801 evidence outline

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Federal Rules of Evidence

General Provisions

Rule 103: Rulings on Evidence- To preserve the record (for review of a ruling on evidence) the proponent of the excluded

evidence must take the following steps:1. put the substance of the excluded evidence on the record, generally by making an offer

of proof or proffer [Rule 103(a)(2)]; ando Two ways to make an offer of proof: simply tell the judge what the evidence is that

counsel is seeking to introduce or have the witness answer questions in front of thejudge and court reporter (both methods are conducted out of earshot of the jury)

o An offer of proof is not required where the substance of the evidence was apparent

from the context within which questions were asked [Rule 103(a)(2)]2. If the excluded evidence in objectionable on its face, explain to the court the permissible

purpose for which the proponent is offering it. Otherwise, the trial judge will have acted

properly in excluding the evidence.- Rule 103(a)(1) requires specific objection, i.e. objections accompanied by a reason (In MD,

general objections are okay) (specificity required for objections on constitutional grounds aswell)

- If evidence is offered for a limited purpose, request that the court give the jury a limitinginstruction, otherwise its fair game for consideration

- Objections must be timely, i.e. as soon as grounds for the objection are apparent- Counsel can make a continuing objection to a line of questioning, but be sure to renew

objection periodically- Renew objections at trial if motion in limine (pre-trial) is denied; otherwise no need to object- Get a ruling; sometimes the court will reserve its ruling, be sure to get it at a later time- Opening the Door will waive any objection one may have to certain questions

- The introduction of inadmissible evidence by one party allows an opponent, in thecourts discretion, to introduce evidence on the same issue to rebut any falseimpression

Rule 104(a) & (b): Preliminary Questions- Preliminary questions concerning the qualification of a person to be a witness, the existence

of a privilege, or the admissibility of evidence- Preliminary Facts = Foundation- Standard of Proof for Preliminary Facts = Preponderance on the Evidence

(a): Questions of admissibility, generally- Determined by the Court (not the jury)- Court not bound by the rules of evidence except when it comes to

privileges(b): Relevancy conditioned on fact

- Court admits relevant evidence subject to a condition of fact so long as evidence isintroduced that supports fulfillment of the condition.

- Analyze whether 104(a) or 104(b) applies by isolating the evidence at issue, then determinewhether it is, without more, relevant to the fact it is offered to prove.- Next, identify the preliminary fact and decide whether it is relevant regardless of

whether the preliminary fact is true.- If the fact is relevant regardless of truth, 104(a) applies; if not, then 104(b) applies.

Rule 105: Limited Admissibility


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- When evidence which is admissible as to one party or for one purpose but not admissible asto another party or for another purpose is admitted, the court, upon request, shall restrictthe evidence to its proper scope and instruct the jury accordingly

Rule 106: Remainder of; or Related Writings; or Recorded Statements- Modern refinement of the Rule of Completeness- Rule of Completeness = when opposing party has introduced a part of a writing, counsel

has the opportunity to get the other relevant parts of that writing in on cross-examination orredirect.

- Rule 106 complements the Rule of Completeness by allowing counsel, at the time opposingcounsel is examining the witness, to have the complete text of the writing read into therecord, not just the part selected by opposing counsel.- Also applies to depositions

Judicial Notice

Rule 201: Judicial Notice of Adjudicative Facts- Judicial notice may be taken either by the court sua sponte or at the request of a party- A judge may take judicial notice of two kinds of facts:

- Legislative facts (the law and relevant policy considerations); ando Includes both case law, enacted law, and the policies on which the law could or

should be basedo Counsel generally does not have to plead and prove the law and send it to the jury

to decide; the judge just reads the law to the juryo Federal courts will judicially notice federal and state statutes and case law, and the

Federal Registero MD courts will judicially notice MD, other states, federal, and other countries laws,

but under the Uniform Judicial Notice of Foreign Law Act, counsel must give noticeof intent to rely on non-MD law; otherwise, the court may properly assume that thenon-MD law is the same as MD law; municipal ordinances compiled in volumes(COMAR or the MD Register), others must be pleaded and proved by certified copy

- Adjudicative facts (who did what in this case, when, where, how, why)o 201 addresses only the taking of judicial notice of adjudicative facts; it is proper

within either of the following two categories:

Facts not subject to reasonable dispute and generally known within thecourts jurisdiction by persons of average intelligence (a.k.a. everyone knowsthat); or

Facts not subject to reasonable dispute and capable of ready determinationby resort to sources whose accuracy cannot presumably be questioned (a.k.a

look it up)

Presumptions in Civil Actions and Proceedings

Burdens of Proof Generally- Three different types of burdens: (1) burden of pleading (2) burden of production (3) burden

of persuasion- Each is allocated by the substantive law, for reasons of fairness, practicality,

probability, and policy favoring or disfavoring certain claims or defenses- If the plaintiff fails to meet his or her burden of pleading under the substantive law, defense

counsel should file a motion to dismiss


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- If the defendant fails to plead affirmative defenses, said defenses are waived- The initial burden of production of evidence, or of going forward with the evidence (BGF),

generally is allocated by the substantive law to the same party who bears the burden ofpleading a particular fact or issue

- To meet the BGF, a party must produce sufficient affirmative evidence at trial to allowa jury to reasonably determine the existence of the fact as to which that party bearsthe BGF

- If your opponent fails to meet his BGF, you should move for a directed verdict orjudgment or for a peremptory jury instruction on a particular issue

- A partys evidence at trial can be so strong as to shift the BGF to the other party; inthat event, a directed verdict or peremptory jury instruction on that issue will beappropriate against the other party, unless s/he comes forward with sufficient evidenceto meet that BGF or to shift it back to the first party

- Burden of Persuasion is allocated to each claim at the beginning of the case and does notshift back and forth- In most civil cases the burden of persuasion is by a preponderance of the evidence

(POE)- In some civil cases the burden of persuasion is by clear and convincing evidence

(higher standard that POE)- The burden in criminal cases is present proof beyond a reasonable doubt

- The allocation of the burden of persuasion determines who goes first in the openingstatement, the presentation of evidence, etc.

