EVIDENCE OUTLINE

I. INTRODUCTION
a. MAIN REASONS FOR EVIDENCE LAW
i. Mistrust of Juries
ii. Related/Unrelated Substantive Policies
iii. Accurate Factfinding
iv.
Control the Scope and Duration of trials (prohibiting irrelevant evidence)
b. ADMITTING/EXCLUDING EVIDENCE (FR §103)
i. IT IS NOT AN ERROR TO ADMIT/EXCLUDE EVIDENCE UNLESS
1. Substantive Right of the Party is affected, AND
a. Admitting Evidence - Objection/Motion to Strike appears on the
Record, with the specific ground of the objection stated or the
grounds must be apparent from CONTEXT
b. Excluding Evidence – substance of evidence was made known
to the Court by offer of proof or was apparent from context
within which questions were asked
ii. FAILING TO OBJECT/MOVE TO STRIKE = WAIVER
1. OBJECTION MUST BE TIMELY AND MUST BE SUPPORTED (GROUNDS)
iii. Court may add statement which furthers information about evidence
iv. Jury – Shall not be exposed to inadmissible evidence
c. USING OBJECTIONS FOR OTHER PURPOSES
i. To interrupt damaging testimony; disrupt opposing counsels rhythm, etc.
d. MOTION IN LIMINE – Motion made just before the commencement of trial which asks
the Judge to rule on the admissibility of evidence (Done in Chambers; NOT JURY)
i. This is not final and you can try to introduce the evidence again during trial
e. WAIVING OBJECTIONS
i. INVITED ERROR – When you ask a question to a witness and get a damaging
answer, you usually are “saddled” with that answer
1. Does not necessarily apply to – Unresponsive answers or overly broad
or outside the scope of the question asked (or “narratives”)
ii. OPENING THE DOOR – When you introduce admissible evidence, opposing
counsel often has more leniency in admitting evidence to refute/rebut
1. POLICY – Court admitting evidence which rebuts prior admitted
evidence by opposing counsel can preserve case from reversible error
iii. “BITING THE BULLET” – When you lose a motion to exclude evidence and then
have your client/witness admit that evidence at trial so that you can control the
time/manner and extent of the initial introduction of the evidence
 1. PROBLEM – You forego a claim of error predicated on the prior ruling
on your motion to exclude the evidence
2. ALSO – It is risky, because you don’t know how/when/if opposing
counsel was even going to introduce the evidence you tried to exclude
f. OFFERS OF PROOF
i. Excluding Evidence without Offer of Proof – USUALLY NOT ERROR because
absence of offer usually produces a record that does not disclose the error
1. Mere claim that evidence was excluded is not enough for ERROR
ii. WAYS TO “OFFER PROOF” – Affidavit of what witness will testify on, Statement
from counsel about what the testimony/evidence will be, or an actual
exam/cross of the witness, without the jury present
iii. PURPOSE – Helps the reviewing court determine substantial right affected
1. When looking at record, should this evidence been admitted?
a. DID IT AFFECT THE APPELLANT?
iv. NOT REQUIRED – IF SUBSTANCE OF EVIDENCE IS APPARENT FROM CONTEXT
v. CONTENTS – Why it is relevant, substance/nature of evidence
vi. IF EVIDENCE IS AN ITEM – Mark it as an exhibit and lodge it with Clerk so that
the evidence becomes part of the RECORD (FOR REVIEWING COURT)
1. COURT MIGHT FURTHER – Describe the character or form of the
evidence in their ruling on the admissibility of that evidence
g. PREJUDICE FROM ERROR IN ADMITTING EVIDENCE CURED AT TRIAL
i. Jury Instructions – Judge tells jury that they are limited in the ways they may
consider the evidence, or that they must disregard the evidence
1. THIS ON THE RECORD USUALLY MEANS HARMLESS ERROR
ii. CURE BY VERDICT – Appellant won on the issues that the challenged evidence
would have supported/helped
iii. CURED BY OTHER EVIDENCE – “Opening the door” tactics
iv. CURED BY MISTRIAL
v. INVITED ERROR = HARMESS ERROR
h. REVERSIBLE ERROR vs. PLAIN ERROR
i. REVERSIBLE ERROR – A mistake that affected substantial rights in a way that
seems serious enough to warrant relief from a Judgment
1. Must have “PROBABLY” affected the result
ii. PLAIN ERROR – the error was so obvious or serious, so any failure to correct
would be a “miscarriage of justice” and question our adversarial system
1. Does not need to be supported by an objection on the record
i. CONSTITUTIONAL ERROR
 i. REVERSAL UNLESS – Court believes BEYOND A REASONABLE DOUBT that the
error DID NOT AFFECT THE VERDICT
ii. Chapman v. California – Rejected an automatic reversal rule for Constitutional
errors, concluding that some Constitutional errors may be so unimportant and
insignificant that they are to be deemed harmless (CHAPMAN TEST)
iii. MOTION TO SUPPRESS – Challenging admissibility of Evidence based on a
Constitutional Violation
1. Fourth Amendment violation; Sixth Amendment Violation
iv. COMMON TYPES OF CONSTITUTIONAL ERRORS
1. Denying right to cross-examination in violation of Confrontation Clause
2. Admitting hearsay in violation of confrontation clause (Crawford)
3. Admitting a statement by one defendant identifying or incriminating
another in violation of the Bruton Doctrine
4. Admitting statements taken in violation of Miranda
5. Admitting statements in violation of Sixth Amendment right to counsel
6. Admitting evidence violating Fourth Amendment/Mapp Doctrine

