RELEVANCE

I. Regular relevance R401A. Low threshold

II. Conditional Relevance R104bA. If relevance of evidence depends on existence of fact---B. Proof sufficient to support finding of fact existing must be introduced

III. Stipulation R403A. Jury doesn’t have to hear detailsB. Old Chief

i. Can’t necessarily demand to stipulate, butii. Balance probativeness of stipulation without full details against…

iii. Unfair prejudice of full details describedIV. Automatically Excluded R407-8

A. Remedial measures as proof of negligenceB. Settlement offers/discussionsC. InsuranceD. Offers to pay med expenses

i. Surrounding statements might get inE. Exceptions

i. Witness biasii. Negate claims of undue delay

iii. Obstruction of investigation

PROBATIVE V PREJUDICE R404(b)

Balance at end of every decision process

CHARACTER EVIDENCE PROCESS

I. What is evidence being used to show?A. NO character propensity evidence, like truthfulness, in civil caseB. MUST still be probative of one of these non-propensity reasonsC. Propensity

i. HYPO: D accused of killing dog, intro conviction for previous dog killing1. Goes through propensity box

D. Habit/Routine R406i. One time’s not enough

E. Motivei. HYPO: wanted for stickup, suspected shot cops

1. Threat of going back to jail motivated shooting2. Just because he’s wanted criminal doesn’t mean he shoots cops

ii. HYPO: streetcar operator was rushing day he ran someone over1. Motivated to be in a rush that day2. Sounds like he’s overly hurried, propensity

F. IDi. Test: “whether crime is idiosyncratic”

ii. Must include jury instruction against prejudiceiii. HYPO: Bombs in two cases very similar, low odds it could’ve been diff bombers

(Trenkler)1. Had previous incident killed 500 people, might be too prejudicial

iv. HYPO: guy has same gun as in crime1. Likely same gun used to kill agent2. Propensity to use that gun violently

G. IntentH. Knowledge

i. HYPO: D knew about hidden compartment last time, so knows nowI. Absence of MistakeJ. Modus Operandi

i. Doctrine of Choices1. “The odds that this randomly happened…”2. Goes around propensity box by looking at law of averages

ii. HYPO: three wives killed, gets in

II. Crim Case? R404A. D > Self: circumstantial evidence that D did not commit crime (specific only if character

crucial to crime)i. P may rebut

1. Reputation/opiniona. Can bring in crimes of D to show that W lying, or doesn’t know

D’s problems (Michelson)B. D > V

i. Reputation/Opinionii. P may rebut

1. Evidence of D same trait2. Rep/op and specific acts3. In homicide case: Victim being peaceful and therefore not first aggressor

C. D > anyone: party character = essential elementi. Rebuttal of entrapment: saying you have no proclivity towards this crime

ii. Proving/rebutting evidence of truth in libel/slanderiii. Resolving parental custody

D. P > D: ONLY if D claimed V first aggressorIII. Impeachment: About Witness? Character for (Un)truthfulness ONLY

A. Reputation/Opinion R608ai. Intro for Own Witness

1. Truthfulness ONLY if attacked first2. If attacked, can bring witnesses to defend

ii. Enemy Witness: other witnesses to attackB. Prior Convictions R609

i. Severe Crimes1. Year+ in prison2. >10 years ago doesn’t come in3. Balancing test (Gordon):

a. Nature of crimeb. Time since conviction, subsequent historyc. Similarity btwn past crime and charged crimed. Is W’s testimony crucial to outcome of case?e. Centrality of credibility issue

ii. Crimen Falsi1. Likely to lie on stand2. No 403 balancing here

a. Unless >10 years agoC. Specific Acts: ONLY to prove untruthfulness

i. NO extrinsic evidence of thisii. Cross-Examination: can ASK about bad acts of:

1. W themselves (“did you lie to a cop last year?”) (NO arrest question)2. Other W they’re testifying about (“did victim lie to cop last year?)

iii. Stuck with answer witnesses give here1. You can cross the witness who impeached yours, but that’s it

Standards for Impeaching Witness

IV. Reputation/Opinion R405A. Opinion

i. Someone who really knows D, can form legit opinionB. Reputation

i. Rehabber has lived in W community for a long timeV. Huddleston Admissibility Standard: Conditional Relevance

