EVIDENCE OUTLINE HIGGINSON - FALL 2007 . General Principles: a. Rules of evidence is a system of proof b.

Three critical elements of evidence: i. Reliability => party control to ensure jury is getting good evidence ii. Relevance => keep the jury focused iii. Privilege => are there higher societal values that trump evidence c. Sources of Evidence Law: mmmmmdcclii. Federal Rules of Evidence (FRE) mmmmmdccliii. Statutes, ex: rap shield laws mmmmmdccliv. Constitution, ex: 4th and 5th amendments mmmmmdcclv. Other Procedural Rules, FRCP (ex: discovery) mmmmmdcclvi. Disciplinary Rules d. What is not evidence: . An indictment or formal charge . Anything with prejudice or sympathy . Opening or closing statements (1) attorneys may make inferences but not evidence . Statement, objections, or arguments made by the counsel . Any act, conduct or offense not alleged in the indictment e. Purpose of FRE R102 . Construed to secure: (120) fairness in administration (121) elimination of unjustifiable expense (122) elimination of delay (123) and promotion of growth and development of the law of evidence . To the end that: () truth may be ascertained & () the proceedings are justly determined f. R611a - The Court has reasonable control over presenting of evidence in order to: . Make the presentation and interrogation effective to find the truth, . Avoid needless time consumption, & . Protect witnesses from harassment or undue embarrassment () This rule may be used to stipulate a fact. () Stipulation takes the sting outof a certain fact by putting the fact in the best light for your client () Other Ways to Help your Client: (a) Judicial Notice (R201): the court says what a fact is. This is another way to take the sting out (b) shifting to something collateral: divert the attention to someone else when you are in trouble g. Rule 104 - Screening: . This is where motions in limine are settled . Preliminary questions are determined by the judge () For screening questions the evidence used does not need to be 1

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admissible, unless: () the evidence is a privilege () the standard is by a preponderance of the evidence () Exception: () Questions that depend on the relevancy of evidence, i.e. conditional relevance, differs: (i) can only use admissible evidence (ii) different burden of proof . The jury will not be present when the interest of justice requires there absence . Types of preliminary questions. () the qualification of a person to be a witness, () the existence of a privilege, & () the admissibility of evidence The rules of evidence are built around jurors . Jurors are suppose to follow the judges orders . Jurors are the finders of fact and need to weigh evidence but should not base decisions of off sympathy or prejudice . Jurors can make inferences and conclusions but should not seek outside influences to make a decision . Jurors must find defendant guilty by a reasonable doubt (216) Reasonable Doubt = based upon common sense & careful consideration the juror can rely on that decision without hesitation When listening to a witness, jurors should ask: dccxliv. Did the witness impress you as honest dccxlv.Did the witness have any particular reason not to tell the truth dccxlvi. Did the witness have a personal outcome of the case dccxlvii. Did the witness have any relationship with either side dccxlviii. Did the witness seem to have a good memory dccxlix. Did the witness contradict any other evidence dccl. *Specific Credibility Problems: (1400) Felons (Rule 609) (1401) Accomplices (bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbb) weigh this testimony with great care (cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc cccccccccccccccccccc) must believe there story beyond a reasonable doubt (1402) Immunity/plea bargain (cooperating codefendants) () court will inform the jury about the plea agreement () court will tell the jury to receive the testimony with great care () court will suggest that other evidence is needed, unless they find the testimony true beyond a reasonable doubt (1403) Eyewitnesses (vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv 2

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how good of an opportunity do they have to witness (1404) Defendants who confess (ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd dddddddddd) consider circumstances of confession (6) Experts Competency of Jurors as Witnesses: R606 mmmmmmmdcxl. At trial, a juror may not be called to testify in front of the rest of the jury. (8440) If the juror is called to testify, the opposing party can object out of the presence of the jury mmmmmmmdcxli. When inquiring into the validity of a verdict or indictment, a juror cannot testify about: (9160) any matter or statement occuring during the course of deliberation (9161) the effect of anything upon the deliberation (9162) the effect of anything upon any other jurors mind or emotions that may have influenced that juror in deciding one way or the other (9163) other jurors mental process in deciding a verdict (9164) A jurors statement or affidavit bout the above may not be brought in. mmmmmmmdcxlii. Juror can testify about: (9880) Whether extraneous prejudicial info was improperly brought to the jurys attention (9881) Whether an outside influence was improperly brought to bear upon the jury (9882) Whether there was a mistake in entering the verdict onto the verdict form. Impeaching a Jury - Tanner v. U.S. mmmmmmmmmmdxx. Policy considerations for not impeaching a jury (11320) finality (11321) will only harass the jury (11322) if allowed to impeach, juror discussion will be chilled out of fear (11323) need to trust the jury, even if they are not right, because if not the system will fail. (Dont want to know how the sausage was made) mmmmmmmmmmdxxi. You cannot impeach juror testimony even if due to voluntary ingestion of drugs and alcohol (12040) This is not an outside influence, but more like a disease (12041) Outside influence is bribes and threats mmmmmmmmmmdxxii. Protections from jury misconduct: (12760) voir dire (12761) attorneys may observe jurors during trial (12762) attorney can impeach the verdict by non-juror evidence of 3

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the misconduct Types of Review: mmmmmmmmmmmmmcd. De Novo => no deferring to trial court. This is for questions of law mmmmmmmmmmmmmcdi. Clear Error => Give trial court deference. This is for factual questions mmmmmmmmmmmmmcdii. Plain Error => More deference to the court. This is when person who suffered the mistake didnt object mmmmmmmmmmmmmcdiii. Forfeiture & Waiver => no review mmmmmmmmmmmmmcdiv. Harmlessness => if the error is harmless, no overturning the trial court.

RELEVANCE . Importance of Relevance zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz. R402 = Evidence that is not relevant is NOT admissible & all relevant evidence is admissible unless otherwise provided RULE 401: What is Relevant: rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr. 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 be without the evidence. mmmmmmmmmmmmmmmdlx. Relevancy is a matter or relation between an item of evidence and a matter properly provable in the case. mmmmmmmmmmmmmmmdlxi. Ask whether, under legal reasoning, does evidence possess sufficient probative value to justify receiving it. ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssss. 401 is your authority to bring in any evidence that is relevant (403 keeps it out). mmmmmmmmmmmmmmmmcclxxx. I can bring this in or cross examine because it is relevant and 401 says that I can bring in any evidence that is relevant & not precluded by other rules 4

tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttt. There are two concepts/definitions in this rule: mmmmmmmmmmmmmmmmm. Probative Value mmmmmmmmmmmmmmmmmi. Material (determination of the action) (17800) To be relevant, you must satisfy both of these requirements (17801) Probative = helps show or not show a fact (17802) Material = the fact is properly provable in the case uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu. Probative Value: mmmmmmmmmmmmmmmmmmcdxl. The evidence must have a tendency to make the existence of a fact more or less probable than it would be without the evidence (19240) This is a low standard, just increase the probability by a small amount to get it in. (19241) brick not a wall/not every piece of evidence is a home run. (19242) Questions to ask: (ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttt) is there any tendency to make any fact of consequence more or less probable (uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu 5

does it add to the case in the slightest mmmmmmmmmmmmmmmmmmcdxli. Evidence may be used to relate to an ultimate, evidentiary, or intermediate fact () The evidence need not relate to a material fact () This means that a fact may be relevant only if used to build on itself to prove a later ultimate fact, with the ultimate fact being properly provable. () if an item of evidence tends to prove or disprove any proposition, it is relevant to that proposition. () Even if the ultimate fact is improbable, evidence can have probative value. (nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnn) ex: evidence that defendant is the life insurance beneficiary of the victim. The evidence is probative but still the ultimate fact is not probable. mmmmmmmmmmmmmmmmmmcdxlii. In finding probative value the judge will use his own logical reasoning and experience or science, not legal principles. (12120) ask if it is logically relevant to prove guilt/liability mmmmmmmmmmmmmmmmmmcdxliii. The fact to which evidence is directed need not be in dispute (12840) This allows background information which is usually not disputed (12841) The fact may however be precluded R403. vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv. Material: mmmmmmmmmmmmmcdlxxx. The evidence must bear on a fact that is of consequence to the determination of the action. (14280) either a claim or a defense mmmmmmmmmmmmmcdlxxxi. The fact must help to determine the action. mmmmmmmmmmmmmcdlxxxii. Material turns on the what issues are at stake in the proceeding, so look to the substantive law, not evidence rules (15000) FRCRP 7 says that an indictment must include the nature 6

and contents of the complaint (rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr) Thus everything in the complaint or relating to the complaint is material (ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssss) Any evidence relating to other events/conduct are not material (ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttttttttttttttttttttttttttttttt) Surplusage => strike material in the indictment because there are too many facts (uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuu) Bill of Particulars => ask government to put more facts in indictment because there is not enough. (15001) Ex: evidence is a murder victims earning capacity (jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj 7

in a criminal trial it is immaterial because it doesnt help to prove guilt or innocence (kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk) in a civil trial it is material because it will lead to the determination of the action. mmmmmmmmmmmmmcdlxxxiii. Corroborating Evidence: (17160) U.S. v. James () women raises self-defense based on dead persons stories about being a bad ass. She wants to bring in proof of the stories. () Evidence of the stories corroborates her story, i.e. that she was not making all this up. () HOLDING: Since her credibility could ONLY be directly corroborated through the evidence, court cannot exclude the evidence. () The crux of this case comes down to credibility () Material: evidence connected to her defense () Probative: proof of the events makes it more probable that the deceased did tell James about the events wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwww. Conditional Relevance: (R104b) . When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. 8

. . . .

. . .

Conditional evidence requires two things () relevancy & () some matter of fact () ex: Evidence that a spoken statement is relied upon to prove notice (relevant); must prove that the statement was heard (matter of fact) The condition connects an inference which cannot be made without the fact. () Think about this in terms of chain of inference The fact is proven or disproved at a preliminary hearing. Proving the fact requires admissible evidence The standard for proving the fact is could the jury reasonably find the condition fact by a preponderance of the evidence. () The judge decides if the fact meets this standard () The judge is not require to weigh the evidence or make a finding. () The judge must view all of the evidence () The judge has a lot of discretion in this area This standard is created by Bourjaily v. U.S. The standard is decided by the judge as to the jury Huddleston v. U.S.

RULE 403 - RELEVANT EVIDENCE EXCLUDED FOR UNDUE PREJUDICE -surprise is not reason to exclude . Even if the evidence is relevant, evidence may (judges discretion) be excluded if its probative value is substantially outweighed by: . Danger of unfair prejudice: () an undue tendency to suggest a decision on an improper basis () Normally the basis is an emotional one () But not always () Surprise & confusion of the jurors. () However, surprise is usually solved by a continuance instead of being deemed inadmissible () Consideration of unfair prejudice should be taken in the context of probable or lack of effectiveness of a limiting instruction . Confusion of the issues () distracting the jury from the task at hand . Misleading the jury () distracting the jury from the task at hand . Considerations of: () undue delay () waste of time OR () of needless presentation of cumulative evidence . Analysis: . Determine the probative value of the evidence . Identify the presence of any of the enumerated dangers or considerations . Balance the probative value against the identified dangers or considerations (truth v harm) 9

. . .

