Evidence Outline
Jamie Rehmann
I. Gen’l Info
A. Three critical things about communication w/ jury
1. Has the judge done a good job of instructing the jury
a. instructions clear to the jury
b. R. 105 – limiting instruction when evid. admiss. for one purpose but not
another. (is this rule really effective???) S.Ct. presumes effective
2. Things that aren’t evid. but influence the jury (demeanor, opening/closing
arg., specific juror info that isn’t common knowledge or background).
3. How lawyer comm. w/ jury
a. opening statement – gives jury sense of trial and only chance to tell story
uninterrupted
b. closing statement – limited to admiss. theories only
B. R. 103 – Objections and Preserving Issues for Appeal
1. 103(a) – two step process for appl. ct. to reverse trial ct. ruling
a. was there error that effected a substantial right?
b. if so, was a timely objection made and offer of proof if obj. sustained
i. 103(d) – plain error: CTA can reverse if step two not met
2. perfecting the record – summarizing on the record discussions/rulings held
off the record.
a. need to do this to preserve right to appeal.
i. a(1) – state ground for objection (avoid disclosing too much detail to
jury).
ii. a(2) – if obj. sustained, proponent needs to make offer of proof
(getting on record what evid. is and theory for admiss.).
3. (a)(1) - Objecting to evid.
a. object to admissibility – based on a FRE
b. object to form – based on trial practice and 611(a)
i. ex: leading, argumentative, vague, mischaracterizes test., ect.
c. timing - need to make b/f question is answered
a. if answer is already given, proper procedure is motion to strike
d. obj. must be specific if not otherwise clear from context
i. need only comm. basic reason for obj. (ex. “objection, hearsay”)
a. if state wrong reason, judge can overrule even if otherwise
inadmiss.
ii. if gen’l objection is overruled, won’t preserve issue on appeal
C. Curative Admissibility – fighting fire w/ fire
1. Permits a pty to introduce otherwise inadmiss. evid. in response to opponent’s
introduction or attempted introduction of inadmiss. evid.i in limited sitations
a. inadmiss. evid. that was introduced is particularly prejudicial
b. timely obj. to opponent’s inadmiss. evid. unlikely to correct the unfairness
i. obj. not always nec. for this rule to apply, but should make record w/
judge of the unfairness.
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D. Motion In Limine – motion filed prior to trial to get advance ruling on
admissibility. Sometimes judges can’t rule b/c may depend on other evid.
II. Relevancy & Probative Value
A. R.401 – Definition of Relevant Evid = having any tendency to make the
existence of any FOC more or less probable than it would be w/out the evid.
1. Elements → low threshold
a. materiality
i. “any tendency” = probative
a. common sense question whether it will help a reasonable jury
b. low threshold
ii. proposition trying to prove must be a consequence to the case
a. needs to be material
b. must be able to connect through inferences to element of case
(determined by substantive law)
b. relevancy
i. evid. must actually tend to make the FOC more or less probable
ii. reasonable generalizations based on knowledge and experience
a. judge can require proof of the generalization to tie things together
2. Point – test is imprecise w/ low threshold that favors admissibility
B. R.402 – All relevant evid. admissible unless barred by Constit., Congress, or
FRE. Irrelevant evid. inadmissible.
1. Two types
a. Direct – if believes (belief is the only inference) then directly connects to
an element of case
b. Circumstantial – requires chain of inferences to connect evid. to element
2. Proponent of evid. bears burden of persuasion of facts
3. Res Gestae – background evid. that helps jury understand the story is admiss.
even if does not tend to prove a FOC.
C. R.403 – Discretion to exclude relevant evid. b/c might distract jury
1. This is the only exclusionary rule w/out a bright line
2. Three step process
a. evaluate probative value of evid.
b. determine 403 dangers
c. apply balancing test
3. Evaluating probative value - measures the strength of the “any tendency”
requirement (persuasiveness)
i. strength of underlying inferences (imprecise)
a. more inferences does not mean lower probative value
ii. certainty of the evid.
a. ex. witness uncertainty, ambiguity of doc.
b. can’t take witness credibility into account
iii. need
a. degree to which opponent is disputing the FOC
b. alternative ways of proving the FOC
4. 403 Dangers – likelihood jury will be neg. affected/degree of effect
a. Unfair prejudice
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i. triggering an emotional response unrelated to FOC (“bad person”)
ii. evid. used in impermissible manner/impermissible inference
b. Confusion of Issues
i. focusing jury att’n on collateral issue/away from main issue
c. Misleading the Jury
i. risk of drawing a mistaken inference (ex. facts taken out of context)
ii. risk jury will give evid. more weight than it deserves (ex. lie
detector/statistics)
iii. WARNING – be careful of this arg. b/c suggests jury not smart
d. Undue delay, Waste of Time, Cumulative Evid.
i. ex. of waste of time: offered to prove stipulated or background evid.
