Evidence Study Guide Unless there is some external inuence (bribe, threat, etc.

) or extraneous prejudicial information (radio broadcast, newspaper article), the evidence used in a verdict for a criminal action is never reconsidered (must set control or limits of evidence at front end, before it goes to jury). Relevance Rule 401: Relevant Evidence - evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence. Can hardly ever fail to meet Rule 401 relevance. Almost anything can make something more or less probable. Touchstone Categories of Relevance: 1.) Ability/Opportunity: Ability to carry out the crime, can be physical, mental, nancial, skill, access to a place/person/weapon, etc. 2.) Motive: Person with a motive is more likely to act than one without. Proof of motive is never required, but in the real world, no motive seems bizarre. 3.) Design/Plan/ Scheme: Conduct shows acting in accordance with crime and shows a part of it (i.e. plane tickets or weapons). 4.) Intent: Mental state associated with this set of facts, often is proven circumstantially (i.e. robbed bank two days before the murder of a trooper...out of all the people who could have killed him, he was more likely to have, because he was trying to avoid arrest/trouble). 401 relevant evidence must meet both materiality and probativeness standards. Materiality: Something is material if it is of consequence to the determination of the action. Something is not of material relevance if it is not of consequence to the determination of the action. If evidence is immaterial, it is irrelevant and not admissible (showing a fake ID to prove someone mistook age in a statutory rape case is immaterial and thus irrelevant because the law does not provide mistake as a defense- something that is not a legal defense is not material). Materiality turns on what issues are at stake in the proceeding, which often turns on the substantive law of the jurisdiction. Probativeness: Evidence must have a tendency to make the existence of a fact of consequence more probable or less probable than it would be without the evidence. U.S. v. James (Ogden told James about acts of violence in the past. James claimed self-defense in having her daughter shoot Ogden. Court admitted evidence to show he committed past acts of violence.): Documentary records are admissible to corroborate testimony and bolster credibility even when the testifying witness did not know the contents of the records at the time of the incident. The documents were admitted as relevant evidence because if these documents existed, then it is more probable that he bragged about the violence than it would be if there were no such documents telling of
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the acts. Basically, the evidence had a tendency to make a fact of consequence more/ less probable than it would be without the evidence. Conditional Relevance: If you have evidence whose relevance is contingent upon some other piece of evidence, that evidence can be let in, so long as there is evidence sufcient (to a preponderance) to support a nding of that condition, then judge must let in evidence. (ex. Cox v. State, Cox charged with killing in retaliated for close friend being charged with molesting victims daughter. The prosecutor sought to introduce evidence of the trial which motivated the killing, but this was contingent upon Cox actually knowing the results of the case, before the evidence could be considered relevant. If a reasonable juror could conclude to a preponderance that Cox knew about the results of the case, then the conditional evidence shall be admitted.) Rule 104(b): When the relevance of evidence depends on the fulllment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufcient to support a nding of the fulllment of the condition. If a reasonable juror can conclude to a preponderance that there is sufcient factual evidence to support the condition, the conditional evidence shall be admitted. Rule 403 Balancing Test (probative value vs. being substantially outweighed by risk of unfair prejudice): Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. While gruesome photos of victims and the manner of death may certainly be relevant in a murder trial, not every photo is admissible if its purpose is merely to iname or outrage the jury and unfairly prejudice the defense. Under the 403 weighing, the probative value of the photos (manner, cause, and time of death) is substantially outweighed by the risk of unfair prejudice (merely inaming or inciting the jury). Computer-generated animations illustrating a theory of the case are admissible if it is a fair and accurate representation of the evidence it purports to portray, it is relevant, and has a probative value that is not substantially outweighed by the danger of unfair prejudice (the jury is told that it is a recreation of formed opinions, which may be accepted or rejected, not a denitive recreation of the actual incident). Evidence of ight tends to make it more probable that the person is guilty of something, or has a consciousness of guilt, because ordinarily there is a reason for such behavior. Conversely, evidence not eeing can tend to support innocence. The probative value of ight depends on the degree of condence with which four inferences can be drawn: (1) from the defendants behavior to ight (actually eeing vs. innocent running) ; (2) from ight to consciousness of guilt (maybe eeing for another reason such as fear of police); (3) from consciousness of guilt concerning the crime charged (maybe eeing from something else such as a prior crime or outstanding warrant; and (4) from
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consciousness of guilt concerning the crime charged to actual guilt of the crime charged (people who act like they are guilty even though they did nothing). If these four probative measures arent met, evidence ight may be too prejudicial to be admitted. Applying mathematical techniques (i.e. statistical probability) to prove facts in a criminal case must be critically examined in view of the substantial unfairness to the defendant which may result. There should be no assigning of a number to the probability of guilt or innocence. Effect of Stipulations (Old Chief- Defendant tried for violating statute prohibiting rearm possession by anyone with felony conviction. Old Chief sought to concede the fact of his prior conviction (stipulation) and prevent the prosecution from elaborating on the prior conviction aside from its existence.): A stipulation is an appropriate solution to a complex 403 problem, where there exists both highly prejudicial, yet probative, evidence. In determining whether to allow a stipulation, the court must perform the 403 weighing test. Stipulation was allowed by Old Chief because potential prejudice from disclosing details of the prior conviction would substantially outweigh its probative value (the mere fact it existed). Evidence is not an island, must be considered in totality, as probativeness can be substantially outweighed by its prejudicial effect in context of the case. Cannot look at evidence alone, but in the context of the case. Stipulation takes potential prejudice out of case-if the defendant stipulates as to his felon status, the probative value of the additional details beyond the stipulation itself is zero. Specialized Relevance Rules of Exclusion: Certain evidence cannot be admitted for certain purposes, but can be admitted