Katz
EVIDENCE
Kuhns – Fall 2006
I. RELEVANCE
Threshold Question: What is the purpose for this offer of evidence?
-Where we start, almost all other areas of evidence law rely on relevance
LOGICAL RELEVANCE:
Evidence that has any tendency to logically make a material proposition more probable
or less probable than it would be without the evidence FRE 401
-Only time you deal with this is in certain specific situations where the evidence involves
some other time, event, or person than the litigation itself, and yet the evidence is
logically admissible
-Eight Situations of logical relevance that are admissible
(1) Complicated Issues of Causation
-To prove cause and effect
-Ex: Eating Mcdonalds burger one minute, in hospital bed
the next, how do I prove the burger is the cause!
-See six other people in the hospital who ate at
mcdonalds
-Admissible b/c too logically connected!
(2) Prior Accidents or Claims
-Generally not admissible to infer conduct, w/ two EXCEPTIONS:
a. To show common claim or scheme of fraud
b. When relevant on the issue of damage to the P
-Ex: hurt back not in this claim, in prior claim!
-Ex: 6 drivers in accident in same instrumentality
which occurred under the same or similar
circumstances (shows owner has notice)
-Proves dangerous/defective instrumentality
(3) Where Intent or State of Mind is an Issue
-Ex: gender discrim case D says I don’t discrim, coinc that no
women working here, P may show how D has treated other women
here seeking jobs
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(4) To Rebut the Claim of Impossibility
-When D uses defense of impossibility, makes much evidence
impossible
-What was not admissible previously becomes admissible
b/c D opens the door w/ defense of impossibility
-Ex: Buy a coke and a mouse is in it, Coke says impossible, can
bring in second mouse in second coke at different time
(5) Comparable Sales to Establish Value, so long as:
a. Other chattels were of same general description
-Same Kind
b. Other sales took place at about the same time period; and
-Same Time
c. Other sales took place in the same general, geographic area
-Same Place
(6) Habit Evidence
-By FRE deemed relevant and admissible
-To infer that at the time of the litigated event, the person
acted in conformity w/ his habit
-What is Habit?:
a. No disposition evidence to show conduct
-The disposition of a person to be careful or careless
is not admissible to show that the person was
careful or careless at the time of the litigated event
b. Specific Prior Acts
-Evidence that a person acted in a certain way on a
prior occasion is not admissible to infer that the
person acted the same way at the time of the
litigated event
c. Habit Evidence
-Must be specific, detailed conduct, and this
conduct must have occurred often enough that we
can say it is habitual, automatic, or semi-automatic
-Ex: A is extremely timid driver
-NO, too general
-Ex: A stops at stop sign certain way, pushes
car across intersection
-Saw it once/twice/ten times
-NO/NO/YES!
-How many times is enough? Depends on the court
-Three+ times for exams
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d. Industrial or Business Routine
-Basically habit evidence for a business
-Routine of business is admissible
e. Industrial Custom as Evidence of the Std of Care
-What others in the same business or trade do
DISCRETIONARY(/PRAGMATIC/POLICY-BASED) RELEVANCE
Evidence may be logically relevant, yet judge keeps it out b/c its probative value is
substantially outweighed by certain auxiliary considerations FRE 403
a. Danger of Unfair Prejudice
b. Confusion of the Issues in the Mind of the Jury
c. Misleading the Jury
d. Undue Delay
e. Waste of Time
f. Cumulative Evidence
-Specific Situations with Definite Rules of Evidence
a. Liability Insurance
-Not admissible to prove ability to pay
-EXCEPTIONS in two situations:
(1) To prove ownership and control when it is disputed
(2) Where it is relevant to impeach the credibility of the witness by
showing interest, bias, or motive
-Ex: Claims manager of insurance company of D as a
witness for D
-Not necessarily lying but has a motive to
b. Subsequent Remedial Measures (Subsequent Repairs)
-Not admissible to show negligence or culpable conduct
-EXCEPTIONS:
(1) To show ownership and control when ownership and control is
disputed
-Ex: A falls down stairs, B says not my stairs as he runs
around tacking down the carpet
(2) To rebut or impeach
-To show feasibility of a precautionary measure when
feasibility is controverted
-D says couldn’t have made it safer
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-Ex: customer walks into clean glass doors, breaks
nose, D says couldn’t avoid this P just walked into
door, but 16 walked into glass door prior to injury
and none after injury, D says coincidence, P says no
painted red circles and put up sign, D made fool of
c. Settlements
-Settlement discussions are not admissible as any kind of indication of
fault, liability, or damage:
-EXCEPTIONS:
(1) There must be a claim
-Ex: “Are you the guy who my dog bit?”
