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EVIDENCE OUTLINE

I. METHOD A. Always ask 3 questions first 1. What is the evidence? 2. What is it offered to prove? 3. Is it relevant when offered for that purpose?

II. APPELLATE REVIEW OF EVIDENTIARY ISSUES A. Flexible rules 1. Appellate court defers to the trial court 2. abusive discretion: trial courts make decisions w/ little time for reflection a. appellate courts not to be overly aggressive in seeking out error B. Clear Rules 1. do not give trial court discretion 2. de novo review –for error of law C. 2 steps to appellate review 1. was there error? 2. did it effect a substantial right of a party? a. Reversal only required if the error is prejudicial D. Making the Record 1. Specific Objection a. if it wasn’t clear from the record, then appellate court has no obligation to review i. Give trial judge possibility of correcting mistakes b. Motion to strike – when it is too late to object c. Plain error: doesn’t need to have an objection in the record i. So obvious, a formal objection should not be necessary 2. Debate for exclusion a. Done at the bench, or jury can leave courtroom

III. WITNESSES & TESTIFYING A. 4 testimonial infirmities 1. memory 2. sincerity 3. narration 4. perception B. Competency to be a witness 1. No one is per se incompetent to testify 2. All persons are competent unless: a. Unsound mind b. Child under 10 AND appears incapable of receiving just impressions of the fact and relating them truly i. Fed.R. assumed jurors could accurately evaluate the credibility of a witness 3. Religious beliefs cannot make them not credible C. Oath Requirement 1. not required to make an oath on the bible a. must affirm their obligation of the understanding to tell the truth i. No specific formula D. Procedure 1. Erie Doctrine applies – diversity cases a. Procedural rules left to the sate to decide 2. Cal. Rules: different then fed. Rules a. Must be capable of being able to tell the truth b. Capable of expressing himself E. Judges 1 1. Judge may not testify as a witness F. Jurors 1. may not testify a. Bailiff cannot testify to what went on in jury room 2. Exceptions: a. may testify to whether extraneous prejudicial information was improperly brought to attention OR b. outside influence i. Tanner v. US: outside influence contemplates bribes  Drinks and selling drugs is not considered an outside influence  Racial remarks: considered part of personal process G. HYPNOSIS 1. Dangers of Hypnosis a. Very impressionable b. Wants to give helpful answer c. Suggestibility d. Confabulation – unable to separate from before and after hypnosis e. Certainty 2. California Rules a. People v. Shirley: testimony of hypnotized person should not be admitted in the courts of Ca. i. Can be used for purely investigative purposes b. Cal.Evid.C. 795: only applies to criminal cases i. Partial overruling of Shirley ii. Must follow certain procedural safeguards iii. Must make a good record of what happened prior to hypnosis iv. Witness may only testify to those things v. Have to have a hearing to establish by clear and convincing evidence that the testimony is reliable and not impaired  Worried that jurors will be unable to judge witnesses credibility 3. Constitutional issues a. A states per se rule excluding all post-hypnotic testimony infringes on a right crim  to testify on his own behalf Rock v. Arkansas\ i. Established guidelines to aid court in evaluation ot hypnotic testimony  May still be able to show that testimony in a case is so unreliable that the exclusion in justified b. Categorical rules are not const i. Unless: termed in a way to guarantee reliability  Ca’s rule would probably still be upheld

IV. PERSONAL KNOWLEDGE A. W may not testify to matter unless the W has personal knowledge of the matter B. Requirements 1. must use the senses 2. able to comprehend, remember and communicate a. must remember both at the time, and after i. EX: notes will not suffice if doesn’t remember the incident 3. knowledge does not need to be perfect a. issues of quality go to credibility 4. limited to descriptions of perceptions 5. standard of proof applied is sufficient to support a finding a. determines if the judge will let the jury hear the evidence b. less than preponderance of the evidence i. rational: if it is irrelevant the jury will ignore it

2 C. Types of Admissible PK 1. Depends on what the evidence is offered to prove a. W can have PK of what was said to him b. W can have PK of having the conversation D. No required order 1. can establish the basis for PK after he testimony

V. AUTHENTICATION A. All real and demonstrative evidence must be authenticated before it is admitted 1. Real Evidence: refers to an item that was directly involved in the very events that are at issue in the case 2. Demonstrative Evidence: refers to an item that illustrates testimony a. ex. Diagram i. Can only be used if the testimony it illustrates is admissible AND ii. Accurately reflects that testimony B. Requirements 1. Must be genuine a. that it is what its proponent claims it to be 2. Sufficient to support a finding a. unless the sowing as to authenticity is so weak that no reasonable juror would consider it to be what it is claimed – evidence should go to jury i. jury has discretion to decide the weight of the evidence 3. All evidence must be relevant C. Authentication of Photograph 1. Witness who observed event could testify to a photograph of the event as a fair depiction @ that time a. Photographer could not authenticate – b/c he was not at the scene at the moment 2. Photographer would testify that it was an actual picture of the scene of the crime a. Remember: look @ what the evidence is being offered to prove D. Method of Authentication 1. one of a kind characteristic a. object originally had unique char. And in courtroom has same identifier i. initials are a identifiable marker 2. chain of custody a. requires that every link in the chain explain what he did w/ it i. doesn’t need to cover every second, only need to show no one else had access 3. Authentication of Writings and Recorded Documents a. consist of showing who the author is i. no presumption of authentication  Authentication of a signature 1. witness knowledge 2. non-expert pinion on handwriting- familiarity 3. comparison by trier or expert witness 4. self-authentication a. evidence that is so likely to be what is seems to be that no testimony or other extrinsic evidence need to be produced i. extrinsic: evidence other than the time of evidence in question b. May still be inadmissible c. 12 categories of items : exclusive list i. Notarized wills and documents ii. Trade inscriptions, signs, tags iii. Newspapers iv. Certified copies of public records

3 VI. BEST EVIDENCE RULE A. Generally: 1. Definition: writing, recording or photograph a. Broad definition of writing: letters, words, or equivalent i. ex: original drawing b. includes video tapes c. photograph can be of anything, does not have to be of a writing 2. Even though a writing might be the “better evidence” not required under BER a. W may describe something from memory b. BUT: once W used the contents of the writing BER requires production of original i. NOTE: look for Personal Knowledge of events! B. Requirements 1. original writings must be produced 2. only applies to what is to be proved is the terms of a writing a. ex: x-ray is need to prove the contents i. but not if the dr. testifies “P is unable to work” – then x-ray is incidental b. Transcripts: person’s testimony can be proved who heard an oral account even if T exists i. Transcript is incidental – W is testifying about the testimony she heard ii. expert may give opinion based on matters not in evidence c. the more the content is important –greater likelihood court will sustain an objection C. Original: writing, recording, itself or any counterpart that is intend to have the same effect as the original 1. original includes negative or any print there from 2. data stored in a computer or printout readable by sight a. must be shown to reflect the data accurately is an original i. Requires a W who can describe how info processed to accurately reflect D. Duplicate: produced as a full and complete copy of the original 1. admissible to the same extent as the original a. photo of tombstone – not a dup b/c it is not produced by the same impression i. still admissible as secondary evidence b. handwritten produced copies are not duplicates c. BUT: photocopies are duplicates 2. If duplicate used: a. proponent must make originals available for copying at reasonable time and place E. EXCEPTIONS 1. A dup. is admissible unless: a. Genuine question is raised to the authenticity b. The circumstance would be unfair to admit it 2. Original is not required if: a. O is lost or destroyed b. Not obtainable c. In possession of opponent i.  destroys it in bad faith -  may testify to its contents   may not testify to contents b/c destroyed it in bad faith d. Collateral matters – not related to controlling issue 3. If acceptable excuse for failure to provide org. any secondary evidence is admissible a. CA: requires proof of existing copy F. JUDGE/JURY DETERMINATIONS 1. Issues relating to content: jury decides a. whether asserted writing ever existed b. whether another writing, recording, photo is original 2. Issues relating to admissibility: judge decides a. ex: whether it was destroyed in bad faith

4 VII. JUDICIAL NOTICE A. Adjudicative Facts 1. court decides a fact as true, in civil cases the jury must consider it as true a. crim: may instruct the jury that it may, but not required to accept as conclusive 2. can’t be subjected to reasonable dispute a. generally known in the jurisdiction of the court i. judges own knowledge insufficient b. proved conclusively by looking at a source i. ex: calendar ii. Scientific tests – not whether used accurately but capable of being used accurately 3. Can be taken @ any time a. At any point w/ out being asked b. If asked- must take if qualifies c. Or even on appeal i. When the fact is so obviously true that it would be a waste of time to send it back d. Opponent must be given chance to make argument B. Legislative Facts 1. used by court in deciding what a law should be a. right to take notice, so long as judge believes it to be true i. even if not indisputable C. Notice of Law 1. what is the law that needs to be proven a. applies to situations of foreign nations, municipal laws

VIII. BURDENS OF PROOF AND PRESUMPTIONS A. Burdens of Persuasion 1. concerns the party who must lose if the standard of proof is not satisfied B. Burden of Production 1. at every pointing one party has the responsibility to offer evidence in support of its position C. Presumptions 1. require the fact finder to find certain fact are true a. conclusion of fact the law requires the fact finder to draw from another fact or group of facts

