Scope/Purpose/Appeals/Preliminary Questions

 FRE 101: Scope:

o These rules govern proceedings in the courts of the US with few exceptions.
o Rules of evidence apply only in federal courts at the trial level.
 FRE 102: Purpose and Construction:
o These rules shall be construed to secure fairness in administration, elimination of
unjustifiable expense and delay, and the promotion of growth and development of the
law of evidence to the end that the truth may be ascertained and proceedings justly
determined.
 FRE 103: Rulings on Evidence (APPEALS)
o If an attorney has a problem, he must make an objection (important for appeals)
 Objection must be timely and state specific grounds (unless apparent from
context)
o If evidence is kept out by the judge, an offer of proof must be made (proffer) outside
the hearing of the jury for the record
o A party cannot claim error unless it affects a substantial right
 Did it affect the ability to have a fair trial? Would it have affected the
outcome?
o A court may take notice of a plain error affecting a substantial right, even if the claim
of error was not properly preserved.
o Standard of Review:
 Abuse of discretion standard: preserved it on record; error, objection; error
must affect substantial right of party > if not sub. right, then just harmless
error.
 FRE 104: Preliminary Questions
o The judge is the gatekeeper and must decide any preliminary question about whether
a witness is qualified, a privilege exists, or evidence is admissible. Court is not bound
by evidence rules here (except privilege).
o Conditional Relevance: The court/judge may admit proposed evidence that is
relevant to a fact not discussed yet on the promise that it will be introduced later
(when relevance DEPENDS on whether a fact exists) IF proof is introduced sufficient
to support a finding that the face does exist.
 If opposing counsel does this, keep track and object to a lack of
authenticity/foundation
 Essentially jury hears it and then decides whether it is usable/relevant later
o Court must conduct hearing on preliminary matter (especially question of credibility
or confession) outside hearing of jury during sidebar
o If criminal D testifies on preliminary matter, prosecution cannot cross him on other
issues (he doesn’t give up his Fifth Amendment rights)
o You can still introduce evidence that goes to the weight and credibility of other
evidence for the jury to decide.
o Burdens:
 Burden of Production: moving party must produce evidence for every
element; judge decides whether this is met
 Burden of Persuasion: Jury decides whether this is met
 FRE 105: Limiting Evid. Not Admissible Against Other Parties or for Other Purposes
o Court, upon timely request, must issue a limiting instruction to the jury restricting
evidence to its proper scope.
 FRE 106: Remainder of or Related Writings or Recorded Statements
o Rule of Completeness—If party reads in portion of writing or recording, adverse
party may require the introduction, at that time, of any other part that in
fairness should be considered in context
o Not to be used to circumvent other rules like hearsay and 403.

Authentication & Best Evidence

Authentication
 Authentication analysis is correlated with relevance. In a sense all evidence admitted at
trial must first be authenticated, including witnesses.
 Authentication involves laying a foundation showing that evidence is relevant, and to a
certain extent reliable (sufficient to support a finding that the evidence is what it is
purported to be).
 Three types of evidence: o
o Real:
 (1) Do you recognize X for identification purposes?
 (2) What is X?
 (3) How do you recognize X?
 (4) Is X in substantially the same condition as it was when you last saw it?
o Representative:
 (4) Is X a fair and accurate representation?
o Testimonial: ▪ (1) Do you know?
o (2) How do you know?
o (3) What do you know?
 FRE 901: Authenticating and Identifying Evidence
o Proponent must produce evidence sufficient to support a finding that the item is
what the proponent claims it is.
o List of examples (not exclusive list)
 FRE 902: Evidence That Is Self-Authenticating
o Require no extrinsic evidence of authenticity to be admitted
o Ex: public documents, sealed docs, official publications, certified docs

Best Evidence Rule (“Original Document Rule”)

 Ancient aim of this rule was to prevent fraud
 FRE 1002: An original writing, recording, or photograph is required to prove its content
unless provided otherwise.
o FRE 1003: Duplicate will suffice unless genuine issue raised about fraud
o FRE 1004: Excuse allowed for things like destruction, unobtainable, opposing
counsel has control of original, or not closely related to a controlling issue.
 Analysis
o There must be a legitimate dispute
o Can’t be a collateral matter
 o Writing or document has to be the SOURCE of the information (not just
corroborative)
 It is a rule of production—if you don’t produce, then you don’t get to talk about it
 Say: “Best evidence rule does/does not apply.”
 Do NOT Say: “That would not be the best evidence.”