for other permitted uses. They are not absolute bans. Rule 407: Subsequent Remedies - After an injury or harm allegedly caused by an event, and subsequent remedial measures were taken to make future injuries or harm less likely, such measures are not admissible to prove negligence, culpable conduct, product defect, or need for warning. Evidence of subsequent remedial measures are not barred for proving other things aside from liability, such as ownership, control, feasibility if controverted, or impeachment. (i.e. if someone trips on a loose stair and the homeowner subsequently xes the stair, this cannot be admitted to prove negligence). This encourages making repairs or changes to promote safety without worrying about future litigation. Evidence of subsequent remedial measures are generally barred from proving negligence or liability. However, for other purposes, they may be offered. In order to use remedial measures to prove feasibility, the fact that the measures taken were in fact feasible must have been controverted by the defendant. If it is controverted, the plaintiff can offer the remedial measure to prove feasibility. Rule 408: Compromise & Offers to Compromise- Evidence of settlement/compromise negotiations regarding a claim and conduct or statements made during compromise negotiations are not admissible when offered to prove liability for, validity of, or amount
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of a claim. (i.e. offering evidence of hospital negotiating a large settlement regarding a med malpractice case to prove liability for the hospital. Hospital is not necessarily admitting guilt, but maybe cheaper than litigating). They are admissible to prove other things. This promotes settlements, communications, and negotiations outside the courtroom. An example of when settlement/compromise negotiations are admissible for a purpose other than to establish liability- proving the bias of witness, such as when plaintiff settles with defendant, so that defendant will testify for the plaintiff against other defendants. Character Evidence Rule 404: Character Evidence Not Admissible to Prove Conduct- (a) Character Generally- Evidence of a persons character or a trait of character is not admissible for the purpose of proving acton in conformity therewith on a particular occasion; (b) Other crimes, wrongs, or acts: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity. Cant offer propensity evidence to show he is the kind of guy who..., so its likely he committed this crime. Cannot reason through character; if you go from the facts, to the defendants character, and then to saying that the defendant acted in conformity with this character in committing this crime, this is forbidden propensity reasoning. Also, reasoning from a prior act, to some conclusion of character, and to use such propensity reasoning to infer defendant committed this crime is not permitted. Ways Around the Propensity Box: First explain prohibited character reasoning, then how proponent shows it is not propensity reasoning, but instead, ts a special relevance issue below, then lastly the judge must conduct a 403 weighing to show that probativeness is not substantially outweighed by risk of propensity prejudice. (1) Proof of Knowledge: Plaintiff can offer evidence to show that the defendant has the specialized knowledge in order to get around the propensity box and admit the evidence (i.e. knowing how to hack into a computer- cant use 404 to say hes a hacker, so hes the kind of person who... but instead, his specialized knowledge allowed him to...). Courts must weigh garden-variety knowledge vs. specialized knowledge, as generalized knowledge is not probative. (2) Proof of Motive: Can offer prior bad acts to show that because the defendant was aware of the past acts, then he had a motive to act the way he did in this case (i.e. fugitive motive when defendant had a motive to react with deadly force against FBI agent to avoid capture, because he had a warrant for his past acts it did not want to be caught).

(3) Proof of Identity: Can offer evidence or evidence of past acts as identifying means for facts in the case (person, place, etc.- i.e. if defendant possessed victims unique gun and red on the day he died, this clearly supports an inference that he picked it up at the scene, identifying the defendant as the killer. Another example, after defendant denies being the owner of an apartment that was raided for drugs, old lottery lists found there were submitted into evidence, not to show that he had a prior conviction and thus was the kind of person to commit crimes again, but identifying him as owning the apartment). Evidence must be unique/idiosyncratic to be used for identifying purposes, otherwise, just have propensity reasoning. (4) Proof of M.O.: If we know the defendant committed a particular crime in the past, and the present offense matches that crime in idiosyncratic ways (Zoro Z), we may infer the defendant committed the present offense as well. The permitted inference is not this is the defendants kind of crime, or hes the kind of guy who likes to make bombs, so he committed this crime which would be propensity reasoning, but instead, this could not be anyone elses crime (i.e. Trenklers unique bomb). There must be a high degree of similarity between the previous acts and the current act for M.O. reasoning. Absence/Abuse of Accident: Permitted use of propensity reasoning is not based on character hes a wife killer, so this time it was probably homicide, not an accident, but instead, the logic of this happened once, it was a horrible accident, whats the likelihood of defendant would act similarly again, and moreover, nding himself in such unlikely circumstances so as the accident would occur again. (i.e. defendant accidentally killed wife once while cleaning his gun, and second time, killed wife in the same manner. The gravity of the accident is so profound, and the chances of this being an accident the second time, that the likelihood of it being an accident is slim). Reverse 404(b) (Stevens case): A defendant may introduce other crimes evidence, a reverse 404(b), if he can demonstrate that the evidence tends to negate his guilt, and that it survives a 403 weighing, including undue waste of time and confusion of the issues. (i.e. a reverse 404(b) would be where the defendant wants the jury to notice that there have been 2 robberies with certain idiosyncratic features, similar enough to say that whoever did one of the crimes, did the other as well.... if defendant can show he did not commit the other crime, he more probably did not commit the crime in question). Narrative Integrity (Res Gestae): Allows prosecution to tell the whole story of a situation because it is necessary for the jury to hear the whole story for narrative integrity. This is allowed even though there is a risk of unfair prejudice, because the entire story is needed to be coherent and persuasive. Evidence of prior acts may be admitted if considered to be inextricably intertwined with a charged offense, and thus necessary to offer a coherent and comprehensible story about the commission of a crime. There are two categories of evidence considered to be inextricably intertwined-1.) evidence of prior acts may be admitted if the evidence constitutes a part of the transaction that serves as the basis for the criminal charge; and 2.) and when it was necessary to do

