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Evidence Mini Outline:

Relevance

Relevant Evidence: evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence (rule 401)

All relevant evidence is admissible unless otherwise provided (rule 402)

Relevant evidence may be excluded if probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury or by considerations of undue delay, waste of time or needless presentation of cumulative issues. (rule 403)

If unfair prejudice and probative value are even, the evidence is admitted. If unfair prejudice is a little greater, then it is admitted.

Just because it is relevant does not mean it is admissible.

Proponent of evidence has the burden of showing relevancy. Opponent has the burden of showing the prejudice, etc.

Old Chiefs: offer to stipulate must be of equivalent evidentiary value. Entitled to prove its case free from any option to stipulate the evidence away.

Preserving Error

When objection sustained, atty should make an offer of proof. Put on record what he would have shown/ what witness would have testified. If no offer of proof, appellate court can not review unless plain error.

Error must effect a substantial right of a party for a reversal to be necessary (103). Harmless error (would not change outcome) is not reversible.

Must state specific ground for objection if not apparent from the context.

If evidence was excluded, substance of the evidence must have been made known to the court or have been apparent.

Offer of proof may be in question answer format.

Plain errors need not be brought to the attention of the court.

Make specific objections.

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Can’t predicate error on a denied motion in limine if the evidence doesn’t come in.

If sustained, make a motion to strike.

Procedure

Atty can ask for a limiting instruction. Should be allowed when evidence is admissible for one party/purpose, but not another (105)

Preliminary Questions should be answered by the court (104)- concerning the qualification of a person to be a W, - the existence of a privilege, or - the admissibility of evidence Court is not bound by the rules of evidence in making these determinations, except with the use of privileges.

When relevancy depends on fulfillment of condition of fact, court shall admit upon or subject to the introduction evidence sufficient to support a finding that condition was filled. (104b)

Real Proof

Authenticity/Identification:- must have evidence sufficient to support a finding that the matter is what the

proponent claims it is (901a)

Authentication is a condition precedent to admissibility. Applies to all real evidence. Real evidence: object that had a direct part in the incident, includes exhibition of injured parts of the body.

Examples of authentication (901b) - testimony of W with knowledge (ex someone who saw person write it)- non-expert opinion on handwriting, based on familiarity not acquired for

purposes of litigation- comparison by trier or expert witness of specimens which have been

authenticated- Distinctive characteristics- Voice identification (hearing voice at any time or under any circumstances

connected with alleged speaker)- Telephone conversations: evidence that call was made to a number assigned

by phone comp. to that person/business if in the case of a person included self

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identification or in the case of business convo related to business reasonably transacted over the phone

- Ancient documents (no suspicion as to authenticity and 20 yrs old and found in a place reasonably would be, not excluded as hearsay)(TN 30 yrs)

- Process or system- Methods provided by statute/rule

Views of scene: trier of fact (court or jury) is not allowed to view independently. Must do so as if in court.

Demonstrations must show that the conditions are substantially the same.

Photos: lay a foundation

Role of the judge in admitting: is there sufficient evidence that a reasonable juror could find that the evidence is what it purports to be. Jury decides if it is actually what it purports to be. Judge is a gatekeeper

Documents don’t go to the jury unless authenticated or self-authenticating.

Self authenticating (902): (no direct or circumstantial evidence needed)- domestic public documents under seal- domestic public documents not under seal (must have signature of official)- Foreign public documents - Certified copies of public records- Official publications- Newspapers/ periodicals- Trade inscriptions- Acknowledged documents- Commercial paper and related- Presumptions under acts of Congress- Certified domestic records of regularly conducted activity- Certified foreign records of regularly conducted activity

Demonstrative Evidence: map, model, photo, x-ray, etc. Has no probative value itself, but serves as a visual aid.

Photos: person must testify that they are an accurate description of what they purport to be.

Writings

Subscribing witness testimony is not necessary to authenticate unless required by the laws of the jurisdiction governing the validity of the document (903)

See notes above on authentication

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Best Evidence Rule: To prove the contents of a writing, recording or photograph the original writing, recording or photograph is required except as otherwise provided (1002)

Must be trying to prove the contents of the writing, recording or photo. (where the facts in the document are directly at issue)

Only applies to writings, recordings and photos.

