Relevance- 401 (modus operendi aka sig crimes – Distinctiveness + proximity in deliberations or juror’s mental processes/connection not allowd

(b) Materiality: of consequence in determining case time and space), Common plan or scheme. Exceptions: extraneous prejudicial info improperly brought to
 Ability to (dis)prove element of CoA OR Defense; in (a) CR-D may req. reasonable notice; 104(a) judge decides (b) P jury; outside influence; mistake entering verdict form.
direct connection OR chain of inferences aka 104(b) Conditional would have to present before trial  614 allows the judge to interrogate wit.s for the benefit of
Relevance (Could reasonable jury find relevant)  ALT: 406 Habit; routine response to stimulus; Factors: the jury, as long as impartial. Judge cant assume the role of
 Substantive Q, State Law trumps if Diversity case Adequacy of sampling + uniformity of response advocate, but can Q wit. to make facts clear for jury.
(a) Probative (of that fact): any tendency to make a Character Evidence in Sexual Assault Cases Recollections
fact more or less probable 1. Victim: 412(a): Bans ev. of V’s sexual behavior or Past Recollection Recorded: No present memory; ALWAYS doc;
 Procedural Q, low threshold to satisfy—“any” predispositions in CR/CV involving sexual misconduct (Rape, Sub. for memory; HEARSAY 803(5) MUST be read into ev. VS
 104(a) Judge decides IF: Wit. qualified, Privilege exists, Sex. battery, harassment) Present Recollection Revived/Refreshed: Can be ANYTHING
Admissibility. Only bound rules privilege 412(b)(1) CR Exceptions (Specific Acts): that revives memory; IF Doc used
Inferential Relevance (A) Ev. of V’s sexual history to show someone else is source of 612 While/Before testifying Adverse party is entitled to
Meyers FLIGHT Factors: (1) D's behavior to flight; (2) Flight to Semen, Injury, or other Physical ev. already intro’d. BUT can still production at hearing; inspection; cross wit.; Nuramax:
consciousness of guilt; (3) Consciousness of guilt to guilt re: be excluded under 401 or 403; (B) Past consensual sexual Typically, Atty Work Product Doctrine is waived under 612 when
crime charged; (4) Consciousness of guilt concerning the crime history w/ D (i.e. intent); (C) Ev. Constitution req’s be admitted (1) Refreshing wit’s memory w/ doc; (2) For testifying; (3) Ct
charged to actual guilt of the crime charged. 412(b)(2) CV Exceptions: D must show that under a 403 Analysis determines production to adverse party is necessary in the
104(c): Hearing on preliminary Q w/o jury IF: (1) admissibility of ev. should be admitted: (i) Burden Shifts to proponent to show interest of justice. (Ct. weights # of docs, etc…)
a confession; (2) CR-D is a witness and req; or (3) justice so reqs. admissibility (ii) Raises threshold for admissibility to probative Lay VS Expert Witnesses
Pragmatic Relevance - Rule 403: value substantially outweighing danger; (iii) Harm to V 701 Lay Wit. Op. limited to rationally based on wit. perception &
Exclude relevant evid. IF probative value (benefit) is Substantially considered in add’n to parties. helpful to understand testimony or determining fact in issue
Outweighed by Danger of: unfair prejudice, confusing the issues,  Rep ev. admissible IF V puts rep in controversy 1st. 702 Expert (1) Qualified by experience or training; (2) Op. helps
misleading the jury, undue delay, wasting time, or cumulative 412(c). Notice: If ev. offered under (b), Notice req’d 14 days jury; (3) Reliable methodology + opinion matches w/ qualificat.
ev. before trial to determine if exclusions apply. Judge decides 104(a) Judge decides if expert based on own determination,
 Gives judge some powers 104(b) reserves for jury admissibility during in camera hearing. Applies to pattern wit. in Daubert Factors (1) Technique can be tested; (2) Peer reviewed;
 Rule 105 provides for Limiting Instructions sexual misconduct cases. (3) Potential rate of error known; (4) Standards & controls; (5)
 Old Chief: Jury expects certain evid., Does it go to P’s case in 2. D-CV/CR: Allows ev. of prior instances where D engaged in Accepted in community; (6) Research for lit. specifically or
chief or narrative; D can’t stipulate out “any other” act that is similar, Notice Req. 15 days before trial; independent; (7) FIT Links from work to opinion; (8) Acct’d for
Rule of Completeness - Rule 106 413 Sexual Assault; 414 Child Molestation (<14); 415 CV actions obvious alt; (9) Same standard of care as in independent work;
Recorded stmt; Allows for inadmissible ev. when fair Subsequent Remedial Measures – Rule 407 (10) Reliable field (i.e. not astrology).
