Relevant?

Does the evidence have any tendency to make the

existence of any fact that is of consequence to the
determination of the action more or less probable
than it would be without the evidence? [401, 402]
Look to the controlling substantive law to determine
if the fact is of consequence...use common sense!
Not Admissible!
Evidence which is not
relevant is not admissible.
NO
Danger of unfair prejudice?
Is its probative value substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading of
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence? [403]
Remember: Must be raised by party [waived under 103 if not
raised] & judge has wide discretion [must play with the facts]!
Looking for: Some reason the jury would use this evidence to
come to a decision on an improper [emotional] basis. Ex. Old
Chief
Factors to Consider: (1) probative value of the evidence, (2)
importance of fact to be proven, (3) alternative means of
proving the point, (4) degree to which the fact to be proven is
disputed, (5) how likely the jury is to follow limiting instructions.
YES
Admissible except...
Not Admissible!
Exclusion of relevant
evidence on grounds of
prejudice, confusion, or
waste of time.
NO
Proponent of Evidence: Three
Foundations Required
1. Authentication
2. Best Evidence
3. Get past hearsay
Physical evidence?
(document, record, etc.)
Authentication [901]
Evidence sufcient to support a nding that the
matter in question is what proponent claims.
Authentication & identication is a condition
precedent before evidence is admissible.
Must: Provide a basis for the fact nder to
believe that the evidence is what the proponent
claims it to be.
Remember: The jury doesn't have to believe
the evidence even if it has been authenticated!
Proponent of Evidence: Two
Foundations Required
1. Authentication
2. Get past hearsay
Testimonial Evidence
Character Evidence -- PROPENSITY
[404, 405, 406]
404 = Type of information about character allowed
405 = How the character information may be proved
Evidence of character is not admissible to prove actions
in conformity therewith [404(a)] EXCEPT
(1) Character of Accused: in a criminal case, A can offer
evidence of a relevant character trait they have (& P can
offer evidence to rebut the same) OR Evidence of A's
character can be offered by P IF evidence of V's
character is offered by A under 404(a)(2). Remember: A
must open the door 1st & only reputation or opinion
testimony--no specic instances (except on cross)
[405]!
(2) Character of Victim: In a criminal case, A can offer
evidence of a relevant character trait of V (& P can offer
evidence to rebut the same AND evidence about D for
same character trait) OR In a homicide case, P can offer
evidence of V's peacefulness to rebut evidence that V
was the rst aggressor. Only in assault & homicide cases
where A claims V was 1st aggressor. Remember: A
must open the door 1st & only reputation or opinion
testimony--no specic instances (except on cross)
[405]!
(3) Character of Witness: Attacking the credibility of
character W w/evidence of untruthful character. Look @
Impeachment [See 608 & 609]. Can try to impeach any
witness!
Special for Sex Offense Cases: P can offer evidence of
D's other sex offenses (including if only arrested or
charged) for any relevant purpose--including propensity
[413, 414, 415].
Laying the Foundation for a Character W: Put W on the
stand and ask (1) if D is a member of the same
community as W (2) if W has resided in that community
for a long period of time (3) if D has a reputation in that
community for a trait of character (4) establish that W
knows that reputation.
Character evidence is highly relevant, but excluded for
policy reasons. Conviction because bad person, not
because committed THIS crime.
Remember: Character evidence & impeachment go
together. One party introduces character evidence &
other party will rst object to the introduction of character
evidence & then second try to impeach W.
Is the evidence
admissible...?
IV. Relevancy & Limits
(A) Logical Relevance
Character Evidence -- PROPENSITY
[404, 405, 406]
404 = Type of information about character allowed
405 = How the character information may be proved
Evidence of character is not admissible to prove actions
in conformity therewith [404(a)] EXCEPT
(1) Character of Accused: in a criminal case, A can offer
evidence of a relevant character trait they have (& P can
offer evidence to rebut the same) OR Evidence of A's
character can be offered by P IF evidence of V's
character is offered by A under 404(a)(2). Remember: A
must open the door 1st & only reputation or opinion
testimony--no specic instances (except on cross)
[405]!
(2) Character of Victim: In a criminal case, A can offer
evidence of a relevant character trait of V (& P can offer
evidence to rebut the same AND evidence about D for
same character trait) OR In a homicide case, P can offer
evidence of V's peacefulness to rebut evidence that V
was the rst aggressor. Only in assault & homicide cases
where A claims V was 1st aggressor. Remember: A
must open the door 1st & only reputation or opinion
testimony--no specic instances (except on cross)
[405]!
