evidence

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EVIDENCE 1Presentation of Evidence

Under the FRE, what are the two elements of testimonial competence?

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1The witness must have personal knowledge of the matter on which he will testify (FRE 602), and he must declare that he will testify truthfully, by oath or affirmation. FRE 603. Note that there are no mental requirements FOR competency. Under the FRE note further that the judge, not the jury, determines witness competence.Test Tip: See if the witness has MOCK (Memory; Observance; Competence; Knowledge).


If evidence is admissible for one purpose, is it admissible for any purpose?

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2No.According to the doctrine of "limited admissibility," evidence can be admitted for one purpose without being admissible for some other purpose (e.g., insurance to show ownership but not the ability to pay).


What is the "Doctrine of Limited Admissibility"?

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3It holds that evidence may be admissible for one purpose and against one party, but not admissible for some other purpose or against some other party. EXAMPLE: Prior bad acts - admissible to prove a common plan, but not to prove "criminal character" – sometimes referred to as propensity evidence.


What is "judicial notice"?

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4It is the court's recognition of a fact as true without requiring formal presentation of evidence. Such facts include notorious facts - subject to common knowledge in the community - and manifest facts - capable of positive verification through readily accessible, undoubtedly accurate sources. FRE 201(b).


At what stage of the trial must a judge take judicial notice of a fact, if he's going to do

so at all?

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5Trick question. "Judicial notice may be taken at any stage of the proceeding," under FRE 201(f). In fact, judicial notice may first be taken at the appeals court level. Note, however, that an appeals court must take judicial notice of any fact the trial court properly noticed, or that the trial court was obliged to notice.


What kinds of laws (e.g., federal, state, municipal, foreign) are generally subject to

mandatory judicial notice?

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6For most courts, federal and state laws (e.g., constitutions, treaties, public acts of Congress, the state's common law and federal case law), official regulations (e.g., codes and rules of the federal and state governments, but not state agency management and organization rules). Most courts may take judicial notice of municipal codes, Congressional resolutions, and foreign countries' laws, but the court need not do so.N.B.: If the law of a foreign state is to govern a transaction, the court cannot take judicial notice of it; it must be pleaded and proven as an issue of fact.


What's the difference between the burden of persuasion, and the burden of going forward (or the burden of production)?

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7The burden of persuasion refers to the party's duty to produce sufficient evidence to convince the trier of fact that he should prevail. The burden of persuasion does not shift throughout the trial. Thus, in a negligence suit, plaintiff must prove duty, breach, causation, and damages; defendant, if he so chooses, must prove a defense, like assumption of the risk or contributory negligence. The burden of going forward, on the other hand, requires that a party introduce enough evidence on an issue such that a reasonable jury could infer the fact alleged. It shifts from plaintiff to defendant.


What's the difference between the burden of persuasion and the burden of going

forward?

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8For example, in a negligence suit, plaintiff must produce sufficient evidence on duty, breach, causation, and damages such that a reasonable jury could infer each element. This is plaintiff's "prima facie" case. If plaintiff doesn't meet this burden, a verdict will be directed against him. If he does, defendant has the burden of going forward - he can otter evidence to increase the possibility that the jury will find plaintiff has not mot the burden of persuasion. If defendant introduces no evidence, this, of course, decreases the likelihood he'll win (although jury still needn't necessarily find for plaintiff, if it doesn't believe plaintiff has mot the burden ofpersuasion on some issue). Conversely, if defendant wants to establish assumption of the risk, for instance, it has the burden of persuasion, and the initial burden of going forward.


What is the burden of persuasion in an ordinary civil case?

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9The trier of fact must be persuaded of the truth of disputed facts by a "preponderance of the evidence." Definitions of "preponderance of the evidence" vary, but, in general, a "Preponderance" exists when all the evidence of a fact's existence is more convincing to the trier of fact than the opposing evidence. COMPARE: Certain civil cases require a higher standard - proof by "clear and convincing evidence." Such civil suits include those for fraud, undue influence, oral contracts to make a will, and for the specific performance of an oral contract. This standard is also not easy to define, but in general it means "highly probable."COMPARE: Burden of persuasion in a criminal case - prosecutor must prove every element of the crime to convince the jury of guilt "beyond a reasonable doubt."


Does a presumption shift the burden of production?

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10Yes. The party adversely affected by the presumption has the burden of "going forward" to rebut the presumption.Note that a presumption does not shift the burden of persuasion (e.g., every element "beyond a reasonable doubt" in a criminal case), which remains the same throughout the trial.


Does a presumption have any effect once it has been rebutted?

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11No, according to the Federal Rules, Rule 301, and most courts: once the other party has

produced "substantial" evidence to rebut a presumption, the presumption loses effect (and the judge will not instruct the jury upon it). However, the inference created by the rebutted

presumption will remain - in other words, the jury can still draw conclusions from the facts presented to establish the presumption.


What is the common law "Dead Man's Rule"?

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12It is a law which exists in some form in most states, prohibiting testimony concerning a transaction between a witness with an interest in the outcome and a now-deceased person, in cases pressed or defended by the decedent's executor. The laws are founded on the theory that such one-sided testimony is unreliable, since the living person can lie without fear of contradiction.Therefore it is always the wrong answer on a Multistate Bar Exam question.


What is a "leading question"?

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13

It is a question which would lead an average person to believe that the questioner desires one answer over another.EXAMPLE: "Didn't you see the red light?"


Under the FRE, when is the use of "leading questions" permissible?