- Irrebuttable Presumptions rules of substantive law circumscribing the possibly relevantissues in a case

- Rebuttable Presumptions several kinds- The first type of rebuttable presumption has not palpable evidentiary effect, but is the

mirror image of the burden of persuasion or the burden of production, e.g. thepresumption of innocence is merely the mirror image of the gov.s bearing the

burden of persuasion as to guilt- In other types of rebuttable presumptions, the presumption has evidentiary impact;

proof of one fact (called the basis fact will create a presumption that the presumedfact is also trueo The effect will be either to meet the proponents BGF as to the presumed fact (this

is a permissible inference) or to shift the BGF to the opposing party to produceevidence to disprove the presumed fact (this in the only type of presumptiongoverned by Rule 301)

- Permissible Inferences if the basic fact merely gives rise to a permissible inference, proofof the basic fact merely meets the partys BGF as to the presumed fact; the appropriate

jury instruction will be: If you find [the B.F.], then you may find [P.F.]- In criminal cases [Rule 301 & 302 address only civil cases], a permissible inference is

as far as the prosecution can get with a presumption helpful to the government- For both 301 & 302 In civil cases when offered by either party --- and in criminal cases

when offered by the defense --- a presumption of the type addressed by Rules 301-302 willhave the following effect: proof of the BF serves as sufficient proof of the PF to shift the BGFas to that fact- Absent evidence rebutting the presumption, the appropriate jury instruction will be if

you find [the BF], then you must find [the PF]- Effect when the presumed fact is rebutted three approaches

- Traditional Thayer-Wigmore bursting bubble approach the presumption disappearsand the BGF shifts back to the plaintiff to offer more evidence of the previouslypresumed fact


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- Uniform Model Rules Approach follows the Morgan Approach of shifting the burdenof persuasion as to the nonexistence of the PF; the instruction would be if you find BF,you must find the PF, unless you are unconvinced by a preponderance of the evidencethat [not PF]

- Md. Rule 5-301 & Federal Case Law more flexible than either of the two above If theBF is logically probative of the PF, the defendants rebuttal merely meets the BGF, butdoes not shift (rebut) it; the federal jury instruction then would be, if you find the BF,you may find the PF; in MD the instruction will be if you find the BF, you maypresume the PF

Rule 301: Presumptions in General in Civil Actions and Proceedings- provides that the opponent of presumption may either rebut or meet the presumption

Rule 302: Applicability of State Law in Civil Actions and Proceedings- the effect of a presumption respecting a fact which is an element of a claim or defense as

to which State law supplies the rule of decision is determined in accordance with State law

Relevancy and Its Limits

Rule 401: Definition of Relevant Evidence- Relevant Evidence = evidence which will make the existence of any fact that is of

consequence to the determination of the case more probable or less probable than it wouldbe without the evidence.- the more probable or less probable standard = very little

Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible- Evidence must be relevant as to any substantive issue in the case or the credibility of

evidence submitted in the case.

Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, orWaste of Time

- The trial court, in its discretion, may exclude relevant evidence if its probative value issubstantially outweighed by the risk of unfair prejudice (unfair surprise); confusing theissues in the case, misleading the jury, or creating unduly distracting side issues; and undueconsumption of time.

Character Evidence, Generally

- Character Evidence Analysis: (refer to attached diagram; marked pg. 309)A -> Is the proposed used of evidence to prove propensity/circumstantial proof of character,as described in A?

IF YES -> Then it is NOT admissible unless one of the exceptions in B applies; if one of theexceptions in B applies, character may only be proved in over the ways permitted in D.IF NO -> Then is use of the proposed evidence relevant for some non-propensity purposedescribed in C?

IF NO -> Evidence is not admissibleIF YES -> Evidence is admissible for non-propensity purpose subject to 403 balancing, anda limiting instruction under Rule 105 and any otherwise admissible evidence of the priorcrime, wrong, or act may be admitted

- An accuseds (or opposing partys/witnesss) sweeping claims of innocence/lack of priorconduct can open the door to the admission of such character evidence (waiver)

- prosecutor cannot corner a witness into making such statements


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Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; OtherCrimes

- The propensity rule generally excludes evidence of a persons other acts or a persons

character or character trait when offered to show that the person acted in character onthe occasion at issue in the case;

- It applies to all character evidence, whether of reputation, opinion, or prior specificconduct

- 404(a) and (b) When proof of character is offered as substantive evidence, to show merelythat a party is a good or bad person, either in general or with regard to a particulartrait, and thus as circumstantial evidence that the person acted in character and did theright or wrong thing in the incident at issue at trial, it is inadmissible

- Such evidence is inadmissible because it is unfairly prejudicial- 404(b) other acts evidence of specific instances may be offered for a purpose other than

simply to show that a person acted in character (good or bad) this time; a limitinginstruction under Rule 105 should be given upon request

- Evidence of specific prior instances of a persons conduct may be admissible underRule 404(b) for a purpose other than merely proving propensity, for the limitedpurpose of proving, e.g. motive, opportunity, intent, common scheme or plan,preparation, knowledge, identity, or absence of mistake or accident with regard tothe act at issue

- The proof on the federal level need suffice only to permit a reasonable jury to findthat the alleged actor committed the other act

- The identity purpose is construed to require something very distinctive about theperpetrator of the acts