-Oops, no claim yet
(2) There must be a dispute as to either liability or amount
(3) Any admission of fact which is made as part of an offer to pay
hospital or medical expenses will be admissible
-Naked offers to pay expenses
-But may be irrelevant for humanitarian motives
-But if talk about facts of the case during
offer, do so at own risk
-Ex: “Let me pay bills, after all it was all my fault”
CHARACTER EVIDENCE
-Four Preliminary Questions:
a. For what purpose do you seek to show character?
(1) Character of a party is itself one of the material issues
(2) Character as circumstantial evidence to infer conduct at the time of
litigated event
(3) Character to impeach credibility of a witness
b. What method can you use to prove character?
(1) Specific acts of conduct
(2) Opinion Testimony
(3) Reputation Evidence
c. What kind of case is it— criminal or civil?
d. Character for what trait?
-For what trait is at issue in case
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-Character in Civil Cases
-No character evidence in civil cases as circumstantial evidence to infer conduct
-EXCEPTIONS:
(1) The character of the party is a material issue
-RARE!
-Ex: defamation case where issue is truth
-A calls B a crook…is B truly a crook?
-What’s B’s reputation?
-Prove by:
a. Specific acts of conduct
b. Opinion testimony
c. Reputation evidence
(2) Neg’l entrustment
-Hiring town drunk to drive school bus
(3) Wrongful death
-If world is better off w/o terrible character
-Character and Acts of Misconduct by the Accused in Criminal Cases
-Can the prosecution let the jury in to know what the D’s character is like?
-NO! No bad character evidence at the initiative of the prosecution is
admissible if the purpose is to show criminal disposition so as to infer
guilt
-Unless and until the accused takes the initiative to show his good
character as a circumstantial evidence to infer conduct, namely
innocence
-If D takes stand as witness in case though, his rep can be
attacked!
-But not as substantive evidence in the case, just as
a witness with a poor reputation
-Prosecutor can call his own bad reputation, bad opinion witness
-Must ask “Have you heard?/Do you know? Blahblah
(arrest/specific act)” during cross-examination merely to show
reputation purposes
-Can’t bring in documentation to show witness truth
-Victim’s Character
-If a victim’s character is relevant to a defense by the accused, then the D can take
the initiative to show the bad character of the victim in order to help the defense
-Usual situation:
-D is charged w/ murder, D make take defense that victim attacked
first, D acted in self-defense
-D can call witness to show that victim has violent
reputation
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-P rebuts by showing good character or by showing
bad character of D
-Rape Shield Statutes
 If accused is charged w/ sexual misconduct in civil or criminal case,
there can generally be no evidence offered to prove that the alleged victim
engaged in other sexual behavior, or any evidence to prove sexual
disposition of the alleged victim
-EXCEPTIONS where specific instances of sexual behavior of the
victim may be shown:
(1) To show that third party was source of semen, injury, or
other physical evidence
(2) To show prior acts of consensual sexual activity b/w the
alleged victim and the D himself
(3) If the constitutional rights of the accused require the
evidence to be admitted
-Even under the exceptions, there must be:
a. Notice to the parties in advance of trial
b. An in camera closed hearing
c. A finding by the judge that the probative value substantially outweighs
the danger of harm or unfair prejudice to the victim
-Issues that would allow evidence of prior crimes or prior acts of misconduct by the
accused to come in: “MIMIC Rule”
-If the prior act of misconduct/crime is relevant, apart from trying to show
criminal disposition, it is admissible!!! Even those not in the MIMIC rule!!!