Original: the writing or recording itself or any counterpart intended to have the same effect. (if execute 20 copies at a business closing all 20 are originals)

Duplicates are admissible unless someone raises a genuine question of authenticity or it would be unfair (1003)When original is not required and can use other evidence of contents (1004):

- original lost or destroyed (unless proponent did so in bad faith)- original not obtainable- original in possession of opponent (put on notice and not produced)- collateral maters (contents not related to a controlling issue)

Contents of w, r or p may be proved by testimony of the party against whom its offered without accounting for non-production of original (1007).

Can use summaries to prove contents if too voluminous. Originals shall be available upon request (1006)

Reply Letter doctrine (C/L rule): a letter may be authenticated by contents and circumstances indicating that it was in reply to a duly authenticated one. i.e. I write C a letter, the letter C writes back is authenticated if he refers to things only he would know by contents of my letter to him. (distinctive characteristics)

Character Evidence:

Use character evidence to:- Impeach- Establish an element of claim or defense- Establish the guilt or innocence of the accused or to show behaved in a

particular manner

Evidence of Character to show action in conformity with is not allowed except: (404a)

- In a criminal case, evidence of character trait of the accused may be offered:o by the D,o by the prosecution to rebut the same trait when offered by D, oro by prosecution to rebut claim by D of alleged victim’s character

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- In a criminal case, evidence of the character of the victim may be offered o by the accused or o by the prosecution to rebut when D makes it an issue, or o evidence of character of peacefulness offered by prosecution in

homicide case to rebut claim that victim was first aggressor- Character of W as allowed by 607(impeach any witness), 608(character for

truth and veracity) and 609 (evidence of crimes)

Can use character to show things besides action in conformity with.

For these exceptions character may be proved by: (405)- reputation or opinion. On cross inquiry is allowed into specific instances. (if

ask about on cross, must accept answer and have a good faith basis for asking, can’t introduce extrinsic evidence of act)

- Specific instances of conduct is allowed if the trait is an essential element of the charge, claim or defense.

Note the exceptions only apply in criminal cases. In civil cases can NOT use evidence of character to show action in conformity with.

404b: Evidence of other crimes, wrongs, or acts is not admissible to show action in conformity with. It is admissible for other purposes (motive, opportunity, intent, preparations, plan, knowledge, identity, absence of mistake or accident, modus operandi, res gestae – inextricably intertwined, all part of the same transaction)

Evidence of habit/routine practice is allowed to show action in conformity with. (406). Routine practice refers to a business. Habit must be something non-volitional, done without thinking.

Still allowed to show evidence of acts (if allowed) even if D was acquitted.

Exceptions to propensity evidence for sex crimes:Rule 413: criminal casesRule 414: child molestationRule 415: civil cases

Character of the Rape Victim (exception to the exception): (412)- In a criminal case, Specific instances of the sexual behavior of the victim is

not allowed unless offered to prove that another person was the source or instances with respect to the accused offered to prove consent or by prosecution and if would violate constitutional rights of the D.

- In a civil case, evidence of sexual behavior or predisposition is admissible if otherwise admissible and probative value substantially outweighs the danger of harm to victim and victim puts reputation at issue.

- Must provide written notice

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Evidence not allowed:- subsequent remedial measures (407)

o to prove negligence or culpable conducto Refers to measures taken AFTER the harm

- Compromise and offers to compromise: (408)o To prove liability, invalidity or amount or to impeach o Offers to compromise or accept or statements made in negotiations

- Payment of medical/ similar expenses (409)o To show liabilityo TN excludes expressions of sympathy

- Pleas, plea discussions, and related (410)o In civil or criminal proceedingso Includes:

Guilty plea withdrawn Plea of nolo contendere Any statement made in rule 11 proceedings Any statement made in plea discussions WITH a prosecuting

authority- Liability Insurance: (411)

o To show negligence or acting wrongfully

Always remember 403 balancing test, even if rules let in, it must still pass this test.

Testimonial Proof

Prior statements of witnesses:- need not be shown nor contents disclosed to W, but shall be shown/disclosed

to opposing counsel (613b)- Extrinsic evidence of prior inconsistent statement is not admissible unless W

given an opportunity to explain. (doesn’t apply to party opponent admissions) (613b)

Every person is a competent witness except as otherwise provided (610)- Exception: in civil cases where an element of the claim or defense falls under

State law, the competency of the witness must be determined according to state law

Any party may attack the credibility of a W, even the party that called (607).