- What constitutes other acts:o Whether proffered evidence is of other acts not necessarily bad acts is the

key to whether 404(b) comes into play; the other acts may have been either

prior or subsequent to the conduct at issue at trial, and thus may have been eithergood or bad or neither

o Evidence that is relevant to placing a defendant at the scene of the crime, or as

having an instrumentality or fruit of the crime, is not evidence of other acts butrather is admissible to prove the defendants commission of the charged crime,even though it coincidentally proves the defendants commission of another crime

o Acts by coconspirators that are part of the charged crime or conspiracy at issue at

trial are not other actso It is also necessary to distinguish proof of an act other than the crime charged

from proof of a fact or condition prior to the date of the alleged crime, which isoffered merely as circumstantial evidence that fact or condition continued untilthe date alleged

o Other acts evidence directly related to the charged crime, such as to prove

motive for the charged crime, or that provided the opportunity to commit thecrime, or were committed in preparation for the crime, or as part of a plan for thecrime as being part of a larger common scheme that was contemplated before theparticular charged act, should be admissible in the prosecutions case-in-chief

- Where the substantive law requires proof of intent or knowledge that is inferablebeyond a reasonable doubt from proof of the alleged acts, it is unfairly prejudicial toadmit evidence of other acts to prove intent, unless the defense has chosen to take apather that sharpens the issue; but when the defense --- either by evidence or in itsopening statement argues mistake, accident, or lack of intent or lack of knowledge,the balance shifts


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- Reverse 404(b) applies in both civil and criminal cases; the facts at issue in the vastmajority of criminal cases applying 404(b) involve evidence of other acts of the accused,offered to prove the accused is guilty; very few cases involve reverse 404(b) where theaccused offers evidence of a third persons other acts in an effort to identify the third

person, rather than the accused, as the perpetrator of the charged crime- Most courts have held that such evidence must first pass muster under 404(b) and

then survive scrutiny under 403 (a balancing test including a consideration of howstrong the proof is of the other act) Not so in MD

- In MD, for character evidence introduce to prove other than propensity (Rule 5-404(b)) theevidence of other acts (1) must be probative of that other issue, which is an issue in thecase (Rule 5-401); (2) must be proven by clear and convincing evidence (if it is offeredagainst the accused); and then (3) must survive scrutiny under Md. Rule 5-403.

Rule 405: Methods of Proving Character- 405(b) provides that reputation testimony, opinion testimony, and evidence of specific

instances are all admissible to prove a persons character or character trait, when that

persons character is an essential element of a criminal charge, civil claim, or defense- If proof that the party did the act would suffice to prove the case, then character is

not an essential element- For this rule to apply, the substantive law must require that someones character

must be prove, as an element of the charge, claim, or defense- Character evidence offered to show effect on hearer

- When a defendant claims self-defense, how is it relevant for a purpose other thanproving propensity (the propensity use would be that the victim was in fact the firstaggressor) --- that the defendant had heard of the victims violent reputation, or thatthe defendant believed that the victim had made threats against the victim

Rule 406: Habit; Routine Practice

- Evidence of an established patter of repeated, similar acts that are specific enough toconstitute an individuals habit or a particular business or other organizations routinepractice is admissible as substantive evidence to prove that the person or organizationacted in accordance with that routine on the occasion in question at trial

- There must be both specificity and uniformity of action- Evidence will generally be proved by the opinion testimony of a person with first-hand

knowledge of sufficient instances of the persons or businesss performance of aparticular act

Rule 407: Subsequent Remedial Measures- excludes, generally, evidence of a partys subsequent remedial measures when offered as

evidence of that partys negligence or culpable conduct- permits evidence admitted for a limited purpose such as impeachment or when controverted

by an opposing party, to prove either that partys ownership or control or the feasibility ofprecautionary measures (opening the door)- Feasibility is premised not only on actual possibility of operation, and its cost and

convenience, but also on its ultimate utility and success in its intended performance.- Even if the evidence is not excluded by Rule 407, the court still retains discretion under Rule

403 to exclude evidence of subsequent remedial measures

Rule 408: Compromise and Offers to Compromise- excludes evidence offered to prove liability for, invalidity of, or amount of a claim that was

disputed as to validity or amount, or to impeach through a prior inconsistent statement or


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contradiction when made in the course of settlement negotiations or other likecircumstances

- Same information is excluded in criminal cases, when made during the settlement of a civilcase. Stmts. made to the Gov. in such circumstances are admissible.

Rule 409: Payment of Medical and Similar Expenses- evidence of offers to pay medical, hospital or similar expenses is excluded when offered to

prove liability for an injury.

Rule 411: Liability Insurance- Evidence of liability insurance is inadmissible when offered to prove liability but is

acceptable where offered to prove a relationship such as agency etc.

Rule 413: Evidence of Similar Crimes in Sexual Assault CasesRule 414: Evidence of Similar Crimes in Child Molestation CasesRule 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child

Molestation- the above three rules generally permit (subject to Rule 403) the propensity use of other

acts evidence in both criminal and civil trials for sexual assault and child molestation infederal court

- MD (under Rule 4-406(b)) recognizes a limited exception to the propensity rule, but only forprior sex crimes involving the same defendant and the same victim

-Privileges

Rule 501: General Rule

- Federal common law privileges, and in Erie cases, state law of privileges, applies.- Most privileges last beyond the death of the holder

- Privileges that protect confidential communications (confider is the holder)- Attorney-Client

- The client holds a privilege with regard to confidential communications betweenlawyer (or lawyers agent) and client made with a view to obtaining professional legalservices (even if it turns out attorney was not hired) BUT NOT IF the communication isin furtherance of an ongoing or future crime or fraud, or the privilege is waived eitherby voluntary disclosure of the communication outside a privileged relationship (thisone or another privileged relationship), or by the clients putting the communicationin issue, as by making a claim against the lawyer for malpractice or ineffectiveassistance of counsel.

- This privilege is inapplicable in a will contest or when both parties are claimingthrough a deceased client.

