Evidence February 2016

I.

Relevance: tendency to make a material fact more or less probable than would be the case w/o the evidence
a. Admissibility: All relevant evidence is admissible unless (i) an exclusionary rule applies or (ii) discretionary determination of court that
evidences probative value is substantially outweighed by one or more pragmatic considerations: (1) unfair prejudice, (2) confusion of the
issues, (3) misleading the jury, (4) undue delay, (5) waste of time or (6) unduly cumulative
b. Similar Occurrences: inadmissible except:
i. Plaintiffs Accident History if the causality is in issue (to show that something else caused the injury)
ii. Similar Accidents Caused by Same Instrumentality or Condition if the other accident1 occurred under substantially similar
circumstances2 to show (1) existence of a dangerous condition, (2) causation of the accident or (3) prior notice to Defendant
iii. Intent in Issue: if prior similar conduct of a person raises an inference of the persons intent on a later occasion (ex: discrim. hiring)
iv. Comparable Sales on Issue of Value to show some evidence of value of property if of similar type, in same general location and sale
close in time to period at issue
v. Habit of a person (or routine of a business org) as circumstantial evidence of how the person (or business) acted on the occasion at
issue in the litigation.
1. Habit = repetitive response3 to a particular set of circumstances, defined by (1) frequency of conduct and (2) particularity of conduct
2. Business Routine Example: to prove letter was mailed by CEO: evidence that CEO put letter in outbox & messenger routinely
picks up mail in CEOs outbox at 3 each business day for delivery to mail room
vi. Industrial Custom as Standard of Care: Evidence as to how others in the same trade or industry have acted in the recent past
admissible as some evidence as to how a party in the instant litigation should have acted
c. Policy-Based Exceptions
i. Liability Insurance: inadmissible for the purpose of proving fault, but allowed (1) to prove ownership or control of instrumentality or
location if that issue is disputed or (2) to impeach a witness (most likely bias) judge will need to give limiting instruction to jury
1. Policy: (1) avoid risk that jury will base decision on availability of insurance instead of merits of case and (2) encourage purchase of
liability insurance
ii. Subsequent Remedial Measures: inadmissible to prove (1) negligence, (2) culpable conduct, (3) product defect or (4) need for
warning, but admissible to show (1) proof of ownership/control or (2) feasibility of safer condition if either is in dispute by D
1. Policy: to encourage post-accident repairs, etc. to avoid future accidents
2. Note: in a products liability action based on strict liability, the manufacturers subsequent remedial measures are inadmissible to
show the existence of a defect in the product at the time of the accident. Fed rule differs from the rule in some states.
iii. Settlements of Disputed Civil Claims: Evidence of a settlement, offer to settle or statements of fact made during settlement discussion4
are inadmissible to show liability or to impeach a witness as a prior inconsistent statement
1. Exceptions
a. Admissible for the purpose of impeaching a witness on the ground of bias
b. Statement of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in a
later criminal case (Enron) b/c public policy favors prosecutors use of highly probative factual evidence (Does not apply to
settlements and offers to settle)
c. Plea Bargaining in Criminal Cases The following are inadmissible:
i. Offer to plead guilty: cant be used against D in pending criminal case or in subsequent civil litigation based on same facts
ii. Withdrawn guilty plea: cant be used against D in the same pending crim case or in subsequent civil lit based on same facts
iii. Plea of nolo contendere (no contest): cant be used against D in subsequent civil lit based on same facts
iv. Statements of fact made during any of the above pleas
v. BUT: a plea of guilty (not withdrawn) is admissible in subsequent litigation based on the same facts as a party admission
iv. Offer to Pay Hospital or Medical Expenses: inadmissible to prove liability (no need to show existence of a disputed claim) but does
not extend to other statements made in connection with an offer to pay hospital or medical expenses
d. Character Evidence ones general propensity or disposition (e.g. honesty, fairness, peacefulness, violence)
i. Acceptable Purposes
1. Persons character is an essential element in the case
2. Circumstantial evidence of persons conduct on a particular occasion
3. Witnesss bad character for truthfulness to impeach credibility
ii. Criminal Cases
1

