinsic evidence--sharon testifies that Wilma told her that Fred hit Betty
} Allowed, subject to procedures in Rule 613
} Permit it if party doing impeaching is able to satsify conditions in rule 613 even though it's extrinsic evidence
◊ Collateral matter--cross-examiner asks Wilma: "Didn't you tell polce that you drove to the golf course that day?"
} Allowed, subject to some outwer limits under rules 403 and 611
® Prior statement-->
◊ No need to warn witness or opposing counsel about prior statement
® Rule 613(b) before showing extrinsic evidence
◊ "Wilma, have you made any statements about this event to anyone else?"
} "Yes I have"
} "was one of those peopld sharon?"
} "Yes
} "do you recall where it was you and Sharon spoke about this?"
} "know what time? Date? Anyone else present during convo?"
} Maybe say then..."Did you tell Sharon something differently than you did today?"
◊ Most of the time, the lawyer's whose witness gave an inconsistent statement knows they made that inconsistent statement
® Rule 613 creates special rule for extrinsic evidence
® There are time that we as impeaching lawyer may want to hear it not just because it impeaches witness on stand but because we want jury to believe the prior content
◊ Want the witness's prior statement to be the one jury accepts; accept content of prior statement and not just impeachment value
◊ If we want jury to understand it for its content...we have a hearsay issue
® Other lawyer may request a limiting instruction
• Lawyer may not surprise witnesses by asking them without warning about prior inconsistent statements
○ The rules require only that the lawyer disclose the statement to opposing counsel immediately before the lawyer brings up the statement on cross-examination
○ The required disclosure to opposing counsel gives that lawyer a chance to raise any evidentiary objections, as well as to prepare to rehabilitate the witness
§ Opposing counsel, however, has not right to see the impeaching statement before cross-exam begins; thus, the opposing counsel CANNOT prepare the witness unless she knows about the statement from her own investigation

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney.