Lopez-Medina Factors whether (1) it explains admitted ev.; (2) Voluntary subsequent measures that would have made harm  703 Don’t need to admit facts/data expert used
places admitted ev. in context, (3) avoids misleading jury; and less likely are NOT admissible to show: negligence, culpability,  704 Can’t give op. on ultimate issue; matter of wording; (b)
(4) insures fair and impartial understanding of ev. design/product defect, or need for a warning/instruction; CR-Exception: Expert can’t say whether D had requisite mental
Scope of Examinations  Admissible to Show: ownership/control, or to impeachment state/condition
Rule 611(a) deals w/ oral testimony; Ct. exercises (party claims non-feasibility of precautionary measures).  705 Expert can give op & discuss process on cross
reasonable control to (1) determine truth; (2) avoid wasting  Non-Parties’ remedial measures admissible 3 Ways to Impeachment for Untruthfulness
time; (3) Protect wit. from harassment or undue Compromise Offers & Negotiations - 408 607 Any party can attack wit. credibility (usu. cross)
embarrassment; (b) Cross: direct + cred.; (c) Leading Q’s on CR/CV offers made, refused, conduct, stmts in negotiations by 1. 608(a): Rep. and op. ev.; Cant bolster wit., but can take sting
cross, or when hostile or adverse wit. either party, even if before lawsuit. out; rebut After attack. Rep. wit Whitmore Factors: (1)
611. Ct. controls mode & order of examining wits & presenting (a) NOT admissible to prove: validity, extent of claim, impeach Acquaintance w/ wit; (2) Community; (3) Circles in which they
ev.; IF both want to call wit, Judge discretion to expand scope: by prior inconsistent state., or contradiction move; (4) Not remote in time.
611(a) + 611(b) + 611(c) (a)(2) Exceptions: CR Public office in exercise of regulatory, 2. 608(b): Specific Acts at ct’s discretion. Allows intrinsic ev. if
Character Evidence – Time of Incident investigative, or enforce. authority probative to truthfulness; Wit. previous ACTIVITY/Stmt; Since
Purpose? Ultimate Issue OR Impeach Cred. (b) Exceptions: CR /CV, Admissible for: Negating undue delay, extrinsic ev. barred, if wit. lies on stand remedy is perjury.
Method: Rep., Op., Specific Act. Case? CR or CV Bias/prejudice, proving effort for obstruction of CR investigation Prior Convictions
Trait? Should be substantive to issue.  409 Offers to Pay Medical & Similar Expenses. 3. 609: CR/CV Extrinsic ev. for CR Convictions
Directly at Issue? Element of charge, claim, defense Not to prove liability, BUT collateral stmts allowed  Crimen Falsi (dishonesty/false stmt) - OK 609(a)(2)
Propensity Evidence of Party  411 Liability Insurance. Inadmissible: D acted negligently or  Death/>1 yr. conviction, Not Crimen Falsi, wit. Not a CR-D –
404(a)(1): NOT admissible to prove on particular occasion acted wrongfully. Admis: trade custom, agency, owner, control, bias 403 Analysis -- OK 609(a)(1)(A)
in accordance w/ character/trait (Don’t over persuade jury);  410 Pleas Inadmis. against D-CV/CR: withdrawn stmts in  Felony, Not Crimen Falsi, Wit. CR-D – If probative value
BUT admissible if character is Directly at Issue; negotiation, nolo contendere; Expressed/Implicit authority req’d outweighs Prejudice -- OK 609(a)(1)(B)
 405(a) if admissible rep., op., and cross on specific acts; to initiate;Admit other ev. (NOT stmts) derived from negotiation  10+ yrs since any conviction – If probative value substantially
405(b) specific acts if character or trait is an essential element (b) Exceptions: If part of plea admitted and fairness req’s more outweighs Prejudice, 403 Flipped -- OK w/ Notice 609(b)
404(a)(2): Exceptions in a CR case: Can prove action in OR subsequent CR perjury proceeding. Wavier Stmt: Proffer  Misdemeanor, Not Crimen Falsi, <1yr. ---Excluded
conformity therewith when: Witness Competency Browne/Cook Factors: Applies to Felony + 10 yrs: (1) Nature of
(A): D offers pertinent trait of D, P may rebut. Sims: Erie Doctrine: Diversity Action where state law applies: prior crime; (2) Remoteness; (3) Similarity btwn past & charged
(B): D offers pertinent trait of V, (i) P may rebut and (ii) P may Presumptions; Privileges; Wit. Competency; IF Diversity action crime; (4) Importance of D’s testimony/credibility; (5)
address D’s same trait; subject 412 limits. under federal claim, FRE applies. Requirements Subsequent history -
(C): HOMICIDE. P offers V’s trait for peacefulness to rebut ev. (1) 603 Oath; (2) Mental Capacity to Observe; (3) Remember; (4) Impeachment for Bias or Motivation
that V was 1st aggressor; Rep., Op., Specific Acts, and extrinsic Narrate (5) 602 Personal knowledge. 608 + 610; 607; 611(b) Extrinsic evidence allowed to show bias;
ev. (i.e. criminal history)  Minor: no age req; capacity for accurate impress. Confrontation Clause of 6th Am.
