Saturday, May 24, 2014

7:32 PM

EVIDENCE OUTLINE - DRAFT

I. Rule 606(b) - Juries [Tanner v. United States] (8)
a. External Influence (11)
i. Evidence by jurors or non-jurors, including sworn testimony, may be used here to
prove any external influence outside of deliberations.
ii. External influences include reading newspapers, watching news, and other
external sources while in and out of deliberations and trial.
b. Internal Influence (11)
i. Includes alcohol, drugs, exhaustion, mental capacity, and other internal matters
directly related to deliberations.
ii. Evidence, including sworn testimony, only by non-jurors allowed to prove internal
influences affected trial.
iii. Objections must be raised typically prior to the jury going to deliberation or it is
waived without sufficient evidence by non-jurors and over an important matter.
iv. Protects the jury from having to deal with imperfection in the deliberations that
would normally get a verdict tossed out, except in the gravest of situations.
c. Tanner after the courts on racism and the 6th Amendment (18)
i. Minority view is that racism is outside/external influence period.
ii. Majority view is that racism is like alcohol and drugs and is internal generally, but
since racism is harder to detect, it is treated as an external matter doubting the
four protections of Tanner to protect the party.
iii. Another minority view is strict Tanner holding, racism is internal and protected.
II. Relevance
a. Rule 401 (22)
i. RULE TEXT: Evidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.
1) (a) covers probativeness - proving or disproving claim with new evidence.
2) (b) covers materiality - evidence is material in making a decision.
ii. Probativeness
1) Standard is 'any tendency' - it must be a brick in a wall of proof. (23)
iii. Materiality
1) Excluded evidence is material when the evidence could corroborate (or
contradict) a story told by a defendant or party. [James v. United States]
(29)
iv. Conditional Relevance [Cox - rule 104(b)] (36)
1) Conditional relevance admits evidence only when the condition is fulfilled or
the evidence is subject to the condition being fulfilled. (37)
a) A condition is either a condition of fact or
b) Condition typically requires the party to know or reasonably be able
to know of the condition before admitting it. (38)
2) Standard is that the judge determines if a reasonable jury could make the
requisite factual determination based on evidence before it. (37)
a) Denial happens when the jury could not reasonably find the
preliminary fact to exist. (38)
b) Standard essentially is "sufficient evidence to support a finding" and is
Outline Page 1

b) Standard essentially is "sufficient evidence to support a finding" and is

more strict over rule 401
3) All evidence in theory is conditional evidence (40)
b. Rule 402
c. Rule 403 (42)
i. Rule 403 Text: Court "may" exclude relevant evidence even if probative when it is
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
preventing cumulative evidence. (42)
1) Danger must be > probative value
ii. A more narrow class requires stricter screening under rule 609(a)(2).
iii. Bocharski (44) - Inflammatory evidence cannot be admitted even if probative
when the issue is not contested. (45)
1) Includes photographs, which are not automatically admitted, but generally
admitted when relevant.
2) Government cannot be compelled to try a case in a sterile setting. (46)
3) Inflammatory evidence must typically be supported by other evidence,
including testimony.
iv. Serge (49) - Evidence may be deemed admissible when it is a fair and accurate
representation; (2) is probative and material; and (3) probative value is more than
the danger value. (51)
1) Costs are a relative factor. One side cannot use unlimited or unproportionate funds to create technological evidence while limiting funds
on the other side in criminal cases. (52)
2) Computer Graphics Animation (CGA) / Videos can be used when juries are
safeguarded by thorough and extensive cautionary instruction. (52)
v. Undue consumption of time (57) - Admissions that waste court's time may be
excluded.
vi. Evidence that is used to impeach can override any exclusion under rule 403. (58)
vii. Myers (58) - Possible admission by flight can only be admitted when the flight
meets four inferences: (1) from the defendants behavior to flight; (2) from flight
to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt
concerning the crime charged; and (4) from consciousness of guilt concerning the
crime charged to actual guilt of the crime charged. (60-61)
1) Flight must be reasonably construed as flight with minimal contradiction,
related to the crime or accusation of crime with flight within a reasonable
time such as a week (61), not post-crime or accusation of an unreasonable
time such as weeks or months (62).
viii. Collins (66) - Probability cannot be used except in truly independent variables.
ix. Jackson (80) - Conditional exclusion is allowable under a stipulation of the
evidence would be excluded with a replacement of a statement. Absent this, the
court may decide to allow normally unfairly prejudicial to the defendant if the
defendant challenges the stipulation.
x. Old Chief (82) - Evidence of a criminal record is unfairly prejudicial under rule 403
when an admission is available to achieve the same result and the evidence is of
minimal probative value, except that a court nor prosecution is not required to
accept a defendant's choice of evidence under this rule here except under the
rules of 403.
d. Rule 404 (145)
i. Rule 404(a): Character evidence is inadmissible except when a defendant seeks to
offer evidence a trait that makes it more likely he could not have done the act or
the victim (under rule 412) has a trait making a defense more likely. Prosecution
is allowed, if defense admits character evidence, to submit rebuttal character
evidence. Prosecution is allowed to submit rebuttal evidence in homicides when
Outline Page 2