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).
• The point of Rule 613(a) I that lawyer may choose either strategy to impeach a witness with a prior inconsistent statement
○ The lawyer may show the statement to the witness before asking about it, or the lawyer may ask about the inconsistency without showing the statement directly to the witness
• Rule 613(a) applies even when a party relies upon non-extrinsic evidence
○ Even if a party simply cross-examines a witness about a prior inconsistent statement, the party must disclose the statement to opposing counsel if requested to do so
• Although Rule 613(a) specifically allows a party to examine a witness about a prior inconsistent statement without showing the statement to the witness, attorneys sometimes show the statement to the witness for strategic reasons.
○ Judges, moreover, sometimes exercise their general authority under Rule 611 to require a cross-exam attorney to show the statement to the witness
When is an Issue Collateral?
• If an inconsistency relates solely to a collateral issue, then the potential for prejudice, delay, or confusion substantially outweighs the probative value of admitting extrinsic evidence of the previous statement
• But as with any issue of relevance, the question of whether a statement is collateral depends on the facts of the case and the persuasiveness of counsel
Witness Denials
• The rule against using extrinsic evidence to prove inconsistent statements on collateral issues prevents trials from getting bogged down tangential issues
Extrinsic Evidence and Rule 613(b)
• If extrinsic evidence of a prior inconsistent statement clears the material/collateral hurdle described above, the party offering the statement must also satisfy the procedural steps outlined in Rule 613(b): the witness must have an opportunity to explain or deny the earlier statement, and the opposing party must have a chance to examine the witness about the statement
• Notably, however, Rule 613(b) does not mandate a particular sequence for these events
"If Justice So Requires"
• Rule 613(b) provides that in unusual circumstances, when "justice so requires," a party may introduce extrinsic evidence of a witness's prior statement even when the witness will not have an opportunity to explain or deny the statement, and opposing counsel will not have a chance to interrogate the witness.
○ This exception is designed for the case in which a witness becomes unavailable after testifying but before introduction of the prior inconsistent statement
• Trial judges, however, are very reluctant to apply this exception. They are more likely to rule that the party attempting to impeach should have confronted the witness with the prior statement while he or she was on the stand.
Limiting Instruction
• But parties often want to do more than simply impeach a witness with a prior inconsistent statement; litigants frequently want to persuade the jury to accept the content of a prior statement
• To explain this distinction to the jury, the judge may give a limiting instruction
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant's same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.
1. Probative of Character for Truthfulness or Untruthfulness
i. Rule 608(b)(1) allows parties to establish a witness's character for untruthfulness by asking on cross-examination about specific examples of conduct suggesting that character. To fit within the rule, however the acts must be probative of the witness's character for truthfulness or untruthfulness
2. Good Faith Belief
i. Before asking a witness about a specific incident suggesting untruthfulness, an attorney must have a good faith belief that the incident occurred
ii. A good faith belief is one that rests on some evidence, even if the evidence would not be admissible in court
3. Judicial Discretion
i. Even when a cross-examiner demonstrates a good faith belief in conduct bearing on a witness's untruthful character, the trial judge has substantial discretion to preclude inquiry into that behavior
1) Rule 403 authorizes judges to exclude evidence when its unfair prejudice substantially outweighs its probative value, and Rule 611 allows the court to exercise reasonable control over the mode of examining witnesses to protect witnesses from harassment or undue embarrassment. Rule 608(b) confirms these protections by providing that the court may allow cross-examination about specific instances of a witness's conduct
4. Extrinsic Evidence
i. Rule 608(b)(1) lifts the general bar on character evidence by permitting attorneys to cross-examine witnesses about acts that demonstrate a character for untruthfulness. The rule, however, prohibits extrinsic evidence on these matters. The cross-examiner, in other words, must accept whatever answer the witness gives. The opposing party cannot pursue the matter by introducing additional evidence to establish the witness's untruthful acts.
ii. Rule 608(b)'s bar against extrinsic evidence seems harsh when applied to a witness whose word will put a d in jail, but the rule prevent trials from detouring too far into unrelated controversies.
iii. Remember that Rule 404(a)(1) generally prohibits the use of evidence to suggest that a person committed a particular act simply because that would be consistent with her character. Rule 608(b)(1) establishes an exception to that rule for testing the truthful character of witnesses.
5. Rule 608(b)(1) and Other Rules
i. The cross-examination of witnesses on incidents related to their truthful character rests at the intersection of several important evidentiary doctrines
ii. Rule 609 which establishes one very important exception to the extrinsic evidence rule: under certain circumstances, parties may introduce extrinsic evidence of a witness's prior criminal convictions. This rule plays a critical role in impeaching some witnesses.
1) Class Notes:
i. Good faith belief
1) Improper and unethical for counsel to simply dream up instances of misconduct
One. Do not simply make things up and question witnesses about it
2) If witness denies it; you are stuck with answer; cannot bring in extrinsic evidence
One. Lawyers don't often use rule 608(b) because of this
Two. Better to just leave it alone maybe than ask question at all
2) Offering extrinsic evidence under Rule 608(b)(1) not allowed
i. Many rabbit trails that will come apparent in even a short trial
ii. Don't follow rabbit trail
1) Not going to waste juror's time
2) Don't confuse jury and confuse issues
iii. Law makes policy judgment when dealing with rabbit trails, most of the time rules do not permit them to follow them
(a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness's admitting — a dishonest act or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
□ Rule 609, in other words, applies only when a party uses criminal conviction for a particular purpose to suggest that a witness has an untruthful character. If a party attempts to introduce a criminal conviction for a different reason, the rules does not apply.
□ When a party does rely on Rule 609 to introduce evidence of a prior conviction, the jury may consider that conviction only to assess the witness's character for truthfulness. If the witness is also a party in the case, the jury should not use the conviction as evidence of guilt or liability
® Class Notes:
◊ Rule 609--> under rule 609 parties may introduce evidence of a witness's prior criminal convictions
◊ Rule 609 exists because we want to have a way for a jury as a fact finder to assess witness credibility
◊ Why have rule 609? Giving jury a tool; not making judgment that every felony conviction is about truthfulness; give jury that tool and say..."you found out in this case that witness X testified and found out that he had prior felony conviction...only purpose to use that is credibility and believability as a witness" that's it
} We let the jury decide if it has anything to do with truthfulness
◊ Rule 609 says gee it seems silly to disable every person with a criminal record to testify so it's a silly rule to say they aren't competent to testify, but if they do in fact have a criminal record that is admissible, we want jurors to have that additional tool
} It could be the judge
◊ Why are rules 608 and 609 alike and different?
} Both parties have to do with impeaching people that are testifying
} 608 has nothing to do with criminal convictions
} 609 is nothing to do but with criminal convictions
◊ If testify, can have priors come in
◊ Under rule 609, it makes a big difference who witness is
} Law gives criminal Ds a break in that if it's the criminal D who is testifying, the party who wants to impeach him has a higher standard to meet than if it were just some other witness
◊ 609 permits extrinsic evidence under some circumstances
} Luckily don't need it that often
◊ Rules 608 and 609 only applicable to testifying witnesses
} Most of the time, can't impeach someone who hasn't testified
a. Three different rules for specific categories of witnesses and prior convictions
i. The first rule governs prior felony convictions used to impeach any witness other than the defendant in a criminal case.
1) All we do in this circumstance is apply rule 403
2) If dealing with any witness other than criminal D (charged individual), simply apply rule 403 (embodies a presumption that evidence is admissible but that presumption can be overcome if the party opposing the admission of the evidence if probative evidence substantially outweighed)
3) Is only witnesses who testify in civil cases; or witnesses who testify in criminal cases that are NOT the criminal Ds
ii. The second applies to prior felony convictions used to impeach a witness who is the defendant in a criminal case.
1) Now the prosecution (state or fed) bears the burden of proving that the probative value of the evidence outweighs the danger of unfair prejudice
2) Presumption that not admissible; prosecutor has to prove prior conviction is such that probative outweighs danger of unfair prejudice
3) Deliberate judgment being made here that going to give criminal defendants a little more protection than we give other people