-Ex: A owner of bank is gambling, loses money, can’t pay back money,
embezzles money from the bank, falsifies books, burns bank down when
hears auditor is coming
-Even if only being charged for arson, prior acts of misconduct are
able to be introduced b/c relevantly show motive/opportunity
a. Motive
b. Intent or State of Mind
c. Mistake, Absence of
d. Identity
e. Common Plan and Scheme
-Modus Operandi evidence
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-Did the same act in the unusually, distinctive way
-FRE 403 still controls here where the judge can throw out the evidence b/c the probative
value is substantially outweighed by the danger of unfair prejudice
-EXCEPTION to Character Evidence:
 In civil or criminal cases charging the D w/ sexual assault or child molestation,
the prior acts of sexual assault or child molestation may be brought in by the
prosecution or plaintiff
-The D need not open any doors in this case
-This is disposition evidence
-Need not have been a prior conviction or charge
II. DOCUMENTARY EVIDENCE – WRITINGS
AUTHENTICATION
 A writing is not admissible unless it has been authenticated
-Writings are presumed fraud until have testimony authentication
Methods of Authentication
a. Direct Evidence
(1) Admission
(2) Eyewitness Testimony
(3) Prove the Handwriting
i. Lay Witness
-Any witness who is familiar w/ the signature
ii. Expert Testimony
-Comparing disputed signature with a genuine
specimen which is in evidence
iii. Jury Comparison
-Comparing disputed signature w/ a genuine
specimen which is in evidence
b. Circumstantial Evidence
(1) Ancient Document Rule
 If a writing is twenty years old or more, then the theory
is that anyone who witnessed the execution will probably
not be available
(2) Regular on its Face
-No erasures
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(3) Found in a Place of Natural Custody
-Found this document where you would expect this kind of
document to be
(4) Solicited Reply Doctrine
-Where the disputed writing comes in response to a prior
communication
-Highly likely signature is authentic here
-Very persuasive circumstantial evidence of
genuineness
-Must present sufficient evidence so that reasonable jury could find that the
writing is genuine
-Low standard!
Self-Authenticating Writings
(1) Certified copies of business or public records
(2) Official publications purporting on their face to be from a public
authority
(3) Newspapers and periodicals
(4) Trade inscriptions or labels affixed in the course of business indicated
ownership and control
(5) Acknowledged documents
(6) Signatures on commercial paper as provided by the general
commercial law
-Proper foundation for a photo usually needs a witness to merely state that the
photograph is authentic
BEST EVIDENCE RULE
-Applies only to writings – documents, films, photographs, x-rays, recordings
-Express a preference for the original
Original Document Rule
 Requires that a party seeking to prove the content of a writing
must either:
(1) Produce the original document, or
(2) Account satisfactorily for its absence
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-If the excuse is reasonable, then a foundation has
been laid for secondary evidence (a copy or oral
testimony)
When Does the Rule Apply?
a. Where the writing is itself a legally operative document
-Creates or destroys a legal relationship which is at issue in the
case
b. Where the witness’s sole knowledge comes from a writing
When Does the Rule NOT Apply?
a. When the fact to be proved has an existence independent of the writing
-Where you want to prove some fact, have a witness with
independent knowledge of that fact
-Don’t have to prove fact thru writing (i.e. receipts for
proof of purchase)
-Admissible
b. Collateral Document Exception
 Does not apply to writings of minor importance to the
controversy
Modifications to the Best Evidence Rule
a. Public Record
-Do not have to produce the original of a public record
-Certified copy is enough
b. Voluminous Document Modification
-If the original documents are so voluminous that they cannot
conveniently be examined in court, then the proponent may prove
the content of the originals by means of a summary, chart, or
calculation so long as:
(1) The voluminous originals would themselves have been
admissible; and
(2) The voluminous originals are made available to the
opponent so that they opponent may prepare his own
summary
-The Best Evidence Rule req the production of or an explanation for the absence
of the original document
-Are copies/carbons/faxes originals?
-At C.L. they were copies
-At FRE they are duplicates
-A counter-part which is produced by some technique that
reproduces the original so as to prevent casual errors
-Duplicates are admissible just like the originals!