ii. ex. of cumm. evid: repetitive testimony
a. cumm. evid. may be necessary if disputed or uncertain
5. Balancing Test – danger must substantially outweigh probative value
a. excluded only when confident danger outweighs prob. value (favors
admissibility)
i. only exclude when 403 danger high (sometimes mid) AND prob. value
low (sometimes mid).
b. limiting instruction is a possibility but dangerous
c. CTA 99% of time defer to tr. ct. discretion on balancing test (abuse of
discretion is test CTA apply)
6. Old Chief
a. 403 balancing not done in vacuum, look at in context of other evid.
b. All ptys are entitled to narrative richness and don’t have to accept a
stipulation if doesn’t give you everything entitled. (ex. expert credentials)
i. this was dicta that subsequent ct.’s have latched onto/turned into law
c. A pty’s label (such as felon status) does not fall under narrative richness
and must accept stipulation if evid. of status poses 403 dangers.
III. The Relevancy Rules Implicating Character (Exclusionary Rules)
A. R.404 Evidence of a Person’s Character/Character Trait big emphasis on this
1. Generally
a. character evid. is any evid. which tends to show a person’s propensity for
a particular character trait (moral overtones, non-repetitive acts)
b. character evid. is relevant
2. R.404(a) – Gen’l Rule: character evid. not permissible to prove conduct on a
particular occasion (action in conformity with).
a. but may be admiss. for other reasons → always important to determine
why relevant
3. R.404(a) – Exceptions
a. (a)(1) Character of the D is admiss. in a criminal case if:
i. offered by D and is a pertinent trait
a. the trait must relate to the charge (lying not pertinent for murder)
ii. offered by prosecution to rebut character evid. offered by D either
about D or about Vic. under (a)(2)
a. D must first open the door
b. rebutall evid. must be about same trait to which D opened the door
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i. but can be about D’s trait even if D only opened door to vic.’s
same trait
b. (a)(2) Character of the vic. admiss. in criminal case if:
i. offered by D and is a pertinent trait
ii. offered by prosecution to rebut character evid. offered D
iii. offered by prosecution in a homicide case to show vic.’s peaceful trait
a. this is only time pros. can open the door on character evid.
c. (a)(3) Evid. of witness if:
i. evid. of witness’s character for truthfulness (for impeachment) AND
ii. meets requirements under Rs.607,608,609 (impeachment rules)
d. Fighting fire with fire – only in criminal cases
i. if one side submits inadmiss. evid. sometimes ct. will permit other side
to bring in inadmiss. evid. to keep the inequalities even
4. R.405 When character evid. is admiss. may prove character by:
a. (a) reputation or opinion testimony
i. must be sure this doesn’t evolve into past acts testimony
ii. may exclude under 403 if witness doesn’t know D well enough OR
reputation not within a community
b. inquiry into past specific acts if:
i. (b) to prove an essential element of claim or defense (such as past
carelessness in neg’l claim, false statement in defamation suit)
a. may also prove with 405(a) reputation/opinion testimony
ii. admiss. under Rs. 413 – 415, 608(b), 609
5. R.404(b)first sentence - Evid. of past acts ONLY admiss. for purposes other
than to show character (never for action in conformity with)
a. R.404(b)second sentence- admissible examples (list not exclusive):
i. “essential” to narrative of case (motive, opportunity, preparation)
a. if D stipulates to past act, arguable whether 403 requires
acceptance of stipulation or Old Chief allow evid. for narrative
ii. relevant to showing state of mind (knowledge, intent, absence of
mistake)
a. if intent stipulated it becomes a status issue and past act inadmiss.
i. but this is arguable both ways under Old Chief
b. many past incidents needed to trigger doc. of chances (probability)
iii. relevant to showing identity (modus operandi)
a. a high degree of distinctiveness /similarity is required
iv. process of admitting 404(b) examples
a. proponent must be able to articulate the non-character purpose and
b. meet 104(b) burden that person culpably involved in the past act.
i. culpable involvement goes to prob. value
c. must also respond to 403 obj. that:
i. evid. will be used by jury for impermissible purpose ( infer
action in conformity with or bad person)
ii. evid. shows “bad person” and jury convict on past act alone
iii. past act too remote in time
iv. but seldom a barrier b/c 403 favors admiss. + Old Chief
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d. in criminal case, pros. must respond to D’s demand for notice
b. R.405(a) Cross examining a reputation/opinion witness b/c relevant to
impeach their credibility, not to show opponent’s character
i. past acts must relate to character trait in question
ii. the past act must be something about which witness would be aware
iii. cross examine must est. reasonable belief that past act occurred
iv. past acts can include arrests and convictions
c. In all of these cases, entitled to limiting instruction that jury may not
consider the evid. to show action in conformity with.