iii. The third addresses prior convictions for any crime involving a dishonest act or false statement, regardless of the witness's role or the crime's felony status.
1) Rule 609 allows litigants to use any conviction for a crime of dishonesty or false statement, no matter what the sentence, to impeach any witness's character for truthfulness
2) Need not be a felony
3) Only one of three categories that says it doesn't have to be a felony
4) Judge has no discretion here** has to let it in
5) Term "dishonesty" is construed very narrowly

6) Class Notes:
i. 609 only applies if using character for truthfulness
ii. Felony-->punishable by death or by imprisonment for more than one yr.
1) Anything that is punishable (doesn't matter that witness only got probation) but it was punishable by a yr. or more in prison...makes it a felony
a. Three special barriers to using convictions that are more than 10 years old:
i. (1) the party seeking to use the conviction must give the adverse party reasonable written notice
ii. (2) the judge must find specific facts and circumstances supporting the conviction's probative value
iii. (3) the judge must determine that the probative value of the conviction "substantially outweighs its prejudicial effect"
1) The last hurdle is the reverse
2) Opening Language
i. Rule 410 excludes evidence from both civil and criminal trials
1) The evidence protected by Rule 410 arises in criminal prosecutions. But this rule bars admission of this evidence in either civil or criminal trials
ii. Rule 410 precludes this evidence only when introduced against the person, who as a criminal D, participated in the plea bargaining process
1) Bars admission of evidence against only one type of party
2) Aims to protect the criminal d from overreaching during plea bargaining and prosecution
3) Allows D to introduce evidence from that process against others of the one used under Rule 403, which admits evidence unless prejudicial effect substantially outweighs probative value
One. We can illustrate our chart to illustrate this difference