RELEVANCE

IS THE EVIDENCE RELEVANT?

 FRE 401: Logical Relevance
o Evidence is relevant if it tends to make a fact of consequence more or less
probable than it would be without the evidence.
 FRE 402: Relevant evidence is admissible unless Constitution, statute, rules, or SC says
otherwise

IF RELEVANT, ARE THERE ANY SOCIAL POLICY REASONS TO EXCLUDE THE

EVIDENCE?
 FRE 407: Subsequent Remedial Measures
o NOT admissible to show negligence, culpable conduct, defect in product or
design, or need for warning or instruction
o MAY be admissible for other purpose, like impeachment, or (if disputed)
ownership, control, or feasibility of precautionary measures
 FRE 408: Compromise Offers and Negotiations
o Offer and Statements NOT admissible to prove or disprove the validity or amount
of DISPUTED claim or to impeach
 Except criminal case and when negotiations related to claim by public
office
o MAY be admitted to prove W’s bias or prejudice, obstruction, or negating
undue delay contention
 FRE 409: Offers to Pay Medical and Similar Expenses
o Offer NOT admissible to prove liability, but statement is.
 FRE 410: Pleas, Plea Discussions, and Related Statements
o Withdrawn guilty pleas and nolo contendere please (and statements made to
ATTORNEY) are NOT admissible
o Exceptions: Admissible to complete partial disclosures by D or in certain perjury
cases
 FRE 411: Liability Insurance
o NOT admissible to prove negligence or wrongfulness
o MAY be admissible to prove bias/prejudice, agency, ownership, or control

IF RELEVANT, IS THE EVIDENCE CHARACTER EVIDENCE?

 Non-Sex Related Character evidence
o (see next page)
 Sex-Related Character Evidence
o FRE 412: Victim’s sexual behavior or predisposition is NOT admissible in
any proceeding
  Exceptions—Criminal Cases:
 1) Evidence of specific instances of V’s sexual behavior to
prove that someone other than D was source of semen,
injury, or other physical evidence
 2) Evidence of specific instances of V’s sexual behavior with D
if offered to prove consent or if offered by prosecutor
 3) Evidence whose exclusion would violate D’s constitutional
rights
 Exception: Civil Cases
 May be admitted if its PV substantially outweighs the danger of
harm to any V and of unfair prejudice to any party (inverse 403)
o FRE 413: In sex assault case, court may admit evidence that D committed any
other sexual assault; may be considered on any matter to which it is relevant.
o FRE 414: same as above but for child molestation cases
o FRE 415: civil cases of sex assault and child molestation—same as above

EVEN IF RELEVANT AND NO SOCIAL POLICY REASONS, SHOULD THERE BE

DISCRETIONARY BALANCING?
 FRE 403: Legal Relevance
o Judge has broad discretion to exclude relevant evidence if its probative value is
substantially outweighed by: Unfair prejudice, Confusion of issues, Misleading
the jury, Waste of time

CHARACTER EVIDENCE
Character evidence offered to prove PROPENSITY is NOT admissible. (FRE 404(a))
 Exceptions:
o Defendant’s Character (Criminal Case)
 Defendant can offer evidence of his own pertinent trait (R/O)
 BUT then Prosecution can offer evidence to rebut it (R, O, or SA)
(FRE 405(a))
o Victim’s Character (Criminal Case)
 Defendant can offer evidence of victim’s pertinent trait (subject to 412)
(R/O)
 BUT then Prosecution can offer evidence to rebut it AND to rebut
the Defendant’s same trait. (R, O, SA)
 Prosecution may, in homicide case, offer evidence of victim’s trait of
peacefulness (R, O, maybe SA?)
 As long as it is rebutting evidence that the victim was the first
aggressor.
o Witness’s Character (FRE 608 & 609)
 R/O evidence can be used to attack or support witness’s character for
truthfulness
 But can only be used to support if it has previously been attacked ▪
 Specific Acts can be used to attack character for truthfulness, but extrinsic
evidence is NOT allowed to prove those SA
 Except in Criminal Convictions
 o If Witness is NOT Defendant:
 Evidence of FELONY must be admitted, subject to
403, in civil or criminal case.
 Evidence of any MISDEMEANOR for a crime of
dishonesty or falsehood must be admitted
o If Witness IS Defendant
 Evidence of FELONY must be admitted in criminal
case if PV outweighs prejudice
 Evidence of any MISDEMEANOR for a crime of
dishonesty or falsehood must be admitted
o Subject to time limitations
 If more than 10 years since conviction or release,
whichever is later, Only admissible if PV
substantially outweighs prejudice
 * SA can be used if to prove an essential element of a charge, claim, or defense (FRE
405(b))