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14Under FRE 611(c):1. On cross-examination; OR

on direct examination, IF2. The witness is hostile, unwilling or biased;3. The witness is a child, or an adult with

difficulty communicating;4. The witness's recollection is exhausted 5. The questioning concerns undisputed

preliminary matters.


If a witness has been impeached on cross-examination, in what two ways can he be

rehabilitated" on redirect?

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15Explanation of responses on cross-examination; and testimony of other witnesses on reputation for truthfulness (if witness's truthfulness has been attacked).NOTE: Under limited circumstances, prior consistent statements can be used to rehabilitate, under FRE 801(d)(1)(b). To defeat a charge of bias or recent fabrication only, prior consistent statements made before the alleged bias or fabrication will be admitted.NOTE: Once bias has been established, a witness can never be rehabilitated.


What types of materials may be used to refresh a witness's memory?

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16There's no limitation - anything can be used, including leading questions, documents, and objects - although the refreshing item cannot be used unless and until the witness's present memory is exhausted. The only requirement is that the "refreshing object" must be used to refresh the memory, not just to show the jury the item.Note that the opposing counsel must have an opportunity to see the refreshing item before it's used, and the item can be marked as an exhibit under FRE 612.


Under the Federal Rules, may a party impeach his own witness?

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17Yes, according to FRE 607. COMMON LAW RULE: A party cannot impeach his own witness - but this rule is fraught with exceptions, including permissible impeachment when the witness is the adverse party (or someone associated with the adverse party, e.g., spouse, employee), a witness who must be called by law (e.g., an attesting witness in a will case), or the party is "surprised" by harmful testimony.


What is "intrinsic impeachment"?

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18

Testimony that discredits the witness, elicited solely from the witness himself on cross – examination.COMPARE: "Extrinsic impeachment," which is discrediting testimony from any other source.


There are five basic types of questions that can be used to elicit intrinsic impeachment

from a witness. What are they?

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19 Questions seeking to show:1. Bias or interest;2. Prior inconsistent statements ("laying a foundation" is not required under the FRE; it is required at common law);3. Prior convictions (majority rule, only felonies or misdemeanors involving dishonesty; under FRE, misdemeanors involving dishonesty and any felony under Rule 609(a), not more than ten years old);4. Bad character for honesty (including unconvicted bad acts);5. Sensory deficiencies (e.g., eyesight, memory, mental disability).


What are the primary methods of extrinsic impeachment?

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201. Bias;2. Contradicting facts;3. Inconsistent Statements (require a foundation);4. Defects in perception, memory, or capacity;5. Convictions (all felonies, and misdemeanors involving dishonesty, under FRE; any crime involving dishonesty, under majority rule);6. Bad character for truthfulness (via reputation or opinion testimony, under FRE. FRE 608(a).MNEMONIC; COD BITCH (Convictions; Defects; Bias; Inconsistencies; Truthfulness; Contradictions)


What types of prior criminal convictions are admissible for impeachment purposes

under the FRE?

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21Under FRE 609(a):1. Any felony (crime punishable by at least one year in prison); or2. Any crime, felony or misdemeanor, involving dishonesty or false statement.NOTE: Juvenile convictions, or very old convictions, are generally inadmissible for impeachment.NOTE: In crimes involving dishonesty, the judge must admit the conviction to impeach, if offered; if the crime doesn't involve dishonesty, admission is discretionary. Notes to Rule 609(a).NOTE: The use of prior convictions to impeach is not subject to the "collateral matter" rule.NOTE: In criminal cases, evidence of witness's prior felonies cannotbe admitted if the defendant (not the witness) is prejudiced thereby.COMMON LAW RULE: States vary, but most allow any felony conviction, with a trend towards allowing only crimes reflecting on veracity, whether felony or misdemeanor.


Can unconvicted bad conduct ever be used to impeach a witness?

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22Yes: but only if:1. Such conduct is probative of witness’s truthfulness; and2. Evidence is from witness’s own mouth on cross examination (“intrinsic”). Admission of such evidence is within the judge’s discretion, and the questioning must be carried out in good faith as to a reasonable basis for believing witness has undertaken such conduct (thus, witness could not be impeached with an act for which he’d been tried and acquitted.)


What is the "collateral matter" rule?

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23"Extrinsic" evidence (not from the witness's own mouth) is "collateral" and cannot be admitted if it is relevant only to discredit a witness. If the evidence also proves or disproves a substantive issue, the evidence is admissible. FRE 403.EXCEPTIONS: There are several, including where the matter sought to be proven is considered "material," i.e., showing witness bias, in which case extrinsic evidence is allowed even if it proves nothing else except bias.


How does the FRE deal with the use of old convictions to impeach?

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24

Under FRE 609(b), “old convictions” (generally more than ten years old) are not permissible unless.1. The court determines in the interest of justice that the probative value of the conviction substantially outweighs its prejudicial effect. FRE 609(b); AND2. The Proponent give the adverse party sufficient advance notice that it will use the conviction to impeach, so the adverse party can contest its use.NOTE: "Old convictions" include those where "a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date." FRE 609(b)RATIONALE: Old convictions are not probative of witness's current veracity. COMMON LAW RULE: Judge has discretion as to whether a remote con-viction is relevant to current credibility.


Can reputation evidence be used to impeach a witness's honesty?

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25Yes, both at common law and under the FRE (Rule 608(a)). Usually, in order to impeach a witness's veracity with reputation evidence, other witnesses will be called to testify about thewitness's reputation for truth and veracity in his community. Note that they need not know him personally to testify to his reputation.