so in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime. Any 404(b) past acts shall be admitted for a purpose beside character reasoning, like knowledge, motive, identity...if it passes a 104(b) conditional relevance test, where a reasonable juror can nd to a preponderance that the defendant was involved in the other/past acts. The judge can only not admit evidence if no reasonable jury could possibly nd the defendant was involved in the other acts. The Huddleston Standard (104(b) Standard): Defendant charged with selling stolen goods with the issue being if he knew they were stolen. Court allowed evidence of similar acts of buying goods cheaply under 404(b). The factual predicate of any 404(b) problem is a 104(b) problem of conditional relevance. A court need not make, prior to admitting past acts introduced to show motive or knowledge, a preliminary nding that the acts occurred. Such evidence should be admitted if there is sufcient evidence to support a nding by the jury that the defendant committed the similar act. Courts may admit evidence of prior bad acts if the proof shows by a preponderance of evidence that the defendant did in fact commit the act. The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character. (i.e. for Huddleston, theory of admissibility was knowledge/intent. Government must prove to a prepoonderance that defendant had knowledge of stolen goods. This can be proven by offering other acts where he sold stolen TVs. Not using character-propensity reasoning to say hes the kind of guy who sells stolen goods, so he did it here, but instead, he had specialized knowledge. For this conditional evidence to be admitted, the government need not prove the defendant was involved in the prior acts, but some reasonable juror could concluded to a preponderance that this defendant did those acts.) Bottom line: 404(b) question is a 104(b) question, but judge can still keep out if evidence of prior acts still fails 403 above. Huddleston Method: 1.) What is legal theory, non-propensity use of admitting 404(b) evidence (knowledge, identity, motive)? If none, doesnt reach Huddleston Standard. 2.) Under104(b) conditional relevance, is evidence sufcient to support a nding that the defendant is linked to those other acts? (if some reasonable juror could nd to a preponderance, shall admit evidence) 3.) 403 balance test- probativeness of other act vs. risk of doing propensity instead of permitted use. Judge has limited discretion of keeping evidence out unless heavily discredits probativeness. Propensity Evidence in Sexual Assault Cases (Rules 413-415): Propensity reasoning can be used, in crimes of sexual nature. These rules trump the 404(b) propensity ban, in subset of cases where crime is sexual and other act being offered is sexual. 413-415 evidence must still pass a 403 weighing (Guardia case). Rule 413- Evidence of Similar Crimes in Sexual Assault Cases: When the defendant is accused of an offense of sexual assault, evidence of a defendants commission of another offense or offenses of sexual assault is admissible.
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Relevant propensity evidence is admissible under Rule 413 if (1) defendant is accused of a sexual offense, (2) the offered evidence is of defendants commission of another sexual offense, and (3) the evidence is not unfairly prejudicial under Rule 403. Rule 414- Child Molestation: When the defendant is accused of an offense of child molestation, evidence of a defendants commission of another offense or offenses of sexual assault is admissible. Proof of the Defendants and the Victims Character (Rules 404(a)(1), 404(a)(2), & 405): This is a one-way rule to benet the criminal defendant, where he has the capacity to prove character. However, if he chooses to invoke such privilege, he opens the door for the prosecution to respond. Evidence of persons character must be pertinent and offered by the accused. The only time the prosecution can offer a character trait rst is for peacefulness in a homicide case to rebut evidence that the alleged victim was the rst aggressor. Otherwise, prosecution can also rebut evidence of the accuseds character if offered by defense. 404(a): Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: 404(a)(1): Character of Accused- Permits defendants to offer proof of pertinent traits of their own character. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same trait. 404(a)(2): Character of Alleged Victim- Permits defendants to offer proof of pertinent traits of the alleged victims character. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the rst aggressor. 405: Methods of Proving Character(a) Reputation or Opinion- Where evidence of character is admissible, proof of character trait may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry into specic instances of conduct is allowed. On direct, the witness can only testify in the form of opinion/reputation. (b)Specic Instances of Conduct- When character is an essential element of a charge, claim, or defense, proof may also be made of specic instances of that person's conduct (i.e. if charged with perjury, specic instances of untruthfulness in the past). Essential Elements List: 1.) Slander or libel- character is actually an essential element, must prove the thing that allows to say about defendant hes a cheat, liar, etc. 2.) Parental Custody- In determining tness of custodial parent, character is an essential element. 3.) Entrapment- When entrapment is used as a defense,
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government is allowed to rebut by proving predisposition, that defendant was the type of person to commit crime. Rule 405 basically- reputation or opinion on direct, specic instances on cross (unless essential element from list above or falls under rules 413-415). Evidence of Habit, Routine Practice: Rule 406- Evidence of habit or of the routine practice of an organization, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. A habit is dened as a consistent response to a particular stimulus or set of circumstances. The critical question is whether conduct is sufciently routine that it became predictable and predictive that he would behave in a similar way. Must have been done numerous times, is automatic (doesnt require a lot of thought), and has been done consistently (specic pattern). Impeachment A lawyer impeaches a witness by casting doubt on the witnesss accuracy or trustworthiness (her perception, memory, narrative accuracy, and sincerity). Non-Character Based Impeachment: Focuses on the accuracy of the witnesss testimony for this single event (not saying generally that they are untrustworthy). This can be achieved by impeaching through 1.) Contradiction by Conicting Evidence; 2.) Contradiction by Past Inconsistent Statement; 3.) Evidence of Bias (i.e. doctor testifying that he treated patient according to accepted standards to protect his self-interest). Character-Based Impeachment (Rules 608 and 609- opinion/reputation for untruthfulness, specic instances on cross probative of untruthfulness, and past convictions probative of untruthfulness): Lawyer seeks to cast doubt on a witnesss words by showing she is, by trait, a liar and lied in conformity with that trait (character for untruthfulness, your are by nature a liar, so you are lying right now). Rule 607: Who May Impeach - Either party may attack a witnesss credibility, including the party that called the witness. Rule 608: (a) Opinion and Reputation- The credibility (character of truthfulness/ untruthfulness) of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise (must start negative rst- attacking character for truthfulness). #

