Evidence Final Exam Study

Evidence Outline (Gershman)
London
EVIDENCE OUTLINE
INTRODUCTION
i. General Def of E: material from which inferences may be drawn as basis for proof of the truth/falsity of a fact in dispute
ii. Law of Proof Triangle: Consists of Substantive Law, Procedure, & Evidence
iii. FRE: streamlined body of rules;
1. Example: Rules function as model for most states codified laws regarding evidentiary rules NY State does not
have a code of evidence (common law jurisdiction 70-80% is common law)
iv. The Trial: rules of evidence change in importance depending on who the fact finder is
1. Judge: Rules of Evidence do not matter as much
2. Jury: Rules of Evidence matter more b/c the jury needs to be protected from being exposed to prejudicial,
unreliable, incompetent, improper material/proof
v.
Making the Record: Reviewing court can act only on formal record of trial that has been officially transmitted by the
clerk of the court.
1.
The Record: Litigations paperwork (including suit papers &motions filed), Verbatim transcript of
hearings, conferences, &trial testimony [including objections / arguments*], Tangible exhibits that the parties
offered into evidence
a. Crucial: If you dont make your proof / objection, you may have waived it on appeal later on
b. Suit Papers pleadings in the case Complaint, Answer, Reply, etc.
c. Court Reporters: accurate taking down of everything that is said by the participants;
2.
Stipulation: a voluntary agreement entered into between counsel for the parties to a litigation respecting
some matter that is before the trial court [proof]; Binds the lawyers principals (the clients) b/c it is identical to force
of admission
vi. Offering Evidence

1.
Generally: Evidence will be in form of oral testimony &tangible exhibits
2.
Types of Evidence
a. Testimonial Evidence: oral testimony given by witness, under oath or affirmation, in court
b. Tangible Evidence:
i. Real Evidence: the real thing involved in the underlying event actual murder weapon, written
contract, etc.; can be direct evidence or circumstantial
(1) Marking for Identification
(2) Laying the Necessary Foundation
(3) Offering Exhibit into Evidence
(4) Securing an Express Ruling on the Record
(5) Showing or Reading the Exhibit to the Jury
ii. Demonstrative Evidence: not the real thing involved in the case; visual or audiovisual aid for the fact
finder; tangible material used for explanatory or illustrative purposes only; anatomical model, chart,
diagram, etc.
(1) Selected Demonstrative Evidence
(2) Prepared or Reproduced Demonstrative Evidence: risk of fabrication; law seeks to minimize this
risk
(A) must show exhibit not significantly different from those that existed at time; &
(B) must show exhibit is true &fair rep. of what it purports to show
vii. Objections to E: up to contending lawyers, NOT the judge, to not only make objections but to support them w/ reasons
1.
Reasons to Forgo Objecting
a.
No need to complain where it may be advantageous to efficiency or poses no risk of prejudice
b.
Do not want to underscore hurtful testimony
c.
Do not want to create impression of being excessively obstructive or create distrust
d.
Material may favor client
e.
The objectionable evidence may open the door for more important evidence later on

2.
a.
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Time for Objecting to Testimony: Waiver

Timely Objection: objection must be interposed b4 evidence was received [b4 witness answered, or exhibit
was shown to fact finder]; Objection must be made as soon as basis for it becomes apparent
viii. Offer of Proof: presentation of evidence for the record outside the jurys presence usually made after the judge has
sustained an objection to the admissibility of that evidence; must descend into specifics &be made in good faith;
1.
Function:
a.
Permits the trial court to make a fully informed, &correct ruling on the objection
i.
3 Parts: E itself; explanation of purpose for which E is offered; & an argument supporting admissibility
2.
Renewing Offers of Proof: happens when an offer, defective when first made, is thereafter perfected
ix. Standard for claim that E was erroneously admitted
1. Abuse of Discretion = UNR conduct by the Judge = error
CE: is E, that even if
1. judge has broad discretion (I.e. Rule 403) but can be argued
believed, doesnt solve
2. just b/c judge commits error doesnt mean the case will be reversed
the matter at issue,
3. no perfect trial, just a fair one
unless additional
2. Rule for Errors = Harmless Error Rule Need convince AP CT that errors were prejudicial/harmful
reasoning is used to
1. AP CT looks at record; decides if errors led to erroneous ruling or were they harmless so
reach the proposition
that judgment may st&(Most cases that result w/ HE will be affirmed on appeal)
the E is directed at
COMMON EVIDENCE THEMES
A.
Foundation: Almost every piece of E, must be produced by a W & a foundation must be laid showing that the
evidence is what it purports to be (authentic & legitimate) before that evidence may be introduced
1. How to Lay the Foundation: W Has Knowledge of the Event &/or Establish the Chain of Possession
B.
1.
2.
3.
C.
Distinction b/t Admissibility of Evidence (Judge) vs. Weight of Evidence (Jury) vs. Sufficiency:
Weight: jury must decide how much weight to give to the evidence that is admitted (Weight = Probative Value)
b. Defined: jurys mastery over the proof credibility, strength, etc.
Opinion: Judge does not provide opinion as to value of evidence; makes rulings on admissibility (Rule 104(a))
Sufficiency: Preponderance of Evidence (civil) vs. Beyond a Reasonable Doubt (criminal)
Recurring Issues in E: What should be admitted for the fact finder (FF) to consider & what use can properly be
made by the FF of those matters &materials that are ruled admissible
RELEVANCE &CIRCUMSTANTIAL EVIDENCE

A.
Relevancy Generally: relation b/w item of E & a proposition sought to be proved; if the item tends to
prove or disprove any proposition, it is relevant to that proposition
3.
Test: no clear test of relevance - depends largely on the background, experience, & learning of the judge
4.
401: Relevant E is E having any tendency to make existence of any fact of consequence [materiality] to
the determination of the action more probable or less probable than it would be w/out the evidence [probativeness].
i.
Look to see if logical inferences could be drawn from the E in question
a.
Degree of Probative Value: E, however minor, is admissible if there is any PV to an issue in the case
b. (Union Paint) Facts: Failure of Ds previously purchased paint was found probative to Ds breach of
warranty defense since defective paint was same kind as unopened can. Issue was not whether the
unopened can was defective but whether the Ds refusal to use the second can was R, thus whether his
refusal to pay was R. (K issue; R to refuse performance after bad paint was already received)
c.
Resolution of Primary Issue: determination of the relevancy of a particular item of evidence rests on
whether proof of that evidence would reasonably tend to help resolve the primary issue on trial (Knapp v.
State) The evidence of the doctors testimony is admisable because it makes it more proable that D did not hear
that the police officer beat the hold man to death-goes back to hersay rule because this defendant heard this
from another person so how can u trust that evidence.
i.
Facts: D claimed SD to murder, testifying he previously heard the V had beaten a man who eventually
died from the injury. Prosecution produced a physician who testified that the man had died of senility.
ii.
Held: Drs T admissible b/c it tends to make it less probable that D had heard that the V had beaten the
old man to death.
d.
Disputed Fact: The fact to which the E is directed need not be in dispute (i.e. background E which helps
facilitate a better understanding of the proceeding)
e.
5.
A Brick Is Not a Wall: When an item is offered &judged in isolation, it cant be expected by itself to
furnish conclusive proof of the ultimate fact to be inferred; pieces of E work together to create a
ladder leading to the ultimate inference.
Direct Evidence: evidence that proves a proposition w/out relying on any inference
Indirect or Circumstantial Evidence: E of a subsidiary fact from which the existence of ultimate fact may
be inferred; not on personal knowledge/observation; Persuasive value of each depends on # of inferences
required
i.
Inference: conclusion reached by considering other facts & deducing a logical consequence from them
ii.
Pure Circumstantial Evidence Case: I.e. cases based upon res ipsa loquitor.
Exclusion of Relevant Evidence: permissible if its probative value is substantially outweighed by danger
of (1) unfair prejudice, (2) confusion of the issues, (3) misleading the jury, (4) considerations of undue delay, (5)
waste of time, or (6) needless presentation of cumulative evidence (Rule 403) rule is inclined to admit E
a. Judge Must Consider:
i.
Probative Value: How clear is the E? How strong is the logical link b/w the E &the fact it is offered to
prove? How positive is the W? Is there alternative, less prejudicial E of the fact? [its not enough that
the unfair prejudice outweighs the prob. value it must SUBSTANTIALLY OUTWEIGH it]
(1) Unfair Prejudice: undue tendency to suggest decision on an improper basis, commonly an
emotional one [I.e. crime scene photographs showing the victims mangled body parts low
probative value &high degree of unfair prejudice]
ii.
b.
403 Balance: must balance probative value against those dangers (of prejudice)
a. 403 doesnt permit exclusion of E b/c judge doesnt find it credible
must be left to jury
(1)
Judge Must Assume Jury will Believe: When engaging in the BAL process, judge must assume
that the offered E will be believed by the jury; cant properly be excluded simply b/c the judge does
not consider it credible (Ballou v. Henri) = judge doesnt determine credibility (I.e. BAC test)
Doctrine of Limited Admissibility (Rule 105)

i.
Relevancy Depends on Purpose: purpose for which E is to be introduced must be known. Where E is
relevant only to 1 issue no problem arises, but where it may be relevant to one but not another
ii.
3.
Rule 402: All relevant E is admissible, unless excluded by some specific rule (Congress, FRE, Const,
USSC)
ii.
Corollary - E which is not relevant is NOT admissible; or excluded by another factor/rule
(1)
Const. Ex: Exclusionary Rule (4th Amendment), Confessions (5th Amendment)
(2)
Statute: statutes passed by Congress
(3)
Rules of Evidence: probative value < prejudicial (403 Exclusion; 802 Hearsay)
iii.
f.
g.
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Rule of Limited Admissibility: E that is inadmissible for 1 purpose while admissible for another
(1)
Limiting Instruction: When E admissible as to one party or for one purpose, but not admissible
as to another party or purpose, the court, upon request, shall restrict the evidence to its proper
scope &instruct the jury accordingly (Rule 105)
(A) Effectiveness: consider probable effectiveness or lack of effectiveness of a LI
(B) Criticism: Placebo Effect Legal Fiction how can the jury be prevented from considering
it once the evidence is introduced into their minds?
Relevance of Mathematical Probability E (probability of E must be

more than just speculative)
a.
Needs Direct E: Mathematical E alone w/out supporting direct E is
insufficient (Smith v. Rapid Transit)
i.
Facts: P alleged injured by Ds bus which operated on the street at the same time that her accident
occurred. No direct E introduced.
(1)
Held: A proposition is proven by a preponderance of the evidence if it is made to appear more
likely or probable in the sense that actual belief in its truth, derived from the E, exists in the
mind or minds of the court, notw/standing any doubts that may still linger there

ii.
b.
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Verdicts: we require supporting direct E b/c we want verdicts to be accurate &acceptable

Abuse/Manipulation of #s look for abuse of statistical E
I.e.: women robbed, W sees blond woman w/ pony tail get into car driven by black male, w/ a beard. Cop
round up 2 suspects matching the description. Pros calls math expert who T that the probability that a
couple chosen at random fitting the description is 1/12,000,000. Conviction overturned. Problem w/
variables the characteristics are not independent, &the probabilities are misused. (People v. Collins)
B.
Authentication: b4 any writing (or secondary E of its content) may be received into evidence, proponent
must offer a foundation of E sufficient to support a finding that the document is genuine & is what it purports to be
REL Analysis: (threshold determination)
(Rule 901)
1. What is the E?
authentication
notbetter
required
where
2. Does it have1.any tendency to prove theException:
issue? (Plus value
= make case
or make
theirs worse) & (Demonstrate PV)
a.
genuineness
of
document
is
admitted
in
pleading
or
by PI
other
E, or
3. Issue trying to prove is related to E (Consider Substantive law at issue in the case) [I.e.
on the
job, employee lost arm; D offers proof he looked
b.
adverse
to raise
a timely
objection for lack of foundation
away when injury occurred]
In Tortparty
issue fails
relevant
to Cont
N
2.
How to Authenticate: by direct or circumstantial E, or docs may be self-authenticating (I.e. Doc

w/ notary seal on it)
a.
Oral Statements: although not docs or real E, oral statements require authentication as to the
speakers identity
b.
Examples of Authentication Methods (902(b)):
i.
Testimony of Witness W/ Knowledge,
When auto device takes photo, limited authentication
ii.
Nonexpert Opinion on Handwriting,
is needed (i.e. where, when & context)
iii.
Comparison by Trier of Fact or Expert Witness,
*Left to Jury to determine comparison of pic w/ issue
iv.
Distinctive Characteristics &the Like,
in case (i.e. if D looks like person in photo)
v.
Voice Identification,
vi.
Telephone Conversations,
vii.
Public Records or Reports,
viii.
Ancient Documents or Data Compilation,
ix.
Process or System, Methods Provided by Statute or Rule [Rule 902(b)]
c.
Subscribing Witness Not Necessary: Testimony of a subscribing W is unnecessary to
authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the
writing (Rule 903)
d.
i.
ii.
iii.
iv.
v.
Ways to Authenticate Handwriting:

Witness testifies who is familiar w/ persons handwriting (direct evidence) [Rule 901(b)(2)];
Witness observed the letter being written;
Handwriting expert; or
Self-authenticating writing (something in subject matter of the doc indicates who the writer is)
[maybe] Showing comparisons of handwriting to the jury &letting them decide
i.
Authentication of Oral Statements: authentication consists in identifying the speaker;

Lay opinion T to authenticate an oral statement, W must T that he is acquainted w/ the persons voice
e.
C.
1.
a.
Character Evidence (Rule 404) Char E of D or V, is presumptively inadmissible (in proving conduct)
Introduction: If you can assail the character of your opponent, you can win the case
Defined: evidence of a persons general propensity (human trait) such as honesty, violence, etc.
i.
Purpose: admissibility depends on the purpose for which the character evidence is offered; (I.e. to
show a persons conformity w/ character or to impeach or rehabilitate a witness)
ii.
Depends on the purpose you are using it for.
b. Types of Character Evidence: 3 ways to prove a particular trait of character

i.
Opinion: Opinion testimony by acquaintances (Rule 405(a))

