Overview of Trial and Evidence

I. Evidence:
a. Governed by the Federal Rules of Evidence (FRE)
b. Types
i. Oral Testimony
ii. Tangible, physical evidence
II. The Order of Proceedings
a. Pretrial Conference
b. Pretrial Motions
c. Selection of the Jury
d. Plaintiff/Prosecutions Case-in-Chief
e. Defenses Case-in-Chief
f. Rebuttal and Sur-rebuttal
g. Closing Arguments
h. Jury Instructions Read to Jury
i. Jury Deliberates
j. Verdict
III. Pre-Trial
a. Pre-trial Conference
i. Judge holds conference with lawyers for each party in order to narrow factual
and legal issues that will be raised at trial, identify witnesses and documents
(e.g., exhibit lists), resolve evidentiary issues, , and encourage settlement.
b. Pre-trial Motions
i. Motion in Limine
1. Requesting that the judge keep from the jury certain testimony or
documents
a. request to admit or exclude certain evidence.
b. Goal: prevent prejudicial or inadmissible material from
being presented to the jury.
2. If the motion is not granted, the party making the motion has
another chance to object and keep the jury from hearing the
evidence when it is offered at trial.
c. Selection of the Jury - “Voir Dire”
i. Challenges for Cause: unlimited, either party may challenge a prospective
juror if biased, unqualified, or otherwise unfit. both parties can challenge a
prospective juror for cause.
ii. Peremptory challenges: each party is allowed a limited number of peremptory
challenges. These allow a party to dismiss a juror without giving a reason
1. Number: typically 3 per party in civil cases; more if multiple parties.
2. No reasoned required: but must be exercised in good faith.
 3. Limitations: may not be used for racial, ethnic, or gender
discrimination. If challenged, the attorney must provide a non-
discriminatory explanation.
IV. Trial
a. Jury Trial v. Bench Trial
i. Jury Trial: Jury is the factfinder; judge rules on law
ii. Bench Trial: Judge serves as both the factfinder and law-decider
V. Opening Statement
a. Provides an opportunity for lawyers to tell the jury in summary form about their
theory of the case and to describe evidence the jury will hear at trial in support of
that theory.
i. Facts described in opening statement by lawyers must be admissible
VI. Presentation of Evidence
a. After OS, the party with the burden of proof presents evidence in her case-in-chief
by calling witnesses to the stand or questioning them under oath, or introducing
physical evidence.
i. prosecution or plaintiff
b. Direct Examination: questioning by the lawyer who calls a witness to testify
i. Goal is to question the witness as to elicit facts favorable to the party who
has called the witness
c. Cross-Examination: questioning by the lawyers of an adverse witness
i. Goal is to test the accuracy and completeness of the witness’s testimony
ii. “American” or “Restrictive” Rule – limits examination to the scope of the
matters asked on direct examination and witness credibility.
d. Redirect Examination
i. After cross-examination is complete, the direct examiner may conduct a
re-direct
ii. Scope is limited to matters raised during cross-examination
e. Objections
i. FRE 103
ii. Purpose
1. To oppose the introduction of evidence
2. To preserve error in admission of that evidence over objection for
appeal
iii. Must be made before the witness answers the question
iv. Failure to raise objection will waive evidentiary error on appeal
v. Sustained – judge agrees that the evidence is not admissible & accepts
objection
vi. Overruled – finding the evidence admissible & rejects objection
vii. Offers of proof
 1. When the objection is sustained, the party whose evidence has
been excluded may decide to preserve the ruling for appellate
review
VII. Standard of Review
a. *Abuse of discretion: trial court’s discretionary decisions (admission of evidence,
sanctions, procedural rules)
b. De novo
c. Clearly erroneous
d. Substantial evidence
e. Harmless/error review
VIII. Motions for Judgment as a Matter of Law
a. After the plaintiff/prosecution concludes her case in chief, the defendant may
move for a judgment as a matter of law
b. To grant, the judge must conclude that no rationale jury could find that P’s
evidence satisfies the applicable standard of proof such as BAD or POE
IX. Defendant’s Case in Chief
a. If the Judge denies Defendant’s motion for JOML, the defendant now presents her
case in chief
X. Rebuttal and Surrebuttal
a. After defendant’s case in concluded, the plaintiff/prosecution is often allowed to
present more evidence as long as it contradicts or clarifies evidence that has been
presented in the defendant’s case in chief.