IX. RELEVANT EVIDENCE A. relevant if it has any tendency to affect the likelihood that a fact that matters to the case is true 1. must make it more or less likely to be true a. Probative Value: matter of degree B. Materiality: must know the purpose for the E to determine if it is R 1. can be entered directly or through a series of inferences a. each inference has to be true b. relevant b/c each link is possible 2. Can be used by both parties for contradictory purposes – still relevant 3. Can go to state of mind C. Exclusion of Relevant Information 1. may be excluded if it probative value is substantially outweighed by a. the danger of unfair prejudice, b. confusion of the issue – leads to inferential error prejudice c. misleading the jury, d. delay e. waste of time f. needless presentation of cumulative evidence 2. Heavily weighted in favor of admissibility 5 a. Burden on the party objecting is very high b. Higher probative value, higher the prejudice must be for exclusion i. Appl. Courts use abusive discretion 3. Two Common Types a. Inferential effort prejudice: i. Giving more value to the evidence than it ought to get  Ex: photo w/ lots of blood 1. but – hardly ever excluded b. Nullification principle i. Leads jury not to decide whether  did this act, but based on other improper evidence  Encourages jury to use evidence against rules of law 4. Determining Exclusion a. Feaster v. United States: look @ the evidence and ask if the jury believes it, what is it worth and what are the dangers that come from it i. Court should not factor in credibility of evidence ii. Test what the probative value would have if believed D. Conceding Facts 1.  can’t take issue away by conceding 2. doesn’t effect the other party’s ability to tell a story w/ any evidence they want a. Exception: Old Chief v. US: stipulation has exactly the same probative value as the prior judgment, and satisfied the requirements of the statute w/ needing to offer different evidence i. Status crime  No other situation where this would apply X. PROBALISTIC EVIDENCE A. Product Rule: the probability of several things occurring together is the product of their separate probabilities 1. probabilities must be independent of each other a. ex: cannot take probability of man w/ beard and man w/ mustache to find odds of perpetrator B. Statistical Evidence alone is not enough 1. Adams v. Ameritech Services: stat. enough to rule out chance and w/ the other evidence enough to get to jury C. Bayes Rule 1. tells us how the probability of en event being true, changes when you know a new piece of information a. 2 kinds of evidence – non-mathematical and statistical 2. Limited tool for use in trial a. Courts need to be careful about allowing stat. in & how they allow them in

XI. PROCEDURAL ISSUES OF RELEVANCY A. Preliminary Questions of Fact RULE 104(a) 1. when objections are based on technical exclusionary rules a. hearsay, incompetency, privilege etc. b. confessions i. solely up to judge to determine whether it was voluntary 2. Determined by a judge a. Not bound by rules of evidence b. May even look @ the statement itself i. Except for privileges 3. Rational: jurors will not be able to ignore relevant evidence 4. preponderance of the evidence B. Conditional Relevance RULE 104(b)

6 1. evidence that is logically relevant only if some other fact exists a. Evidence of fact B is only relevant if fact A actually occurred 2. Judge decides whether a reasonable jury could find that the preliminary fact A occurred a. Standard: evidence sufficient to support a finding i. If judge finds fact A could have occurred then he will let jury hear fact B 3. Questions of authenticity fit this category a. Ex: judge determines whether a reasonable jury could find the conversation occurred – if they could, the evidence is admissible

XII. HEARSAY RULE A. Generally 1. Hearsay is not admissible 2. Dangers of Hearsay a. Perception: the accuracy of the course’s perception f the event b. Memory: the accuracy of the sources recollection of the event c. Sincerity: the source’s honesty about the event d. Narration: the adequacy of the source’s communication of thoughts 3. Rule is concerned w/ the problem of twice-removed evidence a. contemporaneous x-examination i. value of confrontation ii. sense of fairness B. Definition 1. Hearsay a. statement other than the one made by the declarant while testifying @ the trial, offered into evidence to prove the truth of the matter asserted C. Elements 1. Statement a. oral or written assertion b. nonverbal conduct if intended by the person as an assertion i. must intend to state a piece of information  to convey a fact 2. Declarant a. person who makes the out-of-court statement i. ex: W testifies X screamed “The red car ran the red light” ii. W testifies X screamed – not the declarant’s statement iii. W testifies as to what X screamed – hearsay b. animals are not subject to hearsay c. mechanical devices cannot make statements i. time revealed on a watch – not a statement ii. time stated out of court from a watch – is a statement iii. automatic whistle – not hearsay iv. whistle blown to indicate time – hearsay 3. Made other than while testifying at trial a. must be under oath, at current trial/hearing i. Exception: Former Testimony  generally: testimony given in an same or different proceeding if W is unavailable for trial 1. opportunity to examine 2. similar motive 4. Offered to prove the truth of the matter asserted a. 2 Step-Process i. Determine purpose for which proponent has offered evidence 7  Is it relevant? ii. Determine the first inference in the chain of reasoning that leads from the statement to the conclusion  All that matters is the first inference b. If chain of reasoning requires us to go to the truth of the statement – hearsay i. If the value of the statement doesn’t rely on the statement being true – no hearsay  demonstrate inconstancy  circumstantial evidence of state of mind 1. ex: I am Queen Elizabeth D. Utterance & Conduct That Are Not Hearsay 1. Words of Independent Legal Significance a. When the words are the very act i. contract ii. libel 2. Value of Evidence is that words are spoken a. fact that speaker said anything at the moment that matters i. W is testifying to an event, not the content of the words b. Effect on hearer i. offered to prove the listener was put on notice, had certain knowledge, certain emotion  all that matters is statement was made 1. and that the other party responded to it in a certain way 3. Evidence of Declarant’s State of Mind a. assertion based definition i. offered as circumstantial evidence  direct statement is hearsay ii. admissible when offered to prove knowledge iii. then-existing intention to do something SHEPARD v. US b. when reaction of person who heard statement is relevant to an issue i. truth of statement does not matter  don’t worry whether the declarant’s belief corresponds w/ any external reality c. creates a problem of limited admissibility i. court should exclude the evidence if limiting instruction will not reduce danger of unfair prejudice 4. Non-Assertive Conduct a. assertive of something other than what it is offered to prove i. dangers are minimal in absence of an intent to assert  ex: “I didn’t tell them anything about you” 1. not offered to prove the truth of the matter 2. offered to prove  guilt E. Alternative Model of Hearsay 1. Declarant Based Model a. statement made by declarant, other than while testifying at trial the value of which depends on the credibility of the declarant i. many instances of nonverbal conduct would be hearsay F. Hearsay w/in Hearsay 1. Proposed testimony will contain multiple layers of hearsay a. not admissible unless an exception exists for each layer of hearsay i. unless you crack the other layer can’t get to the inner layer G. Hearsay v. Personal Knowledge 1. if W quotes or paraphrases the out of court statement – hearsay 2. If W repeats as her own the out-of-court statement – PK problem 8 XIII. EXEMPTIONS (PARTY ADMISSIONS) A. Rule is Too Broad 1. Eight exemptions 2. five party admissions a. If the reliability has already been tested b. necessity 3. Considered not hearsay B. Simple Party Admissions 1. statement of a party offered against a party is not hearsay a. the word admit does not mean admitted 2. party cannot offer their own prior statement a. exception: Rule 106 completeness i. when party wishes to offer his half of the statement ii. only applies to writing b. Personal knowledge is not required i. party has opportunity to clarify their own statement C. Adoptive Admission 1. an admission may take the form of an express or implied adoption of someone else’s statement a. 2nd person adopts as true what 1st person said i. must hear what was said ii. must understand what was said iii. the action must be a manifestation of an adoption  ex: nodding of head b. situations where silence can constitute consent i. adopted statement by not expressing disagreement  irrelevant if he could not hear statement  irrelevant if a situation where you would not except a response 1. ex: trying to impress gang members 2. Rule 104(a) questions a. because jury cannot ignore accusations D. Vicarious Admissions (Authorized and Agency Admissions) 1. Authorized Admissions a. expressly agreed that party may make a statement concerning subject 2. Agency Admissions a. no requirement of authority to speak i. exception: statements of government agents in criminal cases b. must be a matter w/ scope of agency or employment i. speaking about something in their job c. made during existence of relationship 3. applies both to statement to the outside world and w/in organization 4. contents of statement alone are not sufficient to consider the declarant’s authority under an employment relationship a. scope of employment needs to be proved by another source E. Co-Conspirator Statements 1. statement by a co-c of a party, during the course and in furtherance of a conspiracy 2. Rule 104(a) decision a. existence is both a preliminary fact and ultimate finding i. need only determine by more likely than not standard ii. jury decides by beyond reasonable doubt b. Statement may not form entire basis for finding necessary to admission i. need other evidence 3. Statements are admissible whether the conspiracy was actually charged a. rule applies even if declarant is not a party b. declarant does not need to be produced at trial 9 4. Rational a. need i. crim consp. hard to prove w/out hearing what was said to each other 5. Preliminary Fact Requirements a. must be a consp. b. declarant must have been a member of consp c. state must have been made while cons. was in existence d. must have been made in furtherance of the consp. XIV. EXEMPTIONS (Prior Statements of W) A. Preliminary Requirements 1. Must testify @ trial 2. Must be subject to X-examination B. Prior Inconsistent Statements 1. Substantive Use: a.  will seek to use it to prove facts of case i. Statement inconsistent w/ W testimony @ trial ii. given under oath 2. Impeach W credibility a. sufficient to know W spoke inconsistently b. not hearsay when offered for this limited purpose C. Prior Consistent Statement 1. consistent w/ testimony 2. offered to rebut an express or implied charge of recent fabrication a. must have been made before alleged fabrication D. Prior Identification 1. shortly after perceiving , W id’s the person a. much more reliable b. must be made after perceiving the person 2. Does not require the W to testify about the ID a. only has to testify at trial b. someone else may testify about the ID i. must have PK of statement  does not need to be present at event 3. must be a specific person a. descriptions about persons appearances not admissible 4. all types of fair procedures acceptable a. does not need to be formal procedure