(2)
Witness personally acquainted w/ accused
(3)
Witness knows the accused well enough to have formed a reliable opinion
(4)
A case with a prison inmate only new him for one month not enough time to learn character.
ii.
Reputation*: Testimony as to the persons reputation in the community (Rule 405(a)); and
(1)
Witness is from same community as accused;
a.
(2)
Knows person a substantial period of time;
*NY common law limits character evidence to reputation (Time consuming reasons/Logistical Reasons)
iii.
2.
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Specific Incidents of Past Conduct: when character/trait of a person is an essential element of a

charge, claim, or defense, specific instances of that persons conduct may be admissible; 405(b)
a. Only use when: character is issue; KIPPOMIA ; & Bias
Cannot Show Propensity: E of a character trait is generally inadmissible to show action

in conformity w/ that trait on a particular occasion (404a) (i.e. that D is bad or that he had a propensity to commit
the crime charged).
a. Rationale: relevancy E might have is outweighed by the risks of undue prejudice &confusion of the issues (i.e.
such E might influence the jury to punish the bad person despite what the rest of the evidence shows)
b.
Exceptions: [IDVOXS]: E may not be used to show D is a bad person (rarely admissible in civil) (404a1/2)
i.
Issue: 405b: whenever a partys character is in issue under the pleadings, such evidence is admissible
(1) Example: E of intemperate habits of switchman admissible b/c it went to railroads awareness of
Cant punish for what D did
his habits prior to accident which factored in the issue of punitive damages; BUT, intemperate
in the past but must prove
habits were inadmissible to show that he was N at the time of accident (Cleghorn v. NY Central)
guilt for current offense
1. Proof of prior intoxication isnt relevant to prove drunk 2day BUT is to show the
(i.e. cant use past
companys knowledge/awareness that he was a drunk & they should have dismissed him
drunkenness to prove
2. 105 application inform jury of its permissibility for 1 issue and not another
present drunkenness today)
3. Evidence can come in on one issue but not another rule 105 other uses for same evidence
(2) Defamation: where defamation action is based on statements as to Ps character, &D pleads truth
as a defense, Ps character is in issue & may be offered by either side
ii.
If D offers Pertinent CH E
of self (only by R&OP)
Pros may introduce any
other CH E about D
If D offers CH E of V
Pros may introduce that
same CH E about the D
Defendants Good Character in a Criminal Case (404(a)(1)): as matter of fairness, accused in criminal
case may always introduce E of his good character to show improbability that he committed crime.
(1) Accused may offer E of pertinent trait of character (Not SI; only Rep & Op); but SI on CEX
(2) Prosecutions rebuttal of the character E offered by D; or
(A) Opening the Door: When D puts his character at issue through reputation E, P may ask W
if he is aware of specific acts of bad conduct relating to the D (Michelson) [last line 405a]
Reason: assumption is that even if unrelated, the prior arrests proceed from the same
defect in character that D has put at issue
Arrests: Character W may be CEX as to an arrest of D whether or not it led to conviction
(3) If accused offers E of a trait of character of alleged victim, Pros may offer E of same trait of
character of the accused.
iii.
Victims Character* in Criminal Case 404(a)(2) (not to be proven by SI)

(1) E of a pertinent trait of character of alleged V of crime offered by accused, or (not SI)
(2) by prosecution to rebut such; or
(3) E of peacefulness of alleged V offered by P in homicide case to rebut E that V was 1st aggressor
1. *NY Rule: D had to have known victims character at the time of the act
iv.
Other Crimes 404b: E of other crimes, wrongs, or acts not admissible to prove character of person to
show character in conformity but it may be admissible for other purposes like proof of KIPPOMIA
(1)
KIPPOMIA Categories (May use SI)-specific acts
(A)
Knowledge (i.e. Sold fake painting as authentic; D claimed mistake; P admits E
that D sold fraudulent items in past admissible as CE showing he R knew painting was
fake)-that he had knowedgle the paintings were fake
-need total denial of incident on the stand, but if you say I told him where to buy a sandwhich
when he came to your door for drugs you can.
(B)
Intent (I.e. to rebut D claim that he accidentally/mistakenly killed his father)he had the intent to kill the father
(C)
Preparation: I.e. E that D stole a car is admissible to show D preparation to
facilitate robbery
Other Crimes E is often

used to show Motive

(D)
(E)
(F)
(G)
(H)
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Plan (common scheme or plan; must be unique / uncommon in the elements):

Prove existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part
Guideline: must be R similarity showing a MO from which the jury could logically infer
that the commission of the earlier crime tends to show that the D was likely to have
committed the crime charged.- similar plans.commision of earlier crime so guilty of this
one.-Multiple crimes together
Opportunity
Motive: not element of crime, but important to prove suggests person is more
likely to have done something (heavy CE b/c it allows the inference for mens rea + actus reus)
Identity: modus operandi in crimes must be so similar &unusual as to indicate
that the same person perpetrated both - extrinsic acts must bear a high degree of similarity to
mark them as the handiwork of the accused (United States v. Carillo) SIGNATURE
Facts: E of 2 past drug sales where D used cocaine filled balloons to

help establish Ds identity as a drug dealer was inadmissible b/c use of balloons as the
drug package were not so unique to mark them as a signature or handiwork of D alone
Absence of Mistake/Accident
(2) Proof Required: where E of other crimes or bad acts is admissible to show KIPPOMIA, etc.,
proponent need not show that anyone was actually convicted of the other crimes or acts
(A) Clear & Convincing E: Some courts hold that before E of a collateral offense is admissible
for any purpose, Pros must 1st establish by clear &convincing E, that D committed that
offense (Tucker v. State); not federal rule
Facts: V found shot dead at Ds house; D appears unshaven &drunk. Similar incident
occurred previously, but D was never charged. Trial court erred in admitting evidence of
the previous incident under common plan or scheme b/c the prosecution failed to provide
clear &convincing evidence that D committed the prior offense.he was never convicted
of the first murder so he was never charged so at the trail of the other muder that evidence
was not allowed in since the 1st murder was never proved it was done by him.
(3) 403 (Balancing) Considerations: strength of E as to commission of other crime, similarities
between crimes, interval of time elapsed between crimes, need for the evidence, efficacy of
alternative proof, degree to which evidence probably will rouse the jury to overmastering hostility
(4) Notice: Prosecution must provide R notice in advance of trial or during trial to use KIPPOMIA;
trial court may excuse pretrial notice on good cause shown
v.
X-Cross examination (607, 608, 609 below): to impeach or rehabilitate a person as a witness
vi.
Sex Abuse Crimes (413, 414, 415): to show that a person committed other sex crimes.
(1)
Generally: Pros or P may offer E of other similar specific acts of sexual assault
(413) or child molestation (414) by an accused or civil party on character theory of logical
relevance
c.
Limiting Instruction [Rule 105]: Reminds jury that the E can only be used for purpose which it was introduced.
Pros cant argue, once E is admitted, that the crimes also show the D is a bad person &, more likely to have
committed the crime.
d.
Preliminary Questions (Rule 104(a)): Preliminary questions concerning qualification of person to be a W,

privilege or admissibility of E determined by CT Court not bound by rules of E except w/ respect to privileges
i.
Burden of Proof: Preponderance of the E CT need not make a preliminary finding that the acts
actually occurred; it need only find that the E is sufficient to create an inference that accused
committed the act (Huddelston V united states-pg129)
(1)
Facts: D admitted possession of stolen property, but claimed that he did not know the tapes
were stolen E introduced to show that D had previously sold bulk number of TVs on 1
occasion, & negotiated to sell appliances on another. CT Admitted the E
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c.
Conditional Relevance. When the relevancy of E depends on the fulfillment of a condition of fact, the CT shall
admit it upon, or subject to, introduction of E sufficient to support a finding of the fulfillment of the condition. 104b
a. I.e. Painting (Picasso) is there sufficient E that paintings were actually stolen to fulfill Knowledge (O.C.)
b. Chaarcecter evidence is not used in civil cases
HYPO-From class notes before habit starts pg 117,139,145-146
1)
D. Habit E
1.
Generally: habit evidence refers to persons routine reactions to particular situations
2.
Rule 406: E of habit of a person or the routine practice of an org, whether corroborated
or not &regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or org on a
particular occasion was in conformity w/ the habit or routine practice.
a.
Distinction from Using Character E:
iii.
Character typically limited to criminal cases; while habit may also be used in civil cases
iv.
Character limits specific instances of conduct; Habit normally requires specific instances
v.
In character, you avoid showing propensity; w/ Habit you try to show propensity
Character
Sally is always in a hurry
Bart is a drunk
Jeff is a careless driver
b.
c.
d.
e.
3.
a.
b.
Character Evidence vs. Habit Evidence

Habit (more specified than character)
Sally always takes two stairs at a time
Bart stops by Black Bear every Friday &has 4 beers
Jeff always runs the stop sign at 232nd Street
Value: highly persuasive as proof of conduct on a particular occasion

403 Discretion: judge has broad discretion to determine whether there enough instances to establish
foundation
Group Behavior: equivalent regular/routine practice on the part of a group is designated routine practice
of an organization in the rule.
Establishing: must show specific, routine, &frequently repeated behavioral pattern through either:
ii.
Opinion Evidence
iii.
Specific Acts of Past Behavior
Examples:
Perrin v. Anderson: Wrongful death action. D killed during a scuffle w/ police; Cops T that V repeatedly had
violent reactions when dealing w/ cops; his past incidents w/ police were thus admitted under habit E
Halloran: auto mechanics frequent use of immersion heating coil to increase circulation in Freon can, ignoring
warning labels against such use was admissible as evidence of habit (routine); P was injured when can exploded
E. Similar Happenings
1.
General: to prove the quality of the object, P may attempt to introduce E of other
accidents involving the same or similar objects, subject to 403 (If PV is substantially outweighed by UP
confusion, delay in trial, etc.)
a. Common Law Rule: this rule does not appear in the Federal Rules of Evidence its based in common law
2.
Rule: Evidence of other substantially similar occurrences may be relevant

circumstantially to show a defective or dangerous condition, notice thereof, or causation on the occasion in question
(Simon v. Kennebunkport)
a.
Facts: P injured when she tripped on sidewalk; Sued town for defective design;
E that in the 2 years prior to the accident 100 people stumbled or fell under similar circumstances at same
location, unchanged in condition was highly probative on the material issue whether the sidewalk was defective
b.
Nonoccurrence: absence of similar happenings may be admissible to show
unlikelihood of fault (PV)
1. I.e. Roller Coaster Hypo branch hit P, but never hit any1 b4 her
TEST: For party to introduce E of similar accidents/incidents over irrelevancy objection CT must determine whether
1. There is substantial similarity in the operative circumstances b/w proffered occurrence & one at bar, &
2. E is probative on a material issue in the case
3. Then he must do a 403 Balance Test (PV v. UP)
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F. Subsequent Precautions/Remedial Measures (407)

1. General Rule: evidence that, following an injury to the P, the D made repairs or took other remedial measures is
generally held not admissible to prove N or other culpable conduct in connection w/ event. (407)
a. Exceptions: E of subsequent measures is admissible to prove (OFI)
i.
Prove Ownership / Control [if this is in dispute relevancy issue],
ii.
Feasibility of Precautionary Measures, if controverted (Difficult to apply), or
(1) unless it is contended that the measures werent physically, technologically, or economically
possible under circumstances at the time, SRM are not admissible (Tuer v. McDonald)
(A) Facts: wife brings action against hospital after decedent died while awaiting surgery. After
the death, the hospital changed protocol to administer the Heparin. Dr. says he made a
judgment call given the risk at that time; he does not testify that measures were not feasible.
iii.
Impeachment: use E that has capacity to impeach Ch W (I.e. Ds engineer T that Ds stairway was
safe & proper when P fell; E that this engineer personally ordered installation of railing of stairway
after accident is admissible as tending to impeach his T) often using subsequent change in policy
iv.
To prove D was attempting to conceal or destroy E
2.
Public Policy Rationale: admitting such evidence would tend to discourage beneficial changes from being made
following an accident we want to encourage litigants to take subsequent safety or security precautions
G. Offers in Compromise
1.
Settlement Offers: E that D has paid or offered to pay $ in settlement of
a disputed claim against her (or that P has offered to accept a certain sum) is not admissible to fix liability b/w the
parties (408) - *(Civil Actions)
a.
Exceptions to 408 Not Excluded If:
i.
Otherwise
Discoverable: Evidence otherwise discoverable (Discoverable doesnt mean admissible)
Offers overlapping w/
ii.
For
Other
Purpose:
E offered for another purpose such as:
Admissions:
1. Offer/Payment of (1) Proving bias or prejudice of a W,
i.
Impeachment I.e. A sued B; A calls C (passenger in car) to T; B CEX & asks didnt you
Settlements themselves
C settle with defendant B? may be used to show bias/motive, but not prove liability
2. Admission joined w/
offer to pay a settlement
1. Not using to show Settlement T, but instead using such fact to demonstrate Bias of W
3. Offer/Payment of Med
a. I.e. If W controverts fact admitted in written offer to compromise, the written
Bills
fact may be used to impeach the W but it may not be used to prove liability
4. Admission joined w/ (2) Disproving contention of undue delay, (rebuttal to delay claim), or
offer to pay Med Bills (3) Proving an effort to obstruct a criminal investigation or prosecution
*Only (4) is admissible
i.
I.e. D investigated for criminal N; P wants prove D tried to settle case w/ a W in order to
avoid criminal investigation (10k not to T) =Done to obstruct GF investigation
b.
Rationale Supporting the Exclusion
i.
Lack of Relevancy: offers dont necessarily reflect liability litigants trying to avoid costs of trial
ii.
Undue prejudice Risk: juries may attach undue weight to such offers
iii.
Implied Agreement: parties impliedly agree settlement negotiations are w/o prejudice to their positions
iv.
Public Policy: policy of law is to encourage settlement of disputes w/o litigation to promote judicial
economy; if either party could prove liability w/ offers made, settlements would be discouraged
c.
d.
No Dispute: if there is no dispute as to validity or amt, or is introduced w/o objection, it would

be admissible Burden: party seeking to have the E of offers to compromise or statements made in the course
thereof excluded must show that discussions in question were made in compromise negotiations. (Davidson
v. Prince)
(1)
Facts: P injured by a cow that escaped Ds truck, P claimed he was 40 away, D claimed
P was 10 away (Cont N) D produced letter from P estimating distance at 10; P argued letter was
an offer in compromise CT said letter merely clarified/stated facts & demanded D admit fault
Common Law (NY): statements made in settlement are admissible (408 not applicable in NY)
e.
ii.
iii.
Offer v. Not Offer:

Offer: I will admit that I blew through the stop sign if you settle for $100
Not an Offer: I know that I blew by the stop sign, but would you take $100 to settle?

