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Outline

1. Evidence Functions of Judge, jury and attorneys at trial

a. Admissible proof or the proof than can be properly considered by the trier of fact. Admitted and
taken from the parties and at the end of the trial taken by the jury for deliberation.
i. Three definitions of evidence
1. Proof of cause of action, claim, or defense
2. The rules governing the admissibility or exclusion of proof at trial
3. The things that juror can take back with them to the jury room
b. Proof: subject matter of trial; offered through exhibits and oral testimonies
c. Rules: which govern the admissibility of evidence
d. Trial: allowing evidence to create their reality.
i. Direct Testimony: avoid leading question; ask why, what, when, how, where, etc.
ii. Cross Examination: usually, embrace leading question
e. Rules of evidence
i. To secure fairness
ii. Uniformity
f. Types of Evidence
i. Real: physical and tangible evidence; the “thing” itself
1. Ex. Fender of the care, original K in a breach of K
ii. Representative: evidence represents the “thing” itself
1. Ex. A diagram, chart, photograph, x-ray
iii. Testimonial Evidence: “viva voce” by voice, from the witness’s voice
g. Nature’s of Evidence
i. Direct
1. Directly proves a fact (usually an important fact)
a. Witness who saw the firing of gun and killing of victim, thus can
provide DE of the killer’s identity
2. No inferences required
ii. Circumstantial
1. Does not address a fact in a issue; indirect
a. Bloody knife found at the scene
b. Suspect fleeing the scene
2. Relevant when: when an inference to be drawn from it bears on the fact in
issue.
a. Bloody knife and fleeing suspect sown together will yield the inference
that murder occurred.
h. Judge:
i. Rules the evidence
ii. Has discretion
iii. Judgment & errors
1. Constitutional error will be excused: federal court in criminal case, the
appellate court has to determine beyond a reasonable doubt that the error did
not effect the outcome of the case.
iv. Standing objection: to any testimony, which remains standing
i. Jury:
i. Jury receives and weighs on evidence
ii. Voir dire: Jury selection
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j. Rule 104: Preliminary question

i. (a) Questions of admissibility generally. Preliminary questions concerning the
qualification of a person to be a witness, the existence of a privilege, or the admissibility
of evidence shall be determined by the court, subject to the provisions of subdivision (b).
In making its determination it is not bound by the rules of evidence except those with
respect to privileges.
ii. (b) Relevancy conditioned on fact. 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.
iii. (c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be
conducted out of the hearing of the jury. Hearings on other preliminary matters shall be
so conducted when the interests of justice require, or when an accused is a witness and
so requests.
iv. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter,
become subject to cross-examination as to other issues in the case.
v. (e) Weight and credibility. This rule does not limit the right of a party to introduce before
the jury evidence relevant to weight or credibility.
k. Rule 105: Limited Admissibility
i. When evidence which is admissible as to one party or for one purpose but not admissible
as to another party or for another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope and instruct the jury accordingly.
l. Rule 106: Remainder of or Related writings or recorded statements
i. When a writing or recorded statement or part thereof is introduced by a party,
1. an adverse party may require the introduction at that time of any other part or
2. any other writing or
3. recorded statement which ought in fairness to be considered
contemporaneously with it.
2. Relevance [gate keeper of admissible evidence]
a. Rule 401: Definition of “Relevant Evidence”
i. “Relevant Evidence” means evidence having
1. any tendency
2. to make the existence of any fact that is or
3. consequence
4. to the determination
5. of the action more probable or less probable
6. than it would be without the evidence.
b. Legal test for Relevance:
i. Evidence relevant if it
1. Probative of [more probable or less probable]
2. A fact of consequence [matter provable in the case] to the determination of the
action. Fact of consequence which:
a. Relate to the element of claim,
b. COA, or defense,
c. to the credibility of a witness, or
d. to helpful background information.
ii. Relevance Analysis [how things are related to each other]
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1. Numerous inferences may be drawn from single premise

2. Relevancy not an inherent characteristic of the case but depends on the facts of
the case.
3. Logical relevance: is of consequence; logical relevance: for case construction
but not directly answers the legal question.
4. Evidence [Rule 402]
a. Relevant
i. Admissible; or
ii. Inadmissible;
b. Irrelevant
i. inadmissible
c. Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
i. All relevant evidence is admissible, except as otherwise provided by the
1. Constitution of the United States,
2. by Act of Congress,
3. by these rules, or
4. by other rules prescribed by the Supreme Court pursuant to statutory authority.
ii. Evidence which is not relevant is not admissible.
d. Conditional Relevance
i. When the relevance of the evidence depends on the existence of a separate fact
ii. Admitted by the judge:
1. If there is sufficient evidence for a reasonable jury to find by a preponderance
of the evidence that the fact in question exist.
iii. Competency
1. Required at least minimum level of connection
iv. A lawyer may introduce evidence with links missing, however he/she has to fill them in
order to include the evidence for deliberation.
v. Knapp v. State
1. Relevancy: how relevant was the testimony. Probative value- facts in
consequence. Whether the belief of self defense was an accurate assumption
by the accused.
3. Unfair Prejudice
a. Rule 403: Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
i. Although relevant, evidence may be excluded if
1. its probative value is substantially outweighed by the danger of unfair
prejudice,
2. confusion of the issues, or
3. misleading the jury, or
4. by considerations of undue delay, waste of time, or
5. needless presentation of cumulative evidence.
b. Example
i. Prior convictions: unfair prejudice
ii. Overly complex scientific information and test: confusion or issues
iii. Needless cumulative testimony.
c. Common Exclusions under Rule 403
i. Probability evidence of guilt
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1. Balancing Test:
a. Probative value substantially outweighed by unfair prejudice then
relevant evidence is excluded.
2. People v. Collins
3. Old Chief case: Court: just stick to the presented, no giving of propr conviction
as such, as it is more prejudicial.
ii. Evidence depicting violence in a manner that is physically revolting
1. Danger of jury making emotional determination, thus prejudicial value to be
heavily weighed as compared to the probative value.
2. On judges’ discretion: By stipulating to the fact would give an opportunity to
not admit the photos of the murder.
iii. Novel scientific evidence
1. Frye Doctrine
a. Evidence must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.
b. Some jurisdictions just use, Frye, or some both Daubert and frye
2. Daubert:
a. Whether the subject matter was scientific knowledge
b. Whether the theory or technique can be or has been tested
c. Whether the theory or technique has been subjected to peer review
and publication
d. Whether the technique’s operation exist and are maintained
e. Finally, but not exclusively, the frye test of general acceptance in the
particular field.
iv. Similar events, happenings, or occurrences
1. Generally, NOT ADMISSIBLE
2. Unfair Prejudice when comparing totally dissimilar occurrences or objects.
3. Ex. Slip and fell incidents.
4. Character Evidence
a. Generalize description of a person or a specific trait
i. Honesty, loyalty…etc.
b. Character Evidence: anything to show a person has particular disposition
c. Propensity: ability to, tending forward. Using character evidence to show the propensity. Which
makes it prejudicial and probative. Character evidence usually leads one’s assessment to
conclusion.
d. Used:
i. Propensity and conformity with the character.
ii. Element of the cause
iii. For purposes other than to show traits…motives.
e. Generally, the character evidence is not admissible, particularly to show propensity.
f. The credibility of any person to stay on stand to testify is always subject to impeachment.
g. Rule difference
i. Rule 404 – specifies whether (when) character evidence may be admissible.
ii. Rule 405 – specifies how character may be proved when admissible.
iii. When 404b is implicated, 405 has no application.
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h. Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

i. (a) Character evidence generally : Evidence of a person's character or a trait of character

is not admissible for the purpose of proving action in conformity therewith on a
particular occasion, except:

1. (1) Character of accused - Evidence In a criminal case, evidence of a pertinent

trait of character offered by an accused, or by the prosecution to rebut the
same, or if  evidence of  a trait of character of the alleged victim of the crime is
offered by an accused and admitted under Rule 404 (a)(2),  evidence of the
same  trait of character of the accused offered  by the prosecution;

2. (2) Character of alleged victim - Evidence In a criminal case, and subject to the
limitations imposed by Rule 412, evidence of a pertinent trait of character of
the alleged victim of the crime offered by an accused, or by the prosecution to
rebut the same, or evidence of a character trait of peacefulness of the alleged
victim offered by the prosecution in a homicide case to rebut evidence that the
alleged victim was the first aggressor;

3. (3) Character of witness - Evidence of the character of a witness, as provided in

rules 607, 608, and 609.