XV.EXCEPTIONS TO HEARSAY: DECLARANT AVAILABLE A. Present Sense Impression (PSI) 1. Elements a. describing or explaining condition i. while perceiving condition OR ii. immediately after  no time for reflection 2. Memory is not an issue 3. usually made to another person a. but no requirement that another person be there i. can be made over phone  CA: would not qualify –rules are narrower 4. Cannot be used to circumvent expert testimony a. note: experts usually have to render opinions after thinking about it B. Excited Utterances 1. Elements

10 a. must be a startling event/condition b. statement must relate to startling event/condition c. made while under stress of the condition i. cannot have time to reflect  if statement is response to question – likely enough time passed to reflect ii. less time restrictive than PSI  ex: emerging from coma – still under stress of event d. Some statements qualify as both PSI and excited utterances 2. Determined by RULE 104(a) C. Statement of Declarant’s Then Existing State of Mind 1. We allow circumstantial evidence of state of mind, therefore allow statement’s that directly assert declarant’s state of mind a. necessity i. Example  I am Queen Caroline – not hearsay; cir. evidence of SoM  I believe I am Queen- hearsay, exception – direct assertion of SoM 2. Elements a. must be then-existing state of mind i. state of mind includes:  physical sensations 1. intent, plant, motive, design, mental feeling  intentions – plans desires HILLMON 1. The letters in question were competent not as narrative of fact, nor as proof that he actually went but as evidence that he had the intention of going ii. mental state existing at time of statement  present state of mind about future is admissible  backwards looking statement not admissible 1. admissible: “I hate X” 2. not admissible: “Yesterday, I really hated X” b. excludes a statement of memory or belief to prove the fact remembered or believed i. Shepherd: the SoM exception does not apply to statements of memory or belief about past actions or events  ex: “I am scared b/c  threatened to hurt me” ii. may be admitted if it relates to the declarant’s will 3. 3rd Party Intentions a. Courts Split i. statements of an intention to do something in the future that involve a 3rd party should not be admitted to show the 3rd party conduct  does not justify permitting statements of 1 persons SoM to prove the conduct of another person ii. Some courts allow statement  somewhat probative of 3rd party conduct D. Statement for Purpose of Medical Treatment 1. Rational: a. if you go to the Dr. you want to tell them what is wrong i. reliability is better when made in order to get a medical treatment 2. Elements a. made for purpose of obtaining diagnosis i. does not need to be to a person who is medically trained  as long as made for purpose of medical help ii. Does not have to concern one’s own medical condition iii. Collateral Facts 11  might be admissible if the nature of even is reasonably pertinent to the medical diagnosis 3. Statement of medical diagnosis is not admissible a. circumvent testimony of expert E. Recorded Recollection 803(5) 1. Elements a. concern a matter about which W once had PK, but now does not i. W must suffer some impairment of memory need not be total  insufficient recollection to enable W to testify fully & accurately b. memo or record i. tape recording probably admissible ? c. made the document or adopted it d. when matter was fresh in mind e. accurately reflected what W knew i. W testifying must have PK 2. Substitute for oral testimony a. may be read into evidence b. may not be received as an exhibit i. exception: unless offered by an adverse party 3. Necessary to show the item used to the other side a. may take the W on voir dire examine the evidence issue 4. Must establish all preliminary facts a. preponderance of evidence RULE 104(a) 5. Recollection Refreshed a. Distinguished i. trying to make W remember something ii. not a rule of evidence b. no limits how you can do it i. document, song, even suggest what memory might be c. Limits i. memory exhausted ii. W says memory actually refreshed iii. Inspection  adversary entitled to inspect the refreshing document F. Business &Public Records 1. Records of Regularly Conducted Activity a. Assumes records are sufficient reliable to admit 2. Elements a. memo, report, or data compilation in any form i. must be a writing b. of acts, events, conditions, opinions or diagnoses i. if medical diagnosis & written: will be admissible under this rule c. made at or near the time i. mundane/complicated made quicker to event d. made by or from person w/ knowledge i. each person must be acting under business duty ii. can include multiple levels of hearsay  does not require author to have PK e. kept in the course of regularly conducted business i. type of transaction regularly engaged in ii. motive to be accurate  can’t stay in business long w/ out accurate records iii. preparing for litigation: courts are split  has business purpose in addition to use in litigation

12  may be questioned that cir. surrounding creation indicate lack of trustworthiness f. Regular practice of that business to make the memo, reports, record i. ability to be accurate  establishes business had op. to develop reliable procedures g. shown by test. of custodian or other qualified W i. does not require that author of record testify  as long as familiar w/ business and record practices ii. can be self-authenticated iii. does not always require W to lay foundation iv. can be by certification h. unless source of info or method/cirm of prep. indicate a lack of trustworthiness i. may still refuse to admit record  opponents burden to show i. Business includes: i. intuition, assoc. profession, occupation, non-profit and calling of every kind  includes police records ii. does not include personal checking account G. Public Records & Reports 1. Exception for public records and reports a. some overlap w/ b/c public agency is also a business 2. 803(8)(A) allows for admission w/out limitation of public records setting forth the actives of public officers or agencies a. internal workings – payroll, personnel file, purchase receipts 3. 803(8)(B) written records of observations are admissible if: a. made in the line of duty AND b. duty to report the matter observed i. in a criminal case a police report is not admissible against    can use it offensively ii. narrow exception mean to exclude evidence  maj. opinion: b/c there is a specific rule excluding, not going to allow it to be admitted under any other exception c. Routine Observations i. US v. GRADY: routine, non-adversarial observations that are incorporated in police records are not excluded  routine thing, little reason to be inaccurate, not what drafters worried about 4. 803(8)(c) factual finding resulting from an investigation a. may not be used against criminal  i. must give personal testimony  value of confrontation 5. Not equivalent to “business duty” a. if police incorporate statement from W – the report based on that part of the statement is still admissible in a civil action H. Absence of Entry in Public Records 1. Business & public records relevant b/c of what is not contained a. absence of entry as evidence of the non-occurrence of the event i. hearsay: b/c it is being offered to prove what is asserts  event did not occur

XVI. EXCEPTIONS TO HEARSAY : UNAVAILABILITY OF DECLARANT REQUIRED A. Definition of Unavailability 1. asserts privilege a. testimony that might subject the declarant to criminal sanctions 13 i. immunity – destroys self-incriminating privilege 2. persist in refusing to testify despite court order 3. testifies to lack of memory a. does not remember subject b. does not remember sufficient detail to make testimony useful i. declarant must testify to lack of knowledge  makes her unavailable to testify, but she is still considered subjected to cross-examination  You are subject to cross if you take the W stand and willing answer questions 4. death or then existing physical or mental illness a. not well enough to go home from hosp. not well enough to test. 5. absent from hearing and proponent has been unable to procure declarant a. requires proponent to demonstrate reasonable means were used to locate i. forwarding address, family, friends, work 6. A declarant is not unavailable if due to wrongdoing of proponent of statement for purpose of preventing W from testifying 7. To be determined under RULE 104(a) B. Former Testimony 1. Exception for former testimony given in an earlier proceeding a. rational: it has already been tested b. use transcripts i. hearsay – but multiple exceptions apply c. or first hand observer may orally recount testimony 2. Must be a party to earlier case a. Criminal Case: must be a party b. Civil Case: can be a party or predecessor in interest (PiI) i. similar motive makes the person a PiI 3. Requirements a. Given as a W @ another hearing, deposition, proceeding i. need not be a trial ii. need not have been made in same action b. The party (PiI) against whom the prior testimony is now offered must have had an opportunity to develop the testimony i. by direct cross or redirect  does not guarantee a successful cross – only an opp.  does not have to cross-only had to have opp. ii. grand jury testimony is not subject to cross   never had oppr. to develop cross – former test. can’t apply  Pros. can’t use either 1. motive is different c. Must have had similar motive i. factual motive  stakes do not need to be same ii. can go from civil to criminal iii. examples:  multiple W in first trial – not as much effort to fully cross  different defense 1. ex: vicarious liability a. defense might be so different former testimony exception not available C. Dying Declaration 1. Elements a. Made while believing that the Declarant’s death was imminent 14 i. future plans undercut imminent death belief  might count as statement of then-existing state of mind b. concerning the cause of circumstances of what the declarant believed to be impending death 2. Only applies to civil actions and homicide prosecutions 3. No requirement that  actually died a. can be unavailable for some other reason 4. RULE (104)(a) a. statement itself can lay the foundation for the statements basis D. Statement Against Interest 1. statement which at time of making so far contrary to the declarant’s pecuniary or proprietary interest a. must be @ time of making against interest b. WILLIAMSON: only those words that are against the interest of the declarant come in i. only the parts that are truly against interest are reliable  parts that tend to minimize own involvement in crime are not likely to come in 2. or tended to subject the declarant to civil or criminal liability 3. that a reasonable person would not have the statement unless believing it to be true 4. a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate trustworthiness a.  has the burden to bring forth corroborating evidence E. Forfeiture By Wrongdoing 1. Rational: a. acts cause him to loose protection of hearsay rile i. loose of rights by ones behavior 2. Elements a. Exception for a statement offered against a party that has engaged or acquiesced in wrongdoing b. that was intended to and did procure the unavailability of the declarant as W 3. Test: A  may be deemed to have forfeited his confrontation right is a preponderance of the evidence establishes one of the following circumstances a. he participated directly in planning or procuring the declarant’s unavailability b. the wrongful procurement was in furtherance, w/in the scope and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy i. CHERRY: if conspiracy is over, and it’s a new conspiracy and  is not involved, exception does not apply