II. PRELIMINARY ISSUES IN EVIDENCE RULINGS (FR §104)

a. THE STATUTE ITSELF
i. Questions of Admissibility Generally – Preliminary questions concerning
qualification of a person to be a witness, the existence of a privilege, or the
admissibility of evidence, shall be determined by the Court and NOT SUBJECT TO
THE RULES OF EVIDENCE
ii. Relevancy Conditioned on Fact – When relevancy depends upon fulfillment of a
condition of fact, the court shall admit the evidence upon introduction of
evidence sufficient to support a finding of the fulfillment of the condition
1. EXAMPLE – Witness saw car speeding 10 blocks before crash on same
road, but is not positive that the car he saw was green, and the car
involved in the crash WAS green
a. Testimony about speeding car might be admitted conditioned
on further evidence that a green car was there at the time
iii. Hearing of Jury – hearings on the admissibility of confessions shall be conducted
outside the presence of the jury
iv. Testimony by Accused – accused does not become subject to cross-examination
to other issues in the case if he is testifying about a PRELIMINARY MATTER
b. RELEVANCE – JUDGE DECIDES! (104(a)) – PREPONDERANCE OF EVIDENCE STD.
i. Circumstantial Evidence (rather than Direct Evidence)
 1. Judge must Determine – if the offered evidence makes a consequential
fact more or less likely than it would be without the evidence
a. Determine what facts make a difference in the case and if this
evidence touches on those facts (OFTEN A “HUNCH”)
ii. PRAGMATIC RELEVANCY
1. JUDGE DECIDES whether the probative worth is outweighed by the risks
of prejudice or confusion (under FR §403)
iii. JUDGES ALSO DETERMINE HEARSAY AND BEST EVIDENCE DOCTRINE TOO!
c. WITNESS QUALIFICATION (FRE §104(a)) – PREPONDERANCE OF EVIDENCE STD.
i. Whether the Witness qualifies as an EXPERT or not
1. LOOK AT – Academic degrees, training, job experience
2. ALSO – Whether proposed expert testimony is relevant
ii. CHILDREN IN ABUSE CASES – Whether the Judge thinks they can stand being
direct examined and cross-examined and whether they will tell the truth
iii. MENTALLY INCAPACITATED WITNESS COMPETENCY
d. PRIVILEGE ISSUES
i. ACP – Judge decides if elements were met and if Crime/Fraud exception applies
ii. Spousal Immunity – Judge determines if husband and wife are married
iii. Doctor/Patient; Psychiatrist/Patient, Journalistic Privilege, etc.
e. CONFESSIONS
i. Jackson v. Denno – ruled that Juries can not be exposed to admissibility
questions relating to confessions and/or the voluntariness of those confessions
1. ORTHODOX RULE – Judge ALONE determines voluntariness
2. MASSACHUSETTS RULE – Judge first determines, then Jury gets to see
ii. PROBLEM – Once jury is exposed to confession, the voluntariness issue is not a
big deal to the jury b/c “a confession is a confession”
f. PROTECTING CRIMINAL DEFENDANTS
i. FR §104 LIMIT – Criminal defendants testifying on a preliminary matter do not
subject themselves to Cross-examination on “other issues in the case”
1. WHY? – First, Testimony/transcripts from the preliminary hearings are
admissible as evidence in the subsequent trial
ii. STILL SUBJECTED – To CROSS on issues to which the defendant testifies
iii. NARROW CONSTITUTIONAL DOCTRINE – Some testimony of defendant in a
preliminary hearing is barred from admissibility at trial
1. MEANING – Testimony regarding Constitutional violations can not be
used on the issue of guilt at trial (Simmons)
2. BUT IT CAN BE USED – TO IMPEACH DEFENDANT AS WITNESS
III. JURY DETERMINED ISSUES
a. CONDITIONAL RELEVANCY (FRE §104(b))
i. When coordinate facts supporting a proposition can be proved only through
testimony by two or more witnesses or testimony rending to establish several
related points, courts need to “connect up” initial proof with other proof
1. If enough Evidence is introduced to permit a finding for both, then the
Jury is permitted to make the decision as to whether both are proved
2. ALEXANDER Example – Letters written by Nikki to Chris are to be
admitted to show that Brandi was infuriated by the letters (as motive)
a. HAVE TO FIRST PROVE – THAT BRANDI READ THEM!
ii. JUDGE STANDARD OF PERSUASION – “Sufficient evidence that a reasonable
juror COULD find that what is alleged actually happened”
1. LOWER THAN PREPONDERANCE STANDARD
iii. AUTHENTICITY ISSUES ARE JUDGED UNDER FRE §104(b)
iv. PRIOR BAD ACTS (UNDER FRE §404(b)); PERSONAL KNOWLEDGE
IV. RELEVANCY (READ FOOTNOTES FROM PAGES 171-193; 215-231 FOR EXAM)
a. GENERALLY (FRE §401)
i. RELEVANT EVIDENCE – means evidence having any tendancy to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence
1. THIS IS THE STANDARD OF ADMISSIBILITY
2. MUST HAVE SOME PROBATIVE VALUE (EVEN IF VERY LITTLE)
3. IF VERY LITTLE PROBATIVE VALUE (FRE §403)– Could be excluded due
to prejudicial value outweighing the probative value, confusion of the
issues, misleading the jury, undue delay, waste of time, or needless
presentation of cumulative evidence
ii. IF PROPONENT IS COUNTERING IRRELEVANT OBJECTION – “That goes to the
weight of the evidence, NOT THE ADMISSIBILITY” (it’s admissible)
1. COURT MUST MAKE LOGICAL DETERMINATION – based on prior
experience, or science, knowledge, or COMMON SENSE
b. THREE POSSIBLE MATERIAL (RELEVANT) ISSUES (NEED ONE)
i. ELEMENT OF CRIME; DEFENSE; CLAIM – INCLUDING I/D OF SUSPECT
ii. CREDIBILITY OF WITNESS
iii. BACKGROUND INFORMATION – Can’t go “too far”
c. CHARACTER EVIDENCE (FRE §404(a)) (RULE OF EXCLUSION – OPP must prove)
i. GENERALLY
 1. Probative vs. Prejudicial (FRE §403)– Character of a party or witness
sometimes has significant probative value but also brings substantial
dangers of unfair prejudice, confusion, and waste of time
2. Character – means a person’s disposition or propensity to engage or
not engage in various forms of conduct (Propensity or Conformity)
ii. REASONS FOR CHARACTER EVIDENCE
1. ELEMENT OF CHARGE/CLAIM/DEFENSE – SEE FRE §405(b)
2. CIRCUMSTANTIAL” Character evidence – to prove that a person acted
in accordance with his character or propensities on a particular occasion
a. PROHIBITED BY FRE §404(a); (SUBJECT TO EXCEPTIONS)
3. EXAMPLES – Plaintiff in an automobile accident may NOT offer evidence
that a defendant had a propensity towards negligence (such as a record
of repeated traffic citations or accidents) to prove that the defendant
was driving recklessly at the time of the accident
4. EXAMPLE – Prosecutor may not be first to offer proof of a Defendant’s
criminal propensities or prior criminal history to show that he
committed the charged crime
5. WHY? – PREJUDICIAL VALUE OUTWEIGHS PROBATIVE VALUE!
a. Weighs too much with JURY – so as to overpersuade them as
to prejudge one with a bad general record (UNFAIR TO DEF.)
iii. THE STATUTE - FRE §404(a) – Evidence of a person’s character traits CANNOT
be used to prove that the person acted in accordance with that character on a
particular occasion (EXCEPTIONS – Crim Defendants, Crime Victims, Witnesses)
1. FRE §405(a) – 404(a) Exceptions MAY ONLY BE PROVED by reputation
or opinion evidence, EXCEPT inquiry into specific instances is allowed
ON CROSS (OR IF CHARACTER IS AN ELEMENT OF THE CRIME)
a. NO REFERENCE TO SPECIFIC INSTANCES IS ALLOWED ON A
DEFENDANTS DIRECT EXAM OR PROSECUTOR’S DIRECT EXAM
OF A REBUTTAL CHARACTER WITNESS (ONLY ON CROSSES)
b. ONLY ON CROSS – TO TEST CHARACTER WITNESS KNOWLEDGE
(Impeach) OR – To prove/disprove that character by giving
specific examples that contradict witness’s opinion testimony
2. FRE §404(a)(3) EVIDENCE TO IMPEACH A WITNESS – Is “of consequence
to the determination of the action” (USUALLY ADMISSIBLE)
a. FOR BOTH SIDES IN BOTH CRIMINAL AND CIVIL CASES
3. FRE §404(b) – Evidence of other crimes, wrongs, or acts by a person is
admissible by prosecution to prove narrow points, such as intent,
motive, knowledge, opportunity, preparation, plan or identity, etc.
 4. FRE §412 (RAPE SHIELD STATUTE) – PROHIBITS evidence of past sexual
behavior or predisposition of a sex crime victim FOR BOTH
CRIMINAL/CIVIL CASES
5. FRE §413/414 – Evidence of prior sexual assaults/child molestations ARE
ADMISSIBLE in criminal sexual assault/child molestation prosecutions
6. FRE §415 – IN CIVIL CASES where a claim for damages or other relief
rests on claims that a party committed acts constituting an offense of
sexual assault or child molestation, evidence that the party committed
another offense of sexual assault or child molestation IS ADMISSIBLE
iv. CRIMINAL DEFENDANT (SUMMARY)
1. FRE §404(a)(1) - Any evidence of Defendant’s character must first be
introduced by DEFENSE, EXCEPT in cases where the Defendant has
attacked the VICTIM’S CHARACTER (FRE §(a)(2))
2. Offering Evidence of Character Trait – DOES NOT OPEN DOOR for
Prosecution offer rebuttal evidence about ENTIRE CHARACTER
3. PROSECUTION CAN – Introduce evidence of same character trait at
issue that rebuts what Defendant is claiming about that trait
4. IF DEFENDANT TAKES STAND – And begins to talk about his character,
IT OPENS THE DOOR for Prosecution to rebut that evidence
v. REQUIREMENT THAT CHARACTER TRAIT IS “PERTINENT”
1. FRE 404(a)(1)-(2) – Evidence of a “pertinent character trait”
2. SO – Evidence that a defendant is peaceful CAN NOT be admitted to
defendant against a charge of a non-violent crime
vi. CRIME VICTIM (FRE 404(a)(2)) (Defense can always introduce PERTINENT)
1. PROSECUTOR CAN NOT INTRODUCE - Evidence of character of victim
2. EXCEPTION – (1) HOMICIDE PROSECUTION – If accused offers evidence
that the victim was the (2) FIRST AGGRESSOR, the prosecutor MAY
introduce evidence of the (3) victim’s peaceable character
a. WHY? – Victim is not alive to rebut the Defendant’s claim
3. ONLY GENERAL CHARACTER EVIDENCE – by Reputation/Opinion
a. NO SPECIFIC INSTANCES – Other than crime at issue (not 404a)
b. EXCEPT – Specific instances can be introduced by Defense to
show the Defendant’s fear of the victim (For Self Defense Claim)
vii. FRE 405(b) - CASES WHERE CHAR. EVIDENCE IS USED FOR ELEMENT OF CRIME
1. IMPORTANT – CAN INTRODUCE SPECIFIC INSTANCES ON DIRECT
2. ENTRAPMENT DEFENSE– Prosecution can show that Defendant was
“predisposed” to committing the crime (Propensity is element)
3. DEFAMATION – TRUTH IS A DEFENSE (char evidence goes to defense)
 4. NEGLIGENT ENTRUSTMENT – Need evidence of third parties character
to prove that Defendant’s entrustment was negligent
5. GUN POSSESSION BY A FELON – being felon is an element of the crime
6. EMPLOYMENT DISCRIMINATION CASES
viii. PROVING REPUTATION/OPINION TO PROVE CHARACTER (p. 288-293)
1. MOST UNRELIABLE – BUT MOST EFFICIENT (COURTS PREFER)
2. WITNESS KNOWLEDGE – Must be drawn during a period reasonably
close to the time of the conduct at issue
a. AND BEFORE – THE Charge against defendant became public
3. WITNESS NEED NOT BE PERSONALLY ACQUIANTED
4. PROVING OPINION – Person must have sufficient knowledge support
their offered opinion (Witness will be screened first by Judge)
a. FRE §104(b) – Judge determines if Witness has enough evidence
to enable reasonable jury to find the opinion worth listening to
ix. CROSS EXAMINING CHARACTER WITNESSES
1. TRADITIONALLY – Ask a reputation witness whether he “has heard” of
certain specific instances of conduct of the person about whom he
testifies, BECAUSE such inquiry tests the extent of his knowledge about
the defendant’s reputation
2. ALSO USE – “are you aware”; “have you heard”; “do you know”
3. ASKING ABOUT SPECIFIC INSTANCES – MUST BE RELEVANT
4. JUDGES REQUIRE IN CAMERA SHOWING – of underlying basis before
permitting the question to be put to the witness
5. MOST IMPORTANT – MUST HAVE GOOD FAITH BASIS FOR QUESTION
a. IF YOU DON’T – MISTRIAL!
b. RUMOR – is not enough usually; NEED RECORD/WITNESSES!
d. EVIDENCE OF HABIT (FRE §406) (DEFENSE CAN INTRODUCE!)
i. GENERALLY – Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of eyewitnesses, IS
RELEVANT to prove that the conduct of the person or organization on a
particular occasion was in conformity with the habit or routine practice
1. HABIT/ROUTINE PRACTICE – “Regular, consistent and specific”
2. WHY IS HABIT ADMISSIBLE WHEN CHARACTER ISN’T?
a. Because habit describes a particular behavior in a specific
setting, and it is by nature at least REGULAR if not invariable, so
it has greater probative value in proving conduct on a particular
occasion than does evidence of more GENERAL propensities
ii. THREE CRITERIA COURTS USE TO DETERMINE HABIT
 1. More specific the behavior – better chance it’s a Habit
a. Example – Driver’s tendency to be accident prone is not habit,
but the driver’s practice of always honking at a particular blind
intersection or always taking the same route to work IS a HABIT
2. Regularity (Most important) – Evidence that somebody Always or
almost always wears their seatbelt is habit (“occasionally” is not)
3. Automatic/Unreflective – The most indisputable habits tend to be
those invoking conduct requiring NO conscious thought or purpose
a. Example – Using your turn signal when changing lanes
iii. PROVING HABIT (USE ONLY OPINION EVIDENCE , NOT REPUTATION)
1. WITNESSES – Testifying to prior specific instances of conduct
2. Must be a large enough sample – to prove a pattern of behavior
3. Must establish UNIFORMITY OF RESPONSE
iv. ELEMENTS OF THE FOUNDATION
1. The witness is familiar with the person or business
2. The witness’ familiarity has existed for a substantial period
3. The witness believes the person or business HAS a habit, a specific
behavioral pattern, AND
4. The witness has observed the person or business act in conformity with
the habit or business practice on MULTIPLE OCCASIONS
e. FRE 404(b) - OTHER CRIMES, WRONGS OR ACTS (RULE OF INCLUSION)
i. GENERALLY – USE 104(b) standard – Judge acts as screen, then jury decides)
1. MOST FREQUENTLY APPEALED OF ALL EVIDENTIARY RULINGS
2. MOST FREQUENT GROUNDS FOR REVERSAL OF CRIM CONVICTIONS
3. MOST COMMONLY OFFERED AND USED– BY PROSECUTOR
4. REVERSE 404(b) EVIDENCE – Offered by Defendant when misconduct
by a third party shows that the third party, and NOT THE DEFENDANT,
was the perpetrator of the crime
5. REQUIREMENT OF LOGICAL RELEVANCY – Need not be same as crime
ii. 404(b) PRIOR CONVICTIONS
1. MOST CERTAIN WAY – admitting evidence of CONVICTION
2. ALSO CAN USE – Juvenile adjudications, Nolo Contendre pleas
3. NO CONVICTION – PROSECUTION CAN STILL USE!
iii. 404(b) ANALYSIS - PROSECUTION
1. FIRST – Does this qualify as “Other crimes, wrongs or acts”?
 a. OR IS IT INEXTRICABLY INTERTWINED? - In rape cases,
defendant always beat the women…the assault is not
considered an “other wrong” because it is part of the rape
2. THEN – Identify the non-character issue that applies (404(b) statute)
a. Motive, Intent, Knowledge, Preparation, Plan, Absence of
Mistake or accident; (Opponent argue that it is FRE §404(a))
b. ALSO - MODUS OPPERENDI –
i. YOU CAN ARGUE THAT M.O. is really FRE §404(a)
evidence, AND THAT JURY WILL CONFUSE/MISUSE
3. THIRD – Probative to a MATERIAL ISSUE (identify which material issue)
4. FOURTH – SEE IF FRE §104(b) Conditional Relevancy standard is satisfied
a. Judge must find – SUFFICIENT EVIDENCE exists that would allow
a reasonable juror could find what is alleged Actually happened
i. IT THEN GOES TO THE JURY
5. LAST – PASS THE FRE §403 TEST (SEE 9 FACTORS BELOW)
iv. OTHER FORMALITIES IN INTRODUCING FRE 404(b) EVIDENCE
1. NOTICE – Prosecution, ON REQUEST OF ACCUSED, must provide
REASONABLE pretrial notice of any evidence it intends to introduce
under FRE 404(b)
2. JURY INSTRUCTIONS – LIMITING INSTRUCTION – jury is informed of the
limiting purpose for which the 404(b) evidence has been admitted
v. 9 FACTORS TO USE TO DETERMINE IF §404(b) PASSES §403 TEST
1. EXTENT TO WHICH POINT TO PROVE IS DISPUTED
a. IF parties stipulate, the evidence is more likely to be excluded
2. ADEQUACY OF PROOF OF MISCONDUCT
a. Conviction? Or a much lesser form of proof?
3. PROBATIVE FORCE OF THE EVIDENCE
4. PROPONENT’S NEED FOR THE EVIDENCE – Major or Minor point?
5. AVAILABILITY OF LESS PREJUDICIAL PROOF
6. INFLAMMATORY/PREJUDICIAL EFFECT
7. SIMILARITY TO CHARGED CRIME
8. EFFECTIVENESS OF LIMITING INSTRUCTIONS
a. Greater likelihood of Jury confusion = more chance of exclusion
9. EXTENT TO WHICH PRIOR ACT EVIDENCE PROLONGS PROCEEDINGS

f. PERMISSIBLE REASONS TO USE FRE 404(b) EVIDENCE (STEP 2 OF ANALYSIS)

