evidence flow chart 2008-09

Relevant?Does the evidence have any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence? [401, 402]

Look to the controlling substantive law to determine if the fact is of consequence...use common sense!

Not Admissible!Evidence which is not

relevant is not admissible.

NO

Danger of unfair prejudice?Is its probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence? [403]

Remember: Must be raised by party [waived under 103 if not raised] & judge has wide discretion [must play with the facts]!

Looking for: Some reason the jury would use this evidence to come to a decision on an improper [emotional] basis. Ex. Old Chief

Factors to Consider: (1) probative value of the evidence, (2) importance of fact to be proven, (3) alternative means of proving the point, (4) degree to which the fact to be proven is disputed, (5) how likely the jury is to follow limiting instructions.

YESAdmissible except...

Not Admissible!Exclusion of relevant

evidence on grounds of prejudice, confusion, or

waste of time.

NO

Proponent of Evidence: Three Foundations Required

1. Authentication2. Best Evidence

3. Get past hearsay

Physical evidence?(document, record, etc.)

Authentication [901]Evidence sufficient to support a finding that the

matter in question is what proponent claims.

Authentication & identification is a condition precedent before evidence is admissible.

Must: Provide a basis for the fact finder to believe that the evidence is what the proponent

claims it to be.

Remember: The jury doesn't have to believe the evidence even if it has been authenticated!

Proponent of Evidence: Two Foundations Required

1. Authentication2. Get past hearsay

Testimonial Evidence

Character Evidence -- PROPENSITY[404, 405, 406]

404 = Type of information about character allowed405 = How the character information may be proved

Evidence of character is not admissible to prove actions in conformity therewith [404(a)] EXCEPT

(1) Character of Accused: in a criminal case, A can offer evidence of a relevant character trait they have (& P can offer evidence to rebut the same) OR Evidence of A's character can be offered by P IF evidence of V's character is offered by A under 404(a)(2). Remember: A must open the door 1st & only reputation or opinion testimony--no specific instances (except on cross) [405]!

(2) Character of Victim: In a criminal case, A can offer evidence of a relevant character trait of V (& P can offer evidence to rebut the same AND evidence about D for same character trait) OR In a homicide case, P can offer evidence of V's peacefulness to rebut evidence that V was the first aggressor. Only in assault & homicide cases where A claims V was 1st aggressor. Remember: A must open the door 1st & only reputation or opinion testimony--no specific instances (except on cross) [405]!

(3) Character of Witness: Attacking the credibility of character W w/evidence of untruthful character. Look @ Impeachment [See 608 & 609]. Can try to impeach any witness!

Special for Sex Offense Cases: P can offer evidence of D's other sex offenses (including if only arrested or charged) for any relevant purpose--including propensity [413, 414, 415].

Laying the Foundation for a Character W: Put W on the stand and ask (1) if D is a member of the same community as W (2) if W has resided in that community for a long period of time (3) if D has a reputation in that community for a trait of character (4) establish that W knows that reputation.

Character evidence is highly relevant, but excluded for policy reasons. Conviction because bad person, not

because committed THIS crime.

Remember: Character evidence & impeachment go together. One party introduces character evidence & other party will first object to the introduction of character evidence & then second try to impeach W.

Is the evidence admissible...?

Character Evidence -- PROPENSITY[404, 405, 406]

404 = Type of information about character allowed405 = How the character information may be proved

Evidence of character is not admissible to prove actions in conformity therewith [404(a)] EXCEPT

(1) Character of Accused: in a criminal case, A can offer evidence of a relevant character trait they have (& P can offer evidence to rebut the same) OR Evidence of A's character can be offered by P IF evidence of V's character is offered by A under 404(a)(2). Remember: A must open the door 1st & only reputation or opinion testimony--no specific instances (except on cross) [405]!

