I.

Admissibility of relevant evidence R401-403

a. When evidence is relevant:
i. General rule: only relevant evidence can be admitted (R402)
ii. Definition: relevant evidence is evidence that makes a fact more or less likely
to be true without the evidence (R401)
b. Rule401- Definition of Relevant Evidence
i. Rel ev is evidence that makes a key fact either more or less likely to be true than
it would have been without the ev
c. Rule 402- Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
i. All relevane ev is admissible, unless otherwise provided by:
1. The US constitution OR
2. Act act of congress OR
3. The FRE OR
4. Other rules prescribed by the US SC pursuant to stty authority
ii. Evidence that is not relevant is inadmissible
d. Rule 403- Exclusion of Relevant Ev on Grounds of Prejudice, Confusion, or Waste of Time
i. Relevant ev may be excluded if its value is substantially outweighed by either:
1. The danger of:
a. Unfair prejudice OR
b. Confusion of the issues OR
c. Misleading the jury OR
2. OR Considerations of:
a. Undue delay OR
b. Waste of time OR
c. Needless presentation of cumulative ev
II. Types of Evidence
a. Overview
i. There are two general types of evidence:
1. Direct- evidence relating directly to the question of fact (example: Al
testifies that he saw Abe kill Lee)
2. Circumstantial- evidence that may indirectly shed light on a question of
fact (ex: Al testifies that Abe is very termperamental, hates Lee, and can
get very violent at times)
ii. There are special rules dealing w/ certain types of circumstantial ev (w/out
weighing the prejudice on a case by case basis); these include the following
1. Evidence describing a persons character (R404)
2. Ev of a persons habits (R406)
3. Ev regarding subsequent remedial measures (R408)
4. Whether a person has offered to compromise or compromised (R408)
5. Whether a person offers to pay medical expenses (R409)
6. Ev regarding whether a person has liability insurance (R411)
7. Ev regarding a persons sexual behavior(R412-415)
b. Character Evidence
i. Overview
1. Character ev is ev of a persons character or character traits
2. Generally inadmissible-
a. Normally character ev is inadmissible if it is used to show that a
person acted in a certain way (A lies. Therefore he lied this time)
3. The rules address 2 diff types of character ev
a. Character of the accused or alleged victim in a crim case:
i. Generally- character ev would be admissible if the
accused offered character ev about himself, or if the
accused offered ev and the wanted to rebut this ev
w/ contrary character ev (R404(a)). The prosecution
may also offer ev of a character trait where the accused
offers the character trait of the alleged victim first
ii. Homicide case- if the accused initially brings character
ev about the alleged victim, the may bring up
character ev (of the victims peacefulness) to prove that
the victim was not the aggressor
b. Character ev involving other acts, crimes, or wrongs
i. This type of ev is inadmissible to show that the accused
acted in a certain way
ii. But IS admissible for other purposes (conforming w/
general rule for character ev)
iii. Rule404(b) requires that the party who wants to bring
in this info must give notice
4. Acceptable methods of proving character (R405)
a. Reputation or opinion ev
i. Normally, admissible character ev may be proved only
by reputation or opinion ev (ex: dan accuses Shirley of
fraud. Max ma introduce ev that Shirley has a
reputation of defrauding her customers to prove that
there is no mistake or accident)
b. Specific instances of conduct
i. If the character/character trait is an essential element
of a charge, claim, or defense, ev of specific instnces of
conduct may be used as proof (ex: Shirley charged w/
murder. Max may introduce ev that she had done
something malicious in the past, b/c malice is an
essential element of murder)
c. Rule 404- Character ev not admissible to prove conduct; exceptions; other crimes
i. Character ev generally
1. Character ev is ev of a persons character or a character trait that they
possess
a. Admissibility
i. Character ev is NOT ADMISSIBLE to prove that a person
acted in keeping w/ that character