ii. (b) Other crimes, wrongs, or acts: Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the general nature of any such evidence it
intends to introduce at trial.
i. 404 exceptions
i. By implication in 404(a); direct use of character when it at issue in a trial.
ii. 404(a)(1)- character of accused in a criminal case [esp. in homicide cases (COA)]
1. D can open this door but the prosecutor cannot. This is the balancing
measured to protect the D. However, the P can rebut the same trait
2. Or if evidence of a trait of character of the alleged victim or the crime is offered
by an accused and admitted under rule 404 (a) 2, evidence of the same trait of
character of the accused offered b y the prosecution.
3. Character of alleged victim
iii. Other crimes/Acts in 404(b): because not being offered to prove for the same act.
1. Specific acts are almost always excluded.
iv. Character of witnesses (see 600s)
j. Ex.
i. Criminal case (rule 404(a)(1)) Character of Defendant [sometimes character of victim,
prosecution may rebut]
1. D can offer first
2. Pertinent trait
3. Form: Rep or opinion (no specific acts)(rule 405)
4. Prosecution can rebut [cross exam D or New witness]
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a. Rule 405(a)
b. W/ D: Cross examination with specific acts or
c. W/ New witness: reputation or opinion only
i. No extrinsic impeachment of the witness
ii. Only pertinent traits
ii. Circumstantial use of character [advisory notes] when permitted only Rep or Op
k. Ask three questions, which are critical for analysis
i. Is the evidence being offered to show character? [Or offered for non-character
purposes]
ii. If it is offered to show character, for what specific purpose is it being offered?
[propensity? Show character directly? Or attack witness’s credibility for truthfulness or
veracity?]
iii. Is the form of character evidence, reputation/opinion/special acts?
l. ABSOLUTE BAR IN A CIVIL CASE [not unless the character is in issue, very rare]
i. Rule 404(a)(1)-(2) in applicable in civil cases
ii. Character in Issue:
1. Seduction; entrapment; negligent entrustment or hiring [rule 405] reputation
only
m. Rule 405. Methods of Proving Character

i. (a) Reputation or opinion. In all cases in which evidence of character or a trait of

character of a person is admissible, proof may be made by testimony as to reputation or
by testimony in the form of an opinion. On cross-examination, inquiry is allowable into
relevant specific instances of conduct.

ii. (b) Specific instances of conduct. In cases in which character or a trait of character of a
person is an essential element of a charge, claim, or defense, proof may also be made of
specific instances of that person's conduct.
n. Three primary purposes of character evidence
i. Indirectly
ii. Directly prove a character trait when it is an element of a [RARE][405(b)]
1. cause of action,
2. essential element of claim or defense.
3. proof
iii. For non-character ( not propensity) purpose to prove [404(b)]
1. Proof ofmotive,
2. intent,
3. plan/common scheme,
4. Guilty Conscience
5. absence of mistake, or
6. identity.
o. Under 404(b)
i. Strength of strong evidence requires Defendant to be given notice to rebut evidence
ii. Evidence not admissible to prove character or propensity but other purposes. The
statement may remain same however.
p. In application
i. Offered to prove what?
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ii. Is character in issue?

iii. What rules apply?
iv. Types of character evidence to use?
v. Does the evidence survive rule 403 balancing test?
q. Case law

i. People v. Zackowitz
1. Court is saying that it is unacceptable to use the negative evidence, character
evidence, which is not giving a fair trial to the defendant.
ii. Michelson v. United States
iii. Rex v. Smith
iv. Dowling v. United States
1. Admission of the testimony violated the petitioner’s due process rights or
double jeopardy
v. Huddleston v. United States
1. For jury to decide the question of common scheme or plan.
vi. United States v. Beechum
1. Whether he intended to return the silver dollar
vii. People v. Chambers
1. Photo of earring relevant?
a. To prove motive and intent
b. Indictive that the D took the life of victim to steal
r. RES GESTAE
i. Completing the story, hence it is important to be admissible.
ii. Acts that are closely connected and occur contemporaneous
iii. Cannot be separated from case at hand
iv. Can use 403 analysis 9unfair prejudice) to determine admissibility
v. How does zackowitz case show it?
1. No dispute that the person was killed.
5. Habit/Exclusions
a. Rule 406. Habit; Routine Practice
i. Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove
that the conduct of the person or organization on a particular occasion was in
conformity with the habit or routine practice.
b. Deconstruction
i. Habit of a person or
ii. Routine practice of an organization
1. Regular response to repeated specific stimulus.
a. Ex. Everytime I go to bed I lock the door
b. Not specific: I always remain calm.
c. Have to establish specificity and frequency
iii. Corroborated or not
1. is relevant to prove that the conduct of the person or organization on a
particular occasion was in conformity with the habit or routine practice.
2. Jones case.
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a. The trial court ruled that this testimony did not constitute habit
evidence and excluded it.
iv. Distinctions
1. Character is generalized to character trait
2. Habit is specific
a. Acts occur with frequency over period of time, they become routine or
habit.
3. Specificity v. ambiguity
a. Ex. Always locking the door v. always remains calm
6. Other Exclusions/Policy Exclusion rules
a. Quasi privileges
i. All are subject to rule 403 analysis
1. Probative value substantially outweighed by the prejudicial value
b. Policy consideration
i. Generally
1. Extreme likelihood of unfair prejudice associated with certain evidence
2. Social goals unrelated to truth finding process outweigh evidentiary
considerations. [social >evidentiary considerations]
c. 407; Subsequent Remedial Measures
i. When, after an injury or harm allegedly caused by an event,
ii. measures are taken that,
1. if taken previously, would have made the injury or harm less likely to occur,
iii. evidence of the subsequent measures is not admissible to prove
1. negligence,
2. culpable conduct,
3. a defect in a product,
4. a defect in a product's design, or
5. a need for a warning or instruction. 
iv. [exception] This rule does not require the exclusion of evidence of subsequent measures
when offered for another purpose,
1. such as proving ownership,
2. control, or
3. feasibility of precautionary measures,
4. if controverted, or impeachment.
v. Policy Considerations
1. Conduct of SRM is not an admission of liability or fault
2. Contributory negligence must factor into fault equation
3. Encourage people to improve safety; not punish party for taking remedial
measures to improve safety
vi. Application
1. Is the evidence a SRM? -
a. Yesexclude; unless
i. Controverted: can use SRM to satisfy exception it it is in issue
of controversy [genuine issue must present]
ii. Other purpose: to show ownership and control; feasible
modification, notice, duty,[witness bias]
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b. No--> admitted
2. Measures taken after incident—cannot use to prove fault or liability
3. Could apply to Strict liability cases, negligence and civil
d. 408 Compromise and offers to compromise
i. (a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party,
when offered to prove liability for, invalidity of, or amount of a claim that was disputed
as to validity or amount, or to impeach through a prior inconsistent statement or
contradiction:
1. (1) furnishing or offering or promising to furnish, or accepting or offering or
promising to accept, a valuable consideration in compromising or attempting to
compromise the claim; and,
2. (2) conduct or statements made in compromise negotiations regarding the
claim,
a. except when offered in a criminal case and the negotiations related to
a claim by a public office or agency in the exercise of regulatory,
investigative, or enforcement authority.
ii. (b) This rule does not require exclusion if the evidence is offered for as purposes not
prohibited by subdivision (a). Examples of permissible purposes include
1. proving a witness's bias or prejudice
2. negating a contention of undue delay; and
3. proving an effort to obstruct a criminal investigation or prosecution.
iii. Framework
1. Dispute first
a. Validity or
b. Amount
2. Exclude
a. Offer/agreement
b. Negotiations (exception)
c. But not other evidence
3. Except other purposes
a. Must litigation be filed? Mentioned? Threatened?
iv. Policy consideration
1. Some settlement offer are the product of choice; to settle litigation and not
admit liability
2. To enourage dispute resolution by protecting legitimate settlement discussions
3. Expressly limits application to “validity of claim” or “amount of claim”
e. 409: Payment of medical and similar expenses
i. Evidence of furnishing or offering or promising to pay medical, hospital, or similar
expenses occasioned by an injury is not admissible to prove liability for the jury.
ii. Framework
1. Payment of medical and hospital expense
2. Social policies
a. Humanitarian reasons.
b. Encourage assistance to the injured person.
3. Policy considerations
a. Not admissible to prove injury
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b. Offers frequently made from humane impulse, not from liability

standpoint
c. Factual statements are incidental to offer of payment
i. They don’t protect the good Samaritan policies.
d. Different treatment from settlement communications, different
rationale?
f. 410: Inadmissiblity of pleas, plea discussions, and related statements: Except as otherwise
provided in this rule, evidence of the following is not, in any civil or criminal proceeding,
admissible against the defendant who made the plea or was a participant in the plea discussions:
i. (1) a plea of guilty which was later withdrawn;
ii. (2) a plea of nolo contendere (no contest);
iii. (3) any statement made in the course of any proceedings under Rule 11 of the Federal
Rules of Criminal Procedure or comparable state procedure regarding either of the
foregoing pleas; or
iv. (4) any statement made in the course of plea discussions with an attorney for the
prosecuting authority which do not result in a plea of guilty or which result in a plea of
guilty later withdrawn.