Is extrinsic evidence relevant to bias covered by the "collateral matter" rule (i.e.,

must it address a material issue in the case)?

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26

No - Bias is never considered "collateral," so extrinsic evidence - i.e., anything other than the witness's own testimony - may be used to prove it.


As a general rule, can lay witnesses offer opinion testimony?

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27No, but "general" is the operative word here - the exceptions to this rule are legion. For instance, lay witnesses can testify to their own sense impressions based on common everyday knowledge, such as a person's age, sobriety, or emotional state; the approximate speed of moving vehicles, and the like.Thus, a lay witness can testify "He looked sick," "He looked crazy" or "He was going too fast," whereas a lay witness would not be competent to testify "He had beri-beri," "He was suffering from manic-depressive syndrome with schizophrenic tendencies" or "He was going 67 m.p.h." since these latter statements are not the subject of common, everyday knowledge.


In what situations may lay witnesses offer opinion testimony?

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28Generally, under FRE 701, where the opinion testimony is helpful to understanding witness's testimony or determining a fact in issue, and are rationally based on witness's first-hand knowledge, such as:1. Physical appearance of a person (weight, age, height, drunkenness, strength, etc.);2. Recognition (looks, voice, handwriting);3. Emotional state of another (angry, happy, etc.);4. Speed, distance, temperature (within everyday experience only);5. Value of one's own goods or services;6. Sanity of another;7. Odor.

MNEMONIC: DOVeR SEATS (Distance; Odor; Value; Recognition; Speed; Emotion; Appearance; Temperature; Sanity)


Under the FRE, under what circumstances will expert testimony be considered

necessary?

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29Where the court determines that "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." FRE 702.COMMON LAW RULE: Strict necessity is required: expert testimony is admissible only as to matters beyond common experience and knowledge.


In forming his opinion, may an expert rely on inadmissible evidence?

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30Yes, It's only necessary that the expert rely on those things a reasonable expert in the field normally relies on. FRE 703. Thus, an expert may rely on hearsay and opinion which could not, in and of themselves, be admitted into evidence directly.EXAMPLE: A physician bases his opinion on a victim's diagnosis, in part, on statements made by relatives of the victim. Although the relatives' statements themselves are inadmissible hearsay, a physician can rely on them in forming an opinion for use in expert testimony, because they are facts physicians normally would rely on for diagnosis purposes.

EVIDENCE 1Relevancy

What is "logical relevancy"?

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1Evidence is "logically relevant" if it tends to prove or disprove a material fact. FRE 401. If it does so, it's relevant, and might be admissible (if it meets other evidence requirements); if it doesn't, it's inadmissible.NOTE: Another aspect to relevance is "legal relevance," which requires that the probative value of the evidence substantially outweighs its prejudicial impact. A piece of evidence must be both logically and legally relevant to be admissible.

EVIDENCE 2Relevancy

What is the balancing test used to determine if a piece of evidence is "legally

relevant"?

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2Is the probative value of the evidence substantially outweighed by the probability of undue prejudice?If so, the court will exclude the evidence. FRE 403. NOTE: This happens most frequently with "inflammatory" evidence in criminal cases - graphic and gruesome photos, body parts, and the like.

EVIDENCE 3Relevancy

If a piece of evidence is relevant, is it admissible?

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3No - evidence must be relevant and clear other

obstacles (hearsay, privilege, etc.) to be admissible. If it is a writing, it must overcome HARB:

Hearsay objections;Authentication problem;Relevancy issues; andBest evidence objections.

Note, however, that the reverse is true - if a piece of evidence is irrelevant, it's inadmissible.

EVIDENCE 4Relevancy

Why is character evidence generally inadmissible to prove a person acted in conformity with his character on a given

occasion?

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4Because if a person's character is shown through evidence the jury is likely to be unduly influenced by its reaction toward the person, not by his actions under the circumstances in question.NOTE: Character evidence is evidence of how a person generally behaves, or behaved on some other occasion(s), offered to prove how he acted on the occasion in question.

EVIDENCE 5Relevancy

What are the three types of character evidence?

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51. Specific acts; 2. Opinion; 3. Reputation.

IMPORTANCE OF DISTINCTION:The type(s) of character evidence admissible in a given instance depend on the purpose for which the evidence is offered. For instance, whenever character evidence is admissible, reputation or opinion evidence can be used, under the FRE; specific acts can only be used when the character of a person is an essential element of a charge, claim, or defense - or to impeach a reputation witness (by testing his competence), or to prove notice (e.g., for negligent entrustment and self-defense). However, to prove habit, only evidence of specific acts can be used - not reputation or opinion.

EVIDENCE 6Relevancy

Character evidence is generally not admissible to prove conduct. However,

when character is "in issue," such evidence is admissible. When is character

"in issue"?

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6When the issue involves:1. Testamentary capacity;2. Sanity;3. Child custody (to prove character of parents);4. Defamation (to prove or disprove truth or damages);5. Entrapment (to prove or disprove that defendant was

predisposed to commit the crime);6. Notice (i.e., knowledge of entrustee's character in negligent

entrustment; victim's knowledge of attacker's violent nature where victim claims self defense);

7. Impeaching a reputation witness (e.g., "Floyd is known as a good boy," can be impeached with "Did you know Floyd was convicted of armed robbery?").

MNEMONIC: CHILD DENTIST (Child custody; Defamation; Entrapment; Notice; Impeach reputation witness; Sanity; Testamentary)

EVIDENCE 7Relevancy

What is "habit" evidence?

