Evidence Outline

Evidence Outline—Fall 2018—Morrison
Trial Procedure
 Examination of witnesses:
Direct—The party who has called a witness engages in direct examination.
Cross-Examination--After the side that called the witness has finished the direct examination, the other
side has the chance to cross-examine the witness.
o Re-direct—The calling side then has an opportunity to conduct re-direct examination of the witness,
limited to rebutting points made on cross-examination.
o Re-cross—The cross-examining side gets a brief opportunity to conduct recross, limited to rebutting the
effect of the re-direct.
Kinds of Evidence
o Direct Evidence: Evidence which, if believed, automatically resolves the issue.
o Circumstantial Evidence: Evidence which, even if believed, does not resolve the issue unless additional
reasoning is used.
 Requires that the jury make an additional inferential step between the evidence and what it is
attempting to prove.
 Relevance questions come up more with circumstantial evidence than for direct evidence.
 The issue becomes whether a particular item of evidence has a logical tendency to
prove the fact sought to be proved.
Conditions for Admitting Evidence
o Only relevant evidence may be admitted. (FRE 402)
o The piece of evidence need not make a material fact more probable than not; it must merely increase
the probability (even by a small amount) that the material fact is so.
Lay Witness—Non-expert
o Must take an oath (FRE 603)
o Must testify from personal knowledge (FRE 602—Need for Personal Knowledge)
 A witness may testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter.
 Sufficient to support a finding means that a reasonable jury could find by a
preponderance of the evidence that the witness has personal knowledge.
 Evidence to prove personal knowledge may consist of witness’s own testimony.
 This rule does not apply to a witness’s expert testimony under R. 703.
o Must preferably state facts rather than opinions.
o Must be competent.
 Rule 601: Every person is competent to be a witness unless these rules provide otherwise.
Expert Witness—
o Opinion is admissible if:
 The opinion relates to scientific, technical or other specialized knowledge;
 The opinion will assist the trier to understand the evidence or determine a fact in issue;
 The testimony is based on sufficient facts or data and is the product of reliable principles and
methods and witness has applied those principles and methods reliably to the facts of the case
o Need not be based on his personal knowledge, it may be based on information supplied by others.
o May be qualified by reason of knowledge, skill, experience, training or otherwise, so formal academic
training is not necessary.
Making Objections—Evidence will not be excluded unless the opponent makes an objection.
o Must be timely—Usually before the witness can answer the question.
o Must be specific enough to explain to the trial judge and the appeals court the basis for it.
 Requires attorneys to designate the portion of a document or witness’s testimony to which they
 If the entire document or testimony is objectionable, the attorney can object to the whole.
Evidence Outline—Fall 2018—Morrison
Rule 103—Rulings on Evidence
 Deals with when a party can appeal evidentiary errors on trial
 Party complaining needs to object and state the specific grounds for the objection.
 Response by the Judge—
o If the judge agrees with an evidentiary objection, she will sustain the objection and exclude the
 If the judge sustains the objection, the proponent must usually make an offer of proof in order
to preserve his right to argue on appeal that the evidence should have been admitted.
 Proponent must make it clear (either by the lawyer’s own explanation of what the evidence
would be, or by questions and answers to the witness outside the jury’s presence) what the
evidence would be.
o If the judge disagrees with the objection, she will overrule it and admit the evidence.
o In the case of written documents, the judge may direct a party to redact portions of the document
violating an evidentiary rule, while admitting the rest of the document.
o The judge may direct attorneys to avoid certain topics or questions in their examination of a witness,
while allowing the witness to testify on other manners.
o If inadmissible evidence has inadvertently reached the jury’s ears, the judge may issue a curative
 This instruction tells the jury to disregard evidence, sometimes explaining why the evidence is
misleading or inappropriate to consider.
 Often done in conjunction with an attorney’s motion to strike the irrelevant portion
Rule 611—Mode and Order of Examining Witnesses and Presenting Evidence
 Court exercises reasonable control over the mode and order of examining witnesses and presenting evidence so
as to:
o Make those procedures effective for determining the truth;
o Avoid wasting time; and
o Protect witnesses from harassment or undue embarrassment.