2.
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Payment of Medical & Similar Expenses: E of

furnishing/offering/promising to pay medical, hospital, or similar expenses occasioned by an injury is not
admissible to prove liability for the injury (409).
a. Policy Reason: payment or offer is usually made from humane impulses & not from an admission of liability,
& to hold otherwise would tend to discourage assistance to an injured person (dont want to discourage)
i.
Note: doesnt extend to conduct or statements not a part of furnishing/offering/promising to pay
b. HYPO: X gets in accident w/ Y, Y says Im sorry, it was my fault, let me pay your med expenses, should
judge admit Y statement?
i.
Answer: statement relating to the offering to pay medical expenses is not admissible under 409 but,
statement relating to admission of fact would be admissible since it was not made in compromise.
H. Guilty Pleas
1.
General Rule: in any civil or criminal proceeding, E of the following is not admissible against D
making the plea or was a participant in the plea discussions (410):
a.
W/drawn Guilty Pleas: w/d guilty plea is rare occurrence its only permitted where holding the person to
the guilty plea would be unfair
Guilty Plea isb.
Nolo Contendre Pleas (No Contest): no criminal conviction; seen in tax/antitrust cases (NY doesnt permit)
*Admission c.
Bankruptcy Statements: Statements made in course of any Chapter 11 Proceeding, or comparable state
Conviction
procedure; or
*Close of cased.
Statements Made During Plea Bargaining: made during plea bargaining w/ a pros/Govt L are not
*Vol/Knowingly admissible
*Waiver of
i.
Rationale: rulemakers wanted to facilitate/encourage plea bargaining
Right to Trial
ii.
Limits:
*On Record
(1) Not Law Enforcement Officials: only applies to statements made during plea bargaining w/
*Rarely w/d
attorney for the government, not plea bargaining w/ law enforcement investigators, &
(2) Waive: if prosecutor gets D to waive the protection, statements made during discussions which
are inconsistent w/ Ds testimony can be used (United States v. Mezzanatto US 1995)
2.
Guilty Pleas: Rule 410 doesnt deal w/ GP, instead it deals with admissions of culpability (waiveable protection)
a. Ando v. Woodberry: where the D enters a plea of guilty, this plea may be introduced against the D as an
admission in a subsequent civil or criminal proceeding involving the same act. But it is not conclusive; the D
may explain the circumstances surrounding the plea, &such explanation goes to the weight of the evidence.
(1) Facts: D pled guilty to traffic violation involving accident that he was sued for in the civil case; D
claimed he didnt mean what he said, but didnt want to waste time in court = GP was admission
(2) Plead guilty in criminal, & brought up in subsequent civil related to same issue i.e. accident
Since plea is relevant & is no counter-veiling PP, GP is admissible. [D can argue to jury for less weight]
3.
Completeness Doc: (410 106) If 1 party introduces portion of statement (as E), other party may
introduce the remainder of it = rule of fair play
i.
if D opens door by offering statement made in any of the above situations, P can
introduce other &/or rest of it to clear misleading aspects & put statement in context
4.
Acquittals: E of acquittal in a criminal case would not be admissible in a civil action for the same
incident b/c it would have a low PV (doesnt prove innocence) & it would have high potential for UP against P (403
balancing).
I. Trade Usage
1.
Generally: must establish Ind. STD to show a violation of TU leading to some theory of N, ask if D
complied
a. Facts: P introduced affidavit from board certified radiologist that the hospital deviated from standard of care for
performing ultrasounds by failing to have a staff person present &cited two national organizations guidelines;
b. Held: P failed to establish industry standard (by showing practice of other hospitals), b/c merely showed
Tech doesnt
industry guidelines that may or may not be followed
correlate w/
proper Ind. Std.
2.
Method
*just b/c there a. Custom/Practice: has evidentiary value to establish a standard of care in the industry (Anderson v. Malloy)
is better tech in
the Ind., doe
noy mean the
Ds was flawed
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i.
b.
Facts: Ds failed to install peepholes in the motel doors; P introduced E of other motels in the area
which provided more/better security for guests. CT (8th C) held it was admissible
Experts: can show C/P through introduction of expert T to establish the industry standard via real proof
J. Prior Sexual Conduct (No Rep or Op about prior sexual history; can only use SIPC)
1.
Accuseds Prior Sex Crime History: (Unlike Rape Shield, dealing with
Defendant/Accused Sex here)
a. Generally: 413-415 create a special exception to the rule against character evidence for sex crime cases
Ds prior sex
i.
413: when criminal D is accused of sex assault, the pros may introduce E that D committed other such
conduct
crimes to show his propensity to commit sexual assault (bearing on any matter relevant) (SIPC)
*413/414: E of
ii.
414: creates a comparable rule for cases in which the D is charged w/ child molestation (SIPC)
similar SA & CM
iii.
415: E of other offenses are admissible in civil cases involving sex assault/child molestation (SIPC)
cases is admissible
*415: E of otherb. Application
sex offenses is
i.
403: judge will use 403 to exclude other-offense E if PV is substantially outweighed by UP
admissible in civil
404a exceptions ii.
Types of E Admissible: Most of the other exceptions to rule against character E provide that E be
b/c show
presented through Op or Rep T. However, 413-415 dont allow for Op or Rep T &allow
propensity for
(1)
Prior Acts: T about prior acts of D whether culminate in conviction or not; (I.e. V comes
deviant sex acts
fwd for the 1st time after D was accused of raping another woman, that T would be admissible)
Judicial
discretion to2.
keep
Rap Shield Law: (412) exist in every J in America (NYCP 60.42) (Need SI)
out (403) a.
Historically: b4 RSL an accused who claimed V consented was entitled
to introduce E of V Rep for promiscuity to show likelihood of consent
b.
Generally: E of V alleged prior sexual conduct / other men is
inadmissible on the issue of whether she consented to sexual intercourse w/ the accused (412) (May not CEX V
about any other sexual behavior)
i.
Rationale:
(1) Policy: Dont want to discourage V from coming fwd b/c fear their reputation will be destroyed
(2) Confrontation Issue: raises issue that Ds Const right to confront may be hampered (CT reject)
(3) PV: E that V had sex w/ others is considered to have little PV on issue of consent (Cassidy)
a. When attacking V credibility; more than 1 prior SI/act is needed to prove pattern of V
ii.
Exceptions to Rule:
(1) Source of Injury: offered to prove that other person (not the accused) was the source of semen,
injury, or other phys E (Criminal)
(2) Consent: E of SI of sexual behavior by V w/ respect to the person accused of the sex misconduct
offered to prove consent (Criminal)
(3) Constitutional Right: E the exclusion of would violate D const rights (Criminal)
(A)
Catchall judge consider whether denial will violate Ds 6th Am rights
may be admissible if E is so relevant & material to a critical issue that exclusion would
violate such (Cassidy)
(B)
CEX: under certain circum accused has a 6th Am right to CEX the
V regarding her relationship w/ other men (Olden) (D allowed to question V about her
cohabitation w/ another man if it would give her R motive to lie about nature of the incident in
question)
improper to deny D opportunity to impeach a W for bias
Civil Case
(a) E if otherwise admissible, is admitted if PV substantially outweighs harm to V/UP
Reversal of 403 PV must outweigh harm (BAL)
(b) If V Opens Door (V portrays self as virtuous non sexual person) D can rebut
iii.
Procedure:
(1) Notice: All parties must be served w/ motion &the victim notified
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(2) Hearing: CT must conduct in camera hearing &afford all parties &V right to be heard to give D
an opportunity to demonstrate why certain E should be admissible; & to protect her privacy in
instances when the court finds the evidence inadmissible
(3) Under Seal: Motions & related papers must remain under seal
JUDICIAL NOTICE
A.
Generally: process where trier of fact accepts certain facts as true w/o formal proof; JN is
a substitute for E
2.
Legislative vs. Adjudicative Facts
a.
ADJ Facts: matters of consequence to the resolution
of factual issues in a particular case ordinarily subject to proof, except when JN is taken usually b/c no R
person would dispute (Notorious/Obvious Facts)
i.
I.e. Season Change, freezing/boiling point, dates of holidays, distance from Brewster to White Plains
b.
Leg Fact: facts relevant to legal reasoning & the lawmaking process
B.
Scope of Matters Noticed (201)

Kinds of Facts. judicially noticed fact must be one not subject to R dispute in that it is
1.
2.
3.
4.
5.
6.
either:
a.
Generally Known: w/in the territorial J of the trial court; or
b.
Cant be R Questioned: capable of accurate & ready determination by resorting to sources w/ definitive
accuracy
When Discretionary: a court may take JN, whether requested or not
When Mandatory: a court shall take JN if requested by a party & supplied w/ the necessary information
Opportunity to be heard: upon timely request party is entitled to Op to b H regarding propriety of JN & tenor
a.
In the absence of prior notification, the request may be made after JN has been taken
Time of Taking Notice: Judicial notice may be taken at any stage of the proceeding
Effects of JN:
b. Civil: court shall instruct the jury to accept as conclusive any fact NJ
c. Criminal: court instructs jury that it may, but is not required to, accept as conclusive any fact judicially noticed
3 Conditions of proper T (Lay W Must )
1. T under oath (603)
2. Have personal knowledge of thing W T to (602)
3. Have T rigorously CEX (611)
EXAMINATION OF WITNESSES
A. Form of Examination
1.
Exclusion of W: (615) judge may (w/ or w/o request by party) exclude W from CT during T of other W
i. When W1 T at trial, other W2 cannot be present ( to avoid W1 T influencing W2 T)
ii. Exceptions: 1) Party/Officer to case isnt excluded 2) person essential to presentation of case
1. I.e. tax case, L wants IRS agent there to answer his questions & explain technical T
2.
a.
3.
4.
General Competency: (601) anyone is competent to T as a W unless otherwise provided in rules

Rock v. Arkansas: A criminal D always has the Constitutional right to T
Personal Knowledge: (602) W may not T unless E shows that W has personal knowledge of the matter in
question [Exception for Expert W Rule 703]
Oath or Affirmation: (603) W must take oath or affirmation
5.
Control of the Court: (611) judge has R discretion over mode/order of interrogating W &presenting E to
ascertain truth, avoid needless consumption of time, & protect W from harassment (undue embarrassment)
i. i.e. W only in town for 1 day, so judge says must testify (authority to take W out of order)
6.
Calling &Interrogation of W by Court: Court may call & interrogate witnesses (614).
Danger: Brings into question the Courts impartiality under the justice system; we have an adversary system
where the parties call the witnesses; Judge may unduly influence the fact finding process by doing this
a.
STAGES OF W
QUESTIONING
Direct
RULES
611(c):
DESCRIPTION:
Leading Questions Not Permitted w/ Exceptions

607:
612 (PRR):
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Abolishes voucher rule; any W under 607 may be called &CEX
Cross-Examination
611(b)
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You can use any cue you want, including 612 documents to refresh
the witnesses recollection
Subject matter of direct exam & issues of witnesses credibility
Re-Direct
B. Direct Examination
1. Generally: W T given by the party that calls that W; Bringing out all of the facts that need to be brought out
2. Form of Questioning: examiner is limited to questions calling for specific responses by W (Who, What Where...)
3. Leading Questions
a. Policy Against: not permitted b/c there is danger that a witness would accept a false suggestion
b. Pitfall of Asking LQ: may suggest that your W is not credible; & suggests that the lawyer is incompetent
c. Exceptions: not permitted except if necessary to develop the W T & when no danger of improper suggestion
i
Preliminary Background/Undisputed Q (setting the stage; you are an Ins. salesman, arent you?)
ii Questioning doesnt got to heart of the case
iii Surprise Answers (I.e. W direct T at sharp odds w/ deposition)
iv Refresh Witness Memory (PRR) Something W forgot to say when L knows the W is aware of it
v Timid or Confused Witness or a Child of Tender Years
vi 1. Hostile Witness (611c)
vii 2. [CEX] Examining the Adverse Party (611c) (notion that an adverse party wont be led) or
viii 3. Any W identified w/ the Adverse Party (611c)
4.
Present Recollection Refreshed (612) [dont confuse w/ past recollection recorded in H]

a. Generally: where W doesnt remember relevant fact, but possesses additional relevant info, the W may be
shown an item to refresh his recollection (adverse party entitled to inspect the writing + CEX)
i
Rationale: The real E is the witness oral T, & the exhibit serves as a memory aid or jogger
ii
Means: May use any writing, doc, photos, sound, etc (bowl of linguini)
iii
Evidence: oral T is the E; proponent does not formally offer item into E, but it may be marked for ID
5.
Impeaching Ones Own Witness

a. Voucher Rule: party wasnt allowed to impeach their own W (by calling W, you vouched for their credibility)
b.
Modern Approach: (607) permits impeachment of any W by any party, including the party calling the W
i Rationale: there are situations where a W is required by law to prove the proponents case, W is an adverse
party (applies in civil cases; in criminal cases, the privilege against self-incrimination prevents
prosecutor from calling D), or W is hostile on the stand or provides surprise T = in those situations, it
may be necessary to impeach ones own W
ii Constitutional Concerns: The accused has the right to confront & CEX any W who gives damaging T
against him under the DP Clause (Chambers v. Mississippi).
(1) Facts: D, accused of murder, called X to testify; X had previously confessed to killing the V, but
now repudiates his confession; D then attempted to impeach X by showing the prior confession
C. Cross-Examination of Witnesses
1.
Introduction: Cross Examination is the Greatest Legal
Invention for the Discovery of the Truth - Wigmore
a.
Generally: (611b) CEX limited to subject matter of DE &
matters affecting W credibility (Judge has discretion to expand the inquiry beyond that)
i
Key Factors: Relevance & whether questions go too far beyond contours of opposing counsels DE
ii
Cardinal Rule of CEX Never ask a question that you dont know the answer to
b.
i
ii
iii
iv
Key Points:
A method of CEX designed to serve one purpose may defeat another.
Selection of method is influenced by type of W before you (ignorant, educated, old, female, mental)
Consideration must also be given to the advocates general demeanor / attitude toward the W
Confrontation Clause only applies in criminal cases, it does not apply in civil cases
(1) CC: in all criminal pros, accused has the right to be confronted w/ W against him [6thAm]
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D. CEX & Impeachment

1. Introduction
a. Defined: discredit the W T; includes exposing untruthfulness or W making a mistake; since W credibility is
always at issue, it is never beyond the permissible scope of CEX
b. Effect of Impeachment: simply b/c a W has been impeached does not mean the jury may disregard the T, the
impeachment affects the weight that the jury chooses to give to his W
c. 2 Methods of Impeachment:
i
Intrinsic Impeachment: proving lack of credibility by directly questioning the W
a. (I.e. do you have good eyesight?)
ii
Extrinsic Impeachment: using external proof [through others T, real or demonstrative E]
a. (I.e. call the Ws Eye Dr. & ask him if W can see very well?)
Contradiction Preview: W cannot be impeached by Ex E on matters collateral to the principal issues being tried
2.
Impeachment Techniques (CRIB CAPP) [W impeachment

by Ex E means not from his own mouth
Intrinsic Method to impeach by SI of bad acts =