XI. Closing Argument
a. The lawyers for each side make their closing arguments telling the jurors in a
lengthy speech why the evidence they presented should allow them to win the
case
XII. Jury Instructions
a. Based upon the law and the evidence admitted at trial, the judge will draft a set of
instructions to the jury also called the “charge of the court”
b. Tells jurors how to conduct themselves and what to do and not do when deciding
the case
XIII. Deliberations, Verdict, Judgment
a. Jurors gather in private to select a presiding juror, read the charge, and determine
the facts in light of the law the judge has given them in the charge
XIV. Rule 101 Scope: rules govern proceedings in U.S. courts
a. These rules apply to proceedings in U.S. courts
b. Exceptions and limitations are stated within the rules themselves
XV. Rule 102 Purpose
a. The rules should be construed to:
i. Administers proceedings fairly,
ii. Eliminate unjustifiable expense and delay,
 iii. Promote the development of evidence law
iv. Ascertain the truth, and
v. Secure a just determination
XVI. Rule 103 Rules of Evidence
a. Preserving a Claim of Error: a party may claim error in a ruling to admit or
exclude evidence only if the error affects a substantial right of the party and:
i. If the party on the record
1. Timely objects or moves to strike; and
2. States the specific ground, unless it was apparent from the context,
or
3. If the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent
from the context.
ii. If the court admits evidence  timely objection or motion to strike
required, stating specific ground
iii. If the court excludes evidence  party must make an offer of proof
showing what the evidence would have been
b. Harmless Error Rule: Error in admitting or excluding is not ground for reversal
unless it affects a substantial right
c. Court’s Statement: Court may explain ruling on the record
d. Definitive Ruling: Once the Court makes a definitive ruling on admissibility, a
party need not renew an objection/offers of proof
XVII. Rule 105 Limiting Evidence that is Not Admissible Against other Parties or for Other
Purposes
a. If evidence is admissible against one party or for one purpose (but not another)
the court must, upon request, give a limiting instruction to the jury.
XVIII. Rule 1101 Applicability of the Rules
a. Apply to: civil cases, criminal cases, bankruptcy, admiralty, contempt
proceedings, appellate courts.
b. Do not apply to:
i. Preliminary questions of fact
ii. Grand jury proceedings
iii. Misc. proceedings
XIX. Rule 611 Mode and Order of Examining Witnesses and Presenting Evidence
a. Court should exercise reasonable control over mode/order of examining witnesses
and presenting evidence to
i. Make the process effective for determining truth,
ii. Avoid wasting time, and
iii. Protect witnesses from harassment/undue embarrassment
b. Cross-Examination: limited to subject matter of direct examination and matters
affecting credibility
 i.
c. Direct-Examination
d. Leading Questions: generally not allowed on direct, except as necessary to
develop testimony, allowed on cross or with hostile/adverse witnesses.
XX. Rule 614 Court’s Calling or Examining
a. Calling: the court may call a witness on its own or at a party’s request. Each party
may cross-examine the witness
i. Examining – the court may examine any witness regardless of who calls
them
ii. Objections – a party may object to the court’s calling or examining of a
witness either at that time or at the next opportunity outside the jury’s
presence

Burdens of Proof, Inference and Presumptions, Production and Persuasion

I. Burdens of Proof
a. General rule: Party must satisfy both burdens to prevail
b. Burden of Production: Obligation to produce enough evidence to put an issue into
dispute.
i. Requires enough evidence that a reasonable jury could find in favor of the
party
ii. Whether sufficient evidence exists
c. Burden of Persuasion: Obligation to convince factfinder of truth of proposition to
required standard.
i. Civil Cases
1. Standard: Preponderance of the Evidence (more likely that not)
ii. Criminal Cases
1. Standard: Beyond a Reasonable Doubt (highest standard, due to liberty
at stake)
2. Presumptions generally not allowed
a. Constitutional Limits: 5th & 14th Amendment (Due Process)
b. Rationale: High penalties, risk to freedom  cannot force jury
to find element against defendant
II. Standards of Proof – percentage represents the threshold
a. Preponderance of the Evidence (50.0001%) – just greater that 50% or more likely
than not
b. Clear and Convincing (75%) – more stringent than POE, less stringent than BRD
 c. Beyond a Reasonable Doubt (95%) – the prosecution must prove all elements.
Based in the due process clause of the 14th Amendment to the U.S. Constitution
d. Sufficiency of evidence (5%)
III. Presumptions and Inferences
a. Inference: Conclusion the factfinder may draw from evidence (based on fact).
i. Common sense conclusion deduced from facts
ii. Factual inference
iii. Ex: If witness saw snow on ground at 8am, jury may infer it snowed
overnight.
b. Presumption: Legal rule that requires factfinder to assume a fact from proof of
another fact (based on law).
i. Permissive presumption: Jury may, but is not required to, infer fact (treated
like inference).
ii. Mandatory presumption: Jury must find presumed fact once basic fact
established
iii. Legal inference
iv. Ex:
1. a person who has been missing for 7 years with no contact is
presumed dead
2. a child born to a married women is presumed to be the legitimate
child of the husband
IV. Rule 301 Presumptions in Civil Cases Generally
a. In a civil case, unless a federal statute or these rules provide otherwise, the party
against whom a presumption is directed has the burden of producing evidence to
rebut the presumption. But this rule does not shift the burden of persuasion, which
remains on the party who had it originally.