 Scope of Cross-Examination: Should not go beyond the subject matter of the direct examination and matters
affecting witness’s credibility.
o Court may allow inquiry into additional matters as if on direct examination.
 Leading Questions—Should not be used on direct examination except as necessary to develop the witness’s
o The court should allow leading questions:
 (1) On cross-examination; and
 (2) When a party calls a hostile witness, an adverse party, or a witness identified as an adverse
Rule 104(a) Preliminary Questions
 In general the court must decide any preliminary question about:
o Is this hearsay admissible?
o Does this witness have personal knowledge?
o Is this photograph too inflammatory?
Rule 104(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.
o The court may admit the proposed evidence on the condition that proof be introduced later.
Evidence Outline—Fall 2018—Morrison
Sufficient to support a finding—Could a reasonable jury find enough evidence here by a preponderance
o Slightly more likely than not that something exists
Two ways this can work:
o The foundational evidence comes in first, or
o The evidence itself is admitted first, on the condition that the foundational evidence will come in as
 If the foundation never materializes, judge will instruct jury to disregard.
Rule 105 Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
 Under R. 405, judges can admit evidence for specific, limited purposes.
o The judge usually gives the jury a limiting instruction to explain that the evidence may be used for some
purposes but not for others.
o If evidence is admissible only for limited purposes or against particular parties, and a party requests an
instruction making those limits clear, the judge MUST give that instruction.
 If the court allows evidence that is:
o (a) Admissible against one party but not against another, or
o (b) Admissible for one purpose but not the for another purpose,
AND the opposing party makes a timely request,
Then the court MUST restrict the evidence to its proper scope.
Evidence Outline—Fall 2018—Morrison
Rule 401 Test for Relevant Evidence
 Irrelevant evidence is inadmissible.
 Evidence is relevant if
o (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
o (b) the fact is of consequence in determining the action.
 Relevance = Probativenes + Materiality
o Evidence which makes a fact more or less probable is probative.
o A fact which is of consequence to the issue in dispute is material.
 “Any tendency to make a fact more or less probable”
o An individual piece of evidence can be relevant even if it does not conclusively establish any fact on its
o A piece of evidence is relevant as long as it makes a fact of consequence more or less probably.
 “Fact of consequence”
o The fact itself must be related to the cause of action.
o Successfully attacking or defending evidence under this part of R. 401 requires parties to articulate the
legal principles of the case.
 Rulings on relevance vary from case to case and depend on:
o (1) the legal principles governing the case,
o (2) the disputed facts, and
o (3) the lawyer’s ability to articulate a persuasive connection between the two.
Rule 402 General Admissibility of Relevant Evidence
 All relevant evidence is admissible unless some other rule, statute, or constitutional provision specifically
precludes its admission.
Rule 403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
 Only bars relevant evidence
o Every piece of evidence subject to a 403 analysis will have some bearing on the case.
o If it didn’t have at least minimal relevance, you wouldn’t even get to 403. The evidence would be
excluded under 401-402.
 Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
o Unfair Prejudice
 All evidence is prejudicial in the sense that the party offering the evidence hopes that it will
damage the opposing side. Judges won’t exclude evidence simply because it accomplishes the
job it was intended to do so.
 Unfairly prejudicial evidence lures the fact finder into declaring guilt or liability on a ground
different from proof specific to the offense charge.
 Unfair evidence tempts the jury to decide the case on grounds different from those the law
 Unfair in the sense that it inflames the jury’s passions or otherwise introduces an improper basis
for decision.
o Confusion of the Issues
o Misleading of the Jury; or
 Evidence may mislead or confuse jurors when it injects a tangential issue into the case.
o Considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
 If the probative value and unfair prejudice are evenly balanced, or even if unfair prejudice somewhat outweighs
probative value, the evidence must be admitted.
 Acts as counterbalance to the low threshold for relevance set by R. 401 and 402.
Evidence Outline—Fall 2018—Morrison
Under limited circumstances, R. 403 may allow a criminal defendant to avoid the introduction of damaging
evidence by stipulating to an element of the crime.