i. MOTIVE – Not usually an element, but USEFUL TO PROVE INTENT
 1. FINANCIAL PRESSURES – Embezzlement Trial – evidence admitted to
prove “sorry state” of Defendant’s financial status (debts, overdrafts)
2. PERSONAL ANIMOSITY – Murder Trial – evidence of prior assault
against victim admitted to show motive of jealousy over boyfriend
3. DRUG HABITS – Admitted to show motive for robbery, etc.
4. SEXUAL DESIRE – Kidnapping case – evidence admitted to show
defendant had homosexual relationship with young boy after
kidnapping him (to show motive for kidnapping)
5. FEAR OF PROSECUTION
ii. OPPORTUNITY
1. To show defendant was in geographical location of the crime at the
time the crime was committed or to show that defendant had ACCESS
to some crucial place or instrumentality
2. ALSO CAN ADMIT EVIDENCE OF – Knowledge, familiarity, capability or
expertise necessary to commit the crime (Narrower than Char. Evid)
iii. INTENT – MUST BE GENUINE ISSUE IN CASE BEFORE PRIOR ACTS ADMITTED
1. If Defendant is disputing intent – saying it was an accident, or mistake
of fact, or was “only joking”
2. MORE LIKELY TO BE ADMITTED – In cases involving premeditation
3. PREPARATION, PLAN – Such as drug manufacture to prove intent to sell
a. MUST SHOW PLAN AS A WHOLE – Not individual acts
iv. KNOWLEDGE
1. Possessing Stolen Property, Using Counterfeit money,
2. Drugs – Evidence admitted that Defendant previously hauled marijuana
in his truck to rebut claim that he did not know he was hauling weed
3. Pornography – Evidence of child porn on defendant’s computer
admitted as proof of defendant’s knowledge of contents in envelope

g. CIRCUMSTANTIAL EVIDENCE INDICATING GUILTY MIND

i. COURTS GENERALLY ADMIT EVIDENCE OF BEHAVIOR – indicating
consciousness of guilt to establish the actor was involved in wrongful conduct
ii. EXAMPLES – Flight, resisting arrest, escape, use of aliases, wearing a mask,
destroying or altering evidence, lying, perjury, bribing, changing alibis, etc.
iii. EVIDENCE INDICATING GUILT – Insufficient Alone – TO GET A CONVICTION
iv. FLIGHT ANALYSIS – NEED ALL FOUR TO ADMIT FLIGHT EVIDENCE
1. Did the behavior indicate a “flight”?
2. Did the Flight indicate consciousness of guilt?
 3. Was the Consciousness of Guilt for the crime charged?
4. Was the consciousness of guilt enough for an inference of actual guilt
h. OTHER ACCIDENTS OR CLAIMS
i. GENERAL RULE – Evidence of prior accidents or mishaps is NOT ADMISSIBLE to
prove negligence or contributory negligence in the accident in the lawsuit
1. BUT SUCH EVIDENCE IS ADMITTED TO PROVE NEGLIGENCE CLAIM
a. Existence of condition, Dangerousness of that condition,
Possibility that the condition might cause an accident, THE
CONDITION ACTUALLY DID (Causation) and KNOWLEDGE of the
condition and its dangerousness
b. ACCIDENTS MUST BE SUBSTANTIALLY SIMILAR – ARGUABLE!
c. ACCIDENTS AFTER EVENT IN SUIT CAN BE ADMITTED!
d. EVIDENCE OF ABSENCE OF OTHER ACCIDENTS ADMISSIBLE
i. Must be same/similar place or instrumentality
e. COUNTEREVIDENCE – On issues of dangerousness, CAUSATION, or
Knowledge ( SUBSTANTIALLY SIMILAR STANDARD)

i. SUBSEQUENT REMEDIAL MEASURES (FRE §407) RULE OF EXCLUSION

i. GENERALLY – POLICY EXCLUSIONS
1. FRE §407 – When, after an injury or harm allegedly caused by an
event, measures are taken that, IF TAKEN PREVIOUSLY, would have
made the injury or harm LESS LIKELY TO OCCUR, evidence of the
subsequent measures IS NOT ADMISSIBLE to prove (1) NEGLIGENCE,
(2) Culpable conduct, (3) a defect in the product’s design, or (4) a need
for a warning or instruction.
2. This rule does not require the exclusion of evidence of subsequent
measures when offered for ANOTHER PURPOSE, such as PROVING
OWNERSHIP, CONTROL, or FEASIBILITY of precautionary measures, if
controverted, or IMPEACHMENT
3. EXAMPLE – Evidence that the Defendant made repairs at a place where
plaintiff had sustained injuries CANNOT be ADMITTED in a later lawsuit
to prove that the defendant was negligent in maintaining the place at
the time of the accident
ii. REASONS TO EXCLUDE – (“POLICY EXCLUSIONS”)
1. The fact that a party made repairs after an accident may not indicate
negligence or fault. Often premises or instrumentalities that are safe
can be made safer, and a party undertaking repairs may be employer a
higher standard of safety that due care requires
 2. Even if subsequent repair tends to show negligence, there is a strong
SOCIAL POLICY to encourage people and companies to make such
repairs to enhance the safety for others
3. UNFAIR – To punish people for socially responsible conduct

iii. EXAMPLES OF REMEDIAL MEASURES

1. Changes in design, installation of protective devices, NEW warnings,
removal of dangerous conditions, revision of contracts, changes in
policies or regulations or procedures of protocol, and discipline or
dismissal of employees, and INSTRUCTIONS to take remedial measures
2. NOT INCLUDED – post-event investigations, tests, reports
iv. REMEDIAL MEASURES JUDICIAL EXCEPTIONS (ALLOWED)
1. Remedial measures by THIRD PARTIES
a. Evidence of people not a party to the lawsuit who make repairs
is usually admissible (IT APPLIES TO NON-PARTIES OF LAWSUIT)
2. SOME COURTS ONLY COVER VOLUNTARY MEASURES UNDER FRE §407
a. Governmental or regulatory authority mandates measures are
not EXCLUDED because they do not represent self-motivated
socially responsible behavior that FRE 407 seeks to encourage
3. SOME COURTS HOLD THAT – Remedial measures ARE ADMISSIBLE if
they were taken after injury but before defendant had knowledge of the
injury and no claim had yet been made
v. REMEDIAL MEASURES STATUTORILY ALLOWED
1. THESE ARE STILL SUBJECT TO 403 (Unfairly Prejudicial)
2. OWNERSHIP OR CONTROL – that Defendant had of premises or
instrumentality that caused the injury
a. Rationale – Someone wouldn’t fix what wasn’t theirs
3. FEASIBILITY OF PREVENTATIVE MEASURES
a. To counter the Defendant’s claim that there was no safer
product design that was feasible
b. Technology – must have been around BEFORE INJURY
4. “IF CONTROVERTED” (IF DENIED) – STIPULATION?
a. IF PARTY ADMITS TO FEASIBILITY – Exclude remedial measures
i. ALSO – If witnesses or other evidence prove feasibility
5. IMPEACHMENT
a. ALLOWED IF – Witness denies the existence of a particular
hazard, testifies that the product was as safe as it could be, or
 characterizes an alternative design or protective measure as
unnecessary BUT IT WAS SUBSEQUENTLY ADOPTED!
b. ALSO – If defense witness who express an opinion that the
product was safe, he may be impeached by evidence that he
sent a warning letter to dealers informing them of the hazard
c. OR – If a manufacturer claims that only dealers could properly
instruct customers, the court may properly admit evidence of
warnings subsequently given by the manufacturer to consumers

6. OTHER RELEVANT PURPOSES

a. TO REBUT CONTRIBUTORY NEGLIGENCE DEFENSE – Evidence of
post-accident posting of warnings at entrances to ski slope
admissible to rebut claim that dangerous conditions were so
obvious that warning signs were not needed

j. SETTLEMENTS (FRE §408) RULE OF EXCLUSION

i. GENERALLY – APPLIES TO CIVIL CASES
1. IF a case does not settle, litigants are protected from having their
settlement efforts used against them at trial (for liability/guilt purposes)
2. WHY? RELEVANCY – May not indicate guilt (may be trying to save $$)
3. ONLY EXCLUDES – offers made in an attempt to compromise a
DISPUTED CLAIM (Applies to oral or written claims before suit is filed)
a. DISPUTED AS TO VALIDITY OR AMOUNT - If debtor concedes
amount but offers to pay less = Admissible
4. CANT INTRODUCE EVIDENCE OF OWN SETTLEMENT OFFER
a. BECAUSE IT WOULD INFER THAT OPPONENT engaged in
settlement offers, and would require calling attorneys at
witnesses and therefore disqualifying attorneys
5. IF EMPLOYER OFFERS EMPLOYEE JOB BACK (in wrongful termination or
employment discrimination) – If part of deal was for the employee to
dismiss/settle the claim – IT’S INADMISSIBLE
a. IF Settle wasn’t part of deal – Admissible to show good faith
6. EVIDENCE OF SETTLEMENTS WITH THIRD PARTIES IS EXCLUDED
a. EXAMPLE – Chris sues Dave for car accident, Dave settles with
Nard; Chris CANNOT INTRODUCE THAT EVIDENCE of the
settlement with Nard to prove Dave’s liability to Chris
b. SIMILARLY – Dave cannot introduce evidence that Chris settled
with another driver involved in same accident as evidence of
the invalidity of Chris’s claim against Dave
 ii. ADMISSIBLE FOR LIMITED PURPOSES
1. GENERALLY – FRE §408 DOES NOT require exclusion of offers of
settlement where offered for purposes OTHER than proving liability or
damages, such as proving a witness’s bias or prejudice, negating a
contention of undue delay, and proving an effort to obstruct a criminal
investigation or prosecution
2. BIAS OR PREJUDICE OF WITNESS INVOLVED IN SETTLEMENT
a. If witness has settled claim with one party, they might testify
favorably for that party out of guilt/obligation,
b. OR a witness who tried to settle might slant her testimony
against the party who rejected the settlement
3. REBUT CLAIM OF UNDUE DELAY
4. OBSTRUCTING CRIMINAL INVESTIGATION
5. CIVIL COMPROMISE OF CRIMINAL CHARGES
a. Many states now allow civil compromise of certain minor
criminal charges, on the theory that it is better to allow
individuals to settle such matters rather than the Govt
6. OTHER PURPOSES
7. BREACH OF AGREEMENT
8. IMPEACHMENT
k. PAYMENT OF MEDICAL EXPENSES (FRE §409)
i. Medical Expenses – FRE §409 excludes evidence of offers to pay or actual
payments of medical, hospital, or similar expenses occasioned by an injury,
when the evidence is offered to prove liability
ii. GOOD SAMARITAN – IF a driver offers to pay the medical expenses for a
pedestrian they hit, the offer is excluded from being used to prove liability
iii. CAN BE ADMITTED TO PROVE – existence of injury, mitigation of damages, or
the existence of an employer/employee relationship
1. ALSO – Evidence of expressed admission of liability can be admitted

l. PLEA BARGAINS (FRE §410)

i. WITHDRAWN GUILTY PLEAS – NOT ADMISSIBLE
ii. NOLO CONTENDRE PLEAS – NOT ADMISSIBLE
1. RATIONALE – defendant is not admitting guilt, but rather REFUSING to
contest the charges, AND without this rule, defendants would never
engage in plea discussions because if they fail, the defendant would go
to jail b/c of inference of admission of guilt
2. CAN BE ADMITTED TO IMPEACH WITNESS
 3. OR PROVE “PRIOR CRIMES” UNDER FRE§404(b)
4. OR TO ESTABLISH PRIOR CONVICTION IF IT IS AN ELEMENT (§405(b))
iii. PLEA BARGAINING STATEMENTS
1. TO QUALIFY FOR FRE §410(4) Exclusion – MUST QUALIFY AS PLEA
NEGITIATIONS, and this will be the presumption if the prosecutor and
defense attorney are present, with the Defendant
a. WILL NOT APPLY – If prosecutor expresses at the beginning of
the conference that “this is NOT plea negotiations” or that he is
not interested in all at any plea (or gives Miranda warnings)
b. PROSECUTOR NEED NOT BE PRESENT – If he authorizes LEO’s to
initiate or CONTINUE plea negotiations with defendant
c. PRINCIPLES OF APPARENT AUTHORITY APPLY! – So if
Prosecutor gives Defendant impression that LEO has authority
to negotiate a plea, then FRE §410 will likely apply
iv. WHEN PLEA NEGOTIATION STATEMENTS ARE ADMISSIBLE
1. IF DEFENDANT OFFERS – a plea bargaining statement in his favor,
Prosecution can introduce another that is needed to put the first in
appropriate context
2. FOR PERJURY PROSECUTIONS – If Defendant was under oath
v. NOT ADMISSIBLE FOR PURPOSES OF IMPEACHMENT!!
m. LIABILITY INSURANCE