(2264) Substantially makes 403 biased in favor of admissibility (2265) Other issues the judge may consider () the effect of limiting instructions (favors admission) () availability of alternative proof (favors no admission) () possibility of stipulations increase unfair prejudice in making the balancing determination - Old Chief (2266) Credibility is not a factor. The test is what probative value the evidence would have if believed. Appellate courts may only overturn a trial court balancing decision if they find clear abuse of discretion Either party may make a 403 objection. Inflammatory Evidence - Photos & Others . Relevant photos may be introduced in evidence even when they may prejudice the jury against the defendant (21976) Look for photos that will incite anger & passion in the jury (21977) However, homicide is a gruesome subject and courts are not sterile settings . Photos in a homicide are generally admissible because the facts and cause of death are always relevant in a murder case . If the defendant doesnt contest the fact that is of consequence, a relevant exhibits probative value may be minimal . Also, a lot of photos proving the same thing will lead to lesser probative value Evidence of Flight: mmmmmmmmmmmmmmmmmmmmmmdcxvi. Problem with flight evidence: (23416) unreliability & (23417) prejudice mmmmmmmmmmmmmmmmmmmmmmdcxvii. Evidence of flight is only marginally probative as to the ultimate issue of guilt or innocence (24136) Still flight, resisting arrest, escape from custody, concealment, assumption of a false name, & related conduct are evidence of consciousness of guilt and thus guilt itself. (24137) this actions together raise the probative value of flight (bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb 10

ex: a person fleas the state and is also caught using a false name. This makes evidence of flight more probative mmmmmmmmmmmmmmmmmmmmmmdcxviii. Evidence of flights probative value as circumstantial evidence of guilt depends on the degree of confidence with which four inferences can be drawn: (25576) from the defendants behavior to flight (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllll) Flight directly after a crime is more probative than flight three months after. (25577) from flight to consciousness of guilt (25578) from consciousness of guilt to consciousness of guilt concerning the charged crime (25579) from consciousness of guilt concerning the charged crime to actual guilt of this crime. mmmmmmmmmmmmmmmmmmmmmmdcxix. Flight evidence is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences. mmmmmmmmmmmmmmmmmmmmmmdcxx. Court will balance the alleged relevance against the risk of misuse. Statistical Evidence: - People v Collins mmmmmmmmmmmmmmmmmmmmmmmmmmcmxxxvi. Two prejudicial errors with statistical evidence (27736) inadequate evidentiary foundation (elements of stats not correct) (27737) distracts the jury from its proper function of weighing the evidence on the issue of guilt or innocence & encourages jurors to rely on the inaccurate demonstration (nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn 11

It makes the jurors think that they do not have to decide for themselves whether a person is guilty beyond a reasonable doubt because the odds tell him that a person is or not. (ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooo) Even if you can prove the probability of a certain person being somewhere, you cant prove that they actually committed the crime. . Stipulations mmmmmmmmmmmmmmmmmmmmmmmmmmmmmxcvi. Stipulations act as alternative proof for the 403 balancing. mmmmmmmmmmmmmmmmmmmmmmmmmmmmmxcvii. Stipulations are not mentioned expressly in the FRE. mmmmmmmmmmmmmmmmmmmmmmmmmmmmmxcviii. When applying the 403 balance a judge will use his discretion in allowing or not allowing evidence. mmmmmmmmmmmmmmmmmmmmmmmmmmmmmxcix. The judge may make a conditional ruling, such as allowing the fact to come in through a stipulation but not allowing the actual evidence mmmmmmmmmmmmmmmmmmmmmmmmmmmmmc. This conditional ruling comes from Rule 102 which contemplates a flexible scheme of discretionary judgement by trial courts designed to minimize the evidentiary cost of protecting the parties from unfair prejudice. mmmmmmmmmmmmmmmmmmmmmmmmmmmmmci. A stipulation removes the risk of unfair prejudice by not allowing details of an event & gives the jury a concrete basis for an inference. mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcii. Old Chief v. U.S. (29896) defendant charged with felony gun possession 12

(29897) government proves element of felony by bringing in past criminal record details. (29898) defendant offers stipulation (29899) Problems: (ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppp) the evidence will unfairly prejudice the defendant by making him seem like a habitual criminal, i.e. propensity (qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq 13

the only purpose of the evidence is to prove an element (29900) Reasoning: (hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh) When balancing 403, judge should look at each item of evidence as an island but also look to alternatives (iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii) When looking at probative value and prejudice, court should look for alternatives which effects the probative value (jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj 14

Court finds that naming the felony that defendant committed is not relevant to proving element of felony (kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk) Howev er, generally, a prosecution should be allowed to bring in evidence of its choosing, reasons: () builds a narrative for jurors to piece together an inference, instead of just presenting linear logic () Impresses upon jury the importance of their job to a juror who doesnt want to send someone to jail () Allows presentment of evidence in all its particularity to satisfy a jurors expectation of what evidence should be () Not allowing evidence may lead a juror to draw a negative inference, i.e. something is being hidden from them or prosecution doesnt have a key piece (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll 15

Court finds proving status, unlike intent or motive, doesnt need a continuous story (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmm) Also, stipulation doesnt stop narration of offense litigated (29901) HOLDING: () In a criminal trial for proving a status element, the prosecution cannot bring in evidence if the defendant stipulates () status is known as a recidirst element () For other elements, the prosecution is able to bring in facts and background. This holding is limited to status () Thus the argument for the prosecution proving its 16

() (29902) () ()

() () () ()

own case is still good for other types of elements the best evidence rule, i.e. have to put forth the best possible evidence to prove a case, does not exist. DISSENT: Court cannot exclude evidence simply because it hurts defendants case All evidence is prejudicial or it wouldnt be material () Ex: not being able to use the name of a murder victim. The name is not necessary but needed for the narration Looking at 404b, prosecution is not showing bad character but an element of the crime Emphasis on limiting instructions to the jury R105 Problems from the holding is that it leaves open questions, i.e. what types of crimes may be used to prove status Emphasizes problems mentioned by the majority.

SPECIALIZED RELEVANCE RULES -Rules 407-411 reflect the rule writers judgement that, as a matter of law, evidence it governs fails the 403 balancing test. Also, public policy arguments are added to the discussion which help keep evidence out. -All but 410, prohibit only certain uses of the evidence and permit all other uses. -If evidence is not barred by the following rules, look to 403 and apply the balancing test to see if the evidence is admissible.?? . RULE 407: Subsequent Remedial Measures . After a harm, remedial measures that make the harm less likely to occur is NOT admissible to prove: . negligence . culpable conduct . products liability . If controverted, remedial measures may be used to prove: . ownership . control . feasability () A party could avoid this evidence by stipulation, meaning the fact is not controverted . Remedial measures may always be used to prove: . impeachment . Even if a party doesnt admit that the conduct prior to the injury was wrong, the later act is still remedial. Simply, you dont need to admit fault to make something remedial. . Defining feasability: . In order to bring in feasability for remedial measures, the defendant has to raise the issue of feasability. Simply, defendant has to put feasability in issue. () Thus defendant must say that all precautions were taken or 17

nothing more could have been done in order to put feasability in issue () However, if defendant simply says that at the time the thing was reasonable safe or not defective, feasability is not in issue. . Two Views: () Narrow View: defendant must essentially contend that the measures were not physically, technologically, nor economically possible under the then pertaining circumstances () Feasability = impossible () This allows exclusion of evidence if the defendant argues that () the design or practice was chosen because of its comparative value over an alternative OR () the alternative would not have been effective to prevent injury () Broad View: allowing the spectrum of motives and explanations for not having adopted the remedial measures earlier () Feasability = impractical () This view allows what is excluded in the narrow view . To define feasability you need to look at the context of the case () When several factors come into a decision, the decision may be based on judgement, not feasibility Defining Impeachment: . This term is not defined expansively () ex: asking someone if they took all precautions and the person answers yes and has taken remedial measures, is not impeachable () ex: someone claiming to have the best safety precautions and they have changed the precautions after the injury, is impeachable . Impeachment depends more on the nature of the contradiction than on the fact of it Third party remedial acts: mmmmmmmmmmmmmmmmmmmmmmmmmmmmdcxcvi. Courts are split on whether to allow third party remedial acts mmmmmmmmmmmmmmmmmmmmmmmmmmmmdcxcvii. However, if court does allow such evidence under 407, the evidence usually is not admissible under 403 for lack of probative value Policy Reasoning: mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxvi. Encouraging, or at least not discouraging, people to take steps in furtherance of safety mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxvii. Remedying a possible cause of injury doesnt mean you were guilty before (30216) Rejects the though that because the world gets wiser as it gets older, it was foolish before

RULE 408: Compromise & Offers to Compromise rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr 18

This rule only applies for civil cases ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssss. Evidence of a compromise or an offer to compromise includes: mmmmmmmmmmmmdcxlviii. furnishing a valuable consideration in compromising or attempting to comprise a claim mmmmmmmmmmmmdcxlix. offering or promising to furnish consideration in compromising or attempting to compromise a claim mmmmmmmmmmmmdcl. accepting, or offering or promising to accept, consideration in compromising or attempting to compromise a claim mmmmmmmmmmmmdcli. conduct or statements made in compromise negotiations regarding the claim, except (8152) in a criminal case and the negotiations related to a claim by a public office/agency in the exercise of regulatory, investigative, or enforcement authority (zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz) This is for a situation in which the negotiations are not with a prosecutor but with some agency (8153) admissions of liability or opinions during compromise negotiations are NOT admissible (rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr) unqualified statements are admissible, thus a party may protect himself by speaking in hypotheticals (8154) Also, when a statement or conduct , i.e. direct admission of fault, is made to the government in a civil case settlement negotiation, that evidence is admissible in a criminal case, unless precluded by 403 (jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjj) However, the offer or acceptance of a compromise is still inadmissible. mmmmmmmmmmmmdclii. In order to invoke this rules, a claim must have 19

been made (6376) formal or informal. mmmmmmmmmmmmdcliii. Evidence of compromises (or attempts), does not include statements of fact made during negotiations, which is admissible if brought in without mention of the settlement negotiations & is discoverable in some other way. (13352) Simply by making a comment in negotiations does not immunize that idea from other discoverable means. (hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhh) Ex: a preexisting document brought into settlements is not immunized from discovery and may be brought in (iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii) documents made for the claim are immune mmmmmmmmmmmmdcliv. A compromises with third parties are also inadmissible (7016) the rules does not demand that settlement talks be between the parties of the suit (7017) However, a settlement may come in to prove bias of a witness tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttt. Prohibited uses of the above evidence . Proving liability for a claim that was disputed as to validity or amount . Proving invalidity of a claim that was disputed as to validity or amount . Proving the amount of a claim that was disputed as to validity or amount (19368) disputed means that the amount or validity of the claim 20

had to be in controversy, (rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr) Ex: when a debtor owes an admitted amount & negotiations are for a lesser amount, the claim is not in dispute. Thus, you may bring in evidence about that negotiation. The claim is valid and the amount is not debated. . The rule does not mention impeachment, but the purpose of the rule, i.e. encourage settlement, suggests that you cannot use this evidence to prove impeachment. uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu. Permitted uses of the above evidence: mmmmmmmmmmmmmmmmmmmmdccxxviii. for any purpose not prohibited mmmmmmmmmmmmmmmmmmmmdccxxix. Examples: (21528) proving a witnesss bias or prejudice (21529) negating a contention of undue delay (21530) proving an effort to obstruct a criminal investigation or prosecution vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv 21

Policy reasons for the rule: mmmmmmmmmmmmmmmmmmmmmmclxviii. The offer may be for finality/peace rather than weakness of a position mmmmmmmmmmmmmmmmmmmmmmclxix. The federal courts want to encourage settlements mmmmmmmmmmmmmmmmmmmmmmclxx. Communication is essential to compromises wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwww. Note that the party making the offer or compromise cannot bring that fact, because the rule is meant to protect both parties. . RULE 409: Payment of Medical and Similar Expenses fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff ffffffffffffffffffffffffffffffffffffff. Evidence of: mmmmmmmmmmmmmmmmmmmmmmmdcviii. furnishing, mmmmmmmmmmmmmmmmmmmmmmmdcix. offering, mmmmmmmmmmmmmmmmmmmmmmmdcx. or promising 22

ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg gggggggggggggggggggggggggg. To pay for: mmmmmmmmmmmmmmmmmmmmmmmmcccxxviii. medical expenses, mmmmmmmmmmmmmmmmmmmmmmmmcccxxix. hospital expenses, or mmmmmmmmmmmmmmmmmmmmmmmmcccxxx. similar expenses hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhh. That arose from an injury are NOT admissible to prove liability mmmmmmmmmmmmmmmmmmmmmmmmmxlviii. Note this is only for liability for the injury mmmmmmmmmmmmmmmmmmmmmmmmmxlix. Any other reason is admissible mmmmmmmmmmmmmmmmmmmmmmmmml. Also, this rule does not include any conduct or statements that are not a part of the act of furnishing, offering, or promising, to pay for expenses. iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii. Offerin g to pay for a third party is also inadmissible jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj 23

Reasoning for the Rule: mmmmmmmmmmmmmmmmmmmmmmmmmdcclxviii. Dont want to stop humane impulses to help others mmmmmmmmmmmmmmmmmmmmmmmmmdcclxix. Encourage people to help others kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkk. Examples: mmmmmmmmmmmmmmmmmmmmmmmmmmcdlxxxviii. Are you okay, I will pay for your injury => inadmissible mmmmmmmmmmmmmmmmmmmmmmmmmmcdlxxxix. Ill pay, it was my fault => my fault is admissible llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll. Compa re to 408: . This rule assumes no lawyers are present; 408 assumes lawyers are present . Statements surrounding the offer are admissible; 408 makes statements surrounding the offer inadmissible. . RULE 410 - Inadmissibility of Pleas & Related Statements: . Generally, in criminal & civil proceedings, evidence of the following is NOT admissible against the defendant who made the plea or was a participant in the plea discussions: (note this means the prosecution/plaintiff cannot admit the evidence but the defendant can) mmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxl. a plea of guilt later withdrawn mmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxli. plea of nolo contendre mmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxlii. a statement made under FRCP Rule 11 or a comparable state procedure regarding either of the above two pleas mmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxliii. statements 24

made with an attorney in the course of plea discussions for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. () the statements must be made with prosecutors or prosecutors agent (cops) () if a defendant offers information without first establishing that he is seeking a concession, a court may determine that no plea discussions had begun and thus the defendants statements are admissible. EXCEPTIONS: . In civil or criminal proceedings, a statement, wherein another statement made in the course of the same plea or plea discussions has been introduced & this statement should in fairness be considered contemporaneously with the already introduced statement. OR () This follows the rule of completeness - Rule 106 () Elements: () criminal or civil () other statement already introduced () both statements made in same plea or discussion () fairness dictates that both statements should be considered together . In a criminal proceeding, a statement for perjury or false statement, if the statement satisfies three elements. () statement made by defendant under oath () statement made on the record () statement made in the presence of counsel (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 25

. . .

Elements: (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmcdxxiv) criminal (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmcdxxv) proceeding is about perjury or false statement (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmcdxxvi) oath, record, counsel present . Prosecutors may, as a precondition to any plea negotiations, demand that defendant agrees that any statement they make during negotiations may be used to impeach contradictory testimony given at trial - Mezzanatto v. US () the defendant must voluntarily and knowingly waive this right. () Without this waiver, impeachment is not allowed. Reasoning: . promotion of compromise . Plea bargaining gets absolute protection because it is important to the government to encourage plea bargaining and to help get criminals to act against one another. . Allowing defendants statements to come into trial would chill negotiations by scarring a person from speaking. However, the government will not usually offer immunity and will not be chilled from allowing evidence in concerning settlement negotiations . the last exception is to protect the integrity of the courts . only allowing this rule to apply for guilt & nolo is that these are compromise pleas Note this rule has no exceptions for proving for different purposes Loophole = the government can ask you to waive your 410 rights by saying that they are on the verge of reaching a deal. Withdrawing a plea . You may withdraw your plea before the court accepts it . For a fair and just reason, you can withdraw a plea before sentencing . A plea may not be withdrawn after sentencing

RULE 411 - Liability Insurance: . A person being or not being insured against liability is not allowed to prove whether that person acted negligently or otherwise wrongly . Other purpose will make the evidence admissible . Examples: . proof of agency . ownership or control . bias or prejudice of a witness . Reasoning: . Jury might seek deep insurance company pockets or reduce recoveries for defendant without insurance . It is unlikely that the insured is more careless or that the uninsured is more careful . Encourage people to be insured 26

CHARACTER EVIDENCE . RULE 404 - Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes . 404(A) - Character Evidence Generally: . Evidence of a persons character or trait is NOT admissible for the purpose of proving action in conformity with that character on a particular occasion. () Thus 404(a) bans character evidence to prove conformity/propensity () There are two types of character evidence: () Character in Issue = character is itself an element of a crime, claim, or defense. Ex: competency of the driver when the crime is negligently entrusting a motor vehicle to an incompetent () This type is not affected by Rule 404 () This type is relevant just need to worry about method of proof () Circumstantial Character = evidence susceptible of being used for the purpose of suggesting inferences that the defendant acted on the occasion in question consistently with his character, i.e. propensity () This type leads to questions of relevancy & allowable methods of proof () Note that 404(b) is not technically an exception to 404(a) . RULES 404(a)(1) & 404(a)(2) - EXCEPTIONS: () These exceptions are simply a means of avoiding propensity inferences banned by 404(a). () Both of these exceptions are only for criminal cases & must be initiated by the defendant () 404(a)(2) - Character of the Accused () The following are admissible: (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mcdxlviii) the defendant offers a pertinent character trait about himself. (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mcdxlix) the prosecution rebuts the defendants offered trait 1) the defendant must initiate the issue of the trait 2) the prosecution can only talk about the same issue previously offered (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmm 27

()

()

the defendant offers a character trait about the victim 32232) this is subject to admission by Rule 404(a) (2) (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mcdli) the prosecution offers the same character trait about the defendant that was raised about the accused ) defendant must initiate the issue of the trait ) trait about the defendant must be the same trait that was raised about the victim ) ex: defendant offers evidence about the aggressiveness of the victim, then the prosecution may now bring in evidence concerning the aggressiveness of the defendant ) However, if the defendant attacks the victims character as a witness under Rules 608 & 609, the prosecution may not offer evidence of the same trait about the defendant ) Also, if the defendant brings in character evidence about the victim for a purpose other than to show propensity, the prosecution may not offer evidence of that same trait????? Rule 404(a)(2) - Character of Alleged Victim: () This rule is limited by Rule 412 (rape shields) () The following is admissible: () the defendant offers a pertinent character trait about the alleged victim () the prosecution rebuts the same trait about the victim ) defendant must initiate the issue ) must be about the same trait of the victim () In a homicide trial when the defendant claims the victim was the first aggressor, the prosecution may bring in evidence about the peacefulness of the victim. ) Elements: a) homicide case b) defendant claims victim is the first aggressor c) only evidence about peacefulness ) The defendant doesnt have to offer character evidence about the victim, just say that the victim was the first aggressor Rule 404(a)(3) - Character of the Witness: () This is covered in Rules 607-609 28

404(A) only applied to criminal cases: () Circuit split on whether quasi-criminal cases can use this rule. A factor may be the effect of the trial on the defendants, i.e. a guilty verdict will ruin them () Arguments for criminal only: () plain text of the rule; talks about prosecution & victim () intention of the rule; advisory notes say criminal only () criminal defendant has much more to lose () character evidence is of little probative value but the defendant need only show a reasonable doubt () proving peacefulness in a violent crime is more probative than is carefulness in a breech of contract civil trial () little risk of unfair prejudice when a defendant brings in good character evidence, as opposed to a prosecution offering bad character evidence.

Rule 404(B) - Other Crimes, Wrongs, or Acts: . This applies for criminal & civil . Evidence of other crimes, wrongs, or acts is NOT admissible to prove propensity () other acts means anything, not just crimes, that are not an issue in the case () other acts evidence may be acts that happened before or after the incident of which the trial concerns. . Such evidence is admissible for other purposes () Examples; () motive, () opportunity, () intent, () preparation, () plan, () knowledge, () identity, () absence of mistake, () mistake () modus operandi: () The way a crime is committed must be so distinctive that the inference that nobody else could have committed the crime overcomes the jurys temptation to engage in propensity reasoning () You need a high degree of similarity () Standard: ) the two acts exhibit a commonality of distinguishing features sufficient to earmark them as the handiwork of the same individual 29

Look for the conjunction of several identifying characteristics or the presence of some highly distinctive quality ) Exact match is not necessary () This type frequently coincides with purpose and usually comes down to a 403 balancing test () this is brought in to prove identity. () This list is not exhaustive () Evidence of a persons other acts may be used for ANY purpose other than to show conformity/propensity Character evidence for these purposes requires a 403 balancing based on danger of unfair prejudice & probative value, and also considering limiting instructions and alternative methods of proof. () The defendant may always request a limiting instruction () if the judge thinks that the jury will not abide by the limiting instruction, he may choose to exclude the evidence under 403 () Ex: evidence that defendant owned a bunch of guns to prove opportunity should require an instruction to the jury that the evidence is for one purpose and not the other. In a criminal trial & upon request of the defendant, the prosecution shall provide reasonable notice in advance of trial of the general nature of any such evidence it intends to introduce at trial () The request may be made during the trial, if the court excuses pretrial notice for good cause shown () There is no express form nor time limit for the notice () Court may reject such evidence for lack of timeliness or completeness Two Part Test For 404(b): - is this just for signature crimes???? () court must determine whether the evidence has some special relevance independent of its tendency to prove propensity () if the evidence has a special relevance on a material issue, the court must consider a 403 analysis. (Trial court has discretion in this test) () prejudice = propensity () probative value = need and strength of the evidence Reverse 404b: () evidence used to exonerate a defendant, which is usually used in a mistake in identity defense () The defendant need only prove relevancy under 401 & balance it against 403 factors () In this type there is no risk of unfair prejudice () standard = simple relevance to guilt or innocence () the 403 balance is probative v. waste of time & confusion () A defendant may bring in other crimes if it tends, alone or with other evidence, to negate his guilt of the crime. 30

Reasoning for the rule: . Not logic, but through experience and practicalness, the use of circumstantial evidence leads to a serious risk of prejudice, confusion, and delay . The defendant may bring in evidence as a counterweight to the strong investigative and prosecutorial resources of the government . Problems with the jury: () Jury might find guilt from past acts () Jury may find that a person who did those things should go back to jail, regardless of guilt. () Jury may look at the other acts as being bad enough to send someone to jail regardless of the charged offense () Evidence of past acts may confuse the jury by taking their focus of the issues . Offering past act evidence will lead to a mini-trial if the defense claim that the past acts didnt happen. Doctrine of Chances: . Allows evidence of unusual repetitive actions to show that the unusualness of the occurrence and the number of times it was repeated could shown an inference of design () offering evidence to show implausibility () Court uses cards as a metaphor . This type of evidence should include a limiting instruction to use the evidence to only show the following: () planning () lack of accident () motive . The evidence cannot be used to prove propensity . The jury must decide whether the uncharged prior incidents are so numerous that it is objectively improbable that so many accidents would have befallen the accused. . Reasoning: () Not the same risks as propensity () The DOC does not focus on a defendants subjective disposition . Against: () to much like propensity () The DOC is grounded on the fact that a criminal has a propensity to commit a crime over and over, which is forbidden under 404. Huddleston Standard - Huddleston v. U.S. . Facts: () Defendant is charged with knowingly possessing and selling stolen goods in interstate commerce () The question is if he knowingly possessed () Prosecution tries to bring in evidence of similar acts, those being the defendant previously selling stolen merchandise twice. 31

. . . .

Holding: () similar act evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act. How to prove that defendant committed the similar acts: (four steps) () Is the evidence offered for a proper purpose? R404(b) () The purpose must be something other than propensity/character () Is the evidence relevant? R402 () This requires looking at R104(b) - conditional facts () The similar act evidence is relevant only if the jury can reasonably conclude that: () the act occurred & () the defendant was the actor () Is the probative value of the similar act evidence substantially outweighed by its potential for unfair prejudice? - R403 () Upon request, the judge should give a limiting instruction informing the jury to only use the evidence for the purpose of which its was admitted. R105 The above steps & rules protect a person from unfair prejudice A preliminary hearing with the judge finding by a preponderance of the evidence that the defendant committed the similar act is unnecessary () This was defendants argument Court found that jury could find that the defendant had previously possessed stolen goods and the evidence was admitted.