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7It is evidence describing a person's regular response to a certain set of circumstances.EXAMPLE: Person always takes the same route to work.ADMISSIBILITY UNDER FRE: Freely admissible under FRE 406 to prove a person acted in conformity with his habit on a certain occasion. ADMISSIBILITY AT COMMON LAW: Generally either inadmissible or only admissible in the absence of eyewitnesses.NOTE: Where habit is being proven, only character evidence in the form of specific acts can be used - not reputation or opinion.

EVIDENCE 8Relevancy

In a criminal case, under what circumstances will evidence of other specific instances of misconduct be

admissible under the FRE?

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8Where they have independent relevance, under FRE 404(b):1. Motive;2. Intent;3. Mistake, absence of;4. Identity5. Common plan or schemeMNEMONIC: MIMICNOTE: The evidence must still be logically relevant.

EVIDENCE 9Relevancy

What is the "Mercy Rule" in relation to character evidence?

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9It holds that, in a criminal case only, the defendant may offer pertinent character evidence (in the form of reputation or opinion only, not specific acts), to prove his innocence. FRE 404(a)(1).Note that, however, once defendant has done so, prosecutor can rebut defendant's evidence with reputation and opinion testimony as to defendant's bad character.RELATED ISSUE: If defendant doesn't offer character evidence, i.e., “opens the door,” then the prosecutor cannot do so either.

EVIDENCE 10Relevancy

In a criminal case, since the state cannot initiate evidence of the defendant's bad character, is defendant prohibited from introducing evidence of his own good

character?

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10No - the defendant can introduce evidence of his own good character to show he did not commit the crime in question. This is the "Mercy Rule." FRE 404(a)(1).TYPES ADMISSIBLE UNDER THE FRE: Reputation and opinion.TYPES ADMISSIBLE UNDER THE COMMON LAW: Reputation only.NOTE: Once defendant has introduced character evidence, prosecutor can rebut - with reputation and opinion only, not specific acts. However, under FRE 405, the prosecutor can ask defendant’s character witness whether he knows of specific acts of misconduct by asking “Have you heard…?” or “Do you know…?” type questions.


Under what circumstances can a criminal defendant introduce character evidence of

his victim?

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11

Defendant can offer reputation and opinion evidence of victim's character where, if victim acted in conformity with hischaracter, the conduct would tend to prove the defendant'sinnocence. FRE 404(a)(2).EXAMPLE: In a murder trial, defendant could offer reputation or opinion evidence of victim's violent character to prove the victim was the aggressor. However, prosecutor could then rebut with evidence of the victim's peacefulness with reputation or opinion evidence.N.B. This rule does not extend to rape cases, where defendant cannot show the victim's bad character through reputation or opinion evidence to prove consent or to impeach; specific acts may be proven under very limited circumstances, under FRE 412.


Could circumstantial evidence alone be sufficient to justify a verdict in a civil or

criminal case?

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12

In a word - yes.NOTE: Circumstantial evidence (as opposed to direct evidence) requires that inferences be made.


What's the difference between "real evidence" and "demonstrative evidence"?

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13Real evidence has probative value itself, e.g., the cleaver used as a murder weapon.Demonstrative evidence is an aid to help the jury understand evidence, e.g., a cleaver similar to the one used as a murder weapon.Note: that both real and demonstrative evidence can also be hearsay, and are subject to hearsay rules.

EVIDENCE 1Privileges/Policy Exclusions

Under what general circumstances will a given piece of evidence be subject to a

"privilege"?

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1

1. Appropriate relationship between communicants (e.g., attorney/client, physician/patient);2. Relationship existed at time of communication;3. Appropriate person is claiming the privilege (i.e., client or patient holds privilege, not attorney or doctor);4. There was a communication, i.e., verbal or communicative act; 5. The communication was made in confidence (presence of third parties normally destroys privilege);6. Privilege has not been waived (via contract or in court);7. There is no reason privilege should not control (e.g., legal advice sought for future wrongdoing; medical advice not in course of treatment).NOTE: Judge determines the preliminary issue of whether the privilege exists or not.


What testimonial privileges are available under the FRE?

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2There aren't any privileges under the FRE.However, FRE 501 provides that common law rules on witness privilege will control, as federal courts in-terpret them; and, in civil proceedings, with respect to an element of a claim or defense for which state law supplies the rule of decision, the privilege of a witness, person, government, state or political subdivision thereof is to be determined in accordance with state law.


Does the physician-patient privilege expire along with the patient?

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3No - the privilege belongs to the patient's estate after he dies.Note, however, that while the patient is alive, the privilege belongs only to the patient - and he may decide to claim or waive the privilege.N.B.: The physician-patient privilege is very limited, in states which recognize it, applying primarily to domestic relations cases. It is inapplicable, among other times, in personal injury cases and criminal proceedings.


There are two types of husband-wife privilege in federal court. What are they?

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41. The spousal privilege (incompetency to testify).Federal courts: Criminal cases - WITNESS SPOUSE HOLDS THE PRIVILEGE - a witness/spouse has the choice of testifying, without the consent of the accused/spouse, except as to confidential communications (on which the accused/spouse can forbid testimony). 2. Privilege of marital communications - A witness may not testify as to matters communicated in confidence during the marriage, if the presenter former spouse objects. Note that both spouses hold the privilege, and either one can assert the privilege against the other, or a third party (privilege doesn't, however, apply to actions between the spouses).


Under the FRE, are admissions in conjunction with offers to settle treated the

same as admissions in conjunction with offers to pay medical bills?