However, such a statement is admissible

1. in any proceeding wherein another statement made in the course of the same
plea or plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it, or
2. (ii) in a criminal proceeding for perjury or false statement if the statement was
made by the defendant under oath, on the record and in the presence of
counsel.
v. Framework
1. Failed plea bargaining
2. Excluded
vi. Why important to protect the communication of the defendant?
1. Communication during plea bargaining.
2. Nolo contendere;
vii. Policy consideration
1. Admission of plea discussions would compel defendant to testify and defend
position.
2. Pleas of nolo contedere are not and admission fo guilt.
3. Promotes disposition of criminal cases where best alternative may be Nolo
Contedere.
viii. Anything for the resolution of the controversy is encouraged.
g. 411. Liability Insurance
i. Evidence that a person was or was not insured against liability is not admissible
1. upon the issue whether the person acted negligently or otherwise wrongfully.
ii. This rule does not require the exclusion of evidence of insurance against liability when
offered for another purpose, such as
1. proof of agency,
2. ownership, or control, or bias or prejudice of a witness.
iii. Framework: general inadmissible as proof of liability
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1. Reference to liability insurance

a. Have it or
b. Do not have it
2. Exclude
a. liability
3. Exceptions
a. Other purposes
iv. Policy considerations
1. Promotes liability coverage
2. Does not penalize party for liability coverage
3. Jurors may find liability simply because insurance policy in place;
4. Jurors may increase damages because policy in place.
5. Relatively weak correlation between having insurance and negligent conduct.
h. Rule 412 Sex Offense Cases; Relevance of Alleged victim’s past sexual behavior or alleged
sexual predisposition.
i. (a) Evidence generally inadmissible. The following evidence is not admissible in any civil
or criminal proceeding involving alleged sexual misconduct except as provided in
subdivisions (b) and (c):
1. (1) Evidence offered to prove that any alleged victim engaged in other sexual
behavior.
2. (2) Evidence offered to prove any alleged victim's sexual predisposition.
ii. (b) Exceptions.
1. (1) In a criminal case, the following evidence is admissible, if otherwise
admissible under these rules:
a. (A) evidence of specific instances of sexual behavior by the alleged
victim offered to prove that a person other than the accused was the
source of semen, injury, or other physical evidence;
b. (B) evidence of specific instances of sexual behavior by the alleged
victim with respect to the person accused of the sexual misconduct
offered by the accused to prove consent or by the prosecution; and
c. (C) evidence the exclusion of which would violate the constitutional
rights of the defendant.
2. (2) In a civil case, evidence offered to prove the sexual behavior or sexual
predisposition of any alleged victim is admissible if it is otherwise admissible
under these rules and its probative value substantially outweighs the danger of
harm to any victim and of unfair prejudice to any party.  Evidence of an alleged
victim's reputation is admissible only if it has been placed in controversy by the
alleged victim.
iii. (c) Procedure to determine admissibility.
1. (1) A party intending to offer evidence under subdivision (b) must –
a. (A) file a written motion at least 14 days before trial specifically
describing the evidence and stating the purpose for which it is offered
unless the court, for good cause requires a different time for filing or
permits filing during trial; and
b. (B) serve the motion on all parties and notify the alleged victim or,
when appropriate, the alleged victim's guardian or representative.
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2. (2) Before admitting evidence under this rule the court must conduct a hearing
in camera and afford the victim and parties a right to attend and be heard.  The
motion, related papers, and the record of the hearing must be sealed and
remain under seal unless the court orders otherwise.
iv. Framework (412(a))
1. Sex offense cases
2. Alleged victim
3. Prior history (character evidence)
4. Rule: Exclude
a. All evidence of sexual predisposition is irrelevant and inadmissible
unless exception can be found
v. Exception
1. [412(b(1))] criminal case
a. Showing consent
b. Showing misidentification
c. Due process considerations
2. 412(b)(2) civil case
a. Probative value must substantially outweigh danger of harm to victim
3. 412© procedure
a. Must provide written notice; in camera inspection; court decides.
vi. Policy
1. Safeguarding victim’s identity
2. Protect victim’s that do report sexual abuse
3. Encourage to participate in the litigation in
4. Focus attention on perpetrator’s conduct, not victim’s response
5. Special dispensation given to d’s through other procedural rules.
i. 413-415
i. How different than 400s rules of exclusion?
ii. They facilitate the admission of “similar acts evidence” not exclude
1. Permitted
iii. Presumption to include? Is this consistent with the general approach to character
evidence?
iv. Why special treatment?
1. Cases are very difficult to prove
2. Cultural stereotypes
a. End up being revictimizing
v. Should federal rules of evidence respond to substantive legal issue?
7. Witness examination
a. Witness
i. Lay witness: lay opinions-relevant to cause of action
ii. Fact witness: expert testimony
b. Dead man statutes

Rule 601: witness competency Every person is competent General rule: every person is competent to be a
to be a witness except as otherwise provided in these rules. witness; often competency challenged during pre-
However, in civil actions and proceedings, with respect to trial; determination by judge; no set age limits for
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an element of a claim or defense as to which State law children or adults; Federal court presumption
supplies the rule of decision, the competency of a witness —“every person”, state law applies where state
shall be determined in accordance with State law. law dictates in civil cases.; understand
truth+provide relevant testimony
Rule 602: Lack of personal knowledge A witness may not Generally, must have personal knowledge to
testify to a matter unless evidence is introduced sufficient testify; witness: observe, felt, heard or experienced
to support a finding that the witness has personal something. Experts need to testify on facts
knowledge of the matter. Evidence to prove personal provided when testifying in expert capacity.
knowledge may, but need not, consist of the witness' own
testimony. This rule is subject to the provisions of rule 703,
relating to opinion testimony by expert witnesses.
Rule 603: Oath or affirmations
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or
affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind
with the duty to do so.
Rule 604: Interpreters/Translators An interpreter is subject Cannot testify as witness in case; judge may make
to the provisions of these rules relating to qualification as judicial rulings on facts those cannot be disputed
an expert and the administration of an oath or affirmation
to make a true translation.
Rule 605: Competency of judge as witness Cannot testify as witness; may make judicial rulings
The judge presiding at the trial may not testify in that trial on facts those cannot be denied
as a witness. No objection need be made in order to
preserve the point.
Rule 606: competency of jurors as witness Cannot be witness and member of jury; exceptions:
(a) At trial: A member of the jury may not testify as a extraneous prejudicial info, outside influence
witness before that jury in the trial of the case in improperly asserted, form of verdict; cannot testify
which the juror is sitting. If the juror is called so to as to “mental operations and emotional reactions
testify, the opposing party shall be afforded an of jurors in arriving at verdict”
opportunity to object out of the presence of the
jury.
(b) Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any
matter or statement occurring during the course
of the jury's deliberations or to the effect of
anything upon that or any other juror's mind or
emotions as influencing the juror to assent to or
dissent from the verdict or indictment or
concerning the juror's mental processes in
connection therewith. But a juror may testify
about
a. (1) whether extraneous prejudicial
information was improperly brought to
the jury's attention,
b. (2) whether any outside influence was
improperly brought to bear upon any
juror, or
c. (3) whether there was a mistake in
entering the verdict onto the verdict
form. A juror's affidavit or evidence of
any statement by the juror may not be
received on a matter about which the
juror would be precluded from testifying.
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c. Chart

Rule 610: religious beliefs Evidence of the beliefs or
opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of
their nature the witness' credibility is impaired or
enhanced.
Rule 611: Mode and order of interrogation and
Presentation
(a) Control by court: The court shall exercise
reasonable control over the mode and order of
interrogating witnesses and presenting evidence
so as to
a. (1) make the interrogation and
presentation effective for the
ascertainment of the truth,
b. (2) avoid needless consumption of time,
and
c. (3) protect witnesses from harassment or
undue embarrassment.
(b) Scope of cross Examination: Cross-examination
should be limited to the subject matter of the
direct examination and matters affecting the
credibility of the witness. The court may, in the
exercise of discretion, permit inquiry into
additional matters as if on direct examination.
(c) Leading Questions: Leading questions should not
be used on the direct examination of a witness
except as may be necessary to develop the
witness' testimony. Ordinarily leading questions
should be permitted on cross-examination. When
a party calls a hostile witness, an adverse party, or
a witness identified with an adverse party,
interrogation may be by leading questions.
Cannot use such information to enhance or impeach
credibility, “ isn’t true you do not believe in God?”
Control by court: make the interrogation effective
for ascertainment of the truth; avoid needless
consumption of time; protect witnesses from
harassment for undue embarrassment
Cross: questioning by the D pertaining to the subject
of the direct examination. Goal of cross examination
(1) impeach witness credibility (2) test the witness’s
testimonial capacity (perception, memory, narration,
and sincerity) (3) fill in testimonial gaps or missing
info [purpose of completedness] (4) corroborate
elements of the defense
Direct T and leading questions: 1) permitted when
necessary to develop a witness’s testimony on direct
[want the witness to paint the picture not the lawyer
to outline; ask open ended q’s, what? When?
Where? Why? How/explain?] 2) may also be
permitted with a testimonially incompetent witness
[child sexual hearsay] 3) may be permitted when
witness is very young or very old, to assist witness 4)
entirely within judge’s discretion.

d. direct examination
i. Purpose
1. Prove element of the case
2. Tell a story
3. Recount what happened
ii. Attempt to demonstrate the witness has accurately observed, remembered, and
reported events
iii. Create your own:
1. Background
a. Who the witness is
b. Lays evidentiary foundation for testimony
c. Establishes witness credibility
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d. E.g. witness age, address, occupation, education. Etc.