(b) Specic Instances of Conduct on Cross- Evidence of specic instances of the conduct of a witness, if probative of his character for truthfulness or untruthfulness, may be admitted during cross examination. You are bound by the witnesss answers concerning the actual acts, as extrinsic evidence cannot be provided. You must accept the witnesses answer and move on. Rule 608 Summary: When you can prove witnesss character for untruthfulness- only by reputation/opinion on direct, cant inquire into specic instances on direct, despite being probative for truthfulness....may go into specic instances on cross. Must start negative- attacking witness as untruthful, must attack character of truthfulness rst before allow evidence to support contrary. All evidence must be probative of truthfulness/untruthfulness, not another character trait. On cross, after witness answers about specic instances, must move on, cannot prove with extrinsic evidence. Rule 609: Using Proper Convictions to Impeach- Either party may seek to impeach a witness by showing her past conviction of a sufciently serious or deceptive crime. The permitted inferential chain is that the past crime is evidence of general immorality or lawlessness and, acting in conformity with that trait, the witness is lying now. 609 Graphic: 1.) If a crimen falsi (crime of dishonesty) less than 10 years old, will always be admitted, without a weighing test, for any witness, including the accused. 2.) When the crime is a felony and a witness other than the accused, there will be a 403 weighing test to determine admissibility. 3.) When the witness is the accused and the crime used to impeach is a felony, probativeness must merely outweigh prejudice of risk jury will use propensity (different from 403 test, which requires substantial outweighing by prejudice). 4.) When the conviction is more than 10 years old, against any witness, it is inadmissible unless probativeness substantially outweighs the risk of prejudice (reverse 403). Crimes of dishonesty, like perjury, would be examples of such conviction over 10 years old that are more usually admitted. 5.) Evidence of juvenile criminal cases are usually inadmissible, where the witness is the accused, it is not admissible. The court may allow the evidence if the witness is not the accused and it attacks the credibility of an adult and would be necessary for a fair determination of guilt or innocence. Very difcult, rigorous standard. 6.) A misdemeanor that is not crimen falsi is excluded. Convictions under Rule 609 must show character in the frame of untruthfulness. Crimes of dishonesty obviously stand out as being probative, but other serious offenses may be used to show that the witness was generally lawless and disregarded societal standards, making him more likely to be untruthful, acting in conformity with that trait. Five factors to assess nature of prejudice in hearing about other convictions: (1) Nature of crime (child molester vs. turnstile jumper, jurys emotional reaction);(2) Time of conviction & witnesses subsequent history (Are they reformed?); (3) Similarity between the past crime and the charged crime (the more similar the past conviction to the current crime charged, the less likely it will come in), (4) Importance of defendants testimony,

and (5) the centrality of the credibility issue (If defendants credibility is a central issue in the case, this favors admission.

609 appeals- The defendant may not appeal unless 1.) the defendant testied at trial, and 2.) the prosecutor introduced evidence of the past conviction (if the defendant offers the past convictions, then they cannot appeal). Rehabilitation- concerns a partys attempts to support a witnesss character for untruthfulness. One party may rehabilitate its own witnesss character for truthfulness only after the other party has attacked the witnesss character for truthfulness. To rehabilitate a witness, there needs to be impeachment by character (opinion/reputation under 608(a), specic acts on cross under 608(b), or past convictions under 609). This does not include bias or contradiction, as there is no attack on character, and therefore cannot rehabilitate. Extrinsic evidence will not be admitted on a collateral matter, per 608(b), when the sole value of that evidence is that it is for impeaching the witnesss character for truthfulness (i.e. in trafc accident case, where it is essential to know color of light. If witness says it was green, the lawyer may call another witness to say it was red. This is not collateral, so extrinsic evidence is allowed. He may not, however, call a witness to say the car was blue after the witness said the car was black, because this is collateral and has no probative value to the case. Rape Shield Rule 412: Evidence of a victims prior sexual conduct is not admissible. (a) Evidence Generally Inadmissible- Evidence involving alleged sexual misconduct is not admissible, except: (1) Evidence offered to prove that any alleged victim engaged in
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other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions (the following evidence is admissible): 1. Evidence of specic instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; 2. Evidence of specic instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and 3. Evidence the exclusion of which would violate the constitutional rights of the defendant. Rule does not cover just sexual intercourse, but all sexual behavior, including provocative language, talking about sexual acts, exchanging emails, etc. Prior false allegations of past sexual assault do not constitute past sexual behavior for the purpose of the rape shield statute (Rule 412) and are therefore admissible evidence. Rule 412 only polices prior sexual conduct, if there is no sexual activity, there is just a story. Prior false allegations are governed by 608(b), on cross, as specic instances of untruthfulness. Constitutional protection trumping the Rape Shield: The Confrontation Clause mandates that a defendant be permitted to cross-examine a witness on any relevant matter (including bias or motive). Even if bias or motive involves the inclusion of the prior sexual acts that would otherwise be barred under Rule 412. (i.e. alleged victim is in a long term relationship, seen getting out of anothers car, so her motive is that she needs to tell a story of rape to protect herself, so she is biased. What is not covered constitutionally, does not rise to the level of bias. If the theory is narrative integrity, that is not good enough to trump the Rape Shield. The defendants state of mind (i.e. he reasonably mistook consent) also yields to the Rape Shield and the prior sexual acts are not admitted. Thus, the defendants right to testify in his own defense must yield to Rule 412, and sexual acts of the alleged victim are kept out. A rape victims past sexual acts do not tend to prove or disprove the existence of present consent. Hearsay Hearsay is an out-of-court statement whose words are used to prove the truth of what they assert. A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. A declarant is a person who makes the outof-court statement. Hearsay is an out-of-court statement offered to prove the truth of what the declarant asserted.