a. Conviction less than 10 yrs. old admissible
b. Conviction more than 10 yr. old it's in admissible
i. But there is problems
ii. Issue: date timing-->if witness was in prison as result of felony...start 10 yr. clock running when they are released from prison
1) e.g. served 14 yrs....talking about 24 yr. period. Conviction would be considered less than 10 yrs. old
iii. Did this person go to person and if so how does that affect the ten yrs.?? *HINT* HINTHINTDid this person go to person and if so how does that affect the ten yrs.?? *HINT* *HINT*
c. Remote conviction
i. More than 10 yrs. old
1) There are still some hurdles that the offering party has to prove:
i. (1) the party seeking to use the conviction must give the adverse party reasonable written notice
ii. (2) the judge must find specific facts and circumstances supporting the conviction's probative value
1) You better be able to tell the judge to tell him specifically why it's necessary to impeach
iii. (3) the judge must determine that the probative value of the conviction "substantially outweighs its prejudicial effect"
1) Now the party who wants to use conviction must prove that prejudicial effect subs
2) Rule 403 turned on head
a. Rule 609 is a lengthy rule but it is an important one
i. The rule plays a key role in criminal cases because many criminal defendant and witnesses at criminal trials have prior convictions
b. If the criminal defendant does not take the stand, therefore, the prosecutor will probably not be able to introduce evidence of the defendant's prior conviction
i. But if the defendant does testify, then rule 609 gives the prosecutor an avenue for introducing evidence of the defendant convictions
c. Rule 609 thus plays a substantial role in determining whether a criminal d will testify at trial
d. Rule 609 affects the strength of the prosecutor's case in a criminal trial. In criminal investigations, the government often relies upon informers, codefendants who plead guilty and other witnesses who have themselves faced criminal charges
e. Rule 609 also applies in civil cases, although fewer civil litigants and their witnesses have criminal records
i. Class Notes:
1) Remember rule 609 applies in civil cases and criminal ones
2) Page 260
3) Criminal defense attorneys can bring up prior convictions during direct to lessen sting
i. That way other party can't hammer him

1. Defining Felonies
a. Rule 609(a)(1) defines felonies as crimes "punishable by death or by imprisonment for more than one year"
i. The witness need not receive such a sentence for impeachment to occur
1) Class Notes:
2. Special Balancing Test for Criminal Defendant
a. Rule 609(a)(1)(B) creates a special balancing test, more stringent than the one established by rule 403, to determine when prior felony convictions are admissible to impeach a criminal defendant who takes the stand
i. Impeachment Value of the former crime
1) A crime that relates to truth telling has more probative value than one that does not
ii. Timing of the prior conviction and subsequent criminality
1) Convictions that occurred long ago have less probative value, unless they are part of a pattern of criminality
iii. Similarity between the prior crime and charged one
1) When the prior crime is similar to the charged one, the likelihood of prejudice is particularly high,, because the jury may use the prior conviction not just to judge credibility but to reason that the d has a tendency to commit this type of crime
iv. Importance of the d's testimony
v. Centrality of credibility
1) Class Notes:
i. 5 factors that judges supposed to keep in mind
1) Impeachment value of the former crime
One. e.g. criminal assault prior; doesn't mean near as much as if he committed perjury
Two. Perjury goes straight to truthfulness
2) Timing of the prior conviction and subsequent criminality
One. Remote convictions have less probative value
Two. e.g. older conviction is less likely to be probative of issue on truthfulness
3) Similarity between prior crime and charged crime
One. When prior crime is similar to charged crime the likelihood of prejudice is incredibly high
Two. If jurors do that they have cut against the grain
Three. Tool that we can use
First. e.g. D on trial for burglary; there is evidence her client was convicted 7 yrs. ago of burglary...what can Rosa do?
1. Is there a way we can let jury know it was a prior felony but not that it was particularly a burglary?
1. "judge would you sanitize that conviction??"
1. Convinces judge that conviction only come in as prior conviction

4) Importance of the D's testimony
One. Risk that a D will forgo testify should always count as an element of prejudice
Two. "Judge in this case, making her prior conviction is inadmissible...her testimony is incredibly important" can be extremely helpful for defense arty trying to exclude evidence of D's prior conviction
5) Centrality of Credibility
One. e.g. sexual assault cases; most sexual assault cases those things are committed out of public view
First. That trial is going to be a swearing contest
Second. That makes both parties credibility extremely important

3. Crimes Involving a Dishonest Act or False Statement
a. Rule 609(a)(2) admits prior convictions for crimes of dishonesty or false statement, even if they were misdemeanors and without any consideration of undue prejudice
b. Judges generally agreed that crimes of violence, as well as crime like theft, robbery, and drug use did not qualify as crimes of dishonest under the rule
c. Courts will continue to interpret the new language in rule 609(a)(2). Persuasive lawyers representing both sides of the issue will help shape that interpretation
i. Class Notes:
1) Fact that prior crime involved deceit might not be enough
2) Very narrow category of crimes
a. Remember that rule 404(a), generally prohibits parties from introducing character evidence to suggest that a person acted consistently with his or her character on a particular occasion. That general rule would prevent litigants from offering evidence about a witness's character for veracity in order to argue that because the witness has a generally untruthful nature, the witness must be lying on the stand
b. Rule 608 establishes yet another exception to that rule--another hold in the evidentiary net--that allows parties to introduce opinion or reputation evidence about a witness's character
(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.

