Evidence

3 Steps:1) Is it relevant? 401 relevance.Impeachment is also another type of relevancy. Credibility is always important.2) Is it reliable? Competent Source? Lay witness rules. Expert rules. Inadmissible opinion? Authentic? Violate the Best Evidence Rule? Hearsay?3) Is it right? Rule 403 balancing.

Key Features of Trial: The adversary system- 2 sides fighting for their version of the truth. Bifurcated court- judge decides what evidence is let in; jury decides what that evidence means. Lay decision making Concentrated proceeding.

FRE 102: Purpose and Construction. These rules shall be construed...to the end of ascertaining the truth and securing a just determination.

Why have evidence rules? We dont want to let everything in because some evidence tends to make a jury lean one way based on past experiences and emotion. We want to prevent this to get better accuracy. Efficiency Consistency *Uniformity balanced by flexibility- the broadness of the rules allows some creativity.*Remember: it is very hard to overturn an evidentiary ruling on appeal, so you must win the evidence argument at the trial level.

***Core Concept of Evidence: You always must be able to articulate WHAT THE EVIDENCE IS BEING OFFERED TO PROVE. Evidence may be admissible to prove one fact, but inadmissible to prove another.

The Three Rs1. Is the evidence relevant for the offered purpose?An item admitted into evidence must always be used to prove a material fact. *Remember the importance of common sense inference- what is the evidence being offered to prove?FRE 401/402Legal Relevance.FRE 403Pragmatic Relevance.

2. Is the evidence reliable for the offered purpose? Competent source? Inadmissible opinion? Authentic? Violate the best evidence rule? Hearsay? (Article 8)

3. Is it right to allow the fact resolver to receive the evidence for the offered purpose? The balancing of probative value against likely harm is a way of protecting the integrity of the fact-finding process- a commitment to the principle that juries must not decide cases for the wrong reasons- ex. anger, outrage, or sympathy. Balancing Test- Rule?Other examples: Public policy decisions, privileged information

Relevance

Logical Relevance: Rules 401-402 Pragmatic Relevance: Rule 403 Character Evidence: 404, 405 Conditional Relevance: Rule 104 Habit, Custom: Rule 406 Policy Exclusions to the Relevance Rules: Rules 407-15

Note: Relevance Issues should be raised in trial as early as possible to give the judge an opportunity to become educated on the facts. Judges are usually generous in allowing witness background that has a bearing on credibility.Note: There are two types of relevancesubstantive relevance (going to one of your legal theories of the case) and impeachment relevance (going to the credibility of the witness).Legal Relevance:FRE 401: Evidence is relevant if:(a) It has any tendency to make a fact more or less probable than it would be without the evidence; and(b) The fact is of consequence in determining the actionProbative valueFRE 401 has this two-step inquiry.1) What are the matters in issue in this case?Does not have to be controlling matter or disputed.2) Is the evidence probative of a matter in issue in the case?Man losing his job is more likely to need money and more likely to rob a bank. PROBATIVEA husband taking out life insurance policy on wife 10 years before death is SPECULATIVE-not relevantSometimes things may be conditionally relevant. It is conditionally relevant under 104(b) if a party first has to prove that another fact exists before the offered evidence will be relevant. Judge has discretion to admit conditionally relevant evidence out of turn, based on the representation that the proponent will connect it later. FRE 402. General Admissibility of Relevant EvidenceA) Relevant evidence is admissible unless any of the following provides otherwise: 1. The US Constitution, federal statute, these rulesB) Irrelevant evidence is not admissible. Questions to ask under this rule: 1) What is the evidence being offered to prove? 2) Is the fact provable in this case?, 3) Does the evidence help establish that fact?

Take aways from 401-402: The burden to get evidence in for relevance is very low.What is it being offered to prove? Is that point material? Does it have any tendency to prove that point?

Pragmatic Relevance:FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, waste of time, or other reasons.The court may exclude relevant evidence if its probative value IS SUBSTANTIALLY OUTWEIGHED by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. In FAVOR of allowing in evidence! One of the dangers must substantially outweigh the probative value to have the evidence kept out. **This is the balancing test!

Rule 403 Factors: Enumerated Dangers: Unfair Prejudice, Confusion of issues, Misleading the jury Enumerated Considerations Undue delay, Waste of time, Needless cumulative evidence

Purpose of Rule 403: As society, we have this rule because we want the jury to be deciding things logically rather than empathetically. It is unfair for the jury to use their emotions to decide a case rather than the logical facts.

Three Step Process:1. Determine the probative value of the proffered evidence.2. Identify the presence of any enumerated dangers or efficiency considerations.a. How is it prejudicial or misleading?3. Balance the probative value against the identified dangers or considerations.a. Dangers must SUBSTANTIALLY OUTWEIGH THE PROBATIVE VALUE. The rule is biased in favor of admissibility.

Conditional RelevanceFRE 104. Preliminary QuestionsA) In general. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.B) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.C) Conducting a Hearing So That the Jury cannot Hear Iti. The Court must conduct any hearing on a preliminary question so that the jury cannot hear it if:1) the hearing involves the admissibility of a confession;2) a defendant in a criminal case is a witness and so requests; or3) justice so requires.D) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.E) Evidence Relevant to Weight and Credibility. This rule does not limit a partys right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

Rule 104(a) Notes: When fact finding is necessary to determine the admissibility of evidence, the judge will decide whether or not this evidence is true. Somebody has to argue whether or not there is a foundation for this evidence and if it is, argue that it is true to a preponderance of the evidence. Gives the judge the fact-finding power. Example: Excited utterance statement. Judge must decide the statement qualifies as an excited utterance before it gets in. The judge does not have to rely on only admissible evidence. Must be by a preponderance of the evidence.

Rule 104(b) Notes: This is where CONDITIONAL RELEVANCE applies! Judge still plays gatekeeping role, but is less of a gatekeeper than under 104(a). When the relevance of a fact is conditioned upon finding that some other fact occurred. Evidence offered in court must meet all required evidence rules. This rule does not require any particular order of proof- The judge may allow the disputed evidence to be heard by the jury before a judicial finding that the condition has been fulfilled if the judge believes that the reasonable juror may find that, by a preponderance of the evidence, the fact is true. If the evidence turns out to be relevant, than the jury will consider it relevant and use it in their decisions. If the evidence is not relevant in the eyes of the jurors than they will ignore it.

Huddleston Test: Evidence of a bad act need only be sufficient to allow a reasonable jury to conclude by a preponderance that the person committed the act. Need to be sure the prior act happened and dont want to get into a trial within a trialdont want to spend too much time proving the prior bad acts.

*Need to understand how 404(b) and 104(b) relate to each other. Whenever you are attempting to introduce an ACT, you must make sure it is factually based and provable. (Know how to relate these two rules together).

Character Evidence

Structure of Character Rules: 404(a). Ban on Propensity Argument Exceptions: (a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(3)- 607, 608 609 404(b). Prior Bad ActsWays to Use Bad Acts for Reasons OTHER THAN propensity 405. How to Prove Character for Propensity Argument- when you are allowed to.