-EXCEPTIONS:
(1) Genuine question of authenticity of the original is raised
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(2) Unfair to admit the duplicate w/o an explanation for the
absence of the original
III. WITNESSES
COMPETENCY OF THE WITNESS
Four requirements that render a witness competent:
(1) Perception
(2) Memory
(3) Communication of Observation
(4) Sincerity
Under the Federal Rule
a. Witness must have communicable personal knowledge
b. Witness must take oath or affirmation
State Dead Man’s Statutes
 The interested survivor cannot testify for his interest against the
decedent or the decedent’s representatives about communications
or transactions w/ the decedent in a civil case unless there is a
wavier
-Rationale: Fear of Perjury
-Series of Requirements:
(1) The witness on the stand must be an interested witness
(2) The witness must be testifying for his interest
(3) The interested witness must be testifying against the
decedent or a representative of the decedent
(4) The subject matter is important
-Testimony must be about communications or
transactions w/ the decedent
(5) Applies only to civil cases
(6) Even if you have all the reqs, there can be a waiver to
the Dead Man’s Statute
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FORM FOR EXAMINATION OF WITNESSES
-Basic rationale: The witness, not the lawyer, should testify
-No leading questions allowed
-cannot suggest the answer to a witness
-EXCEPTIONS:
a. Cross-examination
b. Direct examination as to preliminary matters
c. When attorney is having difficulty eliciting testimony b/c
the witness is handicapped in some way
d. When Attorney is examining the adverse party or
someone under control of the adverse party
When May the Witness Use a Writing in Aid of Oral Testimony?
 Witnesses are not supposed to read in court
-Situations where a witness may use a writing:
a. Refreshing Recollection
-May use any writing to refresh the recollection of the
witness
-Writing does not have to be authenticated
-Opposing counsel is allowed to see it, use it, or put
it in evidence even though you aren’t allowed to
b. Recorded Recollection
(1) Must show that at one time the witness had personal
knowledge
(2) Must show that the writing was made by the witness or
under the supervision of the witness
(3) The writing must be timely made by the witness
(4) Must establish that this writing is reliable and accurate
(5) Necessity
-The witness must be unable to remember all or part
of the details of the transactions
OPINION AND EXPERT TESTIMONY
1. Lay Witness
-Admissible provided that:
a. Opinion is rationally based on the perception of the witness; and
b. The opinion is helpful to the trier of fact
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2. Expert Witness
a. The subject matter must be appropriate for expert testimony
-Reliability
-The methodology underlying the expert opinion must be reliable
-Relevance
-The expert opinion must be relevant
-Opinion must fit the facts of the case
b. The witness must be qualified as an expert
-Qualification need not be formal or academic
c. The expert should possess reasonable certainty or probability regarding the
opinion
-Cannot be mere guesswork
d. The opinion must be supported by a proper factual basis
-Facts w/in the personal knowledge of the expert
-Facts that are supplied to the expert in court by the evidence, usually
through hypothetical question
-Facts that are of a type that experts in that field would reasonably rely on
in making out of court professional decisions
3. Learned Text, Treatise, or Authoritative Article
-Usually used to rebut opposing counsel’s expert opinion
-Not hearsay b/c not being used to introduce its truth
-Used to show differing opinion
a. Lay foundation for text, treatise, or authoritative article
(1) Elicit an admission on cross-examination
(2) Judicial notice
b. Limitations
(1) There must be an expert on stand
(2) Actual text or treatise does not go to the jury
RULES REGARDING THE IMPEACHMENT OF THE CREDIBILITY OF WITNESS
Cross-Examination
-Absolute right to c-e any witness who testifies against you
-Limited to scope of direct examination
-“Collateral Matters Doctrine”
 The cross-examiner is bound by the answer that he gets from the
witness as to collateral matters
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-No extrinsic evidence is allowed to contradict the witness as to a
collateral matter (i.e. bring a witness to contradict a witness)
-Collateral matter is a matter that has not other relevance to
the case other than to contradict the witness
-This is FRE 403 b/c probative value is out
weighed
Credibility and Impeachment – When Can you Call a Witness a Liar?