I.e. isnt it true that according to you?
Technique
Intrinsic
Extrinsic
Rule
Contradiction (Oswalt)
Yes
Yes, if not Collateral Can only use Ex E, to contradict W on
*Has own Relevance
a central issue; not a collateral one
(SI of Conduct)
Yes, only if Q relates to W
(608b) No!
SI conduct of W to attack/support their
Acts (Bad)
Char for truthfulness
credibility cant be proved by EX E
(608b)
unless probative of truthfulness
Convictions
609
609- Yes
403 applies, unless crime of dishonesty
Psychiatric Condition
Yes
Yes
Perception
Yes
Yes
Any E relevant to perception of W is
admissible (I.e. W is drug addict)
Rep for Truth & Veracity
608a; 1st have to attack W
Yes
Allowed to put char W on stand to
for having rep for
show other W has bad char for
untruthfulness then rebut
truthfulness by Rep or Opinion
Inconsistent Statements
613a
613b
As long as W being impeached has
opportunity to explain 1st, & is CEXed,
Ex E is permissible
Consider (801) H: only allowed to
show IS to attack W credibility, not for
the truthfulness of the statement (oath)
Bias
Yes
Yes
a.
Impeachment by Contradiction: showing the nonexistence of
a fact testified to by W; such rebuttal E may discredit only a portion of the W testimony & does not necessarily
affect credibility as a witness per se;
i.
Relevancy: (402) authorizes admission of logically relevant evidence, & the courts recognize that
specific contradiction testimony is logically relevant to witness #1s credibility
(1) Collateral E Rule: W cant be impeached on matters collateral to principal issues tried (Oswalt);
(A) Policy: the concern is for the possible confusion of the issues & undue consumption of time
CER: Ex E may only be
(B) Test: Could the EX E have been introduced into E for any purpose independent of
admitted to impeach W if it also
contradiction? IF YES, ITS IN
bears on substantive issue in
(C) Facts: D charged w/ robbery in Seattle; Ds alibi was D was at the alibis diner in another city
case OR has other important
at the time. Pros elicits T from alibi that D had been in the diner every day before that; X
effect (I.e. Shows Bias)
called to rebut alibi testifying that D was in Seattle the day before. Inadmissible. The issue
was whether D was in Seattle at the time of the robbery not the day before.
NOTE: Can ask did you
Character of the Witness
commit crimeb.X; but
i.
(SI) Prior Bad Acts: acts that are NOT crimes may still reflect on a W veracity (I.e. whether the W has
can NOT about arrest
defrauded others, cheated at cards; lied on other occasions, etc.) (Convictions get in through 609)
Arrest is too
prejudicial; except when
trying to impeach the
CH W
E of un-convicted bad
acts must be intrinsic to
be valid
o
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(1) Majority Rule: (608) at discretion of CT, W may be CEX as to his past acts/ conduct that is clearly
probative of veracity (truthfulness or untruthfulness) & doesnt involve UNR risk of prejudice
(A) NY: allowed to ask any questions about prior bad acts subject to the courts discretion
(B) Extrinsic Evidence: the cross-examiner must accept the answers given by the witness;
extrinsic evidence cannot be introduced to prove the past misconduct (608b)
Rationale: waste of time on a collateral issue
(C) EX: W may be impeached on CEX by extracting his admission to a prior act of intentional
falsehood under oath (Owens); D tried for shooting X; claims he accidentally discharged
weapon; D CEX regarding omissions on application of prior convictions for officer position
If D denied omission on application P couldnt introduce actual application (Cant prove by EX E)
(2) Matters Still Pending: Even though you generally waive your privilege in choosing to T, you do
not waive your privilege against self-incrimination in matters that are still pending;
(3) Formal Charges: cannot ask a W about formal charges (arrest, indictment, etc.) when you are
trying to attack W veracity b/c it is too prejudicial; but, can ask the W about their awareness of the
arrests of the accused to test their qualifications to be a fair, reliable, good character W
ii.
Prior Convictions:(609) for W credibility, E that a W (Not D) is convicted criminal is admissible

CT can not prevent by way of 403 a crime of dishonesty from being admitted into E
(A) Felonies: those w/in ten years are admissible 609a
Accused: only admissible if the PV outweighs prejudicial effect;
Sanders: D tried for X murder w/ shank; CT erroneously admitted similar prior
609 Impeachment Standards
conviction where D assaulted Y w/ shank ; similar offense impeachment E should be
1. Any W (609a2) If convicted for
admitted sparingly b/c does little to impeach credibility of D and is highly prejudicial
crime of dishonesty, MUST allow
it (If w/in 10y)Only time judge
has NO discretion; but judge still
determines if it is 1 of dishonesty
2. All Other W (403) = PV must
be substantially outweighed by UP
to be excluded (Not nice to W)
3. Criminal D = PV of conviction
must outweigh UP to be admitted
4. Conviction in excess of 10y (B)
Inadmissible, but may be
probative
I.e. if conviction truly goes to
your truthfulness; judge will frame
it as crime of dishonesty
PV has to substantially
outweigh UP (Reversal of 403;
Anti-admissibility Test)
*403 = PV must be substantially
outweighed by UP to exclude it (C)
Similarity Effect: More similar the crime, the greater the prejudicial effect but
when its plan/M.O (signature), under 404(b); the more similar, the more probative &
is admissible [fine line b/w similar &unique; unique = very probative& admissible]
Other Witnesses: prior convictions subject to ordinary 403 bal, b/c chances are that the
chance of UP is not the same as that of a criminal D, in that he faces criminal sanction
Crimes of Dishonesty/False Statement: Any crime of dishonesty or false statement

(misdemeanor or felony); W/in 10 years 609(a)(2)
No Discretion: court has no discretion to exclude, as unduly prejudicial, evidence that a
witness had previously been convicted of a crime involving honesty or false statement
(Wong); only place in the federal rules where the judge has no discretion
Determining Dishonesty: court has discretion to determine if past conviction reflects
dishonesty (I.e. embezzlement vs. shoplifting vs. burglary goes in degrees some hold
that dishonesty refers only to deceitful behavior; look at facts to decide if deceitful)
Federal courts tend to hold that theft offenses in general fall outside 609(a)(2)
Convictions > 10Y Ago: admissible if PV substantially outweighs UP &proponent gives

prior written notice to allow other party a fair opportunity to contest its use (609(b)
(D) Pardon or Annulment: Evidence of the prior conviction not admissible. 609(c).
(E) Juvenile Adjudications: not admissible, but judge has discretion to admit E of juvenile
offense of W (Not D) if necessary for fair determination of the issue of D guilt/innocence
(F) Pendency of Appeal: Irrelevant. 609(e)
(1) Appeals on Federal Rulings: cant appeal judges ruling over admissibility of a conviction unless
you put your client on the stand US v. Luce US Supreme Ct.);
(A) However: You may appeal Sandival rulings w/o putting your client on the stand
(2) Sandoval (NY): pre-trial hearing for CT to rule on using bad acts or convictions to impeach
Rationale: influence whether Ds counsel puts D on stand; & courts want to encourage D to testify
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(3) Sanitizing of Prior Conviction: if prior underlying crime is heinous or so similar to the charged
offense that jurors might misuse the T as proof of the accuseds badness, CT limits the detail
iii.
Psychiatric Condition
(1) Generally: E of recent history of mental instability may be used to impeach a chief W (Lindstrom);
(A) Facts: pros star W had history of psychiatric problems (suicide attempts, overdosing, seeing
authority as something to be manipulated, & fired shotgun through ex-lovers house)
(2) Med Records: privilege battle in subpoenaing med records 1st go to judge to make determination
(A) Privacy: Psychiatric condition is invasive into the W privacy, so judge has a fair amt of
discretion in making sure that the issue is probative / relevant
iv.
W Perception: Any kind of perception issue (the W cant see, hear, etc.), is always fair game
v.
Reputation &Op for Truth & Veracity:

(1)
608a: credibility of a W may be attacked/supported by E in form of Op OR Rep but only
as to the W character for truthfulness or untruthfulness,
(A) Purpose: Opponent uses the proof of the character trait for untruthfulness of the witness as
circumstantial proof of conduct opponent reasons that if the W has character trait for
untruthfulness, the character trait increases the possibility that the W is lying
(B) Opening the Door: E of truthful character is admissible only after the W character for
truthfulness has been attacked by opinion or reputation evidence or otherwise
(C) Ex E: uses Ex E (the use of a W to attack character for truthfulness through Rep or opinion)
HYPO: X is prosecuted for sale of heroin to A, informant; A T that he bought heroin
from X as part of a 3m buy program w/ As purchase from X coming in the 2nd month.
X calls B to T that he is As neighbor for 10y &that A has Rep of having bad memory
Memory issues are unrelated to truthfulness. Thus, 608(a) does not apply
[Note: PIS are strictly limited to impeaching the W T]
c.
Prior Inconsistent Statements (613) [impeach/rehabilitate]:
when W testifies, their credibility is immediately at issue, & fact that W said 1 thing at trial & another thing at
another time lowers his credibility; jury may infer from the inconsistency that he is either uncertain or lying
i.
Actual Inconsistency Required: b4 W prior statement admitted, it must be inconsistent w/ W T at trial
(1) Memory Loss: W T that he doesnt remember prior statement inadmissible b/c no inconsistency
(A) Test Focuses on Honesty of W: balancing of truthfulness; if W does not appear truthful under
the circumstances, the judge may allow the inconsistent statement
ii.
Arrests as E
D arrests only admissible if D
opened the door (404a1)
Arrests in W Questioning
iii.
Arrest not admitted to
impeach W (Not under; 608,
609, or 403) B/c unless has
proof of W intent to retaliate;
not showing Bias
But can ask W if knew D
arrests (To Test W Credibility)
Foundation to Impeach W Credibility

(1) Common Law: b4 asking whether a statement was made, must ask about the time, place, &person
to whom it was made, & must provide an opportunity to explain or deny the statement (Coles v.
Harsh); EX: Were you at this [place] on this [day] & was [person] there b4 asking statement
(A) Rationale: avoid unfair surprise to the witness (&the calling party), save time (witness could
just admit making statement), &to give the witness a chance to explain
(B) Criticism: if applied rigidly, the rule is a trap for unwary lawyers who forget to ask relatively
unimportant foundational questions + lose important evidence
(2) FRE: W may be questioned [intrinsic] about a prior IS, written/oral (Did you ever say [statement]?
(A) Ex E: inadmissible unless the W is afforded an opportunity to explain or deny the same (can
be done by allowing W to be excused subject to recall), & opposing party is afforded an
opportunity to interrogate the W (613(b))
W prior IS are H & cant be used as proof of the facts contained (limited to impeachment)
Offering Prior Inconsistent Statements Made Under Oath
(1) 801(d)(1): A statement is not hearsay if
(A) Declarant testifies at trial or hearing
(B) Is subject to CEX concerning the statement,
(C) The [prior] statement is inconsistent w/ the declarants testimony [at trial], and
(D) Was given under oath subject to the penalty of perjury
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(2) Different Evidentiary Value than 613: 801 statements deal w/ an IS made under oath; IS that come
in under 801(d)(1) may be used as substantive proof of whatever is stated
d.
Bias, Hostility, & Interest (Always look for possible Motive

i.e. deal w/ police to T against criminal D)
i.
Bias = relationship b/w party & W that may lead the W to slant, unconsciously or otherwise, his T in
favor or against a party
ii.
Generally: cross-examiner may impeach a W to show a bias, hostility, or interest in the outcome of the
trial giving motive to lie or slant, provided PV is not substantially outweighed by UP 403 (United
States v. Abel). This includes the use of Ex E.
(1) Facts: D indicted for robbery; X, a participant, T that D was involved; Y T that X stated his
intention to falsely implicate D; Pros recalls X who T that Y & D are members of same secret gang
whose tenants require lying.
(2) Rationale: if W has reason to lie, maybe hes lying; motive for testifying is critical to the case
iii.
iv.
Merely being associated
isnt enough; must look
at the nature of the
association
v.
(I.e. book club members
v. street gang members)
USC: Confrontation Clause (6th) requires the D have an opportunity to demonstrate bias on the part of
a pros W (Davis v. Alaska)
Circumvention of FRE: Great latitude in proving bias, serves as a means of circumventing other
evidentiary rules
(1) EX: evidence of a settlement not to prove liability, but to show that the witness may have a bias
Examples: was granted immunity/promised a deal to turn States E, W was relative/close friend of D,
D has some type of hold over W by threats, W has been housed in a good hotel, wined &dined, etc.
(1) Expert Witnesses: may ask expert whether he is being paid a fee for his testimony
E. Rehabilitation rebuilding your W credibility (within the scope of prior CEX)

1.
Redirect: after opponent attempts to impeach the W credibility, the W proponent may attempt to repair the
damage
a.
I.e.: to show that an IS was taken out of
context; to show that a perception issue is not so great, etc
2.
Prior Consistent Statements = showing the W testified to a fact at the time of trial & made similar pretrial statement
a.
Rule Against: you may not prove that
your W on a prior occasion made statements consistent w/ the trial T
801 Timing:
i.
Why: improperly bolstering credibility of your W fact that the W has said the same thing on a prior
*Know when
occasion, does not increase the reliability of your statement
statements made
(1) Policy: allowing such statements would encourage the manufacturing of prior CS if the court
*If W said same
regularly allowed; (i.e. A would give CS to B, C, &D, w/ intention to call those W at trial later)
thing b/4 motive
arose = truthful
EX: Eye-W gives police composite sketch to identity of murder suspect; after eyewitness who is CEX,
Statements must be ii.
pro calls cop to introduce composite sketch; Prior consistent statement (People v. Maldanado)
made b4 the motive
allegedly arose
b.
Premotive Rule: PCS can be used to
rebut express or implied charge against the W of recent fabrication, improper influence (bias), or motive
Cant use PCS to
show W is telling the (801.d1b)
truth; can only use to i. Temporal Req.: Prior CS are admissible to rebut a charge only if the statement was made B4 the date of the
alleged recent fabrication, improper influence, or motive (Tome v. US)
rebut a claim of
recent fabrication
(1) Facts: D charged w/ sexually abusing child; Ds L suggests in CEX that child fabricated the story
while visiting her mom based on her moms influence; CT improperly allowed CS by W made
after the time when the improper motive allegedly arose
BER Applicable
V. Best Evidence (The Original Writings Rule)
Situations
A.
Generally: cant prove contents of a writing by T, original writing must be introduced into E, unless it is
1. When material
unavailable
terms of the 1.
Applies to: Writing, Photograph, Recording, etc. [1001 1005]
writing are being a. Function: cant T to contents of the writing, but can introduce independent E of what the writing reflects
proven
2. W T relies on
the writing
*Not merely that
the writing exists
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1.
b.
c.
I.e. Cant ask W what the bill said unless he introduces the bill into E, but can ask whether
he paid the bill
2. I.e. Cant T to recipe writing; but can T to knowing how to make the food & explain how
do so from your own knowledge
Policy: production of the original prevents fraud that might result if oral testimony or copies were used in
lieu thereof; slight differences in written words or symbols may make a vast difference in meaning
Limitation: not applicable to official records; where contents of writing are only collateral, where party
admits contents, proof is oral rather than record, &not apply to T about absence of material from doc
OPINIONS &EXPERTS
A. Introduction (Opinion; where you are drawing inference from fact)
1.
Generally: Almost everything that is stated is an opinion
2.
2 Categories of Opinion: Expert & Lay
B. Lay Person Opinion (701: Op T by Lay-W)
1. Rule: lay-W, must restrict himself to describing material facts which he has 1st hand knowledge of
a. Personal Knowledge: Ws primary, sensory data jurors draw inferences/conclusions on underlying data
i. Interpreting Signals: T of W as to his Op of intentions manifested by the accused in a certain
signal (sending message by a wink) should be inadmissible as outside the W personal knowledge
(CommonW v. Holden) Wink is an Op but the communicative intent of the D is speculative
2.
(1) Facts: D was convicted of murder based in part, on Jones testimony, that D indicated w/ a
wink that he wanted Jones to supply him w/ an alibi; D never said anything to Jones b4hand
(2) Translation: T that the wink had a communicative aspect might be ok but not that D was
asking W to make up an alibi
b. Rationale for Limitation
i.
Policy Matter: common law has doubts about trustworthiness of opinion
ii.
Unqualified: Lay-W is unqualified, for lack of some essential skill, training/experience, to draw
such a conclusion; or
iii.
FFs Role: jurors are fully capable of drawing the right conclusion from the recited facts
(1) Why? Since a juror can arrive at his or her own conclusions by adding together the factual
components, there is no need for the W to inject their own conclusions
701: lay W T in the form of Op or inferences is (a) limited to those opinions or inferences, (b) rationally
based on the perception of the W, (c) helpful to a clear understanding [of issues], &(d) not based on scientific
technical, or other specialized knowledge (Pro Admissibility Rule)
a. Key: (d) to prevent experts from getting on the stand as a lay-W & elude specific rules for expert T
3.
Categories of Permissible Lay W Op: Matters of Taste/Smell, Anothers Emotions, Vehicule Speed, Voice Id, W
own intent, where relevant, Genuineness of anothers handwriting, Anothers irrational conduct, Intoxicated
4.
Skilled Lay Observer T: if witness has had repeated, prior opportunities for observation, the witness qualifies
C. Expert Op: Op T by expert witnesses comes in through an exception to the general rule against Op T
1.
Generally: (a) area not w/in the experience of jurors
&(b) they need assistance in understanding scientific, technical, or specialized subject matter [unassisted they
Qualified expert if
cannot draw proper conclusions 702]
*Knowledge of
a. Advantages: Expcommands greater respect than a lay-W, are adept at using language that a jury can
subject matter
understand, their conclusion lock w/ the litigants case, & expert has greatest power to mislead the jury
*Skill in field
*Experience
*Training/Education
*Lay Foundation
2.
b. Expert Defined: persons possessing specialized or peculiar knowledge acquired from practical experience
including person of science, or educated in the arts
702 T by Experts (Elements): (Remember need to
lay foundation)
a. Admissible if Scientific, Technical, or other Specialized knowledge