evidence. Prosecution is allowed to submit rebuttal evidence in homicides when

defense alleges victim as first aggressor.
1) Witness character evidence is admitted under 607, 608, & 609.
2) Fear that such evidence may give so much weight generally that it causes
jurors to find guilt absent any evidence to it just because of character
evidence.
ii. Zackowitz (147) - Character evidence is admissible when the evidence is found on
the person at the time of the crime, or is found to be related to the actions of the
crime, to prove propensity to commit the crime and the preparation of the crime.
(149-150)
iii. Propensity Rule (153) - Evidence that shows a particular character trait is not
admissible to show a person acted in accordance in that trait.
iv. Rule 404(b): Cannot use character evidence to show a history of crime or other
wrongs/acts to show the character of the defendant as he would act in the same
way as the crime currently charged with, but can use it to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.
1) Defendant is entitled to the prosecutor providing reasonable notice of any
evidence in 404(b) when requested by defendant before trial or by court
permission during trial.
2) No requirement to admit all evidence under any part of 404.
3) Rule 404(b) works for both sides. (Class 6/16)
v. Rule 404(b) allows in evidence of prior criminal acts by a defendant to prove the
identity of the defendant if the evidence has (1) a special relevance independent
of the criminal propensity aspect and (2) the evidence has special evidence on a
material issue. After this is met, rule 403 analysis applies. (175)
1) Exact match is not needed, (176) but the totality of the circumstances
requires more than one (178) material similarities between a past incident
and the current incident to be admissible and used to show that all others
but the defendant did not do the crime. (171)
2) Defense may be use 404(b) evidence as a reverse 404(b) rule to negate guilt
subject to a rule 403 analysis. (185)
vi. Evidence of prior history of a person can be admitted if relevant if the evidence
provides an 'inextricably intertwined' with the current charged offense if the
evidence either (a) forms a part of the transaction serving the basis of the criminal
charge or (b) forms the basis to provide a coherent and comprehensible story
regarding the commission of the crime. (192-93)
vii. Use of Doctrine of Chances [The likelihood of innocent repeated series of events
makes it highly unlikely that the events are innocent including the current event
and are more inferences of design showing motive and planning] is allowed
under rule 404(b), (197), despite the suspected problems with a jury indirectly
touching the propensity box by making assumptions about the person's character.
(199)
viii. Use of prior similar acts only requires a judge find preponderance of the evidence
under rule 104(b) to show through rule 404(b) that the jury could reasonably find
conditional facts in the evidence, but does not require a court to weigh credibility
or make findings that the evidence is proved beyond the preponderance of the
evidence standard. (205)
ix. Exceptions to the rule: 404(a)(2)(A); 404(a)(2)(B); 404(a)(2)(C); 404(a)(3); 413; 414;
415 (Flowchart on 161 & 260)
e. Rule 405 (234-252)
i. Text: A person's character or character trait can be proven if admissible by
testimony about the person's reputation or testimony of an opinion or by showing
an essential element of a charge (or claim or defense) by showing relevant specific
Outline Page 3

f.

g.

h.

i.

j.