XVII. RESIDUAL EXCEPTION A. Exception to pick up needed, trustworthy evidence that happens not to fall w/in any of the recognized exceptions B. Five Requirements 1. Circumstantial guarantees of trustworthiness a. equivalent to those inherent in other recognized exceptions 2. must be offered as a Material Fact 3. more probative on the point for which it is offered than any other evidence which the proponent can procure though reasonable efforts a. usually only successful where declarant is unavailable b. must be the best evidence available 4. interests o justice a. consistent w/ general principle of the rules 5. notice a. sufficiently in advance of trial or hearing to provide fair opp. to meet it

15 b. include the particulars of the statement i. including name and address C. Near Miss Problem 1. Whether Residual exception available when evidence comes very close to matching the requirement for a recognized exception a. Against: policy decision – unless requirement satisfied evidence should not be admitted i. residual exception is meant for exception and unanticipated situations b. For Use: that fact is it not covered by 803 or 084 is not sufficient to conclude that in all instances evidence must be excluded 2. Grand Jury Testimony: a. Former test. exception does not apply b/c opponent did not have opp. to cross examine i. courts take different views  narrow: not going to allow it in  expansive: will allow it in if it meet other prelim req.

XVIII. MISCELLANEOUS EXCEPTIONS A. Availability of Declarant Immaterial 1. Statements made in ancient documents a. statements in doc. over 20 year b. authentication has been established 2. Learned Treatises a. allows treatises to be admitted w/ expert witness i. you get both the expert testimony and the treatise 3. Reputation of character a. broad exception i. hearsay – b/c out of court statement by hard to define group of people  only when character rules allow the exception 4. Judgment of Previous Conviction a. record of conviction very reliable i. person must have been found guilty beyond a reasonable doubt B. REMEMBER: just b/c hearsay exception exists, doesn’t mean it is automatically admissible

XIX. CONFRONTATION CLAUSE A. Sixth Amendment 1. In all criminal prosecutions the accused shall enjoy the right to be confronted w/ the witnesses against him 2. Even if the rules of evidence allow a statement to come in the constitution would not a. hearsay can only come in against a criminal  if it satisfies the rule of evidence AND does not infringe on the rights guaranteed by const. 3. Policy a. fairness i. not just about accuracy b. perceptions of justice/injustice c. value of confrontation i. people should not be sentenced to prison on evidence they could not fact ii. guarantees criminal right to be confronted w/ W against him  wished to prevent abuses like the trial of Sir Walter Raleigh B. OLD RULE OHIO v. ROBERTS 1. 2-prong approach for when hearsay ay be admitted a. Witness Unavailability i. must either produce the declarant @ trial for cross-examination b. Reliability i. firmly rooted hearsay exception OR ii. particularized guarantees of trustworthiness

16  arising out of specific facts surrounding the statement C. MODERN APPROACH CRAWFORD 1. If statement is testimonial it may not be admitted UNLESS a. declarant present and available for cross-exam OR b. Unavailable AND prior opportunity to cross examine 2. Testimonial a. preliminary hearings, former trial b. grand jury i. in inadmissible unless they produce declarant  W is not subject to cross c. police interrogations i. exception: statements are non-testimonial when made in course of police interrogation under circumstances objectively indicating primary purpose is to meet ongoing emergency DAVIS ii. not designed to establish or prove past- but to describe current circumstances  911 Call: non-testimonial (present sense impression) but when operation asked other question it turned into an investigation  backward looking is testimonial HAMMOND 3. If statement is non-testimonial CC does not apply DAVIS

D. Constitutional Limits on the Exclusion of Hearsay 1. Traditional Rules of Evidence may violate  rights if they have the effect of preventing him from presenting important and reliable evidence a. criminal defendant must be permitted to offer evidence that would be excluded under the Rules if it violates due process i. doesn’t happen that often

XX.CHARACTER EVIDENCE A. Generally 1. FRE 404(a): Evidence of a person’s character is not admissible to prove that the person acted in conformity with that character on a given occasion a. Def: something internal to the person i. not necessarily personality 2. Low Predicative Value of Character Evidence a. inferential error prejudice: i. jury might overvalue assumption that people have stable traits b. nullification prejudice: i. occurs when jurors convict a person not for what she has done on charged occasion, but for having a bad character

B. Exceptions: Character evidence can be used: 1. Character at issue: when character is an essential element a. negligent entrustment, libel, entrapment i. substantive law creates a claim that you have to be able to prove character because it is an essential element ii. can use reputation, specific acts, opinion evidence 2. as circumstantial evidence of how a person acts a. usually not permitted – but there are a number of exceptions 3. How person acts on W stand

XXI. EXCEPTIONS to 404(a) A. Evidence of Criminal  Good Character

17 1. FRE 404(a)(1): evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same a. Must be relevant to the crime charged i. pertinent trait b. may only show his good character 2. Rational: no prejudice to  a. “mercy rule” 3. Rebuttal by Pros. a. if  “opens the door” Pros can rebut by showing bad character b. Two means of rebuttal i. Pros. may put on W who say character is bad ii. Pros. may x-exam Defense W’s about specific instances of bad conduct  Pros. must have good faith belief incident actually occurred MICHELSON B. Evidence of Character of Victim 1. FRE 404(a)(2): Crim.  can offer evidence of a pertinent trait of character of V a. allows  to introduce evidence that V had a violent character 2. Rebuttal by Pros.: once  opens the door a. pros. can show V character for peacefulness i. X-examining  reputation W ii. calling it own W to testify V’s character b. Pros. can offer evid. of that  has the same trait i. pros. may be the first to offer evidence of the  character 3.  Rebuttal a.  is entitled to cross any character Pros. calls b.  may use his own W C. Special rule for Homicide Prosecutions 1. Where  claims that V was 1st aggressor a. does not have to be character evidence i. can use eyewitness testimony 2. Pros. may offer evidence of the V’s character for peacefulness to rebut any evidence offered by  to prove V was first aggressor a. only instance were the pros. may be the 1st party to offer evidence of any person’s character D. Special rules for Rape and Sexual Assault 1. FRE 413-415:  charged w/ rape char. is open to attack a. Pros. permitted to show past sex crimes offered to prove  guilt in this case i. applies to children and adults  not to spousal abuse ii. applies to civil & criminal b. Apply only to specific instances of conduct i. conviction is not necessary c. Evidence may still be excluded under 403 E. Rape Shield Laws 1. FRE 412: Generally: can’t offered character evidence to prove V had sexual predisposition or engaged in other sexual behavior 2. Exceptions in Criminal Cases a. evid. of spec. instances of the V’s sexual behavior is admissible to prove that person other than V was source of semen, injury or other physical evd. b. evid. of spec. V’s sexual behavior w/ the accused is admissible if offered by  prove consent (or by pros.) i. rule allows  to prove she consented on other occasions w/ him  prevents  from introducing evidence of V past sexual behavior w/ persons other than himself even when offered on issue of consent 18 c. Evid that if excluded would viol. D’s constitutional rights i. looking for situations w/ high probative value ii. OLDEN v. KY: the exposure of a W motivation in testifying is a proper and important function of the const. protected right of X-exam 3. Exceptions in Civil Cases a. Evid. of V’s sexual character is only admissible ifV placed her own reputation in controversy i. is otherwise admissible under these rules ii. Probative value substantially outweighs the danger of harm to any V and of unfair prej. to either party  opposite of FRE 403 standard 4. Procedural Requirements to let in evid: a. notice b. In camera hearing—can’t bring up evid. in front of jury F. Methods of Proving Character FRE 405 1. reputation & opinion evidence: applies to all sits. character use allowed a. reputation: any type of comm.. w/ substantial connection b. Opinion: must know the  sufficiently well i. Except: under rape shield statutes 2. specific acts: inquiry is allowed into specific acts on X-exam once  opens the door to his own character, or to V’s character a. pros. must rebut W testimony on X-exam of same W to use spec. instances i. Pros. can call new W but wouldn’t be able to use Spec. instances evidence  spec. ins. may only be brought out by intrinsic evidence b. re-direct by  i. Rule does not include  uncertain whether it can include it c. X-exam by : may inquire into specific instances d. always allowed when trait is essential element of claim/charge/defense XXII. OTHER CRIMES, WRONGS, ACTS A. Uncharged Misconduct Evidence 1. evidence that is not the subject of charge or case as hand 2. applies to both civil and criminal 3. Must be a crime or wrong a. there does not need to be a conviction for the crime B. General Principle: FRE 404(b) 1. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith 2. Exception: Other crimes evidence may be introduced for other purposes a. motive i. somewhat more likely that someone w/ a motive committed the crime ii. human tendency b. opportunity c. intent d. preparation e. plan i. one w/ a plan is more likely to follow up w/ the latest act ii. goes to the existence of criminal intent iii. different from motive b/c we don’t care why f. knowledge g. MO i. the acts he does identifies him ii. specific, unusual way of committing crime iii. tend to think when another one occurs it was him 19  must be very distinctive 3. Pros, shall provide reasonable notice in advance of trial a. or during trial if good cause shown 4. Conduct which forms part of matter at issue is not covered by Rule 404(b) C. Degree of Similarity 1. Degree of similarity b/w charged & uncharged conduct varies according to cir. & theory a. MO: cir. are so similar as to represent a sort of fingerprint of perp. i. similarities must be virtually identical in key ways b. Plan: two ways to think about it i. Common Plan:  might not require as much similarity  ex:  participates in bank robbery and kills the other participants in different ways. Uncharged crimes goes to evidence of a plan.