Character Evidence (Bad Acts) may be admissible if offered for ANOTHER PURPOSE
(FRE 404(b))
 Other Purposes
o Motive
o Opportunity
o Identity
o Intent/Knowledge
o Common Plan/Scheme
 Huddleston Standard: It is sufficient proof as long as a reasonable jury could believe it
 Other side should argue 403, and should ask for a limiting instruction

If Character Trait rises to level of Habit, then it is probative and can be offered for
propensity (FRE 406)
 Habit = regular “pavlonian” response to a repeated specific stimulus
 Individual (rare)
 Corporate

WITNESSES/OPINIONS/IMPEACHMENT

MAY WITNESS TESTIFY?

 Is witness competent to testify?
o FRE 601: Must be a person—presumed competent unless rules provide
otherwise • Does witness have personal knowledge?
o FRE 602: may only testify if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter.
 Are they under oath or affirmation?
o FRE 603: must give oath or affirmation to tell truth; must be able to understand
the truth
 Is the witness a judge or jury member?
 o FRE 605: Judge cant be witness and judge at same time
o FRE 606: Juror cannot testify unless extraneous prejudicial info improperly
brought to jury, outside influence, or mistake was made on verdict form

MAY WITNESSES BE EXCLUDED FROM THE COURTROOM?

 FRE 615: at party’s request sua sponte, court must order witnesses to leave courtroom
during testimony of others, EXCEPT: Party, Corporate designated person, Essential
person, or Person authorized by statute

HOW SHOULD WITNESS BE EXAMINED?

 FRE 611:
o Judge controls so as to make procedures effective for determining the truth,
avoid wasting time, and protect witnesses from harassment
o Scope of cross examination should not go beyond scope of direct and matters
affecting W’s credibility (unless court’s discretion allows further)
o Leading questions not allowed on direct (unless refreshing, adverse W, or
background); allowed on cross
 May judge examine or call witness?
o FRE 614: court may call and examine sua sponte or at party’s request; parties
may object

WHAT KIND OF TESTIMONY CAN WITNESS GIVE?

 Lay Opinion Testimony
o FRE 701: opinion that is rationally based on W’s perception, helpful to
understanding W’s testimony or fact at issue, and not based on
scientific/technical knowledge
 Expert Opinion Testimony
o FRE 702: Qualified by knowledge, skill, experience, training, or education;
testimony based on sufficient facts and data; product of reliable principles and
methods; and reliable applied principles and methods to facts and data (Daubert)
o FRE 703: facts and data don’t have to be admissible as long as PV in helping jury
understand substantially outweighs prejudicial effect. (Back door to admissibility)
o FRE 704: Can give ultimate opin., but not about D’s mental state if element of
crime in crim. Case
o FRE 705: Expert can give opin. & sit down (no facts/data) but doesn’t limit scope
of cross
o FRE 706: Court can appoint expert witnesses

WHAT IF WITNESS CAN’T REMEMBER?