PROPENSITY EVIDENCE IN SEXUAL ASSAULT CASES . The following rules apply to both criminal & civil cases . These rules allow for propensity evidence . However, they are still subject to a 403 balancing test . These rules do not limit the admission of evidence under any other rule . Without these rules, prosecutors can try to admit evidence under 404b . Rule 413 - Evidence of Similar Crimes in Sexual Assault Cases: . Past crimes of sexual assault are admissible if: () Elements: () it is a criminal case () the defendant is accused of sexual assault () the defendant committed another offense of sexual assault () offense of sexual assault is any crime under federal or state law that involved: ) any conduct proscribed in 18 USC 109A ) contact, without consent, between any part of the defendants body or object & the genitals or anus of another ) contact, without consent, between the genitals or anus of the defendant & any part of anothers body 32

deriving sexual pleasure from the infliction of death, bodily injury, or physical pain of another ) an attempt or conspiracy to engage in any of the above () the past sexual assault is relevant () when propensity evidence is allowed, it is relevant () it still must pass a 403 balancing test If the government intends to use such evidence, they must: () disclose that evidence to the defendant, including: (lllllllllllllll) statement of witnesses (mmmmmmmmmmmmmmm) summary of the substance of the testimony expected to be offered () time limit: (ddddddddddddddddddddddddddddddddddddddddddd) Genera lly fifteen days before trial (eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee) If good cause shown, court may allow a later time

RULE 414 - Evidence of Similar Crimes in Child Molestation Cases mdclvi. Past crimes of child molestation are admissible if: (2456) Elements: (ffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff ffffffffffffffffffffffffffffffffffffffffffffffff) It is a criminal case (ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg gggggggggggggggggggg) the defendant is accused of child molestation (mmmmlvi) A child is anyone under the age of 14 (hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhh) the defendant committed another offense of child molestation (mmmmdcclxxvi) offense of child molestation is a crime under federal or state law that involved: 5576) any conduct proscribed by 18 USC 109A with a child 5577) any conduct under 18 USC 110 5578) contact between any part of the defendants body or object & the genitals or anus of a child 5579) contact between the genitals or anus of the defendant & any part of a childs body 5580) deriving sexual pleasure from the infliction of death, bodily injury, or physical pain on a child 5581) an attempt or conspiracy to engage in any of 33

the above (iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiii) the past child molestation is relevant (mmmmmmccxvi) when propensity evidence is allowed, it is relevant (mmmmmmccxvii) it still must past a 403 balancing test mdclvii. If the government intends to use such evidence, they must: (6776) disclose that evidence to the defendant, including: (jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjj) statement of witnesses (kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkk) summary of the substance of the testimony expected to be offered (6777) time limit: (bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bb) Generally fifteen days before trial (cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc cccccccccccccccc) If good cause shown, court may allow a later time . RULE 415 - Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation: mmmmmmmmdccclvi. In a civil case, with damages predicated on the commission of child molestation or sexual assault, prior offenses of child molestation or sexual assault are admissible and may be considered as provided in Rules 413 & 414 mmmmmmmmdccclvii. If the government intends to use such evidence, they must: (9656) disclose that evidence to the defendant, including: (ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd 34

statement of witnesses (eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee) summary of the substance of the testimony expected to be offered (9657) time limit: (vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvv) Generally fifteen days before trial (wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwww) If good cause shown, court may allow a later time . 403 Balance Test in Context of Rules 413-415: mmmmmmmmmmmdccxxxvi. careful attention must be given to the significant probative value and the strong prejudicial qualities inherent in 413-415 evidence mmmmmmmmmmmdccxxxvii. Mistakes in 403 balance (12536) exclusion because of traditional considerations of it being too prejudicial (12537) always admitting because of Congress judgement that is not prejudicial mmmmmmmmmmmdccxxxviii. Rules 413-415 favor admission but there is no leniency in a 403 test mmmmmmmmmmmdccxxxix. Considerations for no admission (13256) jury convicting based on crimes other than the one charged (13257) jury convicting because they find defendant to be a bad 35

person (13258) jury becomes confused by the introduction of past crimes (ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppp) The degree of risk depends on individual cases mmmmmmmmmmmdccxl. Considerations for admission: (14696) similarities to prior acts (14697) closeness in time to prior acts (14698) frequency of prior acts (14699) presence or lack of intervening factors (14700) need for evidence beyond the victims testimony . Reasoning for Allowing Past Sex Offenses: - Lannan v. State mmmmmmmmmmmmmmmcccxxxvi. Recidivist: (16136) Presumption that molesters repeat their crimes more than others. (16137) Offenders have a perverted sexual instinct which connects them to the crime mmmmmmmmmmmmmmmcccxxxvii. Bolstering: (16856) Sex offenses are hard to prove because they seem so out of the ordinary (16857) Thus, prosecution needs help in proving their case mmmmmmmmmmmmmmmcccxxxviii. Vulnerable: (17576) Society needs to protect children and innocent women who are preyed on (17577) These groups are more vulnerable mmmmmmmmmmmmmmmcccxxxix. Reasons Against: (18296) Recidivist alone is not enough to allow propensity evidence (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll) Also, it might not be true (18297) Bolstering is no longer needed as society changes and becomes more open to talk about sex offenses & the higher rate of 36

occurrence of such offenses (ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddd) Bolstering may still be partially valid as criminals attack the vulnerable and leave little evidence of their crime (eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee) Also, bolstering is not as valid because of the strong sympathy people have for sex offender victims. (18298) Police may go after past criminals first in order to convict quickly. . Rule 405 - Method of Proving Character: ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp 37

This rule corresponds to Rules 404, & 608(b) qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq. It does not affect 413-415 rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr. When character or a trait of character is admissible, proof may be made: mmmmmmmmmmmmmmmmmmmmmxcvi. By testimony as to reputation (at time of offense, not trial) or mmmmmmmmmmmmmmmmmmmmmxcvii. By testimony in the form of an opinion (21896) The above should be confined to the nature and extent of observation and acquaintance from which the opinion is based (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx) This part, 405(a), limits 404(a)(1-2), but not 404(b) ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss 38

On cross examination: mmmmmmmmmmmmmmmmmmmmmmmcclvi. inquiry is allowed into relevant specific instances of conduct mmmmmmmmmmmmmmmmmmmmmmmcclvii. this inquiry is limited to attacking the witness basis of knowledge, not trying to prove or disprove persons trait (24056) reputation: (zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz) cross examiner can ask the reputation witness for, about or, if he has heard of, specific instances pertinent to the trait in question (aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa) cross examiner can only ask about specific instances to test the reputation witness knowledge of the partys reputation (mmmmmmmmmmmmmmmmmmmmmmmmmdclvi) Asking if he heard sheds light on the accuracy of his hearing and reporting 39

(24057) opinion: (jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj) cross examiner can ask the opinion witness for, about, or, if he has heard or knows of, specific instances pertinent to the trait in question. (kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkk) cross examiner can only ask about specific instances to test the opinion witness familiarity with the party. (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll lllllllllllllllllllllllllllllllllllllllllllllllllllll) an opinion witness 40

must have met the person to have an opinion (24058) If the character witness denies that an event occurred, the cross examiner can go no further. (bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb) Cant bring in proof that it did occur (cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc cccc) Also, the proponent of the witness cant prove that it didnt occur. This is where the good faith requirement becomes important. mmmmmmmmmmmmmmmmmmmmmmmcclviii. cross examiner may ask about rumors and reports that are current, even if they dont affect the witness conclusions. 41

tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttttttttttt. When character or a trait of character of a person is an essential element of a charge, defense, or claim, proof may be made of specific instances of that persons conduct mmmmmmmmmmmmmmmmmmmmmmmmmmmdlxxvi. Element is meant in the strictest sense, i.e. the issue must be a material fact that under the substantive law will determine the rights and liabilities of the parties. mmmmmmmmmmmmmmmmmmmmmmmmmmmdlxxvii. This allows for specific instance proof on direct examination mmmmmmmmmmmmmmmmmmmmmmmmmmmdlxxviii. Examples: (28376) when rebutting the defense of entrapment; predisposed disposition to commit a crime (28377) when rebutting a defense of truth in a libel/slander action (28378) resolving a child custody battle. uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu. Specific instance evidence: mmmmmmmmmmmmmmmmmmmmmmmmmmmmmxvi. is the most convincing mmmmmmmmmmmmmmmmmmmmmmmmmmmmmxvii. carries the most undue prejudice mmmmmmmmmmmmmmmmmmmmmmmmmmmmmxviii. is only allowed when character is in issue: (29816) when character is used circumstantially, proof is only allowed in the form of reputation or opinion (29817) however, reputation or opinion methods are always available vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv 42

Michelson v. U.S. mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmcdlvi. Facts: (31256) defendant is accused of bribing a federal agent and he raises the defense of entrapment (31257) defendant brings in reputation witnesses (31258) on direct, defendant is asked about a conviction for a watch scam (31259) on cross, prosecution asks the reputation witnesses if they had heard of the watch scam and an arrest for receiving stolen goods which happened thirty years ago. (31260) At this time, courts only allowed reputation evidence, not opinion mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmcdlvii. Reasoning: (31976) Prosecution may not bring in evil character evidence () this rule is based off of practicality, not logic (31977) Reason for allowing reputation to come in: () it summarizes years of experience which could confuse the jury if all acts were brought in independently (31978) A reputation witness must qualify his conclusions with knowledge of the person, the persons past, and the persons experiences. (31979) When a defendant brings in a character witness, the prosecution may either: () bring in other witnesses to rebut () ask for specific instances from the defendants witness in order to qualify their statements. (31980) Trial courts may limit the number of character witnesses in order to avoid swearing matches. (31981) If an event is so far in the past, the cross examiner should not be allowed to ask about that specific instance, because the credibility of the witness will not be harmed by not knowing such a fact (31982) Problems with prosecution asking about an arrest: () hearsay () the arrest is not a big deal and not talked about () the arrest happened a long time ago. (31983) The prosecution may ask about arrests that are not similar to the crime, because the arrest need only relate to the reputation asserted, i.e. whether the defendant was a honest law-abiding citizen mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmcdlviii. RULE: () On cross examination the prosecution must have a good faith basis for questions concerning specific instances () Only a conviction may be inquired about to undermine the trustworthiness of a witness. () Cross examiners can use rumors if in good faith mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmcdlix. Breadth of 43

Michelson () Michelson does not affect: () 404(b) non-character proof () contradiction evidence () specific acts relevant to truthfulness () The case gives broad latitude to cross examiners . Rule 406 - Habit; Routine Practice: . Evidence of habit or of the routine practice of an organization is relevant: . Whether corroborated or not & regardless of the presence of eyewitnesses . To prove: that on a particular occasion, the conduct of the person or organization was in conformity with the habit or routine practice () specific acts are allowed to prove habit () proof of habit falls outside 404(a)s bar of prohibiting propensity () habit goes around the propensity box . Habit is highly persuasive as proof of conduct on a particular occasion. . the key word is predictive, is the act predictive. . the more predictive, the more probative value . Reasoning: . one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again. . the habit allows an inference that the person acted in a certain way on a particular occasion.. . Standard . to prove habit you need to show the judge a sufficient number of instances of the conduct in question . Difference between habit and character: . Character: () generalized description of disposition () ex: honesty or temperance . Habit: () ones regular response to a repeated specific situation () something you do without thinking about it () something you do with invariable regularity () Think about three elements to prove habit: () specificity - you want specific behavior () regularity - ratio of reaction to situations () reflection - you want semi-automatic behavior () more specific than character () intemperate habits, such as drunkenness or prior assaults, is inadmissible () habit has no mechanical test and is instead settled on a case by case basis. . When getting too close between habit and character use a 403 balancing