Every witness must declare that he will tell the truth by oath or affirmation (603)- no set form- in a way to awaken the W’s conscience and impress on the W the duty to tell

the truth

No juror can testify as a W (if does, party can object out of hearing of jury) (606a)

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Juror may testify about: (606b)- whether extraneous prejudicial info was improperly brought to jury’s attn- whether an outside influence was improperly brought to bear upon any juror- Whether there was a mistake in entering the verdict on the verdict form

Judge may not testify at trial. No objection needed. (605)

Can’t use evidence of religious beliefs or opinions to attack or enhance a W’s credibility (610). Can be used for other reason.

Lay Witness:All witnesses must have first hand knowledge (602)- evidence sufficient to support a finding that the W has personal knowledge- need not be W’s own testimony- judge determines if a reasonable juror could find that the W has first hand

knowledge (104)

Invoking the rule (615): Exclusion of all witnesses from the proceeding except:- party- an officer or EE of an organization serving as the party’s rep- a person whose presence is essential to one’s case (expert helping atty)- person authorized by statute to be present

Interrogation: (611)- court has the power to control to make presentation effective for ascertaining

the truth; avoid waste of time; protect W from harassment or undue embarrassment

- Cross should be limited to SM of direct or credibility of the W. Court may allow additional matters in its discretion

- Leading questions should only be used on cross except as necessary to develop the W’s testimony (on direct)

- If hostile W, adverse party, or W identified with adverse party may ask leading questions.

- Court may call its own W, which all parties are entitled to cross (614a) Objections to W’s called by court can wait until out of jury presence.

- Court may interrogate any W (614b) (can’t suggest what he thinks)- If W freezes on direct can ask permission to lead- Redirect is limited to the scope of the cross (still no leading questions)

Leading question: one that suggests the answer (yes/no questions)

Refreshing Recollection of W:- use of a writing: (612)

o while testifying or before testifying if court determines is necessary

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o adverse party is entitled to examine, cross W on and introduce into evidence those portions relied on

o (after showing to W, should take back before resuming questioning)o Ex: Are you having difficulty remembering? (yes); Is there any thing

that will help you remember (I don’t know); do you recall my interview (yes); If you looked at that statement would it help (yes). Then show statement, take it back and resume questioning.

o If other side introduces into evidence, no need to authenticate or apply best evidence rule

- if refreshing recollection doesn’t work then hearsay exception of recorded recollection (803)5

o a memo or recordo concerning a matter about W once had knowledgeo but now has insufficient recollection to testify fully and accuratelyo made or adopted by W when fresh in W’s memoryo may be read into evidence, but not received as an exhibit unless

offered by adverse partyo have to authenticate and meet best evidence rule

Think: relevance? Hearsay? Authenticate? Best evidence? Prejudice?

Judge decides preliminary questions on the qualification of a W to testify (104)

Opinion of Lay Witness: (701)- testimony is limited to opinions or inferences:

o rationally based on perceptions of the W (W must see!)o helpful to a clear understanding or determination of a fact at issueo not based on specialized knowledge

Requirements for a Lay W to testify:- oath- 1st hand knowledge- Opinions

o Based on perceptionso Helpful to fact findero Not based on specialized knowledgeo Opinions on ultimate issue are allowed

- All are competent except:o Judge and juryo Or those deemed incompetent by state law if state law provides rules

of decision

For a child to testify:- present understanding and intelligence to understand on instruction the

obligation to tell the truth

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- ability to observe and register- ability to remember/ recollect- ability to communicate/ relate- court makes determination

Expert Witness:Requirements for Expert:- Opinions

o Helpful to trier of facto Based on info not personal knowledgeo Opinions on ultimate issues allowed except mental state or condition

when an element of crime charge or defense thereto- Qualified

Expert:- if will assist trier of fact (helpfulness standard, TN is necessary)- a W qualified as an expert by knowledge, skill, experience, training, or educ.

may testify in form of opinion- if:

o based on sufficient facts or datao testimony is the product of reliable principles and methodso W has applied the principles and methods reliably to case

For expert testimony to be admitted: (Daubert/ Kumho)- must be based on scientific analysis and- must be reliable (factors are not exhaustive/ exclusive) and relevant

o whether it can be testedo whether the theory or techniques has be subjected to peer review and publicationo known or potential rate or erroro general acceptance

Trial judge is a gatekeeper.