B. R.406 Habit and Routine Business Practice
1. Evid. of a person’s habit or biz. custom is relevant to prove action in
conformity with
a. habits differ from character evid. in that
i. tend to be more morally neutral acts
a. advisory note doesn’t consider driving safely as habit
ii. more regularized/repetitive – almost non-volitional
a. if biz. practice need to show a check on the practice
b. evid. need not be corroborated by other evid. or percipient test.
2. Since it is relevant and not barred by FRE → admiss.
3. Process of admission
a. Classify the propensity as habit rather than character
b. Offer the evid. through opinion or specific acts (reputation is hearsay)
i. witness must have first hand knowledge of the practice
c. Respond to 403 objections
i. Biz. can’t make character evid. obj. (biz. has no character)
C. Similar Happenings - Evid. of past acts which are not character or habit
1. No FRE specifically address this category – apply Rs.401-403
a. Cts. exercise discretion b/c concern jury get too caught up on collateral
issue (significant 403 danger)
2. Three categories of admiss. relevant evid. to show action of biz. or agent in
conformity with past acts
a. Organizational Propensity – factor attributable to org. (rather than chance)
that would tend to cause the act at issue
i. ex. past race discrimination, past fraudulent activ., other K b/t P and D
ii. not excluded b/c 404(b) doesn’t apply to biz.
b. Organizational Liability – offered to estabilsih element of liability such as
notice, pattern of practice, or standard of care
i. ex. prior safety violations to show notice, custom of past safety
inspections to show breach of standard where no inspection done
ii. not excluded b/c this is an essential element – 405(b) permits
c. Characteristics of Objects – past behavior of operation of an object
i. ex. instrumentality caused other similar injuries, similar objects had
characteristics similar to object at issue
ii. not excluded b/c 404(b) only applies to indiv., not objects
3. Evidence of non-happenings – special requirements
a. conditions similar during time of non-happenings
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b. significant number of non-happenings
4. Process of admission – to get past exclusionary rules
a. Dist. that evid. relevant for biz. practice and not indiv. employee
b. Substantial degree of similarities – increases probative value
i. not needed as much to show notice
c. Get over main 403 obj. – waste of time (b/c other side wants to respond)
D. Sexual Behavior
1. Rs.413-15 - Evid. of D’s similar crimes of sexual assault/child molestation
cases is admiss. to show action in conformity with
a. Evid. permissible in any criminal case which it is relevant or civil cases in
which claim is based on sexual assault or child molestation
i. notice to D required
b. Significance
i. Removes 404 impediment to this type of evid.
a. b/f this FRE pros. would have to show similarity b/t vics
b. no D no longer has right to limiting instruction
ii. Prosecution can open the door
iii. Note – other exclusionary rules such as 403 and hearsay still apply
c. Past act must a be a sexual assault or child molestation
i. 413 sexual assault
a. the act must be criminalized in any state
b. contact w/ D’s or vic.’s gentitals or deriving sexual pleasure from
the infliction of death, harm, or pain on another
i. or attempt thereof
c. without vic.’s consent (either legal or actual consent)
ii. 414 child molestation
a. same as sexual assault but w/ child under 14 and no consent req.
d. Process of admission
i. pros. must have valid relevancy theory
ii. must meet 404(b) standard that D culpably involved in past act
a. no prior conviction required
b. pros. does have to overcome 403 obj. (some ct.’s apply liberally)
i. more liberal application in child molestation, more
conservative in acquaintance/date rape
ii. but the worse the prior act → more chance bad person
prejudice
2. R.412(a) - Rape Shield: Excludes evid. of victim’s prior sexual behavior or
predisposition in cases (crim. and civil) involving sexual offenses
a. Generally
i. Sexual behavior include use of contraceptives, STDs, fantasies
ii. Sexual predisposition is anything that may have sexual connotation
iii. Favors exclusion b/c perpensity evid. has low prob. value AND fear of
discouraging sex crime vics to come forward b/c humiliation
iv. In civil cases, often comes up in sex. discrimination cases
b. R.412(b)Exceptions
i. In criminal cases specific acts of sex. behavior not excluded if:
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a. offered to prove someone other than D was source of semen,
injury, or other physical evid.
b. prior sexual acts w/D offered by D to prove consent or by pros.
c. would violated D’s constit. rights
i. most constit. challenges unsuccessful
ii. most successful challenges are where D trying to impeach
witness by showing bias/motive to lie (exculpatory evid.)
ii. In civil cases
a. offered to prove vic’s sexual behavior/predisposition must pass
reverse 403 balancing
i. favors exclusion, look at prejudice to ptys AND victim
b. vic’s reputation admiss. only if placed in controversy by vic.
c. R.412(c) Procedure for admiss.
i. must file motion seeking admiss. 14 b/f trial and serve on all ptys
ii. ct. must conduct hearing in camera and let vic. be heard
IV. Other Relevancy Rules Excluding Evid. to Prove Fault/Liability
A. Generally
1. Inadmiss. b/c
a. Inferring admission of fault from these acts is an impermissible inference.
