Evidence Attack Outline
LAY WITNESSES
I.
II.
FRE 602 – Personal Knowledge Required
FRE 701 – Opinion Testimony by Lay Witness
A. Three Requirements
i. (1) firsthand knowledge
ii. (2) helpful
iii. (3) not based on specialized knowledge
RELEVANCE
I.
II.
III.
FRE 401 – Test for Relevance
A. Evidence must be (1) material and (2) probative
i. Any tendency = bar is lower than the Marianas Trench
FRE 402 – Irrelevant Evidence Inadmissible
FRE 403 – Excluding Relevant Evidence
A. Six Dangers
i. (1) Unfair Prejudice
ii. (2) Confusing the Issues
iii. (3) Misleading the Jury
iv. (4) Undue Delay
v. (5) Wasting Time
vi. (6) Needlessly Presenting Cumulative Evidence
B. Unfair Prejudice
i. “An undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.”
1. “Unfair” = normative word. Has to be “unfairly” prejudicial. Not just any
“prejudicial” evidence.
a. All relevant evidence will be prejudicial.
2. FRE 403 applies only if the evidence is prejudicial in the sense that the jury may
not rationally evaluate it.
C. Confusion of the Issues
i. A trial within a trial
CONDITIONAL RELEVANCE
I.
FRE 104 – Preliminary Questions
A. 104(a) – In General
i. Judge/Court determines admissibility of evidence and whether a person is qualified to
be a witness.
1. Generally requires a preponderance of the evidence standard (more likely to be
admissible than inadmissible, >51%).
B. 104(b) – Relevance That Depends on a Fact
i. Prima facie standard (“sufficient to support a finding”)
1. Court only needs to find that sufficient evidence has been introduced to support
a finding that the fact exists.
a. Differs from 104(a) (POTE standard)
CHARACTER EVIDENCE
I.
FRE 404 – Character Evidence; Other Crimes, Wrongs, or Acts
A. 404(a)(2) – Exceptions for Pertinent Trait of D or V
i. Pertinent = relevant to the crimes charged
1. E.g., peaceful character in crimes of violence; honest character for theft; and
truthful character for perjury.
a. The federal cases also permit “law-abiding” character.
i. The introduction of “law-abiding” character, however, is a
two-edged sword.
1. The prosecution rebuttal evidence for the character
trait of honesty should be limited to dishonesty; the
accused’s character for violence is not relevant as
rebuttal evidence.
2. Yet, the accused introduces evidence of law-abiding
character, the prosecution may rebut with any
evidence of unlawful conduct – e.g., convictions for
assault or possession of drugs.
ii. 404(a)(2)(A) – The prosecution/government is prohibited from introducing evidence
of the victim’s character until the defense “opens the door.”
B. 404(b) – Other Crimes, Wrongs, Acts (“Prior Bad Acts”)
i. 404(b)(2) – Evidence of any other crime, wrong, or act may be admissible for other,
non-propensity (“MIMIC”) purposes, including:
a. Motive
b. Opportunity (Capacity)
c. Intent
i. Evidence of prior, similar wrongful acts is admissible to establish
guilty knowledge and to negate good faith.
ii. E.g., crimes where intent is the gravamen of the crime, such as
forgery, larceny by trick, and receiving stolen property.
d. Preparation (Common Plan or Scheme)
i. E.g., evidence that D recently stole some burglar tools is probative
of the fact that she committed the burglary for which she is
accused.
e. Plan
f. Knowledge
g. Identity
i. Evidence, including misconduct, that connects this defendant to the
crime (e.g., theft of gun used in later crime) is admissible.
h. Modus Operandi (MO)
i. Evidence that the accused committed prior criminal acts that are so
distinctive as to operate as a “signature” may be introduced to
prove that the accused committed the act in question.
1. Goes to identity
i. Absence of Mistake
i. Evidence of similar misconduct is admissible to negate the
possibility of mistake (or accident).
II.
III.
IV.
ii. E.g., evidence that H tried to stab W in the past may be admissible
to show lack of mistake at trial where H is accused of shooting and
killing W.
j. Lack of Accident
2. Four-Prong 404(b)(2) Analysis
a. (1) 404(b)(3) – notice in a criminal case (recent addition to FRE)
b. (2) 404(b)(2) – non-character relevance (motive, knowledge, etc.)
c. (3) 403 analysis – probative value << the risk of improper use?
d. (4) 104(b) – conditional relevance (prima facie standard)
FRE 405 – Methods of Proving Character
A. 405(a) – Opinion or Reputation (inquiry of specifics on cross-examination)
i. On cross-examination, the court may allow an inquiry into whether the opinion or
reputation witness has heard of or knows of particular instances of the D’s misconduct
pertinent to the trait in question.