Expert may testify on ultimate issues except the mental state or condition constituting an element of the crime charged or defense thereto. (704)

Basis of Expert Testimony: (703)- facts or data which the expert bases his opinion/inference may be those

perceived by or made known to the expert prior to the hearing- need not be admissible in evidence if of a type reasonably relied on by

experts in particular field- facts or data otherwise inadmissible shall not be disclosed to the jury by

the proponent unless the court determines that the probative value substantially outweighs prejudicial effect. (can ask for limiting instruction if allowed in)

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Expert may testify and give reasons for without first testifying to underlying facts or data unless court requires. Expert may be required to disclose on cross (705)Learned Treatises: hearsay exception (801(13))- if established as reliable authority, may be read into evidence if relied on by expert

Court may appoint its own expert (706)

Impeachment:Ways to Impeach a W:- Bias

o Extrinsic evidenceo Foundation issue

- Prior Inconsistent Statement- Independent Evidence that Contradicts W’s story

o Limited by collateral matter ruleo Fact must be relevant for any purpose other than contradictiono Independent relevance or lynch pin fact

- Character assassinationo Past crimes, bad acts, opinions, reputation, veracity

- Defect in Capacityo Ability to observe, remember, communicate

Can’t bolster credibility until attacked (general rule)

Ways to Show Bad Character:- convictions (609)- specific acts (608b)- opinion/ reputation (608a)* exceptions to show action in conformity with under 404

Character/ Conduct of a W: (608)- Opinion/ reputation:

oAttack or support cedibility of w if Evidence refers only to character for

truthfulness/untruthfulness Evidence of truthful character is only admissible after character

for truthfulness has been attacked- Specific acts:

oFor the purposes of attacking or supporting charcter for truthfulness, other than conviction of crime may not be proved by extrinsic evidence!

oMay be inquired into on cross concerning W’s character for truthfulness/untruthfulness or concerning character for

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truthfulness/untruthfulness of another W as to which that W has testified. (must have good faith basis for asking about) (if W says no must accept)

Impeachment of a W by conviction of crime: (609)- for purpose of attacking character for truthfulness

o For W, other than accused, evidence of a felony subject to 403 (as long as probative value not substantially outweighed by danger)o For the accused, evidence of a felony as long as probative value outweighs prejudicial effect o If crime of dishonesty or false statement, it is per se admissible to impeach

- 10 yr time limit unless court finds probative value substantially outweighs prejudice. If more than 10 yrs written notice required

- If conviction is subject to a pardon, annulment or certificate of rehab it is not allowed

- Juvenile convictions are generally inadmissible. In a crim case for W other than accused if admissible for adult, court may allow

- Pending appeal does not render inadmissible

Remember these rules apply to attacking character for truthfulness!

Prior Statements:- W need not be shown or contents disclosed when questioning- On request shall be shown to opposing counsel (613)- Extrinsic evidence of prior inconsistent statement is not admissible unless W

is given opportunity to explain (not applicable to party admission)

Can’t bolster W before impeached.

Anyone can impeach (607)

Impeach by Bias:- can always use extrinsic evidence to show- motive to lie- plea agreements- settlement agreements- civil litigation against crim D- bias in expert fees- W offered to sell silence/ testimony

Rehabilitation:- evidence of character for truth and veracity (only after character for truth

attacked)- prior consistent statement

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o if statement made before motive to falsify

Hearsay

Hearsay: a statement, other than one made by the declarant while testifying at trial offered for the truth of the matter asserted. (801c)

Truth of the matter asserted: the truth of the statement itself.

If Asked, what did you learn from x? watch out for hearsay

Statement may be oral/ written or non-verbal conduct intended as an assertion (801a)

Declarant must be a person (801b)

A statement that is hearsay may be admissible if it has relevancy other than its hearsay nature. (ask for a limiting instruction)

Legally Operative Facts are not hearsay:- Utterances to which the law attaches legal significance (words of contract,

defamation, bribery, cancellation, permission)- Not hearsay because the issue is simply whether the statements were made- Ex: in a contract action words that constitute offer, acceptance, rejection etc

offered only to prove what was said not whether it was true- Ex: action for defamation. D said X is a thief is admissible to show it was

said, not the X is a thief.