2. Scene
a. Witness direct testimony about setting in which the events transpired
b. Conclusions to be drawn based upon the witnesses testimony
c. Establishes witness’s knowledge base with supports credibility
inferences.
3. Action
a. Witness provides firsthand account of what transpired
b. Witness provided second hand account of relevant info derived from
admissible source of evidence
c. Witness provides expert opinion
e. DirectCrossredirect[redress any issues form cross]recross [rarely allowed by judge]
f. Invoking Rule 615
i. Why a rule of witness sequestration?
1. Not to effect the testimony of other witnesses
2. Strategic implications in the civil cases?
a. Call the adverse party first
b. As after testifying they shall remain inside.
ii. Procedure to invoke rule 615?
iii. Who must be sequestered?
iv. Does the rule apply to depositions?
g. Objections [form p. 151]

Leading questions On direct; whether suggests the answer

Asked and answered question Questions already asked and answered
Compound questions Two more questions in single sentence
Assuming facts not in the evidence Not an evidentiary foundation established yer
Argumentative questions Lawyer simply arguing the witness. Can’t compel the
witness to say what one desires
Calls for narrative Non-responsive is the objection to a narrative from your
own witness. If not your own then Narrative.

8. Impeachment
a. Identification of Evidence
i. Pretrial statement
ii. During trial
iii. Exhibits identifiedthenEvidence
iv. Composite Documents
v. Prior testimonies[deposition testimony at trial is use for impeachment]
b. Rule 607: Who may impeach?
i. The credibility of a witness may be attacked by any party, including the party calling the
witness.
ii. Meaning
1. Credibility- can recall correctly; character for truthfulness & veracity
a. Once untruthful before, more likely he might do that again
2. Types: Ask witness question [Intrinsic]; offer new evidence [extrinsic]
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iii. Under the rule:

1. Testifying witness
2. If impeached
3. Can be rehabilitated [rehabilitation cannot precede impeachment]
a. Bolstering of witness’s character not allowed before his character
attacked
b. Prior consisted statements are inadmissible before a witness’s
credibility has been attacked
c. Impeachment Evidence
i. Intrinsic: from witness’s own mouth
1. Specific Contradiction
a. W statement is inconsistent with fact. [inaccurate about one then
may be inaccurate about others too]
b. Cannot use one witness to directly attack other witness
2. Bias
a. Meaning
i. Not neutral, predisposed to one party; interest in the
outcome
b. General forms
i. Relationship to one of the parties; or
ii. Financial interest in the outcome of the case [corrupted,
influenced]
c. Perception of bias counts (ex. Siblings)
i. W hates; had a fight with; owes money; rival gang, etc.
3. Criminal Conviction

Rule 609: Impeachment by evidence of conviction of crime

a)General: For the purpose of attacking the character 1) Unfair Prejudice? Balancing test: If witness is other
for truthfulness of a witness, than the Defendant then subject to rule 403
1. evidence that a witness other than an accused [presumption is admissibility] unless probative value
has been convicted of a crime shall be substantially outweighed by the prejudicial value.
admitted, subject to Rule 403, if the crime was However, if it is Defendant then [presumption is
punishable by death or imprisonment in excess inadmissible] only admitted if the evidence’s probative
of one year under the law under which the value outweighs it prejudicial effect to the accused.
witness was convicted, and evidence that an [similar kinds of crime, then the probative value will
accused has been convicted of such a crime increase substantially against the prejudicial value.]
shall be admitted if the court determines that Previous felonies punishable bydeath; imprisonment
the probative value of admitting this evidence of in excess of 1 year.
outweighs its prejudicial effect to the accused;
and
2. evidence that any witness has been convicted
of a crime shall be admitted, regardless of the
punishment, if it readily can be determined
that establishing the elements of the crime
required proof or admission of an act of
dishonesty or false statement by the witness.
b)time limit: Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness from the confinement imposed for that conviction,
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whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However,
evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives
to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party
with a fair opportunity to contest the use of such evidence.
c)effect of pardon, annulment, or certificate of rehabilitation: Evidence of a conviction is not admissible under this
rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other
equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been
convicted of a subsequent crime which that was punishable by death or imprisonment in excess of one year, or (2)
the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of
innocence.
d)juvenile adjudication: Evidence of juvenile adjudications is generally not admissible under this rule. The court
may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if
conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that
admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
e)pendency of appeal: The pendency of an appeal therefrom does not render evidence of a conviction inadmissible.
Evidence of the pendency of an appeal is admissible.

4. Bad “untruthful” acts

a. Acts must relate to truthfulness not violence
b. No conviction required for use
c. Crimes of dishonesty, fraud or deception
d. No asking of consequence of the act—consequence bears nothing on
credibility and can be misused by jury.
e. No Extrinsic evidence

Rule 608 Evidence of character evidence of character

(a) Opinion and reputation evidence of character: The
credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but
subject to these limitations: (1) the evidence may refer
only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only
after the character of the witness for truthfulness has
been attacked by opinion or reputation evidence or
otherwise.
AN EXCEPTION TO RULE 404(a) [permissible to use
character evidence circumstantially to prove veracity]
Use of reputation and opinion to prove untruthful
character is permitted.
(a)(2) –rehabilitation [thru redirect or separate
reputation or opinion witness] the impeached witness
allowed for truthful character when attacked.

(b) specific instances of conduct: Specific instances of Specific instances of conduct are admissible only if:
the conduct of a witness, for the purpose of attacking or 1.The conduct reflects = untruthful character;
supporting the witness' character for truthfulness, other 2.probative value outweighs unfair prejudice; 3.good
than conviction of crime as provided in rule 609, may faith basis for the inquiry; 4. evidence is introduced on
not be proved by extrinsic evidence. They may, CROSS EXAMINATION [witness denies cannot impeach
however, in the discretion of the court, if probative of with Extrinsic evidence]; 5.No extrinsic evidence
truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the witness'
character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or
untruthfulness of another witness as to which character
the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by
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any other witness, does not operate as a waiver of the

accused's or the witness' privilege against self-
incrimination when examined with respect to matters
that relate only to character for truthfulness.

5. Testimonial capacities
a. Physiological problems
b. Sight; hearing; smell; touch
6. Prior inconsistent statements

Rule 613. Prior statements of witnesses [statement must be self contradiction; witness must testify first; and one
statement made earlier]
a) examining witness concerning prior statement: In How to? First, Foundation: establish prior statement;
examining a witness concerning a prior statement made then establish that the earlier statement was truthful
by the witness, whether written or not, the statement [therefore not to be shown to witness at the examining,
need not be shown nor its contents disclosed to the but on request should be shown to opposing counsel]
witness at that time, but on request the same shall be argue inconsistency
shown or disclosed to opposing counsel.
b) extrinsic evidence of prior inconsistent statement: Witness must have chance to review statement if
Extrinsic evidence of a prior inconsistent statement by a offered into evidence; Opposing counsel can inquire.
witness is not admissible unless the witness is afforded
an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to interrogate
the witness thereon, or the interests of justice otherwise
require. This provision does not apply to admissions of a
party-opponent as defined in rule 801(d)(2).

ii. Extrinsic impeachment : extrinsic evidencefrom other sources other than the witness
1. The use of extrinsic evidence depends on whether the matter is considered
collateral [don’t care about collateral but non collateral or core matters]
2. Collateral matter-no extrinsic evidence. Prior bad act, contradiction, and prior
inconsistent statements. Unless, they involve fact in issue.
a. Eg. 608(b) specific instances not resulting in conviction. (always be
collateral)
3. Non collateral matter—extrinsic evidence permissible to impeach
i. Bias; a fact in issue; testimonial capacities, conviction of
crime, reputation or opinion evidence about truthfulness or
veracity
d. Refreshing recollection

Rule 612: Writing used to refresh memory

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness
uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
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an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness
thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed
that the writing contains matters not related to the subject matter of the testimony the court shall examine the
writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled
thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the
event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make
any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall
be one striking the testimony or, if the court in its discretion determines that the interests of justice so require,
declaring a mistrial.

1) Applies to writings 2) O/p has right to inspect writing 3) writing itself does not come into evidence, only
testimony from witness 4) O/P could request portions of writings come into evidence where testimony
relied upon writing.

9. Lecture 11 missing
a. Case law [lecture 12]
b. lecture
10. Lay opinion “helpful”
a. 701
i. Lay witness is generally a fact witness. Generally personal knowledge (602) as the
evidentiary foundation and prerequisite for a lay opinion offered through (701)
ii. Exception to 602—experts, admissions of party opponents, & various hearsay
exceptions.
b. Two types – lay; expert
i. Lay opinion requirements
1. Personal knowledge [with foundation established]; Rationally based (common
sense)
2. Helpful to jury and
3. No back-door experts (not based on specialized knowledge)
a. Can’t offer lay witness to testify as a specialize knowledge, even if they
have it.
4. (limited to fact opinions based on sensory perception—what I saw, felt, heard,
tasted)
c. United States v. Phibbs
i. Defendants are saying that court erred in allowing two witnesses to be testified in spite
of their mental incapacity.
ii. Court: they had capacity to differentiate from truth and falsity
1. Past records not matter
2. What matters is today
d. Rock v. Arkansas
i. Accused wanted to go under hypnosis sessions to testify
ii. As she said she didn’t remember what happened
iii. Court: D has to be able testified even under hypnotically created testimony.
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1. Person with independent recollection is allowed always.

e. Falwell v. flynt
i. Lawyer should ask the witness if he is on any medication.
f. Turbyfill v. International harvester co.
g. Washington v. texas
11. Expert Opinions [702] “assist the trier of fact under 702”
a. Questions to ask?
i. Is this a proper subject matter for expert testimony?
ii. Is the expert qualified in the subject matter?
1. To assist the trier of fact
2. in understanding the evidence and
3. the expert has proper qualifications
b. Rules 702-706
i. Generally
1. Pertinent and assist the jury
2. Specialized knowledge from wide variety of background
3. Can testify on evidence, which in itself may not be admissible
a. Recommendation on capacity
4. “expert voir-dire”: can challenge the expert’s expertise offered by the
opponent. If the proponent of expert witness cannot establish the qualification
of the expert, they may not be accepted.
a. FRE: no presumption on their qualifications.