404(a)(3): Exception: Ev. of wit. character 607, 608, 609.  No intoxication during event or testimony 610. Religion. Not admissible to attack credibility, but can show
404(b)(1): Crime, wrong, or other act NOT admissible in CR/CV  601 CV, state law governs wit competency. bias. Cant use to show (un)truthfulness
to prove action in conformity therewith  605 Judge not competent; no objection needed to preserve Sensory Perception- At Event & Testifying
 Good or bad, Prior or Subsequent  606(a): Juror can’t testify in case where sitting; Object 601 Note Mental incapacity may be considered towards weight
404(b)(2): Permitted Uses in CR/CV: Motive, Opportunity, outside presence of jury (avoid prejudice) of testimony, NOT admissibility.
Intent, Preparation, Absence of Mistake, Knowledge, Identity  606(b) Inquiry into Verdict/Indictment Testimony re: jury’s
 To impeach, ct consider effect illness has on ability to: qualified operator, chain of custody (sufficiently complete;
Observe, Remember, Narrate. tampering improbable)).
 Alcohol/drug use can be excluded - 611(a)(3) 902 Self-Authenticating: No extrinsic ev. req: Dom. Public docs
Impeachment by Contradiction (stmts+) signed+sealed; Dom. Public doc signed+certify; Foreign public
Collateral Matter Rule: Immaterial, does not est. fact of doc signed/attested; certified copy of public record; official
consequence; but can cross; If wit lies re: past conviction, publication; newspaper/periodical; trade inscription (ownership,
common law rules govern NOT 609 origin, control); etc…
Impeach.- Prior Inconsistent Stmts (specific) Best/Original Writing Rule 1002- contents @ issue
Impeachment (diff story) VS Substantive Ev. (truth) 801(d)(1)(A) 1002 Need original unless unavailable; 1003 duplic. allowed;
613(a) On req, disclose prior stmt to adverse atty, not wit. 1004 if orig. lost/destroyed not in bad faith; cant get orig.;
(b) Extrinsic ev. admissible if wit given oppor. to explain/deny failure to produce; not material; 1006 can offer summary of
stmt and adverse party given an oppor. to exam wit about it large amount of info. 803 Unrestricted Exceptions
(not for truth, to show contradiction and Q credibility) Confrontation Clause Doesn’t matter if Decl. is available b/c event speaks through stmt; no req of
Subsequent Stmt: Wit makes contradictory stmt after testifying; CR Case? No: No issue. Yes -> Prosecutor Offering Stmt? No: No corroboration; goes to weight.