A. Reasonable jury looking at all evidence could have found acts to be truei. Same as conditional relevance

ii. NOT preponderance of the evidenceiii. Even if acquitted, reasonable jury still might have found true

B. Protections from low bar:i. No propensity

ii. R402 relevancyiii. R404 probative v prejudice

SEXUAL CHARACTER EVIDENCE

I. V sexual past evidence barred R412A. Evidence of past false accusations perfectly allowed (State v Smith)B. Relationship with P witnesses, PTSD evidence not allowed

II. Criminal Case ExceptionsA. Specific instances to prove someone else committee crimeB. Specific instances WITH D to prove consentC. Constitutional violations

1. Due Process/right to fair trial: how important is the evidence to the trial?2. Confrontation Clause:

i. Bias (Olden)a. Can introduce evidence of V having reason to lie, like to cover up

cheatingii. Untruthfulness (by jurisdiction)

3. Sixth A right to compel witnesses in defense4. Right to testify in one’s defense

i. Can use her past actions to prove D state of mind, that he thought she’d be easy and thought there was consent (Knox)

ii. Can say that V was upset in aftermath of sex, though have to be careful describing actual incident (Stevens v Miller)

III. Similar Acts by D Go In R413

HEARSAY DEFINED

I. Definition:A. Out of court statement…

i. Including affidavitB. Offered to prove truth of matter asserted

i. Did declarant mean to assert that fact?II. ID’ing

A. Assertion = conveying something other party doesn’t knowB. Nonverbal: Conduct v Assertion

i. Was there an audience? If not, likely conduct1. Deckhand testifying that ship captain inspected ship and sailed on it,

testifying to seaworthinessii. Did actor intend to make assertion? If so, assertion

1. Scientist > former nuke test site with family indicates safe2. President > former nuke test site is him ASSERTING its safe

III. Special KindsA. Verbal Act Exception: if it has legal weight, like saying ‘I do,’ inB. Implied v Indirect Assertions (DIAGRAM)

i. Implied1. No intent to communicate assertion, no info shared2. Does listener already know what’s being asserted?

a. If so, not hearsay3. HYPO: “Can I have a fork?”

a. NOT meant to assert “there are no forks”b. The waiter ALREADY KNOWS there are no forksc. Could prove absence of forks in restaurant, bc implied

ii. Indirect1. Assertion in statement, but diff from desired one2. Process

a. What is statement being offered to prove?b. Is what party’s trying to prove DEPENDENT on truth of statement

assertion?i. If the direct assertion needs to be true for the indirect one to

be true, hearsay3. HYPO: “I’m going running,” also asserts “I’m healthy enough to run”

iii. Choosing1. What’s actually being asserted?2. Courts don’t want unspoken assertion let in3. HYPO: Manager tells employee to de-ice stairs

a. Looking at stairs = Implied assertion, can see stairs are icyb. Inside building = Indirect assertion that stairs are icy

HEARSAY EXCLUSIONS 801d

Lack of Intent to Communicate

I. Nonassertive words like “ouch”II. Statement uttered to prove something other than asserted

A. Similar to Indirect AssertionB. HYPO: A asks B, “what should I do with investments?”

i. Offered to prove B’s mental competenceii. Obviously, A thinks B is mentally competent,

iii. BUT not what he’s sayingIII. Statement = circumstantial proof of knowledge

A. Is there some other piece of evidence that statement is being compared to?B. HYPO: D has document accurately describing meth cooking > D knows how to make

meth > D is meth dealer

Other Hearsay Exclusions

IV. Prior inconsistent statement under threat of perjuryA. Includes depositions

V. Prior consistent statement IF rebutting credibility attacksVI. Prior ID

A. Independent matching of memory to person, NOT just story bout incidentB. HYPO: statement to nurse about who beat you up

i. P will say prior ID R801ii. D will say just a statement

VII. Opposing party’s or coconspirator’s statementsA. They can testify themselves and confront, so why not?B. Employer/employee

i. Even if your boss doesn’t know the facts, his statement gets in (Sophie the Wolf)C. Coconspirator needs (Bourjaily):

i. Evidence of conspiracy1. Don’t need to charge conspiracy2. Do need some evidence though

ii. Statement in furtherance of conspiracyiii. Between declarant and party

PRIOR INCONSISTENT STATEMENTS

Rationale

I. Motive to Lie: these statements must be truthful bc parties would be honestII. Timing: must have been uttered before parties had any motive to lie