V. PRIVILEGES
a. GENERALLY – 6 things to know about privilege
i. Who holds the privilege
ii. Who can assert the privilege
iii. What is the evidence covered by the privilege
iv. What will WAIVE the privilege
v. What will TERMINATE the privilege
vi. What are the EXCEPTIONS to the privilege
b. FRE §501
c. FRE §502
d.
VI. AUTHENTICATION
a. GENERALLY (FRE §901) RULE OF INCLUSION
i. Formal Proof of Identity/Authenticity must be offered before the exhibit can be
admitted or even shown to the jury
ii. STANDARD – Evidence sufficient to support a finding that it is what the
proponent claims it is (FRE §104(b) STANDARD)
iii. JURY ULTIMATELY DECIDES AUTHENTICITY AND SIGNIFICANCE
iv. PURPOSE – Screens out evidence that is false/unreliable
v. OPPONENT – CAN PRESENT COUNTERPROOF TO AUTHENTICITY
vi. CONDITIONAL AUTHENTICITY (LINKING UP)– Evidence is admitted, conditioned
on a later testimony/evidence
1. EXAMPLE – Letter allegedly written by suspect is admitted, provided
that the proponent represents to the court that a qualified handwriting
expert will later be produced who will testify as to authenticity
a. If Expert fails to testify/authenticate = EVIDENCE IS STRICKEN!
b. PRETRIAL AUTHENTICATION
i. DISCOVERY – Requests for admissions, depositions, interrogatories, etc.
1. YOU CAN HAVE PARTY SWEAR UNDER OATH AS TO AUTHENTICITY
ii. PRETRIAL CONFERENCES – Authenticity can be on agenda during conference
iii. SUBPEONAS/OTHER DISCOVERY ORDERS – Item produced in response is
presumed to be authenticated
iv. STIPULATIONS TO AUTHENTICITY – Overrides the need to prove at trial
c. LAYING A FOUNDATION (FRE §901(a))
 i. TRADITIONAL STEPS
1. Having the exhibit marked for identification by the Court reporter
2. Authenticating the exhibit by the testimony of a witness
3. Offering the exhibit in evidence
4. Permitting adverse counsel to examine it/opportunity to object
5. Submitting to the Judge (if Judge wants)
6. Obtaining the ruling of the Court
7. Asking permission to have the exhibit presented to the jury
a. Passed around (if photo), READ BY WITNESS (if writing)

d. TESTIMONY OF PERSON WITH KNOWLEDGE (FRE 901(b)(1))

i. FRE 901(b)(1) – A matter may be authenticated by testimony of a witness with
knowledge that it is what is claimed to be
ii. SAME CONDITION – Witness Should state that the item is in the SAME
CONDITION as it was at the time of the events giving rise to the litigation
iii. SHOWING OF CHAIN OF CUSTODY APPLIES FOR MANY ITEMS – including items
that are Fungible (freely exchangeable/substitutable), lacking in distinctive
means of identification, or likely to change in condition;
iv. FOUNDATION
1. Witness says when they took custody and from whom
2. The precautions they took to preserve the item
3. The item was not changed, substituted or tampered with
a. Reasonable probability that no tampering occurred
b. Reasonable safeguards to tampering are required
4. WHEN they relinquished custody, AND TO WHOM
5. SOMETIMES YOU NEED MULTIPLE WITNESSES
6. BREAK IN CHAIN = Exclusion or evidence has much less weight
v. SAME CONDITION – Witness Should state that the item is in the SAME
CONDITION as it was at the time of the events giving rise to the litigation
e. HANDWRITING (FRE §901(b)(2)-(3))
i. LAYPERSON (FRE 901(b)(2))- Family members/employers/employee/coworkers
are likely to have sufficient familiarity with one’s handwriting.
1. SUFFICIENT IF WITNESS SAW PERSON WRITE IT
2. JURY DECIDES – If person has enough to give persuasive opinion
ii. TRIER/EXPERT (FRE §901(b)(3)) – HANDWRITING EXPERTS (FRE §104(b))
1. SAMPLES TAKEN – Tax returns, public records, pleadings, etc.
f. DISTINCTIVE CHARACTERISTICS
 i. FRE §901(b)(4) – A writing may be authenticated by its appearance, contents,
substance, internal patterns, or other distinct characteristics
ii. CONTENTS – Of a writing (slang/code) or specific details not known to others
iii. REPLY DOCTRINE – allows a writing to be authenticated as coming from a
specific person by a showing that it REPLIES to an earlier communication
1. MUST SHOW THAT FIRST LETTER WAS SENT/RECEIVED
iv. VOICE IDENTIFICATION (FRE §901(b)(5)) – Based on content/experts
v. TELEPHONE CONVERSATIONS (FRE §901(b)(6))
1. INCOMING CALLS – Voice identification, Contents
2. OUTGOING CALLS – Showing that call was made to the person and the
number assigned by phone company, and that the person answering
identified themselves as the person who was called
g. PUBLIC RECORDS/ANCIENT DOCUMENTS
i. PUBLIC RECORDS/REPORTS (FRE §901(b)(7)) – Showing that they are from
public office where items of that nature are normally kept
ii. ANCIENT DOCUMENTS (FRE §901(b)(8)) – A document or data may be
authenticated by evidence that it is (1) Atleast 20 years old when offered
(2) it is unsuspicious in appearance and (3) found in a place where one would
expect it to be authentic
1. AGE OF DOCUMENT – Written on document is INSUFFICIENT! You need
witnesses with knowledge, expert witness, content examination, etc.

h. PROCESS OR SYSTEM (FRE §901(b)(9))

i. FRE §901(b)(9)– Evidence describing a process or system used to produce a
result and showing that the process or system produces an accurate result
ii. TAPE RECORDINGS
1. Device was in good order, operator was qualified to operate it, and did
so properly, and no changes were made to the recording
2. Participant – can testify that the recording fully, fairly and accurately
reflects the conversation (901(b)(1) Witness with knowledge)
3. INAUDIBILITY – usually goes to WEIGHT NOT ADMISSIBILITY
a. Material Alterations = EXCLUDED
iii. PHOTOGRAPHS
1. SILENT WITNESS DOCTRINE – photographs taken by surveillance
cameras or ATMS or any other camera
2. SHOW PROCESS BY WHICH PHOTO WAS TAKEN/ACCURATE RESULT
3. VIDEOTAPES – Same foundation requirements as Photographs
 iv. X-RAYS
1. Showing of capability and acceptability of equipment used
2. Qualifications of the operator
3. Proper procedures used in operation of the equipment
4. The time the X-RAY was taken
5. Proper DEVELOPMENT PROCEDURES; ACCURACY/CLAIRTY of X-RAYS
6. Care and custody of NEGATIVE prior to trial
7. Identification of the exhibit as the X-RAY IN QUESTION
v. E-MAILS – Sometimes need to call EXPERTS to trace e-mail and IP address
1. USE FRE §901(b)(4) WHEN YOU CAN (DISTINCTIVE CHARACTERISTICS)
2. OR USE REPLY DOCTRINE
3. STILL SUBJECT TO HEARSAY DOCTRINE!!
vi. POLLS/SURVEYS
1. Universe of persons polled was properly defined with reference to the
underlying subject
2. A representative sample was selected and questioned
3. The questions were clear, simple and non-leading
4. Sound interview procedures were followed
5. Info was carefully gathered and recorded, Data was properly analyzed
6. Objectivity of the process was adequately protected by keeping the
polling or survey separate from the litigation
i. DIAGRAMS
i. PERSONAL KNOWLEDGE FOR AUTHENTICATION
ii. SHOW OPPOSING COUNSEL THEN ASK TO APPROACH WITNESS
iii. LAY FOUNDATION
iv. “FAIR AND ACCURATE REPRESENTATION?”
VII. BEST EVIDENCE RULE (FRE §1001)
a. GENERALLY
i. MAINLY USED – CONTENTS of a writing, recording, or Photograph
ii. FRE §1002 REQUIRES THAT THE ORIGINAL BE PRODUCED
1. UNLESS UNAVAILABLE – and B-E-R authorizes secondary evidence
iii. WRITINGS/RECORDINGS – Incredibly broad to embrace essentially every
memorial that preserves written and spoken language (including drawings)
iv. PHOTOGRAPHS – Still photos, X-RAYS, films, videotapes, Movies
v. ORIGINAL – Of the writing, recording or photo at issue in litigation
1. DOESN’T MEAN – First writing/photo/recording that was made
 2. PHOTOS – MEANS THE NEGATIVE and ANY print therefrom
3. COMPUTER OUTPUT – Any output that is readable by sight and shown
to reflect accurately the data stored on the computer
b. EXCEPTIONS (FRE §1004) – USE SECONDARY EVIDENCE
i. FRE §1004(1) – ORIGINAL LOST/DESTROYED – UNLESS PROPONENT DESTROYS
ii. FRE §1004(2) – ORIGINAL NOT OBTAINABLE – by any available judicial process
or procedure; (Contract is in a foreign country, etc.)
iii. FRE §1004(3) – ORIGINAL IN POSSESSION OF OPPONENT – And the party has
been put on notice, by the pleadings or otherwise, that the contents would be
subject of proof at a hearing, and the party refuses to produce the original
iv. FRE 1004(4) – COLLATERAL MATTERS – Writing/recording/photograph is not
closely related to the controlling issue
v. PUBLIC RECORDS (FRE §1005) – a document authorized to be recorded or filed
and actually recorded or filed (often a copy of the original)
vi. SUMMARIES (FRE §1006) – Voluminous writings, recordings or photographs,
which cannot be conveniently examined in court, may be presented in the form
of a chart, summary or calculation.
1. ORIGINALS/DUPLICATES – shall be made available for examination or
copying, or both, by other parties at reasonable time/place
vii. TESTIMONY OR WRITTEN ADMISSION OF PARTY (FRE §1007)
1. IF a party against whom information about the contents of a writing,
recording or photograph is sought to be introduced gives testimony
about the original, the original writing rule DOES NOT APPLY