CHARACTER FOR TRUTHFULNESS OF A WITNESS - RULES 607-609 44

-These rules only cover witness impeachment, i.e. credibility, not guilt or innocence . Rule 607 - Who May Impeach: . the credibility of a witness may be attacked by any party . this includes the party calling the witness Rule 608 - Evidence of Character & Conduct of Witness: . This rule is allowed for criminal and civil . Credibility of a witness may be attacked or supported by either: . Opinion evidence OR . Reputation evidence () You generally cannot use specific acts . Limits to attacking/supporting credibility of a witness: . Evidence may only refer to character for truthfulness or untruthfulness & . Evidence of truthfulness may only come in after the witness truthfulness has been attacked by reputation, opinion, or otherwise. () Simply, you cant bolster your witness () Either party may attack the witness () Examples of attack: () opinion or reputation for being untruthful () elicited on cross examination, evidence of specific acts probative of truthfulness () evidence of a past conviction () Example of NO attack: () evidence of bias or interest () Bias or interest may be allowed as long as it is not an attack on the witness general character of truthfulness/untruthfulness () This type simply attacks the one testimony, not the witness general character for truthfulness () It still must pass 402 & 403 () Contradiction: () evidence of a contradictory statement depends on the circumstances for whether it is an attack or not () a mistake causing a contradiction would NOT be an attack () a proven, purposeful lie is an attack . When may specific instances of the witness conduct be used: . During cross examination & if probative of truthfulness or untruthfulness, the cross examiner may inquire into specific instances, concerning: () the witness character for truthfulness or untruthfulness OR () the character for truthfulness or untruthfulness of another previous witness, as to whose character the current witness has testified. () Probative of truthfulness/untruthfulness means: () the court must apply a 403 balancing test & () the evidence may be barred by Rule 611 (barring harassment and undue embarrassment) () If the witness answers no to a specific instance, cross45

examiner cant bring in extrensic evidence () You need a good faith basis for the specific acts Michelson () Extrinsic evidence is inadmissible when used for the sole purpose of attacking/supporting truthfulness () extrinsic evidence - other evidence () if a witness answers the question, the attorney may not use any other evidence to say the witness is lying () EXCEPTION: rule 609 (conviction of a crime) () The reason for purpose being the sole purpose is that the extrinsic evidence may be brought in for other grounds of impeachment, such as: () contradiction, (lied on the stand about a prior arrest) () prior inconsistent statements, () bias, or () mental capacity ) these require a 403 balancing test () When specific acts are brought in, this rule does not allow the consequences of the bad act to come in, such as punishment for the act When testifying exclusively about truthfulness, the witness and the defendant maintains their privilege against self-incrimination. () However, if past criminal acts partially come up during direct examination, the witness may not invoke the privilege on cross Purpose of the rule being limited to truthfulness/untruthfulness () sharpen relevancy () reduce surprise () avoid waste of time, & () confusion

NOTE: . This rule covers general character of truthfulness/untruthfulness . NOT truthfulness/untruthfulness of the specific testimony . Evidence against the specific testimony, i.e. you lied about this not that you generally are untruthful, does not need to follow 608 nor 609. . Examples of attack on specific testimony: () evidence of witness bias () contradiction in the form of past inconsistent statements made by the witness () contradiction in the form of other evidence, such as: () physical evidence () testimony of other witnesses () common experience of life that makes the testimony implausible. () U.S. v. Ince () Government knowingly called a witness who previously identified the defendant & now claims she cannot recall () Generally, a party can impeach its own witness 46

() ()

()

Limit: calling a witness with the purpose of impeaching him in order to bring in evidence which would otherwise be inadmissible. To discover this purpose courts should apply a 403 test () testimonys impeachment value V. tendency to unfairly prejudice the defendant or to confuse the jury () impeachment value is high when a witness all of a sudden begins making inconsistent evidence. Weight the value equal to the damage to the case When the government attempts to impeach a witness though inconsistent statements consisting of a confession, court should almost always exclude, because a limiting instruction is not likely to be heeded by the jury

Rule 609 - Impeachment by Evidence of Conviction of Crime: . This rule is for evidence used for the purpose of attacking the character of truthfulness of a witness . Evidence that a witness has been convicted of a crime is admitted provided: . The crime was punishable by death or imprisonment of more than one year () the sentence is considered under the law in which the witness was convicted () the penalty is the potential penalty, not the actual penalty assessed. () the judge will use his discretion in allowing the evidence & use a different standard depending on whether the witness is the accused or is the witness (vvvvvvvvvvvvvv) For a normal witness: (mclx) Admitting the crime requires a 403 balancing test 1960) the prejudicial effect needs to substantially outweigh its probative force (mclxi)The unfair prejudice is applied to the defendant, not the witness (mclxii) Unfair prejudice to the defendant will usually occur when there is some special relationship between the witness & defendant (mclxiii) Impeachment of a witness will be easier to get in than impeachment of an accused as a witness. (wwwwwwwwwwwwww) For an accused as the witness: (mmdc) judge must determine that the prejudicial effect only slightly outweighs its probative force. 3400) difference from when the witness is not the accused. (mmdci) Five factors used for this standard- U.S. v. Brewer: 4120) nature of the crime ffffffffffffffffffffffffffffffffffffffffffffffffffff 47

crimes that have little or no bearing on honesty weigh against admittance 4121) time of conviction and witness subsequent history 4122) similarity between past crime and crime alleged xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx) similar crimes have the danger of helping a jury convict on propensity yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyy) this may be helped by a limiting instruction 4123) importance of defendants testimony ppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppp) the more critical the defendants testimony is the more hesitant the court should be to allow impeachment 4124) centrality of the credibility issue The crime is one in which it can readily be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness (6760) this assessment should be decided on the underlying facts of each case, not just by the crime (ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttt) Dishonesty means crimes involving deceit, regardless of the means in which it was committed. (6761) Dishonesty is construed narrowly (6762) Examples: 48

(lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllll) perjury, false statement, criminal fraud, or false pretense (6763) To avoid a mini-trial, proponent of the evidence should have proof of the deceit readily available: (ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddd) Proof may be found in a jury charge or indictment (6764) This rule does not have a balancing test (6765) Instead it is regulated by the below exceptions. EXCEPTIONS: mmmmmmmmmdlx. More than ten years has elapsed from: (10360) the date of conviction OR (10361) the date of release of the witness from imprisonment of that conviction (ffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff ffffffffffffffffffffffffffffffffffff) the date chosen is whichever comes later (ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg gggggg) the stop date is from the date of indictment (mmmmmmmmmmmcmlx) If a person is sent back to jail for a parole violation, the release date is from the time from the second release date (mmmmmmmmmmmcmlxi) Imprisonment for a parole violation is considered confinement imposed for the original conviction. (10362) Exception to the exception: (ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp 49

In the interest of justice, a determination by the court that the probative value of the conviction supported by specific facts and circumstances substantially outweighs the prejudicial effect (mmmmmmmmmmmmmcd) This should only occur in exceptional circumstances (mmmmmmmmmmmmmcdi) To claim this exception, the proponent must give written notice of the intent to use such evidence providing the adverse party with fair opportunity to contest the use of such evidence mmmmmmmmmdlxi. On the basis of rehabilitation, the conviction has been pardoned, annulled, or the person is certified rehabilitated or other equivalent procedure (13960) Exception to the exception: (rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrr) that person has subsequently been convicted of a crime punishable by death or imprisonment for more than one year mmmmmmmmmdlxii. On the basis of innocence, the conviction has been annulled, pardoned, or other equivalent procedure mmmmmmmmmdlxiii. Generally, evidence of juvenile adjudications is not admissible (15400) Exception to the exception: (four elements) (bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb) must be in a criminal case, (cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc 50

person must be witness, not the accused, (ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddd) the conviction or offense would be admissible to attack the credibility of an adult, & (mmmmmmmmmmmmmmmmm) this will require a 403 balancing (eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeee) the court is satisfied that admission is necessary for a fair determination of the issue of guilt or innocence (15401) Reasoning for no general admittance (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllll) no probative value (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm 51

practical problem of juvenile records being destroyed and kept confidential (nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn) juvenil es are suppose to be rehabilitated like people who get pardons A conviction which is on appeal does not make the conviction inadmissible mmmmmmmmmmmmmmmmmmcc. Evidence of the pendency of an appeal is admissible mmmmmmmmmmmmmmmmmmcci. The pendency of an appeal is a qualifying circumstance which should be considered in a 403 balance The prosecution may by rebuttal evidence include the record of prior such convictions if: mmmmmmmmmmmmmmmmmmcmxx. A defendant misrepresents himself regarding: (19720) the existence or nature of such prior convictions (19721) his attitude toward or willingness to commit a general category of offense, unless: (ffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff f) the denial is made of specific conduct which forms the basis of the charge against him shall not make prior convictions admissible to rebut such statements mmmmmmmmmmmmmmmmmmcmxxi. This rule only applies if the accused offers the evidence; (21160) gratuitously on cross examination, (21161) on direct examination by the defense attorney, (21162) to answer a question by the prosecution asked to elicit a 52

representation from the defendant. General Notes: mmmmmmmmmmmmmmmmmmmmmdccc. the 403 balance applies to the government and civil litigants mmmmmmmmmmmmmmmmmmmmmdccci. When applied to the government, there is a low chance of undue prejudice because the trier of fact will not likely use the prior conviction of a witness to lead to propensity of the government mmmmmmmmmmmmmmmmmmmmmdcccii. the only probative value is impeachment 609 better than 608: mmmmmmmmmmmmmmmmmmmmmmdxx. More certainty as to its truth due to high burden in past convictions. mmmmmmmmmmmmmmmmmmmmmmdxxi. Less likely to cause ambush due to giving other party notice. mmmmmmmmmmmmmmmmmmmmmmdxxii. Easy to prove because all you need is one document. Standards for admitting convictions: mmmmmmmmmmmmmmmmmmmmmmmccxl. Witness impeachment = normal 403 mmmmmmmmmmmmmmmmmmmmmmmccxli. Accused impeachment = Brewer factors mmmmmmmmmmmmmmmmmmmmmmmccxlii. Crimes 10 years old = harder to admit under 403 mmmmmmmmmmmmmmmmmmmmmmmccxliii. Juvenile crimes = hardest to admit under 403 (24040) Reason fr different standards is due to the difference of probativeness of each kind of evidence Objections for past crime impeachment: mmmmmmmmmmmmmmmmmmmmmmmmdclxxx. Luce v. U.S. (25480) if a trial court erroneously allows past crimes when a defendant testifies, the defendant may appeal given two conditions: (ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttt) defendant must have in fact testified & (uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu 53

prosecution must in fact introduce evidence of the contested conviction (mmmmmmmmmmmmmmmmmmmmmmmmmmmlxxx) Reason for requiring actual introduction is that the appellate court can only speculate about prejudice that might have been & the trial court may have always changed its mind. mmmmmmmmmmmmmmmmmmmmmmmmdclxxxi. Ohler v. U.S. (27640) If in an in limine motion judge allows the prosecution to bring in impeachment evidence of the accused on cross & the defendant offered testimony about the past conviction during direct examination, the defendant effectively waives his right to an objection. (vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv) Each side has a decision about bringing in prior convictions (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcc xl) government in whether to risk an appeal (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcc xli) defense in whether he runs the risk of bringing it in to take the sting out while the government still may not (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcc xlii) These decisions come down to tactics (wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww 54

Allowing a defendant to bring it in and then later appealing that decision, ruins the choice. . Rule 601 - General Rule of Competency: zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzz. Every person is competent to be a witness, unless otherwise stated aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaa. The competency of a witness is determined by state law when: mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxl. You are in a civil actions or proceedings & mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxli. The witness is testifying about an element of a claim or defense to which state law supplies the rule of decision. bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb 55