1. Note: if the witness denies knowledge of these specific instances of conduct, the
prosecutor may not prove them by extrinsic evidence; he is limited to inquiry on
cross-examination.
B. 405(b) – Specific Instances of Conduct (only when an essential element)
i. When a person’s character or character trait is an essential element of a charge, claim,
or defense, the character/trait can be proved by relevant specific instances of the
person’s conduct.
1. E.g., in a negligent entrustment, hiring, or supervision case; in a defamation suit;
and in a libel action when a party seeks compensation for a damaged reputation.
FRE 406 – Habit Evidence
A. Key Elements of Habit Evidence
i. (1) Semi-automatic nature
ii. (2) Specificity
iii. (3) Repetition
iv. (4) Duration
B. Habit is determined by judge/court under FRE 104(a)
i. Subject to FRE 403 analysis
C. Exam Note: Habit is more specific than character evidence. In exam questions, words like
“always” or “every time” generally refer to habit, whereas “often” or “frequently” are more
likely to imply character evidence
Character Evidence vs Habit Evidence
A. Character: “I am” “he/she is” “they are”
B. Habit: “I do” “he/she does” “they do”
HEARSAY
I.
Hearsay Definitions
A. Hearsay
i. (1) an out-of-court statement
ii. (2) offered for the truth of the matter asserted
B. Statement
i. (1) an oral or written assertion, or
ii. (2) nonverbal conduct (if intended as an assertion)
1. E.g., nodding head “yes” in response to a question
II.
III.
IV.
C. Declarant
i. Person who made the statement
1. Must be a human person. Nonhuman declarations are not hearsay.
2. Nonhuman declarations:
a. Behavior of a drug-sniffing dog
b. Data that is generated completely electronically
i. Must be “the result of an automated process free from human input
or intervention.”
ii. E.g., automated telephone logs, traffic speed recording devices,
etc.
Carp Hearsay Notes
A. For our class, questions (“?”) are not assertions
B. Silence is not an assertion
i. But silence can be an adoption
C. Signs can be offered to show that someone was put on notice, but not to show that the sign
was true (cannot be offered for the truth of the matter asserted)
Four Hearsay Dangers
A. (1) Perception
B. (2) Memory
C. (3) Narration
D. (4) Sincerity
Non-Hearsay Purposes for which Evidence is Admissible
A. (1) Effect on the Listener
i. E.g., Carp’s “Free Panda Express” stampede example
ii. E.g., instances where a D thought that a V or P (for murder/battery) was a threat.
1. E.g., Someone telling D “V said he is going to kill you” and D kills V. The
statement can be introduced to show its effect on D, but not that V was actually
going to kill D.
B. (2) Impeachment
i. Prior inconsistent statement
C. (3) Circumstantial Evidence of the Declarant’s State of Mind
i. A testator’s statement, “I am the queen of England,” is not admissible to show its
truth, but it is admissible to prove that the testator is not of sound mind.
D. (4) Legally Operative Words
i. Statements that constitute verbal acts or legally operative words are not hearsay
because they are not offered for the truth.
1. E.g., words forming a contract, slander, threats, etc.
ii. Thus, we only care that these words were said, not that they are true.
1. E.g., In a slander action, D’s statement that the P is a murderer may be
admissible to prove that D made the statement but not to prove that P is a
murderer.
E. (5) Notice
i. Statements offered to show that a person received notice of a fact, condition, or event
are not offered for their truth.
1. E.g., “warning” signs
V.
2. E.g., A mechanic tells a driver that her tires are worn; if the statement is offered
to show only that the driver had notice of this condition (not that the tires were
worn), it is not hearsay.
3. E.g., In a negligence action, the D’s statement to P that the sidewalk in front of
D’s house was icy may be admissible to show that the P had notice of the
danger but not to show that the sidewalk was actually icy.
F. (6) Knowledge
If statement NOT offered for the truth of the matter asserted:
A. FRE 403 analysis required to determine if the probative value of the statement is
substantially outweighed by the danger that the jury may interpret the statement as proof of
the matter asserted.
HEARSAY EXCEPTIONS
I.