Applies also admissibility of experiments and tests

Key factors would be things like weather, lighting, traffic conditions
3
Key words: always, never, invariable, automatically, instinctively
4
Claim must be in dispute at time of discussion (as to either validity of claim or amount of damages)
2

Defendants Character: Prosecution may not use evidence of Ds character to prove conduct on a particular occasion in its case-inchief but D may introduce evidence of a relevant character trait through reputation or opinion testimony to prove his conduct 5,
which opens the door to rebuttal by the prosecution
2. Prosecutions Rebuttal: If D opens the door, prosecution may rebut by (1) calling its own reputation or opinion witnesses to
contradict Ds witnesses or (2) impeaching character witnesss knowledge about D through cross-ex of Ds character witnesses with
Have you heard? or Did you know questions about specific acts of D that reflect adversely on the particular character trait that
D had introduced (prosecution must have good faith basis for question & cant prove act occurred)
3. Victims Character Self-Defense: Criminal D may introduce evidence of Victims violent character through reputation and
opinion testimony as circumstantial evidence that victim was first aggressor if D claims self-defense. Prosecution may rebut with
evidence of Victims good character for peacefulness through opinion or reputation testimony or may prove Ds character for
violence. In a homicide case, prosecution may introduce evidence of Victims good character for peacefulness if D offers evidence
of any kind that Victim was the first aggressor.
a. Separate Rule of Relevance: If D claims he was aware of Victims reputation or prior specific acts of violence, such awareness
may be proven to show Ds state of mind (fear) to prove he acted reasonably in responding as he did to the victims aggression
iii. Victims character - Sexual Misconduct: Under Rape Shield Laws, opinion or reputation evidence about Vs sexual propensity &
evidence of specific sexual behavior of victim is ordinarily in admissible
1. Criminal Case Exceptions: (1) Specific sexual behavior of V to prove someone other than D was source of semen or injury to
victim; (2) Vs sexual activity with D if defense of consent is asserted; (3) Where exclusion would violate Ds right of due process
(Love Triangle Defense)
2. Civil Case Exception: evidence of Victims specific sexual behavior or sexual propensity if probative value substantially outweighs
the danger of harm to the victim and unfair prejudice to any party
iv. Civil Cases: Character evidence is generally inadmissible to prove a persons conduct on a particular occasion but is admissible where
such character is an essential element of a claim or defense (defamation, tort alleging negligent hiring or entrustment, child custody
dispute) reputation, opinion and specific acts all OK
e. Defendants Other Crimes for Non-Character Purposes: Not admissible to suggest that D more likely to have committed crime, but Ds
bad acts or other crimes may be admissible to show something specific about the crime currently charged MIMIC: Motive, Intent,
Absence of Mistake or Accident, Identity, Common Scheme or Plan
i. Method of Proof: conviction or evidence (witnesses, etc) sufficient for a reasonable juror to conclude D committed other crime
ii. Notice: Upon Ds request, prosecution must give pretrial notice of intent to use MIMIC evidence
iii. Civil Cases: MIMIC evidence allowed if relevant to a non-character purpose (e.g., torts of fraud & assault)
f. Other Sexual Misconduct to Show Propensity in Sex-Crime Prosecution or Civil Action: Ds prior specific acts6 of sexual assault
admissible as part of prosecution/plaintiffs case-in-chief to show Ds propensity for sexual assault. Same rule allows prior acts of child
molestation in child molestation cases. (Idea is that these acts are unique WRT Ds propensity to commit them)
II. Authentication of Writings: If the relevance of a writing depends on its source/authorship, it must be shown to be genuine In the
absence of stipulation as to authenticity, a foundation must be made in order to admit the document
a. Conditional Relevancy Standard: Document is admissible if court determines there is sufficient evidence from which a reasonable juror
could conclude that the document is genuine
b. Methods of Authentication
i. Witnesss personal knowledge (e.g., witness observed X sign the doc)
ii. Proof of Handwriting: Lay Person Opinion (if familiar w/handwriting); Expert Comparison Opinion; Jury Comparison
iii. Proof by Circumstantial Evidence (e.g. appearance, contents, substance, internal patterns, other distinctive characteristics)
iv. Ancient Document Rule: authenticity inferred if doc is (1) 20+ yrs old, (2) facially free of suspicion (i.e., no erasures, ripped pages,
etc) and (3) found in a place of natural custody
v. Solicited Reply Doctrine: Authentication by evidence that it was received in response to a prior communication to the alleged author
c. Self-Authenticating Documents presumed authentic, so no need for foundation testimony (BoP to prove forgery shifts): (1) official
publications, (2) certified copies of public or private records on file in public office, (3) newspapers or periodicals, (4) trade
inscriptions and labels, (5) acknowledged documents, (6) commercial paper
d. Photographs: Witness may testify on basis of personal knowledge that photo is a fair & accurate representation of people/objects portrayed
III. Best Evidence Rule: a party who seeks to prove the contents of a writing7 must either produce the original writing or provide an acceptable
excuse for its absence. If excusedsecondary ev (oral testimony or copy) OK
a. Application: when a party is seeking to prove the contents of a writing
1.