Incompetent people & liars may testify but there testimony should be scrutinized by the jury for weight and credibility. . Rule 602 - Lack of Personal Knowledge jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj. This rule is limited by Rule 801 - Hearsay kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmdccclxxx. Perso nal Knowledge = the witness must have had an opportunity to and actually did observe the actual fact (32680) not an absolute but may consist of what the witness thinks he knows from personal perception. mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmdccclxxxi. Eviden ce to prove personal knowledge may, bot need not, consist of the witness own testimony () Exception: Rule 703 - expert testimony mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmdccclxxxii. Person al knowledge & hearsay: () This rule prevents a witness from testifying to the subject matter of the hearsay statement, because the witness has no personal knowledge of it 56

mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmdccclxxxiii. When a very young child takes the stand, the court may hold a competency hearing and ask if the child can: () remember and perceive actual events () communicate the events intelligibly () distinguish between truth and falsehood and the obligation to tell the truth () respond intelligibly to cross examination questions mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmdccclxxxiv. Child victims statute for competency: () the statute creates a rebuttable presumption that children are competent, unless: () a compelling reason exist to not allow the testimony () the compelling interest analysis should focus on whether the child can understand and answer simple questions. () a childs age is not a compelling interest . Rule 603 - Oath or Affirmation: . Before testimony, every witness shall be required to declare that he will testify truthfully by either: . oath OR . affirmation (a simple solemn undertaking to tell the truth) . Both shall be administered in a form calculated to: () awaken the witness conscience & () impress the witness mind with the duty to be honest Rule 610 - Religious Beliefs or Opinions: . Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that their credibility is impaired or enhanced . Evidence of beliefs or opinions may be brought in to show interest or bias is admissible . Ex: disclosure of affiliation with a church which is a party to the litigation is admissible Rule 611 - Mode and Order of Interrogation & Presentation: . Courts should exercise reasonable control over the mode and order of interrogating witnesses & presenting evidence in order to: . make the presentation and interrogation effective for the ascertainment of truth . avoid needless consumption of time . protect the witnesses from harassment or undue embarrassment () You can still discredit the witness () Factors for allowing undue embarrassment and harassment; () importance of the testimony, () nature of the inquiry () relevance to credibility 57

() waste of time () confusion () This rule also protects witnesses from () questions that call for an conclusion beyond the witness knowledge/opinion () questions that are vague and/or assume facts not in evidence; misleading; compound; asked/answered; speculative; & irrelevant () questions that call for hearsay () questions about privileged information Under the discretion of the judge, the following rules are treated as a suggestion under the advisory notes: . Cross examination should be limited to: () the subject matter of the direct examination, () matters affecting the credibility of the witness () reason is to promote an orderly presentation of the case () court may permit inquiry into additional matters as if on direct examination . Leading Questions: () Defined: a question that suggests to the witness the answer desired by the questioner () questions that begin with didnt are usually leading () very specific questions are usually leading () On direct examination leading questions should not be used, unless: () necessary to develop the witnesses testimony () the witness is one of the following: () hostile witness, () biased witnesses, () child witnesses, () witness whose recollection is exhausted, () undisputed preliminary matters () adverse party, () witness identified with the adverse party () Generally, on cross examination leading questions may be used () The purpose of not allowing leading questions in direct is so that the jury can ascertain truth by hearing the story from the words of the witness. Thus, if a party is called by the opponent, that partys own council will lead to the exception of allowing leading questions on cross.

Rule 612 - Writing Used to Refresh Memory: . The witness memory must be exhausted . A witness may use a writing to refresh his memory for the purpose of testifying, either: . While testifying OR () When a refresher is used while testifying: 58

. .

the adverse party is entitled to: () have the writing produced at the hearing, () inspect the writing, () cross-examine the witness thereon, () introduce evidence to those portions which relate to the testimony of the witnesses. . Before testifying: () When a refresher is used before testifying, () the adverse party is entitled to the above, if the court in its discretion determines it is necessary in the interests of justice. This rule does not allow the refresher to be admitted into evidence . Rule 803(5) allows the past record to be admitted as to their truth

()

Rule 613 - Prior Statements of Witnesses: . This rule is limited to proving that a witness says different things at different times, not the truth of a statement . In examining a witness, a prior statement made by a witness, written or not, need not be shown nor be disclosed to the witness at that time . Upon request, the prior statement must be shown or disclosed to opposing counsel . When using extrinsic evidence, admissible only if: . The witness is afforded an opportunity to explain or deny the evidence & . the opposite party has the opportunity to interrogate the witness about the evidence () The extrinsic evidence may come up after the witness leaves the stand () This still allows the proponent of the witness (party who did not bring in the extrinsic evidence) to call the witness back. () However, if that witness is no longer available, thus no opportunity to explain nor interrogate, then the extrinsic will not be allowed or otherwise under discretion of the court. . The extrinsic evidence provision does not apply to admissions of a party opponent found in Rule 801(d)(2)

HEARSAY . Introduction to Hearsay: . Testimonial capacity - when someone testifies, courts worry about failure of one or more of the factors considered in evaluating the testimony: . perception (did you see it correctly) . memory (did you remember what you saw and what you believed you saw) . narrative (are you able to say what you saw) 59

. sincerity (are you trying to tell the truth; believability of what you say) Tools to test truthfulness: . Oath . Presence of the trier of fact () the demeanor of the witness allows the jury and opponent to view valuable clues () the solemnity of the occasion produces truth () it is hard to lie in front of the person whom the lie is directed at . Subject to cross examination: () cross examinations help to discover the truth and will expose imperfections in memory, perception, & narration Reason for exceptions to hearsay: . Common sense leads to the conclusion that not all testimony comports with all four elements, but since imperfect evidence is better than no evidence, courts are left with the problem of balancing imperfect testimony and the desirability of giving testimony under ideal conditions () The circumstances of the exceptions are supposed to furnish guarantees of trustworthiness. Biggest problem with hearsay is that you cannot cross examine hearsay: . When a witness relates an out of court statement & the statement is offered to prove what the out of court speaker asserted, the out of court statement alludes truth testing Analysis for statements: . Does the witness have personal knowledge? () yes => weigh under 403 () no => continue . Is the statement hearsay? (264) is the witness describing an out of court statement for the purpose of proving what the out of court speaker was asserting? (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx) yes => hearsay (265) is the witness describing an out of court statement for the purpose of proving that the statement was made an heard? (ppppppppppppppppppppppppppppppppppppppppppppppppppppp pppppppppppppppp) yes => hearsay

Rule 802 - Hearsay Rule: bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbb. Hearsay is inadmissible unless otherwise stated by: mmmlxiv. Other Federal Rules of Evidence mmmlxv. Other rules prescribed by the Supreme Court: (3864) Federal Rules of Civil Procedure (3865) Federal Rules of Criminal Procedure mmmlxvi. Acts of Congress 60

Rule 801 - Hearsay Definitions: ddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddd. Statement = an oral or written assertion OR nonverbal conduct of a person-if intended by that person as an assertion mmmmmccxxiv. assertion requires communicative intent & burden to prove is on the proponent of the evidence mmmmmccxxv. Ambiguous Conduct (6024) When trying to prove a persons belief in a condition, a persons conduct due to his belief in the condition may infer his belief in the condition. (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll) The conduct supports inferences of his belief and thence to the truth of his belief. (mmmmmmmdcxxiv) Reason for allowing the inference is that a person will not likely lie to himself (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmm) this also included verbal conduct which is assertive but offered as a basis for inferring something else (mmmmmmmmcccxliv) ex: tell someone to close the door. 9144) Hearsay/Assertion = proving that the speaker wanted the door closed 9145) Not Hearsay/Not Assertion = proving that the speaker knew the door was open (mmmmmmmmcccxlv) questions convey the message that you dont know something. Proof of asking a question is hearsay if you used to prove that you didnt know. (6025) the conduct MAY be an assertion of the existence of the condition (ffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffff) The essence of an assertion is communicative intent (ggggggggggggggggggggggggggggggggggggggggggggggggggggg 61

A person must intend to assert something (hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhh) EXAMPLES: (mmmmmmmmmmdiv) sea captain inspecting a ship before he sails -not hearsay; not an assertion 11304) issue is safety of the ship 11305) captain is acting for himself 11306) captain is not trying to tell anyone anything, so he would only be lying to himself which is unlikely 11307) The reason for allowing the Captains conduct is that there is no question of sincerity (mmmmmmmmmmdv) Implied Assertion: nuclear engineer telling reporters that he will take his family to the blast site - hearsay; is an assertion 12024) issue is safety of the site 12025) engineer is acting for an audience & intends to communicate something, i.e. safety 12026) engineer is trying to communicate something to reporters and he may have been lying 12027) The reason for not allowing Engineers conduct is that there is a question of sincerity and so the courts require a cross examination to test the truth. Without cross examination, statements are hearsay (mmmmmmmmmmdvi) Indirect Assertion: prosecution uses the statement Bobs mom is starting chemotherapy to prove Bobs motivation to rob a bank. 12744) The immediate fact (start of chemo) is a necessary link in the chain of inferences to prove the ultimate fact (Bob had motive to rob the bank) 12745) Also, you must assume the truth of the statement in order to believe the ultimate fact 12746) Thus, the statement is offered to prove what it asserts. 12747) This will usually happen when a statement 62

is used to prove a state of mind 12748) This is hearsay (6026) Factors to consider in allowing the evidence: (rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr) context (mmmmmmmmmmmmmmciv) could certain conduct be staged as a lie? (mmmmmmmmmmmmmmcv) If no audience, the answer is usually no (mmmmmmmmmmmmmmcvi) judges should balance all of the facts to decide on whether the context shows that an act could be a lie (mmmmmmmmmmmmmmcvii) advisory committee says that close calls should be resolved in favor of admissibility (ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssss) motivation (ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttttttttttttttttttttttttttttttt) nature of the conduct (uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu) presence or absence of reliance (6027) Non-assertive words follow the same analysis (6028) Reasoning: 63

(bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb) unlikely that conduct is a lie (cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc cccccccccccccccccccc) sincerity is not an issue eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeee. Declarant = the person who makes the out of court statement fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff ffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff. Hearsay = a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted mmmmmmmmmmmmmmmccciv. If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything, and the statement is not hearsay . Rule 801 (d)(1) - Prior Statement by Witnesses - NOT Hearsay: fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff. The following non-hearsay statements must meet the following criteria: mmmmmmmmmmmmmmmmdccxliv. Declarant testifies at a trial or hearing mmmmmmmmmmmmmmmmdccxlv. Declarant is subject to cross examination over the statement (17544) subject to cross = being on the stand, under oath, and responding willingly to questions - U.S. v Owens 64

ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg gggggggggggggggggggggggggggggggggggggggggggggg. Rule 801(d)(1)(A) Inconsistent Statement: mmmmmmmmmmmmmmmmmmclxxxiv. The prior statement is inconsistent with the declarants testimony & mmmmmmmmmmmmmmmmmmclxxxv. The prior statement was given under oath subject to penalty of perjury at a trial, hearing (or other proceeding), or in a deposition (18984) an inconsistent statement need not be plain in its terms but only that taken as a whole the two statements indicate different facts. (18985) silence is an inconsistent statement from previous talking, if the silence leads to different facts. (18986) Elements: (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx) inconsistent statement (yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy 65

prior statement under oath hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh. Rule 801(d)(1)(B) Consistent Statement: mmmmmmmmmmmmmmmmmmmmcccxliv. The prior statement is consistent with the declarants testimony & mmmmmmmmmmmmmmmmmmmmcccxlv. The prior statement is offered to rebut an express or implied charge against the declarant of: (impeaching the witness for lying) (21144) recent fabrication, (21145) improper influence, or (21146) improper motive. mmmmmmmmmmmmmmmmmmmmcccxlvi. The prior rebuttal consistent statement must have been made before the declarant had a motive to fabricate mmmmmmmmmmmmmmmmmmmmcccxlvii. This rule is made to rehabilitate a witness who was impeached mmmmmmmmmmmmmmmmmmmmcccxlviii. Reasoning for the rule: (21864) consistency (21865) a person testifies as to substance. He is impeached. This rule allows past consistent statements to come in to show that he is consistent. (21866) Note: this rule still does allow a statement to come in to prove truth (rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrr) Elements: (mmmmmmmmmmmmmmmmmmmmmmmcdlxiv) consistent statement (mmmmmmmmmmmmmmmmmmmmmmmcdlxv) rebutti ng a charge 66

iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii. Rule 801(d) (1)(C) - Identification: mmmmmmmmmmmmmmmmmmmmmmmcmxliv.The prior statement is one of identification of a person made after perceiving the person (24744) The party need not remember the identification but only be available for cross examination (on the stand & under oath) (24745) Reason for rule: (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllll) memories fade quickly (more reliable) (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm 67

appearances change and are easy to alter (nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnn) courtroom identification is more suggestive (ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooo) the witness may be intimidated by pointing at the defendant jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj. The reason for these being non-hearsay is: 68

mmmmmmmmmmmmmmmmmmmmmmmmmmciv. mmmmmmmmmmmmmmmmmmmmmmmmmmcv. .