Rule 403 Balancing Factors Considered by Judge:
The extent to which the evidence will arouse emotions or irrational prejudices among the jurors.
o Judges are more likely to exclude evidence that triggers emotional reactions.
The extent to which the jury might overvalue the evidence, meaning the extent to which they will take a
piece of evidence which is only slightly relevant and give it undue weight.
The strength of the connection between the evidence and the elements of the case.
o Judges are more likely to admit evidence that is closely related to essential elements of a case even
when that evidence is highly emotional.
Whether the advocate can prove the same facts through less prejudicial or confusing means.
o If alternative routes are available, the judge is less likely to admit the challenged evidence.
Whether it would be possible to reduce prejudice or other harm from introducing the evidence.
o If the judge can redact prejudicial components of the evidence or instruct the jury to refrain from
improper uses of the evidence, he will be more likely to admit the evidence.
Steps in a R. 403 Analysis:
1. Determine probative value of item of evidence (i.e. proper probative value, if evidence can be used only
for a limited purpose.
2. Identify countervailing dangers of prejudice: Here you need some theory about why the evidence should
not be in the case or about how the factfinder could be led astray.
3. Compare the two, paying attention to the substantially outweighs standard.
 If a judge is faced with evidence in which the probative value and the unfair prejudice are
perfectly balanced, the judge should admit the evidence.
Rule 403 cannot rescue evidence that another rule has rejected.
o Operates as a final check on the fairness of admitting the evidence.
o R. 403 is the final net filtering evidence before the judge allows the evidence in the courtroom.
Evidence Outline—Fall 2018—Morrison
Specialized Relevance Rules
R. 407, R. 408, R. 409, and R. 411 only bar evidence if it is offered for a specific purpose, like proving negligence
or liability.
 R. 410 Bars all use of withdrawn pleas or plea discussions except for two specific instances that are listed.
 Even if evidence is not excluded by these rules, the evidence still as to be relevant and pass a 403 balancing test.
Rule 407 Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of
subsequent measures is not admissible to prove:
o Negligence
o Culpable conduct
o A defect in a product or its design, or
o A need for a warning or instruction.
But the court may admit the evidence for another purpose, such as impeachment or if disputed—Proving
ownership, control, or the feasibility of precautionary measures.
The admissibility of this evidence depends on the purpose for which it is offered.
o Must be a disputed issue
o It’s not enough for an attorney to say they’re introducing subsequent remedial measures to show
ownership or control, the other party has to dispute ownership or control in order for those measure to
be introduced.
Evidence of subsequent remedial measures often causes unfair prejudice that substantially outweighs its
probative value.
Allows for evidence of repairs prior to the injury.
Temporal rule—Only bars evidence of subsequent remedial measures, not prior ones.
o The reference point in time that we’re dealing with is the time of the injury.
Evidence Outline—Fall 2018—Morrison
Rule 408 Compromise Offers and Negotiations
Evidence Outline—Fall 2018—Morrison
Applies in both civil and criminal trials
Policy rationale—Ensure that parties are not inhibited from making offers or statements during the settlement
negotiation process.
Bars admission of civil settlement offers, as long as the evidence is offered to show liability.
Protects statements and conduct from negotiations
o Statements or conduct must occur during compromise negotiations or while compromising or
attempting to compromise the claim.
o Restricted to statements made:
 After a claim arises
 During compromise negotiations
 Only when statements are offered for one of three specified purposes.
1. To prove the validity or amount of a claim
2. To disprove that validity or amount
3. To impeach a witness’s testimony through a prior inconsistent statement or contradiction
When does R. 408 apply? –Must be a disputed claim.
o A claim arises either (1) once a complaint has been filed, or (2) once a party has hired an attorney and
threatened to sue.
 Argument about fault does not qualify as a disputed claim even though one or both parties is
likely to sue at this point; hasn’t ripened yet.
 Gray areas arise where you will have to decide whether it is purely a disagreement or whether a
civil suit is likely to develop at this point
 Ordinary business issues do not qualify as a disputed claim, unless words like ‘breach of
contract’ or threats to retain counsel exist as well, at which point the judge will make the
determination of whether a disputed claim exists under R. 104.