b.
c.
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Will assist trier of fact to understand evidence or determine issue

Witness qualified as expert by knowledge, skill, experience, training or education, may testify if:
i
testimony is based on sufficient fact or data;
ii
testimony is product or reliable principles &methods; and
iii
witness has applied principles &methods reliably to facts of case
3.
Steps of Giving Expert Op: witness must be shown

to be a true expert in the field that is involved
a. Experts Qualifications: ask the expert questions about their credentials skill, training, experience
b. General Principle or Theory on Which Expert Relies
i
Tests for Admissibility: must satisfy both
(1) 702: theory or principle must assist trier of fact
1st hand Data
(I.e. W who did the autopsy) (2) Judge Decides: sufficient need is found when subject is beyond a laypersons ken or expert can
draw a substantially reliable conclusion on subject than layperson; and
*Exp who perceived the data
st
(3)
Frye or Daubert Standard
to be testified too 1 hand
(A) Frye: Scientific E is admissible only if the principle upon which it is based is sufficiently
2nd hand data
established by being subjected to peer review or publication to have general acceptance in
(Read reports completed by
the field to which it belongs (minority of jurisdictions now follow) NY
other exp; look at medical
charts at trial)
(B) Daubert (broader): proponent must demonstrate that theory or technique qualifies as reliable
If rely on 2nd hand, must be
scientific knowledge w/in meaning of 702 (20+ states & federal courts)
such R relied upon by expert
Factors determining reliable scientific knowledge (none are dispositive):
in formulating an Op (703)
whether it has been tested,
Including Exp who
whether it has been subjected to peer-review &publication,
observes data presented at
the potential rate of error of the theory, &
trial (Do you agree or
whether the theory has gained general acceptance (no single factor is dispositive)
disagree with experts who
have previously testified in
(C) Distinction: Frye instructs judges to defer to scientists; Daubert encourages judges to learn
this trial?)
enough about the scientific method to decide whether Exp T is based on good science
Hypo Q (Controversial) (705)
c.
Factual Bases of Experts Opinion: 703 Applies

i
1sthand Observation: all J allow expert to base Opinion on facts he has personal or 1sthand knowledge
ii
2ndhand Observation: expert looks at a photograph, document, etc.
iii
Courtroom Observation
iv
H Reports from 3rd Parties [in NY you cant rely on inadmissible E]
(1) 703: allows exp to rely on H report if of a type R relied upon by experts in the particular field in
forming opinions or inferences upon the subject
(A) E of report cant be admitted as substantive proof of the truth of report; it is admitted for
limited purpose of showing basis for experts opinion
Under 703/705 Exp may T
(B) Expert may not give jury a detailed description of the otherwise inadmissible report
to:
1. Personal Observations
v
Hypo: Exp T Op in response to hypo [705]; exp is told to assume certain facts, & then asked for Op
2. Facts presented to Exp at
based upon those assumed facts (705 essentially eliminated the Hypo Question)
Trial (I.e. answering Hypo)
(1) Limitations:
3. Facts introduced to Exp
(A) Proponent must have already introduced E to support finding that assumed facts exist
outside of Court (i.e. by techs
(B) Hypothesis must include all undisputed, material facts
or Consultants) of type upon
which Exp in his field R rely
(2) Whats the Problem w/ Hypos? Often very long; Very artificial sounds like a summation;
Assumed facts can be misstated (b/c not based on existing facts)
3.
Stipulating to W Expertise: counsel, realizing that the opposing sides W has impressive credentials that will awe the
jury, may try to prevent the jury from hearing them; by offering to stipulate that the W is qualified to T
a. Battle of Exp: important to show the details of the exp credentials to allow jury to weigh the T of each expert
4.
Opinion on the Ultimate Issue: (not NY) Exp is allowed to testify to the ultimate issue in a federal court 704(a)
i. I.e. did D deviate from standard of care in operating the vehicle
5.
6.
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Exception: 704(b) Exp W cant give Op on D state of mind in criminal case; @ time of commission of the
crime but can say D had trouble in school, history of violence, just cant give Op of this in present case
Impeachment of Expert
a.
material in authoritative publications in the field
b.
during his direct examination
c.
T & whether he regularly testifies for Ds (suggesting a bias), etc.
Confronting expert w/ contradictory

Altering facts of a Hypo put to the witness
Questioning whether the exp was paid for
706 CT Appointed Exp: CT may appoint exp, agreed on by parties; but cant be appointed unless he (the exp) agrees
D. Demonstrative Evidence
1.
Generally: E presented to the jury as a demonstration
(charts, models, plans, videos, etc.) that tracks the real E.
a.
Requirements: must track the E, cannot
PG Problem
be inconsistent w/ the proof, must assist juror on issue at trial
Usurps the jury
on credibility 2.
Polygraph E: military Rule of E 707 which makes
If its admitted, polygraph E inadmissible in a military proceeding does not unconstitutionally abridge the right of the accused to
much of the
mount a defense (United States v. Scheffer)
jury function is a.
Facts: D agreed to be drug informant for
away by letting
military. He was required to undergo drug testing &lie detector tests. He failed a drug test but passed the
the PG decide
polygraph test denying he ever used drugs. Polygraph evidence excluded
if D is truthful
b.
Analysis: No consensus that polygraph E
is reliable; no way to know whether a polygraph examiners conclusion is accurate, b/c doubts &uncertainties
plague even the best polygraph exams
i.
Policy: Rule ensures that only reliable E is admitted at trial, (2) preserves jurys role in determining
credibility, &(3) avoids litigation that is collateral to the primary purpose of trial
c.
Twist: Fed. Govt regularly uses

polygraph tests for other purposes such as screening job applicants
EVIDENTIARY PRIVILEGE
A. Introduction (501)
1.
Rule: privilege of a W, person, government, State, or political subdivision shall be governed by principles
of the common law as they are interpreted by the courts. . . [federal common law]; unless it is a pendant state
claim
a. Exclusionary Rule: E might be highly reliable, but the privileges that are recognized are invoked to protect
relationships that are thought sufficiently important to sacrifice some benefit in the truth seeking process
i. Society is willing to forgo certain benefits in terms of FF truth in a matter that is at issue in trial
2.
3.
4.
Holder: (person whose interest/relationship is sought to be protected); privilege is personal in nature, so it

can only be claimed by a holder
Types of Common Law Privileges: Husb& Wife, Attorney Client, Priest Penitent, Doctor-Patient
a. Relationships Not Covered [some are recognized in some states, but no general majority consensus of a
privilege in these situations]: parent/child; accountant/customers; teacher/student; reporter/source (In NY)
Framework: person claiming privilege has burden to show it; privilege applies to all proceedings; & it may
be waived (if an opponent claims the other side waived it they have burden to show it)
a. Determination of Privilege: judge conducts ex parte / in camera proceeding
5.
a.
Waiver: must be voluntary, known, intelligent

Two or More Clients Simultaneously: waiver by one client does not affect other clients privilege

6.
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Eavesdroppers: T by eavesdropper to privileged communications overheard was admissible; but modern

trend is to exclude such testimony unless the holder was negligent in allowing the communication to be
overheard
B. Attorney Client Privilege

1.
Scope: a client, whether or not a party to litigation, has privilege to refuse to disclose, &to prevent attorney
or from disclosing, any confidential communication b/w client &attorney related to rendering legal advice
a. Purpose: facilitates freedom of communication b/w client & lawyer; so you will speak fully &frankly
b. Who is a client? A person who consults a lawyer about a matter for which the client is seeking legal advice
i. Burden: holder has burden of showing that requirements have been met
c. Other staff present: privilege applies if the people are R necessary for transmission of the communication
d. Agents or Consultants: of the lawyer are also w/in the scope of attorney / client privilege
e. Eavesdropper may not testify (unless Holder was N)
2.
Termination of Privilege:
a. Death: does not terminate the privilege

b. Suing Client: If lawyer is suing client to recover a fee
c. Defending Self: If a lawyer is seeking to defend competence in a malpractice charge
3.
Exceptions to Privilege
a. Crime / Fraud Exception: you cannot consult the lawyer for purposes of furthering a crime or a fraud
b. Identity of Client: not privileged
c. Fee: not privileged
C. Physician Patient Privilege
1. Purpose: encourages full frank disclosure to doctor to facilitate effective medical treatment of illness
2. Rule: A patient, whether or not party to the action, has a privilege to refuse to disclose, & to prevent his physician
from disclosing, any information acquired by the physician in confidence while attending the patient
3. Dr Treats the Whole Patient: any info related to Ps health is privileged, but info incidentally required is not
4. Common Law: No physician-patient privilege in federal law, but exists as a common law privilege in all J
5. Exception: privilege does not apply in most civil actions (personal injury suits, malpractice, etc.)
6. Waiver: by K, patient calling Dr to testify, patient testifying, or by disclosing privileged info to third parties
D. Psychotherapist / Social Worker Patient Privilege
1.
Federal Common Law: social worker / patient privilege recognized in the federal law (Jaffe v.
Redmond);
a.
Cop (D) killed a man; gets counseling from licensed social worker; Survivors bring
action against D & they want the notes from the social worker Notes are denied.
2.
Rule: a patient may refuse to disclose confidential communications b/w patient &psychotherapist
made to diagnose or treat a mental or emotional condition.
3.
Against Whom? Patient may prevent T as to those communications by therapist or by any other
person participating in the therapy (I.e. group therapy)
4.
Limitation: if the client announces his intention to harm a 3rd party, danger of violence may justify
the therapist warning the 3rd person
E. Clergy-Penitent Privilege (statutory privilege in most states)
1.
Rule: a person may refuse to disclose, & may prevent the clergy member from disclosing, any confidential
info that the person has made to the clergy member who was acting in professional capacity as a spiritual advisor
2.
Assertable: in all proceedings
3.
Majority Rule: privilege extends both to the penitent &the clergy member
F. H/ Wife Privilege
1.
Testifying Against Spouse: deals w/ incompetency of one party to testify against another
a.
Common Law Disqualification Rule: H cannot T against wife (or vice versa)
b.
2.
3.
4.
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FRE: if a spouse elects to T against spouse, the spouse can T; but the spouse cannot be compelled to T
[Tremel]
Confidential Comm. statements induced by marital relationship to further the marital relationship in
official marriages is privileged = Rationale: want to encourage trust &confidence b/w spouses
a.
Scope &Duration: only applies to confidential communication; lasts indefinitely
even after marriage ends
To Analyze H Problem:
1. Identify out of court statement (proof offered)
Conduct: conduct is a privileged communication
2. T
Consider REL of that statementwhat would make it H?
Eavesdropper Rule Applies: eavesdropper can
3. Explain purpose for statement being offered; what is it being offered to prove?
4. Look at the Credibility of W making the statement
THE HEARSAY RULE

A.
Introduction: knowledge based on reports of others (H)
1.
Hearsay: statement, other than one made by the W T at the trial or hearing, offered in E to prove the truth of
the matter asserted-801(c)
b.
Elements:
ii. An oral or written assertion or conduct amounting to an assertion;
Affidavit is presumptively excluded b/c
iii. Made or done by an out-of-court declarant;
by H rule written out of court
iv. Offered into E to prove the truth of the matter asserted;
2.
Hearsay Rule: if evidence is H, it is prima facie inadmissible (802) (Problems = determining whether
particular E constitutes H, & if so, whether it may nonetheless be admissible under some exception to the H rule
a.
Declarant Testifying: even if W is T on statement about his own statements from prior occasion, can still be
H
3.
a.
b.
4.
B.
Hearsay Analysis
Is it a statement? must be oral, written, or conduct intended as an assertion
i.
EX: Assertive conduct would be raising a hand in response to a question; photographs are not
statements
Relevance / Purpose: What is the relevance or the purpose of the statement being offered into evidence?
i. HYPO: W T that he overhead another passenger declare the light is red b4 driver ran it; Admissible?
(1) Statement? Yes. Out of court oral statement offered into E
(2) Relevance?
(A) Truth: That the light was in fact red (to prove the truth of the matter) [Would be H]
(B) Notice: To prove that the driver was given notice (goes to state of mind of hearer)
Rationale Behind H Rule: underlying the H rule are concerns about the worth (trustworthiness, reliability)
of H E
a. Statement not under oath &
b. Out-of-court declarant not subject to CEX by opposition to test perception, memory, veracity, &articulateness
i.
EX: tax-preparer charged w/ 12 counts of tax fraud. IRS wanted to introduce agents T regarding
audits of returns prepared by D. Inadmissible b/c audits relied solely on info supplied by out-of-court
declarants. Reliability of her statement was dependent upon information from individuals who could
not be CEX (to test perception, veracity, etc.) (US v. Brown)
Nonhearsay Purposes: H rule not applicable where E of out-of-court statements offered to show that the statement
was made or that it had a certain effect on the listener/observer, rather than to prove truth of matter asserted (KISS
SMAC)
1.
State of Mind of the Hearer (Knapp, Subramaniam, Vinyard, Johnson, Smith) (I.e. warnings, threats,
commands)
a. Subramaniam: D arrested for treason; associating w/ terrorists; conversations w/ them were offered to go to the
state of the mind of D in hearing the threats on his life supporting duress defense
i. T not offered to prove what the terrorist said was true, but merely to show that D was under duress
b. Vinyard: E of complaints to D that its parking lot pavement was slippery when wet is admissible on the issue of
Ds notice or knowledge of the danger (not offered to prove slickness, but to show D knew about the slickness)
c. Johnson: P sued D for N in hiring a Dr & allowing him to perform surgery on Ps hip. P offered records
available to the hospital related to the past employment of the Dr. Records not offered to prove the Dr was
incompetent but went to prove hospital had knowledge/notice.

