Evidence

Rutgers Law School, Fall 2022

Professor John Lore

Exam
- Do not need to explain Rule 104(a) in essay portion
- Examine Rules 401 and 403 for all issues, easy points
- General theory of both cases, compare and contrast
- Read the law twice, that’s most important
- Go over the facts of the cases

Overview
- Introduction
- The presentation of proof about events that occurred in the past at trial
- Proof at Trial
- Testimonial, documentary, real, photography, etc.
- The party with the burden of production is obligated to introduce evidence to satisfy that
burden
- Law of Evidence
- Rules Governing the Content of Evidence
- Rule 104: Preliminary Questions
- (a) In General. The court must decide any preliminary question about
whether a witness is qualified, a privilege exists, or evidence is
admissible. In so deciding, the court is not bound by evidence rules,
except those on privilege.
- The first question a judge must answer for the admissibility of
evidence
- The moving party must convince a judge by a preponderance of
evidence that it should be admissible
- (b) Relevance That Depends on a Fact [Conditional Relevance Rule].
When the relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the fact
does exist. The court may admit the proposed evidence on the condition
that the proof be introduced later.
- Sufficient (prima facie), not preponderance: is there sufficient
evidence that a juror could find that supporting (“conditional”)
fact to be true?
- Ex. Prosection wants to introduce evidence that victim’s
grandmother spoke ill to someone else about the alleged
murderer, defense objects, conditional fact is that the alleged
murderer heard that the grandmother was saying ill about him,
and therefore had motive to harm her and accidentally kill her
granddaughter
- Ex. past boyfriend of alleged thief, who committed robbery in
the past with a female accomplice, refuses to name the alleged
thief as his accomplice, prosecution objects, conditional fact is
that the accomplice was the alleged thief and would meet prima
facie. Conditional fact that boyfriend knew alleged thief would
not.
 - (c) Conducting a Hearing So That the Jury Cannot Hear It. The court
must conduct any hearing on a preliminary question so that the jury
cannot hear it if:
- (1) the hearing involves the admissibility of a confession;
- (2) a defendant in a criminal case is a witness and so requests; or
- (3) justice so requires.
- Rule 105: Limiting Evidence That Is Not Admissible Against Other Parties or for
Other Purposes
- Court must, on timely request, restrict the evidence to its proper scope
and instruct the jury accordingly
- Michelson Limiting Instruction, involving avoiding providing
information to the jury and trusting them to not misinterpret it, assume
their truth, make judgments upon it
- Relevance Rules
- Rule 401: Test for Relevant Evidence
- “Relevant if:
- (a) it has any tendency to make a fact more or less
probable than it would be without evidence; and
- (b) the fact is of consequence in determining the action.”
- Rule 402: General Admissibility
- “Relevant evidence is admissible unless any of the following
provides otherwise…Irrelevant evidence is not admissible.”
- Rule 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste
of Time, or other reasons
- “The court may exclude relevant evidence if its probative value
is substantially 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 presenting
cumulative evidence.”
- Balancing Test (must substantially outweigh, high
standard, favors admissibility)
- Determine probative value of offered evidence
- Identify any enumerated dangers or efficiency
concerns
- Balance the two
- Favors including, must prove cost substantially
outweighs benefit
- Rule 404: Character Evidence
- Character evidence is a person’s propensity (has acted on a
particular occasion in accordance with a character trait) to be a
certain way (generally almost never allowed in civil cases)
- Must articulate (1) what fact evidence is trying to prove
and (2) what is reason for admissibility
- Past crimes must be directly related to charged crime,
unless defense opens the door
- (a) Character Evidence (works with Rule 405(a) when 404(a)
permits it, see below)
- (1) Prohibited Uses. Evidence of a person’s character or
character trait is not admissible to prove that on a
particular occasion the person acted in accordance with
the character or trait.
 - Generally not allowed in civil cases
- Exception: not sexual stuff (Rule 412, with its
own exception, and 413-415)
- (2) Exceptions for a Defendant or Victim in a Criminal
Case. The following exceptions apply in a criminal case:
- (A) a defendant may offer evidence of the
defendant’s pertinent trait, and if the evidence
is admitted, the prosecutor may offer evidence
to rebut it;
- Must be “pertinent” to the trial.
- A character witness’ statement that the
defendant has a reputation of honesty
would generally not admissible in a trial
for murder.
- (B) subject to the limitations in Rule 412, a
defendant may offer evidence of an alleged
victim’s pertinent trait, and if the evidence is
admitted, the prosecutor may:
- (i) offer evidence to rebut it; and
- (ii) offer evidence of the defendant’s
same trait; and
- (C) in a homicide case, the prosecutor may
offer evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim
was the first aggressor.
- [Note: Rules 607, 608, and 609 for Impeachment
of Witness; and Rules 413, 414, and 415 for
Sexual Assault and Child Molestation Cases]
- (3) Exceptions for a Witness. Evidence of a witness’s
character may be admitted under Rules 607, 608, and
609.
- (b) Other Crimes, Wrongs, or Acts.
- (1) Prohibited Uses. Evidence of any other crime, wrong,
or act is not admissible to prove a person’s character in
order to show that on a particular occasion the person
acted in accordance with the character.
- (2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.
- Helps to identify modus operandi (signature
crime), opportunity, motive, preparation or that
they had intent, knowledge, or to show the
alleged crime wasn’t a mistake or accident (like
defendant claiming he didn’t know he was
buying drugs)
- You have to give the court a reason why these
previous acts are relevant other than character.
- Explain to the court character rule is simply not
implicated because there is a chain of inferences
from the other acts to the charged conduct that
 entirely bypasses the question of defendant’s
character
- (3) Notice in a Criminal Case. In a criminal case, the
prosecutor must:
- (A) provide reasonable notice of any such
evidence that the prosecutor intends to offer at
trial, so that the defendant has a fair opportunity
to meet it;
- (B) articulate in the notice the permitted purpose
for which the prosecutor intends to offer the
evidence and the reasoning that supports the
purpose; and
- (C) do so in writing before trial — or in any
form during trial if the court, for good cause,
excuses lack of pretrial notice.
- Rule 405: Methods of Proving Character
- (a) By Reputation or Opinion. When evidence of a person’s
character or character trait is admissible, it may be proved by
testimony about the person’s reputation or by testimony in
the form of an opinion. On cross-examination of the character
witness, the court may allow an inquiry into relevant specific
instances of the person’s conduct. (see below)
- (b) [Only allowed in cross-examination, see above] By Specific
Instances of Conduct. When a person’s character or character
trait is an essential element of a charge, claim, or defense, the
character or trait may also be proved by relevant specific
instances of the person’s conduct.
- Specific instances only allowed during cross
examination and to challenges the witness’ opinion
about the defendant’s character
- Only used as a method of proof when a character
trait is an essential element of charge, claim, or
defense
- Can use in both civil and criminal cases
- Can use reputation, opinion, and specific acts
- Rule 105, Michelson’s Limiting Instruction, instructing
jury that hearing specific instances during cross
examination about defendant’s character trait is not to be
assumed to have occurred in truth but rather is allowed
only to determine the credibility of the witness
- Opinion: is what the witness actually believes based upon their
relationship with the Defendant?
- Reputation: is what witness has heard about the Defendant in the
relevant community and in the relevant time?
- Both need foundation
- Rule 406: Habit; Routine Practice
- Similar to Character Evidence, which is accepted with
limitations
- Habits lack the generality and moral quality of character
traits
 - Evidence of a person’s habit or an organization’s routine
practice may be admitted to prove that on a particular
occasion the person or organization acted in accordance with
the habit or routine practice. The court may admit this
evidence regardless of whether it is corroborated or whether
there was an eyewitness.
- Ex. for an insurance dispute, person has a habit of
wearing a seatbelt in the car, and so is more likely to
have been wearing it during a car crash
- Examples of habits from case law: always taking
2 steps at a time, not wearing a seatbelt, giving a
hand signal for a left turn, alighting from railway
cars as moving, going to a pub every day after
work
- Examples of non-habits from case law: staying
home to observe the Sabbath
- Factors:
- Specificity (how specific is the action?)
- Repetition (how many times has it happened?)
- Duration (how long as it gone on for?)
- Is it semi-automatic conduct?
- While Habit Evidence may be relevant under Rule 104(a), it may
still be excluded as inadmissible under Rule 403
- Rule 407: Subsequent Remedial Measures
- Heavily Bar-tested
- When measures are taken that would have made an earlier injury
or harm less likely to occur, evidence of the subsequent measures
is not admissible to prove:
- negligence;
- culpable conduct;
- a defect in a product or its design; or
- a need for a warning or instruction.
- But the court may admit this evidence for another purpose,
such as impeachment or—if disputed—proving ownership,
control, or the feasibility of precautionary measures.
- If disputed: the inference is that if the person owned the
property with the pothole, they would have fixed it
- Remedial Measure: making some change after an injury or
incident
- So, impermissible to use subsequent remedial measures to show
that something was wrong in the first place
- If SRM was done before the injury, it is admissible. If
the SRM was done after the injury, it is not admissible.
- Rule 408: Compromise Offers and Negotiations [Conversations, things
that are said, during a settlement, and offers to settle themselves]
- (a) Prohibited Uses. Evidence of the following is not
admissible—on behalf of any party—either to prove or disprove
the validity or amount of a disputed claim or to impeach by a
prior inconsistent statement or a contradiction:
- Key is “a disputed claim.” So statements about
validity/amount of liability/claim that were made
 before the dispute are not excluded and are
admissible. Statements made during the dispute,
however, are excluded and not admissible. A
dispute does not need to be a formal proceeding
to be considered a dispute.
- Just because you learn something during
negotiations does not mean you cannot produce
independent evidence of what you learn (like
documents presented). You just can’t offer what
was said as evidence about what was said.