(2) Character of Victim: In a criminal case, A can offer evidence of a relevant character trait of V (& P can offer evidence to rebut the same AND evidence about D for same character trait) OR In a homicide case, P can offer evidence of V's peacefulness to rebut evidence that V was the first aggressor. Only in assault & homicide cases where A claims V was 1st aggressor. Remember: A must open the door 1st & only reputation or opinion testimony--no specific instances (except on cross) [405]!

(3) Character of Witness: Attacking the credibility of character W w/evidence of untruthful character. Look @ Impeachment [See 608 & 609]. Can try to impeach any witness!

Special for Sex Offense Cases: P can offer evidence of D's other sex offenses (including if only arrested or charged) for any relevant purpose--including propensity [413, 414, 415].

Laying the Foundation for a Character W: Put W on the stand and ask (1) if D is a member of the same community as W (2) if W has resided in that community for a long period of time (3) if D has a reputation in that community for a trait of character (4) establish that W knows that reputation.

Character evidence is highly relevant, but excluded for policy reasons. Conviction because bad person, not

because committed THIS crime.

Remember: Character evidence & impeachment go together. One party introduces character evidence & other party will first object to the introduction of character evidence & then second try to impeach W.

Is character specifically at issue? [405(b)] Look

@ substantive law

Admissible! May offer character W's AND may show specific instances

of conduct! [405(b)]

YESIs it evidence of habit of a person or routine practice of an organization? [406]

Habit is NOT character!

Prove habit by putting Ws on the stand to describe specific

incidents BUT can use evidence even w/o cooberation.

NO

Admissible! Evidence of habit is admissible to prove

that the person acted in conformity therewith

YES

Evidence of other crimes, wrongs or acts may be admissible for

other purposes!

NO

Is it evidence of specific acts to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake or accident, modus operandi, or doctrine of chances? [404(b)]

Must establish that the uncharged misconduct took place with admissible evidence; burden of proof is unclear, but Huddleston applied

something lower than preponderance.

Admissible if its probative value is not substantially outweighed by

unfair prejudice. [403] Consider: how probative, how much helps

state''s case, issue disputed, other less prejudicial evidence available, similarity, etc.

YES

Is it evidence of similar crimes or wrongs or acts

offered in a case involving sexual assault or child molestation?

NO

Inadmissible unless offered against accused in a criminal prosecution for sexual assault or child molestation & the prior

similar offense meets the standard of an "offense of sexual assault" [413; 414]

NO

Impeachment [405, 697, 608, 609, 613, 801(d)(1)(A)]

Introducing evidence to make W seem less credible (less truthful).

Impeaching Any Witness: Anytime a W testifies (including a D), opinion & reputation evidence relating to untruthfulness may be introduced to attack their credibility. (Plus, after a W is attacked, evidence of their truthfulness can be introduced to rehabilitate them as a W). [608(a)] On cross, (in the discretion of the court), specific instances of W's conduct can be inquired into, but cannot introduce extrinsic evidence. [608(b)(1)]

Witnesses Testifying About the Truthfulness or Untruthfulness of Another Witness (Impeaching Witness): Specific instances of conduct concerning the truthfulness or untruthfulness of the person the W had testified about can be inquired into (in the discretion of the court) on cross, but cannot introduce extrinsic evidence. [608(b)(2)]

Impeaching a Character Witness: Specific instances of conduct concerning the character trait the CW already testified about can be inquired into on cross. [405(a) last sentence]

Consider Also: (1) prior inconsistent statements (2) bias (3) lack of capacity, (4) contradiction.

Avoidingpropensity

Is it evidence of habit of a person or routine practice of an organization? [406]

Habit is NOT character!

Prove habit by putting Ws on the stand to describe specific

incidents BUT can use evidence even w/o cooberation.

Evidence of other crimes, wrongs or acts may be admissible for

other purposes!

Impeachment [405, 697, 608, 609, 613, 801(d)(1)(A)]

Introducing evidence to make W seem less credible (less truthful).