ii. Linked Plan: developed and carried out over period of time   does a series of act which are part of plan  great similarity  ex: guy robs 10 banks in same city in last 2 years 1. guy has plan to rob as many banks in the city as he can c. Motive: may need no similarity i. it is the conduct that forms the matter @ issue ii. ex: parents leave will,  kills two siblings, on trial for 3rd  the fact the killings alone shows  is more likely to have killed the V in the charged crime 2. Doctrine of Chances a. Repetition of similar unusual events over time b. more similar more compelling case for application of doctrine c. considerers a series of act or events as a group i. number of losses suffered exceeds ordinary incidence ii. makes it possible for jury to conclude that act was by intention, rather than inadvertence ROBINS 3. If not enough similarities the chance of prejudice may be too great to justify admissibility a. low probative value b. punish  for doing uncharged crime, not for charged crime D. Procedure: The trial court must engage in 4 step inquire when determining admissibility HUDDLESTON 1. The evidence must be offered for a proper purpose a. Must map out inferences i. if anywhere along chain you must think about character it is not admissible ii. Another chain of inference that does not include the  character is potentially admissible  ex:  deposited checks over last 2 years   has a plan to embezzle  acted on plan in past  charged actions were part of plan criminal intent  used to prove knowledge and criminal intent b. if it requires a propensity inference – OK i. human nature: characteristic we all share that helps us explain how we tend to act c. NOTE: drug use i. categorizes evidence as character evidence requires to exclude it ii. drug addiction is a disease , court would have authority to admit it d. Timing of Misconduct i. timing does not matter ii. Might effect probative value, which in turn affects admissibility 20 2. The evidence must be relevant for that purpose 3. The probative value of the evidence must not be substantialy outweighed by the danger of unfair prejudice RULE 403 a. Purpose: to ensure court carefully scrutinize evidence of misconduct b. Prevent unfair prejudice while admitting relevant evidence of probative value c. But: similarity between earlier crimes makes it more probative i.  will probably fail to keep it out b/c of high probative value ii. uncharged conduct must be a heinous crime  needs to be substantial 4. Pursuant to RULE 105 court must issue a limiting instruction a. either at request of party b. or at own bequest i. might exclude all together is limiting instruction would not be understood/followed by jury E. Proof of Misconduct 1. Threshold Inquiry: whether the evidence is probative of a material issue other than character 2. Convicted of crime a. standard for admission in current case satisfied i. official record 3. Uncharged Conduct a. RULE 104(b) determines by preponderance of evidence i. evid. should be admitted if there is sufficient evidence to support a finding by the jury that the  committed the similar act  acquittal does not bar subsequent mention  acquittal only means that pros. did not persuaded jury beyond a reasonable doubt XXIII. HABIT EVIDENCE A. Rule 406 1. Evidence of a persons habit is admissible under FRE to show that he followed habit on a particular occasion a. eye witnesses are not necessary b. no limits on the type of evidence that may be offered 2. Evidence of business’ routine practice is also admissible a. ex: generally admissible to prove business always issued receipt 3. Rational a. much higher probative value B. Factors 1. habit is much more specific than character evidence a. must be a specific response to a specific situation i. cannot be a general situation  ex:  is a careful driver 2. The more regular the behavior the more likely to be habit a. first hand testimony that a person always or almost always engaged in specific cond. in specific situation i. modest number of occasions would not be sufficient  BUT: 3 out of 3 would be enough b. does not have to absence of consciousness 3. Doe not convey a moral or ethical judgment XXIV. Similar Happening Evidence A. General Rule: 1. Evid. of similar happenings have occurred in the past is admissible to prove that the event in question occurred in a particular way a. Proponent must show there is a substantial similarity i. makes it somewhat more likely than it would be w/ out the evidence

21 2. Rational a. Not evidence of propensity i. morally & ethically neutral 3. Probative Value a. Must compare PV of the evidence and the dangers of unfair prejudice i. Carries significant potential for unfair prejudice b. PV depends on similarity b/w circumstances B. Absence of Events 1. The absence of similar accidents under similar conditions has a tendency to prove lack of unreasonable danger

XXV. SUBSEQUENT REMEDIAL MEASURES FRE 407 A. Elements 1. After injury, remedial measures are taken that, if taken previously would have made the injury less likely to occur a. only excludes remedial conduct undertaken after accident at issue in this case 2. Is not admissible to prove negligence, defect, or lack of warning a. Limited exclusionary principle i. Applies only when evid. is offered to prove fault AND ii. Relevance depends on inference that RM stands as actors implied recognition of fault b. Applies regardless of theory supporting liability 3. Does not require exclusion of evidence of subsequent measures when offered for another purpose a. Ownership b. control c. feasibility of precautionary measures d. impeachment B. Rational 1. policy rational: might frustrate tort law a. tort law: encourages people to take steps to avoid accidents i. might discourage people from making improvements ii. prevent people for being punished for doing the right thing C. Subsequent Remedial Measure Defined 1. Change in policy 2. self-critical analysis 3. firing or reassigning 4. recall letters 5. change in operating Instructions D. Issue in Controversy 1. Party is allowed to intro. evid. of subsequent remedial measures to prove feasibility of precautionary measures if issue is in controversy a. Defense claims that it is not feasible to change the design b. Courts have not settled on single definition of feasible 2. Narrow Approach: a. Feasible means possible i. ∆ testifies that the measures were not physically, technologically, or economically possible  ex: “best possible way” – feasibility is controverted 3. Middle Ground a. Tuer v. McDonald: Just saying “its safe” does not make feasibility controverted i. What you would expect a ∆ to say 4. Wide Approach a. Def. testifies that on balance it was the better practice i. Cost/benefit – worse than the alternative 22 b. Broader: Less effect the rule has i. Feasibility would be contorverted in almost any sit. E. Impeachment by contradiction 1. subsequent conduct can be used to impeach W’s testimony 2. closer ∆ gets to saying “this was the best way” more likely court should allow evidence of RM in a. ∆ is making a strong claim there was no better way to do something F. CA Products Liability 1. Evidence of sub. remedial measures allowed

XXVI. COMPROMISE & PAYMENT OF MEDICAL & SIMILAR EXPENSES A. FRE 408 Compromise & Offers to Compromise 1. Generally: a. Rule forbids party to present evid. of efforts to compromise to prove liability i. Settlements offers ii. Conduct or statements in course of compromise discussion  BUT: a release does not really look like a compromise 2. Rational: a. Low Probative Value i. Actors desire to avoid time and cost ii. Bad publicity b. Fairness c. Inferential Error i. Jury will overvalue comp. d. Promote settlements 3. Elements a. Applies to either party i. Not limited to parties at trial  Ex: evid. that previous party settled a claim is excluded if offered to prove liability for claim, it validity, or proper amount b. Bona fide effort to compromise claim that is disputed as to either validity or amount i. if  claims responsibility – no dispute ii. Includes statement of fact  Even if otherwise admissible at party admission iii. Must be good faith effort  is amount so minimal there is no good faith effort? c. Exclusion only applies if offered to prove liability of claim or amount i. Relevant for other purposes court may admit it  Proving bias or prejudice of W  Negating a contention of undue delay  Proving an effort to obstruct a criminal investigation 1. ex: offering compromise in order to make criminal investigation disappear  recovery/discharge of debt 4. Biased Witnesses a. In any sit. where compr. has happened that is not disclosed to jury, would not give jury full picture of motivation compr. ought to be disclosed i. ex: Mary Carter agreement: ii.  agrees w/  to settle case but remains a party and retains a finical stake in the outcome of the action against remaining   courts consider it an agreement that ought to be disclosed b. jury should possess the tools needed to evaluate the credibility of settling  c. Court has authority to exclude even if it has some tendency to show W bias 5. Impeachment 23 a. May not be used to impeach b. Amended FRE make it clear you cannot use prior statement made during efforts to compromise to impeach W B. Payment of Medical & Similar Expenses 1. payment of medical expenses is excluded when offered on the issue of parties liability for the accident a. includes: medical, hospital, calling ambulance, ride to hospital, etc. i. must be closely related to medical expenses 2. If offered for any other purpose the rule does not apply 3. Applies: a. Even if no dispute @ moment b. when person making offer to pay was not involved in accident i. Or even a party to suit c. conduct need not occur immediately following accident d. no personal knowledge required of underlying event i. ex: does not have to witness spill 4. Compare w/Compromise a. Unlike compromise only the fact of payment is excluded i. other admissions of fact are not excluded b. Unlike compromise excludes offers of payments even in absence of disputed claim 5. Cal. Evid. Code a. Everything is excluded except party admission i. includes apology