b. Relatively low prob. value/high danger of misleading the jury and don’t
want to deter good conduct
2. But the same evid. may be admiss. to prove other things (ex. impeachment)
a. To overcome 403 concern, the issue should be contested
i. if there is a permissible use, the evid. is usually admitted
b. Point – ALWAYS ASK FOR WHAT PURPOSE IS EVID. OFFERED
B. R.407 Subsequent Remedial Measures
1. Evid. of taking remedial measures inadmiss. to prove neg’l or fault
a. Includes higher/firing employees, changing product design, changing
behavior
b. Does not apply to acts that aren’t remedial measures but initial steps for
det. whether remedial measure is called for
c. Question whether it applies to remedial measures taken by 3d ptys
2. Ex. of admiss uses: prove ownership/control, feasibility of remedial measure
a. Only rule that explicitly says the issue must be contested
C. R.408 Compromise and Offers to Compromise
1. Evid. of settlement or settlement negotiation inadmiss. to prove liability or
invalidity of claim or amount
a. Statements made in course of negotiations also inadmiss.
b. Claim must be disputed
i. This is a 104(a) question
c. But can’t insulate otherwise discoverable evid. by brining it into negot’n
2. Ex. of admiss. uses: to show bias, knowledge, rebut charge of undue delay
3. Proposed amendment (current as of date of exam)
a. prohibits admiss of statements made in negotiation for impeachment
purposes
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b. prohibits actual admiss. in crim. case of actual compromise in civil case
but allows admiss. of statements made during negotiations
i. currently ct.’s split as to admiss. in crim. cases of civil case
compromise
c. prohibits pty admitting their own offer to compromise
d. may prohibit offer of compromise by 3d pty
D. R.409 Payment of Medical and Similar expenses
1. Evid. of offer to pay medical or similar expenses inadmiss. to prove fault
a. But unlike R.408, statements are admiss.
b. This rule is rarely needed
2. Similar expenses – could be something like offer to pay for ruined clothes
after neg’l spilling coffee on them.
E. R.411 Liability Ins.
1. Evid. of whether person insured is not admiss. to prove neg’l
2. Ex. of admiss. uses: to show agency or ownership, to show bias/prejudice
F. R.410 Withdrawn Guilty Pleas, No Contest Pleas, and Plea Negotiations
1. Withdrawn guilty pleas, no contest pleas, and statements made during plea
negotiations of the above with prosecuting atty are inadmiss. against the D
who made the plea or was in discussions.
a. Applies to both criminal and civil cases.
b. Applies to statement made to agents of prosecutor
i. look at from D’s reasonable perspective
ii. but must be during plea negotiations – D can’t just be talking to try to
earn leniency
c. A D can waive the right not to have these statements used against them
2. Rationale
a. Not a reliable statement of fault
b. Want to encourage Plea Bargaining
3. Exceptions
a. Guilty pleas are admissible under R.609
b. In a criminal case for perjury of false statement and the statement at issue
was made under oath, on the record, w/ counsel
c. If another statement made during the plea negotiations has been admitted
and the statement at issue is necessary to give it context
V. See Hearsay Supplement - hearsay exclusions and exceptions to otherwise relevant
evidence
VI. Cross Examination, Impeachment, and Rehabilitation
A. R. 611 – Direct and Cross Exam Gen’l Principals/Limitations
1. Gen’l – witness should be able to tell their story in narrative format w/ lawyer
keeping story going through use of questions – for the most part open ended.
2. (a) – ct. has power to overrule modes of eliciting test. (broad auth. to control)
3. (b) – scope of cross exam.,
a. limited to subject matter of direct exam but ct. has discretion to expand
scope (redirect also limited to subject of cross)
b. always permissible to ask questions to impeach credibility
4. (c) leading questions permissible only on cross exam
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a. leading question = statement w/ a brief question at the beginning or end
(suggests answer to the witnesses)
b. ct. discretion to allow leading questions on direct of hostile witness, or if
nec. to develop witness testimony
B. Impeachment and Rehabilitation
1. General
a. Impeachment = process of casting doubt on witness’s testimonial qualities
i. Every pty is allowed this opportunity, the rules discuss limitations
ii. R.607 – even the pty who calls a witness may impeach her (abolishes
CL “voucher rule”)
b. Impeachment devices
i. Cross examination – using witness’s own words (typical way)
ii. Extrinsic evidence – anything other than witness’s words (e.g
testimony of others)
a. if relevant only to impeach and not in dispute – inadmiss. under
402 and 403 b/c waste of time
b. if disputed but inadmiss. for non-disputed pruposes – opponent can
make 403 objection and get limiting insturction
c. if relevant to impeach AND for a substantive issue – no need to
consider whether admiss. under any of these rules
c. Methods of Impeachment – see the following sub-headings
2. Impeachment and Rehabilitation w/ Character Evidence - Calls into question
witness’s propensity/character for being truthful
a. Must start by looking at relevancy to determine which rules to use
i. If admissible for substantive purposes also see Rs. 404(a)(1) and (2),
404(b), and 405 in character evidence rules above
ii. If admissible only for impeachment purposes Rs. 404(a)(3), 608, and
609 govern admissibility
a. Point – If you want to get in evid. that will be otherwise excluded,
you must find an impeachment purpose
b. Character evid. of truthfulness for impeachment purposes must be proved
by: (404(a)(3) acknowledges this exception to character evid.)