i. The evidence must be in the form of reputation or opinion only; the evidence must relate to the witness's character for truthfulness or untruthfulness and testimony about a witness's character for truthfulness can only be elicited after his character has been attacked
1) Class Notes:
a) Rule would be more clear if it would specify fact witness v. character witness
i) Cole believes they are right
b) Witness who comes in to talk about witness's character of truthfulness-->character witness
a. Rule 608(a) allows one witness to offer testimony about another witness's character for truthfulness or untruthfulness
b. Lawyers distinguish between the "fact witness" and the "character witness"
i. Parties present fact witnesses to establish facts related to the underlying legal dispute
ii. They introduce character witnesses to offer evidence about the truthful or untruthful character of a fact witness
1. Reputation or Opinion Evidence
a. When a character witness offers an opinion about a fact witness's character for truthfulness, the attorney will first lay a foundation by showing that the character witness knows the fact witness well enough to have formed an opinion about the fact witness's truthful or untruthful nature
b. An examination designed to elicit information about a fact witness's reputation for truthfulness or untruthfulness is quite similar
c. Rule 608, however, prohibits the next question, logical though it seems. Rule 608(a) allows testimony only about the witness's reputation or in the form of an opinion. The rule does not allow parties to ask character witnesses questions on direct examination that focuses on specific examples of a fact witness's truthfulness
i. This rule seems counterintuitive; surely specific examples of untruthful behavior are more probative than a general opinion about untruthfulness. The rule, however, attempt to keep trials focused on the underlying controversy that motivated the lawsuit
2. Limited Purpose
a. Evidence of untruthful character admitted under Rule 608(a), like questions posed on cross-examination under Rule 608(b) or evidence of a criminal conviction admitted under Rule 609, is admissible only to assess the credibility of the witness's courtroom testimony
b. The distinction is most problematize when a criminal d takes the stand. Once the d testifies, the prosecution can present a character witness to testify about the d's untruthful nature
c. The trial judge may give the jurors a limiting instruction to help them understand the proper use of character evidence on truthfulness. When the unfair prejudice stemming from this type of character evidence substantially outweighs the probative value of the evidence, moreover, the judge may exclude the evidence under rule 403
i. Class Notes:
1) Mr. Fogel (pg. 273)--->wife comes in and calls husband is a "slob, dog..."
a) If we are dealing with rule 608(a)--only deals with truthfulness or mendacity
b) None of the characteristics described by Mrs. Fogel affect mr. Fogel's truthfulness as a witness

3. When Has Character Been Attacked?
a. Rule 608(a) allows parties to bolster a fact witness's credibility with evidence of a truthful character, but only after the witness's character for truthfulness "has been attacked"
b. To understand this distinction, focus on the difference between a witness's character for truthfulness and the witness's credibility when testifying about a particular matter
c. Likewise, demonstrating that a witness has an interest in the outcome of a case, or is biased against a particular party, are attacks on the witness's credibility in the context of the case
i. Class Notes:
1) Bias has nothing to do with Rule 608 whatsoever
2) We can show bias and not worry about Rule 608
a) 608 has to do with impeaching a witness based on character or truthfulness or lack there of
i) Nothing to do with bias or other kinds of impeachment
3) Pg. 274--Carl Drury
a) Drury testified in his defense; prosecutor cross-examined him and pointed out a bunch of prior inconsistent statements; drury wanted to bring in a bunch of witness's showing his truthfulness
i) The district court excluded testimony by the six character witnesses, and the court of appeals affirmed. The prosecutor's cross-examination did not constitute an attack on Drury's character for truthfulness, and no prosecution witness testified that he had an untruthful character. Under those circumstances, Drury could not offer evidence that he had a truthful character
One. Impeaching by prior inconsistent statements have NOTHING to with rule 608
First. Change the facts: what if you are cross examining drury and have been thinking about strategic decisions you might make about cross examining him. Let's say that as much as you know you don't want to call him a liar but you do your cross-examination in such a way that clearly saying to the jury, "this guy can't be believed"
1. Keep impeachment based on prior inconsistent statements apart from character for truthfulness
4) Lawyer could change the way the rules apply by how he did cross-examination
5) It's up to the jury to determine whether fact witness is being truthful or not
6) Counsel must have a good faith basis for making inquiry
a) If you simply start making stuff up in own mind, might have some ethical issues here
b) Can't make it up
c) Have to have good faith belief
7) Pg. 184 in Goode
a) Specific instances--illustrations. Inquiry into a witness's specific acts is permissible only if the acts are probative of truthfulness or untruthfulness. This following are illustrative of the types of acts that courts find probative
i) Prior use of a false name
ii) Filing false tax returns
iii) Failure to file tax returns
iv) Forgery
v) Omitting a material from an official report
vi) Attempts to threaten potential witnesses to keep them from testifying truthfulness
vii) Attempts to threaten potential witnesses to keep them from testifying truthfully
b) The following are illustrative of the types of acts that exclude as insufficiently probative of truthfulness
i) Attempted murder
ii) Threats against judicial officers in a prior prosecution
iii) Drug use
iv) Speeding