VIII. IMPEACHMENT OF WITNESSES

a. SHOWING BIAS – CAN USE SPEC INSTANCES ON CROSS AND EXTRINSIC EVIDENCE!
i. GENERALLY – Attitudes, feelings, or emotions of a witness that might affect
their testimony, leading them to be more or less favorable to the position of a
party for reasons OTHER than the merits (ALWAYS NON-COLLATERAL)
1. CAN RELATE TO EITHER THE PARTIES OR ISSUES IN LITIGATION
2. ALSO ANY MOTIVE OR INTEREST (FINANCIAL, CAREER, SOCIAL, etc.)
ii. PRIOR STATEMENTS (EXPRESSING BIAS)
 1. EXCEPTION TO HEARSAY – Statements of the witness to show bias fit
the “state of mind” exception in FRE §803(3).
2. PROPONENT – Should bring out facts in DIRECT, so that the other party
does not bring up the prior statements on CROSS and make it look like
the attorney conducting the direct TRIED TO HIDE IT
a. EVIDENCE TO REBUT BIAS IS ALSO ADMISSIBLE
iii. OTHER TYPES OF BIAS
1. If witness was COACHED by trial counsel, or has been influenced by
conversations with or hearing the testimony of other witnesses
2. If witness is subject to criticism, embarrassment, or civil or criminal
liability (apart from perjury) for testifying a certain way
3. Witness has taken or offered to take bribes (including a favorable plea
deal from prosecutor) in connection with the case, or has threatened a
party, or has been threatened by or on behalf of a party, and fear for
the witness’s personal safety or safety of friends and family
4. Employment relationship between witness and a party
5. WITNESS PROTECTION PROGRAM – government witnesses may be bias
by the financial support/protection they are receiving from Govt
b. SHOWING PROBLEMS IN CAPACITY
i. GENERALLY – limits or defects in sensory or mental capacities bear on both the
likelihood that a witness accurately perceived events occurrences and the
accuracy or completeness of his testimony (can include trauma from incident)
1. I.E. – Witness didn’t see everything or hear everything properly
2. OR – Defendant didn’t fully comprehend what was going on
ii. HOW TO QUESTION
1. Cross-examination is appropriate as is EXTRINSIC EVIDENCE
2. Line of Questioning may be blocked – if the attacking party lacks a
REASONABLE basis and the questions are INTRUSIVE/EMBARASSING
3. CAN DEMONSTRATE LACK OF CAPACITY – with questions/tests
a. Can ask General Questions to test memory
4. PARTY CAN BRING OUT ON DIRECT – “BITING THE BULLET”
iii. DRUGS AND ALCOHOL
1. Memory and perception can be affected by drug/alcohol use
2. Party can bring up intoxication at the time of incident
3. Can also question if they are under the influence while testifying
iv. MENTAL ILLNESS – EXTRINSIC EVIDENCE ALLOWED
1. CROSS EXAM – Party may show medical records and medical treatment
a. REDIRECT – With counter-evidence showing witnesses capacity
i. THIS IS CALLED “REHABILITATING THE WITNESS”
c. EXPERT WITNESSES
i. Expert Testimony as to Witnesses Capacity to tell Truth – OFTEN EXCLUDED
ii. Court routinely DENY requests that witness is examined by expert
 iii. Sometimes – Courts can require exams by “Demanding” them as a condition of
offering certain lines of evidence or advancing certain claims/defenses
1. COURTS CAN’T COMPEL NONPARTY WITNESSES TO BE EXAMINED
d. SHOWING TRUTHFULNESS/UNTRUTHFULNESS (FRE §608) (FRE §404(a)(3))
i. GENERALLY - SPECIFIC INSTANCES ARE ALWAYS COLLATERAL (NO EXTRINSIC!)
1. FRE §608(a) – A witness may be IMPEACHED by proof that he is by
disposition UNTRUTHFUL, by evidence ONLY of Character for
untruthfulness (USING REPUTATION OR OPINION EVIDENCE)
2. EVIDENCE OF TRUTHFULNESS – can only be admitted after the
character of witness’s truthfulness has been attacked. FRE §608(a)(2)
3. Evidence should not pertain to whether the statements of the witness
are true, but whether the WITNESS IS A TRUTHFUL PERSON OR NOT
4. EVIDENCE OF PRIOR MISCONDUCT – MUST PASS FRE §403 TEST
a. If conduct is similar – JURY MIGHT CONFUSE/MISUSE
5. FRE §608(b) - CROSS EXAMINATION OF PRINCIPAL WITNESS – CAN
REFER TO SPECIFIC INSTANCES; BUT No extrinsic evidence!
ii. FOUNDATION FOR REPUTATION
1. Character witness must be acquainted with where the principal witness
lives, works, or goes to school (MEMBER OF COMMUNITY)
2. Witness need not reside, work, go to school in the community – JUST
MUST KNOW the widespread feelings or views of the community
a. JUST TALKING TO A FEW PEOPLE IS INSUFFICIENT
iii. FOUNDATION FOR OPINION
1. Must have known person for some period of time on some personal,
business or professional basis, AND FORMED AN OPINION
iv. CROSS EXAMINATION OF ADVERSE CHARACTER WITNESS
1. Test witnesses knowledge or judgment by suggesting limitations in what
the witness knows or showing that their judgment is poor
2. CAN REFERENCE SPECIFIC CONDUCT BY PRINCIPAL WITNESS – To
impeach the adverse character witness
a. Example – you say that A is untruthful…..did you hear about
3. CAN ALSO ASK SPEC. INSTANCES INVOLVING ADVERSE CHAR WITNESS
4. EXTRINSIC EVIDENCE IS NOT ALLOWED – ONLY QUESTIONING!
a. WHY? – You’re impeaching character witness not P witness!
v. NONCONVICTION MISCONDUCT
1. EXAMPLES – Making false statements on affidavits, applications, or
government forms (such as tax returns); False testimony, cheating,
deceiving or defrauding others, bribery, or any other dishonest act
2. BEHAVIOR THAT IS “IMPROPER” or “IMMORAL” – May not necessarily
be admitted unless it has a bearing on the TRUTHFULNESS of witness
vi. LIMITS AND SAFEGUARDS
1. QUESTIONS MUST HAVE REASONABLE BASIS FOR INQUIRY
a. IF QUESTION IS IN DOUBT – IN CAMERA/SIDEBAR discussion
 2. MOTION IN LIMINE – to request a decision to prevent or allow
questioning on particular conduct
e. PRIOR ACTS & CONVICTIONS (FRE §609) (NON-COLLATERAL)
i. GENERALLY – CAN USE EXTRINSIC EVIDENCE IF WITNESS DENIES
1. FRE §609(a)(1) – If a witness OTHER than a criminal defendant has
been convicted of a FELONY, evidence of the conviction SHALL BE
ADMITTED unless its probative value towards the witness’s credibility is
substantially outweighed by the risk of unfair prejudice to Defendant,
and evidence of conviction of accused shall be admitted if the probative
value outweighs the prejudicial effect of the accused
2. FRE §609(a)(2) – If any witness has been convicted of a crime involving
DISHONESTY, or FALSE STATEMENTS, (where an element of the crime
required proof/admission of an act of dishonesty/false statements) such
as perjury, evidence of the conviction can be admitted
3. TIME LIMIT – FRE §609(b) – If a conviction or a release from
confinement related to a conviction (whichever occurred later) took
place 10 years or more before the trial, evidence of the conviction is
admissible ONLY if it passes the FRE §403 TEST
a. ADVANCE NOTICE TO OPPOSING COUNSEL IS REQUIRED
ii. HEIGHTENED PROTECTION FOR CRIMINAL DEFENDANTS (§609(a)(1))
1. PRIOR CONVICTIONS OF DEFENDANT – Admissible only if probative
value outweighs prejudicial effect (PROSECUTION MUST PROVE)
a. FAVORS EXCLUSION – because the probative value must
substantially outweigh the prejudicial effect.
i. THIS IS REVERSE §403 ANALYSIS
ii. §403 ANALYSIS TEST – probative value must be
SUBSTANTIALLY OUTWEIGHED by prejudicial effect
iii. IF PROBATIVE = PREJUDICIAL VALUE = EXCLUSION
iii. GORDON FACTORS FOR PROBATIVE VALUE (Gordon v. United States)
1. NATURE OF PRIOR CRIME
a. Is it a crime that reflects adversely on honesty/integrity?
b. Or is it more of a violent crime which no reflection on honesty?
c. Crimes of premeditation have more probative value
2. RECENCY/REMOTENESS
a. More than 10 years old should probably be excluded
b. If conviction is not 10 years old, but is still old and there have
not been other crimes committed between the old one and this
one, it may tip the scale in favor of Exclusion
3. SIMILARITY TO CHARGED CRIME
a. The closer in resemblance of the prior crime that the defendant
was convicted for and the current crime charged, the more
likely the prejudice to the Defendant
b. Still can be admitted for intent/motive, etc. (FRE §404(b))
4. EXTENT/NATURE OF CRIMINAL RECORD
 a. The more crimes that are on the record, the more prejudicial
5. IMPORTANCE OF DEFENDANT’S TESTIMONY
a. If the Judge determines that it is crucial for the Jury to hear the
Defendant’s testimony, he might exclude the prior conviction so
that the defendant will testify (he won’t if Judge admits prior)
6. IMPORTANCE OF CREDIBILITY ISSUES
a. The more importance of the credibility of the witnesses and the
defendant and accuser is to the outcome of the trial, the more
likely the Court will allow the prior convictions to be admitted
7. OTHER FACTORS
a. Was the conviction after a plea of not guilty? Or a guilty plea?
Because pleading not guilty infers dishonesty
8. United States v. Lipscomb – held that a Court may inquire into the
underlying facts and ask the government to produce the necessary data,
but the court declined to set up guidelines to decide when inquiry
beyond the name and date of the conviction is necessary, and left it in
the JUDGE’S DISCRETION to make that determination
a. Prosecutor should have “some details” about convictions to
present to the Judge for this determination
b. Encouraged – Courts to make these factual inquiries
iv. LOOKING TO UNDERLYING FACTS
1. GENERALLY – For crimes not of dishonesty or false statement
2. Question is – whether the crime satisfies FRE §609(a)(2) anyways,
because underlying facts show that the crime involved falsity
a. Example – Drugdealer lying about what/how much he’s selling
3. USUALLY APPLIES IF – Prosecutor had to prove an act of dishonesty or
false statement because it was integral to the act constituting the crime
4. READY PROOF REQUIREMENT – Crime must be able to be “readily
determined” as to whether it fits the FRE §609(a)(2) standard
a. PREVENTS A “MINI-TRIAL” WITHIN A TRIAL
b. USE INDICTMENTS/CASE JACKET OF PROSECUTOR, ETC.
v. CRIMES OF DISHONESTY OR FALSE STATEMENT
1. GENERALLY – AUTOMATICALLY ADMISSIBLE UNLESS Exception applies
2. APPLIES TO BOTH FELONIES AND MM
3. FELONY OF DISHONESTY = AUTOMATICALLY ADMISSIBLE
4. USUALLY – Perjury, fraud, embezzlement, etc.
5. USUALLY NOT – Assault, rape, sexual assault, battery, drug offenses
6. BIGGEST DEBATABLE CRIME – THEFT (Usually excluded)
vi. EXCEPTIONS TO CRIME OF DISHONESTY AUTOMATIC ADMISSIBILITY
1. 10 YEAR LIMIT – Regardless of whether a MM or Felony
a. BEGINNING POINT – Time of conviction or time of release from
imprisonment (WHICHEVER COMES LATER)
 b. END POINT – Date of indictment, Date trial begins, or date
witness testifies
c. OVERCOME 10 YEAR LIMIT – by providing written notice to
other party to give them a fair chance to object and the court
decides that the probative value substantially outweights the
prejudicial impact
2. ACKNOWLEDGEMENT OF REHABILITATION – CAN’T USE
3. JUVENILE ADJUDICATION – GENERALLY INADMISSIBLE
4. PARDONS/ANNULMENTS BASED ON INNOCENCE – CAN’T USE

f. PRIOR INCONSISTENT STATEMENTS (FRE §613)