- (1) furnishing, promising, or offering—or accepting,
promising to accept, or offering to accept—a valuable
consideration in compromising or attempting to
compromise the claim; and
- (2) conduct or a statement made during compromise
negotiations about the claim—except when offered in a
criminal case and when the negotiations related to a
claim by a public office in the exercise of its
regulatory, investigative, or enforcement authority.
- Statements made to government in a civil case
brought by a government agency, when they
bring a dual civil-criminal suit, are admissible
- Only statements, not offers
- (b) Exceptions. The court may admit this evidence for
another purpose, such as proving a witness’s bias or prejudice,
negating a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.
- Can’t use statements or actions during settlement negotiations or
settlements themselves to offer inferences to the jury during a
trial
- Rule 409: Offers to Pay Medical and Similar Expenses
- Evidence of furnishing, promising to pay, or offering to pay
medical, hospital, or similar expenses resulting from an injury is
not admissible to prove liability for the injury
- Not the same as Rule 408, disputes about validity/value
of a claim
- Can’t use to prove liability for injury if in dispute, but
can use for any other relevant issue
- Admissions made with the offer are not excluded, but
only if liability/guilt and validity/value of claim is not
disputed. They are admissible, especially when you can
separate the admission from the offer. (ex. The accident
was my fault. I will pay your medical bills)
- Rule 410: Pleas, Plea Discussions, and Related Statements
- (a) Prohibited Uses. In a civil or criminal case, evidence of the
following is not admissible against the defendant who made
the plea or participated in the plea discussions:
- (1) a guilty plea that was later withdrawn;
- (2) a nolo contendere plea;
- No contest plea in criminal court
 - “I do not wish to contend,” accepts punishment
but does not admit guilt
- (3) a statement made during a proceeding on either of
those pleas under Federal Rule of Criminal Procedure 11
or a comparable state procedure; or
- Can’t use statements made in the process of
reaching (1) or (2)
- A “plea colloquy,” can’t use previous statements
made during plea process if the person later
withdraws the plea or made plea of nolo
contendere
- (4) a statement made during plea discussions with an
attorney for the prosecuting authority if the discussions
did not result in a guilty plea or they resulted in a
later-withdrawn guilty plea.
- (b) Exceptions. The court may admit a statement described in
Rule 410(a)(3) or (4):
- (1) in any proceeding in which another statement made
during the same plea or plea discussions has been
introduced, if in fairness the statements ought to be
considered together; or
- A statement is admissible if another statement
that was made during the same plea/pleading is
admitted
- Introduced meaning admitted, so if defendant
has her statements made during plea process
admitted into trial then prosecutor can have his
related statements admitted “if in fairness” they
“out to be considered together”
- (2) in a criminal proceeding for perjury or false
statement, if the defendant made the statement under
oath, on the record, and with counsel present.
- Rule 11 statement (contra Rule 11 mentioned
above in subsection 3)
- Important point
- Statements made during a criminal investigation are not
admissible in criminal or civil proceedings
- Must be negotiation with attorney, not police
- Doesn’t exclude statements if there’s a broken agreement
(ex. Promise to testify, but doesn’t)
- The rule prohibits statements made by the prosecution
(prosecutors says I know my case is weak)
- Statements can’t be used for impeachment (instead, the
remedy is to indict for perjury)
- All of this could be admissible without this rule if
admitted by the opposing party
- Rule 411: Liability Insurance
- Evidence that a person was or was not insured against
liability is not admissible to prove whether the person acted
negligently or otherwise wrongfully. But the court may admit
this evidence for another purpose, such as proving a
 witness’s bias or prejudice or proving agency, ownership, or
control.
- Inference is that having insurance made a person
careless and negligent and therefore caused, for example,
a car accident. Inference other ways as well, that not
having it made them more careful while driving
- Ex. employee was agent of the company, truck was
owned by the company
- Rule 412: Sex Offense Cases; The Victim’s Sexual Behavior or Sexual
Disposition
- (a) Prohibited Uses. The following evidence is not admissible
in a civil or criminal proceeding involving alleged sexual
misconduct:
- (1) evidence offered to prove that a victim engaged in
other sexual behavior; or
- Victim’s sexual activity is also precluded
- (2) evidence offered to prove a victim’s sexual
predisposition.
- (b) Exceptions.
- (1) Criminal Cases. The court may admit the following
evidence in a criminal case:
- (A) evidence of specific instances of a victim’s
sexual behavior, if offered to prove that
someone other than the defendant was the
source of semen, injury, or other physical
evidence;
- Physical evidence
- No reputation or opinion, only specific
instances
- (B) evidence of specific instances of a victim’s
sexual behavior with respect to the person
accused of the sexual misconduct, if offered
by the defendant to prove consent or if
offered by the prosecutor; and
- Prior sexual relations between victim
and defendant to prove consent
- (C) evidence whose exclusion would violate the
defendant’s constitutional rights.
- Constitutional limits, that prior sexual
acts are so critical to a defendan’t
defense that its exclusion would violate
the defendant’s right to due process,
might be permissible
- (2) Civil Cases. In a civil case, the court may admit evidence
offered to prove a victim’s sexual behavior or sexual
predisposition if its probative value substantially outweighs
the danger of harm to any victim and of unfair prejudice to
any party. The court may admit evidence of a victim’s reputation
only if the victim has placed it in controversy.
- A reverse 403, favors exclusion, need to prove benefit
substantially outweighs costs
 - (c) Procedure to Determine Admissibility.
- Important points
- Eliminates all 404(b) exceptions
- Rule 413, 414, and 415 (Sex Assault Cases)
- 413. Similar Crimes in Sexual Assault Cases
- (a) Permitted Uses. In a criminal case in which a
defendant is accused of a sexual assault, the court
may admit evidence that the defendant committed
any other sexual assault. The evidence may be
considered on any matter to which it is relevant.
- Can use past sexual assault for propensity
purposes, need not be a conviction
- Method of proof: reputation, opinion, and
specific acts (need not be convictions)
- (b) [Notice provision]
- (c) [Does not limit any other rule]
- (d) Definition of “Sexual Assault.” In this rule and Rule
415, “sexual assault” means a crime under federal law or
under state law (as “state” is defined in 18 U.S.C. § 513)
involving:
- (1) any conduct prohibited by 18 U.S.C. chapter
109A;
- (2) contact, without consent, between any part of
the defendant’s body — or an object — and
another person’s genitals or anus;
- (3) contact, without consent, between the
defendant’s genitals or anus and any part of
another person’s body;
- (4) deriving sexual pleasure or gratification from
inflicting death, bodily injury, or physical pain
on another person; or
- (5) an attempt or conspiracy to engage in
conduct described in subparagraphs (1)–(4).
- 414. Similar Crimes in Child Molestation Cases
- (a) Permitted Uses. In a criminal case in which a
defendant is accused of child molestation, the court
may admit evidence that the defendant committed
any other child molestation. The evidence may be
considered on any matter to which it is relevant.
- Can use past child molestation for propensity
purposes, need not be a conviction
- Method of proof: reputation, opinion, and
specific acts (need not be convictions)
- (b) [Notice provision]
- (c) [Does not limit any other rule]
- (d) Definition of “Child” and “Child Molestation.” In
this rule and Rule 415:
- (1) “child” means a person below the age of 14;
and
 - (2) “child molestation” means a crime under
federal law or under state law (as “state” is
defined in 18 U.S.C. § 513) involving:
- (A) any conduct prohibited by 18 U.S.C.
chapter 109A and committed with a
child;
- (B) any conduct prohibited by 18 U.S.C.
chapter 110;
- (C) contact between any part of the
defendant’s body — or an object — and
a child’s genitals or anus;
- (D) contact between the defendant’s
genitals or anus and any part of a child’s
body;
- (E) deriving sexual pleasure or
gratification from inflicting death,
bodily injury, or physical pain on a
child; or
- (F) an attempt or conspiracy to engage
in conduct described in subparagraphs
(A)–(E).
- 415. Similar Acts in Civil Cases Involving Sexual Assault or
Child Molestation
- (a) Permitted Uses. In a civil case involving a claim for
relief based on a party’s alleged sexual assault or child
molestation, the court may admit evidence that the
party committed any other sexual assault or child
molestation. The evidence may be considered as
provided in Rules 413 and 414.
- Method of proof: reputation, opinion, and
specific acts (need not be convictions)
- (b) [Notice provision]
- (c) [Does not limit any other rule]
- Rules Governing Witnesses
- Competency of Witnesses
- Ex. age or mental disability
- The mental capacity of the witness to observe, recall, and relate what
they have seen
- The moral capacity of the witness to recognize the obligation to testify
truthfully
- Rule 601: General Competency
- Every person is competent to be a witness unless these rules
provide otherwise. But in a civil case, state law governs the
witness’s competency regarding a claim or defense for which
state law supplies the rule of decision.
- Rule 602: Personal Knowledge
- A witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal
knowledge may consist of the witness’s own testimony. This
 rule does not apply to a witness’s expert testimony under Rule
703.
- Standard: prima facie (sufficient evidence, not preponderance)
- Test:
- Did the witness observe?
- Can they recall the information?
- Can they relate it to the trier of fact?
- How can they testify? What form of testimony?
- Preference for raw factual descriptions
- Primary sensory impressions (saw, heard, taste, smell)
are preferred to opinions or conclusions or inferences
- Examination of Witnesses
- Leading questions only permitted during cross examination
- Types of Witnesses
- Lay Witness
- Must be based on personal observation (“firsthand knowledge”
rule)
- Better the lay witness testifies in primary sensory impressions
rather than provide opinions, inferences, or conclusions
- Rule 701: Lay Opinion Testimony
- Rationally based on the perception of the witness
- Rule 602 standard of firsthand knowledge
- Fact or opinion?