Types

III. Prior Inconsistent Statement, party on stand R613A. Extrinsic or in courtB. Admissible only to impeach

i. Though impeached could permit statement inC. Not for truth of assertion

i. Fatal Attraction HYPO: Michael Douglas said he had affairii. =motive, even if statement doesn’t prove truth of affair

IV. 801dA. Must have been:

i. Prior testimony ORii. Prior ID

B. Cross ONLYi. Needs to be able to explain or deny

C. Can examine about probative onlyD. Admitted to prove truth of matter asserted

V. Unavailable R804A. Must be unavailable + prior opportunity to be crossed (look below)

WITNESS UNAVAILABILITY R804

Reasons for Unavailability

I. PrivilegeII. RefusalIII. Lack of Memory/InfirmityIV. Disappearance/Death

Exception Types

I. Prior TestimonyA. ONLY if party or predecessor had opportunity and motive to cross

i. Different parties, but same goals; like suing sailor in court and Coast Guard at hearing (Lloyd)

ii. Depo doesn’t count as crossB. Tougher standard than R801

II. Dying declarationA. Party must have subjectively expected imminent death

i. Week before you die prob doesn’t count (Shepard and poisoning)III. Statement Against Interest

A. Broad definition: wouldn’t have made it if not trueB. How to Use

i. Self-Inculpatory Statements1. Only use the parts of statements that incriminate2. Must ignore parts that are exculpatory

ii. Criminal context1. Requires corroborating circumstances2. Mens rea could get dicey

a. Arsonist fingering hirer might be entirely admissibleb. But fact that he wasn’t mastermind might be exculpatory

iii. Conspiracy Context1. Can’t use statement of one conspirator against another, because biased

(Crawford)IV. Wrongdoing

A. Party prevented witness from appearing, like killing themB. Needs intent to prevent testimony, not just wrongdoing (Gray)

AVAILABILITY IMMATERIAL

I. Present Sense ImpressionsA. Admissible for truth of situationB. Can include narrative during events (Dog-Mauling Case, 911 call)

i. D could say party wasn’t seeing anything concreteii. P would at least get screaming in

II. Excited UtteranceA. While party is still in situation, shortly thereafter

i. Dog-Mauling Case could also get in through here III. Then-Existing Mental/Emotional/Physical Condition

A. Admissible for mental stateB. Intentions/impressions for future can be sketchy

i. Might be just “propensity for someone to do something” (Hillmon, death in desert)

MEDICAL STATEMENTS

I. Hearsay Exception R803A. Not only to doctorsB. Criteria

i. Subjective: was statement made to get/enable treatment?1. Facts stated must be relevant to treatment

ii. Objective: reasonable Dr rely on in diagnosis/treatment?1. Allows in how you got injuries, NOT just symptoms2. HYPO: pushed down the stairs

a. Fact that didn’t just fall could affect physical impact, treatmentb. Cause could be irrelevant to fall itself

3. HYPO: child tells bout caretaker abuse (Iron Shell)a. Dr needs to check if abuse continuous

4. Statement to person taking you to Dr might count5. Statement during treatment might count, jurisdiction dependent

C. Rationalei. People tell medical truth to get healthy

II. Facts for Expert TestimonyA. Come in under same rule as aboveB. Admissible for truth even if just basis for Dr testimony

WRITTEN RECOLLECTIONS

I. Hearsay Exception R803A. ID’ing

i. Substitute for testimonyii. Must be written by W

B. Criteriai. Firsthand knowledge at time BUT unable to recall

ii. Statement made near actual eventiii. Witness vouches for accuracy

1. Needs to guarantee accuracy in court (Lil Arnold case)II. Testimony Aid R612

A. Lets W refresh memoryB. Actual recording not admitted

OFFICIAL RECORDS R803

I. Public records/reports R803A. Adversariality

i. Police records/investigations can’t come in because could be biased towards getting criminal

ii. If adversarial, creator of record must testify as to method of creation1. Chemist in crime lab must testify as to how generated results, in order for

results to be admissible (Ontes)2. IRS tax assessment can get in because assessor on stand, and because

supposedly less adversarial (Hayes)iii. Things like fingerprints/photos get in just fine