d.
2.
a.
b.
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Susan Smith: drowned own children; letter from ex-bf stating that he didnt want to be w/ her b/c of her kids;
letter admissible b/c it went to her state of mind (motive) leading to the murders
i. Where the truth/veracity of statement is irrelevant, but the mere fact it was said is relevant NOT H
State of Mind of the Declarant (Loche, Tropacooler Hypo)
Loche: Wife sues D for loss of consortium resulting from husbands death. D moves to
admit a will stating that wife stated she is dutiful &her husband is a wretch, & for those reasons she leaves him
$1.
ii. Nonhearsay Purpose: State of mind of declarant that she did not like husband,
iii. Relevance: if she didnt like husband, this effects the consortium claim (Loche)
Tropacooler: Lawsuit against Tropacooler for false ad; ad states that their orange juice is
made from freshly squeezed oranges; it is false. Government conducts survey Do you drink Tropacooler?
Those saying yes asked, Do you think it is made from freshly squeezed oranges? 80% say yes. The
statement is 80% of respondents agree that Tropacooler is made from freshly squeezed oranges.
i.
Nonhearsay Purpose: to prove that the advertising has led to deceptive impressions;
ii.
Relevance: an element of false ad requires that the ad must have a capacity to deceive.
3.
Knowledge (Personal): Statements by declarant subject to CEX & based on personal knowledge are not H.
(Kinder)
a. Kinder: knowledge of something can be very relevant little boy points to radiator under the house; Not
offered to prove that the thing is under the house, but the relevance is that the little boy knew that it was under
the house & that suggests that the boy was w/ his uncles when the radiator was put under the house
Gershman = The question really is whether the offering of the statement is used to prove the issue of the location of the
radiator, i.e., truth of the matter asserted. Sure, the boys statement does prove that the radiator is under the house, but that is
not the reason for the offering. We can prove the location of the radiator by the testimony of several witnesses. So what is the
purpose of the statement, or, what is the issue that the statement seeks to prove?
It proves = boy knew about location, and if he did, it is CE that his bro put it there
b. Bridges: dont need statement to prove the truth of what was being said about the place, but to show that she
was there; if the girl knew the details of the place that she discusses, it suggests that she was there
4.
a.
b.
c.
c.
d.
e.
5.
a.
Independent Legal Significance: mere utterance of certain words have independent legal significance
Words of gift, sale, or bailment: take this book as a gift (donative intent accompanying the transaction)
Words alleged to be deceitful
Words of Marriage: will you marry me (Marriage)
Inciting Violence: Take up arms against your country!
Words of offer, acceptance, rejection, etc. in K actions
Defamatory words
Conduct (nonassertive): Conduct that didnt intend an assertion is not H, & the only (?) is one of REL
i. Assertive conduct = H
Just b/c you can infer an assertion from the nonassertive conduct does not mean that it is H
i. I.e. I get on boat w/ my family doesnt mean Im announcing to the world that the ship is safe
ii.
Hypo: Cops drive down St.; D runs down St; P wants to admit E that D ran from police; Admissible?
ii.
Statement? Conduct is not a statement (nonassertive)
iii.
Is it relevant? Goes to the Ds consciousness of guilt
iii.
6.
a.
Hypo: Cops raid bookmaking establishment; they go inside & it looks like a wire room phones &
papers; Phone rings, police answer; & person on the line asks to place a bet (many calls like this)
(1) Nonassertive Conduct: callers called to place bets, not to make statement it is a betting ring
(2) Relevance: if callers place bets, this allows an inference that the location is a betting establishment
Silence (not a statement): only issue becomes relevance

HYPO: Lawsuit against passenger train co for failing to install heaters in the winter;
many passengers became ill& sue for N in failing to do so, causing illness; co defense is that no passenger
complained to an employee
i. Is silence a statement? No.

7.
8.
a.
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Animals (do not make statements): only issue is relevance

Machines (do not make statements): only issue is relevance (Photos arent statements)
HYPO: Cop guns you at 75 mph on highway; He wants to admit the reading from the
machine into E
i.
Machines do not make statements
HEARSAY EXCEPTIONS
A.
Introduction
1. Rationale Necessity & Trustworthiness: no single rationale to harmonize all the exceptions, but every recognized
exception has some element of (i) necessity for using H evidence; & (ii) something in its content or in the cirucm of
the utterance serves as a guarantee of trustworthiness + reliability
a.
Civil Cases: hearsay is hearsay & if theres an exception, it comes in (CC 6th doesnt apply to civil)
b.
Criminal: problem when we are seeking to introduce out-of-court statement from a declarant who is not at
trial leading to a Confrontation clause issue
2.
Unavailability: some exceptions involve situations where the declarant is unavailable (as defined by law) while
others may involve situations where the declarant may be in the courtroom
a.
Unavailable [804(a)] Defined:
i. Death / Illness
ii. Privilege (a ruling by judge is required which clearly implies an actual claim of priv. must be made);
iii. Refusal to Testify (witness refuses to testify despite judicial pressures to do so);
Require Unavailabilityiv. Lack of Memory: must be established by witness himself & he is subject to cross-examination; or
*Dying Declaration v. Absence: must show R due diligence in searching for declarant (absence from hearing coupled w/ inability
*Declaration Against
to compel attendance by process or other R means)
Interest
(1)
Declarant Out of Country: subpoena cannot be served on witness b/c it is
*Former Testimony
outside of the jurisdiction of the courts, so if the witness is asked to appear &refuses, that witness is
*Forfeiture from
unavailable
Wrongdoing
(2)
Subpoenas:
804
(A) Federal Criminal Cases: nationwide
*Catch All Exception
(B) Federal Civil Cases: w/in 100 miles of the J of the federal court
805
(C) State Criminal Cases: interstate compact; all ST agree to cooperate in enforcing subpoenas
B.
1.
Dying Declarations
804(b)(2): When W is unavailable, the following statements are not excluded by the H rule statement
made under belief of impending death concerning the cause/cirucm of what the declarant believed to be impending
death
a. When Admissible: limited to pro for homicide in criminal; just unavailable in any civil action
i.
Categories Rationale: only statement of the V offered in pros for criminal homicide was
accepted. Expansion of exception to civil actions is justified b/c stakes in civil case dont involve
death/imprisonment
b.
Elements:
i. Victim Statement (must be the victim, not some third party)
ii. Unavailable;
iii. Sense of Impending Death: must make statement while believing that death was imminent (I.e. I Got to
Die - V shot in back of head; tells father he knows he is dying & states Ds name as the killer Soles)
(1)
Judicial Determination: judge must pass on a preliminary legal conditions
necessary to the admissibility of evidence, including whether the victim had a belief in impending
death (104a); proponent has the burden of proving these foundational elements are met
preponderance of E
(2)
Weight: After the dying declaration is admitted, the jury may then decide the
amount of weight to give to the statement. However, they may not decide whether the legal
conditions were met
(A)
806: when a H statement is admitted into E, the credibility of the declarant may
be attacked, &if attacked, supported, by any E that would be admissible for other purposes (CRIB
CAPP / Rehabilitation applies)
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iv. Facts related to cause or circumstances of what victim believed to be impending death
(1) Matters Other than Supposed Death: influence is sufficiently attenuated to justify the limitation
c.
C.
b.
Excited Utterance
803(2): a statement relating to a startling event or condition made while the declarant was under the stress
of excitement caused by the event or condition is not excluded by the hearsay rule [no unavailability reqt.]
a. Common Law: called Spontaneous Declarations
b. Elements (no unavailability / competency requirement)
i.
Startling Event;
ii.
Personal Observation of Event;
iii.
Statement Relating to Startling Event;
iv.
Made Under Stress of Excitement Caused by Startling Event
c.
Rationale: statement is made under the immediate &uncontrolled domination of the senses, &during the brief
period when considerations of self-interest could not have been brought fully to bear by reasoned reflection
thus the utterance has particular guarantees of trustworthiness (Michling)
i.
Criticism: b/c of event itself, perceptions may be dulled, memory may be affected, statement may not
be reliable [but these can be brought out on cross-examination]
d.
Closely Related: Dying Declarations &Excited Utterances are close relatives if you dont win on Dying
Declarations, you may be able to win on Excited Utterance Exception
Liberal Application: courts are pretty liberal about applying excited utterances [as long as the person is still
under the stress of the startling / exciting event]
i.
EX: Kidnapping victim suddenly confronted w/ a photograph of her alleged assailant produces an
event sufficiently "startling" to provide adequate safeguards against reflection &fabrication (Napier)
e.
f.
D.
1.
Rationale: circumstantial guarantee of trustworthiness of dying declarations is that at death, the declarant
would have no reason to lie &would not want to meet the Creator w/ a last lie on the lips.
i. Criticism: Person may be incompetent, lack control, perception skewed (traditional rationale)
Minority Rule: An excited utterance is admissible only if the utterance was made in connection w/ an act
proven independently of the utterance itself (Michling TX)
i. 104a: a court may consider hearsay statements in determining the admissibility of the statements
themselves b/c the judge in considering admissibility of evidence is not bound by the rules of evidence
Present Sense Impression

803(1): a declarants statement is not excluded by H where the statement describing or explaining an
event or condition was made while the declarant was perceiving the event or condition, or immediately thereafter.
a. Elements (no unavailable requt):
i.
Statement Describing or Explaining an Event or Condition
ii.
[Declarant Had Personal Knowledge of the Event]
iii.
Declarant Must be Perceiving Event or Immediately Thereafter
b.
c.
d.
Policy: A spontaneous statement, not reflected upon, has an inherent guarantee of reliability
Timing Requirement: more strict than excited utterance no more than a few minutes after event
Examples:
i.
Speeding Car: Negligence action resulting from car accident. Right before the accident Ps drove by
declarants at a high rate of speed; declarant made exclamation re: danger in the speed of car.
Admissible based on present sense perception rationale to go to contrib. negligence. (Houston Oxygen)
ii.
e.
Observing a Burglary: 911 call describing burglary as it is taking place; police quickly arrived
&caught burglars in exact situation as described; Call admissible b/c it was describing event as it
took place. (People v. Brown) (NY requires corroborating evidence - some independent evidence
strengthening declarants account; police coming to the scene &observing similar facts sufficient)
Reflex Requirement: A present sense impression utterance must be a reflex product of immediate sensual
impressions, unaided by retrospective mental process; it must be instinctive rather than deliberate (Lira)
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i.
Facts: P brings malpractice action against D for negligence in inserting tube in throat. P offers out-of-ct.
statement of another throat doctor who exclaimed Whos the butcher who do this? when he looked at
the throat.
ii. Held: not excited utterance b/c the damage to throat is not a startling event to a throat doctor &not a
present sense impression b/c it was not a reflexive comment (not majority)
iii. Minority Rule: more restrictive than the federal rules; federal rules dont require present perception to
depend on being a reflex product (or instinctive)
E.
Admissions
1.
Rule: an admission, is automatically admissible; it has to be a statement made by a party-opponent to

be admission
a. Timing: the statement may be made any time, any place, under any circumstances
b. Own Statements parties cannot introduce their own statements as party admissions
c. Rationale: Such statements are considered competent &admissible b/c it is highly improbable that a party will
admit or state anything against himself or against his own interest unless it is true;
i. Evidentiary Ease: freedom which admissions enjoy from the technical demands of searching for an
assurance of trustworthiness calls for generous treatment in admissibility; if a statement is both an
admission & falls under another exception, go w/ the admission
d.
Personal Knowledge Unnecessary: Admissions can be highly opinionated; need not be based on the declarants
personal knowledge where they are a plain admission of the facts &circumstances of the issue (Reed).
i.
Facts: At a coroners hearing D, owner of a plant, testified to the circumstances surrounding intestates
death i.e. how the machine broke causing the injury. Statement was admissible in civil suit against D
even though he did not make statement based upon his own personal knowledge.
e.
Exception vs. Not Hearsay: FRE do not identify admissions as an exception to the H rule; but rather identify as
not hearsay; rationale = the admissibility of admissions is supported by the adversary system rather than
satisfaction of various conditions to the H rule;
2.
a.
Three Categories of Admissions: statement is offered against party opponent and