XXVII. PLEA EVIDENCE A. Un-withdrawn Guilty Plea 1. constitutes an admission 2. high probative value 3. May be used against pleader in latter action B. plea discussions which do not result in plea of guilty 1. FRE excludes any Statement made in course of discussion a. must be made in presence of prosecuting attorney i. police statements are not protected b. excludes guilty plea & factual admissions c. equally admissible in civil proceeding C. withdrawn guilty plea 1. excludes a plea of guilty that is entered and later w/ drawn 2. applies also to statements made at hearing to enter plea D. Plea of Nolo Contrendre 1. def: I will not contest it 2. gov. gives up right to use the plea against the  in any subsequent proceedings a. in later case can offer evidence of the judgment E. Exceptions to Rule 1. “Completeness” Principle a.  in a proceeding where another statement made in course of same plea is introduced, the statement in fairness ought to be considered contemporaneously w/ it i. prevent  from taking advantage by introducing statement this is exculpatory only when taken out of context  does not need to be in writing only 2.  Later Prosecuted for Perjury a. gov. believes  testified falsely at plea hearing and charges  w/ perjury 3. BUT No exception for Impeachment Use F. Waiver of Rule’s Protections

24 1. An agreement to waive the exclusionary provision of the plea statement is valid and enforceable MEZZANATO a. No limit to waiver unless i. affirmative indication agreement was entered into unknowingly or involuntarily

XXVIII. EVIDENCE OF LIABILITY INSURANCE A. Evidence that a person carried or did not carry liability insurance is not admissible on the issue of whether he acted negligently 1. Rational a. no relationship to how carefully we drive b. no relevancy in states that require it c. encourage people to get insurance 2. Limited Exclusionary Principle a. Not excluded when offered for other relevant different purposes i. agency ii. ownership iii. bais  ex: doctor gets 90% of cases from insurance company 1. but not owning stock on company b. Judgment call under 403 B. Voir Dire of Jurors 1. allow questions concerning insurance companies 2. proper even when  is not insured 3. very hard to voir dire w/ out causing jurors to suspect liability insurance

XXIX. MODE AND ORDER OF INTERROGATION AND PRESENTATION A. Control by Court 1. over the mode and order of interrogating W in order to: a. protect W from harassment & embarrassment b. avoid needless consumption of time c. make interrogation effective for ascertaining the truth 2. Common Objections a. ambiguous: unclear what the facts seek to reveal b. confusing: may cause the jury to misconstrue its significance c. misleading: mischaracterizes earlier received evidence OR i. in some other manner tricks the W and the jury into assuming a fact that has not been proven d. assumes facts not in evidence: invents facts that are not supported by any admitted evidence i. goes beyond merely mischaracterizing prior evidence e. argumentative: suggestive w/ out evidentiary support and may mislead f. cumulative: goes to facts well established by evidence already admitted i. issue: whether the probable benefits of further questioning do not justify the time that further questioning will consume g. asked & answered: simply repeating a question to which there has already been an adequate response i. BUT: reluctant to sustain objection when question was A&A by opposing party  permit if reasonable chance new evidence revealed h. narrative: open ended Q that invites W to give lengthy narrative response B. Scope of X-exam 1. Nature of X-exam a. Should be limited to the subject matter of the direct examination 25 b. matters affecting credibility of W c. may in its discretion permit inquiry additional matters i. also applies to redirect 2. 2 Rules of Thumb re: scope a. relates to a matter that the W expressly testified to on direct Or b. relates to a matter that tends to disprove or clarify facts which reasonably may be inferred or implied by W express testimony on direct i. scope is interpreted broadly  can be a long chain of inferences ii. objections will normally be overruled C. Leading Questions 1. Definition: a. Suggests answers asking party wants to hear i. ex: the light was green, wasn’t it? b. No mechanical formula i. “didn’t” questions – normally leading ii. more specific, more likely to be leading iii. almost always seek a yes answer 2. Should not be used on direct a. EXCEPTION: unfriendly W i. opposing party ii. W biased towards opposing party iii. hostile W 3. Are usually permitted during X a. in X the W is generally not friendly so little danger W will adopt the questions suggestions as her own b. BUT: if W is biased towards party probably can’t use leading Q’s 4. if Q is so leading its argumentative, usually not allowed a. ex: you don’t really expect us to believe the light was green do you?

XXX. WITNESS IMPEACHMENT A. Credibility of W may be attacked by any party, including party calling W 1. Overrules voucher rule 2. Exception: cannot call W just to impeach that W and in the course of that impeachment get evidence before the jury that the jury wouldn’t otherwise be able to hear US v. HOGAN a. The greater the amount of surprise the more likely the  is allowed to impeach the W b. suspecting W to change testimony is not enough to be inadmissible i. must know B. Methods not covered by specific common law rules 1. No perquisites required a. opp. to perceive i. cast doubt on W by positioning, view, obstructions b. capacity to perceive i. cast doubt on ability of W to use her 5 sense ii. proper to reveal that W was intoxicated or under the influence  use at time of relevant observation that matters c. capacity to recollect i. Admissible:  elicit W own testimony  elicit w2 opinion testimony ii. Inadmissible:  W reputation for poor memory is hearsay 1. not a character trait  cannot testify to W’s out of court statement of bad memory 26 1. no state of mind exception  can be admitted by lay or expert testimony 1. needs to show of a kind relied on by expert in the field d. Appearance & Status Factors e. Demeanor f. Plausibility of W testimony XXXI. Witness Character for T/UT A. Only a rule about impeachment of character for truthfulness 1. R.404 doesn’t cover impeachment of W through char. evid a. conveys no all encompassing generalization about W truthfulness i. only about the specific testimony b. not about acting in propensity with their character B. Rule 608(a): credibility of a W may be attacked or supported by opinion or reputation subject to limitations: 1. evidence may only refer to character for truthfulness of untruthfulness a. opinion of general moral character not admissible b. person giving opinion must have had sufficient exposure to W to form reliable opinions i. need broad sampling of people c. Extrinsic evidence permissible i. places no limit on the source of opinion or reputation  expert, other W, document 2. evidence of truthful character is admissible only after char. of W for T has been attacked a. not every attack on credibility provides basis for admission of character of T i. not admissible when credibility is attacked by methods not covered by specific rule  ex: opp. to perceive, memory lapse, honestly mistaken 3. Can still be excluded subj. to Rule 403 C. Specific instances conduct may not be proved by extrinsic evidence 1. Extrinsic evidence: does not come from the mouth of a W on the stand currently a. if W denies the specific instance stuck w/ the answer b. even evidence of  own testimony from prior proceeding is extrinsic 2. Cannot use this rule if it is a criminal conviction a. looking at acts of dishonesty 3. Discretion to admit after char. for T/UT has been attacked may be used if: a. concerning the W character T/UT i. on cross examination ii. not extrinsic evidence b. concerning char. for T/UT of another W as to which character W has already testified i. on cross examination ii. while it is extrinsic, may still be admitted for purpose of this rule c. may still exclude under 403 XXXII. Conviction of a Crime A. Impeaching a character of a W for T/UT using a criminal conviction 1. extrinsic evidence admissible a. only talking about convictions i. evidence of arrest is Rule 608 (no extrinsic evidence) B. Crimes That Involve Dishonesty, or False Statement 1. Perjury, fraud a. requires an act of lying 2. RULE: admissible. a. regardless of type of W b. no discretion to exclude i. cannot exclude under 403

27 C. Other crimes punishable by death or imprisonment in excess of a year 1. Felonies: robbery, murder a. must be punishable – doesn’t matter if  wasn’t actually punished in prison 2. Criminal : a. RULE: shall be admitted if probative value outweighs danger of unfair prejudice i. Reverse 403 standard ii. burden in on party impeaching to show prob. value is greater than prejudice iii. heavy standard slanted in favor of exclusion 3. Every other W: a. Admissible unless Rule 403 keeps it out b. Burden on party opposing impeachment i. almost always admissible D. Misdemeanors that do not involve dishonesty or false statement 1. Inadmissible E. Old Conviction 1. Inadmissible if more than 10 years since conviction, or release from confinement, whichever is later a. Proponent must show probative value outweighs danger of unfair prejudice i. Reverse 403 ii. heavily slanted in favor of exclusion F. Effect of Pardon, annulment, or certificate of rehabilitation 1. Inadmissible if pardon was granted 2. so long as felon was not convicted of subsequent felony G. Juvenile Adjudication 1. court has discretion to admit in criminal case against a W other than the accused 2. must otherwise be admissible under 609 3. necessary for fait determination of issue of guilt or innocence H. Pendancy of Appeal 1. establishing the pendancy of an appeal does not make the evidence of a conviction inadmissible a. presumption of correctness attaches to judicial proceedings 2. Preserving the Right To Appeal a. RULE:  must testify, must object and then you have preserved it for appeal i. LUCE v. US: requires that the  testify in court to determine the impact any erroneous impeachment may have had in light of the record as a whole I. Religious Beliefs or Opinions 1. Makes offered for certain inadmissible evidence of a W beliefs/opinions on matters of religion when offered for certain purposes pertaining to W credibility a. beliefs that are unconventional are included w/in prohibition 2. 2 Ways to unfairly prejudice a. impair credibility by revealing opinions likely to offend the religious beliefs b. enhances credibility by revealing the W adheres to beliefs revered by jury 3. Does not exclude evidence when offered for another purpose a. even if it effects credibility in some other way i. EX: Bias