Impeaching Any Witness: Anytime a W testifies (including a D), opinion & reputation evidence relating to untruthfulness may be introduced to attack their credibility. (Plus, after a W is attacked, evidence of their truthfulness can be introduced to rehabilitate them as a W). [608(a)] On cross, (in the discretion of the court), specific instances of W's conduct can be inquired into, but cannot introduce extrinsic evidence. [608(b)(1)]

Witnesses Testifying About the Truthfulness or Untruthfulness of Another Witness (Impeaching Witness): Specific instances of conduct concerning the truthfulness or untruthfulness of the person the W had testified about can be inquired into (in the discretion of the court) on cross, but cannot introduce extrinsic evidence. [608(b)(2)]

Impeaching a Character Witness: Specific instances of conduct concerning the character trait the CW already testified about can be inquired into on cross. [405(a) last sentence]

Consider Also: (1) prior inconsistent statements (2) bias (3) lack of capacity, (4) contradiction.

Evidence of Conviction of Certain Crimes [609]Anyone who would steal would probably lie...

Note: NOT Character evidence by definition--offered to show lack of credibility

Did the crime involve dishonesty or false statements? [609(a)(2)]

Shoplifting (no); Willful failure to file tax return (yes); distributing cocaine (no); forgery (yes); burglary (no); conspiracy to distribute drugs (no); murder (no); obstruction of

justice (maybe); misrepresenting self as a cop (yes)

Has it been 10+ years since the conviction or the release from jail? [609(b)]

Is the prior conviction of the

accused?

Is the probative value substantially

outweigned by unfair prejudice?

(i.e. 403 balancing) [609(a)]

Does its probative value outweigh its prejudicial effect?

[609(a)(1)]

Consider: (1) nature of the crime (2) time of the prior conviction (3) subsequent criminal history (4)

similarity of the past crime to the current crime (5) importance of the

D's testimony (6) and the importance of the D's credibility.

NO

YES

Inadmissible!

NO

Admissible Note: 10 year rule of 609(b)

applies.

YES

Inadmissible!

Admissible Note: 10 year rule of 609(b) applies.

NO

YES

NO

Inadmissible unless its probative

value substantially outweighs its prejudicial effect and proper notice

is given. [609(b)]

YES

NO YES

Admissible Note: 403

balancing does not apply! [609(a)(2)]

Rehabilitation & Bolstering

Rehab: Can rehabilitate an impeached W with bolster. There must be an attack on

truthfulness to trigger rehabilitation!

Note: When W denies the statement, there has been no impeachment, thus opponent cannot rehabilitate.

Bolster: (1) Evidence of truthful character is admissible only after character of W for

truthfulness has been attacked. [608(a)] (2) Evidence of prior consistent statements (any

statement made out of court before W's testimony that reinforces or supports W's

testimony--doesn't have to be made under oath--however, must be made before W had

any motive to lie!) are admissible when impeached for prior inconsistent statement.

[801(d)(1)(B)]

Impeachment w/Prior Consistent Statement Cant Always be used...CANNOT be used

with 609, 608(a), 608(b), or Bias.

HearsayOut of court statement made by a declarant offered

in evidence to prove the truth of the matter asserted.

Hearsay exceptions that apply without regard to whether the declarant is available

as a W23 categories + Residual! [803]

Present Sense Impression: Statement describing things as they are seeing them or immediately thereafter. (Seconds ok; minutes not ok)

Excited Utterance: Speaking about an event out of excitement, shock, or in reaction to having been startled! (Statement must be made while person is still operating under stress or excitement) Consider: Nature of the event, lapse of time, words used, etc.

Current Mental, Emotional or Physical Condition: Then existing mental, emotional, or physical condition. Includes a person's (forward looking) plan or intention. (Can show another persons plan if related to person's plan!) But recollection of past conduct (backward looking) not ok! (Hillman-Future plans used to prove matters which are in issue)

Medical Diagnosis or Treatment: Includes everything (including cause of the problem) reasonably pertinent to diagnosis or treatment.