Rule 702: Testimony by Experts: If scientific, technical,
or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case
Meaning: Qualified witness can give helpful opinion,
based on sufficient facts or data, product of reliable
principles or methods & principles and methods applied
reliably; specialized knowledge critical, however do not
have testify on first hand knowledge. Rule 702
requirements(3R HQ)
Reliable theory[Factors are of Daubert + testable, peer
reviewed, known rate of error, Frye (general
acceptace), standards and controls; Reliable application
[lab academic background]; Reasonable certainty; Helps
jury [general education and application of the case];
Qualified witness[skill, knowledge, significant
experiences, course, speaking, prior expert testimony].

Three Sources of knowledge: personal observations,

observations based in courtroom or facts made known
to the expert at or before trial (e.g. review of records)

Rule 703: Base of opinion testimony by experts: The
facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence in order for the opinion or
Sources for data of facts
Bases of opinion (facts and data)= Type of reasonably
relied on in the filed ; if inadmissible, do not disclose to
jury unless:
Test: Probative value___substantially_outweighs the
prejudicial effect.
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inference to be admitted. Facts or data that are

otherwise inadmissible shall not be disclosed to the jury
by the proponent of the opinion or inference unless the
court determines that their probative value in assisting
the jury to evaluate the expert's opinion substantially
outweighs their  prejudicial effect.
Rule 704: Opinion on ultimate issue (a) Except as Expert opinion on ultimate issue is inadmissible; Experts
provided in subdivision (b), testimony in the form of an are prohibited to testify in criminal cases as to whether
opinion or inference otherwise admissible is not the defendant had the mental state necessary to
objectionable because it embraces an ultimate issue to be commit the crime charged; Experts may not provide
decided by the trier of fact. (b) No expert witness conclusion of law “he’s guilty.”
testifying with respect to the mental state or condition of
a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have
the mental state or condition constituting an element of
the crime charged or of a defense thereto. Such ultimate
issues are matters for the trier of fact alone.

Rule 705: Disclosure of facts or Data underlying expert Expert generally can testify opinion first
opinion: The expert may testify in terms of opinion or
inference and give reasons therefor without first
testifying to the underlying facts or data, unless the
court requires otherwise. The expert may in any event
be required to disclose the underlying facts or data on
cross-examination.
Rule 706: Court can appoint experts, To promote fairness.
In civil case, court ordered, cannot assert privilege, in
criminal cases it is different case

ii. Case Law

Frye v. USA “the scientific principle from which the deduction is made must be sufficiently
established to have gained GENERAL ACCEPTANCE in the particular field in which it
belongs” [Frye used under Daulbert as one of reliability test in many jurisdictions.]
Daubert [flexible test for Frye superseded by FRE. Reliable theory[general acceptance as part of reliability],
reliability] see advisory reliable application, reasonable certainty of opinion
notes for 702
Rincon Proponent of expert testimony successful; court goes through various analysis
factors: whether there is a realiable theory + whether not the theory can be applied
reliability
Chambers Not scientific
GE v. Joiner Abuse of discretion is higher standard; presumption trial judge at better position to
arrive such conclusion
Kumho Tire Kumho expands the principle Daubert to other forms of testimony; factorson pg.
253, qualified for other specialized qualification
State v. Kelly Battered woman syndrome; theory can 3RHQ
United States v. Piccinonna Stipulation issue, more than legitimacy of polygraph
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12. Hearsay
a. Testimonial witnesses
i. Evaluated witness testimony through, perception, memory and narration.
ii. Witnesses are generally required to testify:
1. Under oath
2. In the personal presence of the trier of facts
3. Subject to cross examination [to judge trustworthiness of the testimony]
b. Hearsay: if qualifies  Rule 403 appliesthen admissible
c. Rule 801

(a) Statement.A "statement" is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.
(b) Declarant.A "declarant" is a person who makes a
statement.
©"Hearsay" is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.
Statements = assertion (verbal, written, non-verbal)—
questions [rarely are assertions] and commands are not
assertions; implied assertions are not statements either
[opening an umbrella for someone, giving a hug].
The statement must intend to communicate a message
directly and intentionally; PRIMARY INTENT MUST TO
BE COMMUNICATE
Must have assertive content [an assertion-oriented
approach]
Source should be human
An Out of court statement, made by declarant which
are offered to the truth or matter asserted = Hearsay
Out of court: statements made while not in the witness
box in a judicial proceedings [different judicial
proceedings qualify]

(d)Statements which are not hearsay PRIOR STATEMENTS OF WITNESS

(1)Prior Statement by witness: The declarant testifies at
the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A)
inconsistent with the declarant's testimony, and was
given under oath subject to the penalty of perjury at a
trial, hearing, or other proceeding, or in a deposition, or
(B) consistent with the declarant's testimony and is
offered to rebut an express or implied charge against
the declarant of recent fabrication or improper
influence or motive, or (C) one of identification of a
person made after perceiving the person; or
Sworn prior inconsistent statements of witness:
regular+ oath . Four conditions: 1) declarant must
testify, subject to cross examination at current trial 2)
prior statement must be inconsistent w/trial testimony
3) prior statement must have been given under oath
subject to penalty of perjury 4) prior statement must
have been made “at trial, hearing, or other proceeding
(grand jury), or in a deposition.
Prior consistent statements of witness: offered to rebut
charge of recent fabrication. Regular + charge of recent
fabrication [oath not required]. If not offered then
considered cumulative and unfairly prejudicial.
Prior identifications by witness:
By a witness; more than description of clothing; concept
= made closer to the time.

(2) Admission by party-opponent: The statement is ADMISISON BY PARTY OPPONENT:

offered against a party and is (A) the party's own
statement, in either an individual or a representative
capacity or (B) a statement of which the party has
manifested an adoption or belief in its truth, or (C) a
statement by a person authorized by the party to make a
Elements:
1)Party statement : individual or agency [uttered by a
party, not witnesses, unless witness making statement
fall in the category of an agency.]
2)offered by the opposing party [a) has to be movant of
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statement concerning the subject, or (D) a statement by
the party's agent or servant concerning a matter within
the scope of the agency or employment, made during the
existence of the relationship, or (E) a statement by a
coconspirator of a party during the course and in
furtherance of the conspiracy.
The contents of the statement shall be considered but are
not alone sufficient to establish the declarant's authority
under subdivision (C), the agency or employment
relationship and scope thereof under subdivision (D), or
the existence of the conspiracy and the participation
therein of the declarant and the party against whom the
statement is offered under subdivision (E).
the statement b) one cannot move their own
statement]
3) five kinds of admissions: PAAAC
Personal own
Adopted by use of doc; by silence and failure to
correct when needed
Authorizedspeakers; directly from speaking authority
(corporate agents)
Agentduring agency and acting in scope of
employment
Co-conspirator during and in furtherance of the
conspiracy with [have to] some independent evidence
[that there was a conspiracy]
**NOTE**
Any time looking at a problem, and party make a
statement, that statement may subsequently constitute
an admission against that party
Party should be held responsible to explain what that
statement means.
No personal knowledge not required see advisory page
note 234
No distinction between civil and criminal cases.
Admission is not declaration against interest

d. When not offer for the truth to prove so not Hearsay? SIRO
i. State of mind
1. State of mind where relevant
2. Effect on the listener: notice or warnings [indirect state of mind]; good faith
issues; to prove reasonableness; to explain behavior or knowledge
ii. Impeachment [does not deal with substantive matter]
1. Prior inconsistent statement
a. 801(d) is not used for impeachment purposes, they are used as
substantive evidence
2. Show credibility
3. Two different statements
iii. Res Gestae (limited excepton)
1. Background information needed to complete the story
iv. Operative Facts [language itself has meaning; stands alone has legal meaning]
1. A statement made at a time in question which creates a legal right or
responsibility
a. Ex. Marriage, defamation, verbal acts, contract.
v. Case law