 Ask leading question
 Refresh Memory
o FRE 612: You may refresh W’s memory with a writing while testifying or
before, but if you do, opposing counsel has right to inspect and cross examine
with it (even if work product)
 Recorded Recollection (see hearsay exception)
MAY WITNESS BE IMPEACHED?
 To impeach a witness means to attack the witness’s credibility or believability.
o FRE 607: Any party may attack witness’s credibility
 Common Types of Impeachment
o Contradiction
 Involves 2 facts: one that W used that was wrong, and the fact that you
offer to correct his testimony
 Theory: if W is inaccurate about one fact, more likely to be inaccurate
about others
 Extrinsic evidence allowed ONLY if important to the case
o Bias
 W is shown to be influences, prejudiced, or predisposed toward or against
a party
 Extrinsic Evidence is permitted
o Criminal Convictions (FRE 609)
 Theory: a W who has been convicted of certain types of crimes is less
believable
 Extrinsic Evidence is permitted.
 Felony
 If D: evidence must be admitted in criminal case if PV outweighs
prejudice
 If NOT D: evidence must be admitted (subject to 403) in civil or
criminal case
 Any Crime of Dishonesty or False Statement
 Evidence of any misdemeanor for crime of dishonesty or falsehood
must be admitted.
 Time Limits • If more than 10 years since conviction or release,
whichever is later, only admissible if PV substantially outweighs prejudice
o Prior Untruthful Acts (FRE 608(b))
 Limited to SA that reflect W’s character for truthfulness (things like
fraud, false pretenses, perjury)
 NO extrinsic evidence allowed. (even though non-collateral issue
o Testimonial Capacities
 Whether testimony is accurate (their ability to perceive the incident, as
well as their ability to explain it now)
 Extrinsic Evidence generally permitted
 Prior Inconsistent Statements
 2 statements by W: 1 given under oath earlier, and one now that is
different. You offer his prior statement to show inconsistency.
 Can come in for impeachment purposes or for truth (Hearsay
Exemption if prior was under oath)
 Extrinsic evidence permitted ONLY if subject matter is important to the
case • W must have chance to explain it
 FRE 613: don’t have to show it to W, but you do to opposing counsel
o Poor Character for Truthfulness (FRE 608(a))
  Type of extrinsic impeachment expressly permitted under 608(a)
 W can have his character for truthfulness attacked by another W in
the form of R/O testimony only (NO extrinsic evidence of SA
permitted)
o If attacked, W can offer R/O evidence to support character
for truthfulness
 What may NOT be used to attack credibility?
o FRE 610: Evidence of W’s religious beliefs is not admissible to attack or
support