- Not guessing or speculating
- Helpful to the jury’s understanding of what the witness is
describing
- What is helpful to jury:
- The witness is in a better position than
the trier of fact to form the opinion or to
draw the inference.
- A bald rendition of the facts is
insufficient to convey a complete
understanding to the jury.
- The opinion or inference will enhance
the jury’s understanding of the
underlying facts.
- The witness has specialized information
that the trier of fact does not have.
- What is not helpful to the jury:
- The evidence is clear and the trier of
fact is perfectly capable of perceiving,
understanding, and interpreting it.
- Testimony relates to the credibility of a
witness.
- Testimony is mere speculation.
- Testimony is opinion or inference of the
law.
- Not based on scientific, technical, or other specialized
knowledge (i.e., not expert testimony)
- Expert Witness (NOT TESTED)
- Common law permits expert to testify in the form of an opinion
about a subject matter (“In my opinion…”)
- Frye
- Is it reliable?
- Is this type of expertise “generally accepted in
the scientific community”?
- Replaced by Daubert below
- Daubert
- The Court, in Daubert v. Merrell Dow Pharmaceuticals
Inc., 509 U.S. 579 (1993), ruled that the 1923 Frye test
was superseded by the 1975 Federal Rules of Evidence,
specifically Rule 702 governing expert testimony.
- Rule 702 originally stated (in its entirety),
- If scientific, technical, or other
specialized knowledge will assist the
trier of fact to understand the
evidence or determine a fact in issue,
a witness qualified as an expert by
knowledge, skill, experience, training,
or education, may testify thereto in the
form of an opinion or otherwise
- If specialized knowledge is required in
a trial, an expert witness may be
called, if…
- Federal Rule of Evidence Rule 702 established
new (“Daubert”) standard for admissibility of
expert testimony based on:
- Reliability, and
- Is the reasoning or methodology
underlying the proffered expert
testimony scientifically valid?
- Based on sufficient facts or data,
product of reliable principles,
and methods
- Factors: Can the theory or
technique be tested? Has it been
tested? Has it been subject to
peer review? Maintenance
standards? What is the known or
potential error rate? Is it
generally accepted?…many
others
- Relevance
- Can the reasoning or
methodology be properly
applied to the facts of the case?
- Witness reliably applied
principles and methods to the
facts of the case
 - Did the expert testimony assist
the trier of fact? Was it
necessary?
- Judge is the gatekeeper who decides
- Qualifications, reliability,
relevance (assist trier and
sufficient tied to facts of case)
- Rule 104(a): Trial judge must
make these determinations as a
preliminary matter prior to
admission of the evidence
before trier of fact.
- Questions
- Who is an expert?
- When can an expert testify?
- What can an expert use to base their
opinion on?
- FRE 703: Sources of Expert’s
Knowledge (what can be the
basis for opinion):
- 1. expert’s personal knowledge,
- 2. admitted evidence, or
- 3. inadmissible evidence
(information that the expert
considers to come to a
conclusion will be used at trial,
but which will not be allowed to
be admitted in trial, allowed
under certain circumstances), if
reasonable relied upon by others
in that field to come to such
conclusions/opinions (if their
probative value in helping the
jury substantially outweighs the
prejudicial effect, reverse 403)
- Are there any limitations?
- FRE 704(a) Opinion on
Ultimate Issue
- (a) In General — Not
Automatically Objectionable.
An opinion is not objectionable
just because it embraces an
ultimate issue.
- (b) Exception. In a criminal
case, an expert witness must not
state an opinion about whether
the defendant did or did not
have a mental state or condition
that constitutes an element of
the crime charged or of a
 defense. Those matters are for
the trier of fact alone.
- Ex. “he had the intent to kill” in
a homicide case
- Other limits:
- Expert can’t testify about:
- credibility of witnesses (civil or
criminal);
- negligence of a party in tort
cases (civil);
- state of mind of party (criminal
and sometimes civil);
- intent of party (criminal and
sometimes civil cases);
- what a reasonable person would
foresee in the
- circumstances of the case
(civil).
- What is the proper subject of expert
opinion?
- FRE 705. Disclosure of Facts
or Data Underlying Expert
Opinion. Unless the court
orders otherwise, an expert may
state an opinion — and give the
reasons for it — without first
testifying to the underlying facts
or data. But the expert may be
required to disclose those facts
or data on cross-examination.
- The Daubert Court ruled that nothing in the Federal
Rules of Evidence "gives any indication that 'general
acceptance' is a necessary precondition to the
admissibility of scientific evidence.
- The rigid standard of Frye would be at odds
with the general thrust of the FRE, which
favors admissibility, so Daubert broadened
the standard to allow more expert testimony
- Credibility
- Ex. eyesight, unconscious bias, inadequate opportunity to observe
- Three stages: bolstering, impeachment, and rehabilitation
- Give lines of attack to impeach a witness’ credibility: bias,
untruthful character, sensory or mental defect, prior inconsistent
statements (self-contradiction), and specific contradiction
- Substitutes for Evidence
- Obligation to produce evidence is excused in two circumstances: the judge takes
notice of an indisputable fact, or the parties stipulate/agree to a fact
- Federal Rules of Evidence
- Amendment of the Rules
 - Two ways to amend the Rules: an act of Congress or the Supreme Court uses its
statutory rulemaking authority (subject to congressional revision)
- State Adoption of the Federal Rules
- The Federal Rules are not binding on State Courts. Even if a State has identical rules, the
Courts are not required to interpret them the same way federal Courts interpret the
identical rule
- Interpreting the Federal Rules: The “Plain Meaning” Doctrine
- Themes in Federal Rules
- The Rules are biased in favor of admissibility
- There is judicial discretion in evidentiary disputes
- Bench Trials
- The Rules apply in bench trials in addition to jury trials
- Key Points
- Rules Governing the Substantive Content of Evidence
- Relevance Rules
- FRE 401: “relevant evidence” means “(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.”
- (a) logical relevance, (b) materiality
- Character evidence
- Other-acts evidence
- Habit evidence
- Insurance evidence
- Competence Rules
- Rules Based on Reliability Concerns
- Hearsay rule
- “Best evidence” rule
- Rules Based on External Policies
- Privileges
- Federal Standards, Article 5 (Standards 501-513)
- Draft rules, not adopted by Congress
- But, has become basis for federal common law
of privileges (with important exceptions)
- FRE 501
- Federal privileges shall be governed by
principles of federal common law
interpreted in “the light of reason and
experience” (except as otherwise
required by the Constitution, federal
law, etc.)
- Sources: 5th amendment right
against self-incrimination,
federal statutes, federal common
law, state statutes, state common
law
- However, state law will govern in cases
in which state law is the matter at hand
- Questions to ask:
- Has the jurisdiction recognized this
privilege?
 - Is it recognized by statute or common
law?
- What communications or actions are
covered by the privilege?
- It may apply to more than one person,
but who is the “holder” of the
privilege?
- What and who can waive the
privilege?
- Disclosure of communication
by client or by attorney on
client’s behalf (if the disclosure
is voluntary) (Most times,
cannot give consent to disclose
information, then later change
mind and rescind consent (what
matters is what the intent was
when the communication was
made)
- If an attorney’s competence or
conduct is attacked—usually
by filing a malpractice suit by a
client, but also in criminal
prosecution for aiding and
abetting the client—then the
attorney is permitted to disclose
communications in order to
defend herself
- Future crime-fraud exception:
no privilege if the attorney’s
services were obtained to
further a crime or a fraud
- More waivers: third party
presence (no privilege for
eavesdroppers, usually not for
people assisting lawyers, and
not for experts retained for
testifying (however, majority
says consulting experts that will
not testify are privileged, since
considered part of legal team
preparing for trial)
- Attorney-Client (Standard 503)
- Elements
- Confidential communication
- Between privileged parties (attorney
and client, and others (see section (b))
- To facilitate the rendition of
professional legal services
- Even if the attorney does accept
the case
 - Why? Prevent prejudice and bias in the
fact-finder from privileged and
potentially incriminating information
- What if a corporation is a client?
- Upjohn factors:
- Communications were made by
employees to the corporation’s
attorney
- At the direction of corporate
superiors
- For the purpose of obtaining
legal advice
- Regarding matters within the
employee’s duties
- The employee knee the
communications were for legal
purposes
- Communications were
considered “highly confidential”
- Rule 502: Limitations on Waiver for Privilege
and Work Product
- Disclosures in federal proceedings:
- Involuntary disclosures will not
waive privilege for related
undisclosed communications
(no subject matter waivers,
waiving privilege for one
document does not mean waive
privilege for all related
documents))
- Inadvertent disclosures will not
waive privilege for those
disclosed communications
- Disclosures in state proceedings
- Not waived in future federal
proceeding
- Standard 512: Disclosed Under Compulsion
- No waiver if disclosure was
- Compelled erroneously, or
- Made without opportunity to
claim privilege
- MRPC Rule 1.6. Confidentiality Of Information
Client-Lawyer Relationship
- (a) A lawyer shall not reveal
information relating to the
representation of a client unless the
client gives informed consent, the
disclosure is impliedly authorized in
order to carry out the representation or
the disclosure is permitted by paragraph
(b).
 - MRPC Rule 1.6 Confidentiality Of Information
Distinguishing MRPC 1.6 and Attorney-Client
Privilege:
- 1.6 – confidentiality kept at all times
- A/C – limited to legal proceedings
- 1.6 – applies to anything learned about a
case
- A/C – only applies to communications
between lawyer and client
- FRCP 26(b)(3) (Work Product Doctrine)
- “A party may obtain discovery of
documents and tangible things otherwise
discoverable . . .and prepared in
anticipation of litigation. . . ONLY
UPON A SHOWING that the party
seeking discovery has substantial need
of the materials ... and that the party is
unable without undue hardship to obtain
the substantial equivalent of the
materials by other means.”