Past Recollection Recorded: (a) W once had knowledge about the subject, (b) W doesn't have adequate recollection to testify fully & accurately (c) W made a record &, when they made the record, had a fresh memory of the information. Record will be read to the jury so jury can make use of the info the exact same way they would have made use of W's testimony. The record itself cannot be admitted into evidence.

Business Records: (a) Made as part of the usual course of business, (b) a person with knowledge of what the record says made the record or reported the info to the person who made the record, (c) was made near the time of the occurrence of what it describes. Exclude if circumstances indicate lack of trustworthiness or source of info seems unreliable. (Remember: If recorded by someone not part of the business, then cannot be let in under this exception.)

Absence of Entry in Records: Can be admitted as evidence!

Public Records: Remember: Police reports don't count!

Ancient Documents: (a) document in existence for 20+ years, (b) authenticity of which is established.

Additional categories include (among others) generally used published material, learned treatises, etc.

No testimony relating to the "mental process" /

jury deliberations. Testimony about

outside influences or mistakes in filling out forms okay. [606(b)]

Evidence of Conviction of Certain Crimes [609]Anyone who would steal would probably lie...

Note: NOT Character evidence by definition--offered to show lack of credibility

Did the crime involve dishonesty or false statements? [609(a)(2)]

Shoplifting (no); Willful failure to file tax return (yes); distributing cocaine (no); forgery (yes); burglary (no); conspiracy to distribute drugs (no); murder (no); obstruction of

justice (maybe); misrepresenting self as a cop (yes)

Also consider:

Bias [607] A cross examiner is entitled to ask questions that will show any possible source of bias. Family ties, financial ties, etc.

Contradiction [607] If some of W's testimony is factually incorrect, proof that those portions were wrong supports a conclusion that the other parts were false.

Has it been 10+ years since the conviction or the release from jail? [609(b)]

Inadmissible unless its probative

value substantially outweighs its prejudicial effect and proper notice

is given. [609(b)]

Prior Inconsistent Statements [607, 613, 801(d)(1)(A)]

Focus on the words coming out of W's mouth.

On cross, can ask W about any prior inconsistent statement. The cross-examiner can introduce extrinsic evidence showing the prior inconsistent statement (if first give W opportunity to explain prior statement & opposite party is given opportunity to interrogate W). [613]

Prior statements made under oath in some proceeding CAN be used as a prior statement (are not hearsay). [801(d)(1)(A)]

When Offered: Other Party Should Make Two Objections:(1) Hearsay 801(c)--offered for the truth of the matter or for showing an inconsistency?(2) Proper foundation not laid--must lay the proper foundation, which allows W to explain the inconsistency

Laying the foundation:1. Ask W about time of earlier statement2. Place earlier statement was made3. To whom the statement was made4. General subject matter of the statement

Allows W to remember the statement and explain the inconsistency...If W does not deny the earlier statement, the impeaching party got what they needed and the case moves on, if not, then extrinsic evidence can be admitted.

General Notesa. Sometimes silence when it would be natural to speak can be used to show an inconsistency, b. Refusal to to speak or claims that W cannot remember, is NOT a statement of inconsistency!













Subsequent Remedial Measures [407]

Does the evidence relate to measures taken after an injury or harm allegedly

caused by an event that, if taken previously, would have made the injury

or harm less likely to occur? [407]

Focus on the timing: If the change was made before the accident, it can be

admitted for any purpose!

Admissible!

NO

Is the evidence being offered for another purpose, such as proving ownership,

control, or feasibility of precautionary measures, if these are controverted, or for impeachment? [407]

YES

Admissible!

YES

Inadmissible The evidence is inadmissible to prove negligence,

culpable conduct, a defect in a product, a defect in a product's

design, or a need for a warning or instruction.

NO

Testimonial Competence [701, 702, 703, 704]

Every person is competent to be a witness except as otherwise provided in these rules...