b. Presumptions shift burden of production, not burden of persuasion
c. Theories of Presumptions
i. Thayer Theory (aka “busting bubble”)
1. Once opponent produces any evidence to rebut, the presumption
disappears “bubble bursts”
2. After rebuttal evidence is introduced, the case proceeds as if the
presumption never existed, and the jury (trier of fact) does not consider
the presumption at all
3. Only shifts the burden of production not the burden of persuasion
4. Jurys considers only the evidence without considering the
presumption
5. FRE 301 adopts Thayer in civil cases
ii. Morgan Theory
1. The presumption remains in the case and continues to affect the
outcome unless the opponent meets the burden of persuasion
 2. Presumption shifts both burden of production and burden of
persuasion to the opposing party
3. Jury considers both the presumption and the evidence
4. Stronger presumption, protective of party invoking presumption
d. Constitutional Distinction
i. Inferences are always permissible because jury decides
ii. Presumptions risk due process violations because they can tie the jury’s hands.
e. Policy Rationales
i. Presumptions – efficiency, fairness, shifting burdens to the party with best
access to evidence
ii. Limited in criminal law – protect presumption of innocence and maintain
governments burden that the prosecution must prove every element BRD.
V. Case Law
a. In re Yoder
i. Applied Thayer Theory
ii. Once rebuttal evidence is introduced, presumption disappears.
b. County Court of Ulster County, N.Y. v. Allen
i. Holding: Permissive presumption is constitutional if there is a “rational
connection” between proved fact and presumed fact, and jury not compelled
to adopt it.
ii. Significance: Mandatory presumptions in criminal cases violate due process,
permissive ones can survive.
c. Sandstorm v. Montana
d. Francis v. Franklin
Relevance
I. Rule 401 Test of Relevant Evidence
a. Evidence is relevant if:
i. It has any tendency to make a fact more or less probable than it would
be without the evidence or before the evidence was offered; and
ii. The fact is of consequence in determining the action.
b. Probative value: tendency to make a fact more or less probable
c. Analysis: it the evidence relevant? is it logically relevant? Is it legally relevant? Is
there a limitation to admissibility?
i. Logical relevance – if the evidence has any tendency to make a fact more
or less probable – factual inferences
ii. Legal relevance – even if the evidence is logically relevant, it may be
excluded if its probative value is substantially outweighed by dangers
(specified in 403)
1. Probative: tendency to make the proposition more or less likely
 2. Materiality – the proposition the evidence tends to prove is of
consequence
3. All relevant evidence is admissible
4. All irrelevant evidence is inadmissible
a. Irrelevant – any evidence that does not meet the definition
5. Most argued is unfair prejudice – evidence offered by a party is
prejudicial in the sense that it is harmful to an opponent
a. Was the danger of unfair prejudice low or high?
6. “unfair” - must distort the fact finding function of the trial by
allowing the jury to draw inferences that are improper
II. Rule 402 General Admissibility of Relevant Evidence
a. Relevant evidence is admissible unless:
i. The constitution,
ii. A federal statute,
iii. The FRE, or
iv. Other rules prescribed by the Supreme Court provide otherwise.
1. Character Evidence
2. Hearsay
b. Irrelevant evidence is not admissible
c. Default – admissibility if relevant.

III. Rule 403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time
a. The court may exclude relevant evidence if it probative value is substantially
outweighed by danger of one or more of the following:
i. Unfair prejudice, (argued most) – appeals to jury’s emotion
ii. Confusing the issues – creates a separate issue
iii. Misleading the jury – worry that jury will give evidence undue weight
iv. Undue delay
v. Wasting time, or
vi. Needlessly presenting cumulative evidence (e.g., repetitive)
b. Balancing Test – steps the judge takes to conduct a Rule 403 balancing test
i. Determine whether the evidence has probative value (whether it has the
possibility of making a fact at issue more or less probable)  if so, the
evidence is admissible
ii. Judge determines if any counterweights substantially outweigh the
probative value
iii. In case of unfair prejudice, the judge will estimate the likelihood that the
jury will make improper inferences from the evidence as opposed to
proper inferences
iv. Jury might misuse or give undue weight to prejudicial evidence
c. Do not confuse admissibility with the weight
 d. Even if relevant, the evidence can be excluded iv counterweighted under 403
IV. Case Law
a. People v. Adamson
b. Old Chief v. United States
i. Courts must carefully weigh the probative value of evidence against the
risk of unfair prejudice, and in some cases, the balance shifts when a
stipulation is offered.
ii. Main takeaway
1. While the court must always consider a party’s stipulation, it need
not accept it
2. The court does not have to accept unless unfair prejudice
3. Defendants cannot always stipulate away damaging evidence to
lessen the sting of it or sanitize it. Prosecution should be able to
present its case in the manner it sees fit, unless the evidence in
question is unfairly prejudicial and can be established by a
stipulation.
c. Carter v. Hewitt (pg. 100)
i. Unfairly prejudice: the evidence is unfairly prejudicial if it appeals to the
jury’s sympathies, arouses its sense of horror, provokes its instinct to
punish, or otherwise may cause a jury to base its decision on something
other than the established propositions in the case.