i. 608(a) – Opinion and reputation evid. of witness’s:
a. character for untruthfulness or
i. must be relevant to truthfulness, not gen’l moral character
ii. but ct.’s held witness can’t testify an opinion whether another
witness testified truthfully → only testify to underlying facts or
yes/no question whether another witness correct
b. character for truthfulness if truthful character first attacked
i. proof of bias is not considered an attack on character but prior
bad acts/convictions is considered an attack
a. split whether prior inconsistent statements is attack
ii. must be an opinion for character, can’t be an opinion of
whether another witness was testifying truthfully on a
particular occasion – that is an inference for the jury
iii. arguments for proponent of bolstering evid.
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a. questions that complete narrative/emphasize strength of
witness’s testimony is not bolstering evid.
b. limitation on bolstering evid. only applies to
reputation/opinion evid., all other bolstered evid. fair game
c. this is all extrinsic evid. b/c being offered by somebody else
ii. R. 608(b) Past acts evid. by questioning the witness on the stand
regarding:
a. (b)(1) the witness’s own past acts
i. past acts inquiry must be relevant for character for truthfulness
a. perjury/false pretenses acts are probative for truthfulness
but violent acts arguable are not, gray area inbetween
b. may not ask about past arrests but can ask about underlying
conduct
ii. must be good faith belief that prior act actually happened
iii. bound by what witness says – can’t introduce extrinsic evid.
a. but can introduce extrinsic evid. for non-character
impeachment purposes (anything other than truthfulness)
iv. testifying does not waive witness 5th A. right
v. discretion of court to exclude the past acts evid. – 403 concerns
a. low prob. value, bad person prejudice, waste of time,
impermissible inference
i. length of time since act counts towards probative value
b. but ct.s tend to be liberal in admission
b. (b)(2) the past acts of another witness who’s character this
particular witness is testifying about
i. used to test the basis of a character witness’s opinion about
another witness
ii. the inquiry must related to past acts of the witness the character
witness is testifying about, which are probative of the other
witness’s character for truthfulness
a. ex. Witness A testifies that witness B is in her opinion not a
liar. Witness A can then be questioned about witness B’s
previous lies, but not previous violence.
iii. must be a good faith belief that prior act actually happened.
c. The FRE allow bolstering through past acts evid. w/out attack first,
but CL (which all ct.’s follow) require an attack first
iii. R.609 Evid. of convictions of a crime if:
a. (b) the conviction occurred w/in last 10 yrs. as measured by date of
conviction or release, whichever most recent AND
i. if the witness was did time for the conviction, date of release
will always be more recent then conviction
ii. ct’s had discretion to allow even if greater than 10 yrs. subject
to reverse 403 balancing (prob. V. substantially outweighs
prejudice)
a. rarely will a ct. find a conviction meets this test
b. (a)(2) the crime involved dishonesty or false statements OR
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i. narrow interpretation b/c automatically admiss.
ii. can look into facts of crime to determine whether crime meets
the standard, but only facts required to be proved at the trial
a. 104(a) question
c. (a)(1) the crime was a felony
i. subject to reverse 403 balancing if offered against a criminal D
a. favors exclusion → burden on pros. to justify
ii. subject to regular 403 when offered against all other witnesses
a. favors admissibility
d. Only impeachment rule where extrinsic evid. is permissible
i. if witness denies, can introduce extrinsic evid. of conviction
e. 403 evaluation under the rule
i. probative value – age of the conviction, how probative crime is
to show bad character from which untruthfulness is inferred,
pattern of law breaking or isolated incident
ii. likelihood jury will convict on past crime
a. especially a concern when the witness is also a pty
b. similarity b/t conviction and crime accused of increases
prejudice, not probative value
iii. likelihood jury will not only use to impeach but also
improperly infer D acted in conformity with when committing
the crime he is presently accused of.
iv. facts of crime inadmiss. b/c waste of time unless necessary to:
a. determine if crime of dishonesty/false statement
b. passes the proper 403 balancing
f. Motion In Limine used if D wants to testify – get advanced ruling
3. R.613 –Impeaching/Rehabilitating w/ prior inconsistent statements
a. All prior statements are inadmissible for their truth unless falls under
hearsay exemption.