i. PRIOR INCONSISTENT STATEMENT MUST BE INCONSISTENT WITH TESTIMONY
1. NEED NOT SHOW PRIOR INCONSISTENT STATEMENT TO WITNESS
2. OPPOSING COUNSEL CAN REQUEST TO SEE IT
3. IF WITNESS ACKNOWLEDGES PRIOR STATEMENT – NO EXTRINSIC!
a. Witness well say that they did say something different in their
deposition, and then try to explain why (makes them look bad)
ii. USE OF EXTRINSIC EVIDENCE – DEPENDS on content of statement
1. Depends on whether statement is COLLATERAL or NON-COLLATERAL
iii. CASE SPECIFIC – Doesn’t usually raise character concerns because it doesn’t go
to her general character of being untruthful (cant put on rebuttal char. Witness)
iv. IF SEVERAL Prior inconsistent Statements – might raise concerns about her
truthfulness, which would allow for proponent of witness to put on a character
witness for the primary witness to show primary witness’s truthfulness
v. WARNING NEEDED (SEE FRE §613(b)) (UNLESS IT FALLS UNDER §801(d)(2))
1. SO – you tell witness that they testified about something, but gave a
deposition/affidavit, and they said something different
vi. HEARSAY EXCEPTION – IF not trying to prove OOC statement was true
g. IMPEACHING TACTICS USING PRIOR INCONSISTENT STATEMENTS
i. COMMIT, CREDIT, CONFRONT
1. COMMIT– witness to say statement exactly the opposite of prior
statement (“You just testified that……”) (“And YOU SAID that….”)
2. And get him to confirm the statement (that is your testimony today?)
3. CREDIT– This isn’t the first time you stated what you observed
a. You testified before about [the statement]
b. Deposition right? Under Oath? you told the truth? Initialed it?
c. If not under Oath – look at time of statement (after accident?)
i. You knew your police report was important, right?
4. CONFRONT– Tell witness what they testified to in previous statement
 a. If they deny it – determine collateral/non-collateral to
determine if you can bring in the extrinsic evidence
b. HAVE THEM READ HIGHLITED PORTION OF PRIOR STATEMENT
i. OR READ IT FOR THEM! (and say “did I read that right?)
ii. NEVER USE EXTRINSIC UNLESS YOU HAVE TO
1. REPEAT THE QUESTION A COUPLE TIMES
2. READ THE DEPOSITION/AFFIDAVIT OF WITNESS TO THEM
a. without showing it to them!!
iii. NEGATIVE IMPEACHMENT – (Frowned on in FL, good to use in Federal)
1. You are saying something in Court that you didn’t say in your prior
statement, and it is an important enough fact that you should have
made statement before
2. OCCURS A LOT – LEO reports (b/c they don’t write down every detail)
IX. TESTIMONY BY WITNESSES
a. LAY WITNESS TESTIMONY (FRE §701)
i. GENERALLY (PERSONAL KNOWLEDGE REQUIREMENT) – IF the witness
testifying is not an expert, testimony should contain FACTS, NOT OPINIONS
1. OPINIONS/INFERENCES ARE LIMITED TO
a. rationally based on the perception of the witness
b. helpful to a clear understanding of the witness’ testimony or
the determination of a fact in issue, and
c. NOT based on scientific, technical or other specialized
knowledge within the scope of FRE §702
ii. EXAMPLE – Witness is being called to testify that defendant was “Drunk”
1. This is based on their own perception of the defendant
2. This will help the jury with the testimony because most jury members
can relate to how someone acts or looks when they are drunk
3. Determining if someone is drunk does not require specialized
knowledge or skill or any scientific/technical knowledge
iii. LAY WITNESSES MAKE “SHORTHAND CONCLUSIONS”
1. One word conclusion based on all the FACTS they are testifying to
2. It’s really just a product of all of their testimony
a. (Fact 1) + (Fact 2) + (Fact 3) + (Fact 4) = Shorthand Conclusion
iv. MUST HELP THE JURY – Mental states and value judgments don’t help the jury,
because that is what the jury is supposed to determine as the trier of fact
b. OBJECTIONS TO LAY WITNESS TESTIMONY
i. THIS OBJECTION WILL BE “SPECULATION”
1. Improper Lay Witness opinion
2. Lack of knowledge (FRE 601)
c. EXPERT WITNESSES (FRE §702)
i. GENERALLY – FRE §104(a) Standard – Preponderance of the Evidence
1. If scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness QUALIFIED AS AN EXPERT, by knowledge, skill, experience,
training, or education, MAY testify in the form of AN OPINION IF:
a. The testimony is based upon SUFFICIENT facts or data (STEP 4)
b. The testimony is the product of reliable principles and methods
c. The witness has applied the principles and methods RELIABLY
to the FACTS OF THE CASE
2. SPECIALIZED KNOWLEDGE - interpretation of facts of a sort that lay
persons are not usually called upon to evaluate (DNA, Ballistics, etc.)
a. This is the “Subject Matter” Inquiry (STEP 1 BELOW)
ii. 6 STEPS FOR DOING EXPERT WITNESS ANALYSIS ON EXAM
1. Is Subject Matter PROPER for an expert/expert testimony? (Jury need?)
2. What are the qualifications of the expert? (§702 – knowledge/skill, etc.)
3. Qualifications of the methodology that the expert used? (Daubert/702)
4. What is the BASIS of the expert’s opinion? (FRE §703)
5. What is the form that the expert witness’s testimony is going to take?
6. APPLY THE FRE §403 TEST – Expert Testimony will confuse, mislead, etc.
iii. QUALIFICATIONS AS AN EXPERT (STEP 2)
1. Generally - Witness can be qualified as an expert by knowledge, skill,
experience, training or education
2. Just because they are getting paid does not make them an expert
3. QUESTIONS TO ASK
a. Have they ever testified in a Court of law as an expert?
b. Have they written any books or articles?
c. Member of any prestigious groups?
d. Amount of training/education and WHERE?
4. IN SOME JURISDICTIONS – After laying foundation, you ask the Court to
QUALIFY them as an expert
a. Your honor, at this time we ask the Court to Tender the witness
as an “Expert in [field]”
5. OPPOSING COUNSEL’S OPTIONS (IF THEY CHOOSE TO OBJECT)
a. VOIR DIRE WITNESS – (in presence of jury)
i. Inquiries into qualifications of expert (not credibility)
ii. Show jury that expert is not very qualified
iii. Purpose of limiting as to what expert can testify to
b. THEN OBJECT TO QUALIFICATIONS – Make your argument!
i. Try to get Court to limit what expert can testify to
ii. OR OBJECT TO STATUS “AS EXPERT” (KEEP OFF STAND)

iv. QUALIFICATIONS OF METHODOLOGY (Daubert Hearing) (STEP 3)

 1. Daubert v. Merrell Dow (FEDERAL TEST)
a. FRE §104(a) Standard – Preponderance of the Evidence
b. Courts must consider “Validity” or “Reliability” of the evidence
c. The evidence’s degree of “FIT” with the facts/issues in the case
i. THIS IS BASICALLY A FRE 401 RELEVANCY QUESTION
d. Risks/Dangers that the evidence will confuse the issues or
mislead the jury (APPLY §403 TEST)
2. RELIABILITY (FRE §702 STANDARD) – FACTORS USED DURING HEARING
a. Has theory/technique can be and has been tested before
b. Testing has involved controls and variables (to show reliability)
c. Whether it has been subjected to peer review and publication
d. Error rates involved with this methodology
e. Existence of standards governing the operation of the technique
f. Degree of acceptance in the scientific community (FRYE TEST)
3. IN FLORIDA – FRYE TEST (NO DAUBERT TEST)
a. Looks at whether the testing methodology/principle has been
sufficiently accepted by the scientific community from which
that testing comes from
b. Court hears testimony from experts in the field as to whether
this testing/methodology has been generally accepted
c. THIS DIFFERS FROM DAUBERT TEST – because experts are
making the determination instead of the Court/Judge

v. BASIS FOR EXPERT’S OPINION (STEP 4)

1. MAY BE BASED ON (SOURCES OF DATA)
a. The expert’s first-hand knowledge
b. The expert’s observation of prior witnesses and other evidence
at the trial itself
c. A HYPOTHETICAL QUESTION asked to the expert
2. INADMISSIBLE EVIDENCE (FRE §703) – Expert witnesses OPINION may
be based on evidence which is otherwise INADMISSIBLE; BUT EVIDENCE
MUST be of a type “reasonably relied upon by experts” in a particular
field in forming opinions or inferences upon the subject
a. Probative value of inadmissible evidence must substantially
outweigh prejudicial effect (REVERSE FRE §403 ANALYSIS)
3. NEED NOT DISCLOSE FACTS FOR BASIS (FRE §705)
a. BUT – that basis can be asked/given during CROSS
b. THIS INCLUDES INADMISSIBLE EVIDENCE – So if opposing
counsel asks for basis of opinion during CROSS, the expert must
disclose the basis, even if the underlying facts or data that were
the basis of the opinion are otherwise INADMISSIBLE
 4. OBJECTION BY OPPOSING COUNSEL - “proponent is using the expert as
a conduit to inadmissible evidence”
a. Opponent is saying that proponent is using the expert to put on
a bunch of evidence that isn’t admissible (SUCH AS HEARSAY)
5. BEST THING EXPERT CAN DO
a. Provide standards, criteria, estimates of feasibility or likelihood
6. HYPOTHETICAL QUESTION - Must be some basis for assumptions in
hypothetical, but doesn’t have to be supported by evidence in record
7. OTHER WAYS TO HAVE OPINION EXCLUDED
a. Not enough data to make the opinion (basis is inadequate)
b. The Data is not the type reasonably relied upon by experts
8. DATA CAN BE EXCLUDED – If not reasonably relied upon by experts
vi. KUMHO TIRE
1. Supreme Court held that Daubert Principle applies to ALL EXPERTS
2. Experience based expertise must be examined for Reliability
a. Expert must provide information about the nature of that
experience, and show how it bears on the matter (RELEVANCY)
vii. FORM OF THE EXPERT WITNESS TESTIMONY (TWO TYPES) (STEP 5)
1. General testimony regarding applicable scientific principle
a. Lets jury apply this scientific principle to the facts
2. Testimony that takes principle and applies it to this case
a. Expert makes this conclusion FOR THE JURY
b. THIS IS OBVIOUSLY MUCH MORE PREJUDICIAL
viii. ULTIMATE ISSUE (FRE §704)
1. Expert Opinion/inference is not objectionable because it embraces the
ultimate issue (which is to be decided by the jury)
2. Exception (FRE §704(b)) – Experts in criminal cases CANNOT express an
opinion on the specific issue of a defendant’s mental state that is an
element of the crime (Negligent, Reckless, etc.)
X. HEARSAY
a. GENERALLY
i. Definition – O-O-C statement offered to prove the truth of the matter asserted
1. Repeating what someone said – (HEAR  SAY)
2. Applies to Documents too – testifying about what someone wrote
ii. EXAMPLE – Victor says that “David tried to poison me last night”
1. IT IS HEARSAY IF – offered to show that David tried to kill Victor
2. NOT HEARSAY – if offered to show that Victor was present at place
iii. EXAMPLE – A letter written by Victor to his mother, “David tried to kill me last
night” would be hearsay if offered to prove that
1. NOT HEARSAY – If offered to prove that Victor keeps in touch w/ Mom
iv. FOUR DANGERS – (1) Ambiguity (2) Dishonesty (3) Incorrect memory
(4) inaccurate perception (ALL BECAUSE PERSON IS NOT THERE FOR CROSS)
 b. CONFRONTATION CLAUSE (6th Amendment) (ONLY CRIMINAL CASES)
i. CONFRONTATION CLAUSE (6th Amendment) – A criminal defendant has the
right to be confronted with the witnesses against him
1. INCLUDES THE RIGHT TO CROSS-EXAMINE UNDER OATH
ii. CRAWFORD DOCTRINE – Confrontation Clause is satisfied if the speaker testifies
at trial and can be cross-examined then about what he said before
1. Deferred/Later Cross = satisfies Confrontation Clause
2. Prior Cross = Satisfies (If speaker is unavailable at trial but was cross-
examined at an earlier time)
c. OUT OF COURT REQUIREMENT
i. Out of court statement – is any statement except one made by a witness during
the trial while testifying before the trier of fact
1. Depositions and statements from other trial are O-O-C Statements
2. Statements made during preliminary hearings, motion hearings, etc.
ARE NOT O-O-C Statements
d. WHAT IS “A STATEMENT” (FRE §801(a)-(b))
i. Statement – an oral or written ASSERTION or nonverbal conduct (body
language) of a person, if it is intended by the person as an assertion
1. CAN BE SHAKING HEAD “NO” OR NODDING HEAD “YES”
2. POINTING IN A CERTAIN DIRECTION (which way is North?)
3. THUMBS UP (to give an affirmative answer)
4. PLACING HAND TO HEAR (can you repeat that? Speak up!)
5. APPLIES TO SLANG/CODE WORDS AND “BUSINESS SPEAK”
6. CAN ALSO INCLUDE SILENCE (IF IT’S AN ASSERTION!)
ii. IF IT’S AN INSTRUCTION – NOT AN ASSERTION – SO NOT HEARSAY
e. OFFERED TO PROVE TRUTH OF MATTER ASSERTED
i. GENERALLY - Is what the proponent seeks to prove what the declarant said?
1. Is statement’s relevancy based on whether the statement is true?
2. If relevancy is based on whether it was said – NOT HEARSAY
ii. EFFECT ON HEARER/READER (NOT HEARSAY)
1. If a statement is offered to show that the listener or reader was put on
notice, had certain knowledge, had a certain emotion, or behaved
reasonably/unreasonably, this is NOT HEARSAY
2. Example – Professor Flowers is getting in a car and driver says that he is
drunk as a skunk; if Flowers tries to sue driver, she will want to use
statement to prove that driver was drunk
a. RELEVANCY – Depends on whether statement was true
b. If Driver wants to put statement on (Contributory Negligence)
– the Relevancy is that statement was MADE, and this
statement goes to EFFECT ON HEARER (NOTICE of drunkenness)