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5No. Admissions in conjunction with settlement offers are inadmissible to prove negligence, liability, or a claim's value: "I'm sorry - I wasn't watching. It's my fault, I'll pay you $1000 to settle." The entire statement is inadmissible under Rule 408.However, admissions in conjunction with an offer to pay medical bills (or actual payment of them) are admissible: "I'm sorry - I wasn't watching. It's my fault. I'll pay your medical bills." Admission is admissible (but offer itself and actual payment is not, under FRE 409).


Under the FRE, are admissions in conjunction with offers to settle treated the

same as admissions in conjunction with offers to pay medical bills?

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6COMMON LAW RULE: All types of statements with regard to paying medical bills - admissions, offers to pay, and payment - are admissible. With settlements, admissions made in conjunction with the settlement are admissible; the offer to settle and the actual settlement are excluded.

FRE C/LSettlements - Admissions Excl. Adm.

Offer + Pmt. Excl. Excl.Medical Bills – Admission Adm. Adm.

Offer + Pmt. Excl. Adm.So - if you're reduced to guessing because you can't remember the rules - guess to exclude under the FRE, and guess to admit under the common law.MENTAL PICTURE FOR FRE - Imagine a primitive settlement, like Jamestown, with a big, red plastic "X" over it. This will remind you that settlements are "X-cluded" (excluded).


Can defendant's liability insurance be admitted into evidence on the issue of

negligence or wrongdoing?

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7No.However, any other logically relevant issue may be proven via liability insurance, according to FRE 411, including control or ownership, agency, and witness bias. (It can also be brought up during voir dire to determine if a prospective juror has an interest in an insurance company, if an insurance company is a party in interest. This is done to determine bias.)RATIONALE: The jury would otherwise be likely to decide the case on improper grounds, e.g., ability to pay.

EVIDENCE 1Writings/Recordings/Photographs

What is the "Best Evidence Rule"?

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1When a party wants to prove the material terms of a writing, the "original writing" (which includes photocopies and carbons) must be produced. Copies and oral testimony concerning the writing's contents are only permissible on a showing of the original's unavailability not the result of proponent'sserious misconduct. FRE 1002.RATIONALE: Errors or gaps in memory, as well as fraud, can be avoided by allowing the trier of fact to see the writing itself, if it's available.NOTE: The judge decides the threshold issue of whether the document is unavailable.NOTE: The Best Evidence Rule can be waived if the opposing party does not timely object to admission of the secondary evidence.


WHEN THE BEST EVIDENCE RULE APPLIES

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2Only consider the Best Evidence Rule when:1. The terms of a writing are being proven, or2. Witness is testifying relying on a writing.Note that, if facts are not legally operative (e.g., words of will, contract, or defamation), the writing must still satisfy the hearsay rule.NOTE: Even if the witness is relying on a writing, it won't be covered by the Best Evidence Rule if it involves a "collateral matter" - that is, something not closely related to a controlling issue. FRE 1004(4).


When a document is covered by the "Best Evidence Rule," if the original is

unavailable, is any evidence on the contents of the writing barred?

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3No, it's just that the original is preferable. If theoriginal cannot be produced (it was lost ordestroyed, or otherwise legally unavailable),secondary evidence - copies, notes, or oraltestimony will be admissible. FRE 1004.COMMON LAW RULE: Although rejected by many states, the common law rule observed "degrees" of secondary evidence, such that if the original was unavailable, the nonexistence of written copies had to be proven before oral testimony would be allowed.


What is the "Parol Evidence Rule"?

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4The Parol Evidence Rule is a rule of substantive contract law, providing that Where there exists an unambiguous written agreement intended by the parties to embody the full and final expression of their agreement, NO prior agreements, oral ORwritten, or contemporaneous oral agreements, will be admissible to contradict or supplement the terms of the writing. POLICY: To avoid perjured testimony, and give a clear basis on which to base a judgment.N.B.: Prior written agreements are all covered, as well as oral ones! Exceptions to admissibility are DAM FOIL (Duress; Ambiguity; Mistake; Fraud; Oral agreement precedent; Illegality; Lack of capacity).


Must a writing be authenticated at trial, or can it be authenticated in some other way?

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Pretrial authentication is permissible, via, for instance, depositions, stipulations, and requests for admission of genuineness


Are newspapers self-authenticating?

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Yes, under FRE 902(6).MNEMONIC of self-authenticating documents under the FRE: CONTAC (Commercial paper; Official publications; Newspapers and periodicals; Trade inscriptions; Acknowledged documents; Certified copies of public documents).


Is expert testimony necessary to identify handwriting as being that of a particular

person?

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7No - Anyone with personal knowledge of an individual's handwriting is qualified to testify as to its authenticity, as long as the familiarity was not acquired for purposes of the litigation. FRE 901(b)(2). Familiarity with voice recordings, on the other hand, can be sought for purposes of litigation.NOTE: An expert, or the trier of fact, can identify handwriting by merely comparing the sample in question with an authenticated sample. FRE 901(b)(3).


Must a voice be authenticated by an expert?

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8No, a voice can be authenticated by any person whorecognizes it. Under FRE 901(b)(5), "Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, [can be accomplished] by opinion based upon hearing the voice at any time under any circumstances connecting it with the alleged speaker"NOTE: An expert witness, or the jury, can authenticate a voice by comparing the voice with an authenticated voice specimen. NOTE: Once a voice has been authenticated, before the conversation can be admitted, the proponent must still establish that the conversation was not "staged," and that there was no subsequent editing. Proponent must also disclose how and when the tape was made.