i. if 801(d) applies then home free
b. Prior inconsistent statements are admissible for impeachment (not for their
truth) purpose subject to the following procedures
i. (a) – on request, opponent must be given an opportunity to examine
the prior statement (but not nd. to disclose ahead of time)
ii. (b) – extrinsic evid. of the prior statement is inadmiss. unless:
a. the witness is given an opportunity to explain/deny the statement
i. Ct. could use 611(a) to impose CL rule that must ask the
witness about prior inconsistent statement on cross. exam. as
foundation b/f introducing extrinsic evid., rather than
introducing the extrinsic evid. first, then recalling witness
b. and opponent given an opportunity to explore the inconsistency w/
the witness
c. this requirement may be waived by ct. “in the interest of justice”
i. ex. find out about prior statement after witness dismissed and
can’t recall the witness.
d. admiss. subject to 403:
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i. probative value – lower if statement not contested or collateral
issue to suit (also waste of time if collateral)
ii. risk that could be used for its truth, especially where prejudicial
a. but more prejudicial = more probative, rule favors admiss.
iii. if witness has plausible current loss of memory about event that
made prior statement about → not inconsistent
iii. Pty impeaching their own witness under this rule must have had a
good faith belief that they were going to testify accurately – can’t call
a witness just to get impeaching testimony in.
iv. Prior inconsistent statements are relevant for impeachment purposes
b/c calls accuracy of witness’s testimony into doubt
c. Prior consistent statements admissible to clarify prior inconsistent
statement and maybe in other contexts
i. Admiss. under 106 (completeness) and 613(b) (chance to clarify) to
rebut prior inconsistent statement by putting it in context
a. the prior consistent statement must be contemporaneous to the
alleged inconsistent statement
ii. Two views for admiss. in other context
a. If not inadmissible for its truth under hearsay exemption
(R.801(d)(1)(B)) then not admissible at all
b. If not being offered for its truth then governed by 401-403
i. Opponent entitled to limiting instruction
4. Other Impeachment devices
a. Application of FRE
i. No FRE on topic, 401-403 should govern admiss.
ii. But most ct.’s apply CL rules
b. Bias – witness’s specific partiality or hostility towards one party or cause
i. Permissible to ask witness about circumstances or conduct which show
bias on cross exam (probative of insincerity)
ii. May be able to introduce extrinsic evid if:
a. Lay foundation like w/ prior inconsistent statements AND
b. Witness has denied the bias
c. Must articulate a reason why the evid. goes to show bias rather
than character
i. Impt. b/c extrinsic evid. inadmiss. to show character
ii. Character evid. = corrupt moral character is gen’l, bias evid. =
specific corrupt intent for the case at thand
c. Mental or Sensory Incapacity – evid. of how well witness sees, hears, or
remembers things accurately
i. Clearly admiss and relevant to testimonial qualities
ii. If expert testifying about mental incapacity, also governed by 702-706
d. Contradiction – evid. that shows what the witness says on the stand is not
what really happened.
i. Permissible to ask on cross exam, to show if witness wrong about one
thing, could be wrong about other things testifying to.
ii. Limits on using extrinsic evid.
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a. If the contradiction is on a collateral matter, 403 and CL may bar
extrinsic evid. b/c not very probative (we are all wrong sometime)
and waste of time
i. Test for whether collateral: Is the evid. relevant to show
something other than mere contradiction?
ii. Evid. that is never collateral (therefore admiss. to contradict)
a. Directly relevant to issues being litigated
b. Relevant to impeach in a manner apart from the
contradiction
c. Evid. that logically undermines witnesses whole story (e.g,
what she wore = collateral, where she was = undermines)
VII. Foundational Requirements
A. Generally
1. Universal principle – No evid. admiss. until it first shown that it is what
proponent claims it to be.
a. threshold requirement for any evid. after relevancy est.
2. Two step process
a. Proponent must present facts that item is what proponent claims it to be
b. The foundational facts must meet the proper standard (two standards)
i. Preponderance of evid. – Yes/No judge thinks facts exist
ii. Sufficiency standard (directed verdict) – judge decides reasonable
person could conclude fact exists
a. this is the lower standard
B. Laying Foundation for Witnesses
1. R.601 – everyone is competent to testify unless another rule disqualifies
a. Impact of rule – witness status (felon or age), interest in case, or
competency don’t categorically disqualify from testifying
i. but still relevant for impeachment purposes and probably admiss.
b. May still be disqualified if can’t meet other foundational requirements
(below) or 403 dangers
c. Competency issue – two approaches
i. if witness incompetent to understand 603 oath then can disqualify
ii. ct. retains pre-601 discretion to disqualify an incompetent witness
iii. point – either way judge can hold competency hearing under 104(c)
and decide competency under 104(a)
2. R.602 – proponent must prove witness has personal (first hand/sensory)
knowledge of the matter of testimony
a. 104(b) standard – intentionally a minimal standard
b. found. facts my consist of witness’s own testimony
3. R.603 – all witness must take oath that testifying truthfully
a. designed to remind witness of duty to do so.