Filing for bankruptcy

4. Applicable only to Witnesses
a. Rule 608(a) only admits evidence related to a witness's character
A. Introduction and Policy
a. The process for impeaching witnesses with evidence of an untruthful character balances the parties' interest in offering that evidence with the judicial system's concern for focused and efficient trials
b. A party who wishes to challenge a fact witness's character for truthfulness may do so in any of three ways
i. Cross-examine the witness about specific incidents suggesting a character for untruthfulness under rule 608(b)(1)
ii. Offer evidence of the witness's criminal convictions under Rule 609
iii. Present a character witness who offers reputation or opinion testimony about the fact witness's character for untruthfulness under Rule 608(a)
c. A character witness offered under Rule 608(a), however, may not give specific examples of the fact witness's untruthful behavior
d. These rules prevent the trial from beginning embroiled in tangential issues about a fact witness's character
e. Once a fact witness's character for truthfulness has been attacked, a party may introduce evidence to show the witness's truthful character. That evidence takes two primary forms:
i. Explanation of any extenuating circumstances related to prior convictions. The party usually elicits these details from the fact witness on redirect examination
ii. Introduction of reputation or opinion evidence suggesting a character for truthfulness. The party offers this testimony through a rebuttal character witness
f. Rule 608(b)(2) throws a final wrinkle into this scheme, one that many students and Practioners find bizarre.
i. The subsection of the rule allows parties to ask character witnesses on cross-examination about specific incidents of a fact witness's behavior
g. An attorney who cross-examines a negative character witness, for example, can ask that witness whether she knows about various truthful acts committed by the fact witness
i. Class Notes:
i. A party has called and conducted direct examination of them...what can cross-examination do?
1) Cross-examine the witness about specific incidents suggesting a character for untruthfulness under Rule 608(b)(1)
2) Offer evidence of the witness's criminal convictions under Rule 609
3) Present a character witness who offers reputation or opinion testimony about the fact witness's character for untruthfulness under Rule 608(a)

You can make no cross-examination of character witness at all and call another character witness to come in later

B. The Rule
a. An attorney, in other words, may NOT ask a character witness about specifics of a fact witness's conduct direct exam, but opposing counsel may ask the character witness about those specifics on cross exam
C. In the Courtroom
1. Cross-Examination of the Character Witness
a. Under rule 608(b)(2) however the prosecution could cross examine on specifics
b. The theory behind these questions is that the cross-examiner is entitled to test the basis of the character witness's opinion or recital of reputation
c. Cross examine of a character witness can be much more devastating when the witness testifies about the fact witness's truthful nature
d. This type of cross exam faces just two limits
i. First, cross examiners may only ask questions for which they have good faith supporting belief AND
ii. Second, the trial judge has discretion to exclude questions when they will create unfair prejudice substantially outweighing their probative value
i. Class Notes:
1) Why win-win for cross-examiner--mention previous acts that are untruthful; witness will have to address that; if say don't know about incidents...says to court "how well does witness know person?"
a) Didn't know...oh no, there goes the foundation for his testimony
b) If they did know, still makes jury say "woah, you did know that and you still think he's truthful?"
i) Can't go into extrinsic evidence; but win-win for cross-examiner; witness has already cast doubt
2) Calling character witnesses may open door to other evidence that may have not been admissible
a) May open door to evidence that would not have been admissible if call character witness
b) e.g. you're the defense lawyer and really want to call character witness but you know that you may be opening the door on cross-examination; may be opening door for things to come in that jury would have never heard
i) Say yourself..."as much as I'd like to pull that in...I'm just not going to take the chance with calling a character witness"
One. Cole has only see 1 to 2 character witnesses coming in