1. Improper bias
2. Emotional
V. Relevance – Judicial determination of Preliminary Questions and Policy Limitations
on Relevancy
a. Rule 104(a) Preliminary Questions
i. Questions concerning the qualifications of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall be
determined by the court. In so deciding, the court is not bound by evidence
rules, except those on privilege
1. Relevance depends on a fact
2. Conducting a hearing so that the jury cannot hear it.
3. Examples:
a. Hearsay statement: if such is offered as a dying declaration,
before it is admitted, the court must determine whether the
declarant (the person who made the out-of-court statement)
believed that his death was imminent
b. Attorney-client privilege: a party claiming privilege, the
judge will have to determine whether the communication in
question was made confidentially and for the purpose of
obtaining legal services
 ii. Judge determines the admissibility of proposed evidence except for
matters involving conditional relevancy
iii. Conditional Relevancy
1. When the relevancy of evidence depends on fulfillment of a
condition of fact, the court shall admit it upon or subject to, the
introduction of evidence sufficient to support a finding of the
fulfillment of the condition
2. When relevancy of evidence depends upon proof of other facts
b. Rule 105
i. if the court admits evidence that is admissible against a party or for a
purpose – but not against another party or for another purpose – the court,
on timely request, must restrict the evidence to its proper scope and
instruct the jury accordingly
c. Rule 407 Subsequent Remedial Measures
i. When, after an injury or harm, a party takes measure that would have
made the earlier injury less likely to occur, evidence of those measures is
not admissible to prove:
1. Negligence
2. Culpable conduct – recklessness or purposeful misconduct
3. A defect in a product or its design
4. A need for a warning or instruction
ii. Public Policy implications
1. Purpose is to encourage people to make repairs
iii. An action taken after a harm or injury has occurred which in some
measure attempts to rectify the cause of the harm or injury.
1. Examples: repairs, changes, fixes, or warnings made after an
accident or injury.
iv. Exceptions – the court may admit subsequent remedial measures evidence
for another purpose, such as:
1. Impeachment (showing a witness isn’t credible)
a. Narrow
2. Ownership or control (if disputed)
3. Feasibility of precautionary measures (if disputed)
v. If a non-party takes a remedial measure, it can still be admitted
d. Case Law
i. Huddleston v. United States
ii. Anderson v. Malloy
1. “Feasibility” within the meaning of 407 is not
2. Feasibility and 407 does not apply unless disputed
iii. Harrison v. Sears, Roebuck and Company
1. The impeachment exception is narrow
VI. Policy Limitations on Relevancy cont’d
a. Rule 408 Compromise and Offers to Compromise (Settlement Matters)
i. Evidence of compromise offers, negotiations, or completed settlements is
not admissible to prove:
1. Liability
2. Invalidity, or
3. Amount of a disputed claim
ii. Policy: encourages settlement without fear that statements will be used
against a party.
iii. Exceptions:
1. Proving bias or prejudice,
2. Negating a contention of undue delay
3. Proving obstruction of a criminal investigation
b. Rule 409 Payment of Medical and Similar Expenses
i. Evidence of offers to pay medical, hospital, or similar expenses resulting
from an injury is not admissible to prove liability.
ii. Policy: encourages humanitarian gestures without penalizing the offering
party
iii. Note: unlike rule 408, accompanying statements of fault are admissible
c. Rule 410 Inadmissibility of Pleas, Plea discussions, and Related Statements
i. Inadmissible against defendant:
1. Withdrawn guilty pleas,
2. Nolo contendere pleas,
3. Statements made during plea negotiations with a prosecutor (if
they didn’t result in a guilty plea)
ii. Exceptions:
1. Fairness
2. Perjury prosecutions (if statements were made under oath, on the
record, and with counsel present)
iii. Policy: encourages plea bargaining and protects the process
d. Rule 411 Liability Insurance
i. Evidence that a person was or was not insured is not admissible to prove
negligence or wrongful conduct.
ii. Policy rationale:
1. Prevents jury from inferring carelessness because of insurance
2. Prevents prejudice against uninsured defendants
iii. Exceptions: admissible to show agency, ownership, control, or witness
bias
iv. Note: only applies to liability insurance, not casualty or other forms
v. Policy rationale
 1. That a trier of fact (jury) might improperly infer that a person acted
more carelessly because she knew she was insured.
vi. Scope: Does not apply to casualty insurance only liability
e. Case Law
i. Pierce v. FR Tripler & Company
ii. John McShain, Inc. v. Cessna Aircraft Company
iii. United States v. Mezzanatto
iv. Charter v. Chleborad

Character Evidence
I. Character Evidence is a term used in the law of evidence to describe any testimony or
document submitted for the purpose of proving that a person acted in a particular way on a
particular occasion based on the character or disposition of that person.