C. Physical Objects/Exhibit Foundation – exhibits are real and demonstrative evid.
1. Steps in laying foundation
a. number exhibit for identification prior to admission
b. show exhibit to opponent, then to witness
c. proponent questions witness to elicit foundational facts to meet 901(a)
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d. proponent asks judge to admit item into evid.
2. R.901(a) – Judge decides if found. facts are “sufficient to support a finding”
that evid. is what proponent says it is.
a. proponent must state what he claims evid. to be AND
i. must be articulate a relevancy theory
b. meet 104(b) standard of supporting claim w/ facts
i. higher degree of certainty than R.401
ii. even if judge admits opponent can submit conflicting evid. to jury
3. R.901(b) – illustrations that meet 901(a) req. (just examples, not exclusive list
b/c 901 is a flexible standard)
a. Real Evid. – tangible items that played some role in litigated event
i. (b)(1) witness who recognizes the item can lay foundation
a. ex. owner of a knife
ii. (b)(4) ID witness recognizes the item b/c of a readily identifiable
characteristic.
a. ex.: label, number, tag, fingerprint
b. if condition of item is as important as its identity then need to show
unchanged condition through chain of custody (two types
i. complete chain of custody – testimony of all ppl. in chain of
custody and testimony that stored in secure place
ii. gaps in chain of custody okay as long jury can reasonable infer
adequate identification and unchanged condition
a. 104(b) standard
b. gaps in chain to to weight of evid. not admissibility
b. Demonstrative exhibits – reproduce or depict persons, object or scenes
connected to the litigation.
i. auth. from witness who made the object or who saw the real thing
a. must testify that fair/accurate/true depiction of what claims to be
ii. relevant only b/c assist jury in understanding the evid. it supports
iii. Special kinds
a. Demonstrations/Experiments in Court
i. must est. the similarity of circumstances b/t the out of court
event and in court presentation (must be sufficiently similar for
fair comparison)
b. Comp. Reenactments/Simulation of Events
i. where predictive – sufficiency/reliability of input data,
underlying technical/scientific principals, accuracy of comp.
operating system
c. Recordings
i. foundation similar to demonstrative evid. – percipient witness was
there at time of recording and recording is accurate
ii. no percipient witness (x-ray) – proof/reliability of recording process
and chain of custody
a. ct.s differ on how complete chain of custody must be
iii. auth. by identifiable internal and production characteristics
d. 403 dangers for Demonstrative/Recordings
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i. unfair prejudice – b/c of immediacy of visual impact if gruesome
ii. misleading – may overestimate prob. value, not close enough to actual
conditions
iii. confusion of issues – jury att’n distracted by dramatic power of exhibit
e. Written Documents
i. authenticate by test. that identifies the author or source of the doc.
a. examples
i. (b)(1) – observation of the act of signing
ii. (b)(2) – familiarity w/ the handwriting
iii. (b)(3) – jury or expert can compare signature on exhibit w/
already auth. doc.
iv. (b)(4) – author identified through doc. contents, circumstances
in which it was found, proof of matching letterhead
ii. Biz Docs – test. about routine practices in generating such records OR
test. of custodian about how biz. filing operates and doc. was retrieved
from certain file in certain way.
iii. Computerized Data Retrieval – auth. same as above AND test. that
comp. retrieval system produces accurate results
iv. (b)(7)Pub. Records – requires witness/custodian test. or cert. of auth.
that record is actually from the pub. office
v. (b)(8)Ancient Docs – if 20+ yrs. old AND in place where would likely
be auth. → admissible as genuine
a. this is type of exception to hearsay
vi. writings by electronic technologies – auth. by analogy to 901(b)
a. ex: emails, internet posting – can use reply function or content to
identify authorship
b. reply ltr doctrine – reply to your authenticated email to a person is
auth. of the recipient’s authorship
i. same goes for phone calls if dial a # and voice says “Angelo’s”
4. R.902 – Docs that are so likely to be authentic based on their appearance or
content that no extrinsic evid. nec. to prove authenticity.
a. Specific rules are straight forward – see the FRE
b. Includes: Public documents/records, official publications, newspapers,
biz. inscriptions, certified docs/records, commercial papers, Cong. Acts
c. Can still be reasons to exclude
D. The Best Evidence Rule
1. R.1002 – The original of any writing/recording is req. to prove its content
a. R. 1001 – definitions are broad
i. writing/recording includes photos, data compilations, mechanical
writing/recording, X-rays, videotapes, and motion pictures
a. also includes drawings (Seiler v. Lucusfilm)
ii. original includes any counterpart intended to have same effect when
executed (carbon copies, negatives, printouts of data in comp., ect.)