FRE 404. Character Evidence; Crimes or Other Acts(a) Character Evidence(1) Prohibited Uses. Evidence of a persons character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.Notes: Though much character evidence would be relevant, 404 says that in general it is not allowed because it has slight probative value and often misleads. When you are trying to prove, on the instance in question, that the party acted in accordance with that character trait, 404(a)(1) very clearly bans this evidence! This is called the propensity argument. Purpose: We only want the jury to be looking at what the party did in the instance under scrutiny. Same idea as 403- unfair prejudice- don't want jury to decide with emotion rather than facts. 404(a) is a BAN on what is called the propensity argument. To prove that they acted in accordance with the evidenced character traits. Character may still be used to prove other points- just not that they acted in accordance with that character on the instance in question. Adverse attorney could still raise 403 objection that its danger outweighs its probative value. Can be used to prove motive, opportunity, intent, preparation, plan, knowledge, etc. but prosecution must give notice Ex: Brooke thought Joe was lazy and good for nothing so she had motive to frame him. (Not showing he was lazy, showing Brookes motive)

FRE 404(a)(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:(A) A defendant may offer evidence of the defendants pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;(B) Subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victims pertinent trait, and if the evidence is admitted, the prosecutor may:i) Offer evidence to rebut it; andii) Offer evidence of the defendants same trait; and(C) in a homicide case, the prosecutor may offer evidence of the alleged victims trait of peacefulness to rebut evidence that the victim was the first aggressor.(3) Exceptions for a Witness. Evidence of a witnesss character may be admitted under Rules 607, 608, 609.Notes: Tells us when character evidence is allowed in for the propensity argument- exceptions to the general rule against character for propensity. **404(a)(2) applies only to criminal cases! Not civil! Therefore, since there are no exceptions, character evidence is not usually admissible in civil cases-simply banned under 404(a)(1). 404(a)(2)(A): Mercy rule permits a criminal to introduce evidence of pertinent (cant just be randomthink about why it matters to the case) character traits (peacefulness) of the since their liberty is at stake and any need a counterweight against strong investigative and prosecutorial resources. However, once the has put the s character into issue, the can now bring in evidence to rebut the peacefulness claim under 404(a)(2)(A). Purpose: Play fair. If we are going to allow the Defendants character testimony, then the mercy rule gets thrown out. Both sides should then be able to question character. PAY ATTENTION ON WHERE EVIDENCE IS OFFERED. CANT BRING IT IN UNLESS HAS ALREADY OPENED DOOR. 404(a)(2)(B)*If victim was the alleged first aggressor, then their character traits may be allowed in. *AGAIN the must be the first to bring the character into question!! Then, the will be allowed to rebut (404a2Bi) OR offer evidence of the defendants same trait. (404a2Bii) Ex. If allegedly, Leslie was the first aggressor, and D called witness to testify that Leslie was an angry and violent person. P can then rebut this evidence AND offer evidence that D was also angry and violent. Under 404(a)(2)(B)(ii): Once the opens the door to the victims character, he has opened the door to his own character. Practice Tip: should always remember that it is their choice whether or not to call character into question (to open the door)- they should weigh what witnesses are going to say? Overall bad or good idea to call character into question? Though opinion/reputation evidence sounds a lot like hearsay, there is an exception for it found in FRE 803(21).

FRE 404(b) Crimes, Wrongs, or Other Acts(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character.(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:(A) Provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial.(B) Do so before trial or during trial if the court, for good cause, excuses lack of pretrial notice.Notes: Remember core concept of evidence: Evidence may be admissible to prove one fact but inadmissible to prove another. 404(b)(1): Cant use specific acts as evidence. Evidence of specific instances is generally not allowed. Only opinion/reputation evidence is allowed under 405(a) Not admissible as proof of notice of a condition. Firsthand knowledge is required when evidence is offered to show dangerousness of a product or location. Purpose for allowing opinion/reputation and not specific acts: Specific act evidence is TOO powerful. It has the greatest capacity to raise unfair prejudicecan also be a waste of time because the other party will argue then that the specific instance did not occur; therefore, extremely large 403 concerns. Opinion or reputation is less powerful evidence, and it IS more generally admissible. This is an odd phenomenon- we allow witnesses to tell their opinion and reputation, HOWEVER we don't allow them to ask the basis for those opinions or reputation. (Unless provided for in specific acts under 404(b)(2)). 404(b)(2): Instances in which you CAN use specific acts that are not the propensity argument. Used to show: Identity, Modus operandi, intent, knowledge, motive, preparation, plan, consciousness of guilt, state of mind, dislike of or attitude toward the victim, opportunity or preparation, absence of mistake or accident, to impeach defendants alibi, circumstances of arrest, proximity of defendant to time or place of crime, identification of weapon used in crime, etc. Basically, you CAN use specific instance evidence as long as it is not being used to prove propensity! Basic Rule- if you are going to use specific incident evidence you have to let the other partys attorney know.

Examples of 404(b):Person A is accused of stealing information from a password-protected computer.A had been convicted once before for stealing info from the exact same computer.Bad argument: Because he did it before, this evidence should be used to show that he probably did it again.Good argument: Using this evidence to show that Person A had knowledge of the password of the computer.

Person C is accused of trying to sell a rare painting by Vincent Van Gogh. There is evidence that Person C is the individual who stole the Van Gogh painting three months earlier.Bad argument- Because he is a bad person and stole this painting, that means he is a bad person and selling the painting.Good argument: evidence is being used to prove that he had the opportunity to sell the painting.

What is the best way to attack evidence being allowed under 404(b)? 403 Balancing Test (Rememberwith all the rules, you still need to use the 403 balancing test.) Considerations Probative Value: Prosecutors need for the evidence. Degree of probative worth regarding the prior act. Unfair prejudicial risk: Nature of prior misdeeds and their potentially prejudicial effect. Effectiveness of a limiting instruction in reducing the unfair prejudice.

Huddleston Test: Evidence of a bad act need only be sufficient to allow a reasonable jury to conclude by a preponderance that the person committed the act. Need to be sure the prior act happened and dont want to get into a trial within a trialdont want to spend too much time proving the prior bad acts. Can be proven by convictions or witness testimony. This is the 104(b) test. The relevance of a prior act under 404(b) is conditioned upon proof that the defendant actually engaged in the conduct. Thus, proof of whether the prior act occurred is considered under the 104(b) standard as would any other conditionally relevant facts. If its obvious-they may admit it. If it is in dispute as to whether it actually happened, the act can only come in under the Huddleston test. Ex: You want Joes bar fight in. You cant get this in for specific event or character. You might get it in under knowledge of how to fight. Now that youve argued knowledge, you cant say it proves he was violent, you just have to say he had knowledge bc thats how you got it in.

FRE 405. Methods of Proving Character(a) By Reputation or Opinion. When evidence of a persons character or character trait is admissible, it may be proven by testimony about the persons reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the persons conduct.a. Reputation is the communitys belief about someone. The reputation must be at the time of the incident, not at the time of trial. b. Opinion is a persons own belief about that person. (b) By Specific Instances of Conduct. When a persons character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instance of the persons conduct.a. Example: If a drug dealer uses a defense that he was entrapped, prosecution may offer evidence of a defendants character as a preexisting drug dealer.Notes: The difference between 404(b) and 405(b) is what the prior acts are being offered to prove. Under 404(b), they are being offered to prove something other than character. Under 405(b), specific acts can be used to prove character- for propensity argument--, but only when character is an essential element of a claim, defense, etc. Rule 405(a) says that when character evidence is admissible, it is admissible through reputation or testimony in the form of an opinion. Though this may sound like hearsay- an exception is provided for it- 803(21). Rule 405(a) allows the cross-examiner to bring up prior instances of conduct if the D has brought up the opposing character trait in the case in chief/on direct examination [of a character witness!]. Purpose: P is testing the knowledge of the witness. Testing the credibility. *Credibility of a witness is always a fact of consequence! Notice that this creates a very fine line. The cross-examiner is ONLY allowed to test the knowledge of the witness, the cross-examiner cannot assert the facts they are asking. Ex. Did you know that Joe broke xs nose in a bar fight? Problem: Once the question has been asked, the evidence that is otherwise inadmissible will get into the jurys minds. Michelson Limiting Instruction: The judge must limit the evidence and tell the jury that they may only use that question to test the credibility of the witness. Judge will instruct the jury that this is no proof that the event actually occurred, but instead only brought up to question reputation. *Ethics Question Rule 405(b) allows certain circumstances when you can use specific act evidence to prove character if the trait is an essential element of a charge, claim or defense. Very rarely is something an essential element of a charge, claim or defense. In order to determine essential element- look to the actual definition of the charge, claim, or defense. Example- Suing City for Police violence- must prove they hired someone who was known to have a violent temper. Example- Negligent entrustment of vehicle with incompetent driver. Must prove driver was incompetent. When the character trait is an essential element, then evidence towards it is admissible if proven by reputation, opinion, or specific instances. Example: Did you know about the bar fight? So do you still think hes peaceful? Can only be used ON CROSS EXAMINATION (unless its used under 404(b))

*Specific instances of pertinent character traits allowed in two instances (other than enumerated in 404(b)1) where it is a necessary element of the crime (405(b)); 2) to impeach witnesses as to their truthfulness or untruthfulness (405(a)).