B. Usei. Crim: Only against gov, NOT against D

ii. Civil: everyoneII. Business Records

A. Qualificationi. Can’t have been made in prep for litigation

1. Police chemical records get in, because business of lab is litigationB. Use

i. Employee must testify about own records, or about records made by another employee

ii. Business can’t speak to part of record created by customer (Vigneau, Western Union signing not admissible)

iii. Can’t be used to get around Public Records exception parametersIII. Judgement of Previous ConvictionIV. Absence of Regular Records

RESIDUAL EXCEPTION R807

Criteria

I. NecessityA. Crucial to caseB. Really impractical to get proof of substance otherwise

II. TrustworthinessA. More reliable than actual witness

Use

III. Like 403/404: always throw inIV. HYPO: newspaper article bout fire 80 years ago (Dallas v Commercial Union)

CONFRONTATION CLAUSE

CRIM ONLY

*Do after hearsay (RULE INTERACTIONS NEXT PAGE)

Criteria

I. DefinitionA. W/O opportunity to cross-examine accuser, testimonial evidence can’t get in (Crawford,

stabbing and self-defense/not)i. Wife claimed spousal priv, so couldn’t be crossed

II. Testimonial? A. = Designed to create record for trialB. Primary Purpose Test (Bryant) requires OBJECTIVE analysis of:

i. Circumstances: objectiveii. Intention of speaker

1. What would RPPUSC have intended by statement?2. Might want to ID threat…3. Or to get cops to arrest your enemy

iii. Intention of questioner1. Police: might want to control emergency2. Or might want to establish case

C. Determination Examplesi. Testimonial: establish facts of past crime

1. Affidavit on domestic battery (Hammon v IN)ii. Not Testimonial:

1. Ongoing emergencya. 911 call, “he’s jumping on me” (Davis v Washington)b. Victim just shot, perp could be running around with gun (Bryant)

2. Informal 3. Events as they happened

iii. Examples1. Police interviews may or may not be testimonial2. Criminal lab results must be accompanied by technician (Melendez-Diaz)3. Calculations for victim ID, not actually introduced into evidence

(Williams v IL) (got in but questionable)a. Prob made for facts of crimeb. Need to hear procedurec. Machines aren’t making assertionsd. No incentive to lie, no D in sighte. Not evidence itself, but basis for expert testimony

D. Dying declarations to cop fine

Interaction with other Rules

I. Declarant Unavailable R804: need of prior cross coversII. Declarant Availability Immaterial R803: D prob available

III. Present Sense ImpressionA. Can be a prob: HYPO calling cops on neighbor selling drugs

i. Ongoing emergency needs to stop, not testimonialii. Telling cops why to arrest someone, testimonial

IV. Excited Utterance: could be problem if said in anger, testimonialV. Medical History Statement: not part of police rep. so prob not testimonialVI. Business/Public Records

A. Records like lab testing reflect determinations, need actual creator on stand (Bullcoming)B. Other business records just fine without witness

LAY V EXPERT TESTIMONY R701-6

Criteria

I. LayA. Firsthand knowledge/perception

i. Particular knowledge:1. Drug use2. Business area expertise

a. Sometimes only for your specific firmb. Personal experience > general principles

B. Nongratuitous, actually usefuli. Would jury have wanted to be in witness’ shoes when forming opinion?

ii. Nonfactual inferences: “he’s tall”1. Kind of opinion, can’t be reduced to fundamental facts

C. No scientific testimonyi. Can’t BS pieces of expert testimony under lay guise (Ganier, tried to sneak form

for incriminating computer searches)II. Expert

Criteria (DOWN THROUGH F)

A. Proper qualificationsi. Not necessarily formal training

ii. Experience must be significant (Jinro v Secure Investments, Korean culture and girl)