an essential element of a charge (or claim or defense) by showing relevant specific

instances of previous conduct, but cross-examination allows for inquiry into
relevant specific incidents of the conduct.
ii. Whoever presents the character evidence, the other side is allowed to cross-exam
the witness to cast the credibility of that evidence into doubt. (241)
Rule 406 (252-256)
i. Text: Evidence of a habit or routine practice may be admitted to prove on a
particular occasion the habit or routine practice was followed regardless of any
corroboration or eyewitnesses.
ii. Evidence of a habit or regular use must be more than one occasion of use, but can
be any number over one that is sufficient to find a habit or regular pattern of the
behavior. (254) Cannot use evidence of a habit of violence or drinking to meet the
test/rule of 406. (255)
Rule 407 - Remedial Measures
i. Text: Measures taken after a harm that would likely reduce the pre-harm event
possibilities, that evidence cannot be used to prove negligence, culpable conduct,
a defect in a product or design, or a need for warning or instruction. Evidence
may be used for all other purposes subject to any other exclusionary rule.
ii. Exceptions: Feasibility - if the defendant contests feasibility, evidence can be
allowed in to show it was truly feasible; Impeachment - can be used to show the
witness is not credible (if reasonable to do so); Third-party repairs are generally
admitted as it is not the defendant actually doing the remedial measure but might
not get past rule 403
iii. Strict liability - this rule applies to any strict liability (defective product) law suit.
iv. Does not matter why the remedial measure was undertaken (i.e. annual update),
just that it was a remedial measure.
v. Party can 'open the door' to allowing the evidence in. Even a witness can if they
make a claim it was as safe as it could be or no changes were made but the
evidence suggested otherwise (use to impeach).
Rule 408 - Compromise Offers & Negotiations
i. Text: No offer or negotiation is admissible to prove or disprove validity (or amount
of dispute) or to impeach by prior inconsistencies in the statements that deal with
(a) any consideration or compromise of a claim; or (b) any conduct or statement
during the negotiations in civil cases and most criminal cases.
ii. Exceptions: Criminal cases are allowed to present evidence of civil negotiations
related to claims made by a public office in exercise of its regulatory,
enforcement, or investigative duties (118); or impeachment of a witness's bias or
prejudice in a matter (119); or if the evidence is used for another purpose outside
the rule text.
iii. Does not protect from offers to compromise made before a claim has been made.
(117)
iv. Cannot use rule 408 to seduce a party into action on the belief a settlement is all
but final, and then yank the settlement and object to evidence of it after the fact
by the rule in the trial. (116)
v. Any disputed matter of validity or amount is allowed in over rule 408. (118)
vi. Third-party negotiations may be excluded under rule 408 if doing so advances the
public policies favoring settlements out-of-court when dealing with the same
transaction or occurrence. (120/122)
Rule 409 - Medical Expenses (125)
i. Text: Evidence of furnishing, promising or offering to pay any medical related
expenses caused by an injury is not admissible to prove liability for the injury.
ii. Essence - excludes offer to pay, but not admissions of fault.
Rule 410 (137-144)
i. Text: A plea that is later withdrawn, a no contest plea, any statements made in
Outline Page 4