Must be relevant, but we do let witnesses say that D is law-abiding but its deemed to apply only to the trait at issue.
Reputation/Opinion evidence not allowed. Prior acts only (does not have to be conviction)
7
writing includes sound records, X-rays and films
5
6

i. Situations: (1) writing is a legally operative document (i.e. creates rights/obligations like a deed, patent, K, mortgage) or (2) witness is
testifying to facts that she learned solely from reading about them in a writing
ii. Inapplicable: when a witness w/personal knowledge testifies to a fact that exists independently of a writing that records the fact
b. Original Writing = (1) whatever the parties intended as the original; (2) Counterparts intended to have the same effect; (3) any negative of
film or print from negative; (4) computer print-out
i. Duplicate (accurate reproduction by mechanical means): admissible unless it would be unfair (e.g. fuzzy fax) or genuine question is
raised as to authenticity of original
ii. Handwritten copies are neither an original nor a duplicate
c. Excuses for Non-Production of an Original: secondary evidence is admissible by a preponderance of the evidence that the original (1) is lost
or cannot be found with due diligence, (2) was destroyed without bad faith or (3) cannot be obtained with legal process
d. Escapes
i. Voluminous records (may be presented thru a summary/chart, provided originals would be admissible & are available for inspection)
ii. Certified copies of public records (instead of originals)
iii. Collateral Documents (may be proven by secondary evidence; judge has discretion to determine whats collateral)
IV. Witnesses
a. Competency Requirement: To testify, W must (1) have Personal Knowledge & (2) take Oath/Affirmation
b. Dead Mans Statute not under federal rules, but some states have such a statute: In a civil action, an interested witness is
incompetent to testify against the estate of a decedent concerning a transaction or communication between the interested witness and the
decedent (under fed rule, W not ordinarily incompetent merely b/c of interest (direct legal stake) in outcome)
c. Leading Questions (where form of questions suggests the answer): Generally allowed on cross-examination of witness but not allowed on
direct examination except for (1) preliminary introductory matters, (2) youthful or forgetful witness, (3) hostile witness, (4) opposing party or
someone under control of opposing party
d. Writing in Aid of Oral Testimony
i. Refreshing Recollection: If W cant remember something, W may be shown a memo or other tangible item to jog his memory (but he
may not read from it or introduce it into evidence). Adversary may (1) inspect it (2) use it on cross-x (3) introduce into evidence.
ii. Past Recollection Recorded (Hearsay Exception): The contents of a writing may be read into evidence if (1) showing the writing fails
to jog Ws memory (2) W had personal knowledge at former time (3) writing was made or adopted by W (4) making/adoption occurred