XXXIII. BIAS, MOTIVE AND INTEREST A. No specific Rule of Evidence Regulating Impeachment by BMI 1. Only limits are: a. Relevancy are Rule 403: i. look at whether evid. has a tendency to show bias, if so it will be admissible unless unfair prejudice substantially outweighs PV b. Rule 611 i. Mode and Order of Interrogation and Presentation of W ii. effective for truth, avoid waste of time & protect W from harassment

28 2. US v. ABEL: recognizes the omission of express treatment for bias, the Rules contemplate use of Common Law grounds for impeachment a. In areas not covered specifically by FRE, CL should continue to develop 3. Effect of Bias a. state of mind that may cause W to favor/disfavor a party i. impair perception, reliability, sincerity & narration 4. Proving Bias a. friends b. threatened w/ harm c. monetary interest d. self-interest e. immunity B. Admissibility of Bias Evidence 1. Citing Rule 613(b) some courts conclude that impeaching party must give W opp. to admit/deny bias if evidenced by prior statement a. If W denies facts extrinsic evidence is freely admissible i. thought to have greater probative value b. If W admits facts, extrinsic evidence is probably waste of time under 611 2. Court Must determine case-by-case applying Rule 403 3. No requirement of preliminary finding as long as W gets chance to explain prior inconsistent statements

XXXIV. IMPEACHMENT BY CONTRADICTION A. Generally 1. If W was wrong about something, maybe she is wrong about everything else a. 2nd W testifying casts doubts on 1st W testimony 2. No FRE evidence B. CL RULE Restricting Impeachment by Contradiction 1. A party may not impeach a W by contradiction on a collateral matter using extrinsic evidence a. evidence that is relevant of an act of consequence is not collateral i. only to show W wrong & no other purpose – collateral b. applies only to the use of extrinsic evidence to prove collateral matter i. 1st W affirmative answer to collateral matter is admissible b/c it is not extrinsic ii. if the matter is collateral and W refuses to cooperate impeaching party is stuck w/ answer iii. extrinsic evidence of non-collateral matter is admissible C. Modern Treatment of the Rule 1. Courts use authority under 403 forbid extrinsic evidence that impeaches by contradiction on a collateral matter a. complete waste of time and distracts the jury 2. Overlap w/ other impeachment methods a. the same evidence that tends to impeach by contradiction might also impeach by another means, if it does the evidence is not collateral i. EX: opp. to perceive

XXXV. PRIOR INCONSISTENT STATEMENTS A. substantive use 1. Classifies prior inconsistent statement as non-hearsay if 3 conditions met a. declarant testifies at trial or hearing i. deposition satisfies earlier hearing b. declarant is subject to X- examination i. US v. OWEN: regarded as subject to cross when placed on stand and responds willingly to questions ii. assertion of memory loss is often very result sought and can be effective in destroying force of prior statement 29  BUT: might not be a prior inconsistent statement b/c a person can be correct both when they forget something and when they remember c. made under oath subject to penalty for perjury B. Impeachment Use of PIS 1. Generally: a. not the facts the W asserted, but that the statement was actually made b. KEY: not dishonesty, but simply inconsistency c. Not hearsay when offered for this purpose i. not being offered to prove the truth of the matter asserted

2. Admissibility a. Not necessary to show the W the prior statement or to disclose it before using the statement to impeach b. Extrinsic Evidence Admissible so long as: i. W is afforded at sometime during Trial opp. to explain or deny statement ii. Opponent has chance to examine the W c. Collateral Matter i. would be waste of time to permit opponent to offer EE of unimportant inconsistency ii. Protect W from harassment C. Non-Testifying W 1. A party offers the prior statement of a person who does not testify a. hearsay exception: dying declaration 2. Prior Statement may be attacked by any evidence which would be admissible if the declarant had testified as W a. Dying Declaration “zed ran red light” may be attacked by 2nd W: “V said X ran red light” 3. Not subject to any requirement that the declarant may be afforded an opp. to deny or explain a. doesn’t matter that she can’t defend in court XXXVI. PRIOR CONSISTENT STATEMENTS A. Elements of Rule 1. declarant testifies at trial or hearing 2. subject to cross examination concerning the statement 3. offered to rebut express/ implied charge of recent fabrication/improper influence 4. Prior Consistent statement was made before alleged motive arose a. TOME v. US: when statement consistent w/ later trial testimony was made before motive arose, the statement is untainted and permits jury to infer that the consistent trial testimony also was not improperly influenced i. ex: if motive already existed statement is not admissible B. Purposes for Which Statement may be offered 1. Substantively – to prove the truth of the matter asserted 2. Credibility- to rehabilitate W a. RULE: prior consistent statement is not admissible to support credibility unless is also admissible to prove the truth of the matter asserted i. adds little to credibility but much to validity of underlying story 3. Can use extrinsic evidence

XXXVII. LAY OPINION EVIDENCE A. Testimony in the form of opinions is limited to those opinions and inferences which are: 1. rationality based on perception of the W a. must have first hand knowledge of the matter b. EX: just having smelled alcohol might allow you to conclude person is drunk, but doesn’t allow you to conclude alcoholic 2. must be helpful to the jury a. more specific description of facts – the more helpful 30 b. legal conclusions are not helpful i. the process of making inferences from the underlying facts belongs to the jury c. BUT: when W can’t really put the jury in same position W was in might be helpful to hear the conclusion in addition to the specific facts 3. can’t require expert opinion a. not bases on scientific, technical or other specialized knowledge

XXXVIII. EVIDENCE OF EXPERT OPINION A. 5 requirements Expert Testimony must meet to be admissible 1. Scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence a. Specialized knowledge must help the jury asses the meaning of evidence i. expert testimony must be relevant ii. relates to esoteric matters iii. relates to complex matters iv. confusing evidence which can be clarified by expert v. understanding w/ out expert assistance will be inaccurate or incomplete b. does not assist the jury if W does not say anything jury could figure out itself i. helps to explain, not telling jury what to conclude c. credibility: not going to let W say whether another person is telling truth 2. Must be qualified as expert by knowledge, skill, experience, training or education a. Qualify W as expert: ask W series of qns. to show expertise i. Source of expertise  Background in one of the 5 categories is sufficient  must be experienced beyond an average person 1. does not require special education  Testimony must match expertise  NOTE: interpreter of foreign langue sub. to expert qualifications ii. determined by Judge under Rule 104(a)  judges role as gatekeeper 1. other side can voir dire to challenge expertise b. Elicit Expert Opinion Testimony i. don’t have to give underlying basis, before giving opinion itself 3. Testimony must be based on sufficient facts or data a. may rely on facts of the case b. reliable opinions of other experts 4. Testimony must be product of reliable principles and methods a. History: i. Frye Test: evid. admissible only if based on principles generally accepted as valid by relevant scientific community ii. not adopted by FRE, but some states still use it  CA follows general acceptance rule iii. SC: not in FRE, not part of law b. Dabuert: W testimony is only reliable if ct. finds its based on reliable scientific method and the application of theory/method is relevant to case i. Must asses on 104(a) standard ii. Reliability looks at number of factors  whether method has been tested  whether the theory is subj. to peer review/publication  know potential error rates  existence of stds. controlling techniques operation  general acceptance 1. Doesn’t say all have to be satisfied