i. Text: A plea that is later withdrawn, a no contest plea, any statements made in
the proceeding of pleas under FRCP 11, or statements to prosecutors (or agents
of) in proceedings of a plea that do not result in a plea or a later withdrawn plea
are not admissible against a defendant.
1) Must be actual authority, not appearance of (143)
ii. Exceptions: Evidence may be admitted if under a proceeding for perjury if made
under oath, for the record, and with counsel present; or if another proceeding has
properly introduced the statement made in the plea deal or discussions when in
fairness to be considered together.
iii. Immunity and plea negotiations fall more towards 403 over 410 when submitted
by the defendant as 410 only restricts evidence submitted against a defendant.
(Under 403- many courts bar evidence as it would discourage prosecutors to
negotiate pleas.) (143)
k. Rule 411 (126)
i. Text: Evidence of insurance or a lack thereof is not admissible to prove whether a
person acted negligently or wrongfully, but may be admitted to show bias,
prejudice, or proving agency, ownership, or control.
ii. Subjected to rule 403 before admission for anything outside rule 411.
iii. Blindfolding survey (134-137)
III. Impeachment and Character for Truthfulness
a. Rule 607
i. Text: Any party, including the party that called the witness may attack the
witness's credibility.
ii. Methods of attack: Bias, Conflicting Evidence, Past Inconsistent statement [Rule
613] (308) but bias is not an attack on character of truthfulness.
iii. Bias, conflicting evidence, and past inconsistent can be proven up by the opposing
party. (Class 6/16)
b. Rule 608(a)
i. Text: A witness's credibility can be supplemented by either attacking it with
testimony supporting a reputation of an untruthful character or supporting it with
testimony supporting a reputation of a truthful character or with testimony to
form an opinion about that character, but only truthfulness reputation can only be
added once truthfulness was attacked.
ii. Character witnesses must have an acquaintance with the witness and the
community and circles of the witness being attacked or supported to be allowed
in as a character witness. (263)
c. Rule 608(b)
i. Text: Except for criminal convictions under 609, extrinsic evidence cannot be
admitted to prove specific instances to attack or support a witness's character for
truthfulness, but on cross-examination this evidence may be allowed if probative
of the truthfulness of the witness testifying or another witness being testified
about. [Using knowledge of past conduct / convictions to show the opinion of a
witness's truthfulness is not what the supporting witness says it is - but cannot
prove any claims made under this rule.]
ii. Cross examination of a witness's character is allowed if probative to the argument
of truthfulness based on a reasonable basis for asking the questions on crossexamination and the cross-examiner must have some facts supporting genuine
beliefs the witness committed an offense supporting the problem of truthfulness.
(264-65)
iii. Limitations on 272-273
d. Rule 609
i. Text: Criminal convictions can be used to attack a witness's character for
truthfulness for convictions for a crime punishable by death or imprisonment for
more than one year if (1a) in any civil case or criminal case where the witness is
Outline Page 5

more than one year if (1a) in any civil case or criminal case where the witness is
not a defendant and (1b) in a criminal case which the witness is a defendant
subject to the prejudicial effect to the defendant or (2) in any conviction
regardless of sentence if the elements of the conviction included proving
dishonest acts or false statements. [Using conviction to impeach witness - no extra
trial work]
1) Exceptions: Evidence limited to 10 years of either the conviction or release
from confinement, or if the evidence of conviction was eventually
pardoned, annulled, or rehabilitated--all subject to the 403 analysis of
relevance and prejudice and any particular rules for the subsection
providing support--or for all civil cases and impeachment of testimony of
criminal defendants involving juvenile adjudications without subject to 403
analysis.
ii. Five factors to balance probative value to prejudice: (a) nature of the crime; (b)
time of conviction and subsequent history; (c) similarity between past crime and
charged crime; (d) importance of testimony; (e) centrality of credibility issue.
(288)
1) When other convictions will result in the appropriate impeachment of
credibility when another conviction of a similar charge to the current charge
exists, the inclusion of the similar charge conviction risks overkill at the risk
of extra prejudice. (289)
2) When a fear to testify from bringing up prior convictions severely prejudices
the defendant, the court should exclude the conviction until strong
justification allows it in. (290)
iii. A parole violation with subsequent confinement restarts the 10-year clock on
release from confinement. (287)
iv. To determine dishonest acts or false statement crimes, look to the statutory
elements, trial court judgment, indictment, statement of admitted facts, and jury
instructions. (293)
v. To appeal under rule 609, the defendant must testify and the government must
introduce the controversial conviction (299) except that if a defendant files a
pretrial motion to exclude and loses he may introduce the evidence himself and
preserve the right to appeal. (302)
e. Competency of Witnesses (364-373)
i. Rule 601 - Every person is competent to testify unless rules provide otherwise.
ii. Rule 602 - Non-expert witnesses must testify from personal knowledge
iii. Rule 603 - All witnesses must testify under oath to tell the truth.
iv. Rule 605 - Presiding judges are incompetent to testify at the presiding trial.
v. Children are presumed competent to testify unless a competency hearing
suggests otherwise.
IV. Hearsay (374 / 406)
a. Rule 801
i. Text: Hearsay is a statement the declarant does not make while testifying at the
current trial and a party offers evidence to prove the truth of the matter asserted.
[Basically an out-of-court assertion (395)]
ii. Nonverbal conduct and hearsay??? (390)
iii. Hearsay, when presented to an out-of-court listener, could exclude the testimony
and conduct if an intention of asserting something comes from that conduct.
(395)
1) Methods of assertions: Words / Implied Assertions / Indirect Assertions
(396-398)
iv. Non-hearsay usage: Non-assertive words / Using words to show something other
than proving what was said (such as competence) / Circumstantial proof of
knowledge (398-400)
Outline Page 6