- Corporate Clients An employee (or former employee) speaks at the direction ofmanagement with regard to conduct (or proposed conduct) within the scope of theemployees employment with an attorney who is authorized by mgmt. to inquire intothe subject and who is seeking information to assist in evaluating whether theemployees conduct is binding on the corporation; or, assessing the legalconsequences of the employees conduct; or preparing a legal response to othersactions regarding that conduct.

- Joint Clients no privilege between the two clients, only between each client andlawyer

- Husband-Wife


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- In any case, civil or criminal, regardless of whether either spouse is a party, theconfiding spouse holds a privilege protecting confidential communications betweenthe husband and wife made during the marriage. This privilege continues, as to thosecommunications, even if the marriage subsequently had ended. Only the confiding

spouse may waive the privilege.- Therapist-Patient

- Generally, patient holds a privilege as to his or her communications with apsychotherapist for the purpose of diagnosis or treatment of a mental or emotionaldisorder. Waive may occur under similar circumstances to those of the AC privilege.

- Priest-Penitent- Accountant-Client- Physician-Patient

- Same as Therapist-Patient privilege (stmts. made for the purposes of diagnosis ortreatment)

- Privileges that protection different types of communication (broader than merelyconfidential communications)

- Attorney work product (Attorney is the holder)- Husband-Wife Spousal Immunity (holder in MD and Fed. is the witness-spouse)

- Only applies in criminal matters, one spouse cannot be forced to testify against theone on trial. Only lasts as long as the marriage, Witness-spouse, may waive theprivilege.

- Journalist (holder is the journalist)- Legislative, Executive, and Informers Privilege (holder is the government)

Witnesses

Rule 601: General Rule of Competency- Witnesses are in effect presumed to be competent

- Provides that every person is competent to be a witness except as otherwise provided inthese rules

Rule 602: Lack of Personal Knowledge- Non-expert witnesses may only testify to that which the non-expert witness has personal,

first-hand knowledge.- Counsel must first show (lay foundation) that the lay witness was in a position to have

gained first-hand knowledge

Rule 606: Competency of Juror as Witness- Jurors are incompetent to testify because of their status as jurors- (a) if a juror testifies at trial, on the merits, you must object, but you may request, and then

shall be provided, the opportunity to do so out of the presence of the jury- (b) Before a verdict is rendered, jurors may be questioned by the court about their conduct- Md. Rule 5-606(b) follows the juror non-impeachment rule strictly a party who wishes to

impeach a jury verdict based on what happened in the jury room must obtain evidencefrom non-juror sources

- FRE 606(b) provides that in an inquiry into the validity of a verdict, a juror may not testifyas to (1) any matter or statement occurring during the course of the jurys deliberations, (2)the effect of anything upon that or any other jurors mind or emotions as influencing the

juror to assent to dissent, or (3) the jurors mental processes in connection with the verdict- However, 606(b) permits a juror to testify as to (1) whether extraneous prejudicial

information was improperly brought to the jurys attention, or (2) whether any outside


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influence was improperly brought to bear upon any juror, or (3) whether there was amistake in entering the verdict on the verdict form

Impeachment Generally

- Impeachment evidence cannot be used as affirmative proof: it will not help to meet apartys burden of production of evidence; the methods of impeachment, both in MD andfederal court, are conveniently summarized in Md. Rule 5-616

- There are two general approaches to impeaching a witness: showing that the witness maybe lying or show that the witness may be mistaken

- The methods employed most frequently in an endeavor to show that the witness is a liar,and that the jury should not credit his or her testimony include:1. the witnesss prior convictions (Rule 609);2. The witnesss pertinent prior bad acts, which have not resulted in a criminal conviction,

but the trial judge finds relevant to character for truthfulness (Rule 608(b))3. The witnesss bad reputation for truthfulness, or another witnesss bad opinion of the

witnesss truthfulness (Rule 608(a))

4. The witnesss bias, interest, prejudice, or improper motive giving him or her a reason tolie in the case

5. The witnesss prior inconsistent statements (Rule 613)- The second approach to impeachment is to show that the witness is mistaken; the methods

used here include attacks on the witnesss perception and memory, such as by:1. Bad eyesight, hearing, etc. (Md. Rule 5-616(a)(5) & (b)(4));2. Use of drugs or alcohol at pertinent time (either time of event or when testifying)3. Conditions under which the witnesss observations were made4. bias that may have affected perception and memory5. suggestiveness of, e.g. identification procedure6. prior inconsistent statements, closer to the time of the event, when memory was

fresher; and

7. contradictory substantive evidence from other witnesses who observed the same event

Rule 607: Who May Impeach- provides that one can impeach any witness, including ones own- Under Rule 806, one may also impeach any hearsay declarant whose OCS is admitted as

substantive evidence- Case law construing the Rules precludes counsel from calling a witness simply to prove the

witnesss prior inconsistent statement, if the statement is not admissible as substantiveevidence; thus, if one knows before trial that the witness has changed her story, and theprior statement does not fall under a hearsay exception, one cannot cal the witness toprove the statement

Rule 609: Impeachment by Evidence of Conviction of Crime- Governs impeachment of a witness by his or her prior criminal convictions that have not

been reversed- (d) provides that juvenile delinquency adjudications do not qualify as convictions but

creates a small window for possible impeachment, under certain circumstances, of awitness other than the accused, but the witnesss juvenile record

- (c) & (e) governs appeals and pardons- (a) counsel may ask the witness to admit having been so convicted

- Counsel cannot go into the details of the crime- But many courts allow counsel to prove the sentence received


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- If the witness denies the conviction, then counsel may offer a certified copy of thepublic record of the conviction into evidence

- Counsel is required to have this record before counsel may ask the question

- (b) applies if a period of more than ten years has elapsed since the date of the conviction or

of the release from prison, whichever is the later date; otherwise, (a) applies- (b)s balancing test:

- Analysis: If 609(a) applies, look first to see whether 609(a)(2) applies, which is the easiestroute of admissibility; 609(a)(2) will apply only if the crime involved dishonesty or falsestatements these crimen falsi (crimes of untruth) crimes, where the fact-finder must havefound falsehood rule only embraces crimes that readily can be determined to have been acrime of dishonesty or false statement such as by indictment, a statement of admittedfacts, or jury instructions

- Bear in mind that the majority rule under the federal case law is that crimes of merelytheft, robbery, etc., are notper se crimes of dishonesty

- If 609(a) applies but 609(a)(2) does not fit, go to 609(a)(1) here only crimes that meet thefederal definition of felony are eligible

- MD State Court 5-609 makes infamous crimes the standard for admissibility andincludes treason and crimen falsi as well as any crimes that were felonies under thecommon law of 1864- Consider these factors:

1. the impeachment value of the prior crime2. how long ago the conviction occurred3. the witnesss subsequent history4. the importance of the witnesss credibility to the case5. the risk of unfair prejudice

- Impeachment by bias, interest, or improper motive: federal case law and Md. Rule 5-616(a)(4) & (b)(3)- Although not referred to in the FRE, impeachment by bias, interest, improper motive, or

fear or favor is always permissible; may be proved through extrinsic evidence

Rule 611: Mode and Order of Interrogation and Presentation- Objections to forms of questions:

- (a) Narrative Questions questions that require the witness to give a narrative answer(to tell a story)

- (a) Asked and Answered counsel for one party has already asked the same witness thesame question and received a responsive answer to it, but the same counsel then asks itagain.

- (c) Leading Counsel asks a question that suggests to the witness the answer thatcounsel desires.

- Leading on direct allowed in six situations, for reasons of necessity, efficiency, or lackof harm to the truth-finding mission:1. to refresh the witness memory, if it is shown to be exhausted;2. to bring the witness to the appropriate subject matter;3. background information regarding the witness;4. preliminary matters such as laying the foundation for particular evidence; or5. other matters not really in dispute; and as necessary, when the witness is very

young, or inarticulate for some other reason.6. Counsel may lead an adverse party on direct (leading otherwise not allowed on

direct or redirect)

- (a) Assuming a Fact Not In Evidence


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- (a) Compound Questions questions that provide the witness with alternative choices,contain a double negative, or combine a positive and a negative

- (a) Harassing or Badgering the Witness- (a) & 701/702 Argumentative questions where counsel is clearly arguing with the

witness or where counsel is asking the witness to draw a legal conclusion, to which awitness may not properly testify. (Questions of the latter type usually violate the opinionRules 701/702)

- (a) Not a Question counsel making statements instead of asking questions- Objections at Deposition; Cure by Rephrasing Must object to the form of a

question at deposition or else the objection is considered waived and counsel cannotobject at trial; questioning counsel solves problem by rephrasing question. (Hearsay andRelevancy are not waived under these circumstances)

- Motion to Strike on Ground that Answer was Nonresponsive Only counsel whoasked the question may do so, opposing counsel must do so on other grounds

Rule 612: Writing Used to Refresh Memory- May use but opposing party must have the opportunity to examine item and cross-examineon evidence brought to light through use of writing

Rule 613: Prior Statements of Witnesses- allows impeachment through a witnesss prior inconsistent statements

Opinions and Expert Testimony

Rule 701: Opinion Testimony by Lay Witnesses- Admissible if the lay opinion is rationally based on the perception of the witness and helpful

to a clear understanding of the witness testimony or the determination of a fact in issue.

- Excludes guesses, speculation, conjecture, and other irrational opinions- Test: The opinion is inadmissible if the jury is in just as good a position to reach a conclusionon its own

- Collective Facts doctrine case law permits lay opinion testimony that can be brokendown into underlying facts, i.e. that another person was drunk, sober, angry, calm, in pain,or driving fast or slowly.

- When in comes to the speed of an automobile, all licensed drivers may give their opinion asto approximately how fast the car was going when the witness has first-hand knowledgebecause, in MD, all licensed drivers are considered experts on the matter.

Rule 702: Testimony by Experts- When scientific evidence is offered, three prerequisites must be met:

1. the process used to obtain the results that are being proved is sound in principle;- Soundness is governed by any of the following: statute, judicial notice, Daubert, orFrye

- Soundness not governed by statute and not judicially noticeable must be formallyproved

- MD follows the Frye test: scientific evidence will become admissible only when theunderlying principle or process has gained general acceptance in the particular fieldin which it belongs

- Federal court follows the Daubertstandard: the test for admissibility is FRE 401Relevance, FRE 702 Reliability, and final screening under FRE 403.


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- In making its determination, the trial court should consider whether the profferedexperts technique or theory:1. can be or has been tested in some objective sense,2. has been subject to peer review and publication, and

3. has been generally accepted in the particular field; the court should also lookat

4. the technique or theorys known or potential rate of error, and

5. standards and controls under Daubert- The federal 401-702-403 analysis is not restricted to scientific evidence, but applies

to any evidence offered under Rule 7022. the person following this process or principle was qualified; and3. the test, etc., was performed properly in this case, on proper equipment, in good

working order- Expert testimony is admissible if the experts scientific, technical, or other specialized

knowledge will assist the jury in understanding the evidence or to determine a fact in issue;whether the evidence is helpful is left up to the court in its discretion.