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Rule 802- Hearsay is not admissible except as provided by these rules. However, hearsay is preferred over complete loss of crucial evidence. Four testimonial capacities - 1.) Perception, 2.) Memory, 3.) Narration, 4.) Sincerity. These capacities are tested by three courtroom tools- the oath, demeanor evidence (jury can observe mannerisms and signs of stress of the witness), cross-examination. Non-Hearsay uses: Statements not offered for their truth. Words that operate in way that their truth doesnt matter, just that they were spoken. For example, effect on the listener-- words that we care about because of the effect they have on the listener (i.e. notice to homeowner that steps are icy, that declarant is crazy I am the Pope, not being offered to prove the truth of what they assert, just that they were said). Provocation-- If using provocation as a self-defense, the truth of statements made arent important, but just to show the defendants state of mind (heard declarant say Im going to kill you). Legally operative words-- Saying I do at alter makes a marriage, I accept a contract, I will kill you constitutes a threat. Bias is another example. All these statements operate independently of the speakers belief or intended meaning. Assertion: Focuses on the communicative intention of the declarant. Nothing is an assertion unless its intended to be one. Non-assertive conduct is not hearsay (i.e. a person opening an umbrella will assert that it is raining out, but it is not hearsay because that person did not intend to communicate this from their conduct). If the declarant intended to make an assertion, statement can be hearsay (i.e. if someone asked you if it was raining, and you open your umbrella to intentionally assert it was raining). When considering if evidence of conduct should be excluded as hearsay, the judge must determine in light of all the facts, whether conduct was intended as an assertion. Most oral and written expressions are manifestly assertive. These can be in the form of declarations, or even commands (i.e. dont run that stop sign intends to inform the listener there is a stop sign ahead...the statement is therefore an assertion. If offered to prove there was indeed a stop sign ahead, evidence of the statement would be hearsay.) Even questions may be assertive (i.e. what is your name? probably would be hearsay if offered to prove that the speaker did not know the other persons name). Implied Assertions: If the speaker intends to communicate certain facts by implication, if of the statements would be hearsay if offered to prove the truth of the implied assertion. Implied assertions are intentionally communicative, and therefore, hearsay. Indirect Assertions: Sometimes the matter is just one link in a chain of inferences leading to the ultimate fact to be proved and therefore is still hearsay. (i.e. Alices statement I just spent all morning with the architect planning my retirement home, if used to show that Alice was not contemplating suicide that morning, could be seen as hearsay. The fact she was planning her retirement home is a necessary link in the chain of inferences leading to the intermediate fact, that she was planning for the long term, which leads to the ultimate fact that she probably was not considering suicide.)
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More non-hearsay uses of out-of-court statements: Hearsay is an out-of-court statement offered by a litigant to prove what the declarant intended to communicate. In the three categories on non-hearsay below, the proponent aims to prove the declarants belief, but does not rely on anything the declarant intended to communicate. Non-Assertive Words: Small category, involuntary expressions are perhaps the only clear example (i.e. if bang knee and say ouch!, probably do not intend to communicate your pain to anyone, thus evidence of exclamation would not be hearsay if offered to prove you were in pain). Words Offered to Prove Something Other Than What They Assert: Although almost all verbal conduct is assertive, not all out-of-court assertions are hearsay. Sometimes a lawyer offers the declarants words to prove something other than what the declarant intended to communicate. Here the lawyers claim does not depend on the truth of the declarants assertion (Lawyers offering letters to show testators competence, not offered to prove the truth of what they asserted). Assertions Offered as Circumstantial Evidence: Assertions offered as circumstantial evidence to reveal a declarants state of mind are not hearsay because they are not being offered for the truth of what they assert, but instead a mental state (i.e. anger words like drop dead, I hate you dont need to be offered for their truth. They have the same effect as kicking someone or calling them a jerk. Another example, girls out-ofcourt descriptions of the room were circumstantial evidence that she had knowledge of the residence. At rst, this looks like an indirect assertion, that whether or not the girl had been in the room rested on the truth of her claims. The prosecutor did not offer her statements to prove the accuracy (truth) of her descriptions of the room (statements offered to prove what they assert), but to prove her knowledge by showing a close correspondence between her details and the actual appearance. Also, logos or any other identifying marks on a vehicle are not hearsay. They are not offered as assertions of truth, just circumstantially identifying information. Sequence for Hearsay Problems: 1.) Who is the declarant? 2.) What is the assertion? 3.) What does the declarant intend to assert? (if he intended an assertion at all) 4.) Is the statement being offered to prove the truth of what it asserts? (versus merely having to be spoken to have non-hearsay probative value). Hearsay Exceptions: (1) Rule 801(d)(1): Prior Statements by Witness (A) Prior Inconsistent Statements (B) Prior Consistent Statements (C) Statements of Identication

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(2) Rule 801(d)(2): Admissions by Party-Opponents (A) Statement by a Party Opponent (B) Adoptive Statements (C) Statements by Spokespersons (D) Statements by Agents (E) Coconspirators Statements (3) Rule 803: Exceptions in Which the Availability of the Declarant is Immaterial (1) Present Sense Impressions (2) Excited Utterances (3) Then-Existing Mental, Emotional, or Physical Condition (4) Statements for Medical Diagnosis or Treatment (5) Recorded Recollections (6 & 7) Business Records (8 & 10) Public Records and Reports (4) Rule 804: Exceptions Applicable Only When the Declarant is Unavailable (b)(1) Former Testimony (b)(2) Dying Declarations (b)(3) Statements Against Interest (b)(6) Forfeiture by Wrongdoing (5) Rule 807 Residual Exception Statement by Party Opponent: One partys own statement offered by the other, even if it offered to prove the truth of what it asserts, is not hearsay. Adoptive Admissions: Behavior that manifests an adoption or belief in the truth of a statement uttered by a declarant is not hearsay (i.e. in drug case, where one person told another cop that he could get more drugs from buddy and other person, by his actions, manifested an adoption or belief in the truth of the statement by his actions). Whether the behavior manifests an adoption of or belief in the truth of a statement is a 104(a) question for the judge. On exam, can say that defendant will have difcult time showing that his actions were not an adoption of the truth of the words of the declarant. Silence can be seen as manifesting an adopting the truth of a statement. Statements of Agents: Statement by a person authorized by the party to make a statement concerning the subject is not hearsay (made by agent/servant during, and in the scope of, employment- temporal and substantive inquiries). There is no implied requirement that the declarant have personal knowledge of the facts underlying his statement. The only issue is whether they were speaking during their employment and in the scope of their employment.