knowledge (398-400)
b. Exceptions:
i. Rule 801(d)(2) [408]:
1) The party's own words [Communication or intent of is required to meet
hearsay. Getting a sandwich at a store to say you are hungry is not
communication that you are hungry]
2) Adoptive admissions
3) Statement of Agents (414)
a) Statements of agents within their employment is admissible against
them and the organization, but when made outside the scope of
employment are inadmissible against the maker but not the
organization.
4) Co-Conspirators' Statements (420)
a) Can only be used if (1) the conspiracy existed when the out-of-court
statement was made; (2) the conspiracy involved both the declarant
and the party concerning that statement; and (3) the declarant spoke
during and to further the conspiracy. (420)
b) Bootstrap rule is superseded by rule 104(a) and evidence can now be
admitted by hearsay if it meets the rules of 801 exceptions. (425)
c) [What is the difference between rule 104(a) and rule 104(b) and do
you need both to admit?] (426-428)
5) Past Statements of Witnesses and Past Testimony (430)
a) Rules in play: 613 / 801(d) / 801(b) / 612 / 803(5)
b) Rule 613 text: Witness Prior Statement is admissible during
examination without its contents disclosed to the witness, but must
be disclosed to the adverse party's attorney on request; or is
admissible by extrinsic evidence if the witness is given the option to
explain or deny the statement with an adverse party given an
opportunity to examine the witness. [This part does not apply to
801(d)(2)]
i) Rule 613 cannot be used to allow hearsay evidence to just get
around hearsay exclusions for the primary purpose of allowing
in evidence in that is normally inadmissible and usually highly
prejudicial. (442-43)
c) Impeachment cannot be included unless the witness causes damage
to the party seeking impeachment. (442)
d) Prior inconsistent statement evidence is allowable even the evidence
is not in plain terms inconsistent as long as the evidence shows as a
whole the witness's testimony is inconsistent in some way. (437)
6) Miranda and Silence (Adoptive Admissions 801(d)(2)(B))
a) Silence after Miranda rights are not admissible to show impeachment
of a witness or defendant, but without Miranda rights are admissible.
(445-46)
b) Adoptive admissions elements (447)
c) Pre-Miranda silence can be used to impeach and in some cases as
adoptive admissions even if in custody of the police. (450)
7) Inconsistent Statements [801(d)(1)(A)] (452)
a) TEXT: When a statement is inconsistent with the declarant's current
testimony given under penalty of perjury, a prior statement can be
brought up on cross-examination if subject to it.
8) Past Consistent Statements [801(d)(1)(B)] (454)
a) TEXT: When a statement is consistent with the declarant's testimony,
a prior statement can be offered to rebut an express or implied
charge of fabrication or improper influence or improper motive if the
Outline Page 7

charge of fabrication or improper influence or improper motive if the

declarant is subject to cross-examination.
b) Evidence involving an implied charge under this rule must be premotive, not post-motive. (464)
9) Statements of Identification [801(d)(1)(C)] (465)
a) TEXT: When a statement identifies a person as someone the declarant
perceived earlier a prior statement can be admitted for that purpose
if subject to cross-examination.
b) Rule 802 does not bar testimony on prior and out-of-court
identification if the identifier is unable to recount the basis in court
due to memory loss. (469)
10) Declarant Unavailable [804] (474-483)
a) TEXT: A declarant is considered unavailable as a witness when the
declarant is exempted by right of privilege, by refusal to testify after
court order, by stating to not remembering the matter at hand, by
death or current illness or current injury preventing an appearance, or
by being absent when reasonable means could not procure the
attendance under rule 804(b)(1,2,3, or 6), [unless the statement's
proponent caused wrongfully the unavailability].
b) EXCEPTIONS: Former testimony; Belief of imminent death; Statement
against interest; Statement of personal or family history; Rule 807;
Statement offered against a party that wrongfully caused the
declarants availability.
c) For declarant unavailable evidence to be admitted with former
testimony, the testimony must be given at as a witness at a legal
proceeding in either the current or different proceeding, and the
party the testimony is against must have had both an opportunity and
similar motive to develop it by any form of trial examination. (478)
d) Similar motive means one that is likely to be affiliated with the reason
for the legal proceeding testimony [Civil v. Criminal reasons], such as
dealing with all aspects of identification or Miranda issues. Any other
issues are dissimilar and exclude it in cases of unavailability. (478-80)
e) Rule 804(b)(1)(A) is along the lines of a community of interest
commonality test which is that if a sufficient community of interest is
existing between two hearings it is enough to bring it in as a hearsay
exception under rule 804(a). (486-87)
f) Rule 804(a)(5) is satisfied when a party or witness fails to show up to
court and other legal proceedings several times without cause after
several attempts. (484)
g) Declarations admitted under rule 804(b)(3) must be vetted prior to
admission to determine the self-inculpatory value to ensure that
corroborating circumstances indicate trustworthiness of the
statements. (494) [Only the statement against the true declarant's
interest can be allowed in against any person and for any reason except for admissions which are limited to party deponents or unless
another exception applies such as co-conspirator exception or
business record exception]
h) Rule 804(b)(2) requires that known facts indicate imminent death
with no hope of recovery, not just mere suspicion of imminent death,
(501), and must meet the rules 601-612 and rule 806 concerning
witnesses. (502)
i) Forfeiture by wrongdoing allows admission of a hearsay statement
when the party seeking protection under hearsay when (1) the party
causes the witness to become unavailable (2) and the party causing
Outline Page 8

