A. the Standard of Review on Appeal

I. INTRODUCTION A. THE STANDARD OF REVIEW ON APPEAL 1. Abuse of discretion, de novo and review for plain error. Reversible error cannot generally be found in an evidentiary ruling unless the error caused harm that rendered the trial proceedings unfair. DECISIONS MADE BY JUDGE’S DISCRETION ARE VERY RARELY OVERTURNED ON APPEAL. B. RULE 105: LIMITED ADMISSIBILITY 1. Judge upon request shall instruct jury as to limited admissibility of evidence. A) If they fail to request the proper jury instruction, the court does not have to enforce any limitation on the information, and the party cannot complain on appeal. Timing of the limiting instruction is at the discretion of the court. If the danger of unfair prejudice substantially outweighs the probative value of the evidence for its admissible purpose, taking into consideration the probable effectiveness of a limiting instruction, the evidence should be excluded under Rule 403. C. RULE 106: REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS 1. When a writing or party of a writing is offered, judge may require immediate admission of other part or other writing if fairness requires. A) The writing itself need not be introduced into evidence. To meet the “fairness” standard, the other writing or recording must be relevant to he 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. US v. Soures, 736 F.2d 87 (3d Cir. 1984). II. RELEVANCE A. TYPES OF EVIDENCE 1. Real – physical, tangible evidence, or the thing itself. 2. Representative – evidence that represents another thing (diagram, chart, photograph, x-ray, etc.) 3. Testimonial – comes from witnesses by voice. B. DIRECT VS. CIRCUMSTANTIAL EVIDENCE 1. Direct – proves a fact without requiring any inferences. Direct evidence, specifically eyewitness testimony, is far less reliable that jurors and other parties often believe. 2. Circumstantial – does not itself address a fact in issue; such evidence is relevant if an inference to be drawn from it bears on the fact in issue, or establishes a causal relationship. C. CONDITIONAL RELEVANCE 1. Conditional Relevance: When the relevance of evidence depends on the existence of a separate fact, the evidence is considered to be conditionally relevant. Without a sufficient showing of a connection, the evidence is incompetent and ineligible for considerations by a jury. Rule 104(b) gives judges discretion to conditionally admit evidence so long as the evidence will be connected up at a later time by proof of the missing fact. D. RULE 401: DEFINITION OF RELEVANT EVIDENCE

of 25 Evidence 2002 1. Evidence is relevant if it tends to make a consequential fact more or less likely. A) Rule 402 and 403 create the exclusion provisions to relevant evidence. There are two implicit requirements in the relevance definition: 1) the evidence must be probative of the proposition it is offered to prove, and 2) the proposition to be proved must be one that is of consequence to the determination of the action. US v. Hall, 653 F.2d 1002, (5thCir. 1981). B) Admissions by conduct depends upon the degree of confidence from which four inferences can be drawn: 1) from the defendants behavior to flight; 2) from flight to consciousness of guilt; 3) from consciousness of guilt to consciousness of guilt concerning the crime charged; 4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. US v. Myers, 550 F.2d 1036 (5thCir. 1977). Other conduct includes threats to witnesses, attempts to bribe witnesses, refusal to provide handwriting exemplars, bad faith destruction of documentary evidence and the use of a false name. C) The occurrence of other accidents may be relevant to show the existence of a dangerous condition or defect, causation or notice to the defendant of danger in negligence or product liability cases. D) Other relevant activities include experiments and demonstrations, similar contracts or transactions, similar claims by the plaintiff and real and demonstrative evidence. Exhibiting personal injuries is permissible, but viewing of property of scene by trier of fact is typically a matter within the discretion of the court. Generally, with respect to taking a jury for a view, the disruption and confusion likely to result closely resembles that associated with taking a third grade class to a firehouse. E. RULE 402: RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE. 1. Relevant evidence is admissible unless excluded by other rule, statute or constitution: irrelevant evidence is not admissible. F. RULE 103: RULINGS ON EVIDENCE 1. Timely and specific objection or motion to strike required to preserve error in admission of evidence; offer of proof required to preserve error in exclusion. A) To determine whether the error is harmless, the court considers 1) whether erroneously admitted evidence was the preliminary evidence relied upon, 2) whether the aggrieved party was nonetheless able to present the substance of its claim, 3) the existence and usefulness of curative jury instructions, 4) the extent of jury argument based on tainted evidence, 5) whether erroneously admitted evidence was merely cumulative, and 6) whether other evidence was overwhelming. ATD Corp. v. Lydall, Inc., 159 F3d 534 (Fed.Cir.1998). B) The objection must be timely, in that it is offered as soon as the objection is known or should be known, and before the evidence is admitted. Failure to object constitutes a waiver of any objections. Any conditionally relevant evidence must be connected immediately. Objections must be specific in four parts: grounds, parts, parties and purposes. If one of these parts is missing, the objection is invalid. Why? Can bind parties to evidence they do not want, and may allow irrelevant information to be admitted. For example, if a general objection is offered without specific limitations, and the court overrules the objection, both parties are barred from objecting to specific included portions of the evidence, that, had the objection been proper, would have been excluded or admitted. C) In order to find a plain error, or an error that is not only clear in retrospect but also causes a miscarriage of justice, must meet four prerequisites: 1) an error; 2) that is clear and obvious under current law; 3) that affects the defendant’s substantial rights; and 4) that would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected. Thompkins v. Cyr, 202 F.3d 770 (5thCir. 2000). G. RULE 104: PRELIMINARY QUESTIONS 1. Judge determines most preliminary questions of admissibility and in doing so is not bound by rules of evidence except privileges. A) Subsection b liberates the judge from the rules of evidence, except privileges, in determining preliminary questions relating to admissibility. In a conditional relevance situation, the role of the judge is merely to determine whether a prima facie case has been presented, not to decide the actual issue of genuineness. Subsection b also applies to evidence of “other crimes, wrongs, or acts” offered under Rule 404(b) as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, or for another purpose. Huddleston v. US, 485 US 681 (1988). B) Preliminary facts require that the judge find a prima facie case, not to decide the actual issue of genuineness. C) In two situations subsection c makes the withdrawal of the jury a matter of right, rather than a requirement: 1) when the hearing is to determine the admissibility of a confession, and 2) when an accused is a witness on the issues and requests withdrawal of the jury.