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Coconspirators Statements: The words of the declarant must have been spoken in the course of and in furtherance of the conspiracy. The words of the declarant can be used to show that there is a conspiracy, but that alone is not sufcient, you need an actionable step to show the conspiracy. Determining if there is a legitimate enough conspiracy is a 104 question for the judge. Prior Statements of Witnesses and Past Testimony: Certain statements made outside of court by a person who then testies at trial. There are three types of out-of-court statements by a witness: prior inconsistent statements, prior consistent statements, and statements identifying a person. In these cases, the declarant is the witness, who must be available for cross-examination. When offering a statement to impeach a witnesss testimony, the out-of-court statement is not hearsay, as it is not being offered for its truth and instead is being offered to impeach the witness (i.e. contradiction, inconsistent statement); there must be also be a limiting instruction that the jury may not consider that statement for its truth. Prior inconsistent statement: Any statement made by a witness out-of-court, before the witness testies, that conicts with something the witness says in testimony. The contradiction need not be in plain terms, it is enough that there is some indication that the fact was different from the testimony of the witness it sought to contradict. Basically, hearsay evidence is admissible if it is a prior inconsistent statement, and that statement need not be plainly contradictory. Party cannot call a witness solely to impeach them and hope the jury disregards the limiting instruction and takes hearsay evidence, which is being used solely to impeach and accepts it for its truth. Prior inconsistent statements can come in solely to impeach (non-hearsay) or also substantively (if 608(b) is met). Present lack of memory is generally deemed to be inconsistent with specic prior statements. Past Consistent Statements: Exception permits the introduction of a declarants consistent out-of-court statements to rebut a charge of recent fabrication, improper inuence, or motive only when those statements were made before the charged recent fabrication, improper inuence, or motive. However, if the statement was made after the alleged fabrication, inuence, or motive came into being, then it is inadmissible (i.e. a timeline would be such that there was gossip/statements made with a neighbor followed by the unrelated arrest then the grand jury trial and then the actual trial. Statements made to the neighbor can be admitted, but the testimony at the grand jury trial cannot because it happened after the arrest, where there was a chance for an improper motive, inuence, or fabrication in making the statements.) Statements of Identication: Statements of identication must be made after perceiving the person. Nothing in the rule says a statement of identication has to come from the declarant. The declarant just has to be available and subject to cross-examination. The out-of-court statement is allowed even when the witness is unable, because of memory loss, to explain the basis for the identication.

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Rule 804: Hearsay Exceptions When the Declarant is Unavailable A declarant is unavailable as a witness: (1) Exemption: if by ruling of the court, the witness is privileged from testifying (needs to be determined by the court on ground of privilege. (2) Refusal: the declarant persists in refusing to testify, even under court order. (3) Claim of Lack of Memory: the declarant testies to a lack of memory of the declarants statements, (4) Inability: death or unable to be present because of physical or mental extremities, (5) Absence: unable to procure the declarants attendance by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. Former Testimony: Must ask if the party against whom the former testimony is being offered (or the predecessor in interest) had an opportunity and a similar motive to develop her testimony. Similarity of motive is shown where the party resisting the offered testimony at a pending proceeding had, at a prior proceeding, an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue. If not, prior testimony cannot be admitted. Former testimony is admissible when given by a witness at another hearing, or in a deposition, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination (i.e. grand jury testimony cannot be offered against a defendant under this rule, because the defendant does not have an opportunity to examine the witness and the testimony does not have a similar motive). When the prosecution offers prior testimony against the party in a civil case to be used in a criminal case with a similar motive the judge may not let it in because the criminal case had much higher stakes. Overall, the prior testimony of an unavailable witness is admissible if the party against whom it is offered had the opportunity and similar motive to develop the testimony by direct, cross- or redirect examination A predecessor in interest is a person who shares the same legal interests and motive as the party against whom the testimony is offered now. This is the outer limit of the rule where the court allows anyone to ask the witness/declarant to questions regarding a similar motive to that against a party against who this is being offered, and admits this as prior testimony, i.e. Coast Guard) Statements Against Interest: A statement which at the time of making was so far contrary to the declarants pecuniary or proprietary interest (subjecting to criminal liability or money loss resulting from litigation) that it would not be said if it were not true. The main issue is if a reasonable person in the declarants position would not have said the statement unless believing it to be true. Exculpatory statements do not t this rule, must be inculpatory in nature. Wouldnt put yourself in a pickle unless thought it were true. When there is a mixed statement, judge will break down the statement into exculpatory and inculpatory parts and admit inculpatory parts, and then, either allow the exculpatory parts as well and issue a limitation, or only allow inculpatory parts. (The