HEARSAY

The primary purpose for Hearsay Rules is the need to have a fair cross-examination.
1. Hearsay—Meets the Definition
a. “Out of court statement by a declarant offered for the truth of the matter
asserted.”
b. Think, ‘what is this person on the stand trying to offer evidence of?’
i. Must relate to the ‘matter’
2. not Hearsay—Doesn’t meet Definition—Not Offered for TMA
a. State of Mind of Speaker
b. Effect on the Listener
c. Verbal Act
d. Impeaching with Prior Inconsistent Statement
e. Context
3. NOT Hearsay—Because the Rules Say So—EXEMPTIONS! Full Truth
a. Prior Consistent Statement
i. Declarant testifies (does NOT have to be under oath)
ii. Declarant is subject to cross examination concerning the prior statement
iii. The prior statement is consistent with declarant’s testimony
iv. Statement is offered to rebut an adversary’s express or implied charge that
the declarant’s testimony is recently fabricated or the result of improper
influence or motive
b. Prior Inconsistent Statement
i. Declarant testifies
ii. Declarant is subject to cross examination concerning the prior statement
iii. The prior statement is inconsistent with the declarant’s testimony
iv. The prior statement was given under oath
c. Prior Identification
i. Declarant must be available for cross examination regarding the prior
identification
ii. Declarant identifies a person as someone he has seen previously
iii. We can get this prior ID from someone else as long as the declarant takes the
stand at some point and is subject to cross examination
d. Party-Opponent Admission
i. 5 types: (you must have independent proof of these relationships)
1. Straight Admission
 a. Any statement that comes from the party’s mouth directly
2. Adoptive Admission
a. When you adopt someone else’s statement (verbally or in
silence)
b. Silence: use Huddleston standard to prove; look at context
3. Authorized Admission
a. Authorized party’s statements are treated as party’s
statements
4. Employee Admission
a. Must be a party’s employee
b. Statement must relate to the scope of their employment
c. Statements must be made WHILE they are still employed
d. Statement must be offered by opposing party
5. Co-Conspirator Admission
a. Declarant is a party’s co-conspirator
b. Statement is made DURING and IN FURTHERANCE OF the
conspiracy
c. State v. D1,2,3,4
i. If D1 statement was a confession, it is a straight
admission against D1
1. D2,3,4 ask for a limiting instruction, but US v.
Brewton says this won’t work and to sever the
trial
ii. If D1 statement was a co-conspirator statement
1. Comes in against D2,3,4
2. Not a Brewton problem, but might be a
Confrontation problem (Supreme Court hasn’t
decided)
4. Hearsay, but EXCEPTION > Full Truth
 803 Exceptions:
o Present Sense Impression
 Statement describing any event/condition
 Must have PK
 Made immediately or while he perceived it
o Excited Utterance
 PK
 Startling Event
 Must still be under stress of startling event
 Statement must describe/relate to the startling event
o State of Mind (Present)
 Nothing in the past will fit
o Medical Diagnosis/Treat
 Only from Patient to Doctor
o Record Recollection
 Must be on matter witness once knew about but cant recall now.
 Was made when it was fresh on the witness’ mind.
 Accurately reflects witnesses’ knowledge
 But, only adverse party can enter documents into evidence.
o Business Record
 Made at or near time by someone with knowledge
 During the course of regularly conducted business activity
 The recording of it must be a regular business activity
 Need a custodian.
o Public Record
 Government cannot use its own reports against a defendant in a criminal case.
 But Defendant can offer government’s reports
o Absence of Business/Public Record
 Absence means something…
o Family Doc/History
o Ancient Doc
o Learned Treatises
o Reputation Concerning Character
 Residual Exception
o Equiable circumstancial guarantees trustworthiness
o Offered evidence of a material facts
o More probative than any other evidence we could find
o Interest of Justice – better off letting it in than keeping it out.
o Notice requirement
 804 Exceptions: Witness Unavailable
o 5 ways to be unavailable:
 Privelege Applies
 Refuses to testify despite court order
 Cant remember subject matter
  Dead or existing illness
 Attorney did their best, witness was served, but didn’t show.
o Former Testimony
 Witness unavailable
 Testimony given by witness
 Under Oath (Former Trial/Hearing)
 Given against the party
 Subject to cross by other party.
o Dying Declaration
 Witness unavailable
 Statement made with real honest belief that death is imminent
 Statement must relate to cause of circumstances of death being imminent.
o Statement against interests
 Anyone (unavailable)
 Statement against/contrary to their interests
 When spoken
 Need collaborating evidence if offered in Criminal case.
o Statement of Personal/Family History
o Forfeiture by Wrongdoing
 Defendant must have had something to do with witness’ unavailability
 Defendant intended this to stop the witness from testifying.
 Confrontation Clause
o Is the hearsay Testimonial (statement made with a trial in mind?)
 If no, then “Firmly Rooted” Test applies.
 As long as it fits an exception that is family rooted, then it is
substantially trustworthy and therefore admissible.
 If Yes, then ask whether there was a prior opportunity to cross.
 If yes, then admissible.
 If no, then inadmissible.
 Hearsay (Short)
The primary purpose for Hearsay Rules is the need to have a fair cross-examination.
1. Hearsay—Meets the Definition
a. “Out of court statement by a declarant offered for the truth of the matter
asserted.”
2. not Hearsay—Doesn’t meet Definition—Not Offered for TMA
a. State of Mind of Speaker
b. Effect on the Listener
c. Verbal Act
d. Impeaching with Prior Inconsistent Statement
e. Context
3. NOT Hearsay—Because the Rules Say So—EXEMPTIONS >> Full Truth
a. Prior Consistent Statement
b. Prior Inconsistent Statement
c. Prior Identification
d. Party-Opponent Admission
i. 5 types:
1. Straight Admission
2. Adoptive Admission
3. Authorized Statement
4. Employee Statement
5. Co-Conspirator Statement
4) Hearsay, but EXCEPTION >> Full Truth
 803 Exceptions:  804 Exceptions—W Unavailable
o Present Sense Impression o 5 ways to be Unavailable
o Excited Utterance  Privilege Applies
o State of Mind (present)  Refuses to Testify despite
o Medical Diagnosis/treat. court order
o Recorded Recollection  Can’t remember subject
o Business Record matter
o Absence of Business Record  Dead or existing illness
o Public Record  Attny did best, served but
o Absence of Public Record didn’t show
o Family Doc/History o Former Testimony
o Ancient Doc o Dying Declaration
o Learned Treatises o Statement Against Interests
o Reputation Concerning Character o Stmt. of Personal/Family History
o Forfeiture by Wrongdoing
 Residual Exception
4a) Confrontation Clause
 Is the hearsay TESTIMONIAL (stmt. Made with trial in mind)? (Crawford v. Washington)
o If No, then Ohio v. Roberts “firmly rooted” test still applies.
 As long as it fits an exception that is firmly rooted, then it is substantially
trustworthy and therefore admissible.
o If Yes, then ask whether there was a prior opportunity to cross. (yes-admis; no-not).
PRIVILEGES
GENERAL (FRE 501 & 502)
 Privileges give special treatment (cloak of secrecy) to a variety of confidential
communications
o Attorney-Client, Priest-Penitent, Therapist-Patient, Spousal Privilege
o Information conveyed in a privileged communication cannot be brought into a
trial and cannot be subject for discovery even though the statement may be relevant to
a disputed issue
o All about relationships
 There are some relationships that are worth more than admitting
evidence
o “Greater and Lesser”
 Greater = getting info
 Lesser = provided info (generally is the holder of the privilege)
o Analysis
 Do we have a relationship?
 Is it a relationship society recognizes as privileged? (is it confidential?)
 Are communications related to the relationship?
 Who is the holder?
 Created? (focus on mindset of lesser)
 Duration?
 Waiver?
 Breach?
 Termination?
o 2 Caveats:
 1) Can’t use privilege to protect ongoing criminal activity.
 2) Can’t use privilege when you are fighting each other.
SPOUSAL PRIVILEGE
Adverse Spouse Priv. Confidential Communication Priv.
Created Marriage Marriage
Duration Only during the marriage During the marriage and after
Termination Divorce or Waiver Only by waiver
Information Communications made during Only confidential information
Protected marriage, but realistically
everything
Holder Testifying Spouse Adverse Spouse
(D Spouse cant stand in W spouse (D Spouse can prevent W spouse from
way) testifying about confidential comm.)
Policy: Why save this marriage.
[clear, greater, and lesser]
Cases Only criminal Civil and criminal
If invoked, state isn’t allowed to Spouse can still be called to testify
call spouse to testify at all! about non-confidential stuff
Complete bar! (Observations, non conf. comm.)