- EXCEPT…
- “In ordering discovery of such materials
. . . the court shall protect against
disclosure of the mental impressions,
conclusions, opinions or legal theories
of an attorney or other representative of
a party concerning the litigation.”
- Marital
- Marital Communications
- Provided by federal common law, not
Standards
- Privilege related to confidential
marital communications
- Standard is intent for statements
to be confidential
- In both civil and criminal cases
- Applies only to communications made
during the course of the marriage
(separated couples sometimes not
covered, divorced couples not covered),
and those communications remain
privileged forever even after divorce
- Exceptions
- Legal proceeding between
spouses
- Prosecutions for crimes against
spouse or children
- On-going criminal activity
(Joint Participant exception),
may be limited by the
jurisdiction
 - Marital Testimonial
- Privilege against adversarial marital
testimony (when can someone prevent
their spouse from testifying against them
and when can a spouse avoid testifying
against their spouse?) only during the
course of the marriage
- Standard 505:
- Only in criminal cases
- Can be claimed by either the
accused or the accused’s spouse
(changed by Trammel below)
- Exceptions: crime against
spouse or child or property,
matters occurring before
marriage (sometimes),
proceedings involving
prostitution
- Trammel Standard v. Standard 505
- Trammel: does not apply
Standard 505, holding that only
the testifying spouse holds the
privilege not to testify. The
accused cannot prevent the
spouse from testifying, does
not address communications
privilege, and only applies in
criminal cases
- Exceptions: legal proceeding
between spouses, prosecutions
from crimes against spouse or
children, statements made
during “on-going criminal
activity” (Joint Participant
exception, jurisdictions may
limit), matters occurring before
marriage (some courts)
- Psychotherapist-Patient and Doctor-Patient
- Standard 504. Psychotherapist-Patient
- Patient holds the privilege
- Confidential communications
- For the purposes of diagnosis or
treatment of mental or emotional
condition
- Exceptions
- Proceedings for hospitalization
- Examination by order of judge
(information from that can be
used in court)
 - Condition an Element of Claim
or Defense—includes claim for
emotional distress
- Doctor-Patient
- No privilege at federal level
- Most states have one, but very weak
(many exceptions and waivers)
- Can still be protected under
other laws, like privacy and
HIPAA
- Can sometimes be extended to nurses
- Clergy-Penitent
- Standard 506:
- Confidential communication
- To clergyman “in his professional
character as spiritual advisor”
- Recognized by federal and state courts
- Other Privileges
- Standard 507: Political Vote
- 508: Trade Secrets
- 509: Secrets of State and Other Official
Information
- 510: Identity of Informer
- Location of Surveillance
- Parent-Child: Not recognized by federal courts,
but recognized by some States
- Journalist Privilege: usually limited to identity
of source
- Quasi privileges
- Subsequent remedial measures
- Offers of compromise
- Payment of medical expenses
- Hearsay (Article VIII)
- Rule 801(a)-(c). Definition
- (a) Statement. “Statement” means a person’s oral assertion,
written assertion, or nonverbal conduct, if the person intended it
as an assertion.
- Oral or written assertion, or
- Does not include reflexive verbal behavior.
Sometimes does not include questions
- Nonverbal conduct if the person intended it as an
assertion
- Test is intent, did they intend to communicate
something with others/the outside world? If not,
not hearsay
- Does not include reflexive behavior or external
characteristics that are observed (like sweating
or shaking)
- Burden is preponderance ( Rule 104) and usually on the
movant seeking to exclude
- (b) Declarant. “Declarant” means the person who made the
statement.
- (c) “Hearsay” means a statement that:
- (1) the declarant does not make while testifying at the
current trial or hearing; and
- (2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
- Sources of testimonial unreliability: perception, memory,
narration (misstatement/ambiguity), sincerity
(distortion/lack of candor/deception)
- Working definition
- A “statement”
- Made out of court
- During the trial itself, not
pre-proceedings like affidavits
- Oral or written
- Offered to prove the truth of the matter asserted
- A statement is not hearsay when it is
offered for any purpose other than the
truth like:
- impeachment,
- legal significance/verbal acts
(the words spoken or written
have legal significance, they are
elements of the crime even
though the truth of the
statements are disputed (that
will depend on other rules like
admissibility). The relevance of
these statements is derived from
the very fact that they were
spoke, not from the truth of the
words themselves. Example:.
Offer/acceptance in a contract,
perjured testimony, offering to
sell contraband, demanding
ransom, blackmail, slander/libel,
firing someone)
- effect on the listener or reader
(an out of court statement used
to show why a listener acted in a
certain way, used to explain the
statement’s effect on someone
who heard it or read it. The
motive must be relevant (like to
prove reasonableness, notice,
good or bad faith, or explain
behavior). Example: Testimony
that A told B she wanted to
divorce him. Not hearsay if used
to prove B had motive. Hearsay
 if used to prove A wanted a
divorce.)
- circumstantial evidence about
the state of mind/belief (an out
of court statement that declarant
made, from which the jury
could infer the declarant’s state
of mind. The state of mind must
be relevant. Difference between
state of mind and effect on
listener: if it is the speaker’s
state of mind you are trying to
prove by the spoken words
(circumstantial evidence), it it si
the listener’s state of mind or
why he did something you are
trying to prove by the spoken
words (effect on listener))
- Also, when used to prove
personal knowledge
(circumstantial evidence to
prove knowledge about things
such as location or events
through description of scenes
that only he or she would know)
- An out of court statement is hearsay if
it is offered in evidence to prove that the
words inside the quotation marks are
true
- If the relevance of a statement
depends on it being true
- However, If the relevance of an
out of court statement is the fact
that the statement was made,
rather than the truth of the
assertion contained therein, the
statement is not hearsay
- Two steps
- Ask yourself what is the
relevance of the out of court
statement?
- Is it still relevant if the content
of the statement is false?
- Rule 801(d). Definitional Exclusions
- Statements That Are Not Hearsay. A statement that meets
the following conditions is not hearsay:
- (1) A Declarant-Witness’s Prior Statement. The declarant
testifies and is subject to cross-examination about a prior
statement, and the statement:
- (A) [Prior Inconsistent Statements] is inconsistent
with the declarant’s testimony and was given under
 penalty of perjury at a trial, hearing, or other proceeding
or in a deposition;
- Declarant testifies at the trial or hearing;
- Is subject to cross examination concerning the
statement;
- the prior statement is inconsistent with the
declarant's testimony;
- It was given under oath subject to the penalty of
perjury;
- at a trial, hearing, or other proceeding, or in a
deposition
- (B) [Prior Consistent Statement] is consistent with the
declarant’s testimony and is offered:
- (i) to rebut an express or implied charge that the
declarant recently fabricated it or acted from a
recent improper influence or motive in so
testifying; or
- (ii) to rehabilitate the declarant's credibility as a
witness when attacked on another ground; or
- Elements:
- witness must be cross-examinable at
trial concerning the prior statement, and
- statement must be “consistent” with his
present testimony, and
- must be offered to rebut a charge of
“recent fabrication or improper
influence or motive”, or
- To rehabilitate if attacked on another
ground
- Factual Timing for Prior Consistent Statements:
- For prior consistent statements to be
allowed for any purpose (impeachment
or substantive), they must occur before
the motive to fabricate:
- Prior statement is made
- Accusation of recent fabrication
or improper influence or motive
occurs
- Trial testimony that is consistent
with prior statement
- Ex: Typical Timing – Use of Prior Consistent
Statements:
- A witness (Marlow) testifies on behalf
of Easterfield.
- While cross-examining Marlow or
through offering extrinsic evidence
(other testimony), MacIntyre charges or
implies that Marlow has been influenced
by an external event, condition or person
to give false or incorrect testimony (e.g.,
threatened with loss of job).
 - Easterfield offers evidence (either
through Marlow or extrinsic evidence,
usually a witness to whom Marlow
made the consistent statement) that
Marlow made a consistent statement at a
time before the influence of the external
event, condition or person existed.
- Example of Motive Before Consistent
Statements:
- Tome
- Child testifies about alleged abuse.
- In cross-exam of child, Defendant
implies that his former wife convinced
the daughter to make up the sexual
abuse stories as a way to gain custody of
her.
- To rehabilitate, Prosecution offered
testimony from witnesses about child’s
prior statements regarding abuse.
- Timing (as interpreted by Court)
- Child wants to live with mother –
allegedly makes up story about abuse.
- Child tells 6 other people about abuse.
- Child testifies about abuse.
- Witnesses testify about prior consistent
statements.
- According to the Court, this is improper
use of prior statements because they
occurred after her motive to lie arose.
The statements did nothing to rebut
Defendant’s claim that his daughter’s
courtroom testimony was motivated by
her desire to live with mother.
- How can consistent statements made after
motive to fabricate be used?
- Majority View: Can be used to
rehabilitate witness but not as
substantive evidence
- (C) [Prior Statements of Identification] identifies a
person as someone the declarant perceived earlier.
- Elements
- Declarant testifies at trial and is subject
to cross examination concerning the
statement
- The statement is one of identification of
a person
- Statement is made after perceiving the
person
- (2) An Opposing Party’s Statement. The statement is offered
against an opposing party and:
- Four principles to keep in mind:
 - A party cannot offer the party’s own out-of-court
statement into evidence under this rule.
- Any statement can qualify as a party statement,
regardless of whether or not it confesses
wrongdoing or was in any way against the
party’s interests at the time it was made.
- A party’s out-of-court statement can qualify as a
party statement regardless of when it was made.
- Firsthand knowledge and opinion rule (701) do
not apply.
- (A) was made by the party in an individual or
representative capacity;
- (B) is one the party manifested that it adopted or
believed to be true;
- (C) was made by a person whom the party authorized to
make a statement on the subject;
- (D) was made by the party’s agent or employee on a
matter within the scope of that relationship and while it
existed; or
- Elements:
- The statement is offered against the
party;
- The declarant was the adversary’s
“agent or employee”;
- The statement concerns “a matter within
the scope of the agency or
employment”; and
- The statement was “made during the
existence of the relationship.”