Must a photographer authenticate a photo used by a witness to help illustrate his

testimony?

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No - however, the witness must testify, from personal knowledge, that the photo fairly represents what it's supposed to represent. FRE 901(a).


Under the Federal Rules, are statements in any authenticated, 20-year-old

document admissible?

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10

Yes, under FRE 803(16) and 901(b)(8), the "ancient documents" hearsay exception.


Under what circumstances will "learned treatises" be admitted into evidence under

the Federal Rules?

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11According to FRE 803(18), a learned treatise (on "history, medicine, or other science or art") can be read into evidence (but not ad-mitted as an exhibit) if:1. An expert witness relies on it on direct examination, or it's called to his attention on cross-examination; and2. It's established as reliable authority by witness's testimony or admission, other expert testimony, or judicial notice.

EVIDENCE 1Hearsay

What is hearsay?

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1According to FRE 801(c), hearsay is:1. A statement.2. Other than one made by the declarantwhile testifying, (i.e., out-of-court);3. Offered to prove the truth of the matter asserted.If a statement is hearsay and does not fit any exception or exclusion to the hearsay rule, and the other party objects to its admission, it must be excluded. FRE 802.

EVIDENCE 2Hearsay

Why is hearsay excluded from evidence?

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2Because it is unreliable. If the declarantdoes not appear in court, the jury has no way to evaluate his memory, perception, sincerity, and ability to communicate; thus, it has no idea of how much weight to place on the evidence. Furthermore, hearsay does not give the opposing party the chance to confront evidence offered against him.

EVIDENCE 3Hearsay

What is often-tested non-hearsay?

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3There are three major types. FRE 801(c) excludes out of court statements from the hearsay rule because they are not offered to prove the truth of their assertions, but only to prove they were made. These are:1. Verbal acts (e.g., words of gift, contract, or defamation) Notes to FRE 801(c);2. Statements to show effect on hearer or reader (e.g., notice, knowledge, motive, good faith); and3. Circumstantial evidence of speaker's state of mind (e.g., "My drink is poisoned," to show belief that drink was poisoned, not that drink actually was poisoned).

EVIDENCE 4Hearsay

What are the hearsay exclusions under the FRE?

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4

There are exclusions for statements theoretically hearsay, but explicitly excluded under FRE 801(d)(1):1. Admissions - an exclusion under FRE 801(d)(2), and an exception at common law; and2. Prior Inconsistent Statements (made under oath, subject to penalty of perjury);3. Prior Consistent Statements, to rebut a charge of recent fabrication or bias;4. Prior identification of a person, made after perceiving him.5. Co-conspirators’ statements made during and in the course of the conspiracy.MNEMONIC: CAPPP (Co-conspirators’ statements; Admissions; Prior inconsistent statements; Prior consistent statements; Prior identification)

EVIDENCE 5Hearsay

What's the distinction between a statement which is an exception to the hearsay rule,

and one which is excluded from the hearsay rule?

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5

Hearsay exceptions involve statements which fit the hearsay definition out-of-court statements offered to prove the truth of their assertions which are admissible due to other factors, like trustworthiness and necessity. An exclusion can be one of the two types. it can be, theoretically, hearsay, but explicitly excluded from the hearsay rule, under FRE 801(d). These include admissions, and three kinds of prior statements of a presently testifying witness - prior inconsistent statements given while testifying under oath, underpenalty of perjury, at a prior proceeding; prior consistent statements offered to rebut a charge (express or implied) against witness of improper motive/influence or recent fabrication; and the witness's prior identification of some other person. The other type of exclusion includes those statements which are not offered to show the truth of their assertion, so aren't really hearsay at all: circumstantial evidence of speaker's state of mind, statements which show effect on speaker, or statements that constitute verbal acts (e.g., gift, contract, or defamation).

EVIDENCE 6Hearsay

Are admissions by a party-opponent "hearsay"?

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6

Under the Federal rules – no. Admissions are admissible into evidence. Under the FRE, admissions are non-hearsay, under Rule 801(d)(2).

EVIDENCE 7Hearsay

In order to qualify as an admission by a party opponent, must a statement have

been against interest when it was made?

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7No - at the time, the statement could have been self-serving. It need only be unfavorable to declarant at trial time. This distinguishes an admission from a declaration against interest, which must have been against interest when made. Furthermore, admissions can only be made by party-opponents and an admission need not be based on personal knowledge of the facts included in the admission, unlike a declaration against interest.

EVIDENCE 8Hearsay

Under what circumstances will silence be admitted as a "tacit admission"?

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8Notes to FRE 801(d)(2):1. The person must have heard the accusatory statement;2. The person must have been capable of denying the statement; and3. A reasonable person would have denied thestatement were it not true, under the same circumstances.MNEMONIC: COD HERD (Capable Of Denying; Heard; Reasonable to Deny)EXAMPLE: Silence in response to the comment, at the scene of the crime: "You murderer!" However, there is no requirement to respond to an agent of the state, e.g., a police officer.

EVIDENCE 9Hearsay

Is non-assertive conduct considered "hearsay" under the FRE?

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9No, under Rule 801(a)EXAMPLE: Doctor treats patient for AIDS. Doctor's actions are non-assertive conduct, since they are not intended as an assertion. Under the Federal Rules, the doctor's conduct could be admissible as nonhearsay to prove the patient had AIDS.Rationale: Non-assertive conduct is not as likely to be fabricated as assertive conduct or words.