-Your Witness
-Cannot bolster the credibility of your own witness unless or until there has been
an impeachment or attack
-Prior consistent statements do not generally come in to bolster credibility unless
and until there has been an impeachment attack
-EXCEPTION:
-A prior statement of identification made by a witness is excluded
by hearsay definition and can come in for its truth
-May freely impeach your own witness
-The credibility of a witness may be attacked by any party, including the
party calling the witness
(1) Prior Inconsistent Statement
-May use a statement made by the witness on a prior
occasion that is different from or inconsistent w/ the
material portion of the witness’s present in-court testimony
-Prior inconsistent statement does not come in for
its truth, it comes in to impeach only, otherwise its
hearsay!
(2) A showing of interest, bias, or motive to misrepresent or
exaggerate
-Must lay a foundation to use extrinsic evidence
(3) Prior conviction of crime
-Under the FRE
a. PART ONE:
 Any crime, a felony or misdemeanor,
involving dishonesty or false statement (e.g.
fraud, perjury, misrep, embezzlement)
b. PART TWO:
 If the conviction is for a crime that does
not involve deceit or a false statement, but is
a felony punished by more than a year, the
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judge will balance the probative value
against the danger of unfair prejudice
c. PART THREE:
 Whatever the crime, it cannot be too
remote
-Generally, if more than ten years
have elapsed from the date of release
from confinement, it is too remote
(4) Specific acts of deceit or lying that did not result in
conviction
-Ask the direct question of the witness, but there
must be a reasonable basis for asking the question
(5) Bad reputation of or opinion for truth or veracity
-Must call the community mouth to stand to testify
-Rehabilitation of Your Witness
(1) Good reputation for truth or veracity
-Allowed to show this only if there was a direct
character attack on your witness (prior conviction,
specific acts of deceit or lying, or bar reputation or
opinion for truth or veracity)
(2) Prior consistent statement
-Can use to rebut a charge of recent fabrications or
improper influence or motive
IV. PRIVILEDGES
Attorney-Client Privilege
 Confidential communications b/w attorney and client made during
professional, legal consultation are privileged from disclosure unless waived by
the client or the representative of the deceased client
Joint-Client Exception
 If two or more parties communicate together w/ a lawyer about a matter
of common interest, then there is no privilege b/w or among those joint
consultants
-For falling outs between two+ parties
-When third parties are suing, privilege upholds
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Physician/Psychiatrist-Patient Privilege
 The patient has a privilege against the disclosure of confidential info acquired
by the doctor in a professional relationship entered into for the purpose of
obtaining treatment
Patient-Litigation EXCEPTION
 The physician-patient privilege does not apply in personal injury cases
or where the patient sues or defends by putting physical or mental
condition in issue
The Two Spousal Privileges
1. Spousal Immunity Privilege
 Protects one spouse from being forced to testify against the other
spouse about anything in a criminal case
a. Must be valid marriage at the time of trial
-If they are married at the time of trial, it makes no difference that
the info sought concerns pre-marriage events
b. Protects against all testimony
c. Holder of the privilege is the witness spouse and not the party spouse
d. Applies only in criminal cases!!!
2. Confidential Marital Communications Privilege
 A spouse shall not be required w/o the consent of the other spouse, to
disclose a confidential communication made by one to the other during the
marriage
a. The witness must be married at the time of the protected
communication, and not necessarily at the time of trial
-Privilege outlasts the marriage
b. Privilege applies only to confidences and not to all testimony
c. The holder of this privilege is either spouse, and not just the witness
spouse
d. Applies to all civil, as well as criminal cases
EXCEPTIONS to all Privileges
(1) Future Crime or Fraud Exception
-No privilege will be allowed to facilitate future or continuing crime or
fraud
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(2) At Issue Exception
-No privilege if the client or the patient puts the communication
affirmatively in issue in the litigation
(3) The privilege falls when there is a dispute b/w the parties to the privilege
V. HEARSAY
DEFINITION
 An out-of-court statement which is offered for the purpose of establishing the
truth of the matter contained in the statement
Declarant: makes the out-of-court statement
Witness: heard the out-of-court statement and comes into court to report what he
heard
-Or declarant’s writing is brought into court
-Out of court statements that do not fit the traditional definition of hearsay:
a. Verbal act/Legally operative fact
 The substantive law breathes legal significance into certain
words. Saying those words is committing a legal act. All we want
to know is whether or not the declarant said those words (i.e.
words of offer or acceptance to prove a legal agreement is not
hearsay)
-“I accept your offer” is not hearsay
-B/c we do not care about the character of the
witness, just want to know if those words were said
or not
b. Out-of-court statement that is offered to show the effect on the person
who heard it or read it
-i.e. to show notice, motive, why a third party did or didn’t act
c. An out-of-court statement that is offered as circumstantial evidence of
the declarant’s state of mind
-Prior inconsistent/consistent statements are not considered hearsay
-Prior identification of a witness
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EXCEPTIONS!!!