Walter Raleigh
Zippo
Wright v. Doe D. Tatham
United States v. Alosa
Confrontation clause in criminal case; and due process in civil [ex parte proceedings,
witness does not have to be present
Whether study is hearsay? Not offere for truth of matter asserted
Cannot use the letters sent to the Testator to determine his capacity
Ledge as hearsay? Court: it is real evidence of the underlying charge.
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e. 802
i. Hearsay is not admissible except as provided by these rules or by other rules prescribed
by the Supreme Court pursuant to statutory authority or by Act of Congress.
f. 803
i. Declarant availability irrelevant
ii. Spontaneous statements
iii. Routine statements
1. Business
2. Government
3. Medical
g. Hearsay exceptions
i. 803(1): present sense Impression [time component critical]
1. During (or rt. After) and
2. Describing or explaining event
ii. 803(2): excited Utterance [exciting condition] [may last longer period of time]
1. While excited (under stress of excitement and
2. Relate to event
iii. 803(3) Present state of mind [person’s own condition]
1. Present state of mind
a. Present [mental, emotional or physical condition) or future looking
and (2) inward (declarant’s state of mind)
2. E.g. “I feel cold”; “I am happy”; “I plan on going to the store.”
3. Exceptions
a. Will exception
i. Backward-looking okay
1. Eg.
a. I ripped up the will because I hated my
son’s drunken spree at Art’s wedding.
b. I thought she was so great in taking care of
Aunt Shirley, I changed everything and gave
her my vacation home at Balt Island.
13. Hypo
i. 1st present sense expression
ii. 2nd excitement, Oh my gosh
iii. Well after the event.
b. Exceptions
i. 803(4): Statements made for medical diagnosis or treatment
1. Declarant’s own interest in receiving medical treatment
2. What statement’s are in or qualify?
a. About?—underline physical or mental condition
b. To?—healthcare providers
c. Includes cause or fault?
i. No, but exception is child statement may be admissible.
ii. 803(5): Recorded recollection
1. Allows introduction of prior statements
a. Witness
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b. Forgets, but…
c. Made or adopted prior statement when
d. Fresh and
e. Accurate
2. [for when witness cannot recall the statement, but had recorded earlier, fresh
in mind and accurate] just read in to evidence, but does not go to the jury.
3. Can refresh witness’s recollection with writing or anyways, but if witness can
use written statement when he/she accurately and fresh in mind recorded it.
4. Foundation?
a. Do you recognize the statement?
b. What is the statement?
c. How do you recognize the statement?
d. Is it the same condition as when you first wrote the statement?
iii. 803(6): records off regularly conducted business
1. [PARRT]
a. [Business records: are homogenous]
b. Person with knowledge made record
c. At or near the time of the event
d. Regular course of business activity
e. Record regularly made (frequency)
f. Trustworthy (according to judge)
2. Who lays the foundation?
a. Company records custodian or
i. Need not have to have the exact title
b. Other qualified witness or
c. Self-authenticated -902(11)(12) (2000 Am.)
iv. 803(7): absence of a record
1. Absence of a record entry otherwise kept pursuant to 803(6) is admissible to
prove nonoccurrence or nonexistence of the matter.
a. E.g. something not recorded, means it did not happened
v. 803(8): public records exceptions
1. Activities of the agency
2. Matters observed pursuant to at duty imposed by law where there was a duty
to report; or
3. in civil actions and proceedings and against the Government in criminal cases,
factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances
indicate lack of trustworthiness.
4. Factors:
a. Timeliness of investigation
b. Special skill or experience of official
c. Hearing held?
d. Motivation problems (Palmer)
5. Meaning
a. Where there is legal obligation to conduct investigation
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i. If the law requires, more likely or not they will be kept

accurately.
vi. 803(9): vital statistic records kept pursuant to law
vii. 803(11)/(12)
1. 11. Record of religious organization
a. Personal and family records kept regularly by organization
2. 12. Marriages, baptism, and other religious certificates performed authorized
clergyman
viii. 803(13)/(14)
1. 13: family records: statements of fact regarding family histories
2. 14: records affecting interests in property of a public office or authorized by
statute
ix. ….check slide check the review for Thursday 10/29 for final exam tips
c. 803(15) statements in documents affecting an interest in property (germane recitals of fact)
d. 803(16) ancient documents (20 years or more)
i. Have to prove authenticity of the document
ii. It is 20 years, and it is what it purports to be
iii. Been long enough for reliability
e. 803(17) Market Reports- compliations/direcoties
i. Market quotations, tabulations, lists, directories, or other published compilations,
generally used and relied upon by the public or by persons in particular occupations.
1. Not like Times magazine or anything like that, mostly for stock quotes
2. Reliable as they are regularly used.
f. 803(18) Learned Treatises—(read, not admitted)
i. Treatise itself go to the jury; read it from where it is relevant
ii. Question of law or fact, where someone brings the learned or treatise to define
something.
iii. Usually to impeach expert witnesses.
g. 803(19) Reputation, Personal Family History
i. Family knows
h. 803(20) Reputation, Boundaries General History
i. 803(21) Reputation, character (limited by 608/404)
i. As already under the rule of character evidence.
j. 803(22) judgment of previous conviction (felony)
k. 803(23) judgment of family history
l. Notion of judicial notice
i. Very powerful tool
ii. Fact cannot be disputed if taken of judicial notice
1. Removes the evidentiary component to establish that fact

m. 804 [determine first if witness is available or not]

i. (a) Unavailability: liberal understanding under FRE [determine if witness availability]
1. Testimonially unavailable, physically present but lack mental capacity to testify
or not physically present.
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2. Exception: Where one of the lawyers didn’t intentially interfered with presence
of declarant. “A declarant is not unavailable as a witness if exemption…”
3. (1) exemption: by court order or by statute
a. Privileges: communications exempted from evidentiary disclosures.
Abrogated by statute.
4. (2) persists in refusing to testify
a. Required by law or they will be contempt [can be held upto 6 years]
and if there is contempt order
5. (3) testifies to a lack of memory..
6. (4)death or then existing physical or mental illness or infirmity
7. (5)
ii. (b) Major Exceptions [with specific elements and non-negotiable]
1. 804(b)(1) Former Testimony [first establish that witness is unavailable]
a. Unavailable witness
b. Testified before
c. Now offered against party who had
i. Similar motive and
ii. opportunity to examine
iii. [Rationale: Out of fairness use the same testimony, which has
been ruled reliable in previous proceeding, as witness is
unavailable so use the same testimony. However, the cases
need to be similar that you may utilize the testimony fairly]
d. [Mneumonic: “TU SMOKE”]
e. Clues
i. Examle1: P v. D now
1. Joe plumber v. D before
ii. Example: US v. Defendant II now
1. Deposition of witness before or
2. U.S. v. Defendant, mistrial before
2. 804(b)(2) Dying Declarations [cause of death critical]
a. Unavailability
b. Statement about Cause and circumstance of death
c. Make statement while believing death is imminent
3. 804(b)(3) Statements against interest
a. Unavailability
b. Statement against interest: 3 p’s
i. Pecuniary
ii. Proprietary
iii. Penal interest
4. Compare
a. Admissions[801]---Statement against interests
i. Differences: think about it.
b. Party statemens---non-party stmts
c. Available---unavailable
d. Not admitting---Admitting something.
iii. 804(b)(4)—Personal family history “the declarant’s own
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1. 803 distinction
a. Too close therefore 804 [probably not going to cover in exam]
iv. 804(b)(6)—Forfeiture by wrongdoing: no HS objection if you cheat and hide a witness
1. If one assists in concealing or secreting witnesses, you waive the right to object
in hearsay statements pertaining to their testimony. Based on fairness
n. 804 major exceptions
i. Former testimony
1. Look for some consistency in the case, another party had developed the
testimony that you are going to utilize.
ii. Dying Declarations [“U ABCD”]
1. Unavailable declarant
2. Statement about cause or circumstances
3. While believing death imminent
4. Only civil or homicide (death) cases
iii. Statements against interests [UD hurts his 3Peat]
1. Statement against Pecuniary, Proprietary or Penal interest
2. When made
3. Declarant unavailable
4. Ex.
a. Inculpatory and exculpatory statement: does the statement
b. When a guy
o. 805 – HS w/in HS
i. Not excluded if each part of the combined statements conforms with an exception to
the hearsay rule.
1. General rule to apply: both qualify, then both come in, one qualify then only
that one comes in.
2. Ex. Hospital record, and patient filling in age.
a. Physician’s report, and the person making statement to the physician
i. Medical record, and business.
3. Classic ex.
a. Psychological evaluation
i. Background information of the patient.
1. Offered for background info: then not hearsay
2. But offered for the truth or matter asserted then
hearsay within hearsay.
b. Privileges are waived when the evaluation is compulsory.
4. Two statements both qualify or one qualifies.
p. 806—credibility of HS Declarant is subject to attack (just as if the HS Declarant testified) where
the HS Declarant statement is admitted into evidence….does not apply to admissions except
under 801(d)(2)©, (D), or (E) (agent admissions and co conspirators).
i. When using hearsay statements then can attack the credibility of the Declarant.
ii. ***Declarant’s credibility to impeachment***
q. Even though 803 or 804 exception, has to survive relevance test.
r. 807 residual/last resort [if doesn’t come under other exceptions then can try under 807, if the
evidence circumstantially guarantee trustworthy] only apply if we cannot use any other
exception--
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i. Residual Exception
1. Circumstantial guarantees of trustworthiness if:
a. Offered as a material fact
b. More probative than any other evidence
c. Serve general purpose of the rules and justice
2. Must provide advance notice
ii. Classic example
1. FRE: no specific child sexual abuse exception
2. Compelling need to protect children from this kind of abuse
3. Children vulnerable to the people who they trust, familiar to them.
4. Wounds heal quickly no physical evidence available after few days.
5. Circumstantial guarantee of trustworthiness
a. Circumstances when the child made the disclosures
i. To mother not under the trauma or other concerning the
abuse.
s. Hearsay framework [is it hearsay? [assertion oriented approach]admissible?]
i. Door #1 Not HEARSAY as per elements
1. Out of court statement? Made by Declarant? Offered to the truth of the matter
asserted? If yes to all then HEARSAY
2. If not then NOT hearsay.
3. ***if not offered for truth of matter asserted, but offered for some other
purpose in the litigation could be admissible
ii. Door#2  Statutory not Hearsay 801(d)
1. Meets the elements of Hearsay but
2. Excluded by 801(d) : prior inconsistent statements; admission by party
opponentRelevance 403admissible
iii. Door#3Reliable Hearsay
1. Hearsay butrelevance test admissible under 803/804
2. Reliable hearsay (803/804)
3. Statement is hearsay but reliable exception
4. These statement are admissible because they are reliable to perception,
memory, and narration; no or minimal opportunity for fabrication
5. 803 availability of declarant immaterial
6. 804 Declarant must be unavailable (need)
iv. Door#4Not reliable Hearsay
1. Not admissible
t. Exclude Hearsay
i. Evidence will be excluded as inadmissible hearsay only if:
1. The evidence meets all so the hearsay requirements
2. And it is not special prior statement of the witness or an admission of a party
opponent; and it is not within one of the many hearsay exceptions.
ii. Remember Relevance & 403
1. Must be relevant
2. Exclude non-hearsay where the probative value is substantially outweighed
(403) by the risk of unfair prejudice.
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3. Eg. Where trier of fact will make the prohibited hearsay inference (truth of the
statement) despite a limiting instruction from the….
u. Case Law:
14. Confrontation clause : opportunity to confront witness testifying against the defendant
a. Sixth amendment: Sixth amendment: “in all criminal prosecutions, the accused shall enjoy the
right…to be confronted with the witnesses against him”
b. Applies in Criminal proceedings but not in civil courts
c. However, in civil proceedings rights of plaintiff and defendants are protected by Due process
[procedural and substantive]
d. Applied to both states and federal government through 14 th amendment.
e. Confrontation clause analysis:
i. The use of confronted hearsay in criminal cases
1. Applies to all “testimonial” statements offered against the accused
a. If offered, at the least the defendant must have had the opportunity to
cross-examine a currently unavailable declarant.
b. What are testimonial statements? [not clear]
i. Crawford v. Washington
1. “affidavits, statements that are the product of
custodial interrogation by police, depositions,
courtroom testimony, and “statements that were made
under circumstances which would lead an objective
witness reasonably to believe that the statement
would be available for use at a later trial.”
ii. The use of substitutes for face-to-face confrontation between witness and accused
[generally arising with child witnesses]
f. Non testimonial example
i. Business or public records,
ii. co-conspirators statements,etc
iii. Statements made to non-governmental persons (friend or family)
iv. Not clear law: of child statements, medical diagnose and treatment.
g. Right to confront doesn’t apply: check slide
i. D offers hearsay
ii. D’s own statements by prosecutor
iii. Declarant testitfies at trial and is cross examined
iv. Non-testimonial hearsay statements
v. Primary purpose of interrogation is to resolve on going emergency (many 911 calls)
vi. Witness testifies by close circuit TV.
vii. Civil proceedgins, probation revocation
viii. Most sentencing proceedings
15. Development of Rule: Supreme Court cases