2. Extrinsic Evidence
a. Parties may cross examine character witnesses about a fact witness's specific conduct, but they may not offer extrinsic evidence of that conduct
i. Class Notes:
i. Extrinsic evidence inadmissible
ii. Must have good faith basis for asking question
a. First, rule 106 allows a party to introduce qualifying portions of a writing or recorded statements as soon as the opponent offers the first portion
i. A litigant, therefore, may invoke this rule to offer clarifying portions of a writing or recorded statement "at the same time" as the jury hears the opponent's evidence
i. Class Notes:
1) Fairness and effort to reduce chances that jury somehow be mislead
b. Second, Rule 106 applies only to writing and recorded statements; it does not apply to other forms of evidence, such as oral conversations, photos, and physical objects
i. Class Notes:
i. Applies only to writing and recordings
c. Third, although parties most often invoke Rule 106 to introduce remaining portions of a single writing or recording, they may also use the rule to introduce whole writings or recordings when necessary to understand another document offered by the opponent
i. Class Notes:
i. e.g. so we can have one letter in a series of letters being offered and other side says "wait this is a series of letters, let jury see other letters"
1) Judge can say, "okay"
2) Rule says "no, if we need to do this we can do it at the time"
ii. e.g. what if it's a series of letters and what if letters have stuff in them that have nothing to do with issues at trial
1) Judge might say, "your objection under rule 106 is sustained We'll deal with it later."
d. Finally, Rule 106 uses a fairness principle; it admits portions of writing or recorded statements "that in fairness ought to be considered at the same time" as those offered by an opponent. This is a flexible standard that allows exercise of the trial court's discretion.
i. Class Notes:
i. Flexible standard--all within trial judge's discretion
ii. Rule 106 exists to correct a misleading impression created by taking matters out of context
3. Goode book
a. Rule recognizes that waiting defense wait to present case for introducing all letters, that it's unfair
b. Authors' Comments
i. (2) Oral Conversations. Rule 106 applies only to writings or recorded statements. Rule 106 does NOT apply to testimony about unrecorded oral statements
ii. (4) Remainder must be relevant and must qualify or explain admitted portion. Admissibility under Rule 106 is limited to other parts or writings that in fairness to be considered at the same time. To meet this standard, the other writing or recording must be relevant to the issues and must be necessary to (1) explain the admitted portion, (2) place the admitted portion in context (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding
iii. (5) Foundation. To lay a sufficient foundation at trial for a rule of completeness claim, the offeror need only specify the portion of the evidence that is relevant to the issue at trial and that qualifies or explains portions already admitted

Does rule 106 a stand alone rule and operate as a way to admit evidence that would otherwise be excluded or does it relate to timing only?
No real clear cut answer to that
Cole would want to say it's a timing matter; simply taking evidence that is already admissible and allowing jury to see it all at the same time
Rare for 106 to be a rule of admissibility
Rule 106 CANNOT trump rule 403
Safe if we regard rule 106 as a timing rule
i. Rules 608 and 609 allow parties to introduce evidence related to a witness's character for untruthfulness. Based on this evidence, the party asks the jury to make this chain of inferences:
1) This witness has an untruthful character
2) A person with an untruthful character has a tendency to lie
3) Therefore, this witness lied on the stand