Individual / Representative (802(d)(2)(A)): statement attributed to party opponent b/c the statement is
found in the individuals own words or acts
i. Incompetence: the fact that a party-opponent made the admission while drunk is irrelevant
ii. Unconsciousness: statements made while unconscious are inadmissible (considered involuntary)
iii. Duress/Force: admissions/confessions cannot be used in E if involuntarily given thus, admission
extracted through any form of duress, or even through trick, may be held inadmissible
b.
Adoptive (802(d)(2)(B)): a third party makes the statement but we impute the statement to the partyopponent b/c the opponent manifests an adoption or belief in the truth of the statement
i.
Tacit/Silence: where silence is used as support for manifest adoption of a declarants statement, must
be established that the probable human behavior would have been to deny the statement (Hoosier)
(1) Criminal Consideration: failure to deny (silence) may be motivated by advice of counsel or
realization that anything you say may be used against you [if thats the case, its not adopted]
(2) Fact Analysis: must ask whether it is probable human behavior to deny the statement if it is
&the statement is not denied, then the opponent manifests adoption
(A) HYPO: D tried for a crime. Earlier, X, Ds brother, writes a detailed confession to the crime.
X meets w/ D &D looks over the confession at the police station. D says to X, You might as
well sign it, youve already told the police everything. Is that an adoptive admission of the
statement by D? Yes
c.
Vicarious (802(d)(2)(C) (E)): a third party makes a statement, but the party-opponent does not manifest
agreement; instead, the statement is attributed b/c of a legal relationship, such as agency.
ii.
Authorized Admission: statement by a person authorized by the party to make a statement concerning
the subject (802(d)(2)(C))
iii.
Agency Admissions: a statement by the partys agent or servant concerning a matter w/in the scope of
the agency or employment, made during the existence of the relationship [Agency], (802(d)(2)(D))
(1) Agency: the principal is responsible for the action for his agents acting w/in the scope of
employment (respondeat superior); this rule focuses on the agency relationship
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(2) Personal Knowledge: there is no implied requirement that the declarant have personal knowledge
of the facts underlying the statement under the agency admission exception (Mahlandt)
(A) Facts: three statements made by agents of D regarding the baby wolf Sophie biting the
child admissible even though statements were not made based upon personal knowledge
iv.
Coconspiracy: statement by a co-conspirator of a party during the course &in furtherance of the
conspiracy (802(d)(2)(E))
(1) Common Law Rule: any statements made by persons who are members of the conspiracy in the
course of or in furtherance of that conspiracy are admissible against any of the conspirators
(A) Problem: first you must establish a conspiracy to trigger the rule
(B) Bourjaily: S. Ct. held that the court may use the conspirator statement itself in making
104(a) preliminary factual determination as to whether a conspiracy exists in considering
whether an out-of-court statement is admissible under the conspiracy exclusion
(2) Confrontation Issue: no particularized showing of trustworthiness need be made when the
prosecution offers a statement of a co-conspirator against a D b/c the co-conspirator exception is
firmly rooted (Bourjaily). The Confrontation Clause does not pose any barrier to this exception.
3.
F.
1.
Anti-Bootstrapping Provision: The contents of the statement shall be considered but are not alone
sufficient to establish the declarants authority under (C), (D), or (E). [802(d)(2)]; drafters wanted to make sure that
such statements are not considered independent of any other evidence as a response to Bourjaily
Former Testimony
804(b)(1): a W recorded T from some earlier trial, deposition, or proceeding who is now unavailable is
admissible only if the party against whom it is now offered (i) was a party to the earlier trial or proceeding (or a
predecessor in interest in a civil action); (ii) had an opportunity to examine the witness at that time; &(iii) had a
similar motive to develop the witnesss testimony (by direct, cross, or re-direct) as that which he has now
a.
Former T: transcripts of T given by W at some former deposition, hearing or trial; where transcript is
unavailable, proof may be established by T of presiding judge or any other reliable person in attendance at the
prior proceeding
b.
i.
ii.
Elements
Witness Unavailable
(1) Prior Proceeding: must have involved testimony given under oath
Party Had Opportunity to Develop Testimony by Direct, Cross, or Redirect
(1) Preliminary Hearing: former T against a D admissible b/c D still had an opportunity to crossexamine X in the preliminary hearing
1. One R (but likely unsuccessful) argument could be, for the D, that the motive
&intensiveness of a preliminary hearing is not the same as it is at trial
(2) Grand Jury: former T inadmissible b/c there is no opportunity for CEX to confront &develop that
testimony &the motive is probably not similar since the prosecution has reasons to maintain secrecy
during the investigative stage &perhaps pull punches during questioning of a witness (Salerno)
(A) Adversarial Fairness: Simply b/c prosecution immunized a witness at the Gr&Jury does not mean
that adversarial fairness dictates that the similar motive requirement evaporate for A2.
iii.
Similar Motive to Cross-Examine (identity of issue is inherent in the requirement that the witness
was subject to cross-examination by party whose motive &interest were the same in the prior proceeding)
(1) Test: whether that party against whom the testimony is being offered had a similar motive at the prior
proceeding?
iv.
Against Same Party (criminal) or Predecessor in Interest (Civil)

Identity of Parties: the party against whom the former testimony is offered must have been a party or
a predecessor in interest to the former action;
(A) Rationale: rationale for the more restricted approach is that it may be unfair to impose upon the
party against whom such hearsay is offered the responsibility for the matter on which the witness
was examined by some other party in the earlier proceeding
(1)
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(B) Predecessor in Interest: in civil actions, some courts evade the same party or predecessor in
interest requirement by treating parties having a similar interest as the present party as
predecessors in interests, but the more traditional court will restrict predecessor in interest to
someone from whom the present party received the interest, title, or obligation that is the subject
of the present litigation
(C) Outside FRE: modern trend is only to require the parties share identity in interest &motive.
EX: A1 - criminal trial for arson against JB Wright 2 witnesses say he arranged the fire; A2
JB + JC Wright bring action to recover fire insurance; 2 witness assert privilege; their
testimony admitted on grounds that the Wrights shared a similar interest &motive in the
criminal trial, had opportunity to cross, &the issue was the same (Travelers Fire Ins. v.
Wright); under FRE, since JC was not a party in A1 probably would not be admitted
c.
G.
1.
2.
3.
Rationale: former testimony was subject to CEX in the previous trial by same party w/ similar motive
&thus has sufficient guarantees of trustworthiness; the unavailability of the witness makes it a necessity
Declarations against Interest

804(b)(3): (1) H statement admissible if (i) person who made the statement is not a party to the
action, & is now unavailable to T; &(ii) the statement was (Substantially Prejudice) against declarants pecuniary,
proprietary, or penal interest when made so that a R person in the same position wouldnt have made it unless he
believed it true
(2) A statement tending to expose the declarant to criminal liability & offered to exculpate the
accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement
b.
Rationale: are necessary b/c declarant is unavailable & must be true b/c no R person would otherwise say it
c. Break up the statement: Statement agaisnt self interest would be admissible if relevant but any part that
isnt must be excluded
Elements:
a.
Unavailable: The declarant is unavailable;
b.
Sufficiently Against Interest: The statement must have been to the substantial prejudice of an interest of
the declarant at the time it was made pecuniary (money), proprietary (property), or penal interest (criminal))
i. Standard: a R person in the same position would not make the statement unless they believed it true
ii. Common Law: the exception was limited to proprietary &pecuniary interest; rule has been broadened to
include penal interest
c.
4.
a.
b.
c.
d.
5.
a.
Perception &Knowledge: Declarant knew (subjective) the statement was contrary to his or her own interest
&there can be no motive to lie
Difference from an Admission of Party-Opponent
Must be against interest when made; admissions have no such requirement
Admissible only if the declarant knows (personal knowledge) the statement was against interest (guarantee of
reliability); admissions dont require personal knowledge
Declarant must be unavailable; admissions have no such requirement
Third party can make a declaration against interest; admission has to be made by party-opponent
Categories:
Civil Cases: proponent of the declaration against interest must show declarant is unavailable, had peculiar
means to know the facts, &did not have a motive to lie (G.M. McKelvey Co.)
i.
Facts: Action to recover insurance policy for embezzlement; employer offered signed confessions by
former employees admitting to embezzling the funds; employees slipped out of jurisdiction; court held
employees were unavailable &that there was no apparent motive to lie
b.
i.
Criminal Case: where D is offering Declaration Against Interest to exonerate himself

Corroborating Evidence Requirement: An unavailable declarants statement / confession against his
penal interest that tends to exculpate the accused may only be admitted where the corroborating
circumstances clearly indicate the trustworthiness of the statement. (Barret; 804(b)(3))
(1)
Rationale: there is a distrust of evidence of confessions by third persons offered to
exculpate the accused arising from suspicions of fabricating the confession, enhanced by the
required unavailability of the declarant
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(2)
Must Ask: Do the remarks meet the hearsay exception &is there sufficient
corroboration?
(3)
Strict Application: requires more than minimal corroboration, but not so strict as to be
utterly unrealistic
c.
Criminal Cases: where prosecution offers Declaration Against Interest against the D
i. Difficult Problem: raises constitutional issues of Confrontation b/c the declarant is unavailable, so the D
cannot cross-examine the witness to challenge the statement; this might be an inherent place where
unfair prejudice may arise
(1) Statement Must be Disserving: Rule 804(b)(3) permits the admission of individually selfinculpatory statements, but collateral, non-self-inculpatory statements in the context of the
broader narrative are inadmissible (Williams v. United States)
(A) Facts: Harris confessed to smuggling drugs &in his confession, implicated D in the operation
claiming they were Ds drugs. Statements inadmissible b/c the portion implicating D could be
seen as an attempt to curry favor w/ the police.
(B) Types of Statements
Self-serving: X believes that by implicating D, he will curry favor w/ police &receive
leniency (inadmissible non-self-inculpatory statement)
Neutral: if X neither helps nor hurts himself by implicating D (sometimes admissible)
Disserving: Xs knowledge of Zs activities incriminates X further by showing insider
knowledge of a criminal conspiracy (admissible)
(C) Confrontation Issue: Confrontation Clause prohibits confessions of an accomplice against D
that state that he &D committed the crime. An instruction telling the jury only to use the
confession against the person making it &not against the D is not sufficient to protect the D
(Bruton v. United States)
Severance: if you want to introduce the statement, but the statement cannot be redacted
to exclude the implication of the co-defendant, the trial judge should sever the parties
splitting the trial
H.
1.
Declarations of Mental Condition / Present State of Mind

803(3): Not H - statement of declarants then existing state of mind, emotion, sensation, or
physical condition (i.e. intent, plan, motive, design, mental feeling, pain, &bodily health), but not including a
statement of memory or belief to prove the fact remembered or believed unless relates to execution, revocation, id,
or declarants will.
a. Elements:
i.
Statement that bears on state of mind of declarant;
ii.
Present (then) existing state of mind is at issue in the case [relevance]
iii.
Cannot be a statement of memory or belief to prove a fact remembered (unless related to a will)
b.
2.
Intention & Hillmon Doctrine: declarations of plan or intent to perform an act in the future may
be introduced into E as proof that the act has been committed (Mutual Life Insurance Co. of New York v. Hillmon)
a. EX: Letter stating Xs intention to go to Crooked Creek admissible to allow inference that X went to Crooked
Creek (thus, increasing probability that the body at Crooked Creek was Xs body)
b.
3.
Rationale: declarations have degree of spontaneity (trustworthiness) & may be the best E of the declarants
state of mind (necessity element). Since declarant knows his own state of mind, no need to check perception
&since statement is of present (then-existing) state of mind, no need to check declarants memory.
Problem: logical gap b/c doc assumes that the person wont change their mind (counter-intuitive to say that a
statement of intention to do something can prove that a person did the act, but a statement that the act was
performed cannot be used)
Backward Looking Declarations: Declarations of present memory, looking backwards to a prior

occurrence, are inadmissible to prove, or tend to prove, the existence of the occurrence (Shepard v. United States)
a. EX: Wifes statement that X poisoned me inadmissible under state of mind exception

i.
ii.
4.
1.
2.
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Proving the Conduct of Another: a statement made about someone elses conduct or state of mind are
too prejudicial (not fair) to be used to prove what the other person had done.
Facts: Dr. Shepard is accused of murdering his wife. He claims she committed suicide. Just before her
death, Mrs. Shepard took a bottle to her nurse &said "Dr. Shepard has poisoned me." Prosecution
claimed it was a dying declaration &in the alternative, that it rebutted the suicide claim as a state of
mind exception.
Limitation Respecting Conduct of Third Persons: statements made by declarant as to his state
of mind cannot be used to implicate or reflect on the probable conduct of a third person (I.e. X states I know B is
going to kill me is inadmissible in a murder prosecution against B)
a. Future Conduct w/ Another: Declarations of intent by a declarant are admissible to prove the declarants future
conduct w/ another person, even if its accomplishment requires action by that other person (US v. Pheaster)
ii.
EX: Larry stated his intention to meet Angelo in the parking lot, was admissible to show L met A even
though it presumes Angelo acted in meeting Larry (but inadmissible to show Angelo met Larry)
iii.
I.
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Problem: cant use declarants statements to prove the state of mind or conduct of another person, but
here we are saying that you can use declarants statement of intent to show that declarant performed an
act which needs another person to act in order for the act to be accomplished; it is contradictory
Physical Condition: statements are not excluded by the hearsay rule if

Present Condition: where a persons physical condition at a specified time is in issue, that persons
spontaneous statements, made at that time, are admissible to prove the condition (803(3))
a.
I.e. P injured in accident; statements at & after collision about how she feels are
admissible to prove the same
Past Condition: statements of past or present physical condition are admissible where made for the purpose
of medical diagnosis or treatment; statement must be reasonably pertinent to med. diag. or treat. (Rule 803(4))
a. Elements:
i. statement of past or present physical condition
ii. made for the purpose of medical diagnosis or treatment
iii. statement is reasonably pertinent to medical diagnosis or treatment
b.
Person Treating: statements may be those made to anyone associated w/ providing medical services, including
family members
i.
Non-Treating Physician: statements made for the purpose of medical diagnosis admissible to same
extent as a treating physician, even if only real purpose of examination was to permit physician to
testify at trial
c.
d.
Statement By Person Other than Injured: permissible if the statement is R pertinent to diagnosis or treatment
Cause of Declarants Present Med Condition: CT draw line where statement regarding cause enters realm of
fault (I.e. statement that X struck by car admissible, but not that the car drove through a red light) unless the
statement is reasonably pertinent
i.
Two Part Test:
(1) Declarants motive must be consistent w/ purposes of obtaining medical treatment; and
(2) Content of statement must be such as is reasonably pertinent in providing medical treatment or
diagnosis
(A) questionable whether statements identifying perpetrator of the condition (i.e. in a rape) is
necessary for diagnosis or treatment (probably not)
ii.
3.
a.
b.
Tender Years Exception: allows statements of very young, ordinarily inadmissible based upon their
age, to be admitted where there is nothing to indicate a motive other than a patient responding to
questions by a physician for purposes of medical treatment [this might include statement as to cause]
Distinction b/t 803(3) &803(4):