while fresh in Ws memory and (5) W can vouch for accuracy of writing when made/adopted. W may not introduce the writing into
evidence, but adversary may.
e. Opinion Testimony
i. Lay Witness Opinion: must be (1) rationally based on Ws own perception (personal knowledge) + (2) helpful to jury in deciding a fact
ii. Expert Witness Opinion: Requires (1) qualification, (2) proper subject matter, (3) basis of opinion, (4) relevance/reliability
1. Qualification: may be based on education or experience
2. Proper Subject Matter: scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact
3. Basis of Opinion: Experts opinion must be based on reasonable degree of probability or reasonable certainty
a. Permissible Data Sources: (1) personal knowledge (2) other evidence in trial record made known to expert by hypothetical
question (3) facts outside the record (hearsay) if outside material is of a type reasonably relied upon by experts in the field in
forming opinions
b. The content of facts outside the record may not be disclosed to the jury unless the judge determines that it will help jury to
evaluate experts opinion (i.e. credibility). Admitted w/warning/instruction to consider it only to evaluate experts opinion.
4. Relevance and Reliability: Expert opinion must be relevant to the issue at hand and sufficiently reliable
a. Daubert Standard (TRAP): (1) Testing of the principles/methods (2) Rate of Error (3) Acceptance by other experts in the
discipline (level of acceptance is a factor, but consensus/general acceptance not required) (4) Peer Review & Publication
5. Learned Treatise in Aid of Expert Testimony: Learned treatises may not be introduced as an exhibit but relevant portions may be
read into evidence as substantive evidence (1) on direct exam, to prove the truth of matter asserted if established as reliable and
(2) on cross-ex, to impeach and contradict expert
iii. Ultimate Issues: Opinions (lay or expert) as to ultimate issue are not objectionable unless, in a crim case, an expert seeks to opine that D
did/not have relevant mental state (limited to general terms about effects of Ds mental condition w/o linking it to particular case)
f. Right of Cross-Examination: Party has a right to cross-ex any opposing witness who testifies at trial as to (1) matters within the scope of
direct exam and (2) matters that test Ws credibility (if such right impaired, at minimum, Ws testimony is struck)
g. Credibility and Impeachment: Impeachment of ones own witness is allowed, but bolstering of own witness is not allowed unless (1) Ws
credibility has been attacked (i.e., rehabilitation) or (2) prior identification of person
h. Impeachment Procedure: Either (1) Confront W or (2) Prove w/Extrinsic Evidence (documentary ev or testimony from other witnesses)
i. Extrinsic evidence may be used for all methods below except (1) bad acts and (2) collateral contradictory facts
ii. Confrontation of W not required prior to introduction of extrinsic evidence unless it proves bias
i. Impeachment Methods