Expert Testimony

Opinion Testimony

Juror?

No testimony relating to the "mental process" /

jury deliberations. Testimony about

outside influences or mistakes in filling out forms okay. [606(b)]

Two preliminary questions [701]:

1. Is the testimony in the form of an opinion?

2. Is the opinion one that is (a) rationally based on the perception of the witness, (b) would be helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) is not based on scientific, technical or other specialized knowledge within the scope of 702?

Admissible!BUT W must have

personal knowledge [602] (see laying the foundation

for character Ws)

YES

Inadmissible unless W is qualified to testify as an expert [See 702]

NO

Preliminary questions about expert [702, 104(a)] Judge decides whether

person is an expert under 104(a):

1. Is the testimony offered as the testimony of an expert W?

2. Is the expert qualified by knowledge, skill, experience, training or education? [702]

3. Will the subject of the testimony assist the trier of fact? [702]

Inadmissible!

No

Preliminary Questions About Evidence:1. Testimony based on sufficient facts or data (firsthand observation, hypothetical question, facts or data obtained in any way so long as reasonably relied on by experts in the field)?2. Testimony is the product of reliable principles & methods? and3. Has the W applied the principles & methods reliably to the facts of the case?

Remember: Expert CAN base opinion on inadmissible information as long as reasonably relied on by experts in the field! On cross, W can be questioned about the underlying facts or data.

Inadmissible! NO

Admissible unless W is testifying re D's mental state or condition

(constituting an element of a crime charged or a defense thereto) in a criminal trial [704] or its probative value is substantially outweighed

by unfair prejudice. [403]

YES

YES

Authentication [901]Evidence sufficient to support a finding that the

matter in question is what proponent claims.

Authentication & identification is a condition precedent before evidence is admissible.

Must: Provide a basis for the fact finder to believe that the evidence is what the proponent

claims it to be.

Remember: The jury doesn't have to believe the evidence even if it has been authenticated!

Methods to Satisfy Requirement

1. Testimony of W w/knowledge2. Non-expert opinion on handwriting (based on familiarity not acquired for purposes of litigation)3. Comparison by trier of fact or expert W with evidence that has already been authenticated4. Distinctive characteristics / circumstances (appearance, substance, contents, patterns--the way they write is unique to one person; can also be used with phone calls) 4. Voice identification (opinion based on hearing the voice at any time under circumstances connecting it with the alleged speaker; note: self-identification "my name is X" is generally not enough--must recognize voice)5. Telephone Conversation (evidence call made to number assigned by phone company (a) person: circumstances, including self-ID, show the person answering to be the one called, or (B) business: call made to a place of business & conversation related to business reasonably transacted over the telephone)5. Public records (writing authorized by law to be recorded or filed & in fact recorded or filed in public office)6. Ancient documents (found in place likely to be authentic & condition doesn't create suspicion; do not have to account for its whereabouts)7. Process or system8. Any other method provided by statute8. Self-Authentication--ONLY Documents (See below)

Self-Authentificating Documents [902]Extrinsic evidence of authenticity is not required as a condition precedent to admissibility for the following:

Domestic public document w/seal (govt. documents)Certified foreign documentsCertified copies of public recordsOfficial publications (books, pamphlets, or other publications issued by public authority)Newspapers & periodicalsTrade inscriptions (signs, tags, labels, affixed in the course of business & indicating ownership, control, or origin)Acknowledged documentsCommercial paperCertified domestic records of regularly conducted activity

Identification of Non-Self-Authentificating Things [901]

Two Methods: (1) If the item is unique (2) item is common.

Unique: [901(b)(4)] Lay the foundation by showing the following things: (1) the object has a unique characteristic of some kind (2) the W on the stand observed that unique characteristic on a previous occasion (3) W identifies the exhibit as the object seen before (4) W states that the object is in the same condition as previously observed.

Common: Chain of Custody Doctrine (account for where the object has been; each link in the chain is a person who had the evidence; must account for every single place where the evidence was) Look for: Links in the chain!