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exculpatory parts may be included as well if corroborating circumstances clearly indicate the trustworthiness of the statement). The timing of the inculpatory statement matters, as it must be understood by the declarant when making the statement that it subjects him to some liability. Dying Declarations: Statements under a belief of impending death are admissible; A statement made by declarant under the belief their death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. Must believe death was imminent and relate to the cause of death. Mere suspicion or conjecture may not sufce. Forfeiture by Wrongdoing: A statement offered against a party whose misconduct rendered the declarant unavailable as witness is admissible. Rule 803: Availability of the Declarant is Immaterial Present Sense Impressions: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Must occur while perceiving or immediately after, before the declarant has time to fabricate or an opportunity to make something up. Speaking while perceiving or immediately thereafter- look for statements just happened, right now, etc. Excited Utterances: A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Must be startling and statement must be made while under the stress of the event or condition (events like 9/11 may have longer acceptable periods, so the amount of time can vary with the magnitude of stress the event causes and how much it agitates a particular person). On exam, state what the startling event is, if the statement was made while under stress, and what proponent/opponent would argue. Audible and visual perceptions are equally weighed under the above rules. Statements of Then-Existing Conditions (State of Mind): A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief. Must be the declarants own mental, emotional, or physical condition and must be then-existing or forward looking, not looking backwards. The rationale for this is that the declarant best knows his own state of mind. The statement can be used to show a declarants intentions, plan, motive, design, etc. (i.e. a declarants written or oral declarations state his existing state of mind or condition, they may be admitted to show his plan, intent, motive, or design. When a declarants intention is a material fact in the case, it may be proved by his oral or written declarations stating such intentions). Statements for Medical Diagnosis: Statements made for purposes of medical diagnosis or treatment and describing medical history, as reasonably pertinent to the diagnosis or treatment. The argument for and against this rule is whether the statement was
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reasonably pertinent to the diagnosis or treatment; must be necessary for the declarant to make the statement for proper medical diagnosis or treatment. If it is not superuous to the diagnosis or treatment, the statement will be admitted. There is no requirement that the declarant be a medical professional. Refreshing Memory and Recorded Recollections (License Plate): Recorded version of evidence is admissible if at the time there was no reason to retain the memory, but when it was recorded, it was fresh in the declarants mind and recorded accurately. The version could have been made or adopted by the witness as the witness may have adopted the evidence as being accurate (i.e. telling another to write down a plate number). Business Records: A memorandum, report, record, or data compilation, made by a person with knowledge of the business records, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the record is admissible, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Absence of entry in records kept, if the matter was of a kind of which a record was regularly made and preserved, is admissible unless there is a lack of trustworthiness. Business record needs to be made at or near the time of the act or event it records. Must have a relationship with the business to make a legitimate business record, where a duty to create such records exists. The business records exception does not embrace statements contained in the record that are made by one who is an outsider to the business (no duty to make such records). Business records must be something that are routinely done as the regularity is a critical aspect. A record is considered to be in the regular course of business if made systematically or as a matter of routine to reect events or transactions of the business. Public Records and Reports: Records, reports, statements, or data compilations of public ofces or agencies, describing (1) the activities of the ofce or agency, (2) a matter where there was a legal duty to report the activities, excluding, in criminal cases, matters observed by police ofcers and other law enforcement personnel, unless there is a lack of trustworthiness. For public records, there is no requirement of routine or regular practice, unlike the business records exception. Instead, it can be a one time document. The rationale is that we should be able to trust our government and public agencies to produce reliable documents. Investigative reports are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and is trustworthy, it should be admissible along with other portions of the report. Public records need not only contain raw data, but the conclusions, judgements, or opinions of any public agency founded on trustworthy facts are admissible. Police reports against a criminal defendant are not admissible. Rule 807: Residual Exception, Catch All: Statements not covered specically by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if (1) the statement is offered as evidence of a material fact; (2) the statement is more probative than other evidence reasonably produced; and

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(3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. For hearsay to be admitted under this rule, there must be 1.) necessity and 2.) trustworthiness. If there are two levels of hearsay (Y to N and N to A), then you must break down the exchange of the statements and each level needs to be shown that it is not hearsay. Confrontation Clause: Only applies to criminal defendants and rarely inuences the decision of a case drastically. Nonetheless, must consider the prospect of denying the defendant his right to confront the witness. Confrontation Clause is the last thing to look at after hearsay. Testimonial Evidence: If statement is deemed testimonial (used in criminal litigation) , a problem arises under the Confrontation Clause. If evidence is considered testimonial, it may be admitted if 1.) the witness was unavailable and 2.) the accused had an opportunity to cross. Testimonial statements, at a minimum, applies to prior testimony at a preliminary hearing (grand jury testimony). Non-testimonial declarations are not in violation of the Confrontation Clause and are treated only under the hearsay rules, not the Confrontation Clause. Dening Testimonial under Crawford: Although the court didnt ofcially adopt a denition for testimonial, there were a few formulations, including 1.) whether declarants would reasonably expect their statements to be used prosecutorial, 2.) whether there were formalized statements at the hands of state actors used for trial, exparte (one-sided afdavits, etc. or 3.) per the NACDL, whether the statements were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.... Primary Purpose Test under Davis: Statements made with a primary purpose of being used in criminal prosecution are deemed testimonial. Statements made for other purposes, such as obtaining assistance (i.e. a 911 call, police interrogation, etc.) are non-testimonial, and can be admitted without going through the Confrontation Clause. Expert & Lay Witness Testimony Lay Witnesses: Rule 701- Lay witness testimony is limited to those opinions or inferences which are (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (3) not based on scientic, technical, or other specialized knowledge. The most basic kind of permissible lay opinions are those inferences that can be hardly stated in the form of sensory perceptions alone. Prototypical examples of this sort of opinion evidence is the appearance of persons or things...the manner of conduct...degrees of lightness, darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences. (i.e. if offering testimony that defendant looked furious, most know what this looks like