EVIDENCE 10Hearsay

Traditionally, can a witness' prior inconsistent statement be admitted to

prove the truth of its assertion?

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10No. Traditionally, such a statement could be used for impeachment purposes only. The Federal Rules agree, unless the prior inconsistency was testimony under oath at a trial or deposition, in which case it is not hearsay and can be used to prove the truth of the facts it contains (as long as the declarant is available for cross-examination at the present proceeding). FRE 801(d)(1)(A).

EVIDENCE 11Hearsay

There are three kinds of prior statements of a presently testifying witness which are not considered hearsay under the Federal

Rules. What are they?

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11Under FRE 801(d)(1):1. Prior inconsistent statements given while testifying under oath, under penalty of perjury, at a prior proceeding;2. Prior consistent statements offered to rebut a charge (express or implied) against witness of improper motive/influence or recent fabrication;3. The witness' prior identification of some other person.MNEMONIC: PICSI (Prior Inconsistent and Consistent Statements; Identifications.)N.B.: For all three of these, the declarant must be subject to cross examination at the current proceeding.

EVIDENCE 12Hearsay

What are the major hearsay exceptions when declarant is unavailable and when availability is immaterial under the FRE?

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12FRE 804:1. Statements against interest;2. Former testimony;3. Pedigree (family history); and4. Dying declaration.

FRE 803:1. Present sense impression;2. Excited utterance;3. Then existing mental, emotional, or physical condition;4. Statements for purposes of medical diagnosis;5. Recorded recollection;6. Records, business;7. Absence of public records;8. Public records and reports;9. Ancient documents;10. Treatises (learned);11. Family records;12. Absence of records;13. Marital records.

EVIDENCE 13Hearsay

Under FRE 803(3) then existing mental, emotional, or physical condition, are past

conditions admissible?

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13

No. However, expressions of future intent or plans are included.

EVIDENCE 14Hearsay

Which hearsay exceptions require that the out-of-court declarant be unavailable to

testify?

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14Under FRE 804(b);1. Statements against interest;2. Former testimony;3. Pedigree/Family History;4. Dying declarations.MNEMONIC: SFPD

EVIDENCE 15Hearsay

Under what circumstances will the declarant of an out-of-court statement be

considered unavailable to testify?

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15Under FRE 804, when he/she is:1. Subject to mental or physical incapability; (including, obviously, death)2. Outside court's subpoena power;3. Under a privilege not to testify;4. Claiming lack of memory on events as to which he is to testify;5. Refusing to testify.MNEMONIC: PRISM (Privilege; Refusal; Incapability; Subpoena; Memory)NOTE: The judge determines unavailability, not the jury.COMMON LAW RULE: The common law does not recognize lack of memory and refusal to testify as "unavailability," but recognizes the rest.

EVIDENCE 16Hearsay

Is reputation evidence hearsay?

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16

Yes under the FRE. Under the Federal Rules, Rule 803(21), it is an exception to the hearsay rule.

EVIDENCE 17Hearsay

What are the requirements of the "former testimony" exception to the hearsay rule

under FRE 804?

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17

1. Testimony must be under oath;2. Declarant must be unavailable; .3. There must have been an opportunity to cross-examine in the former proceeding; and4. The opposing party had to have the incentive to cross-examine when testimony was originally offered (under FRE for civil cases, party against whom the testimony was examine; under traditional common law, issues and parties must have been identical, so prior testimony was only usable at a retrial; under the modern trend, which is more liberal than the federal rules, there need only be identity of interest and motive, with opportunity and motive to cross-examine at former proceeding).TYPE OF PROOF: Typically, a certified transcript. If unavailable, testimony of judge at prior proceeding, or that of a reliable person who attended (or that person's notes), will be satisfactory.

EVIDENCE 18Hearsay

Can former testimony from a criminal case ever be used in a civil case, under the

FRE?

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18Yes, under FRE 804(b)(1); therefore, a witness's testimony against a defendant in a criminal case can be used against the same defendant in a civil case concerning the same transaction, as long as the witness is now unavailable. (The "same transaction" requirement means the defendant had a similar motive to cross-examine the witness, in the first trial.)

EVIDENCE 19Hearsay

How does the FRE regard the admissibility of prior testimony in a criminal case?

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19It is admissible under Rule 804(b)(1) if the prior testimony was given under oath, in a proceeding where there was a chance to cross-examine, by a declarantunavailable at the present proceedings, and it is now offered against the same defendant, who had the opportunity and a similar motive for cross-examination when the former testimony was given.COMPARE - FRE ON CIVIL CASES. Under 804(b)(1), the testimony need not be offered only against the same defendant, as long as the former defendant was the current defendant's predecessor in interest (i.e., the former owner of property).

EVIDENCE 20Hearsay

What is the rationale behind allowing "dying declarations" into evidence as an

exception to the hearsay rule?

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20As with all exceptions, there are circumstances which suggest trustworthiness. The theory is that no one wants to die with a lie on his lips, and thus a statement made when the declarant believes he is in extremis is likely to be true.MNEMOMIC: CUBA (the statement has to do with the Cause of death; declarant has to be Unavailable; the statement has to do with a Belief of death; it is Admissible only in civil cases and homicide cases).

EVIDENCE 21Hearsay

What are the elements of the "declaration against interest" hearsay exception?