II. Rule 404 Character Evidence Not Admissible to Prove Conduct Exceptions
a. 404(a) General rule
i. Evidence of a person’s character or character traits is not admissible to prove
that on a particular occasion the person acted in accordance with that character
trait.
1. I.e., the evidence cannot improperly influence the jury to believe that
the defendant had a violent disposition (propensity)
b. 404(a)(1) Exceptions:
i. Defendant’s character: a defendant may offer evidence of a pertinent character
trait.
ii. Victim’s character: a defendant may offer evidence of a victim’s pertinent trait
iii. Homicide cases: the prosecutor may offer evidence of the victim’s
peacefulness to rebut evidence that the victim was the first aggressor.
c. 404 (a)(2)(B)(ii)
i. Provides that after the victim’s character has been attacked under (a)(2)(b)(ii)
exception
d. 404 (a)(2)(C)
i. in a criminal case, evidence of the truthfulness/untruthfulness of a witness is
allowed
e. 404(b) Character Evidence; Crimes and Other Acts
i. Prohibited Uses: evidence of other crimes, wrongs, or acts not admissible to
prove a person acted in conformity with character
ii. Permitted Uses: the evidence may be admissible for another purpose such as
proving motive, intent, mistake (lack or absence of), identity, common plan or
scheme, opportunity, preparation, knowledge
1. Elements of an offense
 2. Modus operendi – a distinctive pattern, method, or signature that is so
unique it proves the identity of the defendant as the perpetrator
a. Must be “unique”
f. 404(b) Exceptions
i. Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity.
1. The party offering Rule 404b evidence must satisfy three
requirements
a. Identify a fact at issue to which the specific act is relevant
b. Introduce evidence that the person whose specific act is in
question did, in fact, commit the act
c. If D raises an objection based on Rule 403, the party must
convince the court that the counterweights listed in the rule do
not substantially outweigh the probative value of the evidence
2. Non-propensity
a. Intent: other act evidence is said to be relevant in showing
intent because repeated occurrences of certain unusual events
make it unlikely that any one of those events happened by
mistake or accident
b. Act offered to prove plan and identity: evidence of other acts
may be offered to show they were committed pursuant to the
same or a similar scheme as the crime with which the
defendant was charged
3. evidence is offered solely to establish propensity (criminal disposition)
4. “bad acts may not be used to show bad character”
ii. Acquittal – can prosecutor introduce evidence of a prior crime
1. Can be for other reasons other an innonce
iii. Policy: jury may convict because of past conduct rather than because of guilt
iv. Admissible for non-propensity purposes - motive, intent, plan, knowledge
absence of mistake, identity
1. Character must be at issue
g. Witness Character Evidence
i. Evidence of a witness’s character for truthfulness/untruthfulness may be
admitted under rules 607-609
III. Rule 405 Methods of Proving Character
a. By reputation or opinion: generally permissible when character evidence is
admissible
i. Reputation: what the community thinks about the persons character
ii. Opinion: a witness may give their personal opinion about the person’s
character
 b. By specific instances of conduct: allowed only when character is an essential element
of a charge, claim, or defense (e.g., defamation, negligent entrustment, child custory)
i. Not allowed to prove character except when:
1. Character is an essential element of a charge, claim, or defense
ii. The party’s character is directly at issue
IV. Types of Character Evidence
a. Reputation Evidence
i. Evidence about what the community believes about the persons character trait
b. Opinion Evidence
i. Evidence a witness gives on their own personal opinion about the person’s
character trait.
c. Specific Acts Evidence
i. Evidence of past actions use to rove character, but only admissible when a
character is itself an element of the case
1. Admissible for non-propensity purposes
a. On cross-examination of a character witness, inquiry about
relevant specific acts of conduct may be permitted – 404(a)
b. To show motive, intent, lack of accident, identity, common
scheme or plan, opportunity, preparation or for another non-
propensity purpose – 404(b)(“Prosecutor’s Rule”)
c. When it is being used to show character or a trait that is
essential to the charge, claim or defense – 405
V. Mercy Rule Evidence
a. Generally prevents a prosecutor from introducing evidence of a defendant’s bad
character to show they acted in a certain way on a given occasion unless the
defendant first introduces evidence of their good character, thereby “opening the
door” to such evidence
VI. Opening the door
a. A defendant can voluntarily “open the door” by offering evidence of their own good
character
b. Once the defendant introduces this good character evidence, they have effectively
“opened the door” to the prosecutions ability to introduce evidence to rebut it, which
may include evidence of the defendant’s bad character
VII. Case Law
a. United States v. Calvert
b. Michelson v. United States
c. United States v. Hearst
d. United States v. Carroll
VIII. Rule 412 Rape Shield Law
a. Prohibited uses: the following evidence is not admissible in a civil or criminal
proceeding involving alleged sexual misconduct.