ii. Exceptions (the following character ev MAY be
admitted):
1. Character of accused (in crim case) if:
a. The ev is offered by the accused and is
pertinent OR
b. The evidence is offered by the to
rebut character ev offered by the
accused, OR
c. The ev is offered by the to show the
character trait of the accused, where
the accused offers the character trait of
the alleged victim (under R404(a)(2)),
and the ev is admitted
2. Character of the alleged victim in a crim case
and subject to rule 412 (sex offense cases)) if:
a. The ev is offered by the accused and is
pertinent, OR
b. The ev is offered by the prosecution to
rebut character ev offered by the
accused, OR
c. The ev is offered in a homicide case and
is
i. Offered by the AND
ii. Offered to show the
peacefulness of the alleged
victim of the homicide, AND
iii. Used to rebut ev that the
alleged victim was was the
aggressor
3. Character of the Witness (see rules 607, 608,
and 609)
b. Admissibility of ev of other crimes, wrongs, or acts
i. Ev of a persons other crimes, wrongs, or acts is NOT
admissible to prove that the person acted in keeping
with that character (i.e. in conformity therewith)
ii. Exceptions
1. Such ev may be admissible for other purposes,
such as proof of
a. Motive
b. Opportunity
c. Intent
d. Preparation
e. Plan
f. Knowledge
g. Identity
h. Absence of mistake or accident
2. Requirement (in a crim case): upon request of
the accused, the prosecution must provide
reasonable notice of the general nature of the
ev, either
a. Before trl
b. During trial, if the crt excuses pretrial
notice on good cause shown
d. R405- Methods of Proving Character
i. Reputation or opinion
1. In cases where character ev is admissible, proof may be made by:
a. Testimony as to reputation OR
b. Testimony in the form of an opinon
2. Specific instances of conduct may be explored as proof on cross exam
ii. Specific Instance of conduct
1. Specific instances of conduct may also be used as proof where a
persons character/trait is an essential element of a charge, claim, or
defense
e. Habits and routine practice
i. Overview
1. Ev regarding a persons habit or an organizations routine practice IS
admissible to prove conduct on a particular occasion
2. Business practices are usually enough to prove that an organization
acted in accordance w/ those practice on a particular occasion
ii. R406- Habit, Routine Practice
1. Ev thats admissible:
a. A persons habit (day after day after day after day) OR
b. The routine practice of an organization
2. Relevance: the ev is relevant to prove that certain conduct was in
keeping with that habit or routine
3. The ev is admissible regardless of:
a. Whether the ev has been corroborated OR
b. The presence of eyewitnesses to prove it
f. Subsequent Remedial Measures
i. Overview
1. Evidence of a measure that a person takes after an event (that would
have made the event less likely to occur had it been taken beforehand)
is admissible only to prove
a. Ownership
b. Control
c. Feasibility of precautionary measures (i.e. if they say it was
impossible to do so)
d. Impeachment
2. Ex: carl may prove that he owns blackacre by showing that he paid taxes
and maintained blackacre after the dispute arose
3. It is NOT admissible to prove
a. Negligence
b. Culpable conduct
i. Ex: ralph may not prove that Charles was neg merely by
the fact that after ralph fell on the sidewalk, Charles had
it repaired
ii. Policy- we want people to fix things. No one would fix
anything if they later could get hauled into crt just for
that
ii. R407- Subsequent Remedial Measures
1. This rule was amended to include product liability actions in the
exclusionary principle. It was also amended to clarify that the rule
applies only to remedial measure made AFTER the occurrence that
caused the damages
2. A subsequent remedial measure is:
a. A measure that is taken after injury or harm caused by an event,
AND
b. A measure that would have made the injury or harm less likely
to occur had it been taken earlier
3. Evidence of subsequent remedial measures taken is
a. Inadmissible to prove
i. Negligence, OR
ii. Culpable conduct, OR
iii. A defect In a product, OR
iv. A defect in a products design, OR