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when we see it, but would fail for words). At a somewhat more complex level, most judges also permitted lay persons to opine on such matters as intoxication. Of course we all know what drunkenness looks like, but it is also true that we normally can break down our opinion that someone seemed drunk into several more basic sensory factsdrunks often have bloodshot eyes, walk unsteadily, speak thickly, smell of alcohol, etc. Expert Witness Testimony: Rule 702- If scientic, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualied as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufcient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The ve demands the law places on expert testimony are: 1.) Proper Qualications- Per Rule 702, the witness must be qualied as an expert by knowledge, skill, experience, training, or education. The rule allows for expert testimony derived from experience as well as formal testing or education. 2.) Proper Topic- In general, expert must be discussing a topic that is beyond the ken of jurors....also, he must not simply tell jurors what result to reach, but rather, assist the jurors by supplying information or insights they otherwise would lack. (Per Rules 702 and 704) 3.) Sufcient Basis- The expert must have an adequate factual basis for her opinions (Rules 702 and 703). 4.) Relevant and Reliable Methods- Expert testimony must be the product of reliable principles and methods, reliably applied to the facts of the case. In general, expert testimony must be reliable and relevant. (Rule 702, Daubert, Khumo Tire) 5.) Rule 403 Challenge- The evidence, if challenged, must survive 403 weighing. Under the Frye standard, evidence needed to gain general acceptance of the theory in the particular eld. Under Daubert, general acceptance is no longer an exclusive precondition for admission of expert testimony. Instead, Daubert is based on the reliability and relevancy of the evidence. First, the trial judge must determine, whether the expert is proposed to testify to (1) scientic knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. In assessing reliability of a scientic theory or technique, consider: 1.) Whether the technique can be and has been tested, 2.) Whether it has been subjected to peer review and publication, 3.) The known or potential rate of error, 4.) The existence and

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maintenance of standards controlling the techniques operation, and 5.) General acceptance in the scientic community. Reliability makes the evidence relevant. A trial court must examine the reliability of expert testimony for not only scientic knowledge, but technical or other specialized knowledge as well, and may exibly apply one or more of Dauberts specic factors to determine the admissibility of a technical experts testimony based on its relevancy and reliability. Privileges Rule 501: Allows for privileges. In all federal cases, the court will use the federal common law of privilege. In those instances where case involves state substantive law, privilege follows the Erie Doctrine, where the court uses the privilege law of that state. Three focal points: 1.) Who is the holder of the privilege? 2.) What is the scope? (temporal and substantive) 3.) How does waiver work? Psychotherapist/Patient Privilege: Condential communications between a psychotherpist and her patients in the course of diagnosis and treatment are protected from compelled disclosure. Attorney-Client Privilege: The holder of this privilege is the client. Because the privilege is the clients, only the client may waive it. The lawyer must be acting as a lawyer. Only condential communications made to facilitate professional services are protected. The communication has to relate to a fact in which the attorney was informed by the client without the presence of unnecessary third parties (which does not include a translator or a paralegal). It begins with the rst communication between attorney and client and it does not end with the death of the client. When a lawyer knows that the client is going to testify falsely (perjury), the lawyers duty of candor to the court trumps the privilege. Short list of things that attorney client privilege does not cover: communications for the purposes of committing a future crime or fraud. Anything backwards looking, however, is covered. Privilege really gives right to assert it in a tribunal in response to questions (I dont have to...cannot answer that question). Backwards looking is in privilege, forward looking conduct not in the privilege. Spousal Privilege: 1. Under the true privilege (condences shared in a marriage), communication occurring within a marital relationship cannot be compelled to be disclosed (i.e. if have a valid marriage, the spousal privilege is in effect, and if get a subpoena, you dont have to testify about condences shared in marriage).Marital privilege begins with a valid marriage and ends with a divorce. In this window, communications between spouses are privileged. 2.) Trammel (rule of competence)- A spouse does not have to testify if they do not want to. The holder of the marital privilege

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is the witness/testifying spouse. A spouse can neither be compelled nor precluded from taking the stand. The privilege protects only communications and communicative conduct, but not spouses observations (i.e. he was wearing sneakers) The talker (the communicating spouse at time of conversation) controls whether to disclose the communication. Thus, the holder of the true marital privilege is the person doing the talking. Whichever spouse was talking in the private conversation decides whether or not that conversation can be disclosed. Authentication: Rule 901- Tells us a number of different ways evidence can be authenticated. The requirement of authentication or identication as a condition precedent to admissibility is satised by evidence sufcient to support a nding that matters in question. Evidence must be authenticated in order to take on 401 relevance. After this, must look to character, hearsay, etc. for admittance. (i.e. what you need from a photo is someone who can testify it is a fair and accurate representation of what it purports to depict. If not, wont meet 401 standards). Illustrations of Authentication (not exhaustive): (1) Testimony of witness with knowledge (i.e. ofcer takes stand and is shown a gun, what is this...this is the gun I found at the scene and this is how I know...) (2) Non-expert opinion on handwriting, (3) Comparison by trier or expert witness, (4) distinctive characteristics and the like, (5) voice identication, (6) telephone conversations. Best Evidence Rule: Rules 1001, 1002, 1003- Applies only to writings, recordings, or photographs. The rule requires that litigants will want to produce the most compelling evidence that they can. Requires the original document rst, then accepts a duplicate if genuinely authentic. A duplicate is equally admissible to the same extent as an original unless 1) a genuine question is raised as to the authenticity of the original 2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Rule 104(a): Questions of admissibility generally- Judge determines the admissibility of evidence, qualication of a person to be a witness, and the existence of a privilege.

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