 i. Evidence offered to prove that a victim engaged in other sexual behavior
ii. Evidence offered to prove a victim’s sexual predisposition
b. Exceptions:
i. Criminal Cases – the court may admit the following evidence in a criminal
case
1. Specific instances of a victim’s sexual behavior, if offered to prove
someone other than the defendant was the source of semen, injury, or
physical evidence
2. prior sexual behavior with defendant offered to prove consent
3. evidence whose exclusion would violate defendant’s constitutional
rights
ii. Civil Cases – 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
c. Procedure: if a party intends to offer evidence under rule 412(b), the party must
i. File a motion that specifically describes the evidence and states the purpose
for which it is to be offered;
1. At least 14 days before trial unless the court, for good cause, sets a
different time
2. Serve the motion on all parties; and
3. Notify the victim or, when appropriate, the victim’s guardian or
representative
ii. Hearing: the court must conduct an in camera hearing and give the victim and
parties a right to attend and be heard
IX. Rule 413 Sexual Assault Cases
a. In criminal sexual assault cases, 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.
b. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the
defendant, including witnesses statements or a summary of the expected testimony at
least 15 days before trial or at a later time that the court allows for good cause
X. Rule 414 Child Molestation Cases
a. In criminal child molestation cases, evidence that the defendant committed any other
child molestation is admissible for any matter which is relevant
i. including propensity.
b. The prosecutor must disclose to the defendant at least 15 days before trial
XI. Rule 415 Sexual Assault/Child Molestation
 a. In civil cases concerning sexual assault or child molestation, evidence of defendant’s
commission of similar acts SA or CM is admissible for any relevant matter, including
propensity.
b. The party must disclose to the other party at least 15 days before trial
XII. Case Law
a. United States v. LeMay
b. Judd v. Rodman
XIII. Rule 406 Habit and Routine Practice
a. 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.
b. The court may admit this evidence regardless of whether it is corroborated or whether
there was an eyewitness.
c. Habit: one’s regular response to a repeated situation or a regular practice of meeting a
particular kind of situation with a specific type of conduct
i. Regularity + specificity (not just general tendencies)
ii. Frequency, automatic behavior
iii. Individual
iv. Proven by specific acts or opinion, not reputation
d. Routine: an organization’s regular or systematic method of conducting business
i. Organization
e. Habit and Routine practice vs. Character Evidence
i. Character is almost always a matter of opinion, whereas habit is something
that can be observed
ii. Generally inadmissible to prove conduct on a particular occasion
XIV. Case Law
a. Loughan v. Firestone Tire & Rubber Co.
i. Evidence introduced
ii. Courts reasoning/conclusion

Witness Testimony
I. Rule 601 General Rule of Competency
a. Every person is competent to be a witness unless these rules provide otherwise.
b. In a civil case, state law governs witness competency if state law supplies the rule
of decision.
i. Ability and obligation to tell the truth
ii. Understand the questions being asked
iii. Be able to answer the question, narrate
iv. Personal knowledge
 c. Layman’s: everyone is presumed competent to testify in court, unless a specific
rule says so. In civil cases where state law supplies the rule of decision, then that
state’s rule on witness competency applies
d. Admissibility: whether a witness is competent
e. Weight:
f. Low threshold
II. Rule 602 Need for Personal Knowledge
a. 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
i. “able to perceive the event” – low threshold
b. Evidence to prove personal knowledge may consist of the witness’s own
testimony
c. This rule does not apply to expert testimony under Rule 703
III. Rule 605 Competency of Judge as Witness
a. The presiding judge may not testify as a witness at the trial
b. A party need not object to preserve the issue
IV. Rule 606 Competency of Juror as Witness
a. (a)At the trial
i. A member of the jury may not testify as a witness before that jury in the
trial of the case in which the juror is sitting
ii. If a juror is called, the court must give a party an opportunity to object
outside the jury’s presence
b. (b) During an Inquiry into the Validity of a Verdict of Indictment
i. A juror may not testify about:
1. Any statement made or incident during deliberations
2. The effect of anything on any juror’s vote, or
3. Any juror’s mental processes concerning the verdict or indictment
ii. A juror’s affidavit or evidence of a juror’s statement may not be received
on these matters
iii. Exceptions: A juror may testify about whether:
1. Extraneous prejudicial information was improperly brought in
2. An outside influence was improperly brought to bear, or
3. A mistake was made in entering the verdict on the verdict form
V. Deadman’s Statute
a. Limits a survivor’s testimony against the deceased in a case wehre the deceased is
a party.