- Possible rulings:- Expert testimony is inadmissible b/c it would not assist the jury, i.e. the jury would not

need it to objectively evaluate the facts or the proffered expert opinion has aninsufficiently reliable basis

- Expert testimony is admissible b/c it is necessary for a party to meet its burden ofproof; logic and common sense are insufficient to evaluate the facts

- Expert testimony is helpful because, while not necessary, it would be helpful to the juryin understanding the issues/topics

- Trial judge determines whether a witness is qualified to testify as an expert- Proponent must elicit experts qualifications on direct, then offer witness as an expert;

Opponent may object on improper subject matter grounds or on grounds that the witness isunqualified

- With the courts permission, Opponent may question proposed expert on these points

Rule 703: Bases of Opinion Testimony by Experts- Excludes nonsubstantive evidence offered solely to show the basis of expert testimony

unless sufficiently necessary and helpful for that purpose.- b/c experts are freed from the first-hand knowledge requirement, the experts opinion

may have a basis in hearsay (the opinion is based on hearsay)- The hearsay basis may be simply other witness testimony in the case, that the expert

has heard at trial; it may be out-of-court statements falling within exceptions to thehearsay rule

- Under 703, it also may be data inadmissible in evidence, that are reasonably reliedupon by experts

Rule 704: Opinion on Ultimate Issue- (a) treats experts just as it does lay witnesses: the question is always merely one of whether

the opinion will be helpful to the jury; if not, then the expert opinion is inadmissible.- (b) experts may not testify to whether a criminal defendant had a mental state or condition

constituting an element of the crime, such as intent, premeditation, or malice- 704(b) precludes experts from testifying in federal court to the ultimate issue of an

accuseds criminal responsibility or lack thereof- Experts in MD state court are permitted to testify whether an accused who has raised

the insanity defense had the capacity to conform his or her conduct to therequirements of the law


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- provides that the fact that an opinion is on an ultimate issue in the case no longerautomatically precludes it

- Test: does the opinion meet the test of Rule 701? If so, it is admissible; if not, then theopinion is inadmissible.

Rule 705: Disclosure of Facts or Data Underlying Expert Opinion- Permits an expert to testify to an opinion or inference without first testifying to the

underlying facts or data, unless the court requires otherwise

Hearsay

Rule 801: Hearsay - Definitions- Hearsay = OCS + TOMA (Hearsay is a pretrial statement (OCS) that is being offered at trial

to prove that what the declarant said when making the prior statement was true (TOMA),i.e. accurate as to one or more facts recounted in the OCS.)- Statement = an oral or written assertion or non verbal conduct intended to be an

assertion of fact (truth)- The proponent of hearsay, in order for it to help to prove what it is offered to prove at

trial, is implicitly asking the judge/jury to infer both that the out-of-court declarant hadthe belief it looks as if he/she had and that the declarants perception and memorywere accurate

- Even if the declarant was factually incorrect with regard to the assertion s/he made in theOCS, is it still relevant that the declarant made the statement? If the answer to thisquestion is yes, the evidence in nonhearsay

- Does the OCS help to prove the relevant fact that it is offered to prove, even if thedeclarant was wrong as to the fact(s) the declarant was asserting? If so, it is not offered for

TOMA and it is not hearsy- Step Analysis to Determine if Proffered Evidence is Hearsay

Evidence being offeredIdentify the evidence beingofferedDoes it include an OCS of aperson?If so, who was the declarant?What was the declarantasserting?Does it matter to whom theOCS was made? If so, includethat.

Is the OCS being offeredto prove the truth (beliefand accuracy) of a matterasserted by the declarantwhen s/he made the OCS?If yes, it is hearsay. If not,does it fall within arecognizable category ofhearsay?

Relevant/Material fact thatthe evidence helps toprove?

- Recognizable Categories of Nonhearsay- Legally Operative Facts (Verbal Acts or Verbal Parts of Acts)

o The substantive law regarding the particular type of claim or defense requires that

an OCS have been made in order for the type of claim, charge, or defense to exist,e.g. contracts, wills, the alleged defamatory statement

o Giving a particular legal effect, by virtue of the substantive law, to an otherwise

legally ambiguous nonverbal act, e.g. the statement, This is a gift, when handingover a ring; a threatening stmt. accompanying an otherwise ambiguous act canmake the combination an assault

- Stmts. offered to prove their effect on the hearer or reader


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o These stmts., e.g. putting the hearer or reader on notice (Caution: Wet Floor) or

stmts. affecting the reasonableness of the hearers or readers subsequent conduct(Dont touch that, its hot) are probative for that purpose, regardless of either thedeclarants sincerity or accuracy

- Stmts. offered a circumstantial evidence of the declarants consciousness, ability totalk, ability to speak a particular language, etc.

- Stmts. offered as circumstantial evidence of the declarants emotion, state of mind,knowledge, belief, intent, sanity, or insanity

If it doesnt matter whetherDeclarant believed what s/hesaid , but evidence isprobative anyway merely b/cOCS was made:

Get off at BUS STOP #1:Nonhearsay (Types a, b, or c)

If evidence will help prove factits offered to prove, s long asdeclarant believed what s/hesaid, even if declarant wasfactually wrong:

Get off at BUS STOP #2:Nonhearsay (Type d)

If declarants belief alone isinsufficient: we need fordeclarant to have been bothsincere and factually correct,in order for judge/jury toproperly rely on the evidenceto help to prove the materialfact:

Ride all the way to TERMINUS:Hearsay

- Implied Assertions from Verbal Utterances- Rule of Wright v. Tatham: verbal utterance are hearsay if offered to prove the truth of

the matter that was directly asserted by the declarant; they are also hearsay if theyare offered to prove the truth of an assertion implied by the declarant, i.e. theirproponent is asking the judge/jury to infer that the declarant would not have made theutterance unless s/he believe a particular fact to be true, and the out-of-courtutterance is offered to prove the truth of that fact the declarant apparently believed

- Implied Assertions from Nonverbal Conduct same

- The Confrontation Clause and Hearsay- Confrontation clause applies only in criminal proceedings and only when evidence is

offered against the accused, violation of the Confrontation Clause (CC) = exclusion- When the OCS declarant also testifies at trial: no CC problem- When the accused has forfeited his or her CC right = no problem- When the Defendant has not forfeited the CC right but the declarant does not testify at

trial: the testimonial v. nontestimonial distinction (Crawford v. Washington)o Testimonial Statements (formality + solemnity): if the OCS being offer by the

prosecution is testimonial, it is inadmissible to any TOMA unless the declarant istruly unavailable to testify at trial and the defendant had an opportunity to cross-examine the declarant regarding the statement at an earlier time

o Nontestimonial Statements: governed by regular hearsay rules but particularized

guarantees of trustworthiness must be shown as to the hearsay at issue foradmissibility

- Admissions of a Party Opponent- The opposing partys own stmt.- The opposing party adopted a third partys stmt.- The opposing party authorized a third party to speak- The opposing partys agents or employees stmts.- The opposing partys coconspirators stmt.