Chambers v. united States
Bruton v. United States
Defendant was denied of fundamental standards of due process by not
allowing to question his witness, who had repudiated a confession to
which Defendant was accused of.
Because of the substantial risk that the jury, despite instructions to the
contrary, looked to the incriminating extrajudicial statements in
determining petitioner's guilt, admission of Evans' confession in the joint
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trial violated petitioner's right of cross-examination secured by the

Ohio v. Roberts
[unavailability + reliability]
limited to statements
against interest in former
testimony.
United States v. Inadi
[different from Roberts and
Bruton]
Maryland v. Craig [face to
face confrontation
required?]
Idaho v. Wright
Confrontation Clause of the Sixth Amendment.
Forgery case, where the Court ruled that if the witness is unavailable then
the statement is admissible if it passes through “indicia reliability” [firmly
rooted from hearsay exception]. For in this case court found statement
reliable as the declarant was subject to cross examine when made
statement.
*statements of co-conspirators recorded
* do not have to be unavailable to utilize coconspirator’s statement
* they were made in natural conversation outside the court, hence highly
reliable. “firmly rooted exception” under 801(d)(2)(E)
*child abuse testimony against D
*even though separated by screen, this testimony is allowed as the
witness child does go through process of oath, cross examinations, and the
testimony is live.
Whether the admission at trial of certain hearsay statements made by a
child declarant to an examining pediatrician violates a defendant’s rights
under the confrontation clause of the sixth amendment
*particularized guarantees of trustworthiness
: Based on a consideration of the totality of the circumstances, including
not only the circumstances surrounding the making of the statement, but
also other evidence at trial that corroborates the truth of the statement.
*if no firmly rooted exception then look into residual exception—reliability

White v. Illinois
Whether the confrontation clause of the sixth amendment requires that,
before a trial court admits testimony under the “spontaneous
declaration” and ‘medical examination” exceptions to the hearsay rule, the
prosecution must either produce the declarant at trial or the trial court
must find that the declarant is unavailable.
Court going along with INADI, focusing on reliability rather than
unavailability as Roberts.

Bourjaily v. United States If statements admissible under 801(d)(2)(e) then no further constitutional
issue of confronatational clause

Lilly v. Virginia Statements of coconspirator do not fall in to reliability or gurantee of

trustworthiness due to their own motives.

Crawford v. Washington [new rule if statement Davis v. Washington and Hammons

testimonial]
*Testimonial statements
-Declarant must be available to be cross examines;
Or
-Previously cross examined, if unavailable.
--At trial or prior to trial.
---Forfeiture: if witness made unavailable, the
opportunity to cross examination forfeited [from
Giles v. California; rule D forfeits right to confront
witness if D murders or intimidates the declarant
*non testimonial statements: primary purpose of
the interrogation is to enable police assistance to
meet an ongoing emergency
Meaning: objectively not contemplated for later
admission in a trial
*Testimonial: primary purpose of the interrogation
is to establish or prove past events potentially
relevant to later criminal prosecution. Objectively
contemplated for later admission in a trial
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from testifying.

16. Privileges
a. Federal rules take more general approach
i. Do not recognize some of the specific rules in state rules
ii. Use federal common law to determine if privilege exists and how it applies
b. State
i. Civil action: look to controlling state law on subject when no federal question presented.
c. For exams
i. It will be told that state court privilege rules
d. Privileges
i. Justified by important public policy considerations supporting confidential relationships
1. Lawyer client
a. Want honesty, promote it
2. Doctor-patient
a. Honesty preservations
3. Spousal
a. Preserving relationship
ii. Privileges are not absolute and can be waived by:
1. Holder of privilege
2. Implication by conduct
3. Law (duty to warn of harm, crime, good cause, etc.)
a. Easy at state court
iii. After waiver
1. Willing to testify
e. Husband-wife [spousal immunity and confidential communication]
i. Spousal immunity
1. Criminal cases only
2. Valid marriage [at the time of the trial]
3. Witness spouse holds the privilege
a. D can’t compel or preserve the privilege
b. Can’t be barred nor forced to testify
4. Will not apply if parties divorced or permanently separated
ii. Confidential communication
1. Valid marriage
2. Exception—charged crime against spouse or child
3. Communication must take place while couple was married.
a. Thoughts or impressions of witness are in
4. Divorced witness can be called for non-confidential communication
5. Both holds the privilege
a. Can prevent from testifying
b. However, exception applies.

Spousal Confidential communication

Married at trial When talking
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Applies to criminal cases All cases

Scope= keep out Scope= just keep out the confidential talk

Who hold? Witness Either

f. Attorney-client privilege 502 [only specific privilege set forth in FRE; rest are in through common
law]
i. Individuals [to preserve honesty and relationship and candor]
1. Exceptions
a. Not confidential
b. Crime-fraud
g. Corporations: all employees provided they were acting in the scope of their duties on a subject
relevant to the corporation.
i. What test?
1. Subjective and objective test
a. Whether client reasonably believed that he/she is communicating with
an attorney.
2. Privilege survives even if the relationship does not.
a. Consultation remains within privilege scope.
h. Attorney-client
i. Confidential communication with reasonable expectation communicating in confidence
with attorney
1. Not confidential if in presence of others, or even a single third party.
ii. Needs to be seeking legal advice
1. Cannot be other advice, business, moral, etc.
iii. Communication must be made by client not a third person/protects clients
1. Purposes of communication, communication incorporate everyone in the zone of
communication required to do so.
iv. Does not prevent disclosure of underlying facts
v. Does not apply to protect future crimes or physical evidence from past crimes.
vi. Privilege survives death
i. Rule 502 Inadvertent Disclosure (b)
i. No waiver if the holder took reasonable steps to prevent and retrieve disclosure of
communications or information. [immediate steps to rectify accident needs to take place]
ii. If done by accident, no harm done.
j. Work Product Privilege
i. Thought process & strategy prepared in anticipation of litigation
ii. Protects against the discovery of ideas, mental impressions, opinions, et. Generated in
preparation for litigation.
iii. “Otherwise discoverable”...then protected.
k. Psychotherapist-patient privilege [recognized by federal common law]
i. Confidential statements made by the patient to the treating therapist remain confidential.
1. License not really necessary, as long as subjective reasonable belief that
speaking to counselor
ii. Protects confidential communications, not matters unrelated to underlying diagnosis or
treatment.
iii. Voluntarily placing mental your condition in issue waives the privilege. (element of case)
1. Pleading insanity
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iv. Suit against treatment provider waives privilege.