b. Policy: death has closed the mouth of one party, and the law will close the mouth
of the other
VI. Case Law
a. United States v. Roach
b. Wheeler v. United States
 c. Rock v. Arkansas
d. Tanner v. United States
VII. Direct and Cross-Examination of a Witness; Refreshing a Witness’s Memory
a. Start with “who, what, where, when, why”
VIII. Rule 603 Oath or Affirmation to Testify Truthfully
a. Before testifying, a witness must give an oath or affirmation to testify truthfully
b. It must be in a form designed to impress that duty on the witness’s conscience
IX. Rule 611 Mode and Order for Examining Witnesses and Presenting Evidence
a. Control by the Court
i. The court should exercise reasonable control over examining witnesses
and presenting evidence to:
1. Make procedures effective for determining the truth,
2. Avoid wasting time, and
3. Protect witnesses from harassment or undue embarrassment
b. Scope of Cross-Examination
i. Limited to the subject matter of direct examination and matters affecting
the witness’s credibility
1. Test credibility – discredit the witness
2. Test perception and memory, reveal inconsistencies, limit direct
testimony, advance your case theory
ii. The court may allow inquiry into additional matters as if on direct
c. Leading questions
i. Should not be used on direct examination except as necessary to develop
the witness’s testimony
ii. Exceptions
1. on cross-examination
2. when a party calls a hostile witness, a child, or in certain
preliminary/background matters, an adverse party
X. Rule 612 Writing Used to Refresh a Witness’s Memory
a. Scope
i. Gives an adverse party certain options when a witness uses a writing to
refresh memory while testifying or before testifying, if the court decides
justice requires
b. Adverse party’s options – the adverse party is entitled to
i. Have the writing produced at the hearing
ii. Inspect it
iii. Cross-examine the witness about it, and
iv. Introduce into evidence any portion that relates to the witness’s testimony
c. Producing the writing
i. If the producing party claims privilege, the court examines the writing in
camera, deleted privileged parts, and orders the rest delivered
 ii. If a party refuses to produce the writing
1. The court may strike the witness’s testimony, or
2. If the justice of the case requires, declare a mistrial
XI. Case Law
a. United States v. Fowler
i. every witness must take an oath or affirmation to testify truthfully.
b. McCrary-El v. Shaw
i. Personal knowledge can be any of the five senses, not just seeing
c. Doty v. Elias

i. The court held that there was no error in allowing the witnesses to use
their schedules to refresh their recollection while testifying.
ii. Document, writing, picture, song, or any other item used to refresh a
witness’s memory may be used because it is not evidence

Hearsay
I. Rumor or gossip, what one person “hears” another person “say”, which is then repeated
in court. Justice requires that a verdict be based on reliable and truthful testimony capable
of validation
II. Rule 801(a)-(c) Hearsay
a. Statement: a statement is an oral or written assertion, or nonverbal conduct of a
person, if it is intended by the person as an assertion.
i. Must be made by a person – e.g., not a clock, an animal, a machine etc
ii. Intended as an Assertion
iii. Not a personal observation, but one made outside of court
b. Declarant: a declarant is a person who makes a statement
c. Hearsay: Hearsay is a statement that
i. The declarant does not make while testifying at the trial or hearing
 ii. A party offers in evidence to prove the truth of the matter asserted.
1. They key for this element is to pay close attention to the purpose of the
statement
a. what is it being offered to prove?
b. Is it relevant for a non-hearsay purpose? E.g., to demonstrate
the defendants state of mind or satisfy an element of a crime
III. 801(d)(1) Exclusions: meets an exemption also called exclusions
a. Statements which are not hearsay. A statement is not hearsay if
i. Prior inconsistent statement
ii. Prior consistent statement
iii. Prior identification – declarant must also be the witness
iv. Admissions by party-opponent – opposing party’s statements
v. Admission by party-opponent
b. Exclusions apply only when the witness testifying is also the declarant
c. Policy rationale:
i. Statement made after are less credible/trustworthy
IV. Rule 801(d) Statements that are Not Hearsay: because they are not offered for the
truth of the matter.