ATTORNEY-CLIENT PRIVILEGE
 Trying to unify what we do if there is inadvertent disclosure
 If you give the information over, and something in there is privileged, then you can “pull
back” some of that information.
 FRE 502 applies if there is no agreement between the parties. But if there is an agreement
between the parties, then that agreement trumps this rule
 The receiving party must go through to see whether something in there was privileged.

JUDICIAL NOTICE
FRE 201

SCOPE
 Covers adjudicative facts, NOT legislative facts
FACTS NOT SUBJECT TO REASONABLE DISPUTE
 Facts generally known by everyone in the jurisdiction (Ren. Hotel is downtown)
 Basic facts from a source no one objects to (weather, venue)
TAKING NOTICE/TIMING
 Court may take notice sua sponte or must if party requests it & supplies necessary
information
 May do so at any time of proceeding
OPPORTUNITY TO BE HEARD
 On timely request, party may be heard
INSTRUCTING THE JURY
 Civil: Court must instruct jury to accept fact as conclusive
 Criminal: Court must instruct jury that it may or may not accept fact as conclusive

PRESUMPTIONS
FRE 301 & 302
(But really, created by statute)
 3 basic types
o Permissive
 If A, then B
 If BAC is .10 then impaired
 Attack B (but you can also attack A)
o Mandatory
 If A, then you must find B
 You can only attack A
o Bubble Bursting
 If A, then B unless –B
 If BAC is .10 then impaired, unless not impaired
 Attack B (but you can also attack A)
 Bubble Bursting:
o When we have presumption, we don’t want to shift the burden of persuasion,
but we will shift the burden of production
o Plaintiff offers evidence of A. Then, burden shifts to D to offer contrary B
evidence. If they do, then the presumption goes away and there is no presumption
any more
 o If D doesn’t offer contrary B evidence, then the presumption sort of turns
into a mandatory presumption.
 Permissive
o You can still offer contrary evidence, but the presumption might go away (jury
may still consider or disregard the presumption)