1. If sued lawyer and doctor likewise, may breach privilege to use the statements as
defense.
v. Generally, client’s names are not privilege
1. Or how much paid. [any privilege]
l. Physician-Patient privilege
i. Protects confidential communications from patient to physician
ii. Patient generally holds the privilege
iii. Generally protects communications but not statistical informal for services rendered
iv. Privilege may be abrogated by statute for public safety concerns.
1. In case of dangerous diseases involved
m. Clegy-penitent privilege
i. Applies to confidential statements made to ordained clergy or organized churches for the
purpose of spiritual counseling.
n. Fifth amendment, self incrimination [in criminal or civil case]
i. Prohibits compelled testimony that is self-incriminatory
ii. Does not apply to specimen samples, applies to statements.
iii. Applicable in civil and criminal cases where a “substantial and real” threat of prosecution
exists. Negative inference when invoked in civil cases.
1. Criminal case:
a. Negative inference cannot be taken
2. Civil case
a. Court can make an adverse finding under the law. [Florida law]
iv. Case law:
17. Authentication & BER
a. Authentication
i. Concern: Accuracy & Genuineness
ii. Rule 901 Requirements of authentication or identification

Rule 901. Requirement of Authentication or Identification

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations.
By way of illustration only, and not by way of limitation, the following are examples of authentication or
identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon
familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with
specimens which have been authenticated.
(4) Distinctive characteristics and the like . Appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it
with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned
at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances,
including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call
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was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact
recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form,
is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form,
(A) is in such condition as to create no suspicion concerning its authenticity,
(B) was in a place where it, if authentic, would likely be, and
(C) has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the
process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of
Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

1. In general
a. Authentication
i. is a condition precedent to admissibility
ii. The matter in question is what its proponent claims
b. Laying foundation on not self authenticating items

Representative Evidence Real evidence

Do you recognize this? Do you recognize this?
What are you recognizing? What are you recognizing?
How are you familiar with this? How are you familiar with this?
“is exhibit #____for identification purposes a fair and requires “ is exhibit #___for identification purposes in
accurate representation of X as of the time and date? substantially the same condition it was in when you last
(eg. Photo) saw it on date?

Crime scenePolice custodyLab [DNA]PoliceState departmento Court Room

c. Chain of custody (unless item is very unique)establish authenticity

i. Criminal cases—ensuring quality and competency of the
evidence
ii. Tracing of custody from source to courtroom
1. Prosecution to prove every element of crime w/o
reasonable doubt
iii. Self Authenticating Items Rule 902 [not an exception to hearsay rules]
1. Domestic Documents under seal :
a. Seal required
2. Domestic public docs not under seal (w/official capacity) :
a. Official act of government may not have seal
3. Foreign public docs :
4. Certified public records :
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5. Official publications :
6. Newspapers & periodicals :
7. Trade inscriptions and like :
8. Acknowledge Document (notatry)
9. Commercial papery and related Docs
10. Presumptions under acts of congress
11. Certified domestic records of regularly conducted business
12. Certified foreign records of regularly conducted activity
iv. Court documents
1. Original document: only one
a. Certified copy: certifying that it is original copy.
2. True copy
3. Conform copy
a. In court clerk stamps judge’s stamp
b. BER—preference for original when “contents of a writing need to be proved
i. 1001

(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their
equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic
impulse, mechanical or electronic recording, or other form of data compilation.
(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart
intended to have the same effect by a person executing or issuing it. An "original" of a photograph
includes the negative or any print therefrom. If data are stored in a computer or similar device, any
printout or other output readable by sight, shown to reflect the data accurately, is an "original". [BROAD
READING]
(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from
the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical
or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which
accurately reproduces the original. [COPIES GIVEN LARGELY SAME STATUS AS ORIGINALS]

c. BER [separate from authenticity, only applies to writing]

i. Anti fraud provision—not quality control device for all evidence
ii. Exceptions
1. DO NOT APPLY TO MERE CORROBORATION OF A WRITING
a. ONLY APPLIES TO CONTENT, NOT FOR CORROBORATION
i. Only evidence of an event is a writing
1. Confession
2. Meeting
3. Receipt
ii. Legal document
1. Contract, trust, will, deed, notice
iii. Better evidence required 1002
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1. To prove the content of a writing, recording, or photograph, the original

writing, recording, or photograph is required, except as otherwise
provided in these rules or by act of congress.
2. [only matters when it is core issue, collateral matter it does not really
matter]
3. [photograph: negative and images on it]
4. [recording: recording made originally
iv. Framework
1. DOES BER APPLY?
a. Yes, if proving contents of a writing [recording or photograph]
2. If rule applies, is original required?
a. Technically yes, generally no.
b. Duplicates accepted and original not required, when original:

1. lost or destroyed (1004)

2. not obtainable (1004)
3. in possession of opponent (1004)
4. collateral (1004)
5. public records(1005)
6. summaries (1006) [which cannot be conveniently examined in court]
7. admission by opposing party (1007)

c. Exceptions: RULE 1003 duplicates accepted to same extent as original,

unless
i. Genuine question is raised as to the authenticity of the
original; or
ii. In the circumstances it would be unfair to admit duplicate in
lieu of the original.
v. Rule 1008
1. Functions of judge and jury (judge controls 104 question; jury—fact
issues)
2. Jury as initial fact-finder:
a. Whether writing ever existed or
b. Whether another writing is the original or
c. Whether the evidence correctly reflects the contents.
d. Case Law
i. Lucas: one cannot prove original drawing w/o showing of original drawing
ii. Duffy: shirt does constitute as writing
18. Proof:
a. burden of going forward: burden of production of prima facie evidence of the case and
burden of persuasion [persuade]
i. burden of production:
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1. failure to present prima facieDirected verdict [at trial]; in criminal

case at close of prosecution presentationJudgment of acquittal
2. affirmative defense: bear a burden of production if it asserted. So,
when D asserts it than they take on burden of production.
ii. burden of persuasion: of the jury
19. Judicial notice
a. Rule 201
i. Scope of rule: this governs only judicial notice of adjudicative facts
ii. Kinds of facts: A judicially noticed fact must be one not subject to reasonable
dispute in that it is either
1. (1) generally known within the territorial jurisdiction of the trial court or
2. (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
iii. When discretionary: A court may take judicial notice, whether requested or not.
iv. When mandatory: A court shall take judicial notice if requested by a party and
supplied with the necessary information.
v. Opportunity to be heard: A party is entitled upon timely request to an
opportunity to be heard as to the propriety of taking judicial notice and the
tenor of the matter noticed. In the absence of prior notification, the request
may be made after judicial notice has been taken.
vi. Time of taking notice: Judicial notice may be taken at any stage of the
proceeding.
vii. Instructing jury:
1. In a civil action or proceeding, the court shall instruct the jury to accept
as conclusive any fact judicially noticed.
2. In a criminal case, the court shall instruct the jury that it may, but is not
required to, accept as conclusive any fact judicially noticed.
b. Cases
i. Civil cases : must
ii. Criminal: may be
c. What else court could take notice of?
i. Prior convictions:
1. Source court orders
ii. Basically expediate the judicial process
iii. Facts not in dispute
d. Laundry list is on pg. 474
i.
20. Presumptions
a. Types
i. Rebuttable
ii. Conclusive
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iii. permissive
b. Shifts burden: evidentiary presumptions shift proof burdens.
c. Hypo:
i. State court law: death from gunshot wounds state does not presume suicide, if
there is a question over a life insurance.
1. Insurance agencies have to rebut the burden that it was a suicide.
d. Rule 301
i. In all civil actions and proceedings not otherwise provided for by Act of Congress
or by these rules, a presumption imposes on the party against whom it is
directed the burden of going forward with evidence to rebut or meet the
presumption, but does not shift to such party the burden of proof in the sense
of the risk of non persuasion, which remains throughout the trial upon the party
on whom it was originally cast.
ii. Meaning
1. Plaintiff bears the burden of production and persuasion
a. On Rebuttable presumptionburden shifts the burden of
production.
e. Rule 302. Applicability of State Law in Civil Actions and Proceedings
i. In civil actions and proceedings, the effect of a presumption respecting a fact
which is an element of a claim or defense as to which State law supplies the rule
of decision is determined in accordance with State law.
ii. [civil case, and substantive rule on fact element of the case, state law applies]
iii. Conclusive presumption: not rebuttable.
f. Rebuttable presumption, what happens
i. Drops out of the case, no more presumption.
ii. Criminal cases:
1. Cannot have legal presumption which relives prosecution from burden
of proof [production or persuastion]
2. Only allowed, where it is permissive to presume fact issue in a case in
discretionary presumptions of the jury.
a. Cannot relieve the prosecutor from proving each and every
element of the case.
3. Presumed fact must flow by a preponderance of the evidence from the
basic fact
iii. Criminal cases and presumptions
1. Permissible in discretionary of jury
a. However, cannot relieve prosecutor of proving each and every
element of the crime.
g. Presumptions: simply presumes facts to be true.
21.