FRE 801 – Defined as Not Hearsay
A. 801(d)(1) – Declarant-Witness’s Prior Statement
i. Declarant must (1) testify and (2) be subject to cross-examination about the prior
statement
ii. 801(d)(1)(A) – Prior Inconsistent Statement
1. Given under penalty of perjury at a trial, hearing, other proceeding, or
deposition
a. Admissible:
i. Statements made at a prior trial, suppression hearing, preliminary
hearing, deposition, or any other proceeding at which testimony is
taken subject to penalty of perjury.
ii. Testimony before a grand jury or at plea hearings also qualify.
b. Inadmissible:
i. Stationhouse statements to the police or affidavits to government
officials.
c. In short, formalized proceedings with transcripts are typically required.
2. Admissible for both impeachment and substantive evidence.
a. FRE 613: admissible for impeachment only.
iii. 801(d)(1)(B) – Prior Consistent Statement
1. (i) offered to rebut a charge of fabrication, improper influence or motive/bias; or
2. (ii) offered to rehabilitate D-W’s credibility
3. Note: both (i) and (ii) are admissible for substance! Not just rehabilitation.
iv. 801(d)(1)(C) – Prior Statement of Identification
1. (1)
2. (2) witness is subject to cross-examination in current trial
3. A previous out-of-court identification of a person after perceiving that person
(e.g., lineup) is not hearsay and may be admissible as substantive evidence.
a. Even if the witness has no memory of the prior identification, it will be
admissible because the witness is subject to cross-examination about the
prior identification.
4. Exam Note: Beware of fact patterns involving prior out-of-court identifications
by a witness who is not testifying at the current trial and therefore is not subject
to cross-examination.
II.
a. 801(d)(1)(C) cannot apply, for instance, if the witness is dead or
otherwise unavailable to testify.
B. 801(d)(2) – Opposing Party Statements (“Admissions”)
i. Note: “admission” does not mean a confession (e.g., “I admit to the crime”). An
“admission” in this context is just a statement.
1. However, both confessions and admissions are admissible under FRE
801(d)(2)(A).
a. Note: Judgments of prior convictions, based upon a guilty plea or a jury
verdict, may be admissible under FRE 803(22), but NOT under FRE
801(d)(2). Judgments are not party admissions.
ii. Opposing party statements do not have to be based on personal knowledge (unlike lay
witness testimony).
iii. 801(d)(2)(E) – “in furtherance of the conspiracy”
1. Does not require a conspirator’s statement to further the conspiracy, the
statement need only be “in furtherance of the conspiracy.”
a. This supports admission of a statement that bears some positive
relationship to the conspiracy’s purpose or goal.
i. The two most common categories of statements that fall
outside of the furtherance requirement are confessions and
bragging to someone outside the conspiracy.
FRE 803 – Exceptions Regardless of Declarant Availability
A. FRE 803(1) – Present Sense Impression
i. Carp: “hey, look at that” rule
1. Event does not have to be startling
2. Must describe event or condition
3. Underlying theory: of lack of time to fabricate.
ii. If statement not made contemporaneity, a slight lapse in time is allowable (typically
minutes).
B. FRE 803(2) – Excited Utterance
i. Carp: “oh shit!” rule
1. Usually has exclamation point at the end of statement
2. Underlying theory: of lack of capacity to fabricate.
ii. Must relate to a startling event or condition
1. “Relating to” is broader than “describing”
2. Event must be startling (unlike present sense impression)
C. FRE 803(3) – Then-Existing Mental, Emotional, or Physical Condition
i. Three Categories
1. (1) statements of present state of mind offered to prove that state of mind,
(admissible)
2. (2) statements of present state of mind offered to prove future conduct,
(admissible), and
a. E.g., “I am planning on going to school tomorrow to study geology.”
3. (3) statements reflecting belief or memory about past events (inadmissible
except in cases involving the declarant’s will).
a. Rule of Thumb
i. “I feel” = admissible
ii. “I believe [about the world/about the reason]” = inadmissible
III.
b. Example 1
i. “I feel nauseous . . .” = then-existing physical condition =
admissible
ii. “. . . because my husband poisoned me” = belief about reason =
inadmissible
c. Example 2
i. “I am very scared . . .” = state of mind = admissible
ii. “. . . because I think my father is going to beat me again” =
statement of belief = inadmissible
d. Example 3 [Memory]
i. “I feel very sad . . .” = state of mind = admissible
ii. “. . . that I stole your camera” = statement of memory =
inadmissible
iii. E.g., “my ankle hurts so much, it must be broken”
1. Admissible as a declaration of present pain, but
inadmissible as proof that her ankle was actually broken.