EXCLUDED from 613(b)’s reqs; Extrinsic ev. if necessary; issue. Yes -> Hearsay? No: Impeach., No issue. Yes -> Decl. Sub. (1) Present Sense Impression: Describes (facts not interpretations) event/condition
Inadmissible ev. admitted for limited purpose of impeachment. to Cross? Yes: No issue. No -> Testimonial (Made in anticipation perceived (any sense), substantially contemporaneous (~15mins)
Except CR trial, cannot be allowed to present ev. that would of lit)? No: No issue. Yes -> Any Exception? Yes: No issue. No -> (2) Excited Utterance: !!, Response to startling event, while under+reacting to stress
(Variables: Age, nature of event, mental and physical health, no time pd)
otherwise be inadmissible. Judge must do a 403 analysis. Inadmissible Hearsay (3) Then Existing Mental, Emo, Physical Condition: Current state of mind re: pain,
Privileges Judicial Notice - 201 plan, intent, emo, made to anyone; purpose is irrelevant
9 Proposed 506: req’d reports, atty-client, husband-wife, (a) Covers Adjudicative facts (Who did what, when, where, how, (4) Smt for Med. Diagnosis/Treatment: Made by anyone, Decl. wants treatment,
psychotherapist-patient, communications to clergy, political with what motive or intent) past/present symptoms, sometimes include cause if necessary
vote, trade secrets, secrets of state & other official info., and (b) If not sub. to reasonable dispute b/c gen. known in (5) Recorded Recollection: (A) Wit. had personal kldg, but now cant remember; (B)
identity of informer community OR capable of accurately + readily determining from record made/adopted when fresh in memory; (C) accurate reflection of kldg. Read
 Atty-Client: Corp. Clients: (1) germane to Ee’s duties; (2) reasonably unquestionable source (immediate verification: facts into ev. BUT only receive doc if adversary offers.
of history, geography, sci. principle, validity of certain test, ct’s (6) Rec of Regularly Conducted Business Activity: Made at/near time by someone w/
made to atty at req of Er; and (3) Ee in a position to take part in kldg., kept, made in reg. course of business, authenticated; if opposed burden shift
decisions on atty advice record) to show why to exclude (104(a)); Can’t be created in anticipation of litigation (7)
502: inadvertent disclosure ≠ waiver if reasonable steps to (1) (c) Ct. can do on its own or by req +supplied w/ info Absence of (6) (8) Public Rec: Observations, factual finds, and authenticated w/
prevent disclosure; (2) rectify the error (d) At any stage (f) Jury Instruction: CV conclusive, CR may (not) personal kldg or self (Not police report, but can call officer who wrote it) (10)
 Spouse: Singleton Factors: Permanent separation at time of accept as conclusive; (cant take notice for 1st time in CR on Absence (8) (9) Public Rec Vital Stats (birth, death, marriage (11) Religious Org Rec
com.: (1) Couple cohabiting? (2) If not, how long living apart? (3) appeal b/c jury instruction req.) of Personal/Family History (12) Cert. Marriage, Baptism, Similar (13) Family Rec (14)
Filed for divorce? Opt’l: (4) Objective ev. of (lack of) intent to Legislative/Legal Facts: Not covered by 201; Doc. Affect Interest in Property, kept w/ public office (15) Stmt in above (16) Stmt in
reconcile? (5) Testimony by spouses re: their subjective intent? Develops/interprets law/policy, judge decides Ancient Doc-20 (17) Market Report, Similar Commercial Publication (18) Smt in
Learned Treatise, Periodical, used by expert + est. as reliable by expert test. Or
Appellate Review - 103 judicial notice, read into ev. (19) Rep. re: Personal/Family Hist. (20) Rep. re:
(a) Preserving a Claim of Error: if affects a substantial right of Boundaries/Gen. Hist., community, land, customs (21) Rep re: Character (22) CR
party and (1) Admitted but party, on record, objects or moves to Prior Judgment: Entered after trial/guilty plea, NOT nolo contendere; Felony
strike + states specific ground, unless obvs OR (2) Excluded but (death/1+); To prove fact essential to convict.; Can only use against CR-D. (23) CV
party provides substance, offer of proof unless apparent Prior Judgment for Personal/Family/Gen. Hist., Boundary: Essential to judgment +
Luce/Ohler Doctrine: If judge incorrectly denies Motion in could be proved by rep ev.; NO stmts by coconspirators b/c Due Process
Limine re: prior conviction: If D pleads 5th, waives impeach.