Best Evidence Rule [1001-1004]If the contents of a document,

photograph, or recording will be the subject of testimony, the party offering

the testimony must provide the "original."

Note: If chattel has writing on it, the BER applies! However, if obtaining the chattel is too burdensome, judge has

the discretion to allow secondary evidence. (Ex. VIN #)

Remember: BER only applies when a party seeks to prove the contents of

the writing (Not when evidence is used to refresh memory, etc.)

Ask: Is the party trying to prove the contents of the document?

Inadmissible unless offered against accused in a criminal prosecution for sexual assault or child molestation & the prior

similar offense meets the standard of an "offense of sexual assault" [413; 414]

Identification of Non-Self-Authentificating Things [901]

Two Methods: (1) If the item is unique (2) item is common.

Unique: [901(b)(4)] Lay the foundation by showing the following things: (1) the object has a unique characteristic of some kind (2) the W on the stand observed that unique characteristic on a previous occasion (3) W identifies the exhibit as the object seen before (4) W states that the object is in the same condition as previously observed.

Common: Chain of Custody Doctrine (account for where the object has been; each link in the chain is a person who had the evidence; must account for every single place where the evidence was) Look for: Links in the chain!

Best Evidence Rule [1001-1004]If the contents of a document,

photograph, or recording will be the subject of testimony, the party offering

the testimony must provide the "original."

Note: If chattel has writing on it, the BER applies! However, if obtaining the chattel is too burdensome, judge has

the discretion to allow secondary evidence. (Ex. VIN #)

Remember: BER only applies when a party seeks to prove the contents of

the writing (Not when evidence is used to refresh memory, etc.)

Ask: Is the party trying to prove the contents of the document?

Is the "original" being offered? [1001(3)]

1. Document or recording itself2. Any counterpart meant to be an original3. Photo negative or print4. Readable computer output

Admissible!

YES

Is a "duplicate" being offered into evidence? [1003]

Note: The difference between a duplicate & a copy. Copies

are not admissible under 1003.

NO

Admissible to the same extent as the original!

UNLESS (1) genuine question is raised as to the authenticity of the original or (2) under the

circumstances it would be unfair to admit the duplicate in

lieu of the original [1003]

YES

Has the original been lost or destroyed? [1004(1)]

Note: Must do due diligence search!

NO Consider: Can you

get it admitted under a 1004 exception?

Is the original unobtainable by any other judicial process or procedure? [1004(a)]

or

Is the original in the possession of opponent & opponent was put on notice that the contents would be a subject of

proof at the hearing & they do not produce original for hearing? [1004(3)]

NO

Other evidence is admissible to prove the writing, unless the

proponent lost or destroyed them in bad faith.

YES

Admissible!Other evidence is admissible

to prove the writing.

Inadmissible! Other evidence is NOT permitted to prove the writing, unless the writing is collateral (not

closely related to a controlling issue) to a controlling issue in the dispute.

NOYES

Analysis whenBER Applies

HearsayOut of court statement made by a declarant offered

in evidence to prove the truth of the matter asserted.

Breaking it down...Statement: (1) oral or written assertion, (2) nonverbal conduct of a person--if it is intended by the person to be an assertion.

Declarant: Person who makes a statement

Assertion: Not defined. Nothing is an assertion unless it is intended to be one. A person makes an assertion when they speak, write, act, or fail to act with the intent to express some fact or opinion. (You can have implied assertions--so long as the person intended their conduct to asset something.)

Out of Court: If it occurs before the proceeding. A pre-trial deposition is "out of court" when offered at trial.

Offered for the Truth of the Matter Asserted: Inferred--Does it matter whether or not the statement is accurate?

Dangers of Hearsay: (1) inability to cross-examine regarding memory, (2) sincerity, (3) perception, (4) ambiguity.