Not hearsay: (801d)Prior Statements by W:

- If declarant testifies at trial and is subject to cross and the statement is:o Inconsistent with declarant’s testimony and was given at a formal

proceedingsoConsistent with declarant’s testimony and is offered to rebut an express

or implied charge against the declarant of recent fabrication or improper influence or motive or

oStatement of identification after perceiving the person- Admission by party opponent. Statement offered against the party and is :

oThe party’s own statement in individual or representative capacityoA statement of which the party has manifested an adoption or belief in

its truthoA statement by a person authorized by the party to make a statement

concerning the subject

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oA statement by the party’s agent or servant concerning a matter within the scope of the agency/employment and made during the existence of the relationship or

oA statement by a co-conspirator of a party during the course and in furtherance of the conspiracy

Not hearsay: 801(d)(1)- inconsistent statements (can be substantive evidence, not in TN)

omust be made under oathomust be made at a formal proceeding (hearing, trial, etc)

- consistent statements (can be substantive evidence)omust have been made prior to when the motive to falsify (or before time of

recent fabrication) occurred for it to be non-hearsay- statement of identification (can be substantive evidence)

omade after (immediately) perceiving the person

801(d)(2): Admissions- need not be against interest- it is substantive evidence- whether it is admissible as an admission (was party authorized to speak) is a

preliminary question for the court- no 1st hand knowledge needed to introduce party admissions- party cannot use this to offer his own statement- conspirator:

o statement must be in furtherance ofoduring the pendency ofo and independent proof of conspiracy and the connection of the declarant

with it (statements can’t be the only proof of conspiracy- preliminary question for the court on whether it qualifies as an admission

Constitutional Constraints:- Confrontation clause bars admission of testimonial statements of a W who did

not appear at trial unless he was unavailable to testify and the D had a prior opportunity to cross.

- Confrontation Clause does not apply to non-testimonial statements.- Testimonial: no on-going emergency and primary purpose is interrogation to

establish or prove events relevant to criminal prosecution

Hearsay Exceptions where Declarant must be Unavailable: (804)If declarant is unavailable and statement meets and exception then it is allowed in.

- Unavailability:oExempted by privilege on SM of declarant’s testimony (must actually claim

privilege)oPersists in refusing to testify concerning the SM despite the court order

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oTestifies to a lack of memory re: the SM (must be established by W’s testimony and subject to cross)

oUnable to be present or testify due to existing physical/mental illness/infirmityoAbsent and proponent has been unable to procure attendance by process or other

reasonable means (if statement under exceptions for dying declarations, statement against interest or statement of personal or family history must be unable to procure attendance or testimony of declarant)

- Not unavailable if due to proponents wrongdoing for the purpose of preventing testimony or attendance

1. Former testimony- testimony at another hearing of the same or different proceedings- in the course of the same or another proceedings- if against whom the testimony is now offered- had an opportunity and similar motive to develop the testimony by direct,

cross or redirect (full opportunity to question)

2. Statement under the belief of impending death- belief of impending death- prosecution for homicide or civil proceedings- statement made by declarant believing death was imminent- concerning cause or circumstances of what the declarant believed to be

impending death- declarant does not have to die, just be unavailable- decision on if he was under the belief of impending death is a preliminary

question for the court

3. Statement against interest- at time of making was contrary to declarant’s pecuniary or proprietary interest

or subject declarant to criminal or civil liability- that a person in the declarant’s position would not have made unless believing it

was true- unless it subjects declarant to criminal liability and offered by a criminal

defendant to exculpate himself, then not admissible unless corroborating circumstances clearly indicate trustworthiness

- reasonable person wouldn’t have made unless believed it was true- doesn’t have to be a party’s statement- must be only the part of the statement which is self inculpatory, single statement

that reflects adversely on declarant

4. Statement of personal or family history- a statement concerning the declarant’s own birth, adoption, marriage, divorce,

legitimacy, relationship by blood, adoption or marriage etc., even if the declarant had no means of acquiring personal knowledge of the matter stated or

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- a statement on the same topics of another person if the declarant was related or intimately associated so as likely to have accurate information concerning the matter

(requires an actual statement by a declarant, more than simply reputation)

5. …6. Forfeiture by wrongdoing- declarant’s unavailability is due to the opposing party- opposing party therefore forfeits right to object to hearsay- must be for purposes of preventing the W from testifying

Hearsay Exceptions Unavailability is Irrelevant:Not excluded as hearsay, even though declarant is available

1. Present Sense Impression- statement describing or explaining an event or condition- Made while declarant was perceiving or immediately thereafter