 Whether there is a disputed claim is a preliminary question of fact to be decided by the
judge under R. 104.
o Applies to all settlement discussions, even those conducted by parties who are no longer involved in the
 Example 1 : If two plaintiffs sue a defendant, and the defendant settles with one of them, the
remaining plaintiff cannot introduce the settlement as evidence of the defendant’s liability.
 Example 2: If a plaintiff sue several defendants and settles with one of them, she cannot use
that settlement against the other defendants at trial.
When do compromise negotiations occur? A formal settlement conference, where both parties meet for the
express purpose of discussing settlement? almost always qualifies as an attempt to compromise the claim, but
courts often disagree about whether other communications are part of compromise negotiations.
408(a)(2) Criminal Case Exception: Conduct/statement made during compromise negotiations about the claim
are admissible when offered in a criminal case and when the negotiations related to a claim by a public office in
the exercise of regulatory, investigative, or enforcement authority.
Evidence Outline—Fall 2018—Morrison
Only applies when the evidence is used in a criminal case
Only applies to conduct or a statement made during compromise negotiations, not the offer itself.
Typically statements made to government agents.
Example: P meets with an SEC officer to work out a civil-disposition of some questionable trades. If
Ricardo is later criminally prosecuted for insider trading, any statements he made to the SEC officer can
be used against him at that trial.
Factors that judges consider when deciding whether a statement occurred during compromise negotiations:
1. Whether the statement was unilateral or occurred during bilateral discussions;
2. Whether either party made a concrete offer;
3. Whether attorneys were involved in the discussions; and
4. Whether the parties used phrases (like ‘without prejudice’) that are commonly used during settlement
Examples of permissible purposes include:
1. Proving a witness’s bias or prejudice
2. Negating a contention of undue delay
3. Proving an effort to obstruct justice
4. Other, non-specified purposes
 When R. 408 allows introduction of evidence, a judge may still determine under R. 403 that admitting evidence
would cause unfair prejudice substantially outweighing any probative value.
o R. 403 offers an important backup for parties seeking to exclude evidence related to settlement
o R. 403 is particularly important when parties offer settlement evidence for a purpose other than those
prohibited by R. 408.
 Jurors may conclude that the party’s willingness to participate in settlement discussions signaled
a weak claim or that the party’s statements constituted an admission of liability.
 The jury may use statements admitted from settlement discussions to infer liability—one of the
purposes prohibited by R. 408—in addition to using that evidence for the legitimate other
Rule 409 Offers to Pay Medical and Similar Expenses
 Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an
injury is not admissible to prove liability for the injury.
o Statements made at the time of the offer are admissible.
 Only protects promises to pay medical, hospital, or similar expenses resulting from an injury.
o Courts have construed similar expenses to include fees for all kinds of medical treatment and physical
rehabilitation, but the rule does not encompass offers to pay lost wages, repair an automobile, or
compensate an injure party for other types of economic or property damage.
 Bars admission of covered evidence only when offered to prove liability.
o If a party offers evidence of medical payments to prove some other fact of consequence, the evidence is
 Broader and narrower than R. 408
o Broader because it applies in any situation in which an individual or organization pays or agrees to pay
medical expenses.
Evidence Outline—Fall 2018—Morrison
Unlike R. 408, there need not be a claim or a dispute and the statement need not be part of any
compromise negotiation.
o Narrower in that it only excludes the offer to pay or the furnishings of medical expenses.
 Does not exclude any other statements that were made contemporaneously with the offer.
Policy rationale—Advances important business and judicial purposes.
o Business motives include (1) promoting good customer relations, (2) encouraging rapid settlement of
any legal claims that develop, and (3) reducing the extent of damages by treating injuries before they
develop extensive complications.
o A party’s offer to pay medical expenses often has limited value in proving liability, especially given the
business motives for making those payments.
o Congress and the Advisory Committee wanted to encourage parties to pay the medical expenses of
injured parties, not to immunize other statements suggesting fault.
Evidence that is admissible under R. 409 may still be excluded under R. 403.