of 25 Evidence 2002 2. Policy A) The judge generally cannot, by his own volition, offer strategic alternatives for the attorneys. There are few exceptions, such as the lawyer is not adequately protecting its client. Strategy is the lawyer’s prerogative. B) The ethical limitations on the attorneys at trial are that they must follow general ethical guidelines, avoid perjury, argue zealously, maintain client confidentiality, be diligent and prompt in representation, disclose legal authority, and avoid engagement in conduct prejudicial to access to justice. C) Stating specific grounds for an objection protects the objecting party, because if the objection is too vague, and it is sustained, it can exclude evidence the objecting party may want to have included. It also may be insufficient to preserve the issue for appeal. D) The jury determines how much weight to give to admitted evidence. E) Evidentiary foundations are the prerequisites. 3. Offer of proof A) preserves the issue for appeal, and B) tells the judge that he should reconsider whether to admit the evidence. H. RULE 403: EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION OR WASTE OF TIME. 1. Even relevant evidence is excluded if probative value substantially outweighs danger of prejudice, confusion of issues, misleading, or repetition. A) The trial court has the discretion to determine relevance, and a trial judge’s decision to admit or exclude evidence under this rule may not be reversed unless it is arbitrary and irrational. The probative value must be determined with regard to the extent to which the fact is established by other evidence, stipulation, or inference. Crime scene photos are generally admissible. B) Evidence may be excluded as confusing the issues if it would tend to distract the jury from the proper issues. C) Cases invoking the danger of misleading the jury often refer to the possibility that the jury might attach undue weight to the evidence. Is the scientific experimental evidence sufficiently similar? Can the jury distinguish between the different circumstances? Can the differences by a clear jury instruction? D) Evidence may not be excluded solely to avoid delay. E) The rule does not enumerate surprise as a ground for exclusion. Testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues. 2. Probative Value is substantially outweighed by A) Danger of unfair prejudice (1) goes beyond evidence having a strong influence on the jury, but it must be evidence which has an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one, and therefore prevents the jury from properly assessing or evaluating the evidence. To determine whether evidence is unduly prejudicial, the court must conduct a balancing test that measures whether the need for relevant evidence is considered greater than the potential harm that could result from the admission of such evidence. The undue prejudice objection is used as a last result. “Such improper grounds certainly include: generalizing a defendant’s earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged. Test: calculate probative value of an item of evidence by comparing evidentiary alternatives. (2) Old Chief v. US, 519 US 172 (1997) (A) Only favorable to stipulate to facts when an examination and cross- examination would result in the revelation of more damaging facts. Old Chief says that there are some circumstances that must be stipulated to, such as identity, if it prevents the admission of unfairly prejudicial information. B) Danger of confusion of the issues C) Danger of misleading the jury D) Considerations of undue delay E) Waste of time

of 25 Evidence 2002 F) Needless presentation of cumulative evidence G) The burden is on the opposition is to show that the probative value is substantially outweighed by the danger of unfair prejudice. 3. Similar Happenings A) Usually offered for evidence when the defendant has a pattern of behavior for which the current claim is being brought. Evidence substantially similar as the relevant case facts to support a finding is generally enough. Prior events, happenings, or occurrences often occur under widely disparate circumstances. Dissimilarities in the circumstances between the other events and the event in question diminish the worth of the evidence. Jurors may be misled or distracted by other events. Similar occurrences, happenings, and events are often excluded at trial. III. CHARACTER AND HABIT EVIDENCE A. RULE 404(A): CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS 1. Character is not admissible to prove an act consistent with character except own character put in issue by accused, or character of victim in limited circumstances, or character for truthfulness of a witness as provided in impeachment rules. 2. Character Evidence is offered A) to indirectly show that because a person has a propensity to act in a particular manner, that person more likely acted in conformity with the propensity on a specific occasion; B) to directly prove a person’s character trait when it is an element of a cause of action, claim, or defense; or C) for purposes other than to show a person’s character trait, such as to prove motive, intent, plan, common scheme, absence of mistake, or identity. 3. Propensity evidence A) shows that a person with a particular trait or disposition is more likely to have acted in conformity with that character trait on a particular occasion. It is offered to supplement direct evidence about an event or occurrence. B) While it is often relevant, it is rarely admissible because (1) character traits are not always accurate representations of people; (2) people and their character traits can change over time; (3) character evidence requires looking backward or forward from the event and can distract the trier of fact from the issue. C) The two forms of admissible propensity evidence (1) When an accused is given a special dispensation to use propensity evidence; or (2) When the character evidence can be used to impeach the credibility of a witness. D) Only reputation or opinion propensity evidence is allowed.

of 25 Evidence 2002 E) Evidence of previous conduct to prove character for that conduct to prove conduct on this occasion is not admissible. F) Must have good faith basis for asking questions. Inquiry into specific instances is allowable on cross-examination of accused or accuser only. G) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same is admissible (Rule 404(a)(1)) H) Missouri allows opinion and reputation, although some states allow opinion only. B. RULE 404(B): OTHER CRIMES, WRONGS OR ACTS 1. Other crimes/bad acts are not admissible to show character but may be admissible for other purposes (motive, intent, plan, or identity) A) Rule 404 applies to all civil cases without exception, and to most criminal cases, with the exceptions noted above. B) Character evidence is evidence having a tendency to show a person’s trait or disposition; its admissibility is carefully scrutinized because it is often highly prejudicial as well as highly probative of an issue. Evidence presented by or about a person of high moral character will be received quite differently than evidence presented by or about a person of questionable moral character. C) QUESTION: 1) is the evidence being offered to show character; 2) if it is offered to show character, for what specific purpose is it being offered; and 3) is the form of the character evidence (reputation, opinion or specific acts) proper? D) Specific acts are the most probative, but they are the most likely to unduly influence the fact- finders. E) Credibility evidence shows a witness’ character for truthfulness or veracity to accredit or discredit the witness’ testimony. C. CHARACTER IN ISSUE 1. A person’s character will be directly provable as an element of a cause of action, claim or defense A) in a criminal seduction action; B) to prove entrapment; C) in a negligent entrustment or negligent hiring action; and D) in a defamation case. E) If character is in issue, all forms of evidence may be used as proof, including reputation, opinion and specific acts. D. RULE 405: METHODS OF PROVING CHARACTER 1. Character may be proven by reputation or opinion; specific acts admissible only on cross-exam or when character is essential element (directly in issue). E. RULE 406: HABIT; ROUTINE PRACTICE