v. a need for a warning or instruction
b. Admissible for other purposes, like proving:
i. Ownership, OR
ii. Control, OR
iii. Feasibility of precautionary measures (if disputed), OR
iv. Impeachment
g. Compromises
i. Overview
1. Ev of a settlement of settlement negotiation is inadmissible to prove:
a. Liability of a claim
b. Invalidity of a claim or its amount
2. It is admissible to show:
a. Bias or prejudice of a witness
b. An absence of a contention of undue delay
c. Obstruction of a criminal investigation/prosecution
ii. R408- Compromise and Offers to Compromise
1. This rule applies to ev of
a. (a)(1) giving or receiving (or offering or promising to give or
receive) valuable consideration in a compromise/attempt to
compromise a claim, OR
b. (a)(2) conduct @ compromise negotiations (regarding the claim)
or a stmnt made in compromise negotiations (regarding claim)
2. INADMISSIBLE
a. If used to prove liability for or invalidity of a disputed claim or
its amount, OR
b. If used to impeach a prior inconsistent stmnt (or contradictions)
3. ADMISSIBLE for other purposes, like:
a. Proving bias of a witness
b. Negating a contention of undue delay
c. Proving an effort to obstruct a criminal investigation or
prosecution
h. Offers to pay medical expenses
i. Overview
1. Offers to pay medical expenses are inadmissible to prove liability and
admissible for any other relevant purpose
ii. R409- Payment of Medical and similar expenses
1. Ev of an offer or promise to pay medical, hospital, or other expenses, or
actually paying such expenses, that arose as a result of an injury is
inadmissible to prove liability for the injury
i. Please, Discussions, and related stmnts
i. Overview
1. Ev of a plea or stmnts connected w/ a plea in a proceeding for perjury
are admissible against a criminal , if the stmnt was made:
a. Under oath
b. On the record
c. In front of counsel
2. Such ev is also admissible if another stmnt made in the plea discussions
was introduced in the proceedings, and it is only fair if this stmnt is
considered together w/ the other stmnt(s)
3. The following is INADMISSIBLE
a. Guilty pleas that was later withdrawn
b. Nolo contendere plea
c. Stmnt regarding one of these
i. So always go for nolo contendere!
ii. R410- Inadmissibility of Pleas, plea discussions, and related stmnts
1. Scope: this rule applies to BOTH CRIM and CIVIL proceedings
2. Except as otherwise provided, the following is inadmissible against a
who either made a plea or participated in plea discussions:
a. Ev that a guilty plea was later withdrawn
b. Ev of a nolo contendere plea
c. Any stmnt made in the course of the proceeding under FRCP11
(signing motions, pleadings, etc)(or comparable st rule)
regarding the above
d. Ev of plea stmnts
i. Any stmnt made in the course of plea discussions w/ a
prosecutor that either
1. Did not result in a guilty plea, OR
2. Resulted in a guilty plea that was later
withdrawn
ii. Exceptions:
1. Stmnts ARE admissible if either
a. Another stmnt made in the plea
discussions has been introduced (and it
is only fair if this stmnt is considered
together with it), OR
b. In a criminal proceeding for perjury of
false stmnt, where
i. The was under oath, AND
ii. The stmnt was on the record,
AND
iii. The stmnt was made in front of
counsel
j. Liability Insurance
i. Overview
1. Ev to show that a person has insurance is ADMISSIBLE
a. To show agency, ownership, or control
b. To show bias or prejudice
2. It is INADMISSIBLE to show negligence or other wrongful act
ii. R411- Liability Insurance
1. Ev concerning whether or not someone is insured or liability is:
a. Inadmissible to prove negligence or other wrongful act
b. Admissible for other purposes, like:
i. Proof of agency, ownership, or control (paying
insurance on a car to prove its his)
ii. Proof of bias or prejudice of a witness (huh?)
k. Rules on Sexual Behavior
i. Overview
1. Changes to rule 412 in 1995
a. Ev concerning victims past sexual behavior and sexual
predisposition is generally INADMISSIBLE
b. The 1995 rule determining admissibility
i. For CRIMINAL cases, the rule is mostly the same except
that the new rule has provided a 3
rd
circumstance for
admitting ev.