Reliability & Necessity

Rule 801(d)(2) - Admission of Party-Opponent - NOT Hearsay ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppp. The following non-hearsay statements must be offered against a party mmmmmmmmmmmmmmmmmmmmmmmmmmmdxliv. For a statement to be adverse, the statements do NOT need to be adverse at that time mmmmmmmmmmmmmmmmmmmmmmmmmmmdxlv. Adverse only requires that the statement is used against you. mmmmmmmmmmmmmmmmmmmmmmmmmmmdxlvi. Thus, cant be used to bolster a witness mmmmmmmmmmmmmmmmmmmmmmmmmmmdxlvii. Note that admission only means statement qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq. Rule 801(d)(2)(A) - Own or Representative Statements: mmmmmmmmmmmmmmmmmmmmmmmmmmmmcclxiv. The statement is the partys own statement in either an individual or a representative capacity 69

(29064) ex: I robbed a bank (29065) reasoning is that people rarely lie against there own interests & so the statement is probably true rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr. Rule 801(d) (2)(B) - Adoption of Belief/Truth of a Statement mmmmmmmmmmmmmmmmmmmmmmmmmmmmmdcciv. The statement of which the party has manifested an adoption or belief in its truth (30504) the statement is made by someone else (30505) ex: a person accuses you and you dont rebut the statement (30506) reasoning is that an innocent person would rebut an accusation (30507) Elements: (zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz) Declarant heard & understood statement (aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa 70

There was no impediment of liberty to respond (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmciv) post-miranda right reading is an impediment. (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmcv) pre-miranda and knowing your rights is not (bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb) Circumstances would call for a response (cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc 71

Declarant failed to respond ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss. Rule 801(d)(2)(C) - Statement of an Authorized Person mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmdlxxxiv. The statement is made by a person authorized by the party to make a statement concerning the subject () This rule includes: () statements made by an authorized person to a third party & () since the authorized party is authorized to make statements, there is no need to find intent () statements made by the authorized person to the principal/opposing-party () The contents of the statement shall be considered but are not sufficient alone to establish the declarants authority () This is known as bootstrapping () You need corroborating evidence () Elements: () () Statement & () Authorization tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt tttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt ttttt. Rule 801(d)(2)(D) - Statements of an Agent or Servant: . The statement by the opposing-partys agent or servant concerning a matter within the scope of agency or employment made during the existence of the relationship () The contents of the statement shall be considered but are not sufficient alone to establish the agency or employment relationship nor the scope of such relationship () This is known as bootstrapping () You need corroborating evidence 72

Elements: () Agency/Employment relationship exists () Statement by agent or employee () Statement within scope of agency/employment () Statement made during existence of agency/employment uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu. Rule 801(d)(2)(E) - Statement by a Conspirator: . The statement by a coconspirator of a party during the course of & in furtherance of the conspiracy: () The contents of the statement shall be considered but are not sufficient alone to establish the existence of the conspiracy and the participation therein of the declarant and of the party opponent () This is known as bootstrapping () You need corroborating evidence () Elements: () existence of a conspiracy () person does not need to be formally charged with conspiracy, but need only be classified as joint venturers. () the joint venture must include the declarant & the defendant () statement by a coconspirator () statement made in course of conspiracy () the statement must be about the conspiracy, not idle chatter. () statement made in furtherance of conspiracy () a confession is not in furtherance or course () statement must be made before the objective was achieved () Under 104(a), the judge decides in a preliminary hearing whether all of the above elements are satisfied () 104(a)s standard is by a preponderance of the evidence 73

()

evidence to prove facts under 104(a) need not be admissible ) thus hearsay can be used () This is a higher standard than 104(b), which is sufficient evidence so that a jury could reasonably find the conditional fact by a preponderance of the evidence. ) evidence to prove facts under 104(b) need be admissible vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv. The reason for these non-hearsay statements is: . Reliability & . Necessity wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww 74

When a statement is hearsay & not a statement made by a party opponent, the statement may come in under: . Rule 612 - refresher . Rule 613 - impeachment & needs a limiting instruction . Rule 804 - Hearsay Exceptions; Declarant Unavailable: . This rule assumes that the evidence is strong enough to allow it because it is better to have it than not. . Definitions of Unavailability . the declarant is exempted by a court ruling of an exemption on the subject matter of the statement . the declarant refuses to testify about the statement despite an order of the court . the declarant testifies to a lack of memory about the statement . the declarant is unable to be present or testify because of death or a then existing physical or mental condition . the declarant is absent & the proponent of the statement is unable to procure his attendance by process or other reasonable means. () exception: if the witness is unavailable due to wrongdoing by the proponent of the statement for the purpose of preventing the witness from testifying or attending . If the declarant is unavailable, . Former Testimony - Rule 804(b)(1): () The declarant formerly testified or was deposed in the same or other proceeding (oath, cross, and testimony) & () EITHER: () If the prior proceeding was criminal, the party to whom the statement is against had an opportunity and similar motive to develop testimony by direct, cross, & redirect examination () the first proceeding was against the opponent of the statement () If the prior proceeding was civil, the party to whom the statement is against had an opportunity and similar motive to the predecessor in interest to develop testimony by direct, cross, & redirect examination () the first statement was against the opponent of the statement or a predecessor in interest () Predecessor in Interest: () a person with similar interest & motive to cross examine the witness as the current party. () Similar Motive: ) you need more than taking the same side on the same issue ) you need a substantially similar interest, i.e. same thing is at stake 75

usually will not have a similar motive when you are in two different types of trials with different burdens of proof. a) This analysis is fact specific b) Factors in the analysis: 1. amount in controversy difference 2. different legal issues 3. different burdens of proof () Need a common nucleus of facts ) Need interests of the examiner in each proceeding to be the same. a) trying to prove or disprove the same elements. Rule 804(b)(2) - Statement Under Belief of Impending Death: () Only applicable in homicide or civil proceedings () The statement must be made while fearing imminent death () the declarant does not have to die, but still must be unavailable. () must look to the dying persons state of mind and find that the person had no hope of recovery and anticipated impending doom () a dying declaration still requires personal knowledge, thus a person cannot simply speculate on suspicions () The statement must be about the cause, circumstances, or slayer of what or who the declarant believed to be impending death Rule 804(b)(3) - Statement Against Interest: () At the time the statement is made, the statement must: & () be so far contrary to his pecuniary or proprietary interest, () be so far tended to subject him to criminal or civil liability () render a claim by him against another invalid () The statement must be such that a reasonable person in the declarants position would not have made the statement unless believing it to be true. () EXCEPTION: () A statement that would lead to criminal liability & that is used to exculpate the accused, UNLESS () corroborating evidence indicates the statements trustworthiness Rule 804(b)(6) - Forfeiture by Wrongdoing: () A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended, and did, procure the unavailability of the declarant as a witness () This is decided by a 104(a) standard. () Judge needs to find three elements: 76

() () ()

Proponent of evidence made them unavailable Proponent must be aware that the declarant would have been a witness and intended to prevent the declarant from testifying at a future trial Proponent caused unavailablity by a wrongful act () Must have affirmative conduct & contact with the witness () ex: calling and making a threat

()

Notes: (ppppppppppppp) the declarant may be anyone, not a party (qqqqqqqqqqqqq) In a confession, only the self-inculpatory statements are admissible, not any parts collateral to those statements (mcxxviii) self-inculpatory = I did it. (mcxxix) Reason: people will mix truth with false to get them off the hook, i.e. blame shifting (mcxxx) Court will need to apply 105 to strick out what may come in (mcxxxi) If too much must be taking out, the entire statement must stay out. (rrrrrrrrrrrrr) Statements made against a party come in under 803 and do not need to be against interest.

Rule 803 - Hearsay Exceptions; Availability of Declarant Immaterial: ttttttttttttttttttttttttttttttttttttttttttttttttttttttttttt. These exceptions are even if a declarant is available: mmcccxxviii. Reasoning for these exceptions: (3128) A motivation to tell the truth OR diminished motive to lie OR (3129) An impairment to lie, something about the statement that makes it hard to lie mmcccxxix. A problem with 803 is personal knowledge uuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu. Rule 803(1) Present Sense Impression: mmmdcclxviii. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter (4568) The substance of the statement must be: (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllll) describing or explaining the situation (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm 77

limited to this, while excited utterance need only relate to the situation (4569) Time of statement must be: (ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddd) while perceiving OR (eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee) immed iately after vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv. Rule 803(2) Excited Utterance: mmmmmmdcxlviii. A statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition (7448) Elements: (ffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fff) startling (ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg) while excited (hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh) statement must be caused by the excitement wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwww. Rule 803(3) - Then Existing Mental, Emotional, or Physical Condition: mmmmmmmmdcccviii. A statement of the declarants then existing state of mind, emotion, sensation, or physical condition (9608) This does not include statements of memory or belief used to prove the fact remembered or believed, unless relating to a will 78

(9609) Examples of admissible: statement about: (hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhh) intent, (iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiii) plan, (jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjj) motive, (kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk kkkkkkkkkkkkkkkkkkkkkkkkkkkkkk) design, (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllll) mental feeling, (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmm) pain, (nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn 79

bodily health (9610) Note what the statement is coming in to prove: (zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zz) statements may be used to prove the state of mind & the effect on the listener (mmmmmmmmmmmcmxxviii) not to prove the truth of the statement. (aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaa) statements of mental conditions used to prove past facts are NOT admissible (mmmmmmmmmmmmdcxlviii) future plans are admissible (mmmmmmmmmmmmdcxlix) past facts are not admissible (bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbb) statements of mental conditions relating to third parties are NOT admissible xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Rule 803(4) Statement for Purpose of Medical Diagnosis or Treatment: mmmmmmmmmmmmmcxxviii. Statements must be made for the purpose of medical treatment or diagnosis, & must be either: (13928) medical history (13929) past or present symptoms, pain, or sensations, OR (13930) the inception or general cause of the disease or injury (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll 80