causes the witness to become unavailable (2) and the party causing
the unavailability did some wrongdoing that did render the witness to
be unavailable. (507)
j) Rule 804(4) - Uses two part test to determine if a fact is admissible as
if it was used to serve as the basis for a diagnosis: (1) Declarant's
motive and (2) Objective reasonable reliance by the physician on the
information used. (535) - Information can be used to either eliminate
or propose a treatment or test. (536)
k) Rule 804(5) requires (1) the witness have first-hand knowledge of the
event (2) with a written statement made at or near the time of the
event with a clear and accurate memory of it and (3) now lack a
present recollection of the event and (4) vouch for the accuracy of the
written statement at the present. (547). A written statement
containing an assertion of accuracy is not enough to allow
admissibility. (547)
l) Rule 804(6) & 804(7) - Business records exception requires a nonoutsider conduct the transaction and recording of the business record
to be admitted for any and all purposes, but may be admitted under
limited purposes when an outsider makes a business record with
verification of identity. (559). Business records means typical entries
made systematically to record events and transactions and provides
internal controls, not made for purposes of litigation. (554). Outside
of this, the evidence must be redacted to exclude hearsay information
and be admitted for purposes other than using them as a business
record. (560)
m) Rule 804(8) & 804(10) - A factual report includes any conclusions
based on the factual investigation, and absent any basis on factual
investigation, the rule's primary gatekeeper of trustworthiness will
exclude such un-factually based information and conclusions. (569)
[Note: Police reports are totally excluded here]; [Note 2: Split on
whether 804(6) allows in evidence disallowed under rule 804(8)
(572-574))]
11) Rule 803
a) Rule 803(3) - Looks forward from intent or motive or physical
condition, not backwards to prove a fact. (522)
V. Confrontation and Compulsory Process (586)
a. Roberts framework - non-testimony hearsay and statements
i. No protection from Confrontation Clause even if non-testimony statement is
unreliable (617).
ii. Overruled completely - allowed in regardless of reliability of the statement for
terms of the Confrontation Clause under Crawford. (618)
b. Crawford framework - testimony hearsay and statements
i. Wrongful conduct by a party negates the confrontation clause (primarily
defendants) if the wrongful conduct makes the witness unavailable and the
accused intended to prevent the witness's trial testimony. (617)
c. What is testimony post-Crawford? (617)
i. Primary-purpose test - what is the purpose of statements made during police
interrogation - assisting criminal investigations or resolving ongoing emergencies.
(617)
1) If a victim is dying from a wrongful act, similar to rule 804(b)(6) (620), the
victim's statement to the police is not testimonial but instead a result of an
ongoing emergency created by the perpetrator. (617)
ii. Blood sample analysis is considered testimony, and absent the tech who
performed the analysis is considered inadmissible even if another tech testifies
Outline Page 9