Habit EvidenceFRE 406. Habit; Routine Practice.Evidence of a persons habit or an organizations routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Judge determines whether this gets in under rule 104(a)

Character v. HabitFRE 404(a): Evidence...of character...is not admissible to prove that on a particular occasion the person acted in accordance with the character.FRE 406: Evidence of..habit..may be admitted to prove that the person acted in accordance with that character Habit may be allowed for purposes of the propensity argument while character may not. (The party acted in accordance with that habit) There is a very thin line between character and habit, make best argument. Reflexivity matters for habit. It must be something that is almost non-volitional, semi-automatic. Habit applies to more than just people. It usually is used in evidence for organizations. (Routine organizational evidence will 1st be decided by judge).Purpose: Habit is much more probative value than simple character.Saying they are always wearing their seatbelt-this is reflexive. It is a habit. Versus saying they are a careful person. Careful people are sometimes not careful.Purpose: Character can seem too damning, and then the jury will look at the type of person the defendant is. Habit doesnt go to the type of person, but is more telling.

How to prove habit: Form of opinion if someone has seen you do something over and over. Ex: In your opinion, did the have a habit of stopping at that intersection? Recounting many specific examples of behavior. Multiple witnesses can be called to testify to this.*Stakes are high- if it is habit, then the prosecution can use it in their case in chief. If character, have to wait until D brings it into question.

Rule is pretty ambiguous. It helps to look at other courts prior decisions and how theyve handled it. *Remember this

Policy Exclusions and PrivilegesIn rules 407-412: Probative value of this type of evidence is generally low.

FRE 407. Subsequent Remedial MeasuresWhen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: (fault) Negligence Culpable conduct A defect in a product or its design; or A need for a warning or instruction.But the court may admit this evidence for another purpose, such as impeachment orif disputedproving ownership, control, or the feasibility of precautionary measures.Notes: Purpose: 1) Promotes repairs; 2) Such repairs may not necessarily prove negligence or fault, but there is a danger that the jury may erroneously think so; 3) Takes the jurys attention away from the central issues in the case. Notice exceptionsimpeachment, and if disputed, to prove ownership, control, or the feasibility of precautionary measures. Example: When is saying that they were not in control of the property, however, they fixed the property. Exceptions will still be subject to the 403 test. However, if the evidence is going to show negligence, culpable conduct, defect, or need- NOT admissible.

**Notice that in order to know whether or not evidence is admissible, you must look to the theories of the case. Therefore, the legal claims being argued are important in evidence. Need to know what fact of consequence the evidence is going to prove towards what legal theory. Example: A customer slips in a store and injures herself. claims the type of flooring was too slippery, and she sues the store for negligence. wants to offer evidence to show that a week after the accident storeowner changed the stores flooring to non-slip flooring to show that the floor was too slippery when she fell. Relevant & makes it more likely, but clearly excluded. She slipped & fell outside of the store on the sidewalk. said it wasnt his fault b/c he didnt own the sidewalk out front. A week later installed non-slip material on the sidewalk. This evidence would be admissible because its not going to show fault, just ownership.

FRE 408. Compromise Offers and Negotiations(a) Prohibited Uses. Evidence of the following is not admissibleon behalf of any partyeither to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction.(1) Furnishing, promising, or offeringor accepting, promising to accept, or offering to accepta valuable consideration in compromising or attempting to compromise the claim; and(2) Conduct or a statement made during compromise negotiations about the claimexcept when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witnesss bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Notes: Purpose: Offers to settle are irrelevant, since there are many reasons other than fault to settle a case. Also, settlements, as a matter of policy, should be encouraged.

FRE 409. Offers to Pay Medical and Similar ExpensesEvidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Notes:Purpose: Such offers may be motivated by altruistic reasons, but that a jury will assume it shows fault. Encourages providing prompt medical attention to injured persons and humanitarian impulses.

FRE 410. Pleas, Plea Discussions, and Related Statements(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the D who made the plea or participated in the plea discussions:(1) a guilty plea that was later withdrawn;(2) a nolo contendere plea;(3) a statement made during a proceeding on either of those pleas under FRCP 11 or comparable statute;(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.(b). Exceptions. The Court may admit a statement described in Rule 410(a)(3) or (4)(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statement ought to be considered together or;(2) in a criminal proceeding for perjury or false statement, if the D made the statement under oath, on the record, and with counsel present.

FRE 411. Liability InsuranceEvidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witnesss bias or prejudice or proving agency, ownership, or control.Notes: Rationale: The existence of such insurance has little or no relevance to the issue of negligence or fault and that the amount of compensatory damages the jury may award the P should not be influenced by whether the D had insurance, or of the Ds financial condition otherwise. Again, evidence is inadmissible for issues of negligence or fault, but is admissible to prove witness bias/impeachment, prejudice, or proving agency, ownership, control. Info about insurance generally will not be let in, unless the insurance company is accused of misrepresenting things.

FRE 412. Sex Offense Cases-The Victims Sexual Behavior / Predisposition(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:(1) evidence offered to prove that a victim engaged in other sexual behavior; or(2) evidence offered to prove a victims sexual predisposition.(b) Exceptions.(1) Criminal Cases. The court may admit the following evidence in a criminal case:(A) evidence of specific instances of a victims sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;(B) evidence of specific instances of a victims sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and(C) evidence whose exclusion would violate the defendants constitutional rights.(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victims sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victims reputation only if the victim has placed it in controversy.(c) Procedure to Determine Admissibility.(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must: file a motion that specifically describes the evidence and states the purpose for which it is to be offered at least 14 days before trial, serve the motion on all parties and notify the victim.(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.

Notes:Without this rule, the argument of consent would be made much more. This rule takes away from reputation and opinion evidence. Cant prove lack of mistake stuff permitted by rule 412. This evidence is highly prejudicial and outweighs its probative effect. We are so skeptive of this rule that we wanted a rule so judges/juries werent left to figure these issues out on their own. Almost always excluded.

FRE 413. Similar Crimes in Sexual-Assault Cases(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. (Must disclose to defendant 15 days before trial)

FRE 414. Similar Crimes in Child Molestation Case(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. (Must disclose to defendant 15 days before trial)

FRE 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation(a) Permitted Uses. In a civil case involving a claim for relief based on a partys alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.

WITNESS EXAMINATION Notes: Facts are 1st hand observations; opinions are drawn from those observations Opinions are often used because people dont know if the car was going 85mph, but they do know it was going fast. Can be rejected if it seems like speculation or guesswork. We dont want the witness to make conclusions that overcome the jurys function. They are supposed to make the conclusions, not the witness.

FRE 601. Competency to Testify in GeneralEvery person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law will govern the witnesss competency regarding a claim or defense...

FRE 602. Need for Personal KnowledgeA witness may testify as to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge. Evidence to prove personal knowledge may consist of the witnesss own testimony. This rule does not apply to 703.

FRE 603. Oath or Affirmation to Testify TruthfullyBefore testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witnesss conscience.