i. Parties usually use evidence of a dishonest reputation or a criminal convictions to suggest an untruthful character, so the chain of inferences really have four links:
1) This witness has a reputation for untruthfulness. Alternatively, this person has committed a crime that involves dishonesty
2) Someone with a reputation for untruthfulness (or who has committed a crime of dishonesty) probably has an untruthful character
3) A person with an untruthful character has a tendency to lie
4) Therefore, this witness lied on the stand
ii. Rule 608 allows parties to rebut this evidence with proof of a witness's truthful character
1) a trial lawyer usually establishes truthful character by asking about instances of truthful behavior on cross-examination or by introducing evidence of a truthful reputation. The attorney then asks the jury to conclude that, since the witness has engaged in truthful acts or has a reputation for truthfulness the witness has a truthful character
iii. The first category of character evidence depends on the notion of propensity. Parties introducing evidence of a witness's untruthful character urge the jury to conclude that the witness's propensity to lie produced lies on this occasion
1) This consistency--or propensity to act in a particular way --lies at the heart of all evidence relating to a witness's character to lie or tell the truth
iv. Propensity reasoning from character evidence consists of two steps
1) An assumption that someone with a particular character tends to act in a particular way, and
2) A conclusion that the person acted consistently with that tendency on a particular occasion
1) Class Notes:
a) Witnesses propensity to lie or tell the truth
• Comments in addition to Cole's comments
• Format of exam
○ 5 mc questions
§ Each worth 3 pts
○ 2 essays
○ Total of 45 pts on midterm
• Cole cares about spelling, punctuation, and grammar
○ Will deduct points
○ Has to be pretty bad before takes off points
• Mc-->please read questions carefully; not uncommon for 2 out of 4 options to be pretty close; read questions carefully; more likely to get you to right answer
• On essays--pay attention to specific questions
○ Not a big fan of big fact patterns and asking issues
○ Give fact pattern and ask specific questions about it; be aware of what call of question is
○ IRAC doesn't work very well for Cole's exams
§ But focus on question he asks and answer those questions, you should be fine
○ If an essay has several sub questions, read all the sub questions before dealing with the first one
○ Answer questions one at a time; but read them all at the same time
• 1 hr and 15 mins to complete exam
• In terms of areas focused on:
○ Real v. demonstrative evidence
○ Standard of review--
§ A v. B; judge made 15 evidentiary rulings...as to everyone of those issues, standard of review appellate will use for them
○ Rules 401-403
§ Memorize
§ Know exactly what rules say
○ FRE 105--limiting instructions
§ Be aware of what rule says
§ Not a complicated rule
§ But has important words in it that guide judges
○ Objections
§ How do we make an objection?
§ When to make it?
§ Etc. from email
§ Leading questions
□ Sometimes not supposed to ask them; e.g. direct examination; times on direct examination when leading questions allowed
○ Voir Dire
§ If counsel is going to cross examine witness and thinks witness doesn't have personal knowledge, counsel can voir dire a witness (counsel's opportunity to see if there's a proper foundation to testify)
□ e.g. happens a lot with expert witnesses
® e.g. both parties call witness during case; party B looks at party A's witness and says "looks good to me, qualifications aren't an issue here..." or lawyer might say, "when witness testifies ask judge to take witness on voir dire based on qualifications"
◊ When going over qualifications...ask judge, "can I voir dire witness?" judge will normally allow it; go over education, school etc.
} Can't use it as an opportunity to cross-examine the witness
} Voir dire a witness-->only goes to witness's qualifications as to offer an opinion
} For lay witness--voir diring to make sure have personal knowledge
○ FRE 609
§ Notice to request to impeach; notice of limine; rule 609 has no application if d doesn't testify
□ Limited to witness's who actually testify
§ How are rule 403 or rule 609 different?
§ Judge's decision always discretionary on Rule 609? NO; one specific occasion where trial judge has no discretion whatsoever
§ Remote convictions
§ What rule does precise nature of prior conviction play?
§ Prejudicial to client-->
□ Tools for D
® Ways that defense counsel can deal with that
® Sanitize prior conviction--jury knows it's a felony but not very same crime on trial now
§ How should defense counsel advise client when have prior convictions?
□ Sit down with client and say, "you have prior convictions....judge has not ruled yet on prosecutor's request to impeach you..." let's talk about whether we should run the risk in letting the D testify
® Odds of judge letting the convictions come in
® Decisions ALWAYS up to client; just our job to advise client
◊ e.g. one prior conviction and misdemeanor assault...can probably tell client judge will not permit this prior conviction based on rule 609
◊ e.g. or client has 4 felonies, only 1 is remote..."you have 3 convictions likely that will be admitted if testify...let's talk about whether you should testify or not."