performed the analysis is considered inadmissible even if another tech testifies

that all procedures were properly followed. (617)
1) Exception: If an expert testifies based heavily on a report that the reporter
never knew the results would aid the prosecution do not violate the
confrontation clause. (617-18)
2) DNA sampling is deemed non-testimonial, because of the measures possible
to blind sample the DNA and the fact that DNA has no inherent test qualities
like drugs or alcohol. (665-66)
iii. An ongoing emergency is determined by the scope in terms of its threat to
individuals beyond the initial assailant and victim depends of the dispute involved.
(635). Factors include the objective knowledge presented to police in the
situation, the level of formality (more formal is usually testimonial), and the status
of the assailant or threat. (633/637). Ongoing evolves to testimonial when the
emergency objectively ends.
iv. Exceptions to confrontation clause (675) - Hearsay evidence that fits within an
exception or exclusion of that rule and either (a) if offered against the prosecution
or in a civil case for any reason or (b) if the declarant appears for crossexamination if offered in a criminal defense case or (c) if the declarant is
unavailable and defendant in criminal defense case had past chance to crossexamine declarant or (d) statement made against defendant is non-testimonial or
(e) defendant forfeited right of confrontation by wrongdoing that kept declarant
from testifying against defendant or (f) possibly dying declarations.
v. Intent of declarant appears to be more important. (C. 7/7)
d. Compulsion Clause - May allow in evidence for criminal defendants normally not
allowed under hearsay rules if the defendant has evidence that could exculpate him or
her criminally and the evidence meets all other rules.
e. READ: 793-807 / 810-817 / 847-856
VI. Lay Opinions (R. 701) (735)
a. TEXT: Non-expert testimony is limited to opinions that are rationally based on a
witness's perception, and helpful to clearly understand witness testimony or to
determine a fact in issue, and not based on scientific, technical, or other specialized
knowledge within the scope of 702.
VII. Expert Opinions [R. 702, 703, 704, 403] (748)
a. Proper Qualifications - [R. 702] - Text: Qualification as an expert comes from knowledge,
skill, experience, training, or education may testify to opinions within the confines of all
other rules of evidence.
b. Proper Topic - [R. 702(a) & 704] - Text: Expert's scientific, technical, or other specialized
knowledge assists trier of fact to understand evidence or determine fact of issue [R.
702(a)], but the testimony in form of an opinion is not objectionable solely on its focus
on the ultimate issue unless the opinion in a criminal trial makes an opinion on the
defendant's charged crime elements or defenses or mental state. [R. 704]
i. Improper topic includes opinions that are conclusory legal standards that should
be given by the judge in instructing juries, not the expert witness. (763)
ii. Eyewitness identification normally allows defense the right to an expert testifying
in light of studies showing unreliability of eyewitness identification of the party,
but the judge will still have the final say on the matter to allow it or not.
c. Sufficient Basis - [R. 702(b) & 703] - Text: Expert testimony in form of opinion must be
sufficiently founded on facts or data [R. 702(b)] either personally observed or made
aware of. Relying on certain facts in a particular field, the facts need not be admissible
except that non-admissible facts are only allowed in after a rule 401-403 analysis. [R.
703]
i. Experts do not have to state facts or data prior to advancing an opinion or
reasoning, but may have to if required on cross-examination. (R. 705)
ii. Expert testimony relying on inadmissible facts typically rip away the foundation
Outline Page 10

ii. Expert testimony relying on inadmissible facts typically rip away the foundation
from the opinion, and even in these cases typically cannot be brought up unless
opened by the opposing side or by a tool of the trade. (788-791)
d. Relevant & Reliable Methods - [R. 702(c-d)] - Text: Testimony in form of opinion must be
the product of reliable principles and methods (c), and the expert giving the opinion
actually reliably applied the principles and methods above to the facts of the case. (d)
e. Rule 403 Challenge - see above at rule 403.
f. Expert Opinion Reliabilities - Fry General acceptance is not a necessary precondition for
admissibility under 702 (801), but is a factor that can be considered. Other factors
include scientific knowledge that assists the trier of fact [where expert knowledge is
based on some scientific method or its equivalent] supported by appropriate validation
of good grounds (797) including peer review and publication, general acceptance,
known or potential rate of error. (799) Before admittance, judge acts as gatekeeper to
ensure expert opinion fits for the issue at hand. (816)
i. Applies to any expert testimony given under rule 702. (851)

Outline Page 11