i. Prior Inconsistent Statements: On prior occasion, W made a material statement (orally or in writing) inconsistent w/her trial testimony
1. Admissible only to impeach unless W is currently subject to cross-ex and statement was made orally under oath as part of a
formal hearing proceeding, trial or deposition (incl. grand jury)may be admitted as substantive evidence (hearsay exclusion)
2. W must be given an opportunity at some point to return to stand to explain/deny the prior inconsistent statement, unless W is the
opposing party (in which case statement can be used against that party as substantive evidence party admission).
ii. Bias, Interest or Motive to Misrepresent: May be based on any fact that would give a W a reason to testify favorably or negatively
about a partys case (to suggest testimony is false, slanted or mistaken in partys favor), incl. plea bargains. W must be confronted while
on stand if extrinsic evidence is to be used.
iii. Sensory Deficiencies: anything that could affect Ws perception or memory (purpose is to suggest mistake)
iv. Bad Reputation or Opinion about Ws Character for Truthfulness: A character witness may testify that target witness has a bad
reputation for truthfulness, or that character witness has low opinion of target witnesss character for truthfulness in order to suggest that
target witness is not telling the truth on the witness stand, but character witness cannot discuss any specific acts.
v. Criminal Convictions: Sometimes may be introduced to suggest testimony is false (i.e., declarant more likely to lie under oath)
1. The conviction or related release from prison (whichever is later) must be within 10 years of trial, unless proponent shows that the
probative value on credibility is substantial
2. If the crime required proof of a false statement, admissible whether felony or misdemeanor
3. If conviction did not require false statement, then (1) it must be a felony, and (2) the court may exclude if probative value on W
credibility is outweighed by unfair prejudice to a party. Factors to admit: seriousness of crime; relation to deception and stealth.
Prejudice factors: similarity to case being tried, inflammatory nature of prior crime.
vi. Bad Acts (w/o conviction) Reflecting Adversely on Ws Character for Truthfulness: allowed if cross-examiner has a good-faith
basis for the inquiry, and permission to make the inquiry is subject to the courts discretion. Inquiry limited to (1) confrontation of
witness on cross-examination about (2) the act of untruthfulness itself, not its consequences (e.g. job termination, civil judgment, arrest)
vii. Contradiction: Cross-examiner through confrontation of W may try to obtain admission that W made a mistake or lied about any fact
testified to during direct exam. If witness admits mistake/lie impeachment by contradiction, however if W sticks to her story,
extrinsic evidence may be introduced to prove the contradictory fact (unless such fact is collateral)
j. Rehabilitation of Witness
i. If W impeached for truthfulness (iv, v or vi), W may introduce reputation and opinion evidence showing witnesss good character for
truthfulness
ii. Prior Consistent Statements may be used to rebut a charge of recent fabrication, inconsistency, sensory deficiency
1. If Ws trial testimony is charged as a recent fabrication (product of recent improper influence or bias), a prior statement by W that is
consistent with her testimony is admissible to rebut the charge if made before the motive to fabricate arose.
2. A prior consistent statement that fits within the rebuttal rules is admissible to rehabilitate credibility and as substantive evidence that
the prior statement was true (hearsay exclusion)
V. Privileges: apply lecture rules unless in fed court under diversity jx, in which case state law applies
a. Attorney-Client Privilege8: To encourage client to speak openly to counsel, applies to confidential communications b/w attorney & client
(or representative of either) made during a legal, professional consultation unless privilege is waived by client or unless (1) future crime or
fraud (2) where client puts legal advice in issue (3) attorney-client disputes
i. Confidential Communications: covers the exchange of info b/w attorney& client but excludes (1) clients knowledge of the underlying
information, (2) pre-existing documents, and (3) physical evidence
1. Client must have reasonable expectation of confidentiality
2. Joint Client Rule: If 2+ clients w/common interest consult same attorney, their communications w/counsel WRT the common
interest are privileged as to third parties. If the joint clients later have a dispute with each other WRT the common interest, privilege
does not apply between them.
ii. Attorney = member of the bar or person that client reasonably believes is a member of the bar. Rep of attorney includes any agent
reasonably necessary to facilitate the provision of legal services
iii. Client = includes person seeking to become client (privilege attaches at outset of formal consultation w/attorney even if client does not
retain attorney). Rep of client includes any agent reasonably necessary to facilitate the provision of legal services (for corporate client,
any employee who communicates with corps attorney to enable attorney to provide legal services to corp)
iv. Professional legal consultation: primary purpose of communication must be to obtain/render legal services, not business or social advice
v. Waiver
1. Voluntary Waiver: only client has power to waive (or, after death, clients estate)

Procedural Rules: If fed-ct action arises under fed. Substantive law, privileges are governed by the principles of the common law as they may be interpreted by the fed. Courts in the
lights of reason and experience. If fed-ct action based on diversity, fed ct must apply privilege law of the state whose substantive law is applicable (also state law on competency and
burdens of proof and presumptions)

2.