FRE 604. InterpreterAn interpreter must be qualified and must give an oath or affirmation to make a true translation.

FRE 605. Judges Competency as a WitnessThe presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

FRE 606. Jurors Competency as a Witness(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jurys presence.(b) During an Inquiry into the Validity of a Verdict or Indictment1. Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jurys deliberations; the effect of anything on that jurors or another jurors vote; or any jurors mental processes concerning the verdict or indictment. The court may not receive a jurors affidavit or evidence of a jurors statement on these matters.2. Exceptions. A juror may testify about whether:a. Extraneous prejudicial information was improperly brought to the jurys attention.b. An outside influence was improperly brought to bear on any juror; orc. A mistake was made in entering the verdict on the verdict form.

FRE 701. Opinion Testimony by Lay WitnessesIf a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:(a) Rationally based on the witnesss perception;(b) Helpful to clearly understanding the witnesss testimony or to determining a fact in issue; and(c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Because it is difficult to tell opinion from fact, the rules allow some inferential testimony in as long as it meets the three criteria of 701:1. Rationally based on witnesss perceptionmust have personal knowledge from FRE 602. Has to be something they witness on their own.2. **Helpful to clearly understanding the witnesss testimonyis it helpful to a jury!? The judge should only allow in the part of the inference that is helpful to the jury to understand what actually happened- something that the jury couldn't make up the opinion by themselves. Something that is part of being at the event and being a witness. Ex. The car was going about 80 mph- I got a good look at it. Of course, the witness made the inference that the car was going 80 mph from senses at the scene of the event, but it would be very difficult for the witness to describe the exact sounds, sights, feelings, of being there and seeing the car speed past, so itd be admissible.

Lay Opinion Subjects Typically Allowed: Collective Facts Doctrine: Allowed to convey some opinions generally using common descriptive terms (He looked happy rather than lips curled up and twinkle in eye, etc) because itd be too hard for people to communicate exact perceptions. Appearance of objects (size color texture) Intoxication (I think he was drunk) Emotions (He looked happy) Descriptions (He was tall/young/weak/sick) Value of witnesss property

OK UNDER 701: Shorthand factual inferences; single events; helpful to juryNOT OKAY UNDER 701: Speculation & general conculsions

-Trick with all of these is figuring out whether the testimony falls on the OK side of 701 or fall into too far opinion- not ok under 701. -Decisions are almost always left up to judicial discretion.-Cannot testify as to what another person thinks, feels, or intends. No amount of observation or perception by a lay witness can support an inference or opinion about another persons thoughts or feelings.

Making the Record, Offers of Proof & Limited admissibility: Making the Record Rule 103 states that in order to have any ground for an appeal we had to object at the right time for the right reason and in the right way. Even then, it would be hard to over turn trial. Appellate court must decide the error likely had an effect on the outcome of the case to overturn it or a substantial right was forbidden. You always have to make sure you are on the record. 103(a) the objection has to occur at the first time the evidence is offered. So if you miss a hearsay statement the first time, when it comes up again, youve waived your objection to it. It has to be timely. If you miss it, you are stuck under 103(e) plain error. AND you have to be right. If you object on the wrong grounds, there is no error. Making Objections Make them timely and state the specific legal grounds. A general objection is deemed to be relevance. If you need more than a simple statement ask to be heard out of the presence of a jury. Dont be argumentative. If you make an objection, be sure the record reflects a ruling. If you want to keep objecting to the same thing but the judges attitude is clear, ask the judge for a continuing objection to be clear on the record. Offer of Proof When lawyers show the judge and appellate court what the excluded evidence would have been. Two ways to do this: Ask a question to the witness out of presence of jury Give a narrative as to what you anticipate the testimony to be at a side bar. Limiting Instructions Rule 105 relies on the presumption that jurors will follow limiting instructions (to consider evidence for one purpose and not another). Judges may give limiting instruction without being asked or opponents of the evidence can ask. If we dont ask, the issue will be waived on appeal. Judges have to give it if it is proper. Strategy is important here. Telling a jury they cant consider evidence for one purpose might send up a red flag. Redirect Examination Why questions are the best. No leading questions under 611(C)Re-cross Examination Completely up to judges discretion. Use leading questions. Rebuttal Evidence Limited to non-collateral matters first raised in defendants case in chief. Plaintiff cannot recall witness who have already testified to repeat testimony. Not an opportunity to have the last word. If says rebuttal is improper the s last opportunity is to ask judge for permission to reopen case in chief in the interest of fairness and accuracy. Sur-rebuttal Evidence Not typically allowed, but discretionary under FRE 611.Motions in Limine If the objection has been made through a motion in limine and the motion is denied (the evidence admitted at trial); then you do not need to renew your objection at trial. If you won the motion in limine (evidence is excluded at trial), then make sure the opposing counsel does not attempt to bring this evidence in anyways- object if they try to. If you want to appeal a motion in limine, then you cannot open the door to the evidence yourself (in an attempt to ease the sting)- because this would be waiving your right to appeal. (Ohler Case) You can undermine the evidence after it is brought up on rebuttal.

*Be very cautious of order on exam & the barwitnesses impeached after theyve testified and can only be rehabilitated after theyve been impeached.

Expert WitnessesDifferences once you get a witness opinion? Can rely on hearsay or other admissible evidence, as long as it is the type of evidence that experts in the field typically use. Must be qualified: personal knowledge outside the knowledge of the normal person. Must lay foundation for personal knowledge.

FRE 702. Testimony by Expert WitnessesA witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:(a) the experts scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles and methods; and(d) the expert has reliably applied the principles and methods to the facts of the case.

FRE 703. Bases of an Experts Opinion TestimonyAn expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them (the otherwise inadmissible evidence) to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. [403]Sources: 1. Experts personal knowledge2. Admitted evidence3. Inadmissible evidence (under certain circumstances)Limitations: FRE 704. Opinion on an Ultimate Issue(a) In GeneralNot Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.Cross-Examination, Impeachment, and RehabilitationQuestions1. What are you offering the evidence for? Substance or Impeachment?2. What box does it fall under? Bias? Capacity? Prior Conviction? Contradiction? Prior inconsistent statements? Character for untruthfulness? Conduct Probative of Untruthfulness? Treatises?3. Can you bring in extrinsic evidence to back up that impeachment?Always allowed or only collateral/non-collateral?4. Are we on direct examination or cross-examination?Different kinds of impeachment are allowed for each.

Rule 607. Who May Impeach a WitnessAny party, including the party that called the witness, may attack the witnesss credibility.When a party attacks the credibility of his own witness, the examination is subject to the rules that apply to cross exam

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to..1) make those procedures effective for determining the truth;2) avoid wasting time; and3) protect witnesses from harassment or undue embarrassment.(b) Scope of Cross Examination. Cross-Examination should not go beyond the subject matter of the direct examination and matter affecting the witnesss credibility. The court may allow inquiry into additional matters as if on direct examination.(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witnesss testimony. Ordinarily, the court should allow leading questions:1) on cross examination2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Note- Cross examination to bring out impeaching matter is always proper.

Most Common Impeachment MethodsTwo ways to impeach: Cross Examination Rules 608 & 609 define when to use Extrinsic evidence After the witness has testified, you put up another witness to impeach their credibility. Only can do this if it is non-collateral

Each of these numbered, bolded, underlined sections should be its own impeachment box and has its own rules.

There are three types of impeachment for untruthfulness: Through a character witness (reputation and opinion); specific acts of dishonesty (non conviction); and evidence of a conviction.

Impeachment must be relevant.Common law says a witness should first have the opportunity to be confronted by the inconsistent statement first. Not a requirement though.