Rule 411 Liability Insurance
 Evidence that a person was or was not insured against liability is not admissible to prove whether the person
acted negligently or otherwise wrongfully.
o But the court may admit the evidence for another purpose, such as:
 Proving a witness’s bias or prejudice or
 Proving agency, ownership, or control.
 Rule only excludes liability insurance—insurance that compensates the policy holder for specified types of
damages owed other people; car insurance, malpractice insurance
o Health insurance, disability insurance, and life insurance are examples of types of insurance that fall
outside the liability category.
 Injured plaintiffs cannot introduce evidence of the defendant’s liability insurance, hoping that the availability of
insurance will persuade the jury to award a large recovery.
o Nor can defendants escape liability by arguing that they are uninsured and would go bankrupt if forced
to compensate the plaintiff.
 The presence or absence of insurance has very low probative value—ownership of insurance bears little
relationship to liability.
o One could argue that a defendant’s purchase of liability insurance suggests that she is a conscientious
individual who acts carefully in all areas of her life and is therefore less likely to be negligent.
Evidence Outline—Fall 2018—Morrison
Conversely, one could argue that the presence of insurance frees a defendant to act recklessly,
secure in the knowledge that insurance will cover any harm.
o Jurors are likely to respond unfairly to evidence of insurance.
 If jurors believe that a large insurance company will pay the damages, they are likely to increase
the plaintiff’s award.
 Indemnity Agreements—One party agrees to reimburse another party for damages if a specified form of liability
o Scenario 1: One company purchases another; the seller may agree to indemnify the purchaser for
liability arising from conduct that the selling company engaged in prior to the transfer of ownership.
o Scenario 2: When companies agree to reimburse their employees for any liability they incur while
engaged in company business.
Rule 410 Pleas, Discussions, and Related Statements
 Nearly absolute ban on using certain types of criminal evidence except:
o In perjury prosecutions
o If part of the statement has already been introduced, and in fairness they should be considered
 Even though the actual evidence that is protected under rule 410 is evidence that arises out of criminal matters,
its use is prohibited in both civil and criminal cases.
o The evidence
 Policy Rationale—Judicial system has strong interest in encouraging criminal defendants to bargain with
prosecutors and reach plea agreements.
R. 410 (a)—Prohibited Uses
o 410(a)(1)—Withdrawn guilty plea: D pleads guilty and then before sentence, changes his mind and
withdrawals guilty plea.
 Prosecutor has either the choice of taking the case to trial or dismissing the charges.
o 410(a)(2)—Nolo contendere plea: I’m not contesting the charges, I’m not pleading guilty, though you
may sentence me as if I’m guilty.
o 410(a)(3)—Literal court appearance where the defendant enters a plea
o 410(a)(4)—When defendants come in with their lawyer and sit down with the prosecutor in order to try
to negotiate a deal or plea.
 Defendants will come in, discuss things they know, which particularly helps in large scale
conspiracy cases, such as narcotics distribution networks, where they are trying to get a better
deal for themselves in exchange for providing information.
o These are all pleas that did not work out, with the exception of nolo contendere pleas under 410(a)(2).
Only precludes evidence when introduced against the person who, as a criminal defendant, participated in the
plea bargaining process.
The rule prohibits any party from introducing evidence against the defendant who participated in the plea
Evidence Outline—Fall 2018—Morrison
The default position of R. 410 is that the defendant may introduce protected plea-related evidence, but that
other parties may not introduce this type of evidence.
Evidence Protected by Rule 410:
 Rule 410 does not base any exceptions on the purpose for which a party offers evidence
covered by the rule.
o The question, “What is the proponent of this evidence trying to prove?” is
irrelevant to Rule 410.
o Evidence relating to plea bargaining is inadmissible regardless of the purpose for
which it is offered.
 If a party introduces one statement from a plea bargaining session, another party may
introduce additional statements from the same session when fairness requires
consideration of those additional statement.
o Prevents a litigant from creating a misleading impression by introducing selected
parts of a negotiation.
 Employed when necessary to correct a misimpression created by the
selective introduction of statements from a plea discussion.
 The government may introduce some statements otherwise protected by the rule when
necessary to prosecute a defendant for perjury or false statement.
o The defendant must have made a statement (1) under oath, (2) on the record,
and (3) with counsel present.