- Two Issues
- Within the scope of employment
- During existence of the employment
relationship
- (E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.
- Elements
- The statement is offered against a party
- That party and the declarant were in a
conspiracy
- The statement was made during the
existence of the conspiracy
- The statement was made in furtherance
of the conspiracy
- Bootstrapping the Rule
- The statement must be considered but
does not by itself establish the
declarant’s authority under (C); the
existence or scope of the relationship
under (D); or the existence of the
conspiracy or participation in it under
(E).
 - In other words: Bootstrapping problem
(using the contents of the statement to
try to prove authority, agency
relationship, or conspiracy relationship
for admissibility of the statement)
- Two Issues
- The declarant does not need personal
knowledge of what they are talking
about.
- The non-opinion rule (701) does not
apply to 801(d)(2)
- Rule 803. Hearsay Exceptions (Unrestricted exceptions–availability of
declarant immaterial)
- Rule 612
- Permits a witness to use a writing “to refresh memory”
while testifying
- Rule 803 “proceeds upon the theory that under appropriate
circumstances a hearsay statement may possess circumstantial
guarantees of trustworthiness sufficient to justify nonproduction
of the declarant…even though he may be unavailable.”
- (1) Present Sense Impression
- Elements
- Statement must be contemporaneous with the
event or condition;
- Limit is usually around 5 minutes
- Speaker must have perceived the event or
condition (personal knowledge); and
- Statement must describe or explain the event or
condition.

-
- (2) Excited Utterance
- Elements
- an external stimulus that is startling;
- a statement that relates to the stimulus;
- made while under the stress of the startling
event.
 -
- (3) [State of Mind Rule] Then-existing Mental, Emotional, or
Physical Condition
- Then existing mental, emotional, or physical condition
- A statement of the declarant’s then-existing state of mind
(such as motive, intent, or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain, or
bodily health), but not including a statement of memory
or belief to prove the fact remembered or believed unless
it relates to the validity or terms of the declarant’s will.
- What is admissible?
- Admissible: A statement of the declarant’s
then-existing state of mind (such as motive,
intent, or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain,
or bodily health)
- Not Admissible: BUT NOT including a
statement of memory or belief to prove the fact
remembered or believed
- Admissible: UNLESS it relates to the validity or
terms of the declarant’s will.
- State of Mind
- Statements of current state of mind offered to
prove the state of mind.
- Circumstantial Evidence of State of
Mind for Truth
- “He is the worst person in the
world” Not offered to prove the
truth, not used to prove he is the
worst
- “I will kill him” offered to prove
the truth, that they had motive
and intent
- Statement of physical/emotional condition.
- Statement of intent, motive, or plan
 - Statements of present state of mind to prove
future conduct. (allowed—Hillmon)
- Forward-looking statements
- Ex: Statement from someone that they
intended to do something in the future,
like: “On march 5th, I will leave this
town and go to this other town”
- Statements reflecting beliefs about past events.
(Not allowed—Shepard)
- Backward-looking statements
- Can’t be used under this
exception, can be used for other
exceptions
- “A declaration of memory, pointing
backwards” (Shephard), can’t use to
prove past events, but can be used to
prove future conduct
- Can’t use the declarant’s
memory of the event, act, or
condition, to prove that point
- Ex: Using a person who died’s statement
“He poisoned me!” offered to prove that
the man did not commit suicide and had
the intent to live
- Ex: declarant says “Billy just shot
Bobby.” what they are really saying is “I
believe that Billy shot Bobby”
- Limits of Hillmon
- Mary says, “I intend to go to a
baseball game.” It can be
offered to prove that Mary went
to a baseball game
- However, if Mary says, “I
intend to go to the baseball
game with Bob,” to prove that
Bob went to the baseball game,
then the Courts might allow it
with some additional
corroboration
- 4) Statements for Purposes of Medical Diagnosis or
Treatment
- Statements made
- For purposes of medical diagnosis or treatment;
and
- Describing medical history, or past or present
symptoms, pain, or sensations, or the inception
or general character of the cause of external
source thereof;
- “If only I stopped at the stop sign” said
to a nurse after a car crash could not be
used
 - Insofar as reasonably pertinent to diagnosis or
treatment
- (5) Recorded Recollection
- Elements
- The witness lacks present recollection of the
matter,
- The statement accurately reflects knowledge he
once had,
- He “made” or “adopted” the statement, and
- He did so while the matter was “fresh” in his
mind.
- If it is admitted, it will only be read to the jury. The
statement-for-recollection will not be admitted into
evidence. It may be admitted as an exhibit only if by the
adverse party.
- (6) Business Records
- Record of an act, event, condition, or diagnosis,
- Record was made at the or near the time of (act, event,
condition, diagnosis),
- Record was made by someone with personal knowledge
or transmitted by someone with personal knowledge
(they must have business duty to transmit information)
- Record was kept in the regular course of business
activities
- It was prepared in the regular practice of business
- Extra:
- Need a qualified witness to establish the factors
- Other side can show a lack of trustworthiness
(ex. The creator of the document had a bias in
the case, something that casts doubt on the
document)
- (8) Public Records
- Three Types of Public (Government) Records
- Records of the activities of the public office or
agency (EPA, DMV, etc.)
- Matters observed pursuant to a legal duty to
report (look at book, weather bureau)
- Cannot be used:
- In a criminal case, a matter
observed by law enforcement
personnel (police)
- Not clearly in the rule, but some
courts allow defense
- Investigative reports—”factual findings” (FDA,
NTSB)---legally authorized investigation
- Cannot be used:
- In a criminal case, unless used
“against the government”
- Limitation
 - May be excluded if “sources of information or
other circumstances indicate lack of
trustworthiness”
- (18) Learned Treatises
- Can be used for impeachment and substantively
- Can be used substantively if:
- An expert is on the stand; and
- Either (1) direct examination (expert says that
they relied upon the treatise) or (2) cross
examination (the treatise is called to the
attention of an expert witness); and
- It is established as a reliable authority by
- The testimony or admission of the
witness, or
- By other expert testimony, or
- By judicial notice
- If admitted, the statements may be read into evidence but
not admitted as an exhibit of evidence
- (21) Reputation as to Character
- Reputation of a person’s character among associates or
in the community
- (22) Judgment of Previous Criminal Convictions
- Must be a relevant crime to the case
- What type of facts?
- Any fact that was essential to sustain the
judgment in previous case (must be an essential
element of the case)
- What type of conviction can be used?
- The judgment was entered after a trial or guilty
plea (but not a plea of nolo contendere)
- The conviction was for a crime punishable by
death or imprisonment in excess of one year
- The pendency of an appeal may be shown but does not
affect admissibility
- Limitation
- If used in a criminal prosecution
- Judgments against persons other than
the accused cannot be used. Must be a
judgment against the statement
- Rule 804. Hearsay Exceptions (declarant unavailable)
- (a) Declarant must be unavailable AND (b) below (NEED
BOTH)
- (1) claim of privilege
- (2) Refusal to testify
- Usually after told to do so
- (3) Lack of memory
- Witness can be unavailable for lack of memory
for some topics but not others
- (4) Death, illness, infirmity
- (5) Unable to procure witness
 - Beyond the subpoena power or location is
unknown
- Usually need to try to depose witness if using
(b)(2), (3), or (4)
- When do you need to attempt to depose
a declarant?
- If using Former Testimony (1)
or Forfeiture by Wrongdoing
(6): you only need to show that
you cannot get the witness to
court.
- If using Dying Declaration (2),
Statement Against Interest (3),
or Statement of Personal or
Family History (4): most courts
will also require you to attempt
to depose the declarant.