31 2. ex: animal studies on might t be reliable, but is not a reliable indicator its effect on humans iii. Must also be relevant  must be applicable to the fact of this case c. Kumho: applies same standard to non-scientific evidence i. daubert factors may be considered ii. up to the trial judge to determine whether particular factor is or inst sensible iii. emphasizes role of judge as gatekeeper iv. Abusive directions is the standard of review 5. W must have applies these principles and methods reliably to the facts of the case a. this deals with using the method correctly B. Basis For Expert Opinion 1. Opinion can be based on inspection, first hand knowledge of fact 2. May gain information my listening to other W’s a. Expert must rely on whatever data experts in field would rely on i. even if it is inadmissible ii. BUT: proponent disclose inadmissible facts to jury unless probative value outweighs unfair prejudice  reverse 403 standard  if opponent wants to admit evidence they can 3. eliminates requirement of hypo a. not the right to use one i. must be accurate and non-misleading questions C. Opinion on Ultimate Issues 1. opinion testimony otherwise admissible isn’t objectionable b/c it embraces an ultimate issue to be decided a. testimony must still help jury i. Note: this section applies to expert and lay b. EXCEPTIONS: some types of ultimate issues may not be subject of opinions i. how case should be decided ii. legal criteria: cannot tell jury technical term of statute  permissible if it is word used in an everyday way 2. In crim case, when mental state is ultimate issue expert can’t testify as to whether  had it or didn’t a. limiting rule that makes things inadmissible b. only applies to expert testimony c. only applies when testimony relates to whether had mental state or intent required for crime i. cannot state mental state/intentions directly  “consistent w/ intent to sell” permissible  “intended to sell” impermissible D. Disclosure of Facts underlying Expert Opinion 1. Can call expert to start up testimony by giving opinion 2. can go back in and fill in underlying data a. not required to give it beforehand 3. Expert might be required to disclose underlying facts/data on X-exam a. if argument is highly technical subject, cross examiner might be unprepared to do decent cross and in order to help truth, would need to give other side data used E. Court Appointed Experts 1. Ct. is allowed to call its own expert 2. parties can X-examine expert as though she was called by opponent a. can be impeached by either side 3. used to enhance truth finding function a. judge feels jury would not have good basis for evaluating expertise presented by parties 32 b. used more frequently b/c of ear of using experts not associated w/ either party jury might be mislead

XXXIX. PRIVILEGES A. Justifications and Costs 1. utilitarian: promotes free exchange of information a. helps to promote the relationship 2. Dignitary purpose: ppl have right to privacy in certain relationships 3. Costs a. deprives the fact finder in litigation which might have helped to reach accurate decision b. BUT: only the communications itself is privileged i. not the underlying facts B. Application 1. Wigmore’s View: only when really necessary a. relationship will not work w/out privilege i. w/out privacy people won’t confide fully ii. AND fully disclosure is essential 2. FRE: privileges governed by principles of CL a. interpreted by courts in light of reason, experience b. BUT: civil action privileges of W a decided according to state law, where state law provides a rule of decision (ERIE) 3. CA: privilege can only be created by statute C. General Principles 1. Applies during any phase a. discovery & trial b. obj. needs to be made if party indents to maintain privilege. 2. Communications privileges not the information 3. Holder of priv. is the only one who can waive it a. attorney is obligated to claim it 4. Waiver: a. Explicit i. if holder gives attorney authority, client has waived privilege b. Implicit i. Modern View: only when holder act in way that’s no reasonable to maintain priv. ii. CL: if one listens in = waiver  doesn’t matter how it was overheard  BUT: A/C secretary won’t destroy privilege 1. necessary as part of attorney’s effort to rep. client iii. CA: if one took reasonable steps to maintain privilege no waiver D. Attorney/Client Privilege 1. Generally: a. don’t have to have hired Att. for it to apply b. atty. does not need to be licensed i. as long as C believes atty. was licensed c. people whose presence necessary for obtaining legal counsel won’t destroy privilege. i. If part of rep. doesn’t matter is she no longer works there ii. But: other person would probably destroy privilege  UNLESS might have other privilege (sp.) d. not destroyed if no longer client e. privileged information must b/w within scope and attorney’s capacity as att. i. ex: social conversation, or finical matters outside scope 2. Corporations a. Old Test: Control Group 33 i. Control is when only the upper level employees have priv. ii. narrow view of priv.  if we make it too broad co. can veil secrecy around itself b. Subject Matter Test i. Concerning legal matter w/ in scope of functions are w/in privilege ii. scope or priv. depends on whether it was w/in employees job  applies regardless of position of employee c. Upjohn i. Factors on case-case basis ii. employees directed to secure legal advice and communication are w/ in scope of employees function iii. Looks like subject matter test 3. Communications Through 3rd Person a. Attorney can use dr. as a conduit for information i. dr. therapist, hypnotist b. Communications are covered w/ in privilege E. EXCEPTIONS to ATTY/CLIENT 1. Crime/Fraud a. Cannot force atty. to divulge crime/fraud b. BUT: can’t hire att. to help commit crime or fraud or cover up i. seeking illegal advice (Harh harh) ii. any communication on that basis is not covered c. Proving Communications to Assist in Fraud i. RULE 104(a): in making a determination court is not bound by the rules of evidence except w/ respect to privilege ii. ZOLIN The language of 104(a) does not prohibit the court from conducting some examination the allegedly privileged materials  Certain procedural hurdles must be met before in camera inspection  preliminary finding that there is some factual basis that could support a good faith belief , by a reasonable person that if judge did look they would show crime had been committed 1. can look at anything not privileged a. even documents in dispute 2. Communications by 2 parties claim from dead client 3. communications relevant to situations of breach of duty of att or client a. ex: malpractice claim 4. Lawyer attesting to a document a. ex: a will 5. Joint Clients a. when two clients get in dispute w/ each other b. communications b/w both clients and attorney are not privileged F. Word Product Doctrine 1. will apply where sometimes privilege doesn’t a. prevents other side from benefiting from your work 2. Not absolute a. necessity and no other way to get information b. BUT: can never get Attys. thought about litigation G. Medical Privilege 1. Views a. Wigmore view of privileges: no need for medical privilege b. CA recognizes it 2. Psy./Pt. Privilege a. Assumption: people will not tell shrinks stuff if they think they will turn it over b. FRE: fairly deep privilege, not only limited to phys.

34  social workers, etc 3. EXCEPTION: patient/litigant a. If in making a claim or defense the patient puts his physical or mental condition at issue, then any communication is no longer privileged i. even includes relevant things that occurred before accident ii. can explicitly or implicitly put medical condition at issue  even if you don’t claim a medical condition it can be relevant b. Medical privilege is pretty narrow b/c just about any time it would be asserted in a situation where it wouldn’t apply 4. Dangerous Patient a. Do not confuse Tarasoff issue w/ evidence issue i. Privileged information vs. duty to disclose dangerous communications b. CA: has separate dangerous patient privilege i. communication involving threats may not be privileged H. Clergy Privilege 1. Holder: penitent AND member of clergy 2. All religious beliefs a. could be lay minister if in tenants of church b. group settings also possible i. courts not wanting to step on church shoes c. Not going to want to dig too deep into what is religion i. tax exempt? other signs it look like one? 3. Must be seeking help from clergy in areas clergy knows about I. Spousal Privilege 1. Confidential Communications a. between to married people b. both parties are holder of privilege c. only for communications that took place during marriage i. BUT: privilege survives marriage  event can happen before marriage, but conv. occurs during 2. Adverse Testimony Privilege a. Priv. not to testify against your sp. b. Something you happen to have knowledge about i. ex: witness sp. doing something c. testifying sp. is holder  choose to testify if she wants  must be voluntary d. Applies only as long as couple is married i. meant to foster marriage – keep it stable e. does not apply to pros. of one sp. against other sp. J. MISCELLANEOUS 1. No parent/child privilege 2. If W claims a privilege, even if it doesn’t exist refusal to testify makes her unavailable a. Permits an 804 exception

XL.BURDENS A. Burdens of Proof 1. Burden of Persuasion a. party w/ burden of per. is one asserting claim i. affirmative defenses are w/ the  ii. doesn’t shift b. Amount of evid. party must offer to prevail: i. Crim: reasonable doubt ii. Civil: preponderance

35  established by substantive law 2. Burden of Production a. refers to party at a given moment who has the responsibility to offer evidence in support of its position b. offers enough evidence to survive a motion to dismiss c. must have affirmative proof i. can’t just cast doubt on other persons evidence d. Can shift during trial i.  must offer such strong evidence that no rational jury could find for the   court will grant directed verdict unless  presents evidence e. Must meet the burden by a scintilla i. evidence sufficient to support a finding B. No FRE about burdens 1. matter of CL 2. mostly substantive law

XLI. PRESUMPTIONS A. Definition: legal relationship b/w foundational facts and basic fact 1. Presumptions vs. Inferences a. Inference is always permissive b. presumption is mandatory B. Reasons for Presumptions 1. Aids adjudicative process 2. Social Policy Reason a. to encourage/discourage certain conduct C. Types of Presumptions 1. Conclusive a. doesn’t matter about truth just presumption 2. Rebuttable a. If you find foundation to be true must find X b. as long as jury believes foundation, the presumption comes into effect D. Rebutting Presumption 1.  can offer no evidence a. Presumption not rebutted 2.  can offer evid. to challenge foundational facts a. effect: jury if you found the foundation you must find X i. if not, go back to inferences 3.  can challenge existence of presumed facts a. Thayer/Wigmore: if opponent offers enough evid. to rebut presumed fact, presumption disappears i. bursting bubble theory ii. party offers enough evidence to meet burden of production, presumption disappears iii. jury is just left w/ the evidence b. Morgan/McCormick: presumption created for social policy reasons and shouldn’t be dispelled easily i. burden of persuasion shifts to other side ( has to prove his case) ii. presumption does not disappear iii. judge should instruct the jury about the presumption anyway E. Civil Actions 1. FRE: Thayer/Wigmore view probably applies 2. If state law supplies subst. rule of law, use st. law of presumption a. CA: says both are right i. creates two classes of presumptions

36 ii. lists presumptions according to each category F. Criminal Case 1. True presumption cannot operate a. inference can still operate b. jury must always have choice 2. No FRE presumption laws

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