1. Admission of a Party
 Declaration by a party offered against the party
-In order to be relevant in the case, the admission would usually be
a declaration of the party inconsistent with the party’s present
position at the time of trial
a. An admission need not be based on personal knowledge
b. An admission may be in the form of a conclusion or opinion
c. Vicarious Admission (made post-accident)
-A statement made by an employee concerning a matter w/in the
scope of employment is admissible against the employer if made
during the employment relationship
EXCEPTIONS REQUIRING UNAVAILABLES
2. Former Testimony
 The witness testifies live in the first proceeding, in the second
proceeding, involving essentially the same issues and parties, if the
witness is no longer available, the testimony in the first proceeding is
admissible  usually Yes!
a. There must be meaningful opportunity to cross-examine when
the witness testifies live in the first proceeding
-Issue must be the same in the both proceedings!!!
***Criminal Case: Must have had ability to meaningfully crossexamine the witness then
***Civil Case: Ok if offered against someone in privity with
another who was able to meaningfully c-e the witness then
b. Unavailability is required for the second trial!
(1) Absence from jurisdiction
(2) Mental of physical illness
(3) Death
(4) Refusal to answer
(5) Failure of memory
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3. Statement Against Interest
 A declaration of a person now unavailable as a witness against the
person’s pecuniary, proprietary, or penal interests AT TIME ITS MADE
EXCEPTION TO THE EXCEPTION:
 Statement against the penal interest, which is offered to
exculpate the accused in a criminal case, is not admissible
w/o corroboration of the trustworthiness of the out-of-court
statement against penal interests
-i.e. third party confessions
-Doesn’t come in w/o corroboration
-Ex: A says C did it not B, C confessed to A, C is
not available now
-C’s statement does not come in unless
corroboration about C’s confession
Differences b/w Statement Against Interest and Admission of a
Party:
(1) Statement against interest must be against interest at the
time it is made, and not at the time of trial
(2) An admission is by a party, but a statement against
interest can be made by a stranger to the litigation
(3) Personal knowledge is req for a statement against
interest, and the person making the statement has to know
that it is against his interests
(4) An admission is by a party, and the party is usually
available. For a statement against interest, unavailability is
required
4. Dying Declaration
 Statement made under a sense of impending death
Reqs:
(1) State of Mind Req
-Statement must be made under sense of impending
death
(2) The declarant need not actually die
(3) Admissible in any homicide or civil cases
(4) The dying declaration must concern the cause or
circumstances of the impending death
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-At common law, only admissible in homicide case or any
civil case
-No criminal cases not homicide case
UNAVAILABILITY NOT REQUIRED
5. Spontaneous Statements
5- A. Declaration of existing present state of mind when the present state
of mind of the declarant is one of the issues in the case
5-B. Declaration of present intent to do something in the not too distant
future is admissible to infer that what was intended was done
-Ex: Murder/suicide case, admissible when A says I heard him say
he doesn’t have anything to live for
5-C. Excited Utterance
Req:
(1) Must be a startling event
(2) Statement must be made under the stress of the
excitement of the startling event
(3) Statement must concern the facts of the startling
occurrence
-Time-lapse is okay…coming out of coma!!!
5-D. Present Sense Impression
 Declarant is describing something at about the very moment
that it is happening
-There is no time-lapse
5-E. Declaration of Present Physical Condition
 Admissible by anyone who hears it
5-F. Declaration of Past Physical Condition
 A declaration of past physical history for purposes of diagnosis
or treatment is admissible
6. Business Record Exception
 Entry must be germane to the business for there to be a business record
exception
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