of 25 Evidence 2002 1. Habit or routine practice is admissible to prove conduct in conformity. A) Habit and routine practice evidence is admissible to prove conforming conduct; character evidence ordinarily is not. Character refers to a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness. Habit has been described as one’s regular response to a repeated specific situation, a regular practice of meeting a particular kind of situation with a specific type of conduct or semiautomatic behavior. It is restricted to non-volitional activity that occurs with invariable regularity. One could reasonably testify to having observed habitual behavior, but character is almost always a matter of opinion. B) First, is it the type of conduct that could constitute a habit? Second, if so, has sufficient evidence been produced to establish that the particular person possessed the habit? C) Two factors determine whether an act is habit: 1) the specificity of the conduct (the more particularized the conduct, the more likely it will be a habit); 2) the more a person seems to engage in the conduct without thinking about it, the more likely it will be deemed to qualify as habit. D) Courts have little difficulty concluding that repetitive, particularized conduct that does not require conscious thought is a habit. But, conduct that is less particularized and seems to involve a greater degree of conscious thought presents more difficulty for courts. E) Sufficiency includes both frequency and regularity. F) Evidence of the customary practice of a business is admissible to prove that the business acted in accordance with that practice on a particular occasion, and is often considered even more probative than individual habit evidence. Common law allowed evidence of routine practice only if it corroborated or was corroborated by evidence that the routine had been followed in the particular case (Rule 406 does not). G) Evidence of general business customs or industry standards is admissible as bearing on the standard of care to which a particular business enterprise is held and on whether a product is unreasonably dangerous in a strict liability case. Custom is not determinative on the issue of negligence or unreasonable dangerousness. F. RULE 407: SUBSEQUENT REMEDIAL MEASURES 1. Subsequent remedial measures are inadmissible to prove negligence, culpable conduct, or product defect, but may admissible for another purpose such as to show ownership, feasibility, or impeachment. A) The policy is one of encouraging parties to take safety measures; the relevancy concern questions whether evidence of a subsequent remedial measure is a good indicator of a party’s negligence. B) A remedial measure taken after a product was purchased, but before the accident or event that caused the alleged injury does not qualify as a subsequent remedial measure. C) Rule 407 does not bar the admission of remedial measures taken by third parties, but such evidence may be excluded under Rule 403. D) SRM should be admissible when the party was compelled by the government to take the remedial act. E) Such evidence is inadmissible to prove either a product or design defect or the need for a warning or instruction. F) Subsequent remedial measure evidence may be admissible when offered for other purposes, including proving ownership or control, rebutting a defensive theory based upon the condition of the accident scene, where the defendant had destroyed the relevant object, allegedly as a remedial measure. G) Feasibility must, however, be controverted before such evidence is admitted. Other courts hold that the defendant must affirmatively contest the feasibility issue before it is deemed to be controverted. H) Courts have warned, however, that interpreting this other purpose too liberally would result in the exception swallowing the rule. I) Such impeachment should be permitted only where the witness either makes factual assertions that are contradicted by the SRM or claims that the product or condition was the best or safest that it could be. J) SRM evidence may still be admitted under Rule 403 after a balancing test weighs the probative value of its permissible use against the danger that it will be impermissibly used as evidence of negligence or culpable conduct. 2. Cannot be offered to prove negligence, culpable conduct, defect in a product, design defect and need for warning/instruction.

of 25 Evidence 2002 3. Policy A) We want people to make repairs on their own, rather than endure the costly litigation, or to be dissuaded from repairing. B) Repair includes removing the offending individuals. G. RULE 408: COMPROMISE AND OFFERS TO COMPROMISE IN CLAIM DISPUTES 1. Compromise, offer of compromise or statement in settlement discussions of disputed claim is not admissible on validity of claim but may be admissible for another purpose such as to show bias of a witness. 2. KEY: Look to see whether the statement is offered to settle a claim that was disputed as to validity or amount – therefore, the statement is admissible. A) Compromise Problem. (1) Must be an offer to settle a CLAIM – a spontaneous utterance before a claim is made is inadmissible under Rule 408. Rule 409, however, does not require a claim. What if the defendant disputes the information in the plaintiff’s claim? Can they be impeached? No. H. RULE 409: PAYMENT OF MEDICAL AND SIMILAR EXPENSES. 1. Payment of medical expenses is not admissible to prove liability. A) The law should not discourage or penalize humanitarian gestures or contractual arrangements, such as insurance, that help an injured party before a court has determined legal liability. B) Evidence of incidental statements or conduct accompanying payment, or such behavior accompanying offers or promises to pay are not protected by Rule 409. A statement of liability made in conjunction with such an offer is not rendered inadmissible by Rule 409. I. RULE 410: INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS AND RELATED STATEMENTS 1. Withdrawn plea of guilty, nolo plea, or statement in plea discussions with prosecutor not normally admissible. A) A guilty plea that is not withdrawn is left unprotected by Rule 410 and may be used against he defendant in the case at bar or in other litigation. B) This includes statements made by an accused for the purpose of establishing for the court that a factual basis exists for the plea. C) Statements must be made during the course of plea discussions with an attorney for the prosecution (does not include statements made to law enforcement officials, statements made without the intent to negotiate a plea, statements made after a plea agreement has been finalized, statements made during negotiations that result in a final plea of guilty. D) Such pleas and statements are inadmissible only when offered against the defendant who made the plea or was a participant in the plea discussions. A defendant’s plea and statements may be offered against someone other than the defendant. E) The two exceptions to the general rule of inadmissibility are 1) a rule of optional completeness, and 2) provides for admissibility in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath… F) An agreement to waive the protections of Rule 410 is valid if it was made knowingly and voluntarily. J. RULE 411: LIABILITY INSURANCE

of 25 Evidence 2002 1. Liability insurance not admissible to show fault but may be allowed for another purpose such as to show ownership or bias of a witness. A) The rule is based on the notion that whether a person is insured has very little, if any, bearing on the degree of care exercised by the person on a given occasion. On the other hand, the admission of such evidence could be highly prejudicial. B) It is inadmissible to prove the insured’s (or uninsured’s) negligence or comparative negligence. C) Evidence that a party lacks evidence is also inadmissible if it constitutes a proper plea of poverty. D) Appropriate means by which to admit liability insurance evidence also includes proving the bias of a witness, to establish a trade custom of limiting liability, to establish why a safety inspection was made, or to prove the existence of an effective contract exculpating the defendants from all risks of loss or damage. E) Rule 411 allows liability insurance evidence to prove the liability of a third party. IV. RAPE CASES, RELEVANCE AND CHARACTER EVIDENCE A. POLICY 1. Preclude the routine use of evidence of specific instances (or reputation or opinion evidence) of a rape victim’s prior sexual behavior. A) Date Rape and the Culture of Acceptance, 43 U. Fl. L. Rev. 487 (1991) (1) One stereotype is the aggressive male, the male who actively pursues sexual relations with a female despite cutes to the contrary. The other is the punished female, the female who, by her dress or other apparently provocative non-verbal actions, implicitly deserves or asks for sexual intercourse. B. RULE 412: SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIM’S PAST SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION. 1. Prior sexual conduct or sexual character of sex offense or sexual misconduct victim generally not admissible. A) Rule 412 also reaches cases in which the defendant is charged with an offense that does not contain sexual misconduct as an element but where the defendant’s sexual misconduct is relevant to prove motive or as background evidence. B) Prior false claims are not considered sexual behavior. Although not rendered inadmissible by Rule 412, their admissibility must still be tested under rules 404, 405 and 408. C) The statute protects “any alleged victim”, even if the victim is not a party to the case. D) The rule only allows prior act testimony of the party who is alleged to have committed the sexual assault. C. RULE 413: EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES 1. Defendant’s prior commission of sexual assault may be shown in prosecution for sexual assault. A) Rule 413 is based on the notion that informing the jury of a defendant’s commission of other sexual assaults is often crucial to the accurate determination of sexual assault cases because such cases often turn on a dispute as to whether the complainant consented. B) The proponent of the evidence will be required to offer only enough evidence so that a reasonable juror could find that the defendant committed the other sexual assault.

of 25 Evidence 2002 D. RULE 414: EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES 1. Defendant’s prior commission of child molestation may be shown in prosecution for child molestation A) The other instances need not have resulted in conviction. B) The proponent of the evidence will be required to offer only enough evidence so that a reasonable juror could find that the defendant committed the other acts of child molestation. E. RULE 415: EVIDENCE OF SIMILAR ACTS ON CIVIL CASES CONCERNING SEXUAL ASSAULT OR CHILD MOLESTATION 1. Civil party’s prior commission of sexual assault or child molestation may be shown in civil action for sexual assault or child molestation A) A plaintiff may offer evidence that the defendant committed sexual assaults or acts of child molestation to prove that he committed the sexual assault or act of child molestation on which the plaintiff’s claim for relief is based. B) Courts should still exclude such evidence when its probative value is substantially outweighed by the danger of unfair prejudice. V. THE EXAMINATION AND IMPEACHMENT OF WITNESSES A. RULE 611: MODE AND ORDER OF INTERROGATION AND PRESENTATION 1. Court controls examination; control is limited to scope of direct; leading normally prohibited on direct, except when party calls hostile witness, adverse party, or witness identified with adverse party. A) The court abuses its discretion when it fails to make accommodations for expert witnesses, even if it requires that they testify before the party presents its case. B) When children are victims in a case, they can testify via 1) closed circuit television or videotaped depositions. C) Leading questions have been sanctioned when 1) a witness is unable to convey information meaningfully in response to non-leading questions; 2) the questions relate to preliminary or other disputed matters; or 3) the witness is an adverse party, is identified with an adverse party, or is hostile to the calling party. D) Who, where, what, why and when questions are generally permissible. 2. In cross-examination, seriously consider whether A) the witness truly needs to be cross-examined, and B) whether the witness has any information that may benefit the case. 3. If information cannot be gathered on cross-examination, subpoena that witness and examine them directly. B. OBJECTIONS TO A WITNESS’ TESTIMONY (MAINLY WITH RESPECT TO THE EXAMINER’S QUESTIONS) 1. Leading Questions (yes/no; was, were, did, does, have, had, don’t’ you agree…)

of 25 Evidence 2002 2. Asked and Answered 3. Compound Questions (incorporate two or more questions into a single sentence) 4. Questions assuming facts not in evidence (assume facts not testified to by other witness or otherwise not admitted) 5. Argumentative Questions (engage witness in improper argument) 6. Questions calling for Speculation (asking for information beyond scope of witness’ knowledge, or for an inadmissible opinion 7. Non-responsive Answers (do not answer question) 8. Narrative Answers (exceed scope of questions asked) C. ORDER OF WITNESS TESTIMONY, COMMON OBJECTIVES 1. Calls the witness to testify on direct examination. 2. Opposing party has the opportunity to conduct a cross-examination. Rule 611(b) provides that cross- examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness (testing the witness’ testimonial capacities, filling gaps in the testimony or evidence, and corroborating parts of the cross-examiner’s case). 3. The proponent may conduct a redirect examination. Its purpose is to allow a rebuttal or exploration of points raised on cross-examination. A re-cross-examination must relate to the issues raised on redirect; it may not simply reiterate the initial cross-exam D. IMPEACHMENT OF A WITNESS 1. An examiner generally impeaches a witness to undermine the weight that will be accorded the witness’ testimony by the trier of fact. A witness who has been impeached may be rehabilitated. Rehabilitation involves reaffirming or reaccrediting the witness’ believability. Rehabilitation evidence may not be introduced before impeachment in a preemptive strike. Rehabilitation can occur either through questions on redirect examination or through a separate reputation or opinion witness testifying about the discredited witness’ good character for truthfulness or veracity 2. Extrinsic evidence is subject to greater restrictions than impeachment with intrinsic evidence. Intrinsic impeachment depends on answers given by the witness being impeached (while on stand). Extrinsic impeachment, on the other hand, depends on either a different witness or the introduction of other evidence, such as a document. E. INTRINSIC IMPEACHMENT 1. Acceptable forms of intrinsic impeachment A) Contradiction (1) Occurs when the examining attorney disputes the witness’ testimony about the fact. The fact disputed need not be dispositive or even important to the outcome of the case. (2) Extrinsic evidence may be used to contradict witness only as to matters that are not deemed collateral (but is limited by 403 objections based on relevance, waste of time, misleading of jury). B) Bias (1) Form of impeachment in which a witness is shown to be influenced, corrupted, prejudiced or predisposed towards or against a party.

of 25 Evidence 2002 (2) Extrinsic evidence is allowed to show bias because bias is NEVER COLLATERAL (3) Inquiry into bias is initiated during cross-exam C) Criminal convictions (FRE 609) (1) factors for balancing probative value against prejudice (allows felonies and crimes of dishonesty/false statement) (A) Impeachment value of prior conviction (B) Recency of conviction (C) Age at time of conviction (D) Witness’s subsequent criminal history (E) Similarity between conviction and offense under prosecution (F) Importance of credibility issue (G) Danger accused would be deterred from testifying D) Other evidence of witness’s credibility. E) Bad acts F) Testimonial capacities G) Prior inconsistent statements (FRE 613) (1) Process (A) Get the witness to commit to her direct examination testimony (B) Lay the foundation, pinpointing (I) The time the prior statement was made; (II) the place the prior statement was made; and (III) the person to whom the statement was made.

of 25 Evidence 2002 (C) Ask about the statement. H) CHARACTER FOR TRUTHFULNESS (1) Collateral Matters Rule (A) Can prove what person lied about on the stand if it tells us something about the case today that is significant enough to admit (bias, prior conviction, testimonial capacity, fact in issue, prior inconsistent statements). F. RULE 612: WRITING USED TO REFRESH MEMORY 1. Writing used to refresh witness’s recollection on stand must be produced; adverse party may introduce relevant parts. 2. It is effectively done to bolster the witness’ credibility by helping the witness remember events or occurrences more accurately. A witness’ memory may be prodded by a wide variety of things, including items that are inadmissible at trial. A) Distinguish between refreshing memory and testifying to someone else’s memory (hearsay) B) Properly admitted writings can fall under the past recollection recorded exception of the hearsay rule C) Leading questions may be allowed to refresh memory; but must be used carefully D) Process: 1) show writing to witness, allow to read; b) allow to testify to independent recollection, but not to the contents of the writing under the guise of refreshed recollection; c) forestall testimony if witness cannot recall the matter; d) some exceptions to use of writing to recall information for police and experts E) Types of writing: writing prepared by another, writing not contemporaneous F) Notes made in anticipation of litigation are unacceptable writings G. RULE 607: WHO MAY IMPEACH 1. Any party may impeach a witness’s credibility, even party calling witness A) Party can impeach its own witness (benefit by preemptively avoiding impeachment by opposing counsel) B) Bias encompasses relationship between party and witness, embraces interest and corruption C) Reasonable limits may be placed on inquiry into bias D) Examples: witness has personal relationship with party; financial stake; penal interest; fear of a party E) Defects of capacity include suffering from an infirmity that affects ability to testify accurately or affects memory (mental illness or infirmity, alcohol or drug use, bad eyesight, memory, hearing) F) The test to determine if evidence is contradiction is whether the fact could have been shown in evidence for any purpose independently of the contradiction

of 25 Evidence 2002 G) A party seeking to impeach its own witness no longer needs to show that it was surprised or injured by the testimony H) Bolstering is defined as a proponent’s attempt to offer otherwise inadmissible evidence solely for the purpose of enhancing his witness’s credibility preemptively. H. RULE 608: EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS 1. A witness’s character for truthfulness can be challenged by cross-examination about specific acts prohibitive of untruthfulness or through opinion or reputation witnesses. Prior Acts 2. Rule 608(b) A) Impeachment by prior acts under the rule is limited to specific prior acts of the witness that reflect on the witness’ capacity for truthfulness or veracity. B) No conviction is required for impeachment by prior acts. The act may not have been the subject of a criminal charge at all or, on the other hand, might even have been the subject of a criminal charge resulting in an acquittal. C) The acts that may be used for impeachment are limited to those that involve fraud or deception, such as obtaining property under false pretenses or perjury at a hearing or proceeding. D) Acts of violence do not fall within the bad acts category and cannot be used to impeach. The witness may only be asked about the underlying bad act itself (not the punishment or charges related to it). E) The witness’ credibility hinges on the commission of the act itself. F) Prior act impeachment may not be proven by extrinsic evidence; otherwise, a mini- trial would result and the jury would be distracted or misled (policy argument). G) Use specific acts language, not “charged with” specific acts 3. Rule 608 does not permit: A) acts proven by extrinsic reputation or opinion testimony not relevant to truthfulness B) character evidence as to being a truthful person before credibility has been attacked C) arrest, charge, indictment, expulsion, suspension I. RULE 610: RELIGIOUS BELIEFS OR OPINIONS 1. Religious beliefs are inadmissible to impeach or enhance credibility A) Religious beliefs may be inquired into to demonstrate identity, or can be linked to bias B) May not be included to address admission of religious beliefs that bear directly on the merits of the case C) Rule 610 creates a pseudo-exception to the credibility factor and bars admission of such evidence to impeach a witness’ credibility.

of 25 Evidence 2002 J. RULE 613: PRIOR STATEMENTS OF WITNESSES 1. Prior statements may be used without disclosing to witness; extrinsic proof of prior statements not admissible unless witness given a chance to explain. 2. CROSS-REF: Read with Rule 801(d)(1)(d). A) Statements which are not hearsay. A statement is not hearsay if – 1) prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person… 3. Requires two statements A) one occurring during the witness’ testimony at trial, and B) the second by the witness prior to trial that contradicts the trial testimony. 4. If there is only the statement before trial, impeachment with that prior statement is generally forbidden. 5. Common-law Fairness rule requires the examining counsel to first give a witness the opportunity to deny or explain her own prior written statement before being impeached on it. Rule 613 fairness rule requires contents of a prior statement to be shown or disclosed to opposing counsel on request, and by requiring the proponent of the statement to give the witness the opportunity to deny or explain the statement if it sis being sued as extrinsic impeachment evidence. 6. If a prior inconsistent statement has certain qualifying features, it will be admitted not only for its impeachment value, but also for the truth of the matter asserted. 7. If a witness denies making the statement, the witness may be impeached by extrinsic evidence of the statement only if the inconsistency is about a matter at issue in the case. If extrinsic impeachment is permitted, a foundation must be laid for the extrinsic evidence. It is worth attempting to use the witness to be impeached to help lay the foundation (to promote efficiency). 8. If the statement is collateral (unimportant), it cannot be offered. K. TESTIMONIAL CAPACITIES 1. perception (saw, heard, smelled, touched); memory (recall from prior occurrence, happening, event); 2. narration (communication of perception); 3. and sincerity (lack of prevarication). 4. Revealing defects in the witness’ memory, perception, or narration, from common deficiencies to physiological defects, constitute attacking testimonial capacities. 5. Physiological defects have to do with particular physical or psychological conditions, such as bad eyesight, amnesia, hearing loss, or schizophrenia, that interfere with the witness’ ability to be accurate or truthful. L. RULE 609: IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME 1. Conviction of a crime is admissible if A) 1) felony and prohibitive value outweighs prejudice, or involved false statement, and

of 25 Evidence 2002 B) 2) if less than ten years conviction or release 2. The rule is premised on the belief that witness’s criminal past is indicative of a dishonest character or a willingness to flaunt the law. Therefore, jurors may infer that witness with a criminal past is less deserving of credit than one with an unblemished past. 3. This applies to all witnesses, and the court may not invoke a balancing test to foreclose such impeachment. 4. Courts tend to define dishonesty or false statement narrowly. The rule includes counterfeiting, tampering with an electric meter, knowingly passing a worthless check, and failure to file an income tax return, but DOES NOT include shoplifting, unauthorized acquisition and possession of food stamps, bank robbery, burglary, and drug use. 5. A balancing test must be met and it depends on the status of the witness. In the testimony of the criminal defendant, the impeaching party must show the probative value of the conviction outweighs prejudicial effect to the accused. For all other witnesses, the party opposing impeachment must show that the probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or the other countervailing considerations listed in Rule 403. 6. Several courts apply five factors to the balancing test: the impeachment value of the prior crime (related to veracity); the point in time of the conviction and the witness’s subsequent history (frequency of crimes); the similarity between the past crime and the charged crime; the importance of the defendant’s testimony; and the centrality of the credibility issue. 7. Time spend on probation of parole is not considered confinement. 8. Details of the crime may not be explored, although the impeaching party should ordinarily be permitted to establish the nature, time and place of, and punishment for each conviction that qualifies for impeachment purposes. 9. The witness’s proponent shoulders the burden of establishing that the pardon, annulment, was based on a finding of innocence or rehabilitation. Automatic pardons that restore the civil rights (habeas corpus) of the offender do not imply a finding of innocence or rehabilitation. 10. A witness may be impeached with a conviction that is still on appeal. 11. Rule 609 only applies when the conviction is being offered to demonstrate the witness’s untruthful character. It does not apply when the conviction is offered for some other purpose, such as; to prove a material issue in the case, or to rebut factual assertions made by the witness. 12. Rule 609 generally excludes juvenile adjudications are bars stale convictions. 13. Rule 609 was modified in 1990 to provided that the use of felony convictions first must satisfy the unfair prejudice test of Rule 403 for all witnesses other than criminal defendants (Rule 609(a)(1)). 14. One important factor is the similarity between the impeachment felony and the crime charged. Other factors include the importance of the defendant’s credibility to the case, the nature and date of the impeachment crime, and the significance of the defendant’s testimony to the case overall. 15. Rule 609 based on unfair prejudice to the defendant. Evidence of charges, arrests, etc. may be admitted under Rule 608(b), but must be inquisitions into specific acts, not actual charges (Isn’t it true that you embezzled… rather than Isn’t it true that you were charged with embezzlement…) M. EXTRINSIC IMPEACHMENT 1. used to identify the collateral matter or collateral issue 2. permits impeachment through extrinsic evidence for only non-collateral (important) matters 3. non-collateral matters properly subject to extrinsic impeachment are A) bias, B) fact at issue,

of 25 Evidence 2002 C) testimonial capacities, D) convictions of crime; and E) reputation or opinion evidence about the truthfulness or veracity of another witness. N. RULE 701: OPINION TESTIMONY BY LAY WITNESSES 1. Lay opinion admissible if based on first-hand knowledge and helpful to trier of fact. A) The rule was based partly on the assumption that facts and opinions are easily distinguishable and partly on the notion that jurors are well equipped to draw inferences from the facts supplied by a lay witness as is the witness. B) Rule 701 precludes litigants from offering expert testimony under the guise of lay opinion testimony as a means of evading the discovery and reliability requirements associated with expert testimony. C) Two elements to determine rationally based on perception: 1) the opinion echoes the personal knowledge requirement of Rule 602, and 2) the opinion must be one that reasonable person could draw from the underlying facts (eliminates opinions based on hearsay, speculation and irrational reasoning). D) Among the factors that affect whether a lay witness’s opinion meets the rationality test are: 1) the extent to which the testimony goes to the heart of the case; 2) the amount of factual matter subsumed in the opinion; 3) the ability or inability of the witness to convey the information in the form of specific facts; 4) the extent to which the jury is equally well-positioned to draw the inferences from the underlying data; and 5) the need for testimony. E) Examples: testimony as to whether person was “in total control;” opinion that never intended to carry out promise; lost profits suffered; opinion concerning another’s knowledge; opinion regarding sanity or insanity; opinion as to meaning of code words. F) By stipulating that lay witness testimony may not be based on scientific, technical or other specialized knowledge within the scope of Rule 702, Rule 701 ensures that litigants cannot circumvent expert testimony rules by presenting expert testimony in lay witness clothing. G) The rule distinguishes between lay and expert testimony (not witnesses) H) An objection to lay testimony will often prove more effective if it is supported with an explanation as to why the opinion is not rational or not helpful (calls for expertise not possessed by witness, requires mixed questions of law and fact, requires conclusion that amounts to little more than choosing sides). 2. Lay witnesses are limited to testifying about facts (what they saw, heard, smelled, touched or tasted). 3. Purpose of lay testimony: it is the job of the trier of fact to draw inferences form the evidence presented at trial, lay witnesses are no better equipped to offer opinions than lay jurors, requiring facts only testimony ensures a more accurate reproduction of the event or transaction in question, lay opinions create a practical difficulty at trial – they are difficult to cross-examine because the premises of the opinion are unknown, and the impact of a lay opinion is often much greater than that of its component parts. 4. It is difficult to draw a line between facts and opinions, the dividing line between the two often depends on how specific the witness’ observation is or how many inferences the witness must draw to yield the observation. 5. Rule 701 permits lay persons to offer opinions that 1) are rationally based on the perception of the witness, and 2) are helpful to the trier of fact in understanding the testimony of the witness or in determining a fact in issue. 6. Examples: estimations of speed, distance or temperature; identifications of persons or objects; a person’s appearance, including physical characteristics; the value of one’s property or services; odors and their identity; a person’s emotional or mental state; and short-hand renditions of fact comprising sensory impressions commonly recognized in opinion form. O. RULE 702: TESTIMONY BY EXPERTS 1. Expert opinion admissible if reliable and helpful to trier of fact and witness qualified. A) Licensure or certification in the particular discipline is not a per se requirement to show qualification

of 25 Evidence 2002 B) The subject matter must assist the trier of fact to understand the evidence or to determine the fact in issue (Pincon); if not helpful, then it should not be admissible C) Trial judges should admit expert testimony only if they first determine that the proffered opinions are reliable by considering that 1) the expert must base the opinion upon sufficient facts or data; 2) the expert must ground the opinion in reliable principles and methods; and 3) the expert must apply those principles and methods to the facts of the case in a reliable manner. D) Daubert factors (to determine admissibility of scientific expert testimony) (1) whether the theory or technique in question has been or can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the particular theory or technique, and whether means exist for controlling its operation; and (4) the extent to which the theory or technique has been accepted (other factors include whether the expert testimony is based on research the expert has conducted independent of litigation, whether the expert has adequately accounted for obvious alternative explanations, whether the expert has employed the same care in reaching the litigation-related opinions as the expert employs in performing his or her regular professional work, and whether there is too great an analytical gap between the data and the opinion). E) Frye factors only consider whether test is “generally accepted” F) Rule 403 may still provide grounds for exclusion (likelihood of misleading the jury). G) Grounds for finding lack of reliability or helpfulness: lack of relevance, expert testimony not needed, based on speculative or incomplete data, based on questionable theories, too conjectural, conclusory, too great a gap between data and opinion. P. RULE 703: BASES OF OPINION TESTIMONY BY EXPERTS 1. Expert opinion may be based on admissible evidence or facts reasonably relied on by experts in field. A) Expert opinion may be based on 1) facts within personal knowledge; 2) facts presented to him at trial; or 3) facts presented to him outside of court, but not perceived by him personally, if those facts are the type of facts reasonably relied upon by experts in his field in drawing such conclusions. Q. RULE 704: OPINION ON ULTIMATE ISSUE 1. Opinion may be offered on ultimate issue, if otherwise proper. A) Grounds for objecting: lay witness not qualified to testify, inadequately explored legal criteria, choosing up sides, testimony in form of opinion not necessary, opinion beyond witness’ expertise. B) Expert opinions about an accused mental state are not allowed to determine whether the accused possessed a mental state or condition that constitutes an element of the crime charged or the defense to the crime charged. But experts remain free to testify that the accused does or does not suffer from a mental disease or defect and to describe the characteristics and effects of such a disease or defect. R. RULE 705: DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION. 1. Expert may state opinion without first giving underlying facts unless court requires; underlying facts may be required on cross-exam. A) Court may require prior disclosure, and frequently do in summary judgment motions. B) Admissibility of underlying facts: if the underlying facts or data are themselves admissible, the expert should be allowed to disclose them to the jury and no limiting instruction is necessary; if the underlying facts and data would be otherwise inadmissible, they possess probative value only insofar as they may help the jury to evaluate the expert’s opinion; opposing counsel may not use cross-examination as a means of bringing inadmissible hearsay or opinions before the jury.

of 25 Evidence 2002 C) Hypothetical questions are no longer needed to elicit information about underlying bases for analysis, but when an expert lacks knowledge of the facts upon which his opinion is to be predicated, a hypothetical question will be the only way to proceed. D) Counsel may include in a hypothetical question on those facts already in evidence or that will be introduced before the close of evidence, or inferences reasonably drawn from those facts. The facts included in the question need not be established to a high degree of certainty. On cross- examination, opposing counsel may ask the expert to assume that facts included in the original hypothetical are not true or that other facts are true. S. RULE 706: COURT APPOINTED EXPERTS 1. Court may appoint experts and direct their compensation. A) Rule 706 is in response to concerns over expert shopping and the venality of some experts; used sparingly. B) May be appointed sua sponte or by motion of a party. C) Read with Rule 614(b), the court can interrogate witnesses, whether qualified by itself or by a party T. SUMMARY 1. Compare the permissible scope of lay witness testimony with that of experts: experts can offer opinions without personal knowledge of the facts of the case. Lay witnesses must generally testify only to facts rationally based on their own perception. 2. Compare helpfulness and relevance: helpfulness goes beyond relevance, requiring that the testimony assist the jury in resolving a fact in issue. 3. About which subjects can experts testify: all expert opinion must be based on reliable and valid methods and also fit, that is, be helpful to determining an issue in the case. As long as the testimony will assist the jury in deciding the facts, an expert can testify about ultimate fact questions. The jury cannot, however, abdicate its responsibility and allow the expert’s judgment to substitute for its own. Under Rule 703, the expert’s opinion can be based on that which is reasonably relied on by experts in the particular field, including inadmissible hearsay. Pursuant to Rule 705, experts must disclose the basis for their opinions if the court requires or questions are posed about the basis on cross-examination. VI. HEARSAY A. INTRODUCTION 1. Hearsay is A) an out-of-court B) statement C) made by a declarant and D) offered for the truth of the matter asserted, E) solely on the theory that when a person asserts that a fact is true, that fact is more likely to be true. 2. Hearsay is inadmissible IFF: A) the evidence meets all of the hearsay requirements;