- hhjaRule 802: Hearsay Rule

- Hearsay evidence is inadmissible


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- Is the proffered evidence hearsay?- If yes, then it is inadmissible unless it falls under an exception; if no, then the evidence is

admissible.- If yes, but the hearsay rule does not exclude it (via one of the exceptions), one must ask

whether the Constitution excludes the evidenceRule 803: Hearsay Exceptions: Availability of Declarant Immaterial

- The Hearsay Exceptions (whether the declarant is available is immaterial):Present Sense Impression:stmt. describing or explaining anevent or condition made whilethe declarant was perceiving it orimmediately thereafter

Excited Utterance: stmt.relating to a startling event orcondition made while thedeclarant was under the stress orexcitement caused by the eventor condition

Then existing mental,emotional, or physicalcondition: stmt. of thedeclarants then existing state ofmind, emotion, sensation, orphysical condition; does notinclude a stmt. of memory orbelief to prove the factremembered unless pertaining toa will

Stmts. made by the declarantfor the purposes of medicaldiagnosis or treatment

Recorded recollection: memoor record used to refreshmemory may be read ontorecord but not admitted as anexhibit

Records of regularlyconducted businessactivities: made by a personwith knowledge in the regularcourse of business and is aregular practice of that business;custodian must testify as toauthenticity

Absence of entry in recordskept in accordance with thebusiness recordsexception: to prove thenonoccurrence or nonexistence

of the matter unless the sourcesof information indicate a lack oftrustworthiness

Public records and reports:setting for the activities of theoffice or agency, or mattersobserved pursuant to dutyimposed by law as to which

matters there was a duty toreport (excluding criminal cases,matters observed by police), orin civil actions and proceedingsand against the gov. in criminalcases, factual findings ofinvestigations

Records of vital statistics:births, deaths, marriages, etc.made to a public office

Absence of public record orentry

Records of religiousorganizations: same definitionas vital statistics

Marriage, baptismal, andsimilar certificates

Family records: family historycontained in Bibles, genealogies,charts, etc.

Records of documentsaffecting interest in property:as proof of the content of the

original, its execution, anddelivery if the record is a recordof a public office and anapplicable statute authorizes therecording in that office

Statements in documentsaffecting an interest inproperty: must be relevant to

the purpose of the document

Statement in ancientdocuments: documents olderthan 20 yrs.

Market reports, commercialpublications

Learned treatises: to theextent called to the attention ofan expert witness upon cross-exam or relied upon by an experton direct; stmts. may be readinto evidence but may not beadmitted as exhibits


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Reputation concerningperson or family history

Reputation concerningboundaries or generalhistory: in the community asregards customs concerning

boundaries affecting lands

Reputation as to character

Judgment of previousconviction: evidence of a final

judgment, entered after a trial orupon a plea of guilty (but notupon a plea ofnolo contendere),adjudging a person guilty of afelony, to prove any factessential to sustain the judgmentbut not including: when offeredby the Gov. in a criminal case forpurposes other thanimpeachment, judgments againstpersons other than the accused

Judgment as to personal,family, or general history

Rule 804: Hearsay Exceptions: Declarant Unvailable- Definitions of Unavailable:

- Testimony is prevented by privilege- Witness persists in refusing to testify- Lack of memory- Death or physical/mental illness- Proponent unable to procure witnesss attendance at hearing by process or other

reasonable means- Wrongdoing by the proponent that makes the witness unavailable waives these exceptions

Former testimony:

testimony given as a witnessat another hearing of thesame or different proceeding,deposition if there was a prioropportunity for opponent hadopportunity to examinewitness

Statement under belief of

impending death: sincerebelief of imminent deathconcerning the cause orcircumstances declarantbelieved to cause thesituation

Statement against

interest: pecuniary orproprietary interest, subjectdeclarant to civil or criminalliability

Statement of person orfamily history:

Forfeiture by wrongdoing:

Rule 805: Hearsay Within Hearsay- is not excluded so long as each part of the hearsay within the hearsay conforms to an

exception to hearsay

Rule 806: Attacking and Supporting Credibility of Declarant- allows opposing counsel to attack declarant of admitted hearsay evidence on grounds of

credibility and supported by any evidence admissible to support the claim of lack ofcredibility.

Rule 807: Residual Exception

Authentication and Identification

Rule 901: Requirement of Authentication or Identification


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- (a) unless items are self-authenticating under Rule 902, Rule 901 governs, and someevidence of authentication is required, sufficient to meet the Rule 104(b) standard

- (b)(1) allows authentication through testimony of a witness with first-hand knowledge thata matter is what it is claimed to be

- If the item, such as a quantity of white powder, does not have distinguishingcharacteristics, a chain of custody, showing a probability (not a certainty) of notampering, is required

- (b)(1) Real evidence offered must be the same evidence that was involved in theevent at issue for it to be admissible; Counsel must lay a foundation by a witness withfirst-hand knowledge before the real evidence may come ino If the real evidence has changed in the interim, this needs to be brought out; if the

change is so material as to deprive the evidence of its helpfulness, it should beexcluded pursuant to analysis under Rules 401 & 403.