Evidence Outline—Fall 2018—Morrison
o Applies most often when a defendant appears in court to enter a plea and
responds, under oath, to questions from the judge.
o If the judge rejects the plea or the defendant withdraws it, this final provision of
Rule 410 allows the government to use statements from the in-court examination
to prosecute the defendant for perjury.
 The government may claim that the defendant lied during the plea
bargaining examination, or it may use that statement to show that the
defendant lied under oath on another occasion.
 Plea Discussion—One that occurs with an attorney for the prosecuting authority.
o A formal session convened by the prosecutor specifically to discuss a plea clearly
qualifies as a plea discussion.
o A suspect who volunteers an immediate confession to the arresting police officer
is not engaged in plea discussions, thereby making his statement admissible
under R. 410.
o Majority Two-Tiered Approach—A plea discussion occurs if:
 (1) The defendant displayed an actual subjective expectation to negotiate a
plea and
 (2) That expectation was reasonable given the totality of the objective
 Rule 403 Considerations:
o Although R. 410 only bars plea bargaining evidence that is offered against a
defendant, courts often invoke R. 403 to exclude similar evidence that is offered
against the prosecution.
 Defendants sometimes attempt to introduce evidence of the prosecutor’s
willingness to plea bargain to suggest that the prosecutor considered the
case weak.
 Defendants may attempt to introduce statements that the prosecutor
made during the plea bargain sessions.
o Since prosecutor mays offer to reduce charges during plea negotiations for any
number of reasons unrelated to the defendant’s actual guilt, courts often find
that this evidence (1) has little probative value, (2) might confuse the jury, and (3)
would unfairly prejudice the prosecution in the eyes of jurors who do not fully
understand the plea bargaining process.
o Defendants may also invoke R. 403 when R. 410 fails to exclude evidence offered
against them.
 Under some circumstances, a judge might exclude evidence of statements
made during the process of negotiating a guilty plea that was finalized,
even though R. 410 does not protect statements under those
Evidence Outline—Fall 2018—Morrison
Lay & Expert Witnesses
Rule 701 Opinion Testimony by Lay Witnesses
 If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
o (1) Rationally based on his own perceptions
 Only testify about matters that they have directly perceived
 First-hand familiarity with the surrounding event and conduct
 Used to exclude lay opinions that are speculative or that rest upon hearsay rather than personal
 Examples include qualitative descriptions of distance, size, or brightness, as well as the
expressions on people’s faces.
o (2) Helpful to the fact-finder, and
 Two components:
 (1) That the jurors could not have judged the matter for themselves,
 (2) The witness’s opinion adds information over and above what might have been
conveyed by more fundamental facts.
 A lay witness’s opinion may fulfill this role by capturing nuances that purely factual details lack.
 The whole of a witness’s observation may give the jury more information than a simple sum of
the parts.
 Judges routinely allow lay witnesses to describe individuals as happy, sad, angry, or drunk
because these opinions help the jurors picture the individual’s state.
 The witness’s opinion is not supposed to invade the province of the jury, since the jury are the
ultimate arbiters of what happened.
 Testimony that usurps the jury’s function is not helpful.
Factors in persuading a judge that a lay witness’s testimony will assist the fact finder:
(1) The additional information conveyed by the lay opinion
(2) The juror’s inability to view the underlying facts and form their own opinions.
(3) The opinion related to a central aspect of the case.
* Judges are more likely to admit lay opinions that illuminate a key issue than ones related
to a more tangential matter.
*If a lay opinion does not meet these criteria, courts may exclude it as unhelpful.
(3) Not based on scientific, technical, or other specialized knowledge.
 Opinions based on everyday observations and experience.
 Judges allow lay witnesses to give opinions based upon their distinctive experiences, as long as
those events don’t reflect specialized training.
 Does not prevent lay witnesses from using unusual, unique, or distinctive experiences to
support their opinions.
 Lay witnesses may draw reasonable inferences from their experience, but they must use a
process of reasoning familiar in everyday life.
 Lay witnesses cannot invoke a process of reasoning which can be mastered only by specialists.