Exemptions from the definition of hearsay for certain out-of-court statements offered for the truth of the matter

they assert (NOT HEARSAY) [801]

Out of Court Statement of ID: If declarant testifies at the trial or hearing & is subject to cross concerning the statement, then a statement of ID of a person after perceiving them is not hearsay.

Party Admission: (A) party's own statement; (B) adoptive admission---requires (1) evidence the statement was made (2) statement was understood by party (3) there was no impediment to that person responding (4) the statement is the kind that would call for a denial; (C) authorized admissions--lawyer; (D) agent--employee; (E) co-conspirator--during the course & in furtherance of the conspiracy [must have corroborating evidence of the conspiracy, however, conspiracy doesn't have to be a charge against D]. [Note: Determine all preliminary questions under 104(a)]

Statement by Party Opponent: (1) a party's own prior statement, (2) adoptive admission, (3) statement by authorized agent, (4) statement by agent within scope of agency or employment, (5) statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Applies to anything a party to a lawsuit has ever said that is relevant against them at trial.













Is the "original" being offered? [1001(3)]

1. Document or recording itself2. Any counterpart meant to be an original3. Photo negative or print4. Readable computer output

Has the original been lost or destroyed? [1004(1)]

Note: Must do due diligence search!

Is the original unobtainable by any other judicial process or procedure? [1004(a)]

or

Is the original in the possession of opponent & opponent was put on notice that the contents would be a subject of

proof at the hearing & they do not produce original for hearing? [1004(3)]













Hearsay exceptions that apply only if the declarant is "unavailable" [804]

Unavailable = Testifies to lack of memory of the subject matter; dead or then existing mental or physical illness;

refuses to testify about the subject matter of the statement

NOT "unavailable" if due to wrongdoing of a party

Former Testimony: (a) given under oath (b) subject to cross examination at a previous proceeding by the party against whom the evidence is offered. Motive to cross-examine similar? Earlier trial of similar importance? Similar consequences at stake?

Dying Declaration: (a) reasonable belief death is imminent (b) only for their belief about the cause of their impending death. Homicide or civil cases.

Statement Against Interest: When D made statement, it had the potential to harm an important interest (money, property, penal) of the D. (What would a reasonable person in D's position think?) UNLESS non-self-inculpatory, then cannot be admitted under this rationale (one of the most effective ways to lie is to mix falsehood with truth).

Forfeiture by Wrongdoing: Decreases incentive to harm or intimidate W!

Residual Exception: Catch all.

Getting Around the Hearsay Rule: Examples when NOT offered for truth of the matter

asserted (non-hearsay uses of out-of-court statements)

Effect on Listener: Introduced to prove the state of mind induced in the listener by the statement. State of mind must be relevant! Or notice, threat,

Acts of Independent Legal Significance: Words operate independently of the speaker's belief or intended meaning. Some words are the legal event.

Inconsistent Statements offered to Impeach: Used to show W cannot be believed because they have two different stories--not for the truth.

Nonassertive Words: Ouch!

Assertions Offered as Circumstantial proof of knowledge: Such as describing the apartment of your molester

Remember-Judge, if asked, must give a limiting instruction confining jurors to the permitted nonhearsay use of the words! Limiting instructions prevent or discourage improper use, reducing likelihood of prejudice or jury confusion. However, cannot really remove prejudice. [105]

Confrontation Clause

6th Amendment: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the W's against him."

Crawford Rule: (1) Criminal cases(2) When used against D(3) Has to be a hearsay statement [801(c)] or Exemption [801(d)](4) that is TESTIMONIAL (prior testimony at a preliminary hearing before a grand jury or at a former trial; police interrogations; primary purpose for the assistance of an ongoing emergency-Davis; not casual remarks to acquaintance; not offhand, overheard remarks; not statements in furtherance of a conspiracy).

Not admissible under the confrontation clause, UNLESS (1) forfeiture, (2) D takes stand at trial, (3) D had prior opportunity to cross examine the D concerning the statement, or (4) dying declaration [maybe].