XI. HEARSAY EXCLUSION - PRIOR STATEMENTS BY TESTIFYING WITNESS

 a. FRE §801(d)(1)(A) - A statement is NOT HEARSAY IF – the Declarant is testifying at trial
or hearing and IS subject to CROSS-EXAMINATION concerning the statement, and
i. The first statement is (A) Inconsistent with Declarant’s Testimony, and
ii. WAS UNDER OATH, subject to perjury, at a trial, hearing, deposition, etc.
1. YES TO BOTH – Admissible for proving truth of matter asserted
2. IF NO TO EITHER – Admissible only for IMPEACHMENT
3. REMEMBER – Even if the statement is admissible for proving truth of
matter asserted, CAN ARGUE 401, 403, 404(a), ETC.
b. REQUIREMENT OF PROCEEDING
i. Only statements given under oath as part of a FORMAL PROCEEDING may be
substantively introduced if the witness’s trial testimony differs; Oral Statements
Affidavits filled out at police station/prosecutors office are not “proceedings”
c. NO REQUIREMENT OF CROSS-EXAM AVAILABILITY DURING FIRST STATEMENT
i. So grand-jury testimony, or other sworn statements not subject to cross are
admissible, BECAUSE statement can be Cross-examined NOW (trial)
d. CONSISTENT STATEMENTS – FRE §801(d)(1)(B)
i. Admissible if it is “offered to rebut an express or implied charge against the
witness of recent fabrication or improper influence or motive”;
ii. ABSOLUTE CONSISTENCY NOT REQUIRED – must be “consistent enough”
iii. RECENT FABRICATION, IMPROPER INFLUENCE OR MOTIVE – These are the
ways that Cross-examiner must attack Witness before Attorney can get up on
Redirect and introduce the fact that witness has been consistent all along
1. Improper Influence or Motive = Impeachment for BIAS
2. STATEMENT MUST BE MADE BEFORE CAUSE OF ALLEGED BIAS
iv. CROSS-EXAM THAT ALLEGES PRIOR INCONSISTENT = Maybe recent fabrication
v. NO NEED THAT PRIOR CONSISTENT STATEMENT BE MADE UNDER OATH
e. METHODS OF INTRODUCING CONSISTENT STATEMENTS
i. RE-DIRECT OF DECLARANT WITNESS
ii. CALL ANOTHER WITNESS TO CORROBORATE CONSISTENT STATEMENT
f. PRIOR IDENTIFICATIONS – FRE §801(d)(1)(C) – MUST IDENTIFY “PERSON”
i. A statement of identification (not description) made after perceiving him is
admissible, if the declarant testifies at trial and is available for cross-exam
ii. NO REQUIREMENT THAT IDENTIFICATION IS MADE UNDER OATH
1. EXAMPLE – Victor, a robbery victim, is walking down the street the day
after the robbery when he spots Kyle. Victor says to Matt, who is with
him, that “That’s the robber”. Matt will be able to repeat this statement
at Kyle’s trial, even though Victor’s statement was not made under Oath
XII. HEARSAY EXCLUSION - ADMISSION BY A PARTY OPPONENT (FRE §801(d)(2)(A)-(E))
a. GENERALLY – JUDGE USES 104(a) Standard
i. A party’s own words or acts may be offered as evidence against him, even
though these words/acts would be inadmissible hearsay if said or done by
someone other than a party in the proceeding
 ii. Any statement made/adopted by Defendant can be used against the Defendant
if introduced by the Prosecutor/Plaintiff (and vice-versa)
iii. RATIONALE – Party can take stand and deny/explain statement
b. PARTY’S OWN STATEMENT; FRE §801(d)(2)(A)
i. Pleadings –treated as personal admissions usually, and thus admissible usually
ii. Conduct as admission – Admissible, even if intended as assertion
1. Example – Proof of Defendant’s attempt to conceal victim’s body would
be admissible as an admission by Defendant of his guilt
c. ADOPTION OF ANOTHER’S STATEMENT; FRE §801(d)(2)(B)
i. GENERALLY – Circumstances must be such that a REASONABLE PERSON would
have denied the assertion (QUESTION FOR THE JURY – FACT SENSITIVE)
ii. Real and Knowing Test – If a party is claimed to have adopted another’s
statement and the adoption is merely implied, the test is whether, taking into
account ALL CIRCUMSTANCES, the party’s conduct or silence justifies the
conclusion that he KNOWINGLY agreed with the other person’s statement
iii. SIGNING ANYTHING – Will mean adoption of the terms of what you’re signing
iv. SILENCE – Often, the party’s silence in the face of the other person’s statement
will, under the circumstances, indicate that the party agrees with the statement
1. EXAMPLE – While D flashes a large wad of bills, X, his girlfriend, says to
W, “D got that money robbing the bank”. D’s silence in the face of this
statement will probably be found to show D’s knowing agreement with
his girlfriend’s statement, because D would have denied otherwise
2. CRIMINAL CASES – Silence while in CUSTODY does not mean admission
3. WRITINGS – Silence in the face of a writing can mean adoption
a. EXAMPLE – D receives a bill from a creditor, reciting certain
sums owed for specified work. D does NOT respond, his silence
will be treated as an adoptive admission of his debt
d. REPRESENTATIVE ADMISSION; FRE §801(d)(2)(C)-(D)
i. GENERALLY – Even if a party did not make or even learn of another person’s
admission, that admission may be admissible against the party because he
authorized it in some way (called representative or vicarious admission)
ii. EXPLICIT AUTHORIZATION EXAMPLE – Transport company authorizes any
employee who is involved in an accident to make a statement to the police
1. A statement from an employee for an incident – is ADMISSIBLE against
transport, because it was EXPLICITLY authorized
iii. VICARIOUS ADMISSIONS BY AGENT/EMPLOYEE – Such statements are
admissible if made during the employment and concerning a matter within the
scope of employment (No Authority to speak is required)
1. VICARIOUS EXAMPLE – Truck driver makes an accident statement to
the police, even if Employer never authorized him to make reports, the
Driver’s statement is admissible against the Employer b/c it relates to
the matters within Driver’s employment (driving and accidents)
e. CO-CONSPIRATORS; FRE §801(d)(2)(E)
 1. GENERALLY – A statement made by one co-conspirator is admissible
against the other members of the same conspiracy, as long as
2. STATEMENT is made during the COURSE OF THE CONSPIRACY, AND
3. STATEMENT IS MADE IN FURTHERANCE OF THE CONSPIRACY
ii. COURSE OF THE CONSPIRACY
1. AFTER END OF CONSPIRACY – Statements made are admissible ONLY
against the declarant, not the other members of the conspiracy
a. EXAMPLE – If conspiracy is broken up by the arrest of A and B,
anything B says to police will not be admissible against A
2. CONSPIRATOR LEAVES
a. If A leaves the conspiracy, but B and C continue without him,
the statements by B and C after A leaves may not be admitted
against A, but statements by A after he left the conspiracy MAY
be admissible against B and C, since the conspiracy is ongoing
3. STATEMENTS BEFORE – Statements made by conspirators BEFORE a
later entry joins ARE ADMISSIBLE against the later join. When a
conspirator has entered the conspiracy after its inception, he is held to
have ADOPTED the earlier statements by his fellow co-conspirators, and
those can be used against the newly joined Co-Conspirator
iii. IN FURTHERANCE
1. GENERALLY – A statement should be admitted against a Co-Conspirator
ONLY if it was made for the purpose of advancing the conspiracy
2. WEAKLY APPLIED – Confessions by a co-conspirator, narratives of past
events, statements by the declarant blaming the crime on his other co-
conspirators instead of himself, are all frequently admitted under the
exception, even though they are not technically “in furtherance”
iv. CONDITIONAL RELEVANCY OF CONSPIRACY (USING §104(b))
1. Court shall consider whether the contents of a co-conspirators
statements and the surrounding circumstances establish the existence
of a conspiracy by a PREPONDERANCE OF THE EVIDENCE
2. USING STATEMENT TO PROVE CONSPIRACY – Statement may be
considered, but cannot be the ONLY proof of the conspiracy
a. MUST BE INDEPENDENT PROOF OF CONSPIRACY
3. SCOPE OF CONSPIRACY MUST BE DETERMINED – To see if the
statement was “in furtherance” of the conspiracy’s objective

XIII. HEARSAY EXCEPTION – PRESENT SENSE IMPRESSION (FRE §803(1))

a. GENERALLY – Many Courts recognize an exception for “present sense impressions” even
though the Declarant is not excited, but it MUST DESCRIBE OR EXPLAIN EVENT
i. EXCEPTION APPLIES TO STATEMENT – Describing or explaining an event or
condition made while the Declarant WAS PERCEIVING the event or condition,
or immediately thereafter (VERY short period of time after)
 ii. EXAMPLE – O sees a car speed by in the opposite direction, and says “If the
driver keeps up that speed, he’ll surely crash”. The Statement would likely be
admissible to prove that the car was traveling fast
b. TIMING – Must be an IMMEDIATE present sense impression
XIV. HEARSAY EXCEPTION – EXCITED UTTERANCE (FRE §803(2))
a. GENERALLY – Idea for exception is that person did not have opportunity to lie
b. REQUIREMENTS – NO TIME LIMIT
i. Statement must relate to a startling event or condition, AND
ii. The statement must have been made WHILE the declarant was still under the
stress or excitement caused by the event or condition
1. DEPENDS ON CIRCUMSTANCES (SEE BELOW) - person tells first person
they see, but declaration was made several minutes after = OK
c. TIME FACTOR
i. The time that passed between the event and the statement is crucial to
determining if the Declarant was still under the stress/excitement caused
1. USUALLY STATEMENTS MADE WITHIN 30 MINUTES ARE ADMITTED
2. IF OVER 30 MINUTES – Depends on surrounding circumstances
d. EXCEPTIONS
i. This exception may be satisfied even if a long period of time has passed, if the
circumstances support the idea that the stress could still be having an impact on
the declarant (Such as waking up from unconsciousness or a coma)