(3) Character of Witness: Attacking the credibility of
character W w/evidence of untruthful character. Look @
Impeachment [See 608 & 609]. Can try to impeach any
witness!
Special for Sex Offense Cases: P can offer evidence of
D's other sex offenses (including if only arrested or
charged) for any relevant purpose--including propensity
[413, 414, 415].
Laying the Foundation for a Character W: Put W on the
stand and ask (1) if D is a member of the same
community as W (2) if W has resided in that community
for a long period of time (3) if D has a reputation in that
community for a trait of character (4) establish that W
knows that reputation.
Character evidence is highly relevant, but excluded for
policy reasons. Conviction because bad person, not
because committed THIS crime.
Remember: Character evidence & impeachment go
together. One party introduces character evidence &
other party will rst object to the introduction of character
evidence & then second try to impeach W.
Is character specically
at issue? [405(b)] Look
@ substantive law
Admissible! May offer
character W's AND may
show specic instances
of conduct! [405(b)]
YES
Is it evidence of habit of a
person or routine practice
of an organization? [406]
Habit is NOT character!
Prove habit by putting Ws on
the stand to describe specic
incidents BUT can use
evidence even w/o cooberation.
NO
Admissible! Evidence of
habit is admissible to prove
that the person acted in
conformity therewith
YES
Evidence of other
crimes, wrongs or acts
may be admissible for
other purposes!
NO
Is it evidence of specic acts to show motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake or accident, modus operandi, or doctrine of
chances? [404(b)]
Must establish that the uncharged misconduct took place with
admissible evidence; burden of proof is unclear, but Huddleston applied
something lower than preponderance.
Admissible if its probative value is
not substantially outweighed by
unfair prejudice. [403]
Consider: how probative, how much helps
state''s case, issue disputed, other less
prejudicial evidence available, similarity, etc.
YES
Is it evidence of
similar crimes or
wrongs or acts
offered in a case
involving sexual
assault or child
molestation?
NO
Inadmissible unless offered
against accused in a criminal
prosecution for sexual assault
or child molestation & the prior
similar offense meets the
standard of an "offense of
sexual assault" [413; 414]
NO
Impeachment
[405, 697, 608, 609, 613, 801(d)(1)(A)]
Introducing evidence to make W seem less
credible (less truthful).
Impeaching Any Witness: Anytime a W testies
(including a D), opinion & reputation evidence
relating to untruthfulness may be introduced to
attack their credibility. (Plus, after a W is attacked,
evidence of their truthfulness can be introduced to
rehabilitate them as a W). [608(a)] On cross, (in
the discretion of the court), specic instances of
W's conduct can be inquired into, but cannot
introduce extrinsic evidence. [608(b)(1)]
Witnesses Testifying About the Truthfulness
or Untruthfulness of Another Witness
(Impeaching Witness): Specic instances of
conduct concerning the truthfulness or
untruthfulness of the person the W had testied
about can be inquired into (in the discretion of the
court) on cross, but cannot introduce extrinsic
evidence. [608(b)(2)]
Impeaching a Character Witness: Specic
instances of conduct concerning the character
trait the CW already testied about can be
inquired into on cross. [405(a) last sentence]
Consider Also: (1) prior inconsistent statements
(2) bias (3) lack of capacity, (4) contradiction.
Avoiding
propensity
IV. Relevancy & Limits
(B)(1) Legal Relevance
Is it evidence of habit of a
person or routine practice
of an organization? [406]
Habit is NOT character!
Prove habit by putting Ws on
the stand to describe specic
incidents BUT can use
evidence even w/o cooberation.
Evidence of other
crimes, wrongs or acts
may be admissible for
other purposes!
Impeachment
[405, 697, 608, 609, 613, 801(d)(1)(A)]
Introducing evidence to make W seem less
credible (less truthful).