Subject Matter Waiver: a voluntary waiver of privilege as to some communications will also waive the privilege as to other
communications if (1) the partial disclosure is intentional (2) the disclosed and undisclosed communications concern the same
subject matter and (3) fairness requires that the disclosed and undisclosed communications be considered together
3. Inadvertent Waiver: does not waive privilege so long as the privilege holder (1) took reasonable steps to prevent the disclosure and
(2) takes reasonable steps to correct the error
b. Physician-Patient Privilege: Applies to confidential communication or info acquired by physician from patient for purpose of diagnosis or
treatment of medical condition (usually created by state statute), unless patient expressly or impliedly puts physical/mental condition in issue
i. applicable to psychotherapists (social workers, psychologists)
ii. Federal law distinction: no physician only psychotherapy-patient privilege (applies to action based solely on federal law)
c. Spousal Privileges
i. Spousal Immunity (Criminal Cases Only): A spouse cannot be compelled to testify about anything against Defendant spouse,
but Witness Spouse may voluntarily testify. Only applies during marriage.
ii. Confidential Communications between Spouses: a spouse is not reqd and is not allowed in the absence of consent by the
other spouse to disclose confidential communication (statements or acts) made by one to the other during the marriage.
iii. Exceptions to Both Privileges: (1) Communications or acts in furtherance of jointly-perpetuated future crime or fraud (2)
Communications or acts destructive of family unit (spousal/child abuse) (3) Litigation b/w spouses (divorce, breach of K)
VI. Hearsay: out-of-court statement of a person9 offered to prove the truth of the matter asserted in the statement Hearsay is inadmissible unless
an exception or exclusion applies (b/c declarants credibility at the time was not tested thru cross-ex in presence of current fact-finder)
a. Non-Hearsay Purposes
i. Verbal Act (Legally Operative Words): substantive law attaches rights & obligations to certain words simply b/c they were spoken
(applies to K formation, patent/copyright, gift-making, bribes, perjury, fraud)
ii. To Show Effect on Person Who Heard or Read the Statement: puts listener on notice
iii. Circumstantial Evidence of Speakers State of Mind
b. Prior Statements of Trial Witness: inadmissible hearsay if offered to prove the truth of the matter asserted in the statement, unless an
exception or one of three exclusion applies:
i. Witnesss prior statement of identification of a person
ii. Witnesss prior inconsistent statement if oral, under oath and made during formal trial, hearing, proceeding or deposition
iii. Witnesss prior consistent statement to rebut charge of recent fabrication, contention of inconsistency or sensory deficiency
c. Party Admissions (Statement of an Opposing Party): any statement made by an opposing party is admissible for its truth if offered against
the opposing party. Considered exclusion or non-hearsay. Party can explain to jury but cant complain about inability to cross-exam self
i. Adoptive Admission: If a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made
the statement. Adoption by silence occurs when a party who hears another persons statement remains silent under circumstances in
which a reasonable person would protest if the statement were false
ii. Vicarious Party Admission: Statement by agent/employee is admissible against principal/employer if statement concerns matter within
scope of agency/employment and is made during the existence of the agency/employment relationship
iii. Co-conspirators Statement: The statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the
statement was made during and in furtherance of the conspiracy.
d. Right of Confrontation: 6th Am right of confrontation requires that the criminal defendant be confronted 10 with the witnesses against him.
i. In the hearsay context, prosecution may not use a hearsay statement against the criminal D (even if it falls within an exception) if (1)
statement is testimonial; (2) declarant is unavailable; and (3) D has had no opportunity for cross-ex (either before or at trial)
ii. testimonial = grand jury testimony, statements in response to police interrogation if the primary purpose of the questioning is to
establish or prove past events potentially relevant to a later criminal prosecution (excludes questioning to enable police assistance to
meet an ongoing emergency), sworn affidavits, forensic lab report if primary purpose is to accuse a targeted individual of criminal
conduct (excludes DNA report). Excludes Business Records.
e. Hearsay Exceptions
i. Forfeiture by Wrongdoing (Declarant Unavailable11 due to Ds Wrongdoing): Any type of hearsay statement is admissible against D if
court finds (1) by a preponderance of the evidence (2) that Ds wrongdoing was designed to prevent the witness from testifying
ii. Former Testimony: the former testimony of a now-Unavailable witness, if given at a former proceeding or in a deposition, is admissible
against a party who on the prior occasion had an opportunity and motive to cross-ex or develop the testimony of the witness if the issue
in both proceedings is essentially the same
iii. Statement Against Interest: an Unavailable Declarants statement against his pecuniary, proprietary or penal interests (must be against
interest when made). Statement against penal interest must be supported by circumstances showing trustworthiness of the statement.
9