1. Bias, Interest and Motivea. Bias & motive exists where there is a witness who has a frame of mind that could color his testimony.b. Interest exists where a witnesss relationship to a party or the lawsuit is such that he stands to gain or lose, usually financially, from a particular outcome.c. Doesnt have a specific rule, look to common law or 607 (attack on credibility of witness) or 611(b) which allows cross on matters affecting the credibility of a witness. 2. Religious BeliefsFRE 610. Religious BeliefsEvidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility Advisory Committee Notes: If the church or someone involved in the case as a party then it may be admissible to prove interest or bias.3. Prior Inconsistent Statements (FRE 613)This is the only time we always have to think about collateral/non-collateral.

Only has hearsay issues if being offered for truth of the matter. We dont care about truth, were just trying to show hes lying.

Inconsistent statements (other than obvious) A witnesss inability to recall info then later having a clear recollection of it Impeachment by omission: When a witness makes a statement about an event and later testifies but adds important facts that they didnt include before. Silence when you would expect them to talk about it.

Can be used in two different ways:1. For Impeachment/witness credibility Relevant because it is different from what they said before. Does the prior statement/omission have a reasonable tendency to discredit the testimony of the witness? Note- not all judges go by a collateral vs. non-collateral rule- many simply use rule 403 balancing.

FRE 613. Witnesss Prior Statement.(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witnesss prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse partys attorney. The witness is given an opportunity to explain or deny the statement and We do not have to directly give them the opportunity. As long as the other side has a chance, it is fine. They might not choose to pursue it. An adverse party is given an opportunity to examine the witness about it, or if justice so requires. Some courts require the witnesses be asked about the statement first, before extrinsic evidence is brought. Rule doesnt directly say this though. How is this done? Extrinsic Evidence (prior testimony, prior written statement, prior oral statement, statements in pleadings or discovery requests, omissions) or Cross (Use the 4 Cs) Commit- You heard witness on direct say something inconsistent than what you know. Commit them to the testimony they claimed on direct. Date, time and place should be established. Credit- You want to credit your prior testimony- make it sound really strong. It was given closer to the incident...the witness was sworn to tell the truth at that time, etc. Confront- clearly; concisely. You read the inconsistent statement. Complete- if necessary. If they deny and evidence is non-collateral, then bring in extrinsic evidence. Remember- if evidence is solely collateral, then you are done and have to let it go. Rule 613(b) must be followed. Evidence must be dually relevant or indicate bias, motive, capacity, or untruthful disposition. Criminal s may be crossed on matters obtained in violation of their constitutional rights (eg: statements made in violation of Miranda) There is no requirement that documents used to impeach even be admissible.

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witnesss prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.[does not apply to 801d2] If a witness denies making the statement or equivocates about making it with responses such as I might have or I don't remember, the cross examiner is obligated to offer extrinsic evidence that the statement was in fact made. However, the witness can only do this if the evidence is non-collateral. Extrinsic evidence is not admissible for collateral evidence. There is no requirement that documents used to impeach be in evidence or even admissible.

Collateral vs. Non-collateral:Prior inconsistent statements and contradiction are the only two categories where you have to decide whether the topic is collateral.

The General Rule: Extrinsic evidence cannot be used for impeachment by prior inconsistent statement or by contradiction on a collateral matter.

The Traditional Definition of Collateral: A matter is collateral if the only purpose for proving the fact in question is for contradicting the witness. In other words: If the fact doesnt matter to the case, but is only used for impeachment, then it is collateral and no extrinsic evidence is allowed.

Judge will let us prove something up if it is for anything other than simply contradicting the witness. Therefore, for extrinsic evidence to be admissible, it must be dually relevant. 1. Always conflicts with original testimony, which undermines credibility of witness 2. May establish or refute a point with substantive importance 3. May indicate bias or motive, defect in capacity, or untruthful disposition 4. May reveal a telltale deception COLLATERAL = relates to case only for 1st reason ADMISSIBLE = relates to case for 2nd, 3rd, or 4th reason also

The collateral evidence rule applies to all types of impeachment, but some other categories are ALWAYS non-collateral (e.g. bias) and some are ALWAYS collateral (608(b)).

2. For Substantive Evidence (for truth of the inconsistent statement) Relevant because you want to offer it for the truth of the prior inconsistent statement. This obviously brings up a hearsay argument- hearsay is not admitted for the truth of the statement itself. BUT we have an exception in the rules!To get around the hearsay rule in cases where the prior inconsistent statement is being used for substantive purposesfor the truth of what it asserts, the evidence must use FRE 801(d)(1)(A). It must fit the requirements in FRE 801(d)(1)(A):Rule 801(d) Statements That are Not Hearsay(1) A Declarant-Witnesss Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:(A) is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

*If the evidence/statement does not fit these requirements of 801(d)(1)(A); then it must be being offered for a purpose OTHER THAN the truth of what it asserts. It must be being offered for pure impeachment purposes- bias, credibility, etc.

Email from Moberly: 613 applies to all prior inconsistent statements, while 801(d)(1)(A) only applies to prior inconsistent statements that fit its requirements (under oath in a prior proceeding, etc.). Also, the requirements of 801(d)(1)(A) take care of the concern addressed by 613 because 801(d)(1)(A) requires that the declarant be available for cross-examination. Remember, 801(d)(1)(A) only applies to limited inconsistent statements, but when it applies you can use the statement for its truth. Other, non-801(d)(1)(A) statements can still be used, but only for impeachment, not for substantive use.

4. Contradictory Facts Same rules under contradiction as prior inconsistent statement, except it isnt just a prior inconsistent statement, but instead it is something directly contradictory. Extrinsic evidence can be brought in, but again- only for non-collateral issues. Lawyer can only subject a witness to a contradictory fact if he has a good faith basis for doing so and can prove that fact when required Party witnesses need to be careful not to open the door to evidence that would otherwise be inadmissible as character evidence under contradiction/impeachment. Hypo: D is charged with selling narcotics. Testifies hes never even seen meth. Could bring in a prior arrest for meth. Must either: 1-Be conflicting and somehow relevant to the case OR 2-Present a telltale fact (a lie so important that it is improbable the witness would just be mistaken and must be lying). Example: Witness claims he was coming from an ice cream store when he witnessed the accident on trial but evidence shows he was at his wifes funeral. This has nothing to do with the case, but its such a crazy lie that it goes to show he should not be trusted at all.

5. Character for UntruthfulnessFRE 608. A Witnesss character for truthfulness or untruthfulness(a) Reputation or Opinion EvidenceA witnesss credibility may be attacked or supported by testimony about the witnesss reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witnesss character for truthfulness has been attacked. Different from 405. Here, we can put the truthfulness of a character at issue even though they didnt put it in question. By taking the stand, you automatically give the other side a chance to attack your credibility. Were tying to say You dont tell the truth generally, so the jury shouldnt believe you now. FRE 608(a) makes character of witness for truthfulness or untruthfulness admissible. But evidence of truthful character is admissible only after the witnesss character for truthfulness has been attacked. This is an express exception to 404(a)(1) which states that you cannot use character evidence for the propensity argument- you can against witnesses to prove untruthful or truthful character. Only applies to witnesses; but remember- someone can be both a party and a witness. Witness can be asked the names of the people who spoke about the reputation to test for foundation. Have you heard? (reputation). Do you know? (opinion). No time limit on this evidence, but it could lose its probative value under 403.