Impeaching Any Witness: Anytime a W testies
(including a D), opinion & reputation evidence
relating to untruthfulness may be introduced to
attack their credibility. (Plus, after a W is attacked,
evidence of their truthfulness can be introduced to
rehabilitate them as a W). [608(a)] On cross, (in
the discretion of the court), specic instances of
W's conduct can be inquired into, but cannot
introduce extrinsic evidence. [608(b)(1)]
Witnesses Testifying About the Truthfulness
or Untruthfulness of Another Witness
(Impeaching Witness): Specic instances of
conduct concerning the truthfulness or
untruthfulness of the person the W had testied
about can be inquired into (in the discretion of the
court) on cross, but cannot introduce extrinsic
evidence. [608(b)(2)]
Impeaching a Character Witness: Specic
instances of conduct concerning the character
trait the CW already testied about can be
inquired into on cross. [405(a) last sentence]
Consider Also: (1) prior inconsistent statements
(2) bias (3) lack of capacity, (4) contradiction.
Evidence of Conviction of Certain Crimes [609]
Anyone who would steal would probably lie...
Note: NOT Character evidence by denition--offered to show lack of credibility
Did the crime involve dishonesty or false statements? [609(a)(2)]
Shoplifting (no); Willful failure to le tax return (yes); distributing cocaine (no); forgery
(yes); burglary (no); conspiracy to distribute drugs (no); murder (no); obstruction of
justice (maybe); misrepresenting self as a cop (yes)
Has it been 10+ years
since the conviction or the
release from jail? [609(b)]
Is the prior
conviction of the
accused?
Is the probative
value substantially
outweigned by
unfair prejudice?
(i.e. 403 balancing)
[609(a)]
Does its probative value
outweigh its prejudicial effect?
[609(a)(1)]
Consider: (1) nature of the crime (2)
time of the prior conviction (3)
subsequent criminal history (4)
similarity of the past crime to the
current crime (5) importance of the
D's testimony (6) and the
importance of the D's credibility.
NO
YES
Inadmissible!
NO
Admissible
Note: 10 year
rule of 609(b)
applies.
YES
Inadmissible!
Admissible
Note: 10 year rule
of 609(b) applies.
NO
YES
NO
Inadmissible
unless its probative
value substantially
outweighs its prejudicial
effect and proper notice
is given. [609(b)]
YES
NO YES
Admissible
Note: 403
balancing does
not apply!
[609(a)(2)]
Rehabilitation & Bolstering
Rehab: Can rehabilitate an impeached W
with bolster. There must be an attack on
truthfulness to trigger rehabilitation!
Note: When W denies the statement, there has been no
impeachment, thus opponent cannot rehabilitate.
Bolster: (1) Evidence of truthful character is
admissible only after character of W for
truthfulness has been attacked. [608(a)] (2)
Evidence of prior consistent statements (any
statement made out of court before W's
testimony that reinforces or supports W's
testimony--doesn't have to be made under
oath--however, must be made before W had
any motive to lie!) are admissible when
impeached for prior inconsistent statement.
[801(d)(1)(B)]
Impeachment w/Prior Consistent Statement
Cant Always be used...CANNOT be used
with 609, 608(a), 608(b), or Bias.
Hearsay
Out of court statement made by a declarant offered
in evidence to prove the truth of the matter asserted.
Hearsay exceptions that apply without
regard to whether the declarant is available
as a W
23 categories + Residual! [803]
Present Sense Impression: Statement describing
things as they are seeing them or immediately
thereafter. (Seconds ok; minutes not ok)
Excited Utterance: Speaking about an event out of
excitement, shock, or in reaction to having been
startled! (Statement must be made while person is
still operating under stress or excitement)
Consider: Nature of the event, lapse of time, words
used, etc.
Current Mental, Emotional or Physical Condition:
Then existing mental, emotional, or physical
condition. Includes a person's (forward looking)
plan or intention. (Can show another persons plan
if related to person's plan!) But recollection of past
conduct (backward looking) not ok! (Hillman-Future
plans used to prove matters which are in issue)
Medical Diagnosis or Treatment: Includes
everything (including cause of the problem)
reasonably pertinent to diagnosis or treatment.
Past Recollection Recorded: (a) W once had
knowledge about the subject, (b) W doesn't have
adequate recollection to testify fully & accurately (c)
W made a record &, when they made the record,
had a fresh memory of the information. Record will
be read to the jury so jury can make use of the info
the exact same way they would have made use of
W's testimony. The record itself cannot be admitted
into evidence.