B. Proper topic: if average judge/juror could figure out, doesn’t worki. “Consistent with account” works (Zimmerman trial)

ii. CANNOT reach ultimate legal conclusions1. Testifying to matter of law, that cop didn’t follow normal procedure

(Hugh v Jacobs)2. Can’t say handwriting exactly matches, just qualities in common

iii. “Macho” and “Match” sounding alike (Chesebrogh-Pond)iv. Can’t testify as to specific individual credibility (Batangan)

C. Sufficient basisi. Facts they’ve been informed of, even if not observed

ii. Attorneys can ask hypos based on R104b conditional relevance to flesh out expert opinion

iii. Can’t be totally based on hearsay material (Williams v IL, lab test was hearsay exception but still hearsay)

iv. Psychiatrists can reasonably rely on D. Relevant/reliable methods…

i. Normally relied on by experts in these casesii. Reasonably relied on here

E. Reliably applied to facts (Daubert, Kumho) (LOOK DOWN)

Court doesn’t have to go through every point (Kinney)

i. Can technique be tested?ii. Peer reviewed?

1. Might not work for experience-based expertiseiii. Known rate of error/quantifiable reliability?iv. Existence of standards for industry?v. General acceptance?

F. R403 challengei. Facts must be more probative than prejudicial

AUTHENTICATION OF EVIDENCE R901-2

I. Authenticity R901AA. Easy standard of proof, but can be arguedB. Chain of Custody

i. Helpful for docs that may have ben tampered withC. Nonexpert unqualified on handwriting

i. But personal knowledge for lay testimony could workII. Self-Authenticity R902: gov seals speak for themselves

A. Exhaustive list if neededIII. Ancient Documents

A. Needs to be at least 20 yrs old with established authenticityB. Condition/finding place must make sense (Stelmokas, Holocaust docs)

IV. Phone CallA. Usually based on phone ownership/voice recognitionB. Can piece together using distinct characteristics R901b4 (State v Small, accent)

V. Photos/VideoA. Someone present must testify to authenticity; for CGI, creators (Simms)B. Silent Witness Theory: video authenticates itself court considers (Wagner v State):

i. Time/dateii. Editing/tampering

iii. Equipment usediv. Procedure/security around equipmentv. Testimony ID’ing video subjects

C. HYPO: cop sleeping while video rollsi. Prob wouldn’t work under normal theory

ii. Prob would work under silent witnessVI. Best Evidence Rule

A. Original doc required, unless excused R 1002i. Drawings made after litigation began don’t count (Lucasfilm)

B. Mechanically-made duplicates that preclude human error admissible R1003i. IM convo copied and pasted into Word couldn’t work (US v Jackson)

C. Destruction, bad faith, loss of original can excuse R1004

PRIVILEGES R501

Application

I. Reason: policy reasonsII. Experience: law in other jurisdictions

A. Just bc states recognize some priv, doesn’t mean fed should draw expansive priv (Redmond, Scalia)

Types

I. Psychiatric (Redmond)A. Shouldn’t be absolute

i. Psychiatrists not necessarily central to mental healthii. Therapists to social workers a jump

iii. If patient knew/intended for threats to get out, might not protectB. Evidentiary needs could overrule privC. Still strong

II. Reporter (Valerie Plame case)A. 1st Amendment

i. Protects freedom of pressii. LE importance butts up against

B. R501 common law privi. Majority:

1. Don’t recognize priv2. Even if did, wouldn’t apply here

ii. Concurrence 1:1. Who would even count as journo?2. This should be legislative

iii. Henderson Concurrence: sameiv. Tatel Concurrence: Public interest v Priv balancing test

1. Would find no priv hereIII. Attorney/Client

A. Found at time of evidence creationi. If attorney wasn’t working for you when statement was made, even if he does

later, doesn’t count (Gionis)B. Client intentC. Inadvertent Disclosure (Williams, doc accidentally sent and asked back)

i. Unintentional?ii. Reasonable steps to prevent?

1. Sworn statements on production practices would’ve helped2. Spreadsheets to keep track?3. Tumeframe?4. Production control?

iii. Reasonable steps to rectify?1. One letter without follow-up insufficient2. Atty/client priv must be guarded