- (b)(2) allows authentication through lay testimony as to handwriting- (b)(3) allows authentication through expert testimony or comparison with exemplar, sent to

jury

- (b)(4) allows authentication through circumstantial evidence- Open-ended method, e.g. reply letter doctrine when letter refers to contents of letter

sent to purported signatory; location and contents- (b)(5) allows authentication through voice recognition- (b)(6) allows authentication through telephone records- (b)(7) allows authentication through records obtained from public office where it was

authorized by law to be recorded or filed- (b)(8) allows authentication of a document apparently more than 20 yrs. old, looking

authentic, and found in a likely place- (b)(9) allows authentication where a reliable process was used- (b)(10) allows authentication via statutory methods- Demonstrative evidence merely helps the jury to better understand a witnesss testimony

it comes in only to illustrate the witnesss testimony; a limiting instruction is appropriate.- The required foundation for demonstrative evidence is that it is both a fair

representation and helpful to the jury; Rule 401, 403, and 105 control- In-court demonstrations, as well as evidence recounting out of court experiments, are

governed by Rule 401 & 403; the circumstances need only be shown to besubstantially similar not identical to the facts of the case at hand

Rule 902(4) (9), (11), (12): Self-authentication- the following are self-authenticating:

(4): Certified Copies of Public Records

(5): Official Publications (government issue)

(6): Newspapers, magazines, and periodicals

(7): Trade Inscriptions and the Like (labels, tags, etc. on items in trade, etc.)

(8): Acknowledged Documents: notarized documents

(9): Commercial Paper and Related Documents: commercial paper, signaturesthereon, and documents relating thereto to the extent provided by general commerciallaw


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(11): Certified Domestic Records of Regularly Conducted Activity:certificationoccurs when documents are accompanied by affidavit of custodian et al; otherwise samerequirements of the business record exception to hearsay apply

(12): Certified Foreign Records of Regularly Conducted Activity

Contents of Writings, Recordings, and Photographs(The Best Evidence Rule: Rule 1001 - 1008)

- Photographs, etc. are covered by the best evidence rule only if they aresubstantive real evidence and not demonstrative evidence, and if the contents of thephoto are important to the case (relevant)

- The best evidence rule can apply only if the witness gained his or her knowledge of thematter from the writing

- The best evidence rule only applies when the witness is testifying to the contents of thewriting

-

Rule 1001: Definitions- The best evidence rule applies only if a writing, recording, or photograph exists or once

existed; and (see Rule 1004)- 1001(1) does not seem to differentiate among writings, but the common law was clear that

the trial court had discretion whether to treat chattel with writing on it (tombstones, policebadges, delivery vans) as a writing for purposes of the best evidence rule, MD follows thecommon law on this point, the relevant factors:- The length and complexity of the writing;- How important or central the item and its contents are to the case;- Whether there is a real dispute as to the contents; and

- The difficulty of production- 1001(3) original includes all copies intended to have the same effect- 1001(4) carbon copies and photocopies qualify as duplicates

Rule 1002: Requirement of Original- In proving those contents, terms, or particulars (rather than first-hand independent

knowledge of the writing, recording, or photograph) the proponent must offer the originalor a duplicate of the writing, recording, or photograph

Rule 1003: Admissibility of Duplicates- In proving those contents, terms, or particulars (rather than first-hand independent

knowledge of the writing, recording, or photograph) the proponent must offer the original

or a duplicate of the writing, recording, or photograph- In the rare situation that use of a duplicate would be unfair under the circumstances or

there is a genuine question of authenticity of the original, the proponent must prove thecontents by producing the original, unless its nonproduction is excused

Rule 1004: Admissibility of Other Evidence of Contents- 1004(4) Writing, recording, or photographic contents (think: terms or details) are closely

related to a controlling issue in the case- Unless the original or a duplicate is unavailable for some reason other than the culpable

fault of the proponent; then proof may be made by other evidence


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- Excuse for nonproduction of the original when the original is required, or for nonproductionof the original or a duplicate when either is required, may be established as follows:- 1004(1) If the original was in your clients custody, you must show that your client lost

it (due diligence in locating the original is needed) or it has been destroyed (non-

purposeful destruction)- 1004(2) if the original is in a third partys control:

1. if within reach of a subpoena, you must issue a subpoena duces tecum;2. if outside the reach of a subpoena, you must still undertake all reasonable efforts to

obtain it- 1004(3) if the original is in your opponents custody, you must give notice (even notice

in the pleadings suffices) that it will be the subject of proof; the ball shifts to theopponent to bring it to court; at trial, demand its production

Rule 1005: Public Records- Even when the best evidence rule would otherwise require the original, proof of public

records may be made by certified copy

Rule 1006: Summaries- When admissible writings are too voluminous to be proved practically one by one, a witness

may testify to a summary of them, but they must be timely made available to the opponentfor inspection

Rule 1007: Testimony or Written Admission of Party- If your opponent admits, either in his or her testimony or in a written admission, what the

contents of the writing are, you need not produce the writing

Rule 1008: Functions of the Court and Jury- Regarding the admission of writings, recordings, or photographs when an issue is raised

(a) whether the writing ever existed (b) whether another writing produced at trial is theoriginal (c) whether other evidence of contents correctly reflects the contents, the issue isfor the judge/jury to decide

Maryland Rules of Evidence

Cts. & Jud. Proc. 9-104:- convicted perjurers are incompetent to testify

Cts. & Jud. Proc. 9-105:



Cts. & Jud. Proc. 9-109(b) & (d):

Cts. & Jud. Proc. 9-116:- MDs Dead Mans Statute generally precludes a party to a suit by or against the

deceaseds estate from testifying to a transaction with or statement by a person nowdeceased

- Such statutes are intended to prevent fraud, because the dead mans lips are sealed, andhis estate is therefore defenseless against a claim that he could rebut, if alive.