b. Rule only applies if evid. has independent legal significance (ex. writing
themselves are the crime, disputes over terms, goes to show notice)
2. R.1003 – Duplicates can be used instead of original unless:
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a. authenticity of dup. disputed, dup. incomplete/defect, or otherwise unfair
3. Exceptions
a. R.1004 – if original lost or in possession of other secondary evid. may be
used to prove content
i. no preference of secondary evid. (ex. witness who perceived doc.)
a. R.1005 – if evid. is pub. record→ preference for cert. copy
ii. proponent has burden to prove reasonable/diligent effort made
b. R.1006 – evid. is admiss. voluminous docs → summary/chart of content
4. R.1008 – Fact finding under Best Evid. Rule
a. Most prelim. questions of fact are for judge under 104(a)
b. Three specific instances which must go to jury if 104(b) standard met
i. whether asserted writing ever existed
ii. whether another writing produced at trial is the original
iii. whether secondary evid. of contents correctly reflects contents
VIII. Judicial Fact Finding
A. R.104 – Divvies up responsibility for deciding preliminary questions
1. R.104(a) – most prelim. questions are for judge to decide by a preponderance
of the evid. (yes/no judge admits or excludes w/out jury notification)
a. In making the determination judge can consider inadmissible evid.
i. ex. hearsay evid.
b. If evid. admitted jury can’t reconsider the issue but opponent can still
admit counter evid. to reduce prob. value/credibility.
2. R.104(b) – if evid. only relevant based on a disputed fact then judge screens
based on whether there is evid. sufficient to support a jury finding (by a
preponderance of the evidence) that fact is true.
a. If proponent proffers sufficient evid. of fulfillment of fact, evid.
conditionally admitted for jury to decide if fact fulfilled
i. This is a lower standard than 104(b) but higher than 401 any tendency
ii. Judge gives jury instruction to only consider the evid. if find fact true
b. Judge may only consider evid. that would be admiss. to jury
c. Judge can admit evid. to jury conditioned upon more evid. coming
d. Examples of relevancy conditioned on finding of fact
i. notice, identification, basis for lay/expert test, whether D culpably
involved in prior act
IX. Opinion Testimony
A. Lay Opinions
1. R. 701 – Lay witnesses can offer opinions if rationally based on their
perceptions and helpful to the jury.
a. Will be excluded if so conclusory that impedes jury province (common
sense test) or not based on sensory perception
2. Rationale – We want testimony to not express conclusions (that is job for
jury) but nearly impossible to testify just to facts w/out stating some sort of
conclusion.
a. ex. “I saw John” v. I saw a person with certain facial features
3. Examples
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a. Admissible conclusions – speed of car, identity of person, appraisal of
state of mind (excited, angry, ect.)
b. Inadmissible conclusion – somebody was drunk, credibility of another
witness, opinion about an ultimate issue in the case
B. Expert Opinions
1. R. 702 Experts can testify as to their opinions if:
a. Opinion based on “scientific, technical or specialized knowledge”
i. Very broad, includes any specialized field (e.g. practices of an
industry, ballistics, finger printing, land appraisal, guard duties)
ii. Two Tests must be passed:
a. The knowledge must be helpful to the jury b/c it is not the type
they would normally have.
i. E.g., wouldn’t include vagaries of witness identification
b. Dauber/Fry Test: the evid must be RELIABLE
i. Factors: testing, peer review, known rates of error, gen’l
acceptance in the field.
iii. Note - Can still be excluded under 403 if the evid. has slight prob. V
b. The expert is qualified in the field they are testifying to
i. Must have the “knowledge, skill, experience, or training” in the field
ii. Does not require formal training or book knowledge
c. These are R. 104(a) questions for judge to decide – test if flexible and
judge should act as gatekeeper (only reviewed for abuse of discretion)
2. Conflict b/t Rules 403 and 705
a. R. 703 Expert may base his opinion on inadmiss. evidence, if it is the type
reasonably relied on by experts in that field if passes reverse 403
balancing.
b. R. 705 Expert may be required to disclose basis for opinion on cross exam
c. Possible Resolutions to concern about jury hearing inadmiss. evid.
i. Don’t let the jury hear the inadmiss. evid?
a. No good b/c contrary to 705
ii. Narrow interpretation of “reasonably relied on” to limit the type of
inadmiss. evid. experts can consider?
a. No good b/c contrary to intent of 703
iii. Anything goes – the two rules act as a big hearsay exception?
a. Kuhns says this is a good option b/c admiss. still limited by 702,
703, 403
iv. Give a limiting instruction
a. Problematic b/c either:
i. Nonsense instruction of telling jury to consider evid. in
evaluating expert but not consider it for its truth OR
ii. Too complex instruction of telling jury consider for its truth in
evaluating expert but ignore for rest of the case
b. But this is the way courts are moving
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