Objection; If D testified + improperly impeached, Harmless 804 Restricted Exceptions
 Psych: Jaffee Want mentally healthy ppl; Must be: error?; If D tries to take sting out and mention, waiver of (a) Decl. Unavailable if: (Judge decides 104(a))
Confidential; w/ licensed psych or SW; Com.; in course of objection. (1) Assertion of Privilege; (2) Refusal despite ct. order; (3) Insufficient memory; (4)
Then existing physical or mental condition, death; (5) Absent despite reasonable
therapy. Waiver: Intro. privilege info at trial; Put mental health Abuse of Discretion: Every Ct. uses diff. analysis means to procure. Forfeiture Rule: Does not apply if proponent causes wit.
at issue; Patient owns privilege; Failure to object. Exceptions:  De Novo: Applies to Q’s of law unavailability (Kill, kidnap, hide)
Dangerous patient & affir. duty to tell (Split); CR-Child Abuse  Clearly Erroneous: Application of facts to law (b) Exceptions: Admissible though decl. is unavailable
(Split); Crime fraud; Patient lit.; Involuntary civil commitment.  Abuse of Discretion: Application of facts to law; most (1) Former Test.: Wit. testifying at qualified proceeding (current or prior) under oath
 Clergy: (1) Clergy (broad); (2) Communicant (Dont need to be common + most generous to trial ct. + offered against party who had oppor. and similar motive (Factors: nature of
believer/member); (3) Prof. Capacity (Narrow, religious role at  Harmless Error: Standard for Party Defending; Acknowledge proceeding, stage of investigation, burden, unused methods) to direct/cross. CR,
time of com.); (4) Confidential (Reasonable expectation. Judge screw up, but say didn’t make a diff.; Need proof for CR case P/D was a party; CV, can be adverse party or predecessor in interest.
decides if confidential based on what clergy says); (5) Spiritual (2) Dying Declarations: Homicide or CV, somone w/ personal kldg (V of homicide,
CR: (1) constitutional magnitude – harmless beyond a person who overheard V, person who committed homicide & now on deathbed),
Com.; Owner of privilege is usually communicant reasonable doubt; (2) other (non-constitutional) criminal: highly Belief that death is imminent by decl. (cir., obviousness of condition, decl./others
 Considering new privileges: (1) 501 flexible+changes w/ time, probable/preponderance harmless conduct/stmts; Suicide cases hard b/c aspect of control diminishes imminence;
look at common law; (2) Proposed 506; (3) how has State Law CV: prejudice death not req’d); Must relate to cause or cir. of death.
extended; (4) Social Good; Wigmore’s 4 Part Test:(1) originate Hearsay (3) Stmt Against Interest: Reasonable person would only make if true b/c could
in confidence? (2) confidentiality essential? (3) A relationship 807 Residual “catch-all” Exception: Stmt has equivalent invalidate claim against others Pecuniary (monetary), Proprietary (Property), or
that ought to be fostered? (4) injury to the relationship vs. circumstantial guarantees of trustworthiness (Reliability); Penal (exposure to CR/CV liability) + Supported by corroborating cir.
benefit of correctly deciding cases? Offered as ev. of material fact (Probative); More probative than (4) Stmt of Personal/Family History: No way for Decl. to have personal kldg of fact
(birth, legitimacy, ancestry, etc…) or info about another person who decl. has close
Authenticity any other ev. able to obtain reasonably (Necessity); best serve intimate relationship w/ where info likely to be accurate.
901(a) + 104(b) Produce ev. sufficient for jury finding item is rules and justice. (b) notice Req. MAJ View: Close Enough (6) Forfeiture By Wrongdoing: Caused Decl.’s unavailability, through wrongdoing,
what purports to be; Note Can stipulate; 901(b)(1)-(8): Test. Of Theory: If almost 803/4, but inadmissible, admit if reliable. procured (direct involvement) or acquiesced (knew but did nothing)
wit. w/ knowledge; lay op. on handwriting b/c familiar; 801: (c) Out of Ct? (b) Decl.? (a) Stmt=Assertion: Decl. meant to comm.? Implied
comparison w/ authenticated item by expert/jury; distinctive Assertion depends on degree btwn act/stmt and alleged assertion
characteristics (appearance, contents, patterns, substance, cir); (c)(2) Truth of matter? Sub. ev. needs to be True. NOT Hearsay if: Just
Impeachment; Verbal Act: Words w/ legal consequence; Listener or Declarant state
op. re: voice; Telephone convo (#/business called, self-id); Public of mind; Verbal Object: Label. 805: Hearsay within Hrsy.?
record; Ancient docs/Data (no suspicion, where likely kept, 801(d) Statutory Non-Hrsy
20yrs); Process/System (accurate process, working at time, (1) Prior Stmts: Decl. testifies + Sub. to cross.
(A) Inconsistent w/ test. (silence, change in memory) + prior stmt given under
penalty of perjury (stmt to police excluded) (ALT: 613)