- Exception
- When unavailability is due to the procurement or
the wrongdoing of the proponent of statement
- Cannot use this Rule if you caused the witness to
not show up to testify
- (b) List of Hearsay Exceptions
- (1) Former Testimony
- Witness must be unavailable
- Declaration must be testimony given in another
hearing or in a deposition
- Same motive and opportunity for witness
examination
- By the opposing party (in a criminal or
civil case); OR
- A “predecessor in interest” (in a civil
case) to the current opposing party
- Some legal relationship, like a
former co-defendant
- Procedure
- Identify who the former
testimony is being used against
in the current case. Then,
- If criminal (more strict): (1) the
same party against whom it is
being used must have had
similar motive to develop
testimony (cross examine) in the
previous trial, and (2) the same
party against whom it is being
used had an opportunity to
develop testimony (cross
examine) at the previous trial
- If civil case (more relaxed): (1)
the same party or
 predecessor-in-interest against
whom it is being used must
have had similar motive to
develop that testimony, or (2)
the person against whom the
testimony is being used does not
need to have been a party in the
previous case. They can be a
predecessor-interest
- With a “similar motive” to develop testimony
- (2) Dying Declaration
- Declarant must be unavailable
- Declarant must have expected to die soon after
making the statement
- Does not need to actually have died
- Based on the circumstances, fact-based
analysis, must be reasonable
- Must be based on personal knowledge of the
declarant
- Must concern the “cause or circumstances” of
impending death
- “He shot me!” would qualify
- “He shot me! I’m sorry for cheating on
my taxes ten years ago” The first would
qualify, the second would not
- Only in homicide and civil cases (so not in
attempted homicide cases)
- (3) Statement Against Interest
- Declarant must be unavailable
- Statement
- Only the individual self-exculpatory
statements are admissible, not additional
statements surrounding it
- Against
- When made, the statement must be “so
far contrary” to declarant’s interest that
a reasonable person in declarant's
position would not have made the
statement unless they believed it to be
true
- Must be against interest when made
- Interest
- The only interests that count are
pecuniary or penal interests (“pecuniary
or proprietary…Subject declarant to
civil or criminal liability, or to render
invalid a claim by the declarant against
another”)
- Can only be against their interests, need
not create possibility of civil or criminal
liability
 - Criminal Case Exception (if the
statement-of-interest could result in a criminal
case against the declarant)
- Most common: a statement tending to
expose the declarant to criminal liability
AND offered to exculpate the accused is
NOT admissible UNLESS corroborating
circumstances clearly indicate the
trustworthiness of the statement (104(a)
question)
- (6) Forfeiture by Wrongdoing
- If you caused the unavailability, then the other
side can clear the hearsay rule without having to
meet the elements of any exception
- This is different under 804(a) which says that
you cannot benefit from using the rule if you
caused the unavailability of the defendant
- Rule 805: Hearsay Within Hearsay and Impeaching the Hearsay
Declarant
- Hearsay within hearsay is not excluded by the rule against
hearsay if each part of the combined statements conforms with
an exception to the rule
- Can use different rules for each piece to get the entire
statement admitted
- Hard to prove, rarely succeeds
- Rule 806. Attacking and Supporting Credibility of the Declarant (NOT
TESTED)
- The credibility of the declarant may be attacked. If the credibility
of the declarant is attacked, then the other party may try to
support/bolster the declarant’s credibility:
- By any evidence which would be admissible for those
purposes if declarant had testified as a witness (can
attack like any other witness, like convictions; courts are
split on extrinsic evidence of specific acts of untruthful
character, though they generally allow it)
- Do not need to give the declarant the opportunity to deny
or explain the statement (can admit prior inconsistent
statement)
- If the party against whom a hearsay statement has been
admitted calls the declarant as a witness, the party is
entitled to examine the declarant on the statement as if
under cross-examination (do not need to direct)
- Look to Impeachment Rules also
- Rule 807. [“Catch All”] Residual Exception (NOT TESTED)
- Substantive elements
- Applies to a statement not admissible under Rule 803 or
804, but which has sufficient guarantees of
trustworthiness
- Corroboration helps, but is not necessary
- Argue trustworthiness by trying to use
the circumstantial guarantees of Rule
 803/804 but in a less immediate way,
like almost excited utterance but not
quite sufficient to be an excited
utterance
- Near miss now ok to consider (like dying
declaration in attempted homicide cases, which
would usually be excluded)
- Is more probative about the point for which it is offered
than any other evidence
- Procedural Requirements
- Timely notice in writing
- Providing substance of statement to opponent
- Confrontation Clause (constitutional concerns about hearsay in criminal
cases given the Sixth Amendment right to confront witness testifying
against them)
- This is in addition to the above hearsay rules
- Sixth Amendment
- “In all criminal prosecutions, the accused shall enjoy the
right . . . To be confronted with the witnesses against
him . . . .”
- 3 things that it guarantees
- Defendant has the right to be present at his trial
- Right to have face-to-face confrontation with
witnesses
- Right to cross examination
- Does that mean any hearsay admitted without the ability
to cross violate the confrontation clause? - No
- Crawford (common law interpretation)
- The Rule: Out-of-court testimonial statements by
declarations are not admissible against criminal
defendants UNLESS
- Defendant has an opportunity to cross examine
the declarant at trial, OR
- The declarant is unavailable AND the defendant
had a prior opportunity to cross-examine the
declarant
- But this does not create an exception to Rule
803(8) Public Records
- Most important question: What does testimonial mean?
- The Court in Crawford didn’t define it
- Later Courts defined it
- Does not mean “testifying or
testimony,” rather statements taken with
and eye towards criminal prosecution
- When it was made, the declarant
was thinking it would help catch
and punish the criminal
- Ex. statements requesting
medical help after a murder not
included, but identifying
statements yes
 - Ex. call to a 911 operator (in
Davis, is non-testimonial, can
use in case, 911 calls are
requests for emergencies,
statements made in furtherance
of an immediate and ongoing
emergency), talking to police at
scene of crime after a crime was
committed (in Hammon,
testimonial, cannot use, unless
exceptions, building a case
toward trial, not a quick
judgment in an emergency),
written report from a police
analyst concluding a white
powder found in the possession
of the defendant was cocaine (in
Melendez-Diaz, is testimonial,
so not allowed, unless
exceptions, cannot repeat what
another analyst said)
- What is testimonial? (statements
to police investigators,
preliminary hearings, grand
jury, former trials)
- What is nontestimonial?
(business records, casual
remarks to acquaintances,
co-conspirator statements,
excited utterances, medical
diagnosis, declaration against
penal interests not made to the
police, dying declaration) Also,
made in furtherance of an
immediate and ongoing
emergency
- The primary purpose for gathering the
statement
- How to resolve the Confrontation Clause issue for
hearsay?
- Even if statement is testimonial, no violation of
Confrontation Clause if:
- Declaration is there to testify, or
- Declarant is unavailable and defendant
had prior opportunity cross examine
- If not offering for the truth
- Civil case (applies only in criminal
cases)
- “Best Evidence” Rule: 3 Evidentiary Concerns for Documents
- Real evidence v. Demonstrative evidence
 - If demonstrative, is it a “fair, accurate, and good” representation
of x?
- Will the exhibit assist your testimony?
- Authentication
- Is it what it purports to be? (also required for real evidence)
- Authentication is something that must be demonstrated
(along with other rules like relevance, hearsay,
privileges)
- Rule 901: Authentication
- (a) General Provision. To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support
a finding that the item is what the proponent claims it is.
- (b) Examples
- Rule 902: Self-Authentication
- Extrinsic evidence of authenticity as a condition
precedent to admissibility is not required with respect to
the following:
- (1)-(5) Public Documents
- (6) Newspapers and Periodicals
- (7) Trade inscriptions and the like
- (8) Acknowledged documents
- (9) Commercial paper and related documents
- (1) Presumptions under Acts of Congress
- Best Evidence Rule
- Is it the original or authorized copy? Do the contents of the
document matter?
- Rule 1002: Requirement of the Original
- An original writing, recording, or photograph is required
in order to prove its content unless these rules or a
federal statute provides otherwise
- When does it apply?
- Any time you are admitting a document:
- To prove its contents
- When a witness is going to testify
about what a document or recording
says
- When you are trying to prove what is
in the document
- When you want to use the document
to prove a point in your case
- Not being used to prove content
- Testimony about the existence,
execution, delivery of a document
- When it does, how is the Rule satisfied?
- For duplicates, Rule 1003
- Unless something is questionable about the
document, or
- it would be unfair to admit the document
- If the original was lost or destroyed, Rule 1004(a)
- Unless there was bad faith by offering party
 - If the original is not obtainable, Rule 1004(b)
- When it is beyond subpoena power of the court
- Original is in the opponent’s possession, Rule 1004(c)
- When opponent is given notice to turn it over
but doesn’t
- Collateral matters, Rule 1004(d)
- When the writing isn’t central or important
- Test: centrality of writing to litigation;
complexity of features of writing’
genuine dispute about contents of
writing
- Public Records, Rule 1004
- Summaries, Rule 1006
- Factors
- Must be voluminous (no standard)
- Underlying documents must be
admissible
- Party has the right to inspect originals
- Opponent admits to content, Rule 1007
- Hearsay
- If hearsay, is the document covered by a hearsay exception?
- Rules Governing Witnesses
- Competency of Witnesses
- Examination of Witnesses
- Order of examination (direct, cross, redirect, recross)
- Leading questions
- Refreshing recollections
- Types of Witnesses
- Lay witnesses
- Firsthand knowledge rule
- Opinion rule
- Expert witnesses
- Subject matter requirement
- Qualifications requirement
- Bases of expert opinion
- Credibility of witnesses
- Bolstering
- Impeachment
- Introduction
- Two ways to impeach
- Cross-examination of the witness who you are
impeaching
- Extrinsic evidence
- 3 stages
- Bolstering-generally cannot do it
- Pretrial identifications (801(d)(C))
- Fresh complaints
- Plea agreements (courts are split)
- Impeachment
- Rehabilitation
- Forms of Impeachment
- Bias/Interest/Prejudice
- Where are impeachment for bias or capacity
found in FRE?
- Nowhere explicitly, but:
- 401: broad definition of “relevant
evidence”
- 607: allows attack on credibility of
witness
- 611(b): allows cross examination on
“matters affecting the credibility of a
witness”
- Religious Beliefs
- Rule 610. Religious Beliefs or Opinions
- Evidence of a witness’s religious beliefs
or opinions is not admissible to attack or
support the witness’s credibility.
- Character of Untruthfulness
- The following rules apply only to prove
truthfulness or untruthfulness
- Rule 608(a). Opinion and Reputation Testimony
- ALWAYS ON BAR EXAM
- Look to Rules 404 and 405 about
character evidence
- Through extrinsic evidence, character
witnesses
- ​(a) Reputation or Opinion Evidence:
A witness’s credibility may be attacked
or supported by testimony about the
witness’s reputation for having a
character for truthfulness or
untruthfulness, or by testimony in the
form of an opinion about that
character.
- But evidence of truthful
character is admissible only
after the witness’s character
for truthfulness has been
attacked (Can’t admit evidence
that a witness has a character for
truthfulness until someone calls
into question that witness’
character for truthfulness)
- Rule 608(b). Non-Conviction Specific Instances
of Misconduct
- Non-conviction untruthful acts
- Through cross examination only
- (b). Specific Instances of Conduct:
Except for a criminal conviction
under Rule 609, extrinsic evidence is
not admissible to prove specific
instances of a witness’s conduct in
 order to attack or support the
witness’s character for truthfulness.