Narrow time limit and SM limit

2. Excited Utterance- statement relating to a startling event- made while declarant was under the stress of the excitement caused by the

event/condition

3. Then Existing Mental, Emotional or physical Condition- statement of then existing state of mind, emotion, sensation or physical

condition- does not include statement of memory of belief to prove fact remembered unless

relates to will execution- physical condition: need not be made to medical personnel- evidence of state of mind when directly at issue or when circumstantial

evidence for an inference

4. Statements for the purpose of medical diagnosis- made for the purpose of medical diagnosis or treatment (TN and)- includes medical history, past or present symptoms, pain, the inception, or

general cause- as reasonably pertinent to diagnosis or treat- statements as to fault do not ordinarily qualify (can say hit by car, but not hit by

car driven through red light)- need not be made to physician

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5. Recorded Recollection- A memo or record- Concerning a matter a witness once had knowledge- But now has insufficient memory to testify fully or accurately- Shown to have been made or adopted by the witness when the matter was fresh

in memory- May be read into evidence but not received as an exhibit unless offered by the

opposing party

6. Records of Regularly Conducted Activity- record of acts- made at or near the time- by or from information transmitted by a person with knowledge- kept in the ordinary course of business- was the regular practice to make the report- UNLESS the source of the information or the method or circumstances of

preparation indicate lack of trustworthiness Presumption that it comes in if the proponent meets the previous element

unless opponent can show untrustworthy- As shown by the testimony of the custodian or other qualified witness or by

certification that complies with 902(11) or (12) or statute permitting certification

C/L had to be custodian, now anyone with knowledge or self authenticating under 902

902(11) self authenticating business record with affidavit- Must give the other side notice that you are going to so this

7. Absence of entry in records kept in accordance with the provisions of (6)- use omission from record in (6) to prove nonoccurrence or nonexistence of the

matter if it was a kind regularly made and preserved unless the source of information or other circumstances indicate lack of trustworthiness

8. Public Records(A) statements of the activities of the office(B) matters observed pursuant to duty imposed by law as to which there was a

duty to report not by police officers or law enforcement personnel in a criminal

proceeding(C) Factual findings resulting from an investigation

In civil action and against the government in criminal actions Unless indicate a lack of untrustworthiness

9. Records of Vital Statistics- records of births, fetal deaths, deaths, or marriage is made to a public office

pursuant to the law

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10. Absence of public record or entry- Absence, nonexistence or nonoccurrence of a matter when not in a report

regularly made to a public office (like 7 but for public records)

11. Ancient Documents:- 20 yr old document- And authenticated

12. learned treatises (18)- - to the extent called to the attention of an expert witness in cross or relied on

by an expert in direct- Statements contained in published treaties, etc - Established as reliable authority- May be READ into evidence, but not received as an exhibit- (use as substantive evidence is limited to when expert is on the stand)

13. Judgment on previous conviction (22)- Evidence of a final judgment after trial or upon a guilty plea (not nolo

contendere)- Adjudging a person guilty of a felony- To prove any fact essential to sustain the judgment- But not when offered by the government in a criminal prosecution for

purposes other than impeachment judgments against persons other than accused

- Pendency of appeal does not affect

doesn’t have to be party’s own conviction Gov’t can’t use against anyone but the party himself Pendency of appeal may be shown, but won’t affect admissibility

14. Market reports, commercial publications (17)- market quotes, tabulations, lists, directories, or other published compilations - generally used and relied upon by the public or person in particular

occupations

Declarant must still have first hand knowledge just like any witness would under both 803 and 804

805 Hearsay within Hearsay:- Hearsay included within hearsay is not excluded if each part of the combined statements conforms with an exception to a hearsay rule

Attacking hearsay declarant (806):- Credibility of a hearsay declarant, available or unavailable may be attacked- declarant can be impeached by prior inconsistent statement

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foundation rule doesn’t apply neither does the rule requiring declarant to be given the opportunity to

explain prior inconsistent statements- if supporting the declarant may use any evidence which would be admissible

Residual Exception (Rule 807):Having same guarantees of trustworthiness as Rules 803 and 804

- statement is offered as evidence of a material fact;- statement is more probative on the point for which it is offered than any other

evidence which the proponent can procure through reasonable efforts (necessity requirement) AND

- the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence

Won’t be admitted unless proponent gives advance notice.

Privileges:

Rule 501:- privileges shall be governed by the principles of common law- as they may be interpreted by the courts of the US in light of reason and

experience- Except for civil actions where State law applies, then state law on privileges

will apply

Marital privileges:- privilege against adverse testimony- privilege against disclosure of confidential communications

Spouse can testify to anything observed and non-confidential communication if he/she chooses.