Business Records: (a) Made as part of the usual
course of business, (b) a person with knowledge of
what the record says made the record or reported
the info to the person who made the record, (c)
was made near the time of the occurrence of what
it describes. Exclude if circumstances indicate lack
of trustworthiness or source of info seems
unreliable. (Remember: If recorded by someone
not part of the business, then cannot be let in under
this exception.)
Absence of Entry in Records: Can be admitted as
evidence!
Public Records: Remember: Police reports don't
count!
Ancient Documents: (a) document in existence for
20+ years, (b) authenticity of which is established.
Additional categories include (among others) generally
used published material, learned treatises, etc.
VI. Witnesses
No testimony relating to
the "mental process" /
jury deliberations.
Testimony about
outside inuences or
mistakes in lling out
forms okay. [606(b)]
Evidence of Conviction of Certain Crimes [609]
Anyone who would steal would probably lie...
Note: NOT Character evidence by denition--offered to show lack of credibility
Did the crime involve dishonesty or false statements? [609(a)(2)]
Shoplifting (no); Willful failure to le tax return (yes); distributing cocaine (no); forgery
(yes); burglary (no); conspiracy to distribute drugs (no); murder (no); obstruction of
justice (maybe); misrepresenting self as a cop (yes)
Also consider:
Bias [607] A cross examiner is entitled to ask questions
that will show any possible source of bias. Family ties,
nancial ties, etc.
Contradiction [607] If some of W's testimony is factually
incorrect, proof that those portions were wrong supports a
conclusion that the other parts were false.
Has it been 10+ years
since the conviction or the
release from jail? [609(b)]
Inadmissible
unless its probative
value substantially
outweighs its prejudicial
effect and proper notice
is given. [609(b)]
Prior Inconsistent Statements
[607, 613, 801(d)(1)(A)]
Focus on the words coming out of W's mouth.
On cross, can ask W about any prior inconsistent
statement. The cross-examiner can introduce extrinsic
evidence showing the prior inconsistent statement (if rst
give W opportunity to explain prior statement & opposite
party is given opportunity to interrogate W). [613]
Prior statements made under oath in some proceeding
CAN be used as a prior statement (are not hearsay).
[801(d)(1)(A)]
When Offered: Other Party Should Make Two Objections:
(1) Hearsay 801(c)--offered for the truth of the matter or for
showing an inconsistency?
(2) Proper foundation not laid--must lay the proper
foundation, which allows W to explain the inconsistency
Laying the foundation:
1. Ask W about time of earlier statement
2. Place earlier statement was made
3. To whom the statement was made
4. General subject matter of the statement
Allows W to remember the statement and explain the
inconsistency...If W does not deny the earlier statement,
the impeaching party got what they needed and the case
moves on, if not, then extrinsic evidence can be admitted.
General Notes
a. Sometimes silence when it would be natural to speak
can be used to show an inconsistency,
b. Refusal to to speak or claims that W cannot remember,
is NOT a statement of inconsistency!
Hearsay exceptions that apply without
regard to whether the declarant is available
as a W
23 categories + Residual! [803]
Present Sense Impression: Statement describing
things as they are seeing them or immediately
thereafter. (Seconds ok; minutes not ok)
Excited Utterance: Speaking about an event out of
excitement, shock, or in reaction to having been
startled! (Statement must be made while person is
still operating under stress or excitement)
Consider: Nature of the event, lapse of time, words
used, etc.
Current Mental, Emotional or Physical Condition:
Then existing mental, emotional, or physical
condition. Includes a person's (forward looking)
plan or intention. (Can show another persons plan
if related to person's plan!) But recollection of past
conduct (backward looking) not ok! (Hillman-Future
plans used to prove matters which are in issue)
Medical Diagnosis or Treatment: Includes
everything (including cause of the problem)
reasonably pertinent to diagnosis or treatment.
Past Recollection Recorded: (a) W once had
knowledge about the subject, (b) W doesn't have
adequate recollection to testify fully & accurately (c)
W made a record &, when they made the record,
had a fresh memory of the information. Record will
be read to the jury so jury can make use of the info
the exact same way they would have made use of
W's testimony. The record itself cannot be admitted
into evidence.
Business Records: (a) Made as part of the usual
course of business, (b) a person with knowledge of
what the record says made the record or reported
the info to the person who made the record, (c)
was made near the time of the occurrence of what
it describes. Exclude if circumstances indicate lack
of trustworthiness or source of info seems
unreliable. (Remember: If recorded by someone
not part of the business, then cannot be let in under
this exception.)