- But the court may, on
cross-examination, but still without
extrinsic evidence, allow specific
instances to be inquired into if they
are probative of the character for
truthfulness or untruthfulness of:
- (1) the witness; or
- (2) another witness whose
character the witness being
cross-examined has testified
about
- But, can ask if lied in a
previous instance, and if the
witness says no, can use
extrinsic evidence under Rule
613 for prior inconsistent
statements
- Rule 609. Prior Crimes
- By extrinsic evidence or cross
examination
- 609(a)(1): “crimes punishable by more
than 1 year in prison” may be
admissible to impeach a witness (show
character for untruthfulness), but only if
convictions satisfy appropriate
balancing test:
- criminal defendants: probative
value must outweigh prejudicial
effect (“reverse 403 balancing”)
- everyone else: 403 balancing,
admit unless concerns
“substantially outweigh”
probative value
- Since 403, the Court has the
discretion to admit
Ex. can say the crime was 9
years ago, not that important
- 609(a)(2): automatic admissibility for
a prior conviction for a crime
involving “dishonesty or false
statement” (crimen falsi) (like perjury,
forgery, embezzlement)
- The Court has no discretion to
exclude (no 403)
- 609(b)
- For crimes that are more than 10
years old, there is a presumption
against exclusion, a high burden
(reverse 403)
 - Must give notice and applies to
both types of crimes above
- 10 years is measured from
date of conviction or release
from confinement, whichever
is later (If convicted 15 years
ago, but released from prison 5
years ago, the analysis would
start from 5 years ago)
- Parole and probation are not
considered confinement
- Does not include information about
the crime or circumstances of
convictions other than name, date,
and sometimes the sentences. Only the
fact of the conviction itself is
permitted
- Incapacity, Sensory or Mental Defect
- Prior Inconsistent Statements
- Substance
- For Impeachment
- For Substantive Evidence
- Rule 801(d)(1)(A)
- Procedure for Impeachment
- Rule 613(a). Examining witness
concerning prior inconsistent
statement: do not need to show prior
statement to witness, but on request
must show to opposing counsel
- Rule 613(b). Extrinsic evidence of a
prior inconsistent statement. Extrinsic
evidence of a witness’s prior
inconsistent statement is admissible
only if the witness is given an
opportunity to explain or deny the
statement and an adverse party is
given an opportunity to examine the
witness about it, or if justice so
requires. This subdivision (b) does not
apply to an opposing party’s statement
under Rule 801(d)(2)
- Two Conditions for Extrinsic Evidence:
- (1) witness must have an
opportunity to explain or deny
the inconsistent statements
(does not need to be before
introducing the extrinsic
evidence, at least must be able
to be recalled), and
- (2) the other party (who might
be able to rehabilitate/repair
 challenged witness’
credibility) must have an
opportunity to question the
challenged witness about the
inconsistent statements
- Collateral or Non-Collateral?
- Collateral is not important,
non-collateral is important,
Court doesn’t want to waste
time bringing in evidence and
witnesses on collateral and
un-important statements
- General Rule: extrinsic
evidence cannot be used for
impeachment by prior
inconsistent statement (or by
contradiction) on a “collateral
matter”
- Traditional Definition of
Collateral: a matter is collateral
if the only purpose for proving
the fact in question is for
contradicting the witness
- Non-Collateral must be more
than only contradicting the
witness and be factually
important to the case
- Specific Contradictions (Prior Inconsistent Statements)
- No rule, same collateral analysis as Rule 613(b),
but don’t need to give challenged witness an
opportunity to explain or deny the statement or
give opposing counsel an opportunity to
rehabilitate the challenged witness
- Ex. Witness says “God hasn’t blessed us with
children” but you know she had an abortion and
then ask “Have you ever had an abortion?” and
she says “No” then you can seek extrinsic
evidence of the aborton (like testimony from the
doctor that performed the abortion) to impeach
the witness for a specific contradiction of her
prior statement
- Ex. calling another witness that the challenged
witness never spoke to to give testimony that
contradicts the challenged witness’ testimony, or
introducing a physical piece of evidence
- Rehabilitation
- Like for prior consistent statement (to rehabilitate charge of
fabricating a statement or being under improper influence to
make a statement)
- Substitutes for Evidence
- Rule 201. Judicial Notice of Adjudicative Fact
 - If there is a fact that needs to be established in a case (like “a .38 caliber
gun fires x bullets”)
- Party seeking notice has the burden to prove by preponderance of
evidence
- What facts can be noticed?
- Indisputable, and
- Like what time the sun rose on a day or how many
bullets a certain gun can hold
- Generally known within the territorial jurisdiction, or
- Capable of accurate and ready determination from accurate
sources
- Procedure for taking notice
- The Court can do it on its own
- At the request of the party
- Opportunity to be heard
- Timing: anytime during the trial (even after parties have rested
their case)
- Impact of Judicial Notice
- Civil: jury must take it as true
- Criminal: jury can reject it
- Rule of Completeness
- Rule 106. Remainder of or Related Writings or Recorded Statements.
- If a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction, at
that time, of any other part—or any other writing or
recorded statement—that in fairness ought to be considered
at the same time.
- Example:
- The light was red at the intersection . . .
- . . .but then it turned green before he went
through it.
- I told Marie that it was Johnny who shot Billy. . .
- …However, that was just my guess based upon pure
speculation.
- Stipulations (parties agree to admit certain facts)

Roles of Judge and Jury: FRE 614

- The judge decides the admissibility of evidence (the “lawgiver”. The jury decides its
“weight” (the “fact-finder”)
- Role of the Judge
- Rule 611(a): the judge has discretionary authority to
- (1) alter the order of proof at trial,
- (2) permit a witness to testify out of order,
- (3) allow a witness to be recalled, and
- (4) grant a party’s request to reopen its case
- Court-Called Witnesses
- Rule 614(a), in accordance with common law, grants the trial court the authority
to call witnesses on its own motion or at the behest of one of the parties —
witnesses who possess relevant information affecting the outcome of the issues
when the parties decline to tell them
- Court Questioning of Witnesses
 - Rule 614(b) grants the trial court the authority to question witnesses and for the
judge to examine witnesses to develop facts relevant to the issues and resolve
confusion from testimony
- Implicit impartiality
- Rule 614(c) provides for objections to court questioning
- Judicial Commenting on Evidence
- Federal judges may summarize and comment on the evidence and its weight, and
the credibility of the witnesses — if they remind the jury they are not bound to
the judge’s comments
- Jury Questioning of Witnesses
- No federal rule, but case law gives trial courts discretion to allow it
- Second Circuit-given protections: “(1) jurors should be instructed to submit their
questions in writing to the judge; (2) outside the presence of the jury, the judge
should review the questions with counsel, who may then object; and (3) the court
itself should put the approved questions to the witnesses.”

The Prosecution’s Goals in State v. Mitchell

- Under the criminal code of the State of Nita, a person commits the crime of First-Degree
Murder if:
- (a) after deliberation and
- “After deliberation” means not only intentionally, but also that the decision to
commit the act has been made after the exercise of reflection and judgment
concerning the act
- An act committed after deliberation is never one that has been committed
in a hasty or impulsive manner
- (b) with the intent to cause the death of a person other than himself, he causes the death
of that person or of another person.
- To sustain the charge of First-Degree Murder, the State must prove beyond a reasonable
doubt:
- That the evidence establishes
- (a) that the defendant performed the acts that caused the death of Leslie
Thompson Mitchell, a human being; and
- (b) that the defendant acted after deliberation and with the intent to cause the
death of Leslie Thompson Mitchell or any other person.
- The Grandy Jury Indictment
- “That on September 10, 2020…Joe Mitchell committed the crime of Murder in
the First Degree in violation of Section 18-3-102 of the Nita Criminal Code of
1992…in that he after deliberation and with the intent to cause the death of
Leslie Thompson Mithcell or the death of another person with a deadly
weapon, namely a gun, fired said gun and killed the deceased.”

- Under the criminal code of the State of Nita, a person commits the crime of Second-Degree
Murder if:
- That the evidence establishes that
- (a) he intentionally, but not after deliberation, causes the death of a person; or
- “Intentionally” means a person acts intentionally with respect to a result or to
conduct described by a statute defining a crime when his conscious objective is to
cause such result or to engage in such conduct
- (b) with the intent to cause serious bodily injury to a person other than himself, he causes
the death of that person or of another person
 - To sustain the charge of Second-Degree Murder, the State must prove beyond a
reasonable doubt:
- (a) that the defendant performed the acts that caused the death of Leslie
Thompson Mitchell, a human being; and
- (b) that the defendant intended to kill or cause serious bodily injury to Leslie
Thompson or any other person.

- Exhibits
- Testimony at First Trial
- Brooke Thompson
- Ms. Thompson’s husband left a will that if Leslie died before Ms.
Thompson, Ms. Thompson could dispense with the property as she
sought fit (financial motive)
- Was part of trust with Leslie set up by Mr. Thompson, would remain its
principal for four years after Leslie was married (which was 1 year
before the murder)
- She now receives Leslie’s $1,500 per month payment (financial
motive)
- Ms. Thompson’s initial $75,000 payment from trust in stocks,
bonds, and other investments shrank to $40,000 2 years before
the murder because of bad economy and bad investments
- Had a life insurance policy on Leslie for $600,000, double indemnity for
homicide so received $1,200,000 (financial motive)
- Possibly racist
- Carried .38 pistol with her when collecting rents from a “bad”
neighborhood
- Shot a man in the chest who approached her with a knife, was ruled a
justifiable homicide (means of homicide)
- Considered Leslie like a daughter, sent her to private boarding school and
business school in NY
- Saw Mr. Mitchell’s old white GMC Jimmy parked at the curb in front of
her house many times (Leslie and Joe would visit a couple of times a
month) before the murder
- She wondered why they didn’t buy a new one since Leslie had
the money
- Welcomed Leslie back into her home after Leslie and Joe had an
argument about him abandoning writing and getting a job and him
refusing and them separating
- Mitchell would come twice a week to argue with Leslie and try
to get her back
- Ms. Thompson was present for all arguments at her insistence
and tried to persuade Leslie to divorce Joe
- Several times in Leslie’s presence Ms. Thompson would criticize
Joe for being a lazy good for nothing living on his wife’s income
and she remembers him saying he would get even with her for
breaking up his marriage to Leslie and threatened her several
times
- Says Leslie told her she was afraid of Joe
- September 9, YR-2, last time Joe visited before “he killed her” according
to Ms. Thompson’s recollection
 - Joe: “Leslie, I’m asking you for the last time. You’d better listen
to me now, if you know what’s good for you.”