6. Conduct Probative of UntruthfulnessFRE 608. A Witnesss character for truthfulness or untruthfulness(b) Specific Instances of ConductExcept for criminal conviction, extrinsic evidence is not admissible to prove specific instances of a witnesss conduct in order to attack or support the witnesss character for truthfulness. But the court may, on cross examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:1) the witness; or, 2) another witness whose character the witness being cross-examined has testified about. Only on cross-examination, evidence is not admissible on direct. Drug use isnt a character for untruthfulness, lying is though. Spectrum. Typically when issues arise about this rule it is whether or not the character or conduct is probative of truthfulness (particularly in (b) cases but also in (a) cases). No extrinsic evidence is allowed to prove that these specific instances happened in the case that the Witness denies the instances occurrence. Can use to impeach the facts a witness is testifying to or to impeach the character of a witness! Example: Can be crossed on the fact that they submitted a false loan application to a bank last year. Typically This overlaps with prior inconsistent statement. 7. Prior Convictions**Remember always to distinguish between FRE 404 dealing with Defendants testifying as Defendants, and FRE 608/609- Defendants testifying as witnesses.a. 608/609 only applies to witnesses (includes criminal if he testifes)!!Rule 609. Impeachment by Evidence of a Criminal Conviction(a) In General. Witnesss character for truthfulness--1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:A) must be admitted, subject to Rule 403 in a civil/criminal case in which the witness is not a defendant andB) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant and 2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving a dishonest act or false statement.(b) Limit on using evidence after 10 years. Evidence of the conviction is only admissible if:1) its probative value substantially outweighs its prejudicial effect and2) the proponent gives an adverse party reasonable notice (c) Effect of a pardon, annulment, or certificate of rehabilitation is not admissible if:1) Conviction has been subject to one of these or other equivalent procedure and the person has not been convicted of a later crime punishable by death or imprisonment for more than one year or2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile Adjudications are admissible only if1) it is offered in a criminal case,2) The adjudication was of a witness other than the defendant3) an adults conviction for that offense would be admissible to attack the credibility and4) admitting the evidence is necessary to fairly determine guilt or innocence. FRE 609(a)(1): Certain crimes may be admissible to impeach a witness (to show character for untruthfulness), but only if convictions satisfy appropriate balancing test: Two different balancing tests under this rule: 1) Criminal Defendants: Probative value must outweigh prejudicial effect. (reverse 403 balancing test) 2) Everyone Else: 403 balancing test. Factors for 609 Balancing Test: Nature of the Conviction Recency or Remoteness of Conviction Whether it is similar to the charged offense Whether Ds record is otherwise clean Importance of credibility issues Importance of getting the Ds own testimony Whether conviction followed a plea of innocence in a trial in which the alleged offender testifies and is convicted anyways. FRE 609(a)(2): Automatic Admissibility for a prior conviction for a crime involving dishonesty or false statement. Not necessarily a felony like in 609(a)(1)- but any crime at all that is directly probative of untruthfulness. Perjury, false statement, criminal fraud, embezzlement (not theft or drug dealing) When crimes of dishonesty or false statement are involved, Rule 403 does not apply and the trial judge has no discretion to weigh prejudicial effect against probative value. What is the effect of Rules 608/609 on Criminal Defendants? 1) Significant deterrent for Defendant to testify. 2) Difficult decision to make as an attorney- whether or not to let your criminal D testify as a witness. Cant appeal a motion in limine that is going to allow in the criminal Ds evidence UNLESS the criminal D actually testifiesfrom Luce case. 3) Attorney wants to pad past conviction, so Ds counsel brings it up on direct. However, then, cant appeal the convictions admissibility at court. Because the P didnt bring it up. Crimes are non-collateral.

608 & 609 OVERVIEW: These rules only apply for truthfulness/untruthfulness (everything else will fall under 404 or 405) Apply to all witnesses. Only extrinsic evidence allowed: reputation, opinion, proof of convictions These rules are a huge deterrent for defendants to take the stand. If they have a criminal history at all, it will likely come out under Rule 609. Would likely come out in a motion in limine prior to hearing. Defendant can take the stand and not put any of his normal character at issue, but he still cant protect it from coming in. 608 & 609 say character for truthfulness of defendant can be attacked. There is no 403 backstop for 609(a)(2)! 609(a)(1)(A) is subject to 403, but 403 is geared toward admissibility.

8. Treatises (FRE 803(18))RULE 803(18): Statement in learned treatises, periodicals, or pamphlets if:(A) The statement is called to the attention of an expert witness on cross or relied on by the expert on direct and(B) the publication is established as a reliable authority by the experts admission or testimony by another expert testimony or by judicial notice. The most common use of treaties is on cross, where the examiner usually attempts to show the witnesss testimony is not consistent with something in the literature. Rule does not require that the treatise contradict the testimony, simply that it be called to the attention. No requirement that the witness rely on or even knows the existence of the treatise. Using it on direct acts to establish the testimony. Have to use it on direct and establish the authoritative nature of the treatise, its relevance of fact in this case, and the witnesss reliance on it when reaching its opinions, then it may be offered and read to the jury. Three ways to establish reliability: Witness on stand recognizes it as authoritative or reliable whether or not he agrees with it. The judge takes judicial notice of the authoritative or reliable nature of the treatise under 201. A witness already called, or to be called later, by the proponent of the evidence testifies that it is a reliable authority. If it is permitted, statements from the treatise may be read into evidence but may not be received as exhibits. Requires good faith.

9. RehabilitationsTiming Issue for Test!! --**Cannot make someone out to be truthful unless their credibility has already been attacked on cross examination.FRE 801(d)(1)(B): Exclusions from Hearsay(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:(B) Is consistent with the declarants testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.*This is the idea that consistent statements (vs. inconsistent statements) have the same value towards the credibility of the witness, and out of fairness, are admissible to rehabilitate the witness after cross examination.

The Last Three Boxes: Interaction of 608(b), Prior Inconsistent Statement, Specific Contradiction Normally, these overlap: if extrinsic evidence is not permitted by 608(b), it would also not be permitted by the other two impeachment mechanisms because it would be collateral Unless you can argue that the information is not collateral for some reason, such as fairness when a party makes an overly broad claim on direct that can be contradicted.

Note: There are 3 ways to impeach witnesses for untruthful character: 1) Reputation and Opinion Evidence (608a); 2) Evidence of non-conviction dishonest acts (608b); 3) Evidence of Convictions (609).

Real EvidenceExhibits Real EvidenceHurdles to Admissibility1. Relevance2. Personal Knowledge (of witness)3. Non-prejudiciala. 403 argument. It will of course be somewhat prejudicial. 4. Authenticationa. Is it what it purports to be? How do you prove this is what you say it is?5. Non-Hearsaya. All documents, by definition are statements made outside of court, so we need an exception6. Original Documents (Best Evidence) Rulea. Is it the original or an authorized copy? Do contents of the document matter?7. Is it right?a. Blood stained clothes would be too prejudicial, even though they might be relevant and reliable.

Real v. Demonstrative Evidence Real evidence is the actual object (gun) and you have to show it was in the same condition as itw as on the relevant date and it hasnt been tampered with. Think about the chain of custody. Demonstrative evidence is whether there is a fair and accurate representation of the item (picture)Civil v. Criminal Cases Civil: Parties have a right to extensive pretrial discovery and resolve most admissibility issues before trial Criminal: Discovery is limited and admissibility issues are common in trials. Judges treat authentication issues in criminal cases more seriously.

You cannot read from, argue, or talk about a document if it is not admitted into evidence.

Laying the Foundation: Asking questions that make the evidence sufficient to support a finding that the item is what the proponent claims Cant ask of details before it is received into evidence. Showing that the witness has personal knowledge, authenticating.Most Courtrooms have developed procedures to lay foundation for an exhibit:1) Have the exhibit marked2) Show the exhibit to opposing counsel3) Ask the courts permission to approach the witness4) Show the exhibit to the witness5) Lay the foundation for the exhibit6) Offer the exhibit in evidence7) Have the exhibit marked in evidence (if required).