1. Ev of specific instances may be admitted to
show past sexual behavior WITH THE ACCUSED
to prove consent (but you need a 412(c)
motion)
ii. In CIVIL cases, the new rule provides for the
admissibility of:
1. Sexual predisposition- if the value of the
evidence outweighs any danger or prejudice to
any party (Need 412(c) motion)
2. Reputation- only if the alleged victim placed it
in controversy (need a 412(c) motionbut not if
they do it IN trial)
2. Added rules 413, 414, and 415
a. Evidence that the committed similar crimes of sexual assault
and child molestation is admissible
i. In a criminal case in which the is accused of that
crime
ii. In a civil case in which a claim relies on a partys
alleged commission of conduct that constitutes an
offense of sexual assault or child molestation (think
mock trial casewrongful death, where it needs to be
proved that he was molesting her and thats why she
committed suicide)
ii. R412- Sex Offense Cases; Relevance of VICTIMS past behavior or alleged sexual
predisposition
1. Ev generally inadmissible: the following is not admissible in ANY civil or
criminal proceeding involving alleged sexual misconduct (see exceptions
in B and C)
a. Ev offered to prove that any alleged victim engaged in other
sexual behavior
b. Evidence offered to prove any alleged victims sexual
predisposition
2. Exceptions
a. Criminal Case: the following is admissible in a criminal case (if
otherwise admissible):
i. Ev of specific instances of sexual behavior by the alleged
victim AND that is offered to prove that someone other
than the accused was the source of semen, injury, or
other physical ev (i.e. its prob going to be that same
day/night/party/whatever)
ii. Ev of specific instances of sexual behavior by the alleged
victim (w/ respect to the person accused) AND that is
offered by:
1. The accused to prove consent
2. The prosecution
b. In a Civil Case: the following is admissible in a civil case
i. Evidence offered to prove sexual
behavior/predisposition of any alleged victim is
admissible if
1. Otherwise admissible under FRE, AND
2. Its probative value substantially outweighs the
danger of harm to any victim and of unfair
prejudice to any party (i.e. going to do a
backwards 403 determination here)
3. Procedure to determine admissibility
a. Requirements of the proponent: someone who wishes to offer
ev under one of the 412(b) exceptions MUST
i. File a motion
1. In writing, AND
2. At least 14 days b4 trl (unless for good cause crt
says shorter time ok)
3. And specifically desvribe the ev, AND
4. Stating the purpose for which it is offered, AND
ii. Serve the motion on all parties and notify the alleged
victim (or alleged victims rep or guardian)
b. Requirements of the court:
i. The crt must conduct a hearing in camera and give the
alleged victim and parties a rt to be heard b4 trl
ii. The crt must seal the motion, related papers, and the
record of the hearing (
iii. R413- Evidence of Similar Crimes in Sexual Assault Cases
1. Admissibility of ev of similar crimes
a. Type of ev admissible: ev that the committed another offense
of sexual assault (the ev is admissible, and may be considered
on any relevant matter)
b. when admissible: in a criminal case in which the is accused of
an offense of sexual assault
2. Requirements for the government when it intends to offer ev under this
rule
a. The attorney for the gov must disclose the ev to the m
including stmnts of witnesses or a summary of any testimony
that is expected to be offered
i. At least 15 days before t he scheduled date of trl, OR
ii. At such later time as the crt may allow for good cause
3. This rule shall not affect any other rule
4. offense of sexual assault- for purposes of this rule and R415, offense
of sexual assault means a crime under fed law or the law of a st
iv. R414- Evidence of Similar crimes in Child Molestation Cases
1. Admissibility of ev of similar child molestation crimes
a. Ev that the committed another offense of child molestation
(the ev is admissible and may be considered on any relevant
matter)
b. when admissible: in a criminal case in which the is accused of
an offense of child molestation
2. Requirements for the government when it intends to offer ev under this
rule
a. The attorney for the gov must disclose the ev to the m
including stmnts of witnesses or a summary of any testimony
that is expected to be offered
i. At least 15 days before t he scheduled date of trl, OR
ii. At such later time as the crt may allow for good cause
3. This rule shall not affect any other rule
v. R415- evidence of similar acts in Civil cases
1. Admissibility of ev of similar crimes in civil cases
a. Type of ev admissible: ev of a partys commission of another
offense of sexual assault or child molestation (the ev is
admissible and may be considered on any relevant matter)
b. When admissible:
i. In a civil case, AND
ii. In which a claim for damages (or other relief) relies on a
partys alleged commission of conduct, AND
iii. That conduct constitutes an offense of sexual assault or
child molestation
2. Requirements for a party who intends to offer ev under this rule
a. The party must disclose the ev to the , including:
i. stmnts of witnesses, OR
ii. a summary of any testimony that is expected to be
offered
b. Disclosure must be made
i. At least 15 days before the scheduled date of trl, OR
ii. At such later time as the court allows for good cause
III. Privilege
a. General rule- priv governed by CL (unless otherwise set forth in formal legislation).