- Leslie rejected him
- Joe: “Well, I guess there’s no use trying anymore, the way you
feel. I won’t bother you again. But don’t forget this—I’m going
to make you regret what you’ve done to me, if it’s the last thing I
ever do.”
- Leslie: “Are you threatening me?” Joe didn’t reply but turned to
Ms. Thompson
- Joe: “You are an evil person. You turned Leslie against me. You
broke up this marriage, and I’ll see that you pay for this. You’ll
be to blame for whatever happens now.”
- Joe went into another room to get his jacket (did he get Ms.
Thompson’s gun? Where is her bedroom where she stores it? On
her bedside table in her bedroom which was on the first floor,
Joe had seen her put it in there several times)
- While he was in the other room, Ms. Thompson said to Leslie,
which she thinks Joe heard: “That man’s a loser. I’d rather die
than see you go back to him.”
- September 10, YR-2, Leslie’s birthday
- 7pm Leslie left the house to see a movie at Palace Theater
- She walked there alone and said she’d be back at 10pm
- Ms. Thompson noticed Leslie left her light on in her room
(which is on the east side of the house), went upstairs, turned the
light off, noticed Leslie left her front door key, saw a paper with
handwriting but didn’t read it (after the funeral, read it, it was a
letter from Joe to Leslie, she recognized the handwriting as Joe’s
since he signed the guest book once and saw some of his letters
to Leslie) (a letter came by overnight mail to Leslie and Ms.
Thompson recognized Joe’s handwriting, she doesn’t have the
envelope anymore, they didn’t discuss the contents at diner but
Leslie said it was from Joe, and didn’t discuss the letter—maybe
the note in Leslie’s room was the letter) (Joe’s Handwritten Note
exhibit: “I’m going to make both of you regret what you did to
me if it’s the last thing I do”), and decided to stay awake until
Leslie got home since she forgot her key
- 7:30pm Joe rang the front doorbell and was on the porch when
Ms. Thompson opened the door
- His old white GMC Jimmy was parked outside on the
south curb across the street (facing east, same direction
as Leslie’s bedroom, was he watching her room?)
- He asked for Leslie. Ms. Thompson told him she was at
the Theater and didn’t know when she would be back
- She expected Joe knew that Leslie usually went to
Haggarty’s (a beer, burger, and ice cream place) after
seeing a movie and stayed there until 12:30am
- Joe had something wrapped in old newspaper under his
right arm (is he right or left handed? Withdrawal hand)
large enough to be a gun
- He was wearing a black or dark blue jacket and it was
soaked with rain
 - 10:00pm (Ms. Thompson heard the clock strike ten) Leslie rang
the doorbell and was standing on the porch two or three feet
from the step when Ms. Thompson opened it
- It was raining and dark (no moonlight) and no street
light on the curb, but the bracket lights were on, the light
in the two front rooms were on, the window drapes were
open, and the light on the south curb was on
- Ms. Thompson saw a GMC Jimmy, same style and shape
as Joe’s driving fast and braking hard and stopping at the
curb in front of her house
- Leslie said: “On no…oh no, Joe!”
- A man leaned out the window, didn’t have a hat on, Ms.
Thompson saw a small dark object in his hand like a gun
or revolver, saw the man’s face for a few seconds
- She heard one shot and Leslie spun and fell backwards
- The car sped away going east
- Ms. Thompson swears it was Joe and his car
- Her view was not obstructed
- Some neighbors came running over and someone called
the police (no time to dispose weapon if defense accuses
her of committing the murder and somehow expertly
disposing of the gun in the meantime)
- One day, when Mitchell and Leslie were dating, he came to the house
and had a handgun with him, said he was at the gun range, and claimed
he was an expert shot
- Other people who would want to hurt her or Leslie
- Mr. Thompson sentenced John Bierman 15 years ago to jail for
25 years for killing a business associate, there was talk of
gambling and organized crime. At sentencing, Bierman claimed
the judge and prosecutor were setting him up and he was
innocent. Mr. Thompson said from bench that he talked over the
sentence with his wife Ms. Thompson and was sure it was fair.
Bierman said he’d get revenge “on you and your goddamn wife”
for ruining his life and losing his family if it was the last thing he
did, Bierman’s family left him and he lost his business
- Officer Pat Slyviak
- Maria Pietro (Ex 16)
- Testimony at trial of Joe Mitchell YR-8
- Joe wanted to get physical, Maria refused, he got angry and said he’d pay
for it if that’s what she wanted, they started screaming at each other, he
pushed her hard, she got a kitchen knife to defend herself, he laughed, he
hit her jaw and broke it.
- Wilson Studios Letter (Ex 12)
- September 9 YR-2, same day Joe went to Ms. Thompson’s house and
made threats to them both
- F. Scott Jenkins from Wilson Studios sent Joe a letter saying that a
payment of $2,000 sent from a junior official who overstepped his
authority rather significantly sent it without authorization from company
officials who are responsible for such decisions and therefore the Wilson
Studios could not make a commitment to the production of Joe’s script or
 make any further payments thereof, but Joe could keep the $2,000 as an
advance for consideration of his feelings
- Anonymous Letter to Police Department (Ex 17)
- “The old witch paid me to knock off her little precious….I took the
money and ran….I’ve got my cash, and I’m feeling a little sorry for the
stiff she’s stuck it to. She never knew my name.”
- Signed “With all ‘DUE’ respect”
- Defense will use to imply Ms. Thompson hired a man to kill Leslie
- Statements
- Joe Mitchell
- Quinn Washington
- Raleigh Porter
- Chris Ravenna
- Exhibits
- Street Diagram
- Diagram of Portion of Premises at 1751 Madison
- Section Map of Nita City, Nita
- Full-Body Photo of Leslie Mitchell
- Close-Up Photo of Leslie Mitchell
- Photo of Front Door
- Photo of Front House
- Joe’s Handwritten Note to Leslie
- Same signature as Joe’s voluntary statement to Police
- Police Custodian’s Property Log
- .38 caliber revolver serial no. 68717678
- One dark-colored jacket recovered at Joe’s Apt. 800 Fillmore
- One .38 caliber slug found at scene of shooting, 1751 Madison St., Nita
City)
- One movie ticket, torn (obtained from Joe)
- Sgt. John Pierce Background Information
- Head of crime lab, worked there for 17 years and headed it for 5
- Is a firearms expert and expert forensic technician, and has been
qualified as such in court on several occasions
- Additional information regarding his years of experience with assembly,
disassembly, and cleaning of firearms
- Time required to clean handgun depends on number of times
weapon has been fired and type of gun
- A .38 caliber gun is not difficult to clean
- A .38 caliber fun that has been fired one or twice after thorough
cleaning can be cleaned in one minute or less (fired less than ten
times after thorough cleaning, can be cleaned in five minutes or
less)
- Crime Lab Report (submitted by Sgt. John Pierce)
- Defense will not object on Confrontation Clause grounds, other
objections may be raised
- Skid Mark Test
- Skid marks could have been made on Sep. 10 and the width of
the skid marks (16.35) is the same width as Joe’s cars
- Paraffin Test (administered by Technician Thomas Weibel on Joe
Mitcheel at midnight on Sep. 10, YR-2)
- Test was negative for the firing of a gun.
 - Can mean:
- (a) individual did not fire a gun, or
- (b) individual did fire a gun, but no gunpowder particles
were left on the individual’s hand for several reasons,
such as
- (1) the individual wore gloves, or
- (2) the individual cleaned their hands
- Ballistics Test
- The slug found at the scene was a .38 caliber bullet. An attempt
was to compare a test-fired slug with the scene-slug, but not
comparison could be made because the scene-slug was too
smashed (collision with body and environment once exited the
body)
- Examination of a .38 Caliber Smith & Wesson Revolver
- The gun was remarkably clean. Traces of oil in the mechanism
(and the absence of a buildup of powder residue clearly indicate
a recent thorough cleaning). It had been recently exposed to
water (Officer Slyviak’s report indicated that the gun was wet
when recovered).
- It was raining. Porch was covered (?). Must have been
exposed to rain outside.
- Coroner’s Report
- Defense will not object on Confrontation Clause grounds, other
objections may be raised
- Leslie died from massive hemorrhaging resulting from gunshots, but no
unclear whether she died immediately upon impact or after some time

- Strategies:
- Jury will use only the testimony and exhibits submitted to the Court
- Jury will ignore testimony and exhibits the Court has refused or stricken
- Jury will consider any evidence received for a limited purpose and not anything
beyond that purpose
- Establish/Destroy the Credibility of the Witness, the jury will consider
- Their ability/opportunity to observe
- Their manner and appearance while testifying
- Any interest, bias, or prejudice they may have
- The reasonableness of their testimony in the light of the evidence
- Any other factors regarding the believability and weight of witness’ testimony
- There are two types of evidence:
- Direct
- Proves a fact directly. That is, the evidence by itself, if true, establishes
the fact (e.g. an eyewitness is direct testimony)
- Circumstantial
- Proves facts or circumstances that give rise to a reasonable inference of
other facts. That is, the circumstantial evidence proves a fact indirectly in
that it follows from other facts or circumstances according to common
experience and observations in life (e.g. human footprints are
circumstantial evidence of a person’s presence somewhere)
- The law does not requires a degree or amount of proof for either type of evidence