FRE 901. Authenticating or Identifying Evidence(a) In GeneralTo satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.(b) ExamplesList of evidence that satisfies the requirement:1) Testimony of a witness with knowledge; 2) Non-expert opinion about handwriting; 3) Comparison by an Expert Witness or the Trier of Fact; 4) Distinctive Characteristics and the Like; 5) Opinion about a voice; 6) Evidence About a Telephone Conversation; 7) Evidence About Public Records; 8) Evidence about ancient documents or data compilations; 9) Evidence about a process or system; 10) Methods provided by a statute or rule.

Notes: Authentication: Must be able to prove that the document is what it purports to be. Authentication is something you need to satisfy with real evidence. Like how you need to satisfy non-hearsay for all kinds of evidence. Standard under 901: Sufficient to support a finding that the item is what the proponent claims that it is. ***This is a Rule 104(b) decision- made by the jury, not 104(a) Since it is Rule 104(b) factual decision, you must first provide sufficient admissible evidence to prove that the document is what it purports to be. Judge will decide whether a reasonable jury could conclude that is what it is purported to be. When you are talking about authenticity, you are talking about reliability. The fact that the opposing side may present contradicting testimony about the evidence does not preclude it from being admitted into evidence. Two different ways that real evidence can be identified: 1) Sensory Identification; 2) Chain of Custody. Often, what you are offering the evidence to prove makes a difference with how you need to authenticate.

FRE 902. Evidence That is Self-AuthenticatingThe following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:(1) Domestic Public Documents That Are Sealed and Signed-(2) Domestic Public Documents that are not sealed but are signed and certified-(3) Foreign Public Documents-(4) Certified Copies of Public RecordsMust be certified as correct by the custodian or another person authorized to make the certification or a certificate (5) Official Publications A book, pamphlet, or other publication purporting to be issued by a public authority. (6) Newspapers and Periodicals(7) Trade Inscriptions and the Like(8) Acknowledged Documents- by notary public(9) Commercial Paper and Related Documents(10) Presumptions Under a Federal Statute(11) Certified Domestic Records of a Regularly Conducted Activity Think about hearsay here. Might still need a custodian to come testify(12) Certified Foreign Records of a Regularly Conducted Activity

Presumption for these docs is that the exhibit is authentic. Dont need to lay foundation for them since they are self authenticating. Judge determines whether it is self-authenticated under 104(a). Usually done before trial.

Notes: 902 is another way to authenticate. However, all of these things are simply self-authenticatingdon't need to lay foundation for them. Rationale: These documents under 902 are thought to be more reliable than other documents- satisfy the reliability function.

Other Types of EvidenceDemonstrative Evidence: Not the actual thing, but represents the actual thingPhotos, diagrams, models, etc. To authenticate, must call someone with personal knowledge. Must make sure photos and models arent distorted. Magic words: Fairly and Accurately RepresentDocuments/Instruments: Admitted for non-hearsay reasons. Ex. contracts have independent legal significance- not admitted for the truth of what is said in the contract, but for the fact that the contract was made and existed. To authenticate- introduce the signature verified by handwriting witnesses.

Electronic Evidence: Lorraine v. Markel American Insurance Co. Moberly really likes the analysis heregood review of reasoning and rules for admitting exhibits. Suit between insurance claimant and insurance company. Both parties moved for summary judgment and neither party produced admissible evidence to support facts set forth in their motions. First, relevance- under FRE 401, 402, 105. Next, authentication under FRE 901. Next, hearsay requirements under FRE 801. Next, FRE 1001-1001- original documents rule. Lastly, FRE 403 balancing test. Motions dismissed w/out prejudice. Raised issue of Electronically stored information In short, there is a significant difference between the way that Rule 104(a) and 104(b) operate. Because, under Rule 104(b), the jury, not the court, makes the factual findings that determine admissibility, the facts introduced must be admissible under the rules of evidence. It is important to understand this relationship when seeking to admit ESI. For example, if an e-mail is offered into evidence, the determination of whether it is authentic would be for the jury to decide under Rule 104(b), and the facts that they consider in making this determination must be admissible into evidence. In contrast, if the ruling on whether the e-mail is an admission by a party opponent or a business record turns on contested facts, the admissibility of those facts will be determined by the judge under 104(a), and the Federal Rules of Evidence, except for privilege, are inapplicable. When thinking about emails and cell phones, we have to think about who had access to the computer/cell phone and when. It becomes vastly more difficult when we think about the electronic format because there are so many more ways to fake it. HOWEVER, it is the same because you are trying to get enough evidence for a reasonable jury to think it could have been from him. We dont need special rules, but we have to think about how it is being offered, what it is being offered for, and how we can get it in.

Major Documentary Hearsay ExceptionsDocuments will always create a hearsay problem when you are trying to use them for the truth of what the documents say.

Three Questions you always must ask about documents:1. Relevance2. Authenticity3. Hearsay?

Refreshing Recollection (FRE 612) vs. Past Recorded Recollection (FRE 803(5))Both deal with forgetful witnesses and trials that happen a long time after the fact.

FRE 612. Writing Used to Refresh a Witnesss Memory(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory1. While testifying; or2. Before testifying, if the court decides that justice requires the party to have those options. FRE 612 permits a witness to use a writing to refresh memory while testifying. Adverse party is permitted to inspect writing and cross-exam about it [(b)]. Ex: Which car failed to stop at the stop sign officer? I dont recall. Would anything help refresh your recollection? Yes, my report. Court can excise parts that are not related to the testimony before it is produced to the opposing party. Adverse side could also bring this up. [(c)]. Idea: Individual ends up testifying from present memory. Testifying from personal knowledge that needed to be refreshed. Judge uses discretion to weigh whether it should be brought in or not because it could break attorney/client privilege or work product doctrine. Judge will weigh the necessity for disclosure against the need to protect the writing. Doesnt have to be writing. Can be a leading question. Cant just read from the document. Memory has to be truly refreshed. Trial judge has discretion. If it is a nurses records or something hard to remember specifics, they could allow her to read from the document.

FRE 803. Exceptions to the Rule Against Hearsay(5) Recorded Recolleciton. A record that:(A) Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;(B) Was made or adopted by the witness when the matter was fresh in the witnesss memory; and(C) Accurately reflects the witnesss knowledge

If, even having ones memory refreshed does not help the witness remember what happened, then it becomes necessary to get the recorded recollection admitted into evidence. Obviously this presents a hearsay problem. FRE 803(5) is the exception to use to admit the recorded recollection. **If admitted, the record is read into evidence as if it were testimony; however it may not be received as an exhibitunless offered by an adverse party. Otherwise: It will be read as if it were testimony. Can be in whole or in part. Offered for its truth. Lay foundation, they say I offer this as a recorded recollection, may I read it to the jury?

Business Records803(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) The record was made at or near the time by or from information transmitted by someone with knowledge.(B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;Record has a broad recognition, when it was created. Use 406 if we dont know(C) Making the record was a regular practice of that activity and;(D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) Neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.Generally, documents prepared for litigation are not trustworthy.