Absence of Entry in Records: Can be admitted as
evidence!
Public Records: Remember: Police reports don't
count!
Ancient Documents: (a) document in existence for
20+ years, (b) authenticity of which is established.
Additional categories include (among others) generally
used published material, learned treatises, etc.
Subsequent Remedial
Measures [407]
Does the evidence relate to measures
taken after an injury or harm allegedly
caused by an event that, if taken
previously, would have made the injury
or harm less likely to occur? [407]
Focus on the timing: If the change was
made before the accident, it can be
admitted for any purpose!
Admissible!
NO
Is the evidence being
offered for another purpose,
such as proving ownership,
control, or feasibility of
precautionary measures, if
these are controverted, or
for impeachment? [407]
YES
Admissible!
YES
Inadmissible The evidence is
inadmissible to prove negligence,
culpable conduct, a defect in a
product, a defect in a product's
design, or a need for a warning or
instruction.
NO
IV. Relevancy & Limits
(B)(2) Legal Relevance
Testimonial Competence
[701, 702, 703, 704]
Every person is competent to be a witness
except as otherwise provided in these rules...
Expert
Testimony
Opinion
Testimony
Juror?
No testimony relating to
the "mental process" /
jury deliberations.
Testimony about
outside inuences or
mistakes in lling out
forms okay. [606(b)]
Two preliminary questions [701]:
1. Is the testimony in the form of an opinion?
2. Is the opinion one that is (a) rationally based on
the perception of the witness, (b) would be helpful
to a clear understanding of the witness' testimony
or the determination of a fact in issue, and (c) is
not based on scientic, technical or other
specialized knowledge within the scope of 702?
Admissible!
BUT W must have
personal knowledge [602]
(see laying the foundation
for character Ws)
YES
Inadmissible unless
W is qualied to testify
as an expert [See 702]
NO
Preliminary questions about expert
[702, 104(a)] Judge decides whether
person is an expert under 104(a):
1. Is the testimony offered as the
testimony of an expert W?
2. Is the expert qualied by knowledge,
skill, experience, training or education?
[702]
3. Will the subject of the testimony
assist the trier of fact? [702]
Inadmissible!
No
Preliminary Questions About Evidence:
1. Testimony based on sufcient facts or data
(rsthand observation, hypothetical question, facts
or data obtained in any way so long as reasonably
relied on by experts in the eld)?
2. Testimony is the product of reliable principles &
methods? and
3. Has the W applied the principles & methods
reliably to the facts of the case?
Remember: Expert CAN base opinion on
inadmissible information as long as reasonably
relied on by experts in the eld! On cross, W can
be questioned about the underlying facts or data.
Inadmissible!
NO
Admissible unless W is testifying
re D's mental state or condition
(constituting an element of a crime
charged or a defense thereto) in a
criminal trial [704] or its probative
value is substantially outweighed
by unfair prejudice. [403]
YES
YES
VII. Opinions & Experts
Authentication [901]
Evidence sufcient to support a nding that the
matter in question is what proponent claims.
Authentication & identication is a condition
precedent before evidence is admissible.
Must: Provide a basis for the fact nder to
believe that the evidence is what the proponent
claims it to be.
Remember: The jury doesn't have to believe
the evidence even if it has been authenticated!
Methods to Satisfy Requirement
1. Testimony of W w/knowledge
2. Non-expert opinion on handwriting (based on familiarity not acquired for purposes of litigation)
3. Comparison by trier of fact or expert W with evidence that has already been authenticated
4. Distinctive characteristics / circumstances (appearance, substance, contents, patterns--the way they
write is unique to one person; can also be used with phone calls)
4. Voice identication (opinion based on hearing the voice at any time under circumstances connecting it with
the alleged speaker; note: self-identication "my name is X" is generally not enough--must recognize voice)
5. Telephone Conversation (evidence call made to number assigned by phone company (a) person:
circumstances, including self-ID, show the person answering to be the one called, or (B) business: call made to
a place of business & conversation related to business reasonably transacted over the telephone)
5. Public records (writing authorized by law to be recorded or led & in fact recorded or led in public ofce)
6. Ancient documents (found in place likely to be authentic & condition doesn't create suspicion; do not have
to account for its whereabouts)
7. Process or system
8. Any other method provided by statute
8. Self-Authentication--ONLY Documents (See below)
Self-Authenticating Documents [902]
Extrinsic evidence of authenticity is not required as a
condition precedent to admissibility for the following:
Domestic public document w/seal (govt. documents)
Certied foreign documents
Certied copies of public records
Ofcial publications (books, pamphlets, or other
publications issued by public authority)
Newspapers & periodicals
Trade inscriptions (signs, tags, labels, afxed in the course
of business & indicating ownership, control, or origin)
Acknowledged documents
Commercial paper
Certied domestic records of regularly conducted activity
Identication of Non-Self-Authenticating Things [901]
Two Methods: (1) If the item is unique (2) item is common.
Unique: [901(b)(4)] Lay the foundation by showing the
following things: (1) the object has a unique characteristic
of some kind (2) the W on the stand observed that unique
characteristic on a previous occasion (3) W identies the
exhibit as the object seen before (4) W states that the
object is in the same condition as previously observed.
Common: Chain of Custody Doctrine (account for where
the object has been; each link in the chain is a person who
had the evidence; must account for every single place
where the evidence was) Look for: Links in the chain!
Best Evidence Rule [1001-1004]
If the contents of a document,
photograph, or recording will be the
subject of testimony, the party offering
the testimony must provide the
"original."
Note: If chattel has writing on it, the
BER applies! However, if obtaining the
chattel is too burdensome, judge has
the discretion to allow secondary
evidence. (Ex. VIN #)
Remember: BER only applies when a
party seeks to prove the contents of
the writing (Not when evidence is used
to refresh memory, etc.)
Ask: Is the party trying to prove the
contents of the document?
IX. Authentication & ID
Inadmissible unless offered
against accused in a criminal
prosecution for sexual assault
or child molestation & the prior
similar offense meets the
standard of an "offense of
sexual assault" [413; 414]
Identication of Non-Self-Authenticating Things [901]
Two Methods: (1) If the item is unique (2) item is common.
Unique: [901(b)(4)] Lay the foundation by showing the
following things: (1) the object has a unique characteristic
of some kind (2) the W on the stand observed that unique
characteristic on a previous occasion (3) W identies the
exhibit as the object seen before (4) W states that the
object is in the same condition as previously observed.
Common: Chain of Custody Doctrine (account for where
the object has been; each link in the chain is a person who
had the evidence; must account for every single place
where the evidence was) Look for: Links in the chain!
Best Evidence Rule [1001-1004]
If the contents of a document,
photograph, or recording will be the
subject of testimony, the party offering
the testimony must provide the
"original."
Note: If chattel has writing on it, the
BER applies! However, if obtaining the
chattel is too burdensome, judge has
the discretion to allow secondary
evidence. (Ex. VIN #)
Remember: BER only applies when a
party seeks to prove the contents of
the writing (Not when evidence is used
to refresh memory, etc.)
Ask: Is the party trying to prove the
contents of the document?
Is the "original" being offered? [1001(3)]
1. Document or recording itself
2. Any counterpart meant to be an original
3. Photo negative or print
4. Readable computer output
Admissible!
YES
Is a "duplicate" being offered
into evidence? [1003]
Note: The difference between
a duplicate & a copy. Copies
are not admissible under 1003.
NO
Admissible to the same
extent as the original!
UNLESS (1) genuine question
is raised as to the authenticity
of the original or (2) under the
circumstances it would be
unfair to admit the duplicate in
lieu of the original [1003]
YES
Has the original been lost or
destroyed? [1004(1)]
Note: Must do due diligence search!
NO
Consider: Can you
get it admitted under
a 1004 exception?
Is the original unobtainable by any other
judicial process or procedure? [1004(a)]
or
Is the original in the possession of
opponent & opponent was put on notice
that the contents would be a subject of
proof at the hearing & they do not
produce original for hearing? [1004(3)]
NO
Other evidence is admissible
to prove the writing, unless the
proponent lost or destroyed
them in bad faith.
YES
Admissible!
Other evidence is admissible
to prove the writing.
Inadmissible! Other evidence is
NOT permitted to prove the writing,
unless the writing is collateral (not
closely related to a controlling issue)
to a controlling issue in the dispute.
NO YES
Analysis when
BER Applies
X. Contents
Text
Hearsay
Out of court statement made by a declarant offered
in evidence to prove the truth of the matter asserted.
Breaking it down...
Statement: (1) oral or written assertion, (2)
nonverbal conduct of a person--if it is
intended by the person to be an assertion.
Declarant: Person who makes a statement
Assertion: Not dened. Nothing is an
assertion unless it is intended to be one. A
person makes an assertion when they speak,
write, act, or fail to act with the intent to
express some fact or opinion. (You can have
implied assertions--so long as the person
intended their conduct to asset something.)
Out of Court: If it occurs before the
proceeding. A pre-trial deposition is "out of
court" when offered at trial.
Offered for the Truth of the Matter Asserted:
Inferred--Does it matter whether or not the
statement is accurate?
Dangers of Hearsay: (1) inability to cross-
examine regarding memory, (2) sincerity, (3)
perception, (4) ambiguity.
Exemptions from the denition of hearsay for certain out-
of-court statements offered for the truth of the matter
they assert (NOT HEARSAY) [801]
Out of Court Statement of ID: If declarant testies at the trial or
hearing & is subject to cross concerning the statement, then a
statement of ID of a person after perceiving them is not hearsay.
Party Admission: (A) party's own statement; (B) adoptive
admission---requires (1) evidence the statement was made (2)
statement was understood by party (3) there was no impediment to
that person responding (4) the statement is the kind that would call
for a denial; (C) authorized admissions--lawyer; (D) agent--
employee; (E) co-conspirator--during the course & in furtherance of
the conspiracy [must have corroborating evidence of the
conspiracy, however, conspiracy doesn't have to be a charge
against D]. [Note: Determine all preliminary questions under 104(a)]
Statement by Party Opponent: (1) a party's own prior statement, (2)
adoptive admission, (3) statement by authorized agent, (4)
statement by agent within scope of agency or employment, (5)
statement by a coconspirator of a party during the course and in
furtherance of the conspiracy. Applies to anything a party to a
lawsuit has ever said that is relevant against them at trial.
Hearsay exceptions that apply without
regard to whether the declarant is available
as a W
23 categories + Residual! [803]
Present Sense Impression: Statement describing
things as they are seeing them or immediately
thereafter. (Seconds ok; minutes not ok)
Excited Utterance: Speaking about an event out of
excitement, shock, or in reaction to having been
startled! (Statement must be made while person is
still operating under stress or excitement)
Consider: Nature of the event, lapse of time, words
used, etc.
Current Mental, Emotional or Physical Condition:
Then existing mental, emotional, or physical
condition. Includes a person's (forward looking)
plan or intention. (Can show another persons plan
if related to person's plan!) But recollection of past
conduct (backward looking) not ok! (Hillman-Future
plans used to prove matters which are in issue)
Medical Diagnosis or Treatment: Includes
everything (including cause of the problem)
reasonably pertinent to diagnosis or treatment.
Past Recollection Recorded: (a) W once had
knowledge about the subject, (b) W doesn't have
adequate recollection to testify fully & accurately (c)
W made a record &, when they made the record,
had a fresh memory of the information. Record will
be read to the jury so jury can make use of the info
the exact same way they would have made use of
W's testimony. The record itself cannot be admitted
into evidence.
Business Records: (a) Made as part of the usual
course of business, (b) a person with knowledge of
what the record says made the record or reported
the info to the person who made the record, (c)
was made near the time of the occurrence of what
it describes. Exclude if circumstances indicate lack
of trustworthiness or source of info seems
unreliable. (Remember: If recorded by someone
not part of the business, then cannot be let in under
this exception.)
Absence of Entry in Records: Can be admitted as
evidence!
Public Records: Remember: Police reports don't
count!
Ancient Documents: (a) document in existence for
20+ years, (b) authenticity of which is established.
Additional categories include (among others) generally
used published material, learned treatises, etc.
Is the "original" being offered? [1001(3)]
1. Document or recording itself
2. Any counterpart meant to be an original
3. Photo negative or print
4. Readable computer output
Has the original been lost or
destroyed? [1004(1)]
Note: Must do due diligence search!
Is the original unobtainable by any other
judicial process or procedure? [1004(a)]
or
Is the original in the possession of
opponent & opponent was put on notice
that the contents would be a subject of
proof at the hearing & they do not
produce original for hearing? [1004(3)]
VIII. (1) Hearsay
Hearsay exceptions that apply without
regard to whether the declarant is available
as a W
23 categories + Residual! [803]
Present Sense Impression: Statement describing
things as they are seeing them or immediately
thereafter. (Seconds ok; minutes not ok)
Excited Utterance: Speaking about an event out of
excitement, shock, or in reaction to having been
startled! (Statement must be made while person is
still operating under stress or excitement)
Consider: Nature of the event, lapse of time, words
used, etc.
Current Mental, Emotional or Physical Condition:
Then existing mental, emotional, or physical
condition. Includes a person's (forward looking)
plan or intention. (Can show another persons plan
if related to person's plan!) But recollection of past
conduct (backward looking) not ok! (Hillman-Future
plans used to prove matters which are in issue)
Medical Diagnosis or Treatment: Includes
everything (including cause of the problem)
reasonably pertinent to diagnosis or treatment.
Past Recollection Recorded: (a) W once had
knowledge about the subject, (b) W doesn't have
adequate recollection to testify fully & accurately (c)
W made a record &, when they made the record,
had a fresh memory of the information. Record will
be read to the jury so jury can make use of the info
the exact same way they would have made use of
W's testimony. The record itself cannot be admitted
into evidence.
Business Records: (a) Made as part of the usual
course of business, (b) a person with knowledge of
what the record says made the record or reported
the info to the person who made the record, (c)
was made near the time of the occurrence of what
it describes. Exclude if circumstances indicate lack
of trustworthiness or source of info seems
unreliable. (Remember: If recorded by someone
not part of the business, then cannot be let in under
this exception.)
Absence of Entry in Records: Can be admitted as
evidence!
Public Records: Remember: Police reports don't
count!
Ancient Documents: (a) document in existence for
20+ years, (b) authenticity of which is established.
Additional categories include (among others) generally
used published material, learned treatises, etc.
Hearsay exceptions that apply only if the
declarant is "unavailable" [804]
Unavailable = Testies to lack of memory of the subject
matter; dead or then existing mental or physical illness;
refuses to testify about the subject matter of the
statement
NOT "unavailable" if due to wrongdoing of a party
Former Testimony: (a) given under oath (b) subject to
cross examination at a previous proceeding by the
party against whom the evidence is offered. Motive to
cross-examine similar? Earlier trial of similar
importance? Similar consequences at stake?
Dying Declaration: (a) reasonable belief death is
imminent (b) only for their belief about the cause of
their impending death. Homicide or civil cases.
Statement Against Interest: When D made statement, it
had the potential to harm an important interest (money,
property, penal) of the D. (What would a reasonable
person in D's position think?) UNLESS non-self-
inculpatory, then cannot be admitted under this
rationale (one of the most effective ways to lie is to mix
falsehood with truth).
Forfeiture by Wrongdoing: Decreases incentive to
harm or intimidate W!
Residual Exception: Catch all.
Getting Around the Hearsay Rule: Examples
when NOT offered for truth of the matter
asserted (non-hearsay uses of out-of-court
statements)
Effect on Listener: Introduced to prove the state of
mind induced in the listener by the statement. State
of mind must be relevant! Or notice, threat,
Acts of Independent Legal Signicance: Words
operate independently of the speaker's belief or
intended meaning. Some words are the legal event.
Inconsistent Statements offered to Impeach: Used
to show W cannot be believed because they have
two different stories--not for the truth.
Nonassertive Words: Ouch!
Assertions Offered as Circumstantial proof of
knowledge: Such as describing the apartment of
your molester
Remember-Judge, if asked, must give a limiting
instruction conning jurors to the permitted
nonhearsay use of the words! Limiting instructions
prevent or discourage improper use, reducing
likelihood of prejudice or jury confusion. However,
cannot really remove prejudice. [105]
Confrontation Clause
6th Amendment: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the
W's against him."
Crawford Rule:
(1) Criminal cases
(2) When used against D
(3) Has to be a hearsay statement [801(c)] or Exemption [801(d)]
(4) that is TESTIMONIAL (prior testimony at a preliminary hearing before a grand jury or at a former trial;
police interrogations; primary purpose for the assistance of an ongoing emergency-Davis; not casual
remarks to acquaintance; not offhand, overheard remarks; not statements in furtherance of a conspiracy).
Not admissible under the confrontation clause, UNLESS (1) forfeiture, (2) D takes stand at trial, (3) D had
prior opportunity to cross examine the D concerning the statement, or (4) dying declaration [maybe].
VIII. (2) Exceptions/Not TOMA