 Courts have readily allowed opinions from:
 Homeowners testifying about the value of their own land
 Franchise managers estimating the amount of profits lost from breach of the franchise
 Eyewitnesses who observed that a defendant was drunk.
 Experienced narcotics trafficker assessing the quality of cocaine
Laying the Foundation—A trial lawyer must establish that the witness has personal knowledge of both the
opinion and the facts it draws upon.
Evidence Outline—Fall 2018—Morrison
Experts giving lay opinions—The rules allow any witness with personal knowledge of an event to give a lay
opinion related to that event.
o A party may ask a highly qualified witness to give a lay opinion, rather than follow the special rules for
qualifying a witness as an expert, when they want to avoid disclosing the expert testimony before trial.
o If the expert’s testimony is sufficiently non-technical, the party may choose to have the expert testify as
a lay witness.
o Even though a person’s position and experience could qualify them for expert witness status, that does
not mean that any testimony that person gives at trial is considered expert testimony.
Rule 702—Testimony by Expert Witnesses
The law places five demands on expert testimony:
o Proper qualifications—An expert is a witness who offers scientific, technical, or other specialized
o Proper topic—The expert’s testimony must concern a topic beyond the ken of the jurors. The expert
may not simply tell the jurors what result to reach in the case.
o Sufficient factual basis for opinion
o Relevant and reliable methods—Expert’s testimony must be the product of reliable principles and
methods reliably applied to the facts of the case.
o Evidence must survive 403 weighing test
“Help the trier of the fact”
o A party may not offer an expert opinion, no matter how valid the underlying science, if the expert’s
perspective doesn’t fit the facts of the case.
 Fit requirement is stricter than mere relevance
o Courts don’t want parties to distract the jury with complex scientific testimony that relates to a
tangential issue.
o Before admitting an expert’s testimony, the judge must decide whether the subject matter of the
testimony is sufficiently removed from the common experience that the expert opinion will be helpful to
the jury.
 Testifies to something beyond the kin to the trier of fact
 Special knowledge or skill could add precision or depth of understanding that would be helpful
to the trier of fact.
R. 702 imposes two reliability hurdles that all expert testimony must surmount:
o (1) The testimony must be the product of reliable principles and methods, and
o (2) The witness must have reliably applied the principles and methods to the facts of the case.
Reliable Principles—A party must be able to point to the principles and methods underlying an expert’s
testimony, and those principles and methods must satisfy Daubert’s reliability test.
Additional Factors
Evidence Outline—Fall 2018—Morrison
Whether the expert developed an idiosyncratic approach specifically for the litigated controversy or as
part of a broader program of research
Engagement in independent research
Attempting to publish their work
Daubert Test—Factors Judges Consider In Determining Whether Used
Testimony is Reliable:
1. Whether the theory or technique has been tested
2. Whether it has been subject to peer review and publication
3. The technique’s error rate
4. The existence of standards controlling the technique’s application
5. Whether the theory or technique has been generally accepted in the relevant
scientific community.
Daubert vs. Frye Test:
o Daubert holds that general acceptance is not a precondition to admissibility of scientific evidence under
 Trial judge’s task is to ensure that the expert’s testimony both:
(1) Rests on a reliable foundation and
(2) Is relevant to the task at hand.
 Pertinent evidence based on scientifically valid principles will satisfy those demands.
o Daubert differs from Frye because the Court ruled that general acceptance no longer controls
admissibility; it is merely one factor that the trial judge may consider.
 Judges may consider any factor useful in determining the scientific validity—and thus the
evidentiary relevance and reliability—of the principles that underlie proposed expert testimony.
 Court argued that the adoption of FRE 702 reflected a loosening of the Frye standard.
o Frye rule allowed scientists and other experts to set the bounds of reliability within their fields.
 Courts admitted expert testimony based on whether the expert’s approach had gained general
acceptance within the field.
o Daubert shifted the gatekeeping role to judges—The trial judge now decides whether an expert’s
approach is sufficiently reliable to present to the jury.
 Trial court’s gatekeeping will be reviewed for abuse of discretion.
Does the evidence fit?
o Judges often allow parties to present lay evidence that bears only tangