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MBE EVIDENCE

PROFESSOR DAVID SCHOTT


UNIVERSITY OF DENVER STURM COLLEGE OF LAW
CHAPTER 1:

INTRODUCTION AND PRESENTATION OF EVIDENCE

A. FACTUAL SCENARIO TO BE USED THROUGHOUT THE LECTURE


The assassination of Abraham Lincoln on April 14, 1865:
President Lincoln was watching a play called Our American Cousin at Fords Theatre in
Washington, D.C.
o
o
o

He was accompanied by his wife, Mary Todd Lincoln, in the Presidents box, as well as Major
Henry Rathbone and his fiance, Clara Harris.
History tells us that the assassin was John Wilkes Booth.
Booth shot Lincoln in the back of the head with a one-shot, blue-smoke Derringer.

After Booth shot the President, he leapt over the balcony and onto the stage, which was about
15 or 20 feet below.
o
o

He caught his spur on the bunting or draping of the Presidents box.


He hit the stage oddly, shattered his leg, stood up, held up a knife, and yelled Sic semper
tyrannus, which is Latin for thus to tyrants.

President Lincoln died the next morning, April 15, 1865


Some of the folks involved as co-conspirators in the crime were Mary Surratt, John Surratt,
George Atzerodt, David Harold, and Louis Powell.
Secretary of War Edwin Stanton was in charge of investigating the assassination.
John Wilkes Booth was killed about two weeks later on April 26, 1865, at Garrets Farm.
o

His journal and his Derringer were found on his person.

B. Presentation of Evidence
Exam Tip 1: On the MBE, the Federal Rules of Evidence (FRE) govern. Watch
out for answer choices that may be correct under common law, but are
inconsistent with the federal rules.

The Role of the Judge and the Jury


The judge is the trier of ______________; the jury is the trier of _______________.
The judge determines which evidence is admissible; the jury determines the credibility or
___________________ assigned to that evidence. (FRE 104)

C. Rulings on Evidence (FRE 103)


If a ruling is erroneous, the party must ____________________ the court.
Two ways to tell a judge that a ruling is erroneous: An _________________________ and an
offer of _____________________.
1. Objection: Used if evidence is being admitted (preventative measure)
Counsel must provide the ___________________________________ for an objection.
Example 1:

Objection. Your Honor, that is hearsay.

Example 2:

Objection. Your Honor, that is speculation.

Remember: An attorneys questions are not evidence.


2. Offer of Proof: If evidence is excluded, counsel must preserve the objection for the
appellate court.
Offers of proof must be made __________________________ the jurys presence.
Example 3:

Your Honor, Id like to make an offer of proof. If the witness had

been allowed to testify, she was going to say that she saw a man who looked
like John Wilkes Booth jump over the balcony and run across the stage yelling,
Sic semper tyrannus.

Counsel must explain the __________________________ and the


___________________________________ of the testimony.
Once a judge has made a _______________________ ruling, there is no need to renew the
objection.
o Exception: An attorney need not make an objection and may still appeal when the
_______________________________________________ is invoked (FRE 103).
The error is so ______________________ that an objection is not necessary.
A ______________________________ right is affected, and the grounds are reversible.
Evidence may be let in for limited admissibility.
Exam Tip 2: MBE questions may ask whether evidence is admissible for two
purposes or just one purpose. Remember that evidence can be admitted for
just one purpose.
Example 4:

An out-of-court statement that is not offered for the truth of the

matter asserted, but is being offered for identification purposes.

D. The Rule of Completeness (FRE 106)


Allows an _______________________ or otherwise inadmissible portion of a statement to be
admitted

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Example 5:

A witness reads a reply letter. Opposing counsel may say,

Objection. Your Honor, pursuant to the Rule of Completeness, we ask that the
original letter also be entered into evidence.

Opposing counsel can wait until cross-examination to bring in the omitted portion.

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CHAPTER 2:

MODE OF PRESENTATION

A. Judicial Notice
The courts acceptance of a _______________ as true without requiring formal
________________________
o

Only applies to adjudicative facts, not legislative facts


Example 6:

th

The fact that April 14 , 1865, was a Friday is an adjudicative fact.

The court can take judicial notice of this fact.


Example 7:

The exception to the common-law marital privilege is a legislative

fact. The court cannot take judicial notice of this fact.

o
o
o

Cannot be subject to any _____________________________ dispute. They must be


________________________________________________.
Judge cannot take judicial notice based solely on the ________________________
knowledge
Fact must be ___________________________ and readily determinable
Must be from a source that cannot be ________________________________ questioned

Procedure:
o A party can ask a court to judicially notice a fact ____________________________________
during the trial; or
o Court can take judicial notice __________________________________________
Exception: Court may not take judicial notice against a ___________________________
_____________________________ for the first time on appeal
o Court must take judicial notice if:
Requested; and
Necessary information is given to court
Effect of Judicial Notice
o
o

Civil juries _____________________ accept that fact as true. (FRE 201)


Criminal juries _____________________________________ accept that fact as true.

B. The Mode and Order of Presentation of Evidence (FRE 611)


The prosecution (or the plaintiff) goes first and presents its case-in-chief.
The defendant then presents his case-in-chief.
After the defense rests, the prosecution (or the plaintiff) gets to present rebuttal witnesses.
Remember, in a civil case there are two parties the plaintiff and the defendant.
In a criminal case, there is only one party the defendant. The state, people,
prosecution, government is not a party.

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The judge may question witnesses and may call witnesses. Judges may also object.
Examination of Witnesses:
o

The scope of cross-examination is limited to two things:


The scope of direct; and
___________________________________

o
o

Credibility is _________________________ at issue.


The defendant does not waive his 5th Amendment privilege by answering preliminary
questions

Form of Questions:
1. Leading Questions: Suggests the ____________________ in the question
General Rule: _________________________________________ on direct
POP QUIZ
1) What is the color of the sky? Is this leading? ____________________.
2) The color of the sky was blue, right? Is this leading? ____________________.
3) Is the color of the sky blue? Is this leading? ___________________.
Exceptions:
_________________________________ or basic information.
Example 8: Your name is Major Rathbone? You are a Major in the
Union Army? You were in the viewing box at Fords Theater on April
th

14 ? These are all foundational questions.

A witness who has trouble communicating (i.e., a child).


Adverse or __________________ witness on direct.
General Rule: Leading questions _____________________________________ on crossexamination
2. ____________________________ Questions: Require multiple answers
Example 9:

Mr. Booth, you were an actor, you were at Fords Theater on the
th

night of April 14 , you had rented a horse, and you shot President Lincoln?

3. Questions that Assume ___________________ Not in Evidence


Example 10: Major Rathbone, after John Wilkes Booth killed President Lincoln
with a blue-smoke Derringer, you lunged at him?

4. Argumentative Questions: Intended to provoke an _____________________________


Example 11: Mr. Booth, when did you start being a murderous, Southern
rebel?

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5. Questions that Call for a ______________________________


The witness is not qualified.
Example 12: Major Rathbone, how did Mrs. Lincoln feel after her husband
was shot?

6. Repetitive Questions: Have been asked and ___________________________


Remember that if opposing counsel asks a series of questions on direct, one is still able to
explore that on cross.
Example 13: The other side has asked Major Rathbone about where he was
sitting on direct examination. I can ask, Major Rathbone, you said a moment
ago that you were sitting in the viewing box with the Lincolns at the time of the
assassination?

Exclusion of Witnesses: (Rule 615)


o

Witnesses shall be excluded:


Upon the motion of a party; or
Upon the courts own motion

o
o

Prevents contamination
Exceptions:
A party;
Only one party in a criminal case (the defendant)
An officer or employee who is the ____________________________________________
of a corporation;
_____________________ witnesses; and
Victims

C. Burdens and Presumptions


Two burdens: The burden of ___________________________________ and the burden of
______________________________________________
1. The Burden of Production
The party must make a __________________________________ case.
The party with this burden must present enough evidence that the reasonable trier of
fact could infer that the facts had been proved.
LOVID Location, Offense, Venue, Identification of the Defendant, and the Date of
the alleged crime sufficient facts to present a prima facie case

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2. The Burden of Persuasion (standard of proof)


Degree to which legally sufficient evidence must be presented
This burden does NOT shift
The _____________________________________ determines whether this burden has
been met
In a civil trial: By a ______________________________________ of the evidence (more
likely than not that a fact which the plaintiff is presenting is true).
Exception: Fraud claim (clear and convincing evidence)
In a criminal trial: Beyond a reasonable ______________________.

D. Presumptions
A conclusion that the trier must draw regarding a basic fact
Example 14: The defendant is charged with murder. A presumption arises that
the victim is dead when the person has been missing for more than seven years.

Two types:
o

____________________________________; and
If no contrary evidence is presented, a judge must instruct the jury to accept the
presumption
Shifts the burden of production to other side

_____________________________________ (irrebuttable)
May not be challenged
Example 15: A child under four years of age lacks the ability to form the intent
necessary to commit an intentional tort. This is a conclusive presumption. No
contrary evidence is permitted.

The Erie Doctrine applies if state law governs the effect of presumptions
Destruction of Evidence
o

Raises presumption that it would have been unfavorable to the destroying party
Example 16: John Wilkes Booth purposefully destroys evidence. This raises a
presumption that what he destroyed would have hurt him at trial.

Party seeking to use presumption must show:


Destroyed intentionally;
Evidence was _______________________________; and
Victim acted with due diligence to prevent or recover

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CHAPTER 3:

RELEVANCE AND CHARACTER EVIDENCE

A. General Considerations (FRE 401 and 402)


All relevant evidence is admissible, unless it is excluded by:
o
o
o

Rule;
Law; or
Constitutional provision

What does it mean for evidence to be relevant? It must be both ______________________ and
__________________________.
o
o

Probative: Any _________________________ to make a fact more or less probable than it


would be without that evidence.
Material: It is a fact of __________________________________

Evidence need not prove an element by itself


o A brick is not a wall
Direct vs. Circumstantial Evidence
o

Direct: Evidence that is identical to the factual proposition it is offered to prove


Example 17: An _______________________________ account. I saw John
Wilkes Booth jump from the viewing box down to the stage.

Circumstantial: Evidence that _________________________ proves a factual proposition


through _______________________________
Example 18: You go to bed tonight and there is no snow on the ground. When
you wake up in the morning, there are six inches of snow on the ground.
Though you did not see it snow, circumstantially it is reasonable for you to
conclude that it snowed during the night.
Example 19: You go home tonight and park your car in front of your house.
When you wake up in the morning, your car is gone. Can you conclude your car
was stolen? Perhaps. Maybe your car was towed or you forgot to put on the
emergency brake, and the car rolled down the street. Maybe you have a 16year-old kid who decided to buy Mom and Dad donuts and coffee for breakfast.
Example 20: An audience member at Fords Theater did not see John Wilkes
Booth shoot President Lincoln. But, he heard the shot, looked up at the viewing
box, and saw John Wilkes Booth holding a gun with smoke coming out of it.

POP QUIZ
Can circumstantial evidence be more probative than direct evidence?

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Example 21: It would be more persuasive to show that a one-shot, blue-smoke


Derringer was found in John Wilkes Booths backpack when he was arrested
than to present an eyewitness who says, I saw John Wilkes Booth jump from
the balcony to the stage. But I wasnt wearing my eyeglasses, and Im pretty
much blind without them.

FRE 403: Relevant evidence may be excluded if its _____________________________ value is


substantially outweighed by the danger of:
o Unfair _______________________________;
o Confusing the issues;
o Misleading the _____________________;
o Undue delay, waste of time; or
o Needless presentation of ____________________________ evidence.
Example 22: The prosecution wants to present 28 pictures of Abraham
Lincolns dead body to the jury. This is cumulative evidence for a non-expert
witness.

When relevant evidence depends on the existence of another fact, it is admissible if sufficient
proof of the other fact is introduced. Standard is by a preponderance of evidence.
Example 23: Mary Todd Lincoln is sitting in viewing box. She hears someone
yell, Sic semper tyrannus, but she does not know who it is. Someone else
could testify that they saw John Wilkes Booth yell that. The relevance and
admissibility of Mary Todd Lincolns testimony is dependent upon the other
witness testimony.

What if irrelevant evidence is admitted?


o Curative admission: The court may allow additional irrelevant evidence in to rebut the
irrelevant evidence.
o Whether an objection was timely is a factor in determining whether to allow a cure.
Foundation: You must lay a foundation for relevant evidence.
Example 24: Authentication of a photo. Do you recognize what I placed in
front of you? What is this? Does this fairly and accurately represent what
Fords Theater looked like on the evening of the assassination? The attorney
can then seek to introduce the photo into evidence.

B. Character Evidence
General information about a persons behavior
Example 25: He is a bad parent. She is an inattentive driver. Hes a criminal.
She kicks puppies.

Typically _______________________________.

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Civil Cases: (FRE 404)


o

_______________________________ to prove conforming conduct


Example 26: A plaintiff cannot produce evidence that the defendant is a
reckless driver to prove that the defendant drove recklessly on the day in
question.
Example 27: Mary Todd Lincoln later sues John Wilkes Booth in civil court.
She cannot call John Atzerodt to the stand and ask him to testify that John
Wilkes Booth was a puppy kicker, he was violent, and therefore he killed
Abraham Lincoln.

Exceptions:
Past sexual assault and molestation by defendant in sexual assault and molestation
cases
When character is an ______________________________ element
Example 28: Defamation, negligent hiring, negligent entrustment, child
custody, etc.

Criminal Cases: (FRE 404(a))


o

The defendants character is __________________________________ to prove propensity.


Example 29: The prosecution may not present evidence that John Wilkes Booth
is violent to show that he acted violently on the day of the assassination.

Exception: The defendant may present ___________________________________________


_______________________ that is inconsistent with the type of crime that is being charged.
Example 30: The defense may present evidence that John Wilkes Booth was
non-violent.

Must be pertinent to the crime charged


Example 31: The defense could not present evidence that Booth was a good
speller or that he was good with finances.

Form of evidence:
Must be through reputation or _______________________ testimony
Example 32: Booths fiance could testify that Booth had a reputation in the
theater community for being non-violent.

o
o

The prosecution may introduce character evidence to rebut the defendants evidence.
Must relate to the ________________________ character trait
The defendant does not open the door to the prosecutions attack simply by
_______________________________.

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CHAPTER 4:

CHARACTER AND HABIT EVIDENCE

A. Character Evidence (cont.)


Victims Character
o

A criminal defendant may introduce evidence of the victims character that is relevant to
one of the ______________________________ asserted.
Example 33:

John Wilkes Booth claims that Abraham Lincoln attacked him.

This gives defense counsel the opportunity to present evidence claiming that
Lincoln was violent.

o
o
o

Form: Defendant can use __________________________ or _________________________


evidence
The prosecution can offer good character evidence only after the defendant has attacked
the victims character.
Methods of Proving: (FRE 405(a))
Reputation;
Witness opinion; or
Prior specific acts
Example 34: George Atzerodt testifies in rebuttal for the prosecution that John
Wilkes Booth had a reputation for violence.

Impeachment of a Witness: (FRE 607-609)


o Character evidence of witnesss untruthfulness is relevant to impeach
o Applies to defendant if defendant testifies
Specific Prior Acts of a Witness: (FRE 404(b))
o

Prior bad act is _________________________________ to prove conforming conduct


(propensity)
Example 35: Prosecution cannot show that John Wilkes Booth previously
th

attacked a man to prove that Booth attacked the President on April 14 .

Exceptions: Evidence used to show:


___________________________
Opportunity
Intent
_________________
________________________
Lack of ______________________________
Preparation
Plan

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Knowledge
Absence of ________________________________
Example 36: The prosecution seeks to introduce evidence that John Wilkes
Booth previously attacked a man in Fords Theater, in the viewing box where
President Lincoln was sitting. The defense will object that this is improper
character evidence. The prosecution can respond that the evidence is offered to
show opportunity, plan, or preparation.

o
o

Remember MIMIC: Motive, Intent, Absence of Mistake, Identity, Common Plan


Prosecution must give _________________________________ notice
Form of Prior Bad Acts:
Civil Cases:
Specific instances of conduct;
Reputation;
Opinion
Example 37: Mary Todd Lincoln sues Booth in civil court, and seeks to
introduce evidence that Booth previously attacked a man in the viewing box.
This is admissible if Booth claimed lack of opportunity.

Criminal Cases:
Specific instances of conduct are _________________________________________
Exceptions:
o

May be used to prove something other than propensity (MIMIC)

Example 38: John Wilkes Booths fiance testifies that Booth was a very
peaceful, non-violent man. Prosecution cannot present evidence of a prior
attack in the box, because it is a specific instance of conduct. However, the
prosecution may use evidence of the prior attack for MIMIC.

May be used to cross-examine a character witness

Example 39: John Wilkes Booths fiance testifies that Booth was a very
peaceful, non-violent man. The prosecution can cross-examine her on Booths
previous attack of a man in that viewing box.

B. Habit Evidence (FRE 406)


Evidence of a persons habit is ______________________________ to prove conduct in
conformity therewith.
Example 40: During his acting career, John Wilkes Booth entered Fords
Theater and went through the tunnel every single time. There is a stagehand

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that can testify about Booths behavior. The prosecution may show that this
was Booths habit.

May be admitted ________________________________ corroboration or an eyewitness


Exam Tip 3: Habit is more specific than character evidence. On the MBE,
words like always or every time generally refer to habit, whereas words like
often or frequently are more likely to imply character evidence.

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CHAPTER 5:

WITNESSES

A. Competence
Every person is ______________________________ competent. (FRE 601)
o

Questions about mental competence go to the __________________________ rather than


the admissibility

Two requirements for witnesses to testify:


1. Lay witnesses must have ______________________________________________________
Example 41: Eyewitness at Fords Theater must have some basis for his
testimony, e.g., I saw Booth, or I heard Booth.

2. Witnesses must take an _____________________. (FRE 603)


Judges as Witnesses: (FRE 605)
o
o

May not testify in trial over which she presides


No objection required

Jurors as Witnesses: (FRE 606)


o

May not testify as witness in front of their co-jurors


Example 42: Juror may need to testify if there is bribery of a juror or a juror
has failed to follow the courts instructions. The juror will not testify in front of
the other jurors, so this is permissible.

After the trial: May not testify about:


Statements made _______________________________________________;
Effect of anything on a particular jurors vote; and
Any jurors mental processes

Exceptions:
________________________________ prejudicial information was brought in
Outside improper influences
________________________________ in entering the verdict on the form

Kids as Witnesses
o
o

Court decides competency (no bright-line rule)


Factors:
Intelligence
Ability to distinguish between _______________________________________________
Understanding of importance of telling the truth

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B. Dead Man Statutes


Does not apply in a criminal case
Common Law: A party that has a ____________________________________ in the case
________________________ testify about a communication or transaction with a dead person
whose estate is also party to that suit.
Example 43: Marry Todd Lincoln sued John Wilkes Booth in civil court. Booth
cannot quote Abraham Lincoln in this civil suit.

Federal Law: NO Dead Mans Statute


Exception: Under the Erie doctrine, when federal court applies state law

C. Impeachment
Bases:
o
o
o
o
o
o
o

Bias;
Financial interest;
Character for untruthfulness;
Inability to perceive what they are testifying about;
Inability to testify accurately;
Prior inconsistent statements; or
Another contradictory witness or evidence

Who can impeach a witness? ___________________ party. (FRE 607)


How can you impeach a witnesss character for untruthfulness?
o
o
o

_______________________;
Opinion; or
_________________________________

Character for Truthfulness: Credibility may not be _________________________ until it has first
been attacked.
Example 44: Prosecution cannot put Major Rathbone on the stand and ask on
direct, Are you honest? Do you tell the truth? This is bolstering.
Note 1: Attacking a witness bias is NOT attacking his truthfulness

Extrinsic evidence of __________________________________ of untruthfulness is generally not


admissible.
Example 45: Major Rathbone lied on his job application. On crossexamination, I am not allowed to bring in the job application to show that he
lied. However, I can ask him about the job application (You previous lied on a
job application, correct?). If he denies it, I cannot bring in the extrinsic
evidence.

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Limits:
Rule 403: If probative value is substantially outweighed by unfair prejudice
Rule 611: Harassing, argumentative, etc.
Must have a good-faith belief
Arrests: May not cross-examine a witness about an _______________________
o

May cross-examine about the underlying conduct


Example 46: George Atzerodt was arrested for writing bad checks. I cannot
ask, You were arrested for check kiting, correct? However, I can ask, You
cashed checks in someone elses name, correct?

Extrinsic evidence cannot be used.


Exception: Can be used to impeach on other grounds
Example 47: The bad check may be introduced to show George Atzerodts bias.

By testifying on another matter, a witness ____________________________ waive the privilege


against self-incrimination for testimony relating only to the witness character (FRE 608(b)).
Criminal Convictions: FRE 609
o

General Rule: A prior crime is a possible basis for impeaching a witnesss character for
truthfulness
Admissible: Any prior conviction (including misdemeanors) for a crime of
_________________________ or false statement that occurred within the last
_____________ years.
Example 48: Fraud, perjury, embezzlement, and false pretenses are crimes
of dishonesty. Murder, rape, and assault are NOT crimes of dishonesty.
Example 49: George Atzerodt testifies for the prosecution. Five years
earlier, he was convicted of check kiting. Is this is admissible? __________.

Crimes that do not involve dishonesty:


Subject to 10-year limitation.
Rule: Admissible, but only if the crime is punishable by ___________________ or
imprisonment for more than ___________________, i.e., a ____________________
o

Witness is defendant in a criminal trial:


Admissible if its probative value outweighs the potential prejudicial effect to that defendant.
Editor's Note 1:
The professor misspoke. The balancing test is altered when a
defendant is testifying. The prosecution must show that the probative value of the
evidence outweighs the prejudicial effect.

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Example 50:

John Wilkes Booth testifies. He was convicted five years ago for

assault. Even if he was imprisoned for more than one year, the prosecution must
prove that the probative value of the evidence outweighs its possible prejudicial
effect.

Witnesses other than the criminal defendant:


General Rule: Evidence ____________________________________________________.
May be excluded when the party objecting to the impeachment shows that its probative
value is substantially outweighed by its prejudicial effect.

More than 10 years from date of conviction or release (whichever is later):


Admissible only if the probative value substantially outweighs the prejudicial effect; and
Editor's Note 2:
The professor misspoke. The Rule 403 balancing test is
reversed. The party offering the evidence must show that the probative value
substantially outweighs the prejudicial effect.

Proponent gives sufficient advance written notice


Evidence not admissible if: (FRE 609(c))
Pardoned;
Annulled;
Later found innocent; or
Rehabilitated
Juvenile Convictions:
Witness is defendant: ____________________________________________
Example 51: John Wilkes Booth takes the stand. He was convicted as a
juvenile. This is NOT admissible.

Witness not defendant: Admissible if:


Offered to _______________________________________________________;
Offered in a criminal case;
Would be admissible if an ___________________________________________; and
Admitting evidence is necessary to fairly determine guilt or innocence
A criminal defendant can use a witnesss juvenile conviction to impeach by showing
bias.
Example 52: John Wilkes Booth can introduce evidence of George Atzerodts
juvenile conviction to show Atzerodts bias.

Manner of Proof: Can prove convictions by:


Witnesss admission; or
______________________________ evidence
A witnesss conviction may be used for impeachment purposes even if the appeal is still
pending.

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CHAPTER 6:

WITNESSES (CONT.)

A. Impeaching a Witness
Prior Inconsistent Statement:
o
o

_____________________ be used to impeach


Prior statement _________________________ need to be sworn
Example 53: George Atzerodt testifies that he never wanted to kill Abraham
Lincoln. If he made a prior statement that he wanted to harm Lincoln, that
statement is admissible.

o
o

Statement need not be shown to witness (FRE 613)


Extrinsic evidence may only be introduced if the witness is given the opportunity to
______________________________________ the prior inconsistent statement.
Example 54: George Atzerodt testifies that he never wanted to kill Abraham
Lincoln. He previously told John Wilkes Booth that he was going to kill Lincoln.
The prosecution cannot ask Booth about the statement unless Atzerodt has
been given a chance to explain or deny the statement.

Exceptions: No opportunity need be given to explain or deny if:


Impeaching a hearsay declarant;
Admission of a __________________________________________ (FRE 801(b)(2))
Extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness
regarding a ______________________________ matter.

Bias: Always relevant


o Bases:
Witness has a relationship to the party (e.g., Mary Todd Lincoln);
Witness has an interest in the outcome of a case;
Example 55: Major Rathbone may have a great love for the Commander-inChief of the Union Army.

Witness has an interest in testifying


Example 56: George Atzerodt cut a deal with the prosecution in exchange for
his testimony.

Foundation must be laid before _________________________________ may be introduced.


Exam Tip 4: MBE questions normally test bias in the context of a witness who
is employed by the party or a witness who has cut a deal with the prosecution.

Sensory Competence:
o May be impeached by showing witness has a ____________________________ in ability to
perceive, recall, or relate information

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Example 57: An audience member did not have her glasses on when she saw a
guy jump from the balcony onto the stage.

Impeaching a Hearsay Declarant: (FRE 806)


Example 58: George Atzerodt is on the stand. He quotes Mary Surratt as
saying, John Wilkes Booth ran out of here to go to Washington. Mary may be
attacked by any evidence that might have been admitted if she had in fact
testified. Mary need not be given the opportunity to explain.

o
o

May be impeached by any evidence that would have been admissible had the declarant
testified
Declarant need not be given an opportunity to explain or deny

A witness who has been impeached can be _____________________________ FRE 801(d)(1)(b).


Example 59: The defense impeaches George Atzerodt. The prosecution may
rehabilitate on re-direct.

Ways you can rehabilitate a witness:


1) By reputation or opinion evidence with regard to truthfulness; or
2) By a prior ________________________________ statement
Example 60: During cross-examination, it is shown that George Atzerodt is
untruthful. On re-direct, the prosecution can show prior consistent statements
that Atzerodt made, or it can be shown through reputation or opinion evidence
that he is a truthful person.

Religious Beliefs:
o

_____________________________________ to attack or support a witnesss credibility


Example 61: If John Wilkes Booth was a Quaker, the defense cannot put him
on the stand to testify that he is a Quaker, and therefore he tells the truth.

Exception: May be used to show _________________________ or interest


Example 62: A religious sect is a party to the lawsuit. The court may permit
you to ask a question about the religious beliefs of the witness, if it shows bias.

Contradictory Evidence:
o

A witness may be impeached by evidence that is contradictory to the witnesss testimony


Example 63: The plaintiff is suing the defendant for damage to his car as a
result of an accident. The defendant may introduce the plaintiffs record of
insurance to show that the plaintiffs car was damaged in a previous accident.

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Collateral Issues:
General Rule: May not impeach the credibility of a witness by introducing extrinsic evidence on
a collateral matter
Example 64: The defendant is charged with assault. The prosecution witness
says the victim was wearing a plaid shirt. The defendant cannot call another
witness to testify that the victim was wearing a striped shirt.

B. Present Recollection Refreshed


A witness may examine any item to ________________________ the witnesss present
recollection.
Example 65: Clara Harris is on the stand and cannot remember what play she
was watching on the night of the assassination. The attorney can show her the
playbill and ask if her memory was refreshed. The attorney can then take the
playbill from her and ask, What was the play you were watching on the night
of the assassination?

The witness may not use the object or item while testifying (i.e., read from document)
Example 66: A police officer may not read his report aloud; he must put it
away and then testify.

The item is ______________________________________ into evidence.


o On cross-examination, the opposing party may introduce the item into evidence.
Opposing counsel has a right to inspect the item.

C. Past Recollection Recorded


A memorandum or record regarding a matter about which a witness ______________________
__________________________________, but now has insufficient recollection upon which to
testify
Example 67: Mary Todd Lincoln kept a diary about what happened right after
the assassination. She is asked, What happened next? She does not
remember, so she looks at her diary. After she reads it, she still does not
remember. The attorney offering the information is allowed to read the
contents of the diary to the jury. Opposing counsel may introduce the diary as
an exhibit.

The memorandum or record may be read to the jury, but it is not admitted as an exhibit unless
it is offered by ______________________________________________.
Difference between present recollection refreshed and past recorded recollection:
o
o

The item used to refresh the witnesss present memory is NOT admitted into evidence.
The document used as a recorded recollection may be admitted into evidence.

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D. Opinion Testimony
1. Lay Witnesses (FRE 701)
o
o

Generally, may not testify about an opinion


Opinion testimony is allowed if it is a common sense impression.
Example 68: A lay witness may testify about intoxication, the speed of a car,
the apparent emotions of someone (i.e., someone is crying).

Opinion must be based on _______________________________________; and


Must be helpful to ___________________________ the understanding of a fact at issue
2. Expert Witnesses (FRE 702)
o

Court must determine that testimony is:


Scientific, technical, or specialized (reliable); and
Will help the trier of fact (relevant)
Qualified expert must show:
Witness is qualified;
Testimony is based on _________________________ facts or data;
Testimony is the product of _________________________ principles and methods;
Witness applied those principles and methods to the facts of the case
POP QUIZ:
Can fingerprint analysis be presented by an expert witness against John Wilkes Booth?
We dont know; this analysis came about in the mid-1800s. By 1865, the analysis may
not have been reliable enough
Ultimate Issue: FRE 704
An expert may give an opinion on an ultimate issue (including a defendants state of
mind)
Exception: An expert may not given an opinion on whether a criminal defendant had the
requisite ________________________________________ for the crime charged
Example 69: An expert could say the John Wilkes Booth was an angry man.
However, the expert could not testify that Booth had the requisite mental state
of premeditation.

Basis of an Opinion:
Personal observations; or
Data that was provided
Experts testimony is admissible, even if underlying data is not (e.g., expert relied on
hearsay documents)
It must be reasonable for experts in the field to rely on the data
Can use hypotheticals

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Court-Appointed Experts:
Court may appoint an expert
Court must inform expert of duties
Expert must advise both parties of findings

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CHAPTER 7:

AUTHENTICATION; BEST EVIDENCE RULE

A. Authentication
1. In General
o
o
o

All tangible evidence must be authenticated.


Tangible = physical objects and documents
Authentication is showing that an object is what it is claimed to be.
Ways to authenticate evidence: FRE 901
1) ____________________________________________ of the witness who has familiarity
with the object
Example 70: David Harold states, That is John Wilkes Booths derringer.

2) Using ______________________________ characteristics


Example 71: Electronic documents can be identified by their meta-data.

3) By ________________________________________________________________
Example 72: Blood samples, drug samples

Witness must verify whereabouts from time evidence was collected until trial
2. Authenticating Physical Evidence:
o

Reproductions:
A witness who has personal knowledge must testify that it accurately depicts what it is
claimed to represent.
Does not need to be the creator someone familiar with the subject can authenticate
X-Rays or Electrocardiograms: Must meet four criteria:
i.

Accurate _________________________;

ii. Machine was working properly;


iii. Qualified __________________________________; and
iv. Show chain of __________________________
3. Authenticating Documentary Evidence:
o

Common methods:
_______________________________: Both parties agree;
Testimony of an ____________________________________; or
__________________________________________ verification
Example 73: David Harold traveled with John Wilkes Booth. He testifies that
the diary belongs to Booth, and he saw Booth writing in it.

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Example 74: David Harold could also testify that he has known Booth for 10
years, knows what his handwriting looks like, and the handwriting in the diary
belongs to Booth.

Types of Documentary Evidence:


Ancient Documents:
More than _______________ years old;
In a condition that is unlikely to create suspicion; and
Found in a place it would likely be found.
Example 75: A letter written on papyrus that is thought to be written by
Pharaoh is found in the basement of Wal-Mart. This creates suspicion and is not
found in a place it would likely be found.

Public Records:
Recorded or ________________________ in a public office as authorized by law; or
The document is from the office where items of that kind are kept.
Reply Letter Doctrine:
Written _______________________________ to an original communication; and
Unlikely it was forged by original letters author.
Handwriting Verification:
i.

A non-expert witness who recognizes the handwriting


Non-expert cannot have become familiar with the handwriting for litigation
purposes

Example 76: David Harold needs to have original knowledge of what John
Wilkes Booths handwriting looked like before litigation.

ii. An _________________________ witness or the jury compares the writing in


question with another writing that has been proven to be genuine.
4. Self-Authenticating Documents
o
o

Do NOT require extrinsic proof of authenticity


These include:
i. Public documents bearing a seal;
ii. Certified copies of public records;
iii. Official publications issued by a ________________________________ authority;
iv. Newspapers or periodicals;
v. ________________________________ inscriptions (e.g., a label);
vi. Notarized or acknowledged documents;
vii. Commercial paper;
viii. Documents declared by _______________________________________ to be authentic;

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ix. Records of regularly conducted business activity certified by a custodian of the records.
Attested Documents (e.g., wills): Testimony of authenticating witness is not required

5. Oral Statements
o

Voice Identification
Any person who has heard the voice at ________________________________
Even if made for purpose of litigation
Makes no difference whether mechanical, electronic, or live
Example 77: An audience member heard John Wilkes Booth yell. Then, she
stands outside the window of his jail cell to hear him talk. Her testimony is
admissible as identification of Booths voice.

A party to a telephone conversation may authenticate statements made during that


conversation by testifying that:
i.

He recognized that speakers voice;

ii. The speaker ____________________________ that only a particular person would have
known;
Example 78: John Wilkes Booth told George Atzerodt that he keeps his
Derringer hidden under his armoire.

iii. The caller dialed the number that was believed to be the speakers and the speaker
________________________________ himself upon answering; or
iv. The caller dialed a _____________________________________________ and spoke to
the person about regular business.

B. Best Evidence Rule (FRE 1001)


Exam Tip 5: The Best Evidence Rule is frequently a wrong answer on the MBE.
The Best Evidence Rule ONLY applies when the contents of a writing are at issue
or if a witness is relying on the writing while testifying. Beware of a fact pattern
in which the witness is relying on a writing for an immaterial matter.

1. In General
o
o

Applies to writings, recordings, photographs, X-rays, and videos


Applies when:
The _______________________________ of a writing are at issue; or
A witness is relying on the document.
Does NOT require:
The party to present the most persuasive evidence;
The document be presented if the witness can testify

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Example 79: Clara Harris writes down her observations immediately after the
shooting. She can testify about the event, even though a writing exists.

Contents at issue:
A document is being used as proof of an event;
The document has _________________________ effect (e.g., a will or contract); or
The witness is testifying based on the facts learned in the writing

2. Duplicates
o
o
o

Definition: Any counterpart that is intended to have the same effect


___________________________________ if produced accurately (FRE 1008)
Inadmissible if:
A genuine question of its authenticity arises; or
_________________________ to admit the duplicate (e.g., a partial copy)

3. Original Not Required If:


o
o
o
o

All originals lost or destroyed;


Original could not be obtained, even through judicial process; or
Party against whom it is being offered is in control of it and fails to produce it; or
Collateral matter

4. Public Records:
o
o

Must be certified;
If non-certified, there must be testimony by someone who saw the original
If no copies available, court may allow other means to prove the issue

5. Summaries of an Original:
o
o

Allowed if proponent makes originals available; or


By court order

6. Admission by a Party: (FRE 1007)


Can be a substitute if the contents are proven by testimony of party against whom it is being
offered
Example 80: The prosecution is offering a writing against John Wilkes Booth.
One way to get this in is if Booth admits he has seen it before.

7. Role of Judge and Jury: (FRE 1008)


o
o

Court determines whether Best Evidence Rule applies


Jury decides:
If a writing or recording ever existed;
Which one is an original;

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If other evidence correctly reflects content

C. Parol Evidence Rule (PER)


Exclusionary rule that relates to written contracts
Assumes that a written contract represents the complete agreement

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CHAPTER 8:

PRIVILEGES AND OTHER POLICY EXCLUSIONS

1. In General
Definition: When there is potential evidence, but an individual cannot be forced to provide
the information
The FRE have _______________ specific privilege provisions
Exception: Diversity cases where state law is applied (Erie)
A claim of privilege applies at _______________________________ of a case
For a privilege to apply, there must be a __________________________________
communication
o
o

Overheard by an unwanted third party = privilege _____________________________


Exceptions:
Eavesdropper
Partys presence is necessary (e.g., translator)

Holder may waive privilege if:


o
o
o

Fails to _________________________________________ it;


_________________________________________________________
Contractual waiver

_____________________________ disclosure without holders consent is not a waiver


2. Spousal Privilege
Two distinct privileges: Spousal _________________________ and confidential marital
communications
a. Spousal Immunity
General Rule: The spouse of a _______________________________________________
may not be called as a witness by the prosecution.
Example 81: The prosecution cannot call John Wilkes Booths wife to testify.

A married person may not be ______________________________ to testify against her


spouse in any criminal proceeding
Example 82: John Wilkes Booths wife cannot be compelled to testify against
her husband in the criminal trial of one of his co-conspirators.

Holder:
Federal court and a majority of the states: __________________________ holds
privilege and may choose to testify
Minority of states: ___________________________________________. May
prevent spouse from testifying, even if witness spouse wants to testify
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Example 83: In the majority of states, John Wilkes Booths wife holds the
privilege. She may waive the privilege and testify against him.

Applies to testimony about events occurring _____________________ and


________________________ the marriage
When can it be asserted?
Only ________________________ the marriage
Expires on ___________________________ or annulment.
b. Confidential Marital Communication
A communication made between spouses while ________________________________
_____________________________.
Privileged if the communication made in reliance on the sanctity of marriage.
Example 84: John Wilkes Booth says to his wife, In reliance on the sanctity of
the marriage, I am going to kill Abraham Lincoln, this is considered a
confidential marital communication.

Holder: ________________________________________
Scope of the privilege:
Only applies to communications made ________________________ the marriage.
Applies to both _____________________ and criminal cases.
When can it be asserted? Extends _________________________ end of the marriage.
c. Exceptions
Neither spousal privilege applies in cases when one spouse is ______________________
the other spouse.
Crime is against the other spouse
Crime is against the ________________________________ of either spouse
Note 2: Spousal immunity begins before marriage but ends when the marriage
does, whereas the confidential communication privilege begins with the
marriage but extends beyond the end of the marriage.

3. Attorney-Client Privilege
o

Communication must be intended to be ___________________________________.


Third party present = generally ___________________________ the privilege.
Exception: Party representatives

Communication must be for ___________________________________ or representation.


Even if no legal advice is given, statements made by the potential client can be
privileged.
Not privileged:

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Fee arrangement;
Identity of client;
Underlying facts;
Statement made to an attorney who is acting in another capacity
Example 85: The attorney is a tax preparer. Or, the attorney is the chief
operations officer and general counsel of a corporation.

Corporate Clients:
Some states limit the privilege only to the control group members of the corporation
(i.e., directors and officers)
Federal law: Non-control group communications can be privileged if they are
communicating:
Within their employment duties; and
For the purpose of seeking legal advice for the corporation

Holder:
The _____________________; only client can ____________________________.
The attorney must ________________________ the privilege
The privilege survives the clients __________________________.

Exceptions
The attorney-client privilege does not exist in the following situations:
Future Crimes: Communications enable or aid what client knew or should have known
was a ____________________________ or perpetration of fraud.
Disputes between Attorney and Client: If a dispute arises between the attorney and the
client, disclosure of confidential communication relevant to the dispute is allowed.
Two parties who claim the same deceased client
Communications between co-clients who are now adverse
Example 86: You represent both John Wilkes Booth and his wife. Litigation
arises between them. My communications between those co-clients are not
privileged.

o
o

Attorney Documents: Do not fall under attorney-client privilege


Effect of Disclosure or Waiver: FRE 502
Federal Proceeding:
Unintentional: No waiver if holder
o
o

Took reasonable steps to _________________________ disclosure; and


Took reasonable steps to _________________________ disclosure.

Intentional;

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o
o

Acts as a waiver
Extends to related, __________________________________ information if:

Both sets of information concerns the same subject; and


Fairness requires disclosure of both
State Proceeding:
Disclosure in a state proceeding does not act as a waiver in a later federal
proceeding if:
o
o

Would not have been a waiver in federal courts; or


Was not a disclosure under state law

Federal court must apply most protective law


Court order: A court may order that disclosure of a privileged communication is not a
waiver for later proceedings
Parties Agreement: The parties agreement regarding disclosure only binds the parties,
unless it is incorporated into a court order
4. Physician-Patient Privilege
o
o
o
o

Not privileged under common law


Most states protect by _______________________, so long as communication is for
____________________________________________________________
_____________________________ holds the privilege
Situations where the privilege does NOT exist:
i. Information was acquired for reasons other than treatment;
Example 87: John Wilkes Booth goes to the doctor and says, I have the
measles, and Im looking to kill Lincoln, the latter half of the statement is not
privileged.

ii. Patients physical condition is at issue in the case;


Editor's Note 3: The professors example here is incorrect. An example of a
case where the patients physical condition is at issue is a civil case arising out
of a car accident.

iii. Communication was made as part of the commission of a _______________________


or tort;
Example 88: Dr. Samuel Mudd repaired John Wilkes Booths broken leg. JWB
said to Dr. Mudd, Fix my leg. Ive just shot the President and Im on the run.
This statement is not privileged.

iv. A dispute exists between the physician and the patient;


v. The patient _______________________________________________________ to waive
the privilege;
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vi. A case is brought in federal court and state law does not apply.
What if an attorney sends a client to a doctor? Only privileged if the patient is sent to the
doctor for ___________________________________________.

5. Psychotherapist-Patient Privilege
o

o
o
o
o

POP QUIZ:
Which is more widely recognized: The doctor-patient privilege or the psychotherapistpatient privilege?
The psychotherapist-patient privilege
Federal courts and most states recognize this privilege.
Made between a psychiatrist, psychologist, or licensed social worker and a patient
_________________________ holds privilege, but psychotherapist must assert
This privilege does NOT exist if:
i.

Patients _____________________________________________________ is at issue;

ii. Communication was the result of a court-ordered exam; or


iii. Case is a ________________________________ proceeding against the patient

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CHAPTER 9:

PRIVILEGES AND OTHER POLICY EXCLUSIONS (CONT.)

A. Privileges
1. Self-Incrimination
o
o
o
o
o
o
o

5th Amendment Protection: Allows a witness to refuse to give testimony that may tend to
incriminate him
Only covers _________________________, not prior, statements.
Does not apply to _____________________________ characteristics or mannerisms
Holder: Human beings not _________________________________ or other organizations
Criminal case: A prosecutor may not comment on a defendants failure to take the stand.
Civil case: Opposing counsel may comment on defendants failure to testify
A witness may be compelled to provide incriminating testimony if the government grants
him ________________________ from prosecution.
Transactional immunity: Protection regards entire transaction
Use immunity: Protection only covers the compelled statements.
Example 89: George Atzerodt is being compelled by the prosecution to testify.
This is permissible, even if he only gets use immunity.

Exceptions:
Government has the burden to show in a later proceeding that compelled testimony
did not provide an investigative lead to the prosecution.
o

Witnesss danger of incrimination has been removed (i.e., acquittal or conviction)


A witness may lose the right to invoke the privilege if the danger of incrimination has been
removed through _________________________________ or conviction of the underlying
charge.

2. Clergy-Penitent
o
o

A confidential communication made by a penitent to a member of the clergy is privileged.


Holder? ___________________________ holds the privilege; clergy member asserts

3. Accountant-Client
o
o
o

Not available at common law


Many jurisdictions recognize this privilege
Operates similarly to the attorney-client privilege

4. Professional Journalist
o
o

No federal privilege protecting a journalists source of information


Some states have enacted statutes extending protection to journalists.

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5. Governmental Privileges
The government, at all levels, is privileged against disclosing the identity of an
____________________________________ and the communication of official information.

B. Public Policy Exclusions


Subsequent Remedial Measures: (FRE 407)
o
o

Prohibits admission of measures taken after injury or harm that make future injury less likely
Inadmissible to prove negligence, culpable conduct, a defective _______________________
or design, or the need for a warning
Editor's Note 4: The professor misspoke. Evidence of a subsequent remedial
measure IS admissible to prove the defendant had control of the area.

Admissible for impeachment or ownership of the property


Example 90: Mary Todd Lincoln is suing Fords Theater for inadequate security
and locks. After the assassination, but before trial, Ford fixes the locks and adds
security bars. This is not admissible to prove that Ford was negligent or that he
was culpable. However, the evidence could be offered for impeachment or if
Ford claimed he did not own the theater.

Compromise Offers or Negotiations: (FRE 408)


o
o

____________________________________________ to prove a disputed claim, an amount,


or for impeachment
Exceptions:
Negotiations with governmental agencies are admissible in a later
________________________________ case
Admissible to prove bias, ________________________________, obstruction, or to
negate a claim of delay

o
o

Evidence discussed in a negotiation is not protected


If there are multiple parties and one settles, the agreement is not admissible

Offers to Pay Medical Expenses: (FRE 409)


o
o

__________________________________ to prove liability for plaintiffs injuries


Any conduct or statements that accompany the payment or the offer to pay are
_________________________________.

Plea Negotiations: (FRE 410)


o
o

Applies in civil and criminal trials


The following are inadmissible:
Withdrawn ______________________________;

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Pleas of nolo contendere (no contest);


Statements made while negotiating with the D.A.;
Statements made during _____________________ proceedings;
o

Exceptions:
Fairness dictates;
Perjury hearings

Waiver: Defendant may waive if:


Knowing; and
Voluntary

Liability Insurance: (FRE 411)


o
o

Evidence of insurance or lack of insurance is ________________________________ to


prove or disprove negligence or wrongful conduct.
Admissible if it goes to agency, _______________________________, control, or witness
bias and prejudice.

Sexual Conduct:
o

Victims Conduct:
Criminal Cases: Rape Shield Law:
Victims sexual behavior or predisposition is ________________________________
________________________
o Sexual behavior: Intercourse, diseases, use of contraception, etc.
o Predisposition: The way a person dresses, speech, lifestyle, etc.
Applies in both civil and criminal proceedings involving sexual misconduct
Cannot be used for impeachment or for substantive purposes
Exceptions:
o Used to prove source of semen or source of injury;
o Used to prove victims __________________________;
o If offered by the prosecution;
o Exclusion would violate ______________________________________ rights of
defendant
Opinion or reputation evidence is NOT admissible
Civil Cases:
Victims reputation is only admissible if victim places it in controversy
Sexual behavior is admissible if the ________________________________________
outweighs any unfair prejudice
o Only applies if the party is a victim of sexual misconduct

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Example 91: In a defamation case, there is no restriction on admission of the


victims sexual behavior. In a sexual harassment case, the restriction applies.

Procedure:
o Notice requirement: At least ______________ days before trial
Defendants Conduct
In a criminal case, evidence of defendants other sexual assault is
________________________________ when defendant is accused of committing sexual
assault, rape, or child molestation
This evidence can be used for propensity
Court has discretion under 403 to exclude the evidence
Not limited to convictions can include arrests and unreported incidents
No time restriction
Notice requirement: At least _____________ days before trial

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CHAPTER 10: HEARSAY


A. In General
General Rule: Hearsay is inadmissible (FRE 802)
Definition: An out-of-court statement that is offered to prove the truth of the
_______________________________________________.
Example 92: Yesterday, you look up at the sky and say, The sky is blue today.
Today, you are brought into court and asked, What did you say yesterday?
You respond, Yesterday, I said the sky was blue. This is an out-of-court
statement. If it is being offered in court to show that the sky was blue
yesterday, there is a good chance it is hearsay.

Three Categories:
o Dead (FRE 802);
Hearsay is inadmissible
o Undead (FRE 803 and 804)
These statements should be hearsay (offered for truth of matter asserted).
The rules have brought them back to life.
Example 93: Opposing counsel makes a hearsay objection. Your response,
This is hearsay. However, this statement falls under an exception to hearsay,
making it admissible.

Rule 804: Witness must be unavailable


Rule 803: Witnesss availability is irrelevant
Example 94: John Surratt is not testifying. Can someone take the stand and
quote John Surratt? Under 803, it does not matter if John is available. However,
if the witness wants to quote him under 804, that party must meet one of the
requirements in the rule.

Living (FRE 801);


Statements that are not offered for the truth of the matter asserted
Example 95: You are on the stand and asked what you said yesterday. You
respond, I said the sky was blue. If the statement is offered to show that you
were outside yesterday, or that you can speak English, the statement is not
hearsay.

Statements that are NOT hearsay (exclusions)


Impeachment
Identification
Example 96: Clara Harris testifies that she did not see the shooters face, but
she did hear his voice. She states that the shooter said, The sky is blue today!

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and then a gun went off. She testifies that she knows the shooter was John
Wilkes Booth because she heard his voice. This statement is not being offered
to show that the sky was blue. The statement is being offered for identification
purposes, and is admissible.

Admissions of a party opponent


Only one party opponent in a criminal case (the defendant)

B. What is Hearsay? [FRE 801 (a)-(c)]


Example 97: John Wilkes Booth yells, Sic semper tyrannus! The prosecution
has George Atzerodt on the stand. If the prosecution is offering this statement
to prove that Booth could yell, is it hearsay? __________________.
Example 98: If the statement is offered to prove that John Wilkes Booth was
on the stage, is it hearsay? __________________.
Example 99: If it is used to prove that John Wilkes Booth intended to kill
Abraham Lincoln, is it hearsay? _______________________.

Declarant must be a ____________________________


o Not hearsay:
A dog bark;
An automatically generated time stamp on a fax;
A printout of electronic telephonic tracing equipment
Raw data from a forensic lab machine
o A witness quoting himself ______________________ be hearsay.
An out-of-court statement may be:
o
o
o

______________________;
Written;
___________________________ conduct, if intended as an assertion, e.g., nodding, thumbs
up, pointing
Example 100: John Wilkes Booth testifies and says he asked George Atzerodt,
Did you kill Abraham Lincoln? Atzerodt responded by nodding and smiling.
This is an assertion.

Statements that are offered to prove something other than the truth of the matter asserted are
______________________________________.
Example 101: John Wilkes Booth testifies that George Atzerodt said, I just killed
the President! If this statement is to show that Atzerodt knows English, it is not
hearsay. If it is offered to show Atzerodt could speak, it is not hearsay. If it is
offered to show that Atzerodt killed the President, there could be a hearsay
problem.

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Example 102: As he was running across the stage, John Wilkes Booth said, Im
wearing a red sweater. If we were offering that statement to prove that Booth
was wearing a red sweater, it is arguably hearsay. (An out-of-court statement
offered to prove that he was wearing a red sweater). But, if we were offering it
to show that he can speak and run at the same time, it would not be hearsay
because it was not offered to prove the truth of the matter asserted.

Questions are NOT hearsay there is no matter being asserted


Exam Tip 6: A statement that is not hearsay is not automatically admissible. It
may be inadmissible if it falls under a privilege, is improper character evidence,
or fails the 403 test.

Not offered to prove the truth of the matter asserted:


A statement offered to prove that the statement itself was made (legally operative
facts)
Example 103: Outside of court, George Atzerodt says, John Wilkes booth has
an STD. In a slander action, this is offered to show that Atzerodt actually made
the statement.

To show the ______________________ on the ______________________________


Example 104: Yesterday, you say to your wife, The sky is blue today. It is being
offered to prove that your wife could put her umbrella away. This is not
hearsay.

A statement offered to show the declarants ________________________________


Example 105: John Wilkes Booth testifies that the night before the
assassination, George Atzerodt said, I am Henry VIII, I am! This might be
offered to show Atzerodts mental state.

Impeachment: Not being offered for the __________________________, but to


impeach
Example 106: George Atzerodt testifies that he has never had any ill will toward
the President. John Wilkes Booth can then take the stand and say, Atzerodt
th

told me on April the 13 , I have a lot of ill will toward the President. This is
not being offered to show that Atzerodt has ill will toward the President, but
rather to show that he has said contradictory things.

Multiple Hearsay:
o
o

May be admissible
Make sure that both levels of hearsay fall within an exception
Example 107: A police officer testifies at trial and says, George Atzerodt ran up
to me right after the shooting in a very excited state. He said, John Wilkes

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Booth just told me that he was going to kill the President! Two levels of
hearsay: (1) what Booth said to Atzerodt; and (2) what Atzerodt said to the
police officer. If both of those statements can overcome hearsay, the statement
is admissible. Booths statement is an admission of a party opponent (if offered
by the prosecution). Atzerodts statement to the police officer is an excited
utterance.

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CHAPTER 11: WHAT IS NOT HEARSAY


The following statements do qualify as hearsay. However, they are treated as nonhearsay and are
admissible.
Two Requirements for Prior Statements:
o
o

The declarant must be testifying at trial; and


The declarant must be subject to cross-examination

1. Prior Inconsistent Statements


Admissible as __________________________________ evidence if:
Previously made under penalty of perjury; and
Given __________________________________________
Example 108: George Atzerodt was previously deposed. His testimony at trial
contradicts his statement at his deposition. The statement is admissible for
substantive purposes.

Not given under oath = can only be offered for


________________________________________ purposes
Example 109: JWB testifies in his own trial. Booth testifies that George Atzerodt
previously said, I killed Abraham Lincoln. If this statement was made in a
deposition, it can be offered to prove that Atzerodt killed Lincoln. If the
statement was not made under oath, it can be offered to impeach Atzerodt.

Inconsistent with the testimony being given at trial


Editor's Note 5: The professor misspoke. The statement must be inconsistent
with the testimony offered at trial to qualify for this exception.

2. Prior Consistent Statements


o
o

Only admissible to __________________________ a charge that the declarant is lying or has


recent motive to lie
Is admissible, regardless of whether made under oath or not
Example 110: George Atzerodt testifies that he never wanted to kill Abraham
Lincoln. Previously, he told a farmer that he did not want to kill Lincoln. This
statement is admissible. The prosecution can only offer this statement once the
defense has tried to show that Atzerodt has previously made an inconsistent
statement.

3. Prior Statements of Identification


o

A previous out-of-court identification of a person, e.g., in a lineup or photo array, is


admissible as ___________________________________ evidence.

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Example 111: Clara Harris saw a photo lineup and identified someone as a
shooter. This is admissible if she testifies.
Exam Tip 7: Beware of fact patterns involving prior out-of-court identifications
by a witness who is not testifying at this current trial (and is therefore not
subject to cross-examination). This exception cannot apply if, for instance, the
witness is dead or otherwise unavailable for trial.

4. Party Admissions
o

A prior out-of-court statement by a party to the current litigation that is used against that
party is ________________________________________.
This does not have to be a statement against the persons interest
Example 112: George Atzerodt testifies that John Wilkes Booth said, Im a
Libra! This statement is admissible, even though it is not against Booths
interest.

o
o

Judicial Admissions: Admissible if made:


During discovery process;
By stipulation;
During a proceeding
Exception: If amended
Withdrawn Guilty Plea: Not admissible
Adoptive Admission:
A statement made by another that a party expressly or impliedly adopts as his own
____________________________ is considered an adoptive admission if:
The party was ______________________ and heard and understood the statement;
The party had the ________________________ and opportunity to
___________________ it; and
A _________________________________ person who is similarly situated would
have denied the statement.
Example 113: Mary Surratt is testifying for the prosecution. She says, All five of
us were sitting around the house and my son said, John Wilkes Booth is going
to be the one to kill Abraham Lincoln. This qualifies as an adoptive admission,
and is admissible for the truth against Booth.

Vicarious Admission:
An out-of-court statement made by one person that may be imputed to an opposing
party based upon certain relationships between the parties
A statement made by ______________________________ or agent qualifies if:
Made within scope of employment; and
During the course of the relationship

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Also qualifies if the speaker is _____________________________________


Co-Conspirator Admission:
A statement made by a co-conspirator is admissible if it is made during and in
__________________________________ of the conspiracy.
A statement made by a co-conspirator after being arrested is not admissible.
Example 114: George Atzerodt testifies that David Harold said, I have a
Derringer you can use, John. Even if Harold does not testify, this statement is
admissible as a co-conspirators admission.

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CHAPTER 12: HEARSAY EXCEPTIONS (FRE 803 AND 804)


Although hearsay is generally inadmissible, the FRE identify some situations in which hearsay is
allowed. (FRE 803 and 804)
Admissible for the _______________________________________________________________

Exceptions That Apply ONLY If the Declarant Is Unavailable (FRE 804)


A Declarant is Unavailable if He:
o
o
o

Is exempt on the grounds of ______________________________


Refuses to testify, despite a court order;
Lacks _______________________ of the subject matter of the statement;
Example 115: The prosecution wants to quote Mary Todd Lincoln. However, she
does not remember anything she said. The prosecution can show that she is
unavailable.

o
o

Is unable to testify due to death, or physical or mental ___________________________;


Is ________________________ and cannot be subpoenaed or otherwise made to appear

A Declarant is Deemed Available if:


The party seeking to introduce the statement procured the declarants unavailability
Example 116: David Harold joined John Wilkes Booth on the run. Booth is now
testifying on his behalf, and wants to use a statement Harold made in the
woods. Booth claims Harold said, I killed Abraham Lincoln. Imagine Booth
imprisoned Harold in a cave. Booth cannot use Harolds statement, because he
procured Harolds unavailability.

The Five Unavailable Declarant Exceptions:


1. Former Testimony
Former testimony given _______________________________ in a hearing or deposition
is admissible in a subsequent trial if
Opposing party had an opportunity to cross-examine the witness and had a
__________________________________________ to develop the testimony.
Example 117: The prosecution is attempting to use Mary Todd Lincolns
statement at trial. They are claiming she is unavailable due to a nervous
breakdown. Mary Todd Lincoln previously testified at a deposition, and John
Wilkes Booths counsel had a chance to cross-examine her. Additionally, they
had a similar motive. The statement is admissible.
Example 118: Mary Todd Lincoln was deposed in a different case and Booths
counsel was not present. The statement is not admissible because Booth did
not have an opportunity to cross-examine her.

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Prior testimony at a ________________________________ does NOT qualify


2. Dying Declarations
Qualifies if the statement:
Is made by an individual who believes her death is _______________________; and
The statement pertains to the _______________ or the circumstances of her death.
Two Notes:
The declarant need not actually die; must only believe death is imminent
Only available in homicide and civil cases
Example 119: David Harold died of natural causes. He previously said he killed
Abraham Lincoln. Is this statement admissible? ______________________.

3. Statements Against Interest


Qualifies if:
Against declarants ____________________________________; and
o Pecuniary or proprietary interest; or
o Exposes declarant to civil or criminal liability
Criminal liability: Must have corroborating evidence that clearly indicates its
trustworthiness
A _________________________ person would not have made the statement unless
he believed it was true
Example 120: John Wilkes Booth wants to quote David Harold as saying, I
killed Abraham Lincoln. When the police found Harold, he had a one-shot,
blue-smoke Derringer. This is corroborating evidence. Booth can use Harolds
statement because it was against his interest and there is corroborating
interest.

4. Statement of Personal or Family History


A statement concerning the declarants own birth, adoption, marriage, divorce, etc.
5. Declarant Unavailable Due to Wrongdoing (Forfeiture Against Wrongdoing)
Example 121: John Wilkes Booth causes David Harold to be unavailable. Booth
cannot object if the prosecution attempts to use David Harolds out-of-court
statement.

A statement that is offered against a party who is wrongfully responsible for the
declarants unavailability.
Action need not be criminal (e.g., sending someone on a world cruise)

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CHAPTER 13: HEARSAY EXCEPTIONS (CONT.)


A. Exceptions Where Declarants Availability Is Immaterial (FRE 803)
Present Sense Impression:
A statement describing or explaining an event while it is happening or immediately after
Example 122: Clara Harris takes the stand and testifies, Moments after the
shooting, there was a woman in the audience who said, I just saw John Wilkes
Booth shoot the President. Is this admissible as a present sense impression?
__________________.
Example 123: Clara Harris is in line for the bathroom when she hears a
commotion. She cannot see what is going on, so she asks a lady in front of her,
Whats going on? The lady responds, John Wilkes Booth is jumping off the
balcony, hes running across the stage with a knife. Is this statement
admissible as a present sense impression? _______________________.

Excited Utterance:
o
o

A statement made about a _____________________________ event or condition while the


declarant is under the stress of excitement caused by the event
Different from present sense impression:
No timeline; depends on if the declarant is still under the stress of the event
Example 124: The radio announcer who was describing the Hindenburg event.
Someone could quote this man and offer it for the truth of the matter asserted.
Example 125: Major Rathbone testifies that an usher at Fords Theater comes
rushing up to him five or ten minutes later and say, panting, I saw John Wilkes
Booth shoot President Lincoln! Is Major Rathbone allowed to quote the man?
_______________________.
Example 126: You are on the phone with your girlfriend who is at Fords Theater.
She says, I am watching JWB shoot the President and run across the stage.
This is a present sense impression. If your girlfriend comes running up to you
ten minutes later and says, Oh my gosh, I just saw John Wilkes Booth shoot the
President! This is an excited utterance because she was still under the stress of
the event. It does not qualify as a present sense impression because it did not
happen during or immediately after.

Statements of Mental, Emotional, or Physical Condition:


o
o

A statement of a declarants ___________________________________ state of mind,


emotion, sensation, or physical condition
Used to show the declarant acted in conformity therewith

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State of mind:
Present intent;
Motive;
Plan
Example 127: John Wilkes Booth is on the stand. He is testifying about
something David Harold said. Booth says that Harold said, Im so angry, Im
going to kill Abraham Lincoln. Is this admissible for the truth of the matter
asserted? ____________________. It displays Harolds then-existing state of
mind that he was angry and wanted to kill President Lincoln.

Not admissible if it is about a memory, a past belief, or a past state of mind


Example 128: John Wilkes Booth cannot testify that David Harold said, I was
really angry at President Lincoln a week ago and therefore I wanted to kill him.
Exam Tip 8: Do not confuse the state of mind exception with circumstantial
evidence of the declarants state of mind (not hearsay). To meet the state of
mind exception, the statement must be offered to prove that the declarant
acted in accordance with the stated intent (i.e., Harold tried to kill the
President).

Physical condition:
Used to prove that the condition existed
Cannot be used to prove the cause of the condition
Example 129: John Wilkes Booth could not testify, The morning after the
assassination, David Harold said to me, My leg is killing me from jumping off
the balcony at Fords Theater last night. This goes to the cause of the
condition.

Statements Made for Purposes of Medical Diagnosis or Treatment:


o
o

A statement that describes the declarants medical history, past or present


____________________________, pain, or other sensations
Also admissible if it goes to the cause of the injury
Example 130: The doctor could testify about Harolds statement, My leg is
killing me from jumping of the balcony at Fords Theater last night.

o
o

However, may still be inadmissible due to the physician-patient privilege


Admissible if made:
To a __________________________ or other medical personnel;
Only for the purpose of enabling the doctor to testify at trial;
By someone other than the patient, as long as made for treatment or diagnosis
Depends on relationship between declarant and the patient

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Example 131: Mrs. Booth was with John Wilkes Booth when he went to see Dr.
Mudd. John Wilkes Booth was so tired he couldnt talk. Mrs. Booth said,
Johnny just broke his leg when he jumped off the balcony at Fords Theater last
night. This statement falls under the exception and is admissible.

A statement of the cause or source of the condition is not hearsay if it is reasonably


pertinent to diagnosis or treatment.

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CHAPTER 14: HEARSAY EXCEPTIONS (CONT.)


A. Exceptions Where Declarants Availability Is Immaterial (cont.) (FRE 803)
Recorded Recollection:
o
o

The record is read into evidence because the witness cannot recall the event or information
Requirements:
The record is about a matter the witness once _______________________ about;
The witness _____________________ or adopted the record when the matter was fresh
in his mind;
The record accurately _________________________ the witnesss knowledge; and
The witness now cannot __________________________ the events well enough to
testify, even after consulting the writing while on the stand.
Example 132: Mary Todd Lincoln had a diary. She went home immediately after
the shooting and wrote about the assassination. Now, she cannot recall the
event, even after she reads her diary entry. This would possibly qualify for
admission under the recorded recollection exception.

The proponent may only ___________________ the document into evidence. Only the
opponent can introduce it as an exhibit.

Business Records
o

A record is not excluded if:


Record is kept ______________________________________ of regularly conducted
business activity;
The _______________________________ of the record was a regular practice of the
activity; and
The record was made _____________________________________ the time that
someone had knowledge about the activity.
Example 133: A receptionist who logs calls as they come in. This log is
admissible under the business records exception.

o
o

Distinguished from Recorded Recollection: Does not require witnesss ability to remember
Authenticating Records:
By the _____________________________;
Qualified witness;
Records may be self-authenticated

May be deemed inadmissible if the source or the preparation of the information appears to
lack trustworthiness

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Example 134: The records were prepared in anticipation of litigation. These


may not be considered trustworthy because the person who prepared the
records may have wanted to mischaracterize things.

Examples:
Medical records;
Police reports;
Exception: Witness statements within police reports

Absence of a Record:
May be admissible to prove the event did not occur
Admissible if a record is usually kept for that type of matter
Example 135: Mary Todd Lincoln sues Fords Theater for wrongful death
because of improper locks and poor security. There is a maintenance and
security log. Mary Todd Lincoln could offer the log to show that on the night of
the assassination, there were no entries showing that the security guards made
their rounds that night.

Public Records
o

Applies to a record or a statement of a public officer or agency if:


Sets out activities of office or agency;
Observation of a person who has a _____________________ to report that observation
Exceptions:
Observations of a law enforcement official in a __________________________ case
Factual findings of a legal investigation in a civil case, or in a criminal case if it is
against the government

o
o

May exclude if the source of information or other aspects indicate a lack of trustworthiness
Absence of a Record:
Public officer usually keeps a record and no record exists, the absence
______________________________________ to show that it did not occur

Records of vital statistics


Record of death, birth, marriage, etc.
Not excluded if event is recorded to a legal office in accordance with a legal duty

Learned Treatise: Not excluded if:


An expert _________________________ on statement during direct or expert was
cross-examined on it; and
Publication is established as a reliable authority

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By expert
By another expert
By judicial notice
If admitted, statement is _______________________ into evidence; the publication is
NOT admitted
o

Judgment of a Previous Conviction: Not excluded if:


Judgment was entered after trial or a guilty plea;
Punishable by ______________________ or imprisonment greater than one year; and
The evidence is offered to prove any fact essential to sustain the judgment
Example 136: Traffic conviction greater than one year. Not admissible to prove
drivers negligence.

Other Exceptions Enumerated under FRE 803:


o
o
o
o
o
o
o
o

Records of religious organizations


Marriage and baptismal certificates
Family records (e.g., family Bible)
Records of documents affecting an interest in property
Ancient documents (authenticated documents in existence at least 20 years)
Market reports
Reputation concerning personal or family history, boundaries, general history, or character
Judgments regarding proof of matters of personal, family, or general history

B. Residual Exception/Catch-All Exception (FRE 807)


This is an exception for a statement that is not otherwise covered by any of the rules.
A hearsay statement may be admissible under this exception if:
o
o
o
o

Equivalent circumstantial guarantees of _________________________;


It is offered as evidence of a _______________________ fact;
It is more __________________________ than any other evidence on the point; and
Admitting the hearsay statement will best serve the purpose of the FRE and the interests of
justice.

Reasonable notice must be given to opposing counsel

C. Constitutional Limitations
Two constitutional grounds:
o

6th Amendment: Confrontation Clause


A testimonial statement is admissible against a criminal defendant if:

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Declarant is _______________________________________; and


Defendant had an opportunity to ________________________________ the
declarant
Testimonial Statement:
Inadmissible if testimonial to the _______________________________
What police action was involved?
Example 137: Statement was made to police during question, but purpose was
to help an injured person. This is not considered testimonial.
Example 138: Major Rathbone is laying there right after being stabbed. The
police run up and start to talk to him. They ask him if he is okay. Major
Rathbone blurts out, John Wilkes Booth did this. You have a pretty good
argument that this is not testimonial.
Example 139: A statement made to the police during questioning to ascertain
past criminal conduct is considered testimonial.

Unavailable:
Prosecution must show the defendant __________________________ the
declarants unavailability and the defendant did it with the ____________________
to make the declarant unavailable.
o

14th Amendment: Due Process Clause


May prevent application of a hearsay rule when the rule would restrict the defendant
from his ability to mount a defense.

Face-to-Face Confrontation
The Confrontation Clause generally requires a face-to-face confrontation between the
defendant and a witness in court.
Example 140: The defendant can force a child witness who is a victim of a sex
offense to step out from behind a screen to testify.

Exception: When there is an important public interest, such as protecting a child


Example 141: A child witness is the victim of a sex crime. The child can testify
via one-way, closed-circuit television if the court finds the child would suffer
serious emotional distress if the child was forced to testify in open court.

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CHAPTER 15: REVIEW QUESTIONS (PART 1)


A. PRESENTATION OF EVIDENCE
1. Who decides whether evidence is admissible, the judge or the jury? _____________________
2. Once evidence is admitted, who determines issues of weight or credibility? _________________
3. On appeal, what must you show in order to predicate error on a trial court's evidentiary ruling?
_____________________________________ of a party was affected; and
Court was ___________________________ of the error at the time
4. What are the ways to notify the trial court of an error and thus preserve issue for appeal?
_____________________________
___________________________________
5. What is judicial notice?
Court's accepting of a fact as true _______________________ requiring proof
6. What sorts of adjudicative facts are subject to judicial notice?
Facts __________________________________ within the jurisdiction; or
Can be ______________________________________________ by a source whose accuracy
cannot be questioned
7. What is the effect of judicial notice in a civil case?
Jury instructed to __________________ it
8. What is the effect of judicial notice taken in a criminal case?
Jury _________________ accept it

B. FORM OF QUESTIONS, BURDENS, AND PRESUMPTIONS


1. What is a leading question?
One that ______________________________________________________ within the question
2. When are leading questions generally permissible on direct examination?
_______________________________ matters
Witnesses who have _________________________________________________________
_____________________________ or hostile witnesses
3. What does the phrase burden of production mean?
Necessity of producing evidence _____________________________ to get your case to the jury

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4. What does the phrase burden of persuasion mean?


Persuading ______________________ that you should win your case
5. What is a rebuttable presumption?
Shifts the _______________________________________________________ and requires the
____________________________________ to offer counterproof

C. RELEVANCE
1. What is the standard or test for determining whether evidence is relevant?
Evidence is relevant if it makes any fact of import ______________________________________
than it is without the evidence.
2. Under what circumstances can the court exclude relevant evidence under Rule 403?
__________________________________________ is _________________________________
______________________________ by ____________________ (unfair prejudice)
3. What is character evidence?
Proof of a ______________________________________________________ as a way of proving
that the person probably acted in that manner on a particular occasion
4. For what purpose is character evidence not admissible in civil cases?
To prove ___________________________________________________ with that character trait
Example 142: The defendant drove fast on two previous occasions. This
evidence is not admissible to prove the defendant drove fast on the day of the
collision.

5. If character evidence is admissible as evidence in a case, what form(s) may it take?


___________________________________;
____________________________; and
_____________________________________

D. CHARACTER EVIDENCE IN CRIMINAL CASES AND PRIOR BAD ACTS


1. What does it mean to say that character evidence is offered to prove propensity?
That a person ____________________________________________________________ because
they are that kind of person
Example 143: He is mean, so I bet he killed Abraham Lincoln.

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2. When is evidence of a crime victims character admissible to prove propensity?


When introduced by a __________________________________ as a relevant trait
Example 144: John Wilkes Booth claims self-defense, and wants to introduce
that Abraham Lincoln was a violent, fighting person. This is admissible evidence
of the victims character.

3. When is evidence of a criminal defendants character admissible to prove propensity?


When the ______________________________________________________________
Example 145: John Wilkes Booth took the stand and said he is a peaceful, nonpolitical person. He opened the door, allowing the prosecution to introduce
evidence of his character for violence.

4. If a defendant offers proof of an alleged victims character or propensity for violence, may the
prosecution offer evidence of the defendants character or propensity to commit fraud?
_____________________
5. If character evidence is admissible in a criminal case to prove propensity, what form(s) may it
take?
____________________________________________; or
_______________________________________;
Not _______________________________________
6. For what purposes may the prosecution introduce evidence of a criminal defendant's prior
crimes?
To prove something other than ___________________________________________
7. What is the difference between character evidence and habit evidence (which is admissible
under Rule 406)?
Habit evidence is more ___________________________________________________

E. WITNESSES: IMPEACHMENT
1. Is it permissible to impeach a witness regarding bad character for untruthfulness?
_____________________
2. If evidence of bad character for untruthfulness is admissible, what form(s) may it take?
___________________________________________________________
3. Under what circumstances may evidence be offered of a witness's good character for
truthfulness?

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Only if the character for truthfulness has been __________________________________


4. Under what circumstances may a witness be impeached on cross-examination about prior bad
acts?
Discretion of the court, if ______________________________________________________
______________________________________
5. May a witness be impeached by having another witness describe the first witness's prior bad
acts?
___________________. Reputation or opinion only. Prior bad acts on ____________________
______________________________ of the first witness only. Cannot prove
________________________________________
6. What two sorts of criminal convictions may be used to impeach a witness?
______________________________
________________________________________
7. How does the standard for allowing or disallowing impeachment differ regarding these two
types of criminal convictions used for impeachment?
Dishonesty: __________________________________________
Serious crime: subject to a ___________________________________________
8. How are criminal defendants treated differently from other witnesses in regard to impeachment
by proof of prior criminal convictions?
Most witnesses: must prove that the ___________________________________________ is
_________________________________________________________ by danger of
___________________________________________.
Criminal defendants: ________________________________________ must
____________________________ the risk of ______________________________________
9. Is it necessary to give the witness an opportunity to explain or deny a prior inconsistent
statement before impeaching a witness with that the statement?
______________
10. May prior inconsistent statements generally be proven with extrinsic evidence?
_____________
11. What techniques may be used to rehabilitate a witness who has been impeached?
Character evidence of ______________________________
Introduce _______________________________________________
Allow witness to ______________________________ on cross-examination
12. What is the difference between present recollection refreshed and past recollection recorded?

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Present recollection refreshed: showing the witness something to ________________________


________________________ so he can testify from ___________________________.
Past recollection recorded: ____________________________________ something the
____________________________________ instead of testifying from memory because the
witness __________________________________________ enough details to testify
13. Is an adverse party permitted to inspect documents used to refresh a witness's memory?
_______________
14. May an adverse party introduce into evidence documents used to refresh a witness's memory?
______________

F. OPINION TESTIMONY
1. Under what circumstances may an expert witness testify?
When __________________________________________________________________ will
____________________________ the trier of fact
2. Under Daubert and Rule 702, what requirements must expert testimony meet?
Editor's Note 6: There are actually five requirements for expert testimony
under Daubert.

Witness is qualified as an expert


Testimony is based on sufficient facts and data
Testimony is the product of reliable principles and methods
Witness applied the principles and methods reliably to the facts
Witness possesses a reasonable degree of certainty in her opinion
3. In general, may an expert witness offer an opinion on an ultimate issue in the case?
_______________
4. Under what circumstances will an expert witness be precluded from opining on an ultimate
issue?
Opinion about whether a defendant in a criminal case had the _________________________
___________________________________ for a crime or defense

G. BEST EVIDENCE RULE


1. What sort of evidence is generally excluded by the best evidence rule?
Testimony about the ____________________________________________________________

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2. If an accurate video recording of a car accident were available, would it violate the best
evidence rule for a party to call a witness to describe the accident, rather than introducing the
videotape?
_______________
3. When might a photocopy or carbon copy be considered the original under the best evidence
rule?
Any copy meant to have the _______________________________________________________

H. PRIVILEGES
1. What are the two forms of spousal privilege?
____________________________________________________
________________________________________________________________________
2. May the spousal immunity privilege be invoked regarding testimony about events that occurred
before the defendant spouse and the witness spouse were married?
_______________
3. What is protected by the confidential marital communications privilege?
Confidential communications made _______________________________________________
4. May the confidential marital communications privilege be invoked after a divorce?
_______________
5. What are the key exceptions to the confidential marital communications privilege?
Lawsuits ___________________________________
When one spouse is accused of a _______________________________________________
___________________________ or their children
6. What are the essential elements of the attorney-client privilege?
_____________________________________________________ between a lawyer and a client
for the purpose of __________________________________________________________
7. Identify two central exceptions to the coverage of the attorney-client privilege:
Future ______________________________________________
Disputes between _________________________________________________
8. Under state laws recognizing a physician-patient privilege, what limitations are common?
Does not exist if acquired for
____________________________________________________________________;

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______________________________ purpose;
Dispute between _______________________________________________________
9. What limits attach to the psychotherapist-patient privilege?
_____________________ as physician-patient privilege
Does not apply if part of a _____________________________________________ or
__________________________________________________________
10. May the privilege against self-incrimination be invoked in a civil case?
_______________

I. PUBLIC POLICY EXCLUSIONS


1. For what purpose is evidence of liability insurance NOT admissible?
To prove ______________________________________________________________
2. For what purpose is evidence of subsequent remedial measures NOT admissible?
To show ________________________________________________________
To show a product was ______________________________________
To show a product had a ___________________________________________
3. For what purposes is evidence of subsequent remedial measures admissible?
_____________________________________, ____________________________, or
__________________________________ (if controverted)
4. For what purposes is evidence of an offer to settle a case admissible?
_________________________
5. Under what circumstances will statements made during plea bargain negotiations be
admissible?
If _____________________________ of the statement have been introduced by the
_______________________________, the _______________________________ can introduce
other portions as necessary to provide _____________________________
6. When will evidence of a victim's past sexual behavior be admissible in a criminal case?
Source of _______________________ or _____________________________
______________________________________ with defendant
As the ___________________________________ requires
7. When will evidence of a victim's past sexual behavior be admissible in a civil case?
If the __________________________________________________________________________
the risk of harm to the victim or prejudice to any party
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CHAPTER 16: REVIEW QUESTIONS (PART 2)


A. HEARSAY
1. What is the basic definition of hearsay?
An ______________________________________________ or conduct intended as an assertion
offered to prove the __________________________________________________________
__________________________________.
Example 146: The sky is blue. If it is being offered to prove that the sky was
blue yesterday, it is hearsay.

2. May nonverbal conduct be considered hearsay?


_______________, if intended as an _____________________________________
3. What uses might there be for a statement other than to prove the truth of the matter asserted?
__________________________________________________________
____________________________________
Circumstantial evidence of __________________________________________
4. If the statement, I will shoot you, if you do not give me that horse, were offered to prove
duress on the part of the thief, would it be objectionable as hearsay?
_____________
5. If the statement by a person lending a car, Be careful, my brakes are bad, were offered to
prove that the car borrower was comparatively negligent or had assumed the risk, would it be
hearsay?
_____________
6. What is multiple hearsay and what must be shown to render it admissible?
___________________________________________________________
Each ________________________ must fit within an _______________________________
________________________________
Example 147: Secretary of War Stanton testifies and quotes George Atzerodt,
who was quoting John Wilkes Booth. There are two levels of hearsay. The
statements of John Wilkes Booth are an admission of a party opponent.
Stantons testimony is admissible if Atzerodts statement fits within an exception
or exclusion.

7. The three categories of prior statements that are defined as not hearsay by Rule 801(d)(1) all
share one common threshold requirement or element. What is that threshold requirement?

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The declarant must ____________________________________________________________


_______________________________________
8. What sorts of prior inconsistent statements are defined as not hearsay by rule 801(d)(1)(A), and
thus may be used not merely to impeach a witness, but as proof of what they assert?
Made _______________________________ at a ________________________________
___________________________________
9. Will a prior consistent statement made subsequent to the alleged improper motive or influence
qualify as not hearsay under rule 801(d)(1)(B)?
_____________
10. What sorts of statements are defined as not hearsay under rule 801(d)(2)?
Statements made _______________________________________________________________
Exam Tip 9: In a criminal case, the defendant is the only party to the case.
Only the defendants statements can qualify as an admission of a party
opponent.

B. HEARSAY EXCEPTIONS (DECLARANT UNAVAILABLE)


1. What five hearsay exceptions require a showing that the declarant is unavailable to testify?
804(b)(1): Former ___________________________________________
804(b)(2): ___________________________ declaration
804(b)(3): Statement ________________________________________________
804(b)(4): Personal or family history
804(b)(6): ________________________________________________
2. What are the five ways in which a declarant can be shown to be unavailable under Rule 804(a)?
804(a)(1): __________________________________
804(a)(2): _____________________________
804(a)(3): ___________________________________________
804(a)(4): ________________________
804(a)(5): ______________________ and can't be _______________________________
3. Under Rule 804(b)(1), what must be shown in order for the former testimony to be admissible?
The declarant __________________________________________________ at a proceeding;
and
The party against whom the testimony is being offered had _________________________
____________________________________________________ to develop the testimony by
______________________________________________.

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4. What are the elements of the dying declaration hearsay exception under Rule 804(b)(2)?
Declarant believed _______________________________________
Declarant believed that __________________________________________
Statement concerned _________________________________________________________
________________________________
Exam Tip 10: The third prong of this test trips up a lot of students. Make sure
the statement is about the cause or circumstances of death.

5. What is the difference between a statement against interest and a party admission?
Statement against interest does not have to be ________________________________________
6. What would be the consequence under Rules 804(a) and 804(b) if a party was to threaten a
witness and frighten the witness into being unwilling to testify?
Party who frightened witness _______________________________________ claim that the
witness was _________________________________________;
_______________________________ could introduce ______________________________
_____________________________________________________________

C. HEARSAY EXCEPTIONS (DECLARANTS AVAILABILITY IMMATERIAL)


1. If a witness were to testify, My wife saw the shooting, and then called me and told me John
Wilkes Booth was the shooter, would that be admissible as a present sense impression under
Rule 803(1)?
_____________
2. What sorts of statements are admissible as excited utterances under Rule 803(2)?
Statements that relate to ____________________________________________ made
______________________________________________________ of the exciting event
3. If a witness were to testify, The plaintiff told me on Tuesday that his leg was sore because the
defendant kicked him the week before, how would a court treat that testimony under Rule
803(3)?
o
o

_____________________ part about ___________________________


_______________________________ part about _______________________________

4. If a witness were to testify, Atzerodt told me he was planning to go to Washington, D.C.,


would that be admissible under the state of mind exception of Rule 803(3) to prove that he
went to D.C.?
_____________

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5. What must be shown in order for a statement to qualify under the Rule 803(4) exception for
statements for purposes of medical diagnosis or treatment?
Made for purposes of ____________________________________________________________
6. If a plaintiff visits a doctor not for treatment, but in order for that doctor to diagnosis his
condition for purposes of testifying for the plaintiff as an expert at trial, will those statements
still be admissible under rule 803(4)?
_____________
7. If a declarant said to his doctor, I was run over by a white horse, will that statement be
admissible under the Rule 803(4) exception for statements for purposes of medical diagnosis or
treatment?
__________________________________________________________________________
8. What is the difference between a past recollection recorded and a present recollection
refreshed?
Past recollection recorded: ______________________________ to the hearsay rule if you
want to ___________________________________________ to the jury
Present recollection refreshed: used to ___________________________________________
so he can _____________________________________________________
9. What must be shown in order to render a document admissible under the past recollection
recorded exception (Rule 803(5))?
Record concerns a matter about which the witness _____________________________
Witness _____________________________________________ at the time the
__________________________________________________;
Record was ________________________________________________________;
Witness does not now have __________________________________________________ to
testify __________________________________________________________
10. What must be demonstrated to show that a document qualifies as admissible under the
business records exception of Rule 803(6)?
It was created in the _______________________________________________ of a regularly
conducted business activity by
________________________________________________________________.
Example 148: Medical records, phone log made by a receptionist, etc.

11. If an accident report were created primarily for purposes of preparing for possible litigation,
would it qualify under the business records exception of Rule 803(6)?
_____________

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12. Under what circumstances may a court exclude a document otherwise fitting under Rule 803(6)?
Circumstances indicate ___________________________________________________________
13. May a party attempt to show that an act or event did not occur by the absence of an entry in a
record?
_____________
14. What limitation applies to statements in public records by law enforcement of matters
observed under Rule 803(8)(B)?
Cannot be used against ________________________________________________________
15. Under what circumstances may statements in a scientific, historical, or medical treatise or
periodical be admissible under Rule 803(18)?
Established as a _____________________________________________________; and
______________________________________________________________

D. CONSTITUTIONAL LIMITATIONS TO THE HEARSAY RULE


1. On what two Constitutional grounds might hearsay evidence be challenged?
_________________________________________________
_____________________________________________________
2. What is the source of the requirement that an accused be confronted with witnesses against
him?
___________________________________________________
3. What sorts of out-of-court statements will violate the confrontation rights of an accused if
offered against him in a criminal trial?
______________________________________________________________
4. What makes a statement testimonial under Confrontation Clause case law?
Made under circumstances that indicate it was _____________________________________
____________________________________________________________________________
5. Will statements made for the purpose of seeking emergency help be considered testimonial
under the Confrontation Clause?
_____________
6. What must be shown before a testimonial statement may be introduced against a defendant?
_________________________________________________

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Defendant had
________________________________________________________________________
7. If a witness is unavailable because the defendant killed him, will that necessarily render the
witness's prior statements admissible?
_____________;_________________________________________________________________
____________________________________________

[END OF HANDOUT]

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