of 25 Evidence 2002 B) it is not a special prior statement of the witness or an admission of a party opponent; and C) it is not within one of the many hearsay exceptions. 3. Out of court: A) outside of the official proceeding; a proceeding independent of the trial, even one that is part of the same case, is considered to be out-of-court. 4. Statement: A) oral/written assertion or non-verbal conduct intended by the declarant to e a communication to others; intentional or purposeful. Non-verbal conduct will constitute a statement only if the primary motive of the actor is to communicate to others. 5. By declarant: A) must be a human being; the declarant is a different person than the testifying witness, generally. If a witness testifies about her own prior out-of-court statements, however, the witness and the declarant are one and the same person. 6. Offered for truth of matter asserted: A) State of mind, impeachment (to show that the witness is less credible because he or she has uttered two inconsistent statements), res gestae (simply background evidence to complete the story of an incident or event), operative facts (statements create legal obligations or duties, show statement was made), and verbal acts (words accompanying an act which help to explain the legal significance of that act) are admissible. 7. Testimonial Triangle: The fact that someone said X is true makes it somewhat more likely that X is true A) B (belief)  ambiguity  sincerity  A (action or occurrence)  Does the witness really believe? B) B (belief)  perception  memory  C (conclusion)  Does witness’ belief reflect reality? B. STRATEGY FOR DEALING WITH HEARSAY: 1. Is it hearsay? A) Out of court statement by a declarant offered to prove the truth of the matter asserted. 2. If yes, is there any non-hearsay logic (verbal act, legally operative…) that would take it out of the realm of hearsay? A) Make sure the reason being offered is relevant (not for the truth of the matter) 3. If no, is it an admission? Is it a prior inconsistent statement? 4. If not, is it covered under one of the hearsay exceptions? C. HILLMON RULE:

of 25 Evidence 2002 1. Statements of an out of court declarant’s intent can be admitted to show state of mind and that the declarant acted in accordance with his or her state of mind (intent). D. RULE 801: DEFINITIONS 1. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Statements include acts only if intended assertions by declarant. E. RULE 801(D)(1) 1. Certain prior statements by a witness are not hearsay: A) a prior inconsistent statement made under oath as a prior proceeding; B) a prior consistent statement that rebuts a charge of fabrication or improper influence or motive; or C) a prior identification of a person. 2. Prior statements were generally admissible, under certain conditions, only for the limited purposes of impeachment or rehabilitation. 3. Such a prior inconsistent statement may be admissible for impeachment, subject to the requirements of Rule 613, but a limiting instruction must be given upon request. Inconsistency is not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position. A party may not call a witness for the primary purpose of impeaching the witness with prior statements that would be otherwise admissible. 4. For prior inconsistent statement, other proceeding includes the grand jury, but does not extend to station house interrogations 5. The prior consistent statement must antedate improper influence or motive to fabricate. The consistent statement must have been made before the alleged improper influence or the attachment of the alleged motive to fabricate. PURPOSE: rehabilitation. Need not be made under oath (not feasible to give under oath, because taken under oath implies suit has been brought). Also, opposing party must open the door. 6. The requirement that the witness be subject to cross-examination is satisfied if the witness is available to be recalled for recross-examination. 7. Prior identification of a person. Permits the showing that a witness identified a person, such as the accused in a criminal case, on a previous occasion. There is no requirement that the witness first be impeached. Another person who was present, such as a police officer may testify to the previous identification. The prior identification need not be consistent with the witness’s testimony. The requirement that the witness be subject to cross-examination concerning the statement is not violated by the witness having, or purporting to have, no present recollection of the identify of the person. F. RULE 801(D)(2) 1. Party admissions are not hearsay, including party’s own statement, adopted statement of another, authorized statement by agent, agent or employee’s statement concerning matter in scope of employment, or coconspirator statement. 2. The out-of-court statement must 1) have been made by or on behalf of a party opponent, AND 2) be offered against that party. 3. The opposing party need not admit anything in the statement. Rather, the theory of admissions is that “you made the statement, now you explain it.” 4. The rationale underlying admissibility is so strong that a lack of personal knowledge by the declarant is not a bar to admission 5. Party admissions include statements made by an attorney on behalf of its client A) Zippo Mfg. v. Rogers Imports, 216 F. Supp. 670 (S.D.N.Y. 1963)

of 25 Evidence 2002 (1) Regardless of whether the surveys in this case could be admitted under the non-hearsay approach, they are admissible because the answers of respondents are expressions of presently existing state of mind, attitude, or belief. There is a recognized exception to the hearsay rule for such statements, and under it the statements are admissible to prove the truth of the matter contained therein. B) Wright v. Doe D. Tatham, 7 AD & E. 313 (1837) (1) Letters did not flatly state the he was competent; they just asked him to do something you would not ask an incompetent person to do; authors sincerely believed he was competent; because the letters treated him as competent, is that sufficiently admissible to show that he is competent? (2) the question is whether the contents of these letters are evidence of the fact to be proved upon this issue, that is, the actual existence of the qualities which the testator is, in those letters, by implication, stated to possess; and those letters may be considered in this respect to be on the same footing as if they had contained a direct and positive statement that he was competent. They are mere hearsay… (3) Proof of a particular fact, which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue is in admissible in all cases where such a statement or opinion not on oath would be of itself inadmissible; and, therefore, in this case the letters which are offered only to prove the competence of the testator, that is the truth of the implied statements therein contained, were properly rejected, as the mere statement or opinion of the writer would certainly have been inadmissible… (4) [COMMON LAW RULE – INADMISSIBLE, FRE 801 – ADMISSIBLE] FRE 801, no assertion, so no hearsay. However, implied assertions are considered hearsay under common law. Implied assertions: declarant did X, therefore the declarant believed Y and Y is a fact of consequence to this litigation (the matter being asserted). C) US v. Alosa, 14 F.3d 693 (1994) (1) Did the court err in admitting ledgers that contained information about drug transactions. (2) FRE 801(d)(2)(E) states that as statement avoids hearsay objections if the trial judge finds by a preponderance of the evidence that an out-of-court statement was made by a co-conspirator and was made in furtherance of the conspiracy. (3) These records were “real evidence” of the conspiracy, they helped prove the existence of the conspiracy, and the dimensions of the conspiracy. The rule only requires there be a showing of probability or likelihood of the conspiracy. VII. HEARSAY EXCEPTIONS A. INTRODUCTION 1. Those in which the declarant’s availability is irrelevant to whether the evidence is admissible (803), and those in which the declarant must be unavailable to testify (804). B. RULE 803: HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL [ADD COMMENTS] 1. Hearsay exceptions that apply whether the declarant is available or not: A) Rule 803(1) (1) Present sense impression describing an event made while observing the event or immediately thereafter. (A) Is this a statement describing or explaining an event? (B) Is it made while the declarant was perceiving the event or immediately thereafter? (C) The content of the statement is sufficient to show personal knowledge (D) Lack of corroboration goes to the weight placed on the statement