i. State law, however, governs civil actions and proceedings if st law governs an
element of a claim or defense
1. Only covers communications, not observations
2. Unclear when its a stmnt that is not strictly communicative (i.e.
showing someone a wound)
ii. Must intend for the communication to be confidential to invoke priv
1. Extends to other law firm members, experts retained by attorney
a. BUT, it is the LAWYER who chooses what intermediaries/experts
are necc, so if a client invites a 3
rd
party, the priv does not apply
to them and they can testify
b. Inadvertent disclosure and Waiver of Priv
i. Inadvertent disclosure is not necessarily a waiver of priv
ii. Priv can only be waived if
1. Its intentional
2. Both the disclosed and undisclosed communications or information
concern the same submat
3. The disclosed and undisclosed info should in fairness be considered
together
iii. Any waiver will apply only to the particular communication or information
disclosed
iv. An inadvertent disclosure will NOT waive priv or work product protection as
long as the producing party took reasonable steps to prevent disclosure and
promptly took reasonable steps to rectify the error
c. The consequences of disclosures in st and fed proceedings:
i. Where the initial disclosure is in fed proceeding, the rule is binding on state crts
and fed crt-mandated arbitration proceedings
ii. Where the initial disclosure is in st crt, and the waiver issue is being decided in a
subsequent fed proceeding, the decision is governed by either R502 or st law,
whichever is most protective against waiver
iii. The rule has no effect where the initial disclosure is in st crt and the waiver issue
is being decided in a sub st proceeding
d. Agreements btwn parties will be recognized and could bind third parties and later
litigation
IV. Hearsay
a. Overview
i. Rules 803, 804 and 805 provide exceptions to the hearsay rule. R803 gives
exceptions that DO NOT DEPEND ON THE AVAILABILITY OF THE DECLARANT
whereas R804 exceptions are conditioned on THE DECLARANTS
UNAVAILABILITY. R805 gives the exception for hearsay w/In hearsay
b. R801- Hearsay, generally
i. Definition:
1. Basically, hearsay is a stmnt made outside of court
2. To prove the truth of the matter asserted
3. Not otherwise excluded by 801(d)
ii. Statements which are NOT hearsay
1. Prior statements by witness-
a. A prior stmnt is not hearsay if the declarant testifies and is
subject to cross, AND
b. The stmnt is either
i. Inconsistent w/ the testimony and was given under
oath (@ trl, hearing, other proceedingthink
impeaching in mock off of signed depos) OR
ii. Consistent w/ prior testimony and is offered to dispute
a charge (express or implied) that the declarant
1. lied
2. was subject to improper influence
3. had an improper motive
iii. identifies a person who was seen (or heard)
2. Admissions by party-opponent
a. A stmnt that is offered against a party is NOT hearsay if:
i. The stmnt is the partys own stmnt (as an individual or
as a rep)
ii. The party seems to have adopted or believed the stmnt
to be true
iii. The person making the stmnt was authorized by the
person to speak
iv. the stmnt was
1. made by an agent or servant, AND
2. made during the existence of the relationship,
AND
3. concerning an issue w/in the scope of the
relationship, OR
v. the stmnt was made by a co-conspirator DURING the
pendency of of the conspiracy, and in order to advance
the conspiracy
b. the contents of the stmnt will be considered, but that is NOT
enough in itself to prove
i. the declarants authority under C
ii. the agency or employment relationship and its scope
(under d)
iii. the existence of a conspiracy and the declarants
participation w/ the party against whom the stmnt is
offered.
c. R802- The hearsay rule
i. Hearsay is INADMISSIBLE
1. Exceptions:
a. Where the FRE says its ok
b. Other rules prescribed by the US SC pursuant to stty authority
d. R803- Hearsay Exceptions immaterial of availability of declarant
i. THE HEARSAY RULE DOES NOT APPLY TO THE FOLLOWING (EVEN THOUGH THE
DECLARANT IS AVAILABLE AS A WITNESS)
ii. Present sense impression
1. Describing or explaining an event/condition, AND
2. Made while or immediately after the declarant was experiencing the
event/condition
a. Immediacy is key- declarant talks w/out speaking, not enough
time has passed to lie/forget and attention focused (indicia or
reliability)
iii. Excited utterance
1. This is a stmnt:
a. About a startling event/condition, AND
b. Made while the declarant was under the stress of excitement
cause by the event/condition
i. Immediacy/excitedment is key. Ditto w/ aboce
ii. Nuttal v. Reading Co
1. Train accident, widow suing, wants to put into
ev of her husbands phone convo w/ boss telling
him he was sick and to prove he felt pressured
to go in.