XV. HEARSAY EXCEPTION – STATEMENTS OF EXISTING MEDICAL CONDITION

a. GENERALLY
i. If statement by Declarant EXPLICITLY STATES their mental condition then it
satisfies this rule – it is being admitted for the truth of matter asserted
1. I.E. – That this person really was suffering from delusions
ii. If statement circumstantially indicates the declarant’s state of mind, it falls
under Declarant’s state of mind hearsay exclusion (I.E. “I am Ronaldinho”)
1. NOT HEARSAY – being used for the fact that it was said, not for truth
b. MENTAL CONDITION
i. STATE OF MIND DIRECTLY IN ISSUE – The exception is often used where a
Declarant’s state of mind is directly in issue
1. MUST BE THE DECLARANT’S PRESENTLY EXISTING STATE OF MIND
2. EXAMPLE – P sues D for alienating the affections of W, who is P’s wife.
W’s statement to P “I don’t like you anymore” , if offered to show that
W does not like P anymore – AN ELEMENT OF P’S PRIMA FACIE CASE –
falls under the exception
ii. SURROUNDING CIRCUMSTANCES ADMITTED – If statement of PRESENT mental
state includes a reference to surrounding circumstances, the ENTIRE statement
will normally be admitted, BUT WITH A LIMITING INSTRUCTION
1. EXAMPLE – “I hate my husband because he’s an adulterer”. The whole
statement will be admitted under this exception, if offered to prove that
the declarant hated her husband at the time of the statement;
 a. Jury will be instructed – that it may not use the statement as
proof that the husband was an adulterer”
iii. PROOF OF SUBSEQUENT EVENT – Exception applies where declaration of
present mental state (especially present intent) is offered NOT b/c the mental
state itself is at issue, BUT BECAUSE that mental state is CIRCUMSTANTIAL
EVIDENCE that a subsequent event actually took place
1. EXAMPLE – O says “I plan to go to Crooked Creek”. This statement of
present intent IS ADMISSIBLE to show that O probably subsequently
went to Crooked Creek
iv. A STATEMENT OF INTENT WITH RECITAL OF PAST ACTS – if the statement is
mainly an expression of intent to do a future act, the fact that it contains a brief
recital about some past, relevant fact will not cause the statement to be
excluded, especially when declarant expresses PAST MOTIVE
1. EXAMPLE – O says to W, “D has asked for some bribe money, im going
to send it to him.” Most Courts would probably allow in the ENTIRE
statement, since it is mainly a statement of intent offered to show that
the intended act – delivering the money – eventually took place
XVI. HEARSAY EXCEPTION – STATEMENTS FOR MEDICAL PURPOSES (FRE §803(4))
a. GENERALLY – Idea for exception is that person will be HONEST about condition
b. PHYSICAL CONDITION
i. TO LAY PERSON – Only a Hearsay exception if it relates to the Declarant’s
PRESENT bodily condition or symptoms (usually it will relate to pain)
ii. TO TREATING DOCTOR – Statement may be about Present OR PAST symptoms
1. MAY INCLUDE CAUSE OF CONDITION (NOT ID OF WHO’S AT FAULT!)
a. EXAMPLE – Declarant saying he was hit by a car will be
admissible, but not who drove or that they ran a red light
2. STATEMENT TO DOCTOR FROM THIRD PARTY – falls under this
exception if it was made to help the patient get treatment
3. INCLUDES STATEMENTS TO NURSES – AND ambulance drivers, hospital
staff, or anyone else involved in the health care process

XVII. HEARSAY EXCEPTION – BUSINESS RECORDS (FRE §803(6))

a. GENERALLY – Whenever there’s an attempt to have a WRITING admitted into evidence
to prove that an event mentioned in the writing actually occurred, the Business records
exception can apply if
i. WRITING MADE AT OR NEAR THE TIME OF THE EVENT
ii. BY, OR FROM INFORMATION SUPPLIED BY, A PERSON WITH KNOWLEDGE
iii. WRITING KEPT IN COURSE OF A REGULARLY CONDUCTED BUSINESS ACTIVITY
1. TIP – LOOK FOR ACCIDENT OR INVESTIGATIVE REPORTS – these are
often made by a business IN ANTICIPATION OF LITIGATION, and thus if
that is the reason for the reports, they do not qualify for this exception
because it’s not done for “REGULAR” business reasons
iv. IT WAS THE BUSINESS’ REGULAR PRACTICE TO MAKE THE RECORD
 1. This is the policy for this exception – because the business would be
motivated to make accurate (true) records for their company
v. ALL AS SHOWN BY THE TESTIMONY OF A QUALIFIED WITNESS
b. BUSINESS IS OFTEN DEFINED BROADLY
i. CAN INCLUDE – Non-profit organizations, educational institutions, etc.
ii. OPPONENT MUST SHOW – Lack of trustworthiness in the business record
1. Can argue that circumstances surrounding the preparation of this
document are unreliable or not trustworthy, etc.

c. EXAMPLES OF BUSINESS RECORDS

i. Can be Acts, Events, Conditions, Opinions or DIAGNOSIS
ii. An answering service’s telephone message log
iii. A patient’s chart in a hospital
iv. A business’ invoice showing that a shipment was made

XVIII. PUBLIC RECORDS (FRE §803(8))

a. EXAM TIP – Whenever a document is prepared by a GOVERNMENTAL BODY, be alert to
the possibility that it could be admitted as a matter of public record
i. IF IT’S A CIVIL SUIT – THESE COME IN; CRIMINAL = ONLY IF D WANTS IT IN
b. GENERALLY – Three types of public records are admissible under this exception
i. AGENCY’S OWN ACTIVITIES
1. Example – P sues FBI for invading his privacy. P could introduce the
agency’s surveillance records to prove the agency tapped his phone
ii. MATTERS OBSERVED UNDER DUTY
1. Observation Must be made IN THE LINE OF DUTY
2. Official must have had a DUTY TO REPORT THOSE OBSERVATIONS
3. CANNOT INTRODUCE IN CRIMINAL CASE – CIVIL CASES ONLY
iii. INVESTIGATIVE REPORTS WITH FACTUAL FINDINGS
c. SINCE YOU CANNOT INTRODUCE – You need the Detective’s testimony
i. DEFENDANT COULD INTRODUCE – Just can’t be introduced by Prosecution

XIX. DOUBLE HEARSAY (FRE §805) (NEED MORE ON THIS!)

a. GENERALLY – Out of Court statements that themselves contain additional statements,
may be admitted, so long as each statement can overcome a hearsay objection
i. Example – Sundance Kid is on trial for assault on Butch Cassidy. Melvin told
Margaret, and Margaret told Sundance that Melvin told her that Butch had an
affair with the wife.
1. Prosecution wants to put on Margaret’s statement to Sundance
2. Prosecution argues EFFECT ON LISTENER – (Non-Hearsay Use)
ii. If last statement is not-hearsay then the previous statements need not fit an
exception to be admitted because the relevance to those statements is not the
content of the statements, but rather the fact that they were made
XX. HEARSAY EXCEPTION – PAST RECOLLECTION RECORDED (FRE §803(5))
a. GENERALLY – If a witness on the stand CANNOT REMEMBER, and there exists a writing
WRITTEN by the witness regarding the subject matter of the question, A WRITTEN
record of an event, made SHORTLY after the event has occurred, WILL BE ADMISSIBLE, if
FOUR Requirements are Met
i. WRITER HAD PERSONAL KNOWLEDGE – Memorandum must relate to matters
of which the declarant witness ONCE HAD FIRST HAND KNOWLEDGE
1. Example – W writes down an inventory. If he says at trial that some of
the info in the inventory was known only to his assistant who supplied
the info, not to W, the memo IS NOT ADMISSIBLE unless the assistant is
also available to testify
2. COMMON SCENARIO – Police officer writes an accident report at the
scene of an accident, and includes in it a statement by a witness.
a. At trial, the officer cannot by himself read W’s statement from
his report, because the officer does not have first hand
knowledge of the matters in the Witness’s report
b. Statement CAN be introduced if W testifies to having made it
when his memory was fresh, and the officer testifies that when
he wrote the report, it was ACCURATE
ii. MADE WHILE FRESH IN MEMORY – “SHORTLY AFTER THE EVENT”
iii. IMPAIRED RECOLLECTION – The sponsoring witness memory of the event
recorded must now be IMPAIRED
1. If he can CLEARLY remember the events, he must testify from memory
rather than have the document admitted (Refreshing Recollection)
2. Must just have SOME impairment of his memory (NOT TOTAL LOSS)
iv. ACCURATE WHEN WRITTEN – The sponsoring witness at the trial must testify
that the record WAS ACCURATE when it was made (Adopted by witness)
1. Sponsoring witness need not be the person who made the record
a. Example – If X made the record, it may be sponsored by the
Witness, if for example the Witness was X’s assistant, and can
testify that after the record was made, he checked it and
determined it to be accurate
b. Adopted IF – Witness saw the document, signed it, etc.
v. ONLY PORTION THAT WITNESS COULDN’T REMEMBER IS READ INTO RECORD
1. The entire Document DOES NOT come in
2. Attorney doing Direct Exam reads it into record (“pursuant to 803(5)…”)
b. CONTRASTED WITH REFRESHING RECOLLECTION (FRE §612)
i. Refreshing Recollection is used when the witness can’t remember something,
but if you give them a document at trial, they will be refreshed by the document
and then testify from their refreshed memory – so it’s NOT hearsay
1. Can refresh recollection with ANYTHING
a. Doesn’t have to be something witness wrote
 b. Can use Maps, pictures, etc. – MUCH BROADER THAN 803(5)
2. WITNESS MUST SAY “I DON’T REMEMBER”
a. If they don’t – IT CAN BE AN IMPROPER FOUNDATION

XXI. HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY (FRE §804)

a. GENERALLY (FRE §804(a))
i. A WITNESS IS UNAVAILABLE (AND THUS THIS EXCEPTION MAY APPLY), IF
1. Witness is exempt from testifying because of PRIVELEGE (§804(a)(1))
2. Witness persists in refusing to testify about the subject matter despite a
Court order to do so (§804(a)(2))
3. Witness testifies to a lack of memory on the subject matter (§804(a)(3))
4. WITNESS IS DEAD/SERIOUSLY ILL (§804(a)(4))
5. WITNESS is absent from hearing and proponent of a statement has been
unable to procure their attendance via subpoena, etc. (§804(a)(5))
ii. HEARSAY EXCEPTION CAN NOT BE USED BY A PARTY WHO – Deliberately or
intentionally prevents the declarant from being present
b. FORMER TESTIMONY (FRE §804(b)(1))
i. GENERALLY – Where there is PAST TESTIMONY that the one party wishes to
offer at the present trial, but the testifier is unavailable, this may apply
ii. REQUIREMENT OF HEARING – Requires being under oath and subject to Cross
1. INCLUDES – Preliminary hearings, Depositions, previous trials, etc.
2. EXCLUDES – Affidavits, confessions, police reports, etc.
iii. PARTY AGAINST WHOM TESTIMONY IS BEING OFFERED – Must have been
present at the earlier testimony, and had an opportunity and similar motive to
develop the testimony (USUALLY BY CROSS-EXAMINATION)
1. EXAM TIP – Exam may say that no cross-examination took place in
earlier proceeding, which is IRRELEVANT as long as the party against
whom the declaration is being offered had an opportunity and incentive
to cross-examine
iv. IDENTITY OF ISSUES – Must be enough overlap between the issues at time of
prior hearing and the issues existing at the present trial, that the opportunity to
cross-examine was a meaningful one
c. DYING DECLARATIONS (FRE §804(b)(2))
i. GENERALLY – Death is not required, but the following elements ARE required
1. Declarant MUST BELIEVE HIS DEATH IS IMMINENT
2. Declaration MUST CONCERN CAUSES OF IMPENDING DEATH
ii. STATEMENT CAN ONLY BE USED – Criminal Homicide cases and Civil cases
1. CANNOT BE USED IN NON-HOMICIDE CRIMINAL CASES
d. DECLARATIONS AGAINST INTEREST (FRE §804(b)(3))
i. GENERALLY – Hearsay Exception that is admissible because at the time it is
made, it is SO against the Declarant’s interest that it is unlikely that they would
have made it up or been lying about it if it was not true
 1. REMEMBER – Declaration must have been AGAINST THE INTEREST of
the Declarant at the time it was made!
2. DECLARANT MUST KNOW IT WAS AGAINST THEIR INTEREST (objective)
a. MUST BE AGAINST PENAL OR PECUINARY INTEREST
ii. EXAMPLES
1. Passenger in a car makes a statement to police officer at the scene of
the crime that is incriminating (or against financial interest) of driver
a. THIS WONT APPLY; NOR WILL “We shouldve had our lights on”
i. OR – We both had been drinking
b. BECAUSE – not passengers responsibility to have the car lights
on or not drink and drive – THAT IS DRIVERS RESPONSIBILITY
iii. STATEMENT EXPOSING DECLARANT TO CRIMINAL LIABILITY – And offered to
exculpate the accused is NOT admissible unless CORROBORATING circumstances
clearly indicate the trustworthiness of the statement
iv. LOOK FOR CONFESSION
1. Declarant confesses after being caught red handed, and during the
course of the confession, implicates the Defendant, against whom the
confession is now sought
2. Declarant would be unavailable – BECAUSE OF PRIVILEGE (§804(a)(1))
3. STATEMENT NOT AGAINST DECLARANT’S INTEREST THOUGH – because he was
trying to mitigate his own liability/criminal sentence