of 25 Evidence 2002 (E) Watch for impermissible opinions (generally concerned with descriptions, not opinions) (2) Not recognized by common law. (3) Implies immediate response, describing or explaining the event. B) Rule 803(2) (1) Excited utterance relating to a startling event and made under the stress of the event. (A) Is it a statement that relates to a startling event or condition? (B) Was the statement made while the declarant was under the stress of excitement caused by the event or condition? (2) Longer time frame than present sense impressions. C) Rule 803(3) (1) Present mental, emotional, or physical condition, including intent or plan, but not memory or belief except in will cases. D) Rule 803(4) (1) Statements for medical diagnosis or treatment including history, and cause of conditions if medically pertinent. E) Rule 803(5) (1) Recorded recollection: document made with fresh memory of matter witness now cannot completely remember; if admitted, document is read but not received as exhibit unless at behest of adverse party. Read with FRE 612. F) Rule 803(6) (1) Business records regularly made and kept and based upon personal knowledge of some member of the entity. Custodian or other qualified witness must provide foundation. (A) Business records are admissible within 803(6), to the extent that the testimony is used to verify the reliability and truthfulness of the records, and not necessarily the content contained therein. Describe process of record keeping, how the truthfulness of the records is verified G) Rule 803(7) (1) Absence of entry in business records to show nonoccurrence or nonexistence of matter. H) Rule 803(8) (1) Public records or reports showing activities of agency, or matters observed pursuant to duty (except by police or other law enforcement personnel in criminal cases), or factual findings resulting from investigation pursuant to legal authority (except against criminal defendant).

of 25 Evidence 2002 I) Rule 803(9) (1) Records of vital statistics such as births, marriages or deaths. J) Rule 803(10) (1) Absence of public record or entry to show nonoccurrence or nonexistence of a matter. K) Rule 803(11) (1) Records of religious organizations to show birth, death, marriage, etc. L) Rule 803(12) (1) Marriage and baptismal certificates. M) Rule 803(13) (1) Family records such as Bibles, genealogies, or tombstones. N) Rule 803(14) (1) Recorded document affecting property interests as proof of content, execution and delivery of original. O) Rule 803(15) (1) Statements in recorded document affecting property interest if germane. P) Rule 803(16) (1) Statements in ancient documents (20 years or older and authenticated). Q) Rule 803(17) (1) Market reports, commercial publications of types relied upon by public or professionals. R) Rule 803(18) (1) Learned treatises if relied on during direct or called to an expert’s attention on cross-exam, shown by testimony or judicial notice to be reliable authority; may be read into evidence but not received as exhibits. S) Rule 803(19)

of 25 Evidence 2002 (1) Reputation concerning personal or family history to show birth, marriage, death, relationship, etc. T) Rule 803(20) (1) Reputation as to boundaries or historical matters established before dispute arose. U) Rule 803(21) (1) Reputation as to character. V) Rule 803(22) (1) Judgment of conviction of felony to prove a fact essential to the judgment. W) Rule 803(23) (1) Judgment as to personal, family, or general history, or boundaries. C. RULE 804: HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE 1. Definition of Unavailability. Unavailability as a witness includes situations in which the declarant A) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or (1) Burden of proving unavailability is on proponent of evidence. (2) Hearsay statements are admissible because they are necessary for a full and fair review of the facts on trial. Based on guarantees of trustworthiness. (3) Unavailability does not so much refer to the physical unavailability of the declarant, but rather to the unavailability of the declarant’s testimony (including 5th Amendment privilege) B) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or C) testifies to a lack of memory of the subject matter of the declarant’s statement; or D) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or E) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means. (1) A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement of wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. 2. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

of 25 Evidence 2002 3. Rule 804(b)(1). Former Testimony A) Former testimony if party against whom now offered (or in civil case a party with similar interest) had opportunity and similar motive to develop testimony. B) Given in a proceeding such as in deposition and the same party against whom the former testimony is now offered must have had an opportunity to examine the declarant in the prior proceeding. To ensure fairness, the party against whom the testimony Is now offered must have a similar motive to develop the testimony in both the earlier and current proceedings. 4. Rule 804(b)(2). Dying Declaration A) Dying declaration if declarant believed death imminent and statement concerns cause of death (only in homicide and civil cases). B) made under the belief of impending death, admitted on the premise that assertions about the circumstances of a person’s impending death by a person who is knowingly dying possess sufficient indicia of reliability. The declarant need not ultimately die; the declarant need only believe at the time that he or she is dying. Statements must concern the cause or circumstances of the supposed impending death. Statements are only admissible in homicide or civil cases. C) Common law (1) Declarant must be dead (2) Believed death was imminent (3) Statement regarding cause and circumstances of that death (4) Statement can only be used in a homicide prosecution (victim must be declarant) 5. Rule 804(b)(3). Statement against Interest A) Statement against interest (pecuniary (money), proprietary (property), civil(tort, contract) or penal(criminal)) at the time the statement was made (aware of the adversity). B) Different that admissions by party opponent because 1) statements against interest require the declarant to be unavailable to testify, 2) statements against interest do not have to have been made by parties or their agents, and 3) statements against interest must have been against the declarant’s pecuniary, proprietary, civil or penal interest at the time of utterance. C) The statement must be so far from the declarant’s interests that they would not have said it if it were not true. D) Statement against interest used to exculpate the accused must be supported with corroborating circumstances (1) Other evidence in the case that makes the defendant appear innocent (2) Circumstances surrounding the declaration (statement made to a priest) (3) Williamson decided that for statements against interest, use the narrowest form of the statement that reflects the party’s interest. (A) Excludes collateral (related) statements (B) Is the relevant portion integral to the whole? 6. Rule 804(b)(4) A) Statement of personal or family history. B) Statements concerning important personal or family milestones. 7. Rule 804(b)(5) A) Forfeiture by wrongdoing: a statement offered against a party who has wrongfully caused the declarant’s unavailability. 8. Rule 805. Hearsay within Hearsay A) May be admitted if exception applies at each level B) Examples (1) Notes by witness, read to jury as recorded recollection under 803(5), which recounted statements by coconspirators are admissible. (2) Conspirator statement quoting state of mind is admissible. (3) Witness testifying that declarant, immediately after telephone call to party’s business, quoting party’s secretary quoting party. Admissible triple hearsay. 9. Rule 806. Attacking and supporting credibility of declarant A) If hearsay is admitted, credibility of declarant may be attacked and then supported.

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