D. FRE 803(6) – Business Records Exception
i. Records prepared in anticipation of litigation are not admissible as business records.
E. FRE 803(8) – Public Records Exception
i. A police record/investigative report containing factual findings (including opinions
and conclusions based on factual findings but excluding witness statements) resulting
from a legally authorized investigation is only admissible in a civil case OR against
the government in a criminal case.
1. “Investigative reports” include reports by non-police organizations such as by
the EEOC and Boards of Health.
2. Police reports being used against criminal defendants can only introduce the
activities; not what was observed or concluded.
F. FRE 803(22) – Judgment of a Prior Conviction
FRE 804 – Exceptions Requiring Declarant Unavailability
A. Generally, 804(b)(1) only applies if the opposing party had an opportunity to
cross-examine the declarant on a prior occasion, but 804(b)(1)(B) provides that in
a civil case, the former testimony is admissible if a “predecessor in interest” had an
opportunity and a similar motive to cross-examine the declarant.
i. Requirements
1. Opportunity to cross-examine – actual examination is not required.
a. An opportunity for “direct” or “redirect” examination suffices.
2. Grand Jury testimony is inadmissible as former testimony against the accused at
trial.
a. Reasoning: no cross-examination.
WITNESS PROBLEMS
I.
FRE 608 – Witness’ Character for Truthfulness/Untruthfulness
A. 608(b) – Except for a criminal conviction under Rule 609, extrinsic evidence is not
admissible to prove specific instances of W’s conduct to attack or support the W’s
character for truthfulness.
i. Character witnesses may be cross-examined about specific instances of conduct, but
no extrinsic evidence is permissible.
II.
III.
IV.
B. Relationship with FRE 609
i. Arrests and indictments are NOT admissible under FRE 609.
1. Because an arrest for misconduct is not itself misconduct, a witness may not be
cross-examined about having been arrested solely for the purpose of impeaching
the witness’s character for truthfulness.
2. However, the underlying conduct that is the basis for the arrest or indictment
may be admissible under FRE 608(b) if it reflects untruthful character.
FRE 609 – Impeachment by Evidence of a Criminal Conviction
A. Rule of Impeachment: we only care about the CRIME, DATE, and SENTENCE.
B. FRE 609(b) – 10-year rule: admissible ONLY IF P>>D (biased toward exclusion)
Types of Impeachment
A. (1) Bias or Interest
i. No FRE rule on bias (but SCOTUS says it’s a proper method of impeachment)
1. While settlement offers and negotiations generally are not admissible for public
policy reasons, they are admissible to prove the bias or prejudice of a witness.
2. Guilty pleas (e.g., a cooperation agreement where W agreed to testify for the
government in exchange for a reduced sentence)
a. This EXCLUDES later-withdrawn guilty pleas, nolo contondre pleas,
etc.
B. (2) Sensory or Mental Defect
C. (3) Character for Untruthfulness
i. Including impeachment by reputation, opinion, prior convictions, and prior untruthful
acts
D. (4) Specific Contradiction
E. (5) Prior Inconsistent Statements (Self-Contradiction)
i. Offered for Impeachment: FRE 613
ii. Offered for Substance: FRE 801(d)
FRE 612 – Writing Used to Refresh a Witness
A. 612(b) – Adverse Party’s Options
i. When the item used to refresh a witness’s recollection is a writing, the adverse party is
entitled to have the document produced, to inspect the document, to cross-examine the
witness about it, and to introduce any relevant portion into evidence.
B. Right of Inspection
i. Trial refreshment
1. The right is mandatory for trial refreshment (during trial).
ii. Pretrial refreshment
1. The production of a writing used prior to trial to refresh a witness’s
recollection may be required if the court decides justice so requires.
EXPERT TESTIMONY
I.
II.
Carp Notes
A. No expert testimony about whether someone is a liar
i. Only lay opinions allowed
B. No expert testimony about whether someone has the requisite mental state
FRE 702- Testimony by Expert Witness
A. A 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:
III.
B. (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
C. (b) the testimony is based on sufficient facts or data;
D. (c) the testimony is the product of reliable principles and methods; and
E. (d) the expert has reliably applied the principles and methods to the facts of the case.
Daubert Factors
A. (1) testability, (2) peer review, (3) error rate, (4) professional standards, (5)
acceptance, (6) independent of litigation, (7) justifiable extrapolation, (8)
alternative explanations, (9) whether the expert is compensated for the work, and
(10) the field is known to give reliable results.