2. Allowed, comments made on the phone and
immediately after are an exception b/c used to
prove his present sense impression of pressure
iii. US v. Arnold
1. Arnold called 911. Crt said admissible as excited
utterance. Stress of situation led to stmnt
a. There must be startling event/nervous
excitement
b. the stmnt must be made b4 there is
time to contrive or misrepresent
c. the stmnt must be made while the
person is under the stress of the
excitement caused by the event
iv. cases do not demand a precise showing of lapse of time
btwn startling event and the stmnt
c. crts tend not to require additional ev of an exciting event
iv. Then Existing mental, emotional, or physical condition
1. These are stmnts of the declarants then existing (at the time the stmnts
are made(
a. State of mind
b. Emotion
c. Sensation
d. Physical condition
e. Examples: intent, plan, motive, design, mental feeling, pain,
bodily health
2. Hillmon Doctrine- does not req st of mind to be @ issue; instead st of
mind of the declarant is used inferentially to prove other matters @
issue. When a particular act by an individ is an issue in a case, his
intention to perf that act may be shown
a. Can only be used to show future conduct of the declarant, not
future conduct of another person (ACN notes/US v. Pheaster)
3. This does NOT include stmnts of memory (to prove the fact
remembered) or belief (to prove the fact believed) unless the stmnts is
about the declarants will.
a. Mental state is paramount in "wills" cases
b. b/c he is likely to be well informed on the subject, AND
c. Likely to be dead when the matter is litigated, suggesting a
strong need for ev of what he has said, AND
d. His own views on the subject may be as trustworthy as live
testimony by interested parties disputing the disposition of the
estate
4. It DOES allow for th mental state of nonparties in issue, ex: suits alleging
loss of business good will
v. Stmnts for purposes of medical diagnosis or treatment
1. These are stmnts:
a. Made for purposes of medical diagnosis or treatment, AND
b. Describing any of the following (as long as they are reasonably
related to the diagnosis or treatment):
i. Proper foundation necessary for R803(4)
ii. The Renville test requires that
1. The declarants motice in making the stmnt is
consistent w/ the purpose of promoting
treatment or diagnosis, and
2. That the content of the stmnt is reasonably
relied on by a physician in treatment or
diagnosis
iii. The ACN says that stmnts as to fault do not ordinarily
qualify as medical stmnt
1. Thus, saying I was struck by a car is ok
2. NOT OK to say the car was driven through a
red light
vi. Recorded Recollection (aka Past recollection recorded)
1. This is a memorandum or record that
a. Concerns an issue tha the witness had knowledge about but to
which he can no longer remember enough to testify fully and
accurately, AND
b. Was made or recorded when the issue was fresh in the mind of
the witness, AND
c. Correctly represents the witnesss knowledge
2. If admitted, the memo or record may be read into evidence but may not
be submitted as an exhibit (unless offered by an adverse party)
3. Requires:
a. Proper foundation, AND
b. The declarant witness to testify
i. Can be a stmnt that was made or adopted
vii. Records of regularly conducted Activity
1. Records include the following things:
a. Memoranda
b. Reports
c. Records
d. Data compilations (in any form), AND
2. They record:
a. Acts, or
b. Events, or
c. Conditions, or
d. Opinions, or
e. Diagnosises
3. Four elements
a. Regular business AND regularly kept record
i. Exception covers only records of a regularly conducted
business activity
ii. And they REGULARLY keep records of this activity
b. Contemporaneity
i. Made AT or NEAR the time of the act or event
c. Personal knowledge of source
i. The source of info must be someone w/ personal
knowledge (custodian of records or some other
qualified witness)
ii. Does NOT need to be the person who made the record
(watch here for hearsay w/in hearsay)
d. Foundation testimony
i. Every hearsay reqs foundation, but this one expressly
contemplates either testimony by the custodian of
records or other qualified witness OR
ii. Certification by such a person,