All three must be reasonably pertinent to the diagnosis or treatment (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm mmmmmmmmmmmmmmmmmmmmmmm) Two Part Test: (mmmmmmmmmmmmmmmdxxviii) Is the declarants motive to tell the truth for a complete diagnosis (mmmmmmmmmmmmmmmdxxix) Is it reasonable for the physician to rely on the information in diagnosis or treatment mmmmmmmmmmmmmcxxix. The statement may be made to an ambulance driver, nurse or family member mmmmmmmmmmmmmcxxx. Statements about what happened are admissible, but statements about who caused the injury or usually not, unless: (16088) the injured person is a child or an elderly person. (16089) the reason is that the person who caused the injury will likely be the person who is in charge of the injured. (nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn nnnnnnnnnnnnnn) this will apply unless the child is too young to tell the truth. 81

mmmmmmmmmmmmmcxxxi. When a statement about medical diagnosis is admissible, the entire narrative is admissible. Thus, the doctors statements are also admissible. mmmmmmmmmmmmmcxxxii. Reasoning: (17528) the declarant has a strong motive to tell the truth yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy. Rule 803(5) Recorded Recollection: mmmmmmmmmmmmmmmmmmclxviii. A record may be admitted if it fulfills the following elements: (18968) A memo or record is made (18969) The memo/record concerns a matter of which a witness once had first hand knowledge (18970) The witness no longer has sufficient knowledge to testify fully & accurately (18971) The memo/record is shown to have been made or adopted by the witness when the matter was fresh in his memory (hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh hhhhhhhhhhhhhhhhhhh) memo/record must be made near or at time of the event while the witness had a clear and accurate memory of it (18972) The witness must vouch for the accuracy of the memo/record by: (zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz 82

actually remember the contents once they see it again (aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa) testifying that he presently remembers recording the facts correctly (bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb) testifyi ng that he remembers recognizing the writing as accurate when he read it at an earlier time (cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc ccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc cccccccccccccccccccccccccccccccccccccccccccccccccccccccccc) testifying that he knows the record is correct because of a habit or practice to record matters accurately or to check them for 83

accuracy (ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddd) At an extreme, testifying that he recognizes his signature and that he would not have signed it if not accurate mmmmmmmmmmmmmmmmmmclxix. If admitted, the memo/record may be read into evidence but may not be received as an exhibit, unless: (21128) the memo/record is offered by an adverse party mmmmmmmmmmmmmmmmmmclxx. Difference from 612: (21848) 612 allows anything to come in as a refresher only (21849) the refresher is NOT admissible (21850) If a witness cannot recall after being refreshed, then use 803(5) zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz. Rule 803(6) - Records of Regularly Conducted Activity mmmmmmmmmmmmmmmmmmmmmmcdlxxxviii. Elements: (23288) Any form of record about acts, events, conditions, opinions or diagnosis. (23289) The record is made at the time or near time of the event (23290) The record is made by a person with knowledge OR the information of the event is transmitted by a person with knowledge (lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll) The person must be acting as part of business duty (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm 84

if not, you have a problem with hearsay (23291) The record is one that is normally made in the course of regularly conducted business activity (ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd ddddddddddddddddddddddddddddddddddddddddddddddddddddd d) look for regularity and routine (23292) The above must be shown by a custodian or other qualified witness (vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvvvvvvvvvv) the witness only has to say that the business routine does happen. mmmmmmmmmmmmmmmmmmmmmmcdlxxxix. Exceptions: (26168) The record is made one time for litigation (ffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff 85

not in course of business (26169) The record is made for someone who is not an employee and not verified by an employee. (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxx) rule 805 - hearsay within hearsay (26170) Judge an keep the record out for a lack of trustworthiness (ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppppppppppppppppppppppp ppppppppppppppppppppppppppppppppp) this may keep out opinions and conclusions of a report when not based on 86

factual findings (qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq qqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqqq) Factors to consider: (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcc viii) timeliness of the investigation (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcc ix) special skill or experience in the field (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcc x) whether a hearing was held and the level of which conducted (mmmmmmmmmmmmmmmmmmmmmmmmmmmmmcc xi) possible bias aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa. Rule 803(7) Absence of Entry in Records Kept in Accordance with 803(6): mmmmmmmmmmmmmmmmmmmmmmmmmmmmmdclxxxviii.Evidence that something is not in business records made in the course of regularly conducted business activity is admissible if: (30488) used to prove the nonoccurence or nonexistence of a matter of which a record would usually have been made and kept (30489) Exceptions: (jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj 87

judge finds that the circumstances exhibit a lack of trustworthiness bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb. Rule 803(8) - Public Records & Reports: mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmdcccxlviii. Any records of public offices/agencies that set forth: (32648) the activities of the office or agency (32649) matters observed pursuant to duty imposed by law & of which matters there was a duty to report () Exception: () a criminal case and the observation is made by law enforcement personnel (32650) In civil proceedings OR in criminal cases against the government, factual findings resulting from a legally authorized investigation mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmdcccxlix. Except ions: () judge finds that the circumstances exhibit a lack of trustworthiness () this may keep out opinions and conclusions of a report when not based on factual findings () Factors to consider: () timeliness of the investigation () special skill or experience in the field () whether a hearing was held and the level of which conducted () possible bias mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmdcccl. Broadness compared to Rule 803(6): () doesnt have to be contemporaneous record () doesnt have to be routine, i.e. can be a one time inquiry () the supplier of the info DOESNT have to be acting as part of the government agency or enterprise cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc. Rule 803(10) Absence of Public Record or Entry . Evidence in the form of testimony that diligent search failed to disclose the record is admissible, if: () used to prove the absence of a record that was usually made and kept by a public office OR () used to prove the nonoccurrence or nonexistence of a matter of which a record was usually made and kept by a public office dddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd. Rule 807 - Residual Exception: . If a statement is not excepted under 803 & 804 but has equivalent circumstantial guarantees of trustworthiness (necessity & trustworthiness 88

is there a motive not to lie & is there an impaired capacity to lie), the statement will not be excluded as hearsay if a court finds that: () the statement is offered as evidence of a material fact () the statement is more probative on its point than any other evidence which the proponent can procure through reasonable efforts & () the general purpose of these rules and the interests of justice will best be served by admission. () necessity () trustworthiness () is there a motive to lie? () is there an impaired capacity ti lie? () Look to three factors: 1) given the circumstances a sincere statement would be made 2) danger of detection or fear of punishment threatens a person who may lie 3) a public statement that would be detected for inaccuracy Also, the proponent must notify the opponent sufficiently before trial of the evidence in order to allow the opponent a fair opportunity to meet it () The notification must include the intention to use it & the particulars of the evidence, including the name and addresses of the declarant. Elements: () proponent gives notice () statements has circumstantial guarantees of trustworthiness equal to Rule 803 & 804 () more probative than other evidence which can be found through reasonable efforts () interests of justice favor admission

eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee. Rule 805 - Hearsay with Hearsay: . Hearsay included within hearsay is inadmissible. OPINIONS AND EXPERT TESTIMONY . Rule 701 - Opinion Testimony by Lay Witnesses: . Lay persons may testify about their opinions and inferences . The opinions and inferences are limited opinions and inferences which are: . Rationally based on the perception of the witness - personal knowledge . Helpful to a clear understanding of the witness testimony or determination of the fact in issue () cant tell the jury what it is there job to do () examples: () he sounded sad = helpful 89

() he sounded guilty = not helpful Not based on scientific, technical, nor other specialized knowledge within the scope of Rule 702. () specialized knowledge is an area that people dont know about () if it is established that a person has a foundation of familiarity with a narcotic, courts allow that person to say that some substance appeared to be a narcotic. () This is still personal knowledge, not specialized

Rule 704 - Opinion on Ultimate Issue: . Testimony in the form of an opinion or inference, which is admissible, is admissible even if it embraces an ultimate issue to be decided by the jury () This includes any issue of consequence . Exception: () The issue is guilt or innocence () In a criminal case, an expert witness cannot state his opinion or inference about whether the defendant did or did not have the mental state or condition that is an element of the crime or defense () Narrow exception: () only in criminal trials () only about the defendant () only expert testimony () mental condition or state must be an element of the crime. Rule 702 - Testimony By Experts: . The witness must be qualified an expert by: . Knowledge, . Skill, . Experience, (doing something for your entire life) . Training, or . Education . The specialized knowledge of the witness must assist the jury to understand the evidence or to determine a fact in issue . specialized knowledge usually is about issues beyond the ken of the jurors . assist means to supply the jury with insight or information that they would otherwise lack () assist does NOT mean telling the jury what result to reach. () a legal expert is suspect because he will invade on the judges job, i.e. instruct the jury on legal issues () ex: telling someone what deadly force means OR saying that someone is negligent () an expert can not give his opinion on credibility () the jury is suppose to decide who is lying or not () an expert can give opinions on eyewitnesses () but he cannot say a witness is wrong or not () only give general info about eyewitnesses and their mental 90

state The expert opinion must: . be based upon sufficient facts or data . be the product of reliable principles and methods () Five Daubert factors: () whether the technique can and has been tested () whether it has been subjected to peer review () the known or potential rate of error () the existence and maintenance of standards controlling the techniques operation () general acceptance in the relevant scientific community . have applied the principles and methods reliably to the facts of the case () If a person is an expert in one field but is testifying in an area in which they are not, you should object under 401-403.

Rule 704 - Base of Opinion Testimony By Experts: . The facts or data upon which an expert bases his opinion or inference may be facts perceived or made known to the expert at or before the hearing. . Simply, facts can be told to him or he can see them for himself () not worrying about hearsay . Also, he can learn the facts before or during his testimony . If the facts are of the type reasonably relied upon by experts in that field in forming opinions or inferences, the facts do NOT need to be admissible . The inadmissible facts used shall NOT be shown to the jury, unless () the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect . There are three factual bases for exert testimony: . perceived facts - expert actually saw or heard the event . hearing facts - facts that are given to the expert at trial, i.e. hypos . facts made known to the expert prior to the hearing () This one has hearsay concerns & limitations: (zzzzzzzzzzzz)the proponent cannot offer the hearsay evidence itself (aaaaaaaaaaaaa) the hearsay basis for the opinion must be reasonably relied upon by other experts in that field (bbbbbbbbbbbbb) court may require to hear the underlying facts of his opinion - Rule 705 (ccccccccccccc) cross examiner may require him to disclose the underlying facts - Rule 705 (mcxii)defense crosses as to basis (ddddddddddddd) a reverse 403 standard is high to admit (i) also, still use limiting instructions (eeeeeeeeeeeee) All still left to a 403 balancing test Authentication: vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv 91

All evidence must be genuine mmmxxxii. Genuine = the object must be what the proponent claims it to be (3832) not a fraud or forged (3833) genuine does not mean the truthfulness of the facts therein contained. mmmxxxiii. Genuiness is found by a preponderance of the evidence under a 104(a) standard (4552) However, the jury can still disbelieve the evidence wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww.Method of Authenticating: mmmmmcxcii. Rule 901(b)(: (5992) testimony of witness with knowledge (5993) non-expert testimony as to the genuineness of handwriting, based upon familarity not acquired for purposes of litigation (5994) comparisons made by trier of fact or expert witnesses when one has been authenticated (5995) distinctive characteristics taken in conjunction with circumstances (5996) voice recognition based on hearing the voice at any time (5997) phone traces if: (ffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff fffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffff ffffffffffffffffffffffffff) evidence that the person who is answered is the one called, or (ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg ggggggggggggggggggggggggggggggggggggggggggggggggggggg gggggggggggggggggggggggggggggggggggggggggggggggggg) the call was made to a business and the conversation related to that business (5998) a public document in any form found in the public office where items of this nature are kept (5999) ancient document: (a) the document is in such a condition as would be expected (b) is in a place where it would likely be, & (c) has been in existence of more than 20 years (6000) evidence describing a process or system used to produce a result and showing that the process or system produces accurate results (6001) any other method provided by statute or the Supreme Court xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx. Rule 902 - Self-Authentication: i. some types of evidence authenticate themselves yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy yyyyyyyyyyyyyyy. Rule 1000-1004 - Original Writings Rule: 92

mmmmmmmmdccxcii. If both: (1) the article is a writing/recording/photo & (2) terms/contents are in issue mmmmmmmmdccxciii. the proponent must either: (1) produce the original or duplicate OR (2) establish an excuse for non-production and offer an admissible type of secondary source

93