Excludes animals, machines.

Confrontation = opportunity for cross-ex by D
11
Unavailability Grounds = (1) privilege, (2) absent from jx; (3) illness/death, (4) lack of memory, (5) stubborn refusal to testify
10

iv. Dying Declaration: statement made under a belief of impending and certain death by a now-Unavailable declarant concerning the cause
or surrounding circumstances of declarants death. Available in any type of civil case; only available in criminal cases of homicide (if
made to police, prob OK to admit)
v. Exited Utterance: Statement concerning a startling event and made while declarant is still under the stress of excitement cause by the
event (excitement suspends ones capacity to fabricate). Factors to consider: 1. Nature of event, 2. Passage of time, 3. Visual clues
(exclamatory phrase, excitement-oriented verb, exclamation point)
vi. Present Sense Impression: Description of an event made while the event is occurring or immediately thereafter
vii. Present State of Mind: Contemporaneous statement concerning declarants present state of mind, feelings, emotions (contemp statement
about matter as to which declarant has unique knowledge)
viii. Declaration of Intent: Statement of declarants intent to do something in the future, including the intent to engage in conduct with
another person (contemp statement about matter as to which declarant has unique knowledge)
ix. Present Physical Condition: Statement made to anyone about declarants current physical condition (contemp statement about matter as
to which declarant has unique knowledge)
x. Statement for Purpose of Medical Treatment or Diagnosis: a statement made to anyone (usually medical personnel) for the purpose of
obtaining medical treatment or diagnosis (incl. a diagnosis for expert testimony) if it concerns declarants present symptoms, past
symptoms or general cause of the condition. Excludes statements describing the details of liability or the identity of a tortfeasor, unless it
is the identity of the abuser in a domestic abuse or child abuse case (a patient or injured person has a motive to be honest and accurate to
get medical assistance). Excludes oral statements made by a physician to the patient
xi. Business Records: Admissible if (1) records of any type of a business (2) made in the regular course of business (3) business routinely
keeps such records (4) made contemporaneously (5) contents consist of info observed by employees of business or a statement that falls
within an independent hearsay exception
1. To prove foundation: call sponsoring witness to testify to the 5 elements of BR hearsay exception (witness need not be author of
report, can be records custodian or any other knowledgeable person within the business) or written certification under oath attesting
to elements of business records hearsay exception (with advance notice to opposing party)
xii. Public Records: Records of a public office or agency setting forth, activities of the office or agency, matters observed pursuant to a duty
imposed by law or findings of fact or opinion resulting from an investigation authorized by law, except for police reports prepared for
prosecutorial purposes (not admissible against a D in a criminal case. Nor is the prosecution in such cases allowed to introduce such
reports against D under the alternative theory of business records.
f. Hearsay within Hearsay: If a hearsay statements is included within another hearsay statement, inadmissible unless each statement falls within
a hearsay exception/exemption.