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21

1. The statement must have been against declarant'sfinancial or property interest when made (under modern rules and FRE 804(b)(3), penal interest also qualifies), but if it is offered to exculpate the accused in a criminal trial, it is inadmissible unless corroborating circumstances indicate trustworthiness.2. Declarant must be unavailable to testify, and his testimony (by deposition) cannot be obtained by process or other reasonable means. 804(a)(5);3. Declarant must have had personal knowledge of the facts;4. Declarant must have known the statement was againstinterest when made; and5. Declarant must have had no motive to lie.NOTE: Under the FRE, Rule 804(b)(3), the exception also includes any statement so contrary to the declarant's interest that no reasonable person would have made it were it not true.

EVIDENCE 22Hearsay

What are the differences between a "declaration against interest" and an "admission by a party-opponent"?

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22Declaration Admission1. Made by non party Made by party2. Unavailability Unavailability

required not necessary3. Against interest Could be self

when make serving when made

4. Personal knowledge Personal of facts necessary knowledge of

factsunnecessary

EVIDENCE 23Hearsay

What are the elements of a "present sense impression," an exception to the hearsay

rule under the Federal Rules?

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23According to FRE 803(1), the statement made:Has been made while the declarant was

perceiving an event/condition (or immediately thereafter); and

Describes or explains the event/condition.Note: Declarant’s availability to testify is

irrelevant. NOTE: Typically this is tested while declarant is

on a telephone call.MNEMONIC: WED (While Event happens;

Describe)

EVIDENCE 24Hearsay

What is the rationale behind the "present sense impression" hearsay exception?

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24Because the statement was made contemporaneously with the event it concerns, it will suffer no defects in memory; furthermore, since it usually would have been made to someone else who was also present, there was an opportunity for at least one other person to correct it.

EVIDENCE 25Hearsay

What are the elements of the "excited utterance" exception to the hearsay rule?

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25Under the FRE 803(2), the statement must:1. Be made while declarant is under stress of excitement;2. Due to a startling event or condition; and3. Statement must relate to the event or condition.MNEMONIC: SEER (Startling Event; Excitement; Relate)

EVIDENCE 26Hearsay

Statements of "present state of mind" may be offered to prove two things. What are

they?

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26Under FRE 803(3):1. Direct evidence of declarant's state of mind itself, where state of mind is "in issue" and material (e.g., intent, attitude, belief); or2. Declarant's conduct (in following through with his stated intent).MNEMONIC: A BIC (Attitude, Belief, Intent, Conduct).

EVIDENCE 27Hearsay

What is the rationale behind the "present state of mind" hearsay exception, in the

FRE?

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27The statement is likely to be trustworthy, since:1. The declarant knows his own state of mind, so there are no perception problems;2. The statement deals with present state of mind, so there can't be memory defects.Necessity is also a factor, since, when a party's state of mind is in issue (e.g., to prove intent), such statements may be the only way to prove it.

EVIDENCE 28Hearsay

What are the elements of the "past physical sensation" hearsay exception,

under the FRE?

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28Under FRE 803(4), statements of past physical sensation or condition are admissible to prove pain and its cause if it was:1. Made for purposes of diagnosis or treat-ment (thus, they must be made to medical personnel); and2. Reasonably pertinent to diagnosis or treatment.

EVIDENCE 29Hearsay

What are the elements of the "recorded recollection" hearsay exception, under the

FRE?

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29Under FRE 803(5),1. Witness must have no present recollection of the facts (if document revives memory enabling the witness to testify without it, the document is inadmissible);2. Document must have been made at the time of the event (or shortly thereafter);3. Document must have been made based on personalknowledge, and made or adopted by the witness;4. Witness must verify that the document was true whenmade; and5. The document must be authenticated (normally, but not necessarily, by witness testifying he recognizes his own handwriting or signature, and attesting to the truth of the statements when made). If the document qualifies, it may be read into evidence, but it cannot be received as an exhibit unless the adverse party offers it.

EVIDENCE 30Hearsay

In general, when a writing is admitted into evidence as a "past recollection recorded,”must the document itself be admitted into

evidence or can it be read to the jury?

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30

Generally the writing itself is inadmissible unless the opponent requests otherwise. In most cases, the writing must simply be read to the jury, to insure that the jury does not overvalue its contents. FRE 803(5).

EVIDENCE 31Hearsay

What are the elements of the "business records" exception to the hearsay rule?

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31Under FRE 803(6)1. Entry must be made in regular course of business;2. In conjunction with a business activity;3. Entered under a duty to record;4. Entered by one with personal knowledge of matters record-ed or transmitted from such a person;5. Entered at or near time of transaction;6. Must be authenticated at trial (normally, custodian of the record will testify as to how the record was prepared, and its identity).MNEMONIC: BAD KiTTy CAT (Business Activity; Duty; Knowledge; Time of Transaction; Course of business; Authenticated at Trial) NOTE: The trial court has discretion, under the FRE, to exclude the business record if circumstances indicate the record lacks trustworthiness.

EVIDENCE 32Hearsay

What are the elements of the "official records" exception to the hearsay rule,

under the FRE?

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32Under FRE 803(8), "records, reports, statements, or data compilations, in any form, of public offices and agencies," are admissible if:1. They set forth the activities of the office or agencies;2. Under a duty imposed by law (does not include police and law enforcement personnel).Note that circumstances and the source of the information must indicate trustworthiness.Also, factual findings resulting from investigations made under authority of law are admissible ONLY AGAINST the government in CRIMINAL cases.RELATED ISSUE: The absence of such records can be used as negative evidence on the same basis, FRE 803(10).

evidence

Documents

propensity evidence

mandatory judicial notice

trial court

common knowledge

state laws

witness competence

state governments

prior bad acts admissible