Rule 803(3) addresses your own statements about your present physical condition
Rule 803(4) you can go into past history &causes of physical conditions
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4.
Guarantee of Reliability: the patent has a strong motivation to be truthful; statements may be presumed
reliable
since
believes that
NOTE: (801.d.1) 3declarant
Non H Situations
(Noteffectiveness
Exceptions) of treatment may depend upon accuracy of info. provided
*Applicable where W is currently T & subject to CEX= automatically admissible
1. Prior IS: by W made under oath
(I.e. GJ, deposition, pre trial hearing; useable not just to impeach but also used for truth of the statement)
2. Prior CS: where being used to rebut a charge of recent fabrication
(Rarely allowed = merely bolsters true statement)
3. Prior Id.: made by W about ID of person made after perceiving
J.
1.
Prior Identification
PI Problems: misidentification is common among people making an ID after perceiving an event; memory
is faulty
a.
Lineup: a police identification procedure by which a criminal suspect &other physically similar
persons are exhibited before the victim or a witness to determine whether the suspect can be identified as the
criminal
i.
Types of Lineups
(1) Corporeal Lineup: suspects line up &victim makes identification
(2) Photographic Array: victim goes through a mug book &makes identification
ii.
Dangers of a Lineup: lineup is a closed universe; the underlying expectation of witness is that
assailant is one of the suspects presented in the lineup (even if it may not be)
b.
Due Process Violation: improper identification procedures violate the 14th Amendment;
examples
i.
Show-Up: pretrial identification procedure in which a suspect is confronted w/ a witness to or the
victim of a crime; unlike a lineup, a show-up is a one-on-one confrontation; considered inherently
suggestive [ex: bringing the victim to a suspect handcuffed to a chair &the victim identifies]
(1) Exigency Situation: under some circumstances, the show-up may be allowable; the focus will be
on how the police choose to arrange the situation. In an impromptu identification, this type of
show-up may pass constitutional muster
2. 801(d)(1)(C): a statement is not hearsay if declarant testifies at the trial or hearing & is subject to CEX concerning
the statement, & the statement is one of identification of a person made after perceiving the person
a.
Elements:
i.
Declarant must testify at trial or hearing;
ii.
Declarant must be subject to cross-examination concerning statement;
iii.
Statement is one of identification of a person made after perceiving the person
iv.
prior-identification must comport w/ Constitutional requirements (such as not using a show-up)
K.
1.
b.
Rationale: given adequate safeguards against suggestiveness, out-of-court identification is

preferable to courtroom identification b/c as time goes by, witness memory fades &identification will become
less reliable. Minimizing the barriers to admission of more contemporaneous identifications is more fair to Ds
&prevents cases falling through b/c the witness can no longer ID the person who committed the crime
c.
Memory Loss: Testimony concerning a prior out-of-court statement identifying a person is

admissible even if the declarant is unable, b/c of memory loss, to explain the basis for the identification (United
States v. Owens)
i.
Facts: Correctional officer badly beaten, identifies D as assailant while in the hospital, but suffers
memory loss at trial &cannot recognize D
ii.
Rationale: Confrontation Clause is not violated it guarantees only an opportunity for effective crossexamination. Its a chance for a D to look his accuser in the eye; memory loss does not make a person
unavailable for cross-examination since unavailability is a statutory definition not applicable to 801.
Past Recollection Recorded

Ways to Recall a Situation at Trial: W T from Recollection; Present Recollection Refreshed (item is used to
refresh or revive the witness recollection) (612); &Past Recollection Recorded (803(5))
a.
Note: do not confuse Past Recollection Recorded w/ Present Recollection Refreshed
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Distinction: difference between evidence &non-evidence. For present recollection refreshed, the document
acts only used as a stimulus (anything can be used) but the evidence is the witness itself. Past recollection
recorded may be used as substantive evidence when the witness is incapable of remembering the information
personally (Baker v. State judge confused the standards)
2.
L.
1.
803(5): not excluded by H rule - memo or record concerning a matter about which a W once had
knowledge but now has insufficient recollection to enable the W to testify fully &accurately, shown to have been
made or adopted by the W when the matter was fresh in the witness memory & to reflect that knowledge
correctly.
a. Elements: (4)
i.
Memorandum or Record
ii.
Witness prepared or adopted document giving witness adequate personal knowledge;
iii.
Witness has forgotten the event (insufficient recollection);
iv.
Prepared or adopted record when fresh in W mind (shortly after event: hours or days later);
(1) Adopted: witness read the document when the event was fresh in her memory, knew then that the
document was correct, &therefore adopted the document as a record of event (i.e. police report)
v.
Document correctly reflects what was remembered when it was made;
b.
Rationale: since W lacks sufficient memory, the only choice is to admit the written statement or do w/out the
evidence entirely (necessity); problems of memory &sincerity are minimized b/c statement was written or
adopted at time when it was fresh in witness mind, &witness is available for cross (reliability)
c.
Limitation: may only be read into E but may not be offered as an exhibit unless offered by an adverse party.
i. Rationale: the limitation is adopted b/c the jury may assign too much weight to the record (magnifies the
importance of it) it would be a way of inflating the testimony of one witness.
d.
When Used: often used when the details in a record made by the declarant are extensive &it is too much for
them to remember those details
Forfeiture by Wrongdoing
804(b)(6): not excluded by H rule if declarant is unavailable; statement offered against a party
engaged or acquiesced in wrongdoing that was intended to, & did procure the unavailability of the W
a. Elements
i.
declarant is unavailable;
ii.
statement offered against party
iii.
who has engaged or acquiesced in wrongdoing
iv.
that was intended to &did procure declarants unavailability
b. Rationale: if such wrongdoing is recognized to forfeit certain constitutional rights, it should also result in a
forfeiture of a litigants rights under the statutory hearsay rule
i.
EX: D made veiled threats to a witness that he should not identify him as the drug purchaser in
gr&jury; witness did so &the day witness was to testify at trial, he was murdered. Court held that Ds
involvement in witness death forfeited his right to confrontation (United States v. Mastregelo)
c. Burden of Proof: preponderance of the evidence applies since this is an evidentiary issue under 104(a)
d. Forfeiture vs. Waiver: forfeiture accurate term than a waiver b/c waiver assumes the person is aware of their
rights &waives them, but under this exception, the defendant may not be aware that causing the unavailability
of the witness will cause waiver of the confrontation right
M.
1.
Business Records
Introduction
a.
Old Standard: in order to introduce a business record into evidence, you needed to establish the chain of possession to
guarantee the authenticity of the document (which required numerous witnesses &undue burden).
b.
Regular Course of Business Doctrine: modern rule to align evidence law w/ business practices;
established that records kept in the regular course of business are admissible for the proof that those
documents assert.
i.
2.
i.
ii.
London
32
Rationale: its in the interests of the business to keep their records accurate &reliable; the source of the
information &the method &time of preparation indicate the trustworthiness
803(6). Records of Regularly Conducted Activity: Elements:
Records Made At or Near Time of the Transaction
Business / Entity
(1)
Defined: every business, institution, association, profession, occupation, &calling of
every kind, whether or not conducted for profit (broad enough to cover organizations not
ordinarily thought of as businesses) (I.e. schools, hospitals, churches, etc.)
iii.
iv.
v.
Kept in the course of regularly conducted business activity

Must be the regular practice to make that record
Acts / Events / Conditions / Opinions / Diagnosis / Observations
(1) Prognosis vs. Diagnosis: a doctors diagnosis is admissible, but a prognosis (prediction of a
probable course &outcome of disease) may not be
vi.
Unless the source of information or methods of preparation indicate lack of trustworthiness1

(1) Source of Information: entry must consist of matters either w/in personal knowledge of entrant;
or transmitted to entrant by someone who was under a business duty to report such matters to the
entrant &who had firsth&knowledge
(A) Why: where the record contains statements by persons having a duty to that business, their
statements are inherently reliable b/c of the duty to that company; if the record contains
statements provided by third parties w/out such a duty to the business or entity, it does not
have the same guarantee of reliability &is inadmissible
(B) Ex: police reports based on firsth&knowledge of officer is admissible, but reports based
solely on the statements of bystanders who are not under a business duty to report are not
(Johnson v. Lutz)
(2) Newspaper Reports: as a general rule, they would probably not come w/in the business record
hearsay exception b/c they are not sufficiently trustworthy or reliable
(3) Accident Report Offered by D Being Sued: an accident report offered as a business record by the
defendant being sued probably does not have guarantees of trustworthiness
a.
Record Authenticated: custodian of records or other qualified witness (not necessarily the original entrant)
must appear in court to identify the records, &testify as to their mode of preparation &safekeeping
i.
Records w/in Records: no requirement that either the witness who lays the foundation for business
records be the author of the record or be able to personally attest to its accuracy, or that the records be
created by the business having custody of them (United States v. Duncan)
(1) Ex: business records from an insurance company were admitted into evidence even though they
contained medical records from an independent entity a hospital (the hospitals records had
sufficient guarantees of trustworthiness)
b.
Form of Records: any form of records is permissible as long as made in the regular course of business (I.e.
computer printouts)
Redacting: a portion of a business record may be held admissible, while other portions are not
c.
3.
Criminal Cases: it is still unsettled whether use of business records in a criminal case violates the accuseds
confrontation rights where the entrant fails to testify; Supreme Court may have to decide the issue
4.
Business Records as Evidence of Absence of Any Entry: properly authenticated business records can be
used to prove the occurrence or nonoccurrence of a transaction as long as it can be shown that it was the regular
practice of the organization to record all such transactions (Rule 803(7))
This is more of a limitation than an element that must be met its the last thing that should be asked is the source
reliable?
London
33
N.
Public Records &Reports

1.
803(8): statements are not excluded by hearsay rule if
H Exception is a. Activities of office or agency, or
also given for T b. Observations made pursuant to a duty imposed by law; or
i.
Limitation: no matters observed by law enforcement in criminal cases are admissible here
from any W that
R diligent
search failed to c. Factual findings resulting from an investigation made pursuant to authority granted by law unless the source
of the information or other circumstances indicate lack of trustworthiness
disclose the
i. When: civil actions / proceedings or if offered by defendant against the Government in criminal cases
record
2.
Overlap: public records exception may often overlap w/ business records, but
the public record exception goes beyond the business record exception
3.
a.
b.
c.
O.
1.
2.
3.
Distinction from Business Records:

in the public records exception, we may be recording an event thats once in a lifetime
w/ public records, you dont need a sponsoring witness / custodian you can simply get them certified
can be based on statements from witnesses who had nothing to do w/ the agency
Residual Exception [Catch-All Exception]

Generally: exception that a judge can invoke when its evident that the statement is extremely reliable but that does
not meet the technical requirements of the hearsay exceptions
807 Elements:
a.
Statement not covered by 803 or 804
b.
Has circumstantial guarantees of trustworthiness equivalent to other hearsay exceptions
c.
Statement offered as evidence of a material fact;
d.
Statement more probative on the point than any other E which proponent can procure through
R efforts
e.
Interests of justice will best be served by admitting statement; and
f.
Proponent provides notice
EX: P brings suit for injury suffered when Ds used car backfired while P is inspecting it; Ds mechanic handwrote
unsworn report of accident while event was still fresh in his mind &w/o prompting or pressure. Ds mechanic was
unavailable (necessity); thus the court allowed the statement finding it similar to meeting the requirements for past
recollection recorded (trustworthiness) (Turbyfill)
HEARSAY EXCEPTIONS PNEUMONIC DEVICE

Business records
Recorded Recollection
Interest (declaration against)
Excited Utterance
Former Testimony
Contemporaneous Utterance (Present Sense Impression)
Admissions
State of Mind mental/physical
Everything Else (Residual Exception)
Dying Declaration
Actions causing absence (forfeiture by wrongdoing)
Diagnosis (medical treatment &diagnosis)
CHAIN HEARSAY (Hearsay on Hearsay or Totem Pole Hearsay)
A.
805: Hearsay included w/in hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms w/ an exception to the hearsay rule provided in these rules.
1.
Translation: if a statement has hearsay w/in hearsay, &each one of these links can fit under its own
exception, then the hearsay w/in hearsay statement is admissible
B.
Examples

1.
London
34
Ex: Woman sees a hit &run accident &immediately writes down the license plate number. An officer
arrives 10 minutes later &records her account of the license plate number. Proponent wants to offer officers
writing. Officer testifies that he no longer remembers the number, but at the time, he writing it down while it was
fresh in his mind &that the writing accurately reflected the information. Admissible?
a. Admissible: Womans action satisfies the present sense impression exception; officer satisfies the past
recollection recorded exception.
2.
Ex: business record containing the entry Telephone call received from X saying his wife was leaving for
Brazil is not admissible as proof that Xs wife left for Brazil. Even if the record otherwise satisfies the business
record requirements, it is excluded b/c the entrant had no personal knowledge of the facts, but was merely relying on
the inadmissible, out-of-court declaration of another party
Note: When E in question is an out of court statement by A repeating an out of court statement by B, you must analyze both
A & B statements separately = if either H statement doesnt fall within exception the combined statement isnt admissible
803 (18): Learned Treatise Exception:
1. learned treatise can be read into record (as substantive E); not admitted itself
a. if
i. Expert W relies on it in direct
ii. Or called to his attention on CEX
iii. Or established as reliable authority
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Evidence Outline (Gershman)

vi. Offering Evidence

Evidence Outline (Gershman)

Time for Objecting to Testimony: Waiver

RELEVANCE &CIRCUMSTANTIAL EVIDENCE

Evidence Outline (Gershman)

Doctrine of Limited Admissibility (Rule 105)

Relevance of Mathematical Probability E (probability of E must be

Evidence Outline (Gershman)

Verdicts: we require supporting direct E b/c we want verdicts to be accurate &acceptable

How to Authenticate: by direct or circumstantial E, or docs may be self-authenticating (I.e. Doc

Ways to Authenticate Handwriting:

Authentication of Oral Statements: authentication consists in identifying the speaker;

b. Types of Character Evidence: 3 ways to prove a particular trait of character

Opinion: Opinion testimony by acquaintances (Rule 405(a))

Evidence Outline (Gershman)

Specific Incidents of Past Conduct: when character/trait of a person is an essential element of a

Cannot Show Propensity: E of a character trait is generally inadmissible to show action

Victims Character* in Criminal Case 404(a)(2) (not to be proven by SI)

Other Crimes E is often

Evidence Outline (Gershman)

Plan (common scheme or plan; must be unique / uncommon in the elements):

Facts: E of 2 past drug sales where D used cocaine filled balloons to

Preliminary Questions (Rule 104(a)): Preliminary questions concerning qualification of person to be a W,

Evidence Outline (Gershman)

Character Evidence vs. Habit Evidence

Value: highly persuasive as proof of conduct on a particular occasion

Rule: Evidence of other substantially similar occurrences may be relevant

Evidence Outline (Gershman)

F. Subsequent Precautions/Remedial Measures (407)

No Dispute: if there is no dispute as to validity or amt, or is introduced w/o objection, it would

Offer v. Not Offer:

Evidence Outline (Gershman)

Payment of Medical & Similar Expenses: E of

Evidence Outline (Gershman)

Evidence Outline (Gershman)

Scope of Matters Noticed (201)

General Competency: (601) anyone is competent to T as a W unless otherwise provided in rules

Leading Questions Not Permitted w/ Exceptions

Evidence Outline (Gershman)

Abolishes voucher rule; any W under 607 may be called &CEX

Present Recollection Refreshed (612) [dont confuse w/ past recollection recorded in H]

Impeaching Ones Own Witness

Evidence Outline (Gershman)

D. CEX & Impeachment

Impeachment Techniques (CRIB CAPP) [W impeachment

Intrinsic Method to impeach by SI of bad acts =

Evidence Outline (Gershman)

Prior Convictions:(609) for W credibility, E that a W (Not D) is convicted criminal is admissible

Crimes of Dishonesty/False Statement: Any crime of dishonesty or false statement

Convictions > 10Y Ago: admissible if PV substantially outweighs UP &proponent gives

Evidence Outline (Gershman)

Reputation &Op for Truth & Veracity:

Foundation to Impeach W Credibility

Evidence Outline (Gershman)

Bias, Hostility, & Interest (Always look for possible Motive

E. Rehabilitation rebuilding your W credibility (within the scope of prior CEX)

Evidence Outline (Gershman)

Evidence Outline (Gershman)

Will assist trier of fact to understand evidence or determine issue

Steps of Giving Expert Op: witness must be shown

Factual Bases of Experts Opinion: 703 Applies