Elements: Record of an act, event, condition, opinion, or diagnosis. Record made at or near the time of the transaction. Someone with knowledge can certify the recordcustodian. Source of info must come from personal knowledge. Often the record maker wont have personal knowledge and only relies on other sources of info. If the info is offered for its truth, it must come from the source?? Person testifying to foundation for business record must be its custodian or other witness Witness doesnt have to have personal knowledge of the contents of the record or how it was made. They can be anyone who can explain the way the records like the one in question are made and kept. No requirement that they actually know who the person was who made the record or supplied the info. Record was kept in the course of a regularly conducted activity and making the record was a regular practice of that activity. Not enough that it was written down. Has to be something that is typically recorded. Routine recording assures accuracy. Doesnt have to happen every day though. If a business is burglarized, a report will suffice. Opinions or diagnoses must be made at or near the time of events about which it was made. A record created merely to support an experts opinion will not qualify. Includes illegal business. Exception to duty to report: The person making the record doesnt have a duty to report so long as someone has a duty to verify the reported info (prison record book) If the record fits under Rule 902(11) or 902(12), then don't need to have a custodian come testify- it becomes self-authenticating. Trustworthiness- most common example of non-trustworthiness- documents made in preparation for litigation. Often involves layers of hearsay. Employees add to each others recorded work. Each recording fits this exception. Requires each person in the chain act in the course of their duties with reasonable speed and the source of the info be a person with knowledge. Outsider statements incorporated in a business document need their own hearsay exception. Lay the foundation thoroughly. Hearsay within Hearsay!!! WATCH FOR THIS! Statements from sources not having a business duty to report and record accurately are usually hearsay. Governed by rule 805. Ex: A bystander tells an officer it was the blue car who ran the light the police report with the statement is not admissible for the truth of the matter. Bystander is not under a duty to report accurately. Itd be the same as a cop on the stand testifying to the bystanders statement. If it was an excited utterance, it would have its own hearsay exception and be okay.

Rationale: If a business depends on having accurate and complete records to run the business competently, such records are reliable enough to qualify as a hearsay exception.

Public Records(8) Public Records. A record or statement of a public office if (A) It sets out:(i) the offices activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and(i) Must be reasonably necessary for the performance of the agencys duties and the record must not be prepared for specific litigation. (Hunting licenses issued)(ii) Exception: allows routine reports that are prepared in a non-adversarial setting (calibration on breathalyzer). Defendants cannot offer police reports even if they are helpful. (But they can try to get it in saying the rule was meant to protect defendant) (B) Neither the source of information nor other circumstances indicate a lack of trustworthiness

Notes:Rationale- Reliability. Public employees, just like private employees, have a business duty to report and record accurately. There are three types of public records: 1) Those setting forth the activities of the office or agency. 2) Those recording matters observed pursuant to a legal duty. 3) Investigative reports. Two Limitations: 1) May be excluded if sources of information or other circumstances indicate lack of trustworthiness. 2) Certain types of public records are inadmissible in criminal cases. No reports of matters observed by police officers and other law enforcement personnel. No investigative reports against criminal defendants. No requirement that the document be made and kept in the course of a regularly conducted activity nor does it require that a report be made at or near the time the event it records. Also does not require either the maker of the record or the source of the info speak from personal knowledge of the matter. Records don't need to be open to the public, just means any government document, but any public record will be government. Instead of offering a witness, the foundation can be satisfied by a declaration that qualifies as self-authenticating under 902(11)&(12).

Learned Treaties803(18): A statement is called to the attention of an expert on cross or relied on by the expert on direct and the publication is established as a reliable authority by the expert or by another expert or by judicial notice. Statement may be read into evidence but not received as an exhibit. We might have to call our own witness to testify that it is reliable.

The Original Documents RuleRule 1001: DEFINITIONS THAT APPLY TO THIS ARTICLE(a) A writing consists of letters, words, numbers, or their equivalent set down in any form.(b) A recording consists of letters, words, numbers, or their equivalent recorded in any manner.(c) A photograph means a photographic image or its equivalent stored in any form.(d) An original of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, original means any printout or other output readable by sight if it accurately reflects the information. An original of a photograph includes the negative or a print from it.(e) A duplicate means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

FRE 1002. Requirement of an OriginalAn original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

FRE 1003. Admissibility of DuplicatesA duplicate is admissible to the same extent as the original unless a genuine question is raised about the originals authenticity or the circumstances make it unfair to admit the duplicate.

FRE 1004. Admissibility of Other Evidence of ContentAn original is not required and other evidence of the content of a writing, recording, or photograph is admissible if(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith; If it is not the proponents fault that the evidence is destroyed- then other evidence of the content may be admissible.(b) an original cannot be obtained by any available judicial process;(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or(d) the writing, recording, or photograph is not closely related to a controlling issue.

Rule 1005: COPIES OF PUBLIC RECORDS TO PROVE CONTENT The proponent may use a copy to prove the content of an official record or of a document that was recorded or filed in a public office as authorized by law if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

Rule 1006: SUMMARIES TO PROVE CONTENTThe proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court. Proponent of the summary has to be able to produce originals or duplicates so that the other side can check accuracy. Assumes all the evidence would be properly presentable in court. If the opponent can show that a summary reflects or incorporates inadmissible evidence, the summary should not be admitted. A summary should always be disclosed before trial so that the other party is not unfairly disadvantaged at trial and the judge can resolve any disputes. Rule 1007: TESTIMONY OR STATEMENT OF A PARTY TO PROVE CONTENTThe proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.Rule 1008: FUNCTIONS OF THE COURT AND JURYOrdinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines in accordance with Rule 104(b) any issue about whether:(a) an asserted writing, recording, or photograph ever existed;(b) another one produced at the trial or hearing is the original; orother evidence of content accurately reflects the content

Notes:1. When Does the Best Evidence Rule/Original Docs Rule Apply?a. When testimony is being used to prove the contents of a writing.i. If this testimony is being offered, the rule requires that the original document instead be present and used as evidence.b. FRE 1003- Duplicates will suffice. However, when you use a duplicate you subject yourself to two possible defensesi. Questions about authenticity.ii. Questions about fairness of substituting the original for the duplicate.c. The rule does not apply to collateral matters.2. Original writings rule does not apply to every item of proof that there is a writing, recording, or photo that might constitute more persuasive proof. a. Ex: If a doctor testifies, we do not need to see her license b/c it is not the main issue in the case. 3. Boiled down: Prevents talking about an exhibit before it is admitted unless you satisfy 1004. If you want to talk about it, you have to submit it first.

HearsayHearsay is about reliability- because hearsay is generally thought to be unreliable, it is not allowed in evidence. Sometimes we want it in because it is necessary for fair results to be achieved. Other policy considerations: opportunity to cross-examine to determine reliability, perception, memory, sincerity, and ambiguity.

801(a)-(c)Definitions for Hearsay

801(d)Exclusions from Hearsay definition

802Hearsay inadmissible unless it falls within exception

803Unrestricted exceptions Availability of declarant immaterial

804Declarant Unavailable

805Permits the admission of hearsay within hearsay

806Allows hearsay to be used to attack/support credibility of out-of-court declarant

807Residual Exception

Questions to ask for Hearsay:4. Is it hearsay fitting the definition of hearsay? 801(c)a. Out of court assertion offered for its truthi. When it is not an assertion (more of a natural reflux, we trust it)5. Does it fit within a hearsay exception?6. Confrontation clause issue?

Silence is a non-assertion and is often tested over. Silence can only be used as an assertion hen there is a duty to respond or a typical person would respond.

FRE 801. Definitions that Apply to this Article; Exclusions from Hearsay(c) Hearsay. Hearsay means a statement that:1) The declarant does not make while testifying at the current trial or hearing; and2) A party offers in evidence to prove the truth of the matter asserted in the statement.Definition:1. Statement: Can be oral, written, or non-verbal conduct but it must be intended as an assertion2. Declarant: Person who made the assertion3. Hearsay: Statement that the declarant does not make while testifying at the current hearing and the party offers to prove truth4. Truth: Ask what is this statement being offered to prove? a. Hearsay statements can be admissible for other purposes. Assertive vs. Non-assertive Definition: Always look at the intent- was the person intending the statement to be asserted? Verbal conduct is almost always asserted. Ex: A ship has sunk at sea. Families of the survivors bring a lawsuit claiming that the ship was not sea-worthy. The insurance company wants to present testimony from a witness who saw the ships captain inspect the boat before it sailed and then sail with his family on board. This is NOT an assertion by the captain. He is just doing his job. However, if we change the facts to say that the crew had felt nervous about whether or not the ship was safe, and the captain called them out to show them his i