a. “Verbal act” (Pang) is an out-of-court statement that has independent legal
significance
i. Examples: (1) words that constitute an offer/acceptance or terms of a contract,
(2) threats in a prosecution for threatening court officers, (3) money orders or
checks being offered to show they were made
b. Statements offered to show their effect on the listener (McClure)
c. Statements offered to show the declarant’s implied belief (Singer)
d. Statements offered as circumstantial evidence of the declarant’s state of mind
(Loestsch) – implied assertion
e. Statements used to impeach
V. Rule 801(d)(2)(a) An opposing Party’s Statement
a. the statement is offered against an opposing party and:
i. was made by the party in an individual or representative capacity
VI. Rule 801(d)(2)(b)
a. Admissions by silence
VII. Rule 801 (d)(2)(c) An opposing Party’s Statement
a. The statement is offered against an opposing party and:
i. Was made by a person whom the party authorized to make a statement on the
subject
b. Authorized statements
i. Must show the person who made the statement (the agent) had authority
ii. Express or implied
iii. Consider
 1. Acts or conduct of the principal
iv. Principal’s statements to the agent or third party regarding the agent
VIII. Rule 801(d)(2)(e)
a. A statement that meets the following conditions is not hearsay:
b. An opposing party’s statement.
c. Big Picture
i. Does the statement fall within the definition of hearsay under Rule 801 (a)-
(c)?
ii. Does the statement fall within a Rule 801(d) exclusion? If so, it is not
precluded under hearsay rules. If not, move to step 3.
iii. Does the statement fall within a hearsay exception, Rule 803, 804, 807. If so,
it is not precluded by hearsay rules. If not, it is inadmissible hearsay dx
d. Analysis
i. Identify the hearsay declarant and the witness who repeats the hearsay in court
1. Declarant – the person who makes the hearsay statement out of the
court
a. Not when the declarant testifies and repeats her own out-of-
court statement, this statement is not hearsay
b. Excluded: What a declarant says for the first time in court is
not hearsay, but what the declarant says for the first time out of
court and then repeats in court
c. Rationale: because the declarant is not under oath, cannot be
cross-examined, and his demeanor cannot be observed at the
time she made the out-of-court statement
2. Witness – the person who repeats the hearsay statement in court
a. Declarant can also be a witness
ii. Determine if the declarant has made a statement
1. Oral, written, Nonverbal conduct intended as an assertion
2. Communicating a fact
a. E.g., when Zack asks Jane if she saw the defendant run a red
light, Jane nods her head up and down
iii. Determine if the statement was made other than at trial or hearing
1. only statements made by testifying witnesses for the first time at trial
are excluded from potential hearsay.
2. Hearsay statements include those made (1) during a deposition, (2) in
an affidavit, (3) or even in a previous trial of the same or different case
iv. Determine if the statement contains a direct assertion
1. The statement must contain a direct assertion and must be offered for
the truth of that direct assertion
2. The information being conveyed/communicated must be a fact
3. Non-assertive conduct
 a. An order
b. An assumption
c. Questions
d. Implied assertion – not a direct claim but implies a fact
4. Advisory committee note – places the burden of proving the statement
contains an assertion on the party offering the statement
IX. Risks
a. Memory
i. People’s memories are fallible and, often, inaccurate. Becayse if this, cross-
examination permits a party to challenge a person’s memory
ii. Recalling an out-of-court statement is inherently problematic because our
memories may alter the original statement
b. Sincerity
i. People lie
ii. Lies are compounded when they are “told” out of court” and “retold” from the
witness stand
c. Narration
i. When witnesses convey information, they often “retell” it differently that it
was initially conveyed
ii. When the same witness retells the same story at a different point in time, the
story may change
d. Perception
i. A persons perception may be inaccurate based on numerous factors including
1. Vision impairment
2. Hearing impairment
3. Distance from the event
4. Lighting
5. Distractions near the event
6. The person’s state of mind at the time
7. Physical barriers between the witness and the event
X. Concerns
a. Not made under oath
b. Hearsay is not made in front of a fact-finder (judge or jury) so you cannot evaluate
credibility form non-verbal cues
XI. Case Law
a. The Trial of Sir Walter Raleigh
i. Dangers of hearsay – statements not made at trial
b. Grimes v. Employers Mutual Liability Insurance Co.
c. United States v. Jackson
i. whether an assertion was intended
d. Hanson v. Johnson
 e.McClure v. State
f.United States v. Singer
g.Loestch v. New York City Omnibus Corpt.
h.United States v. Mornan
i.Tome v. United States
i. The prior consistent statements must be made before the charged recent
fabrication or improper influence or motive
j. United States v. Lewis
k. Jordan v. Binns
l. United States v. Miller
m. Kirk v. Raymark Industries
n. Mahlandt v. Wild Canid Survival & Research Center, Inc.
i. There is no requirement for the party-opponent-declarant to have personal
knowledge under Rule 801(d)(2)
o. Bourjaily v. United States
XII. Rule 805 Hearsay within Hearsay
a. 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
XIII. Rule 803 (Strong) exceptions
XIV. Rule 804 (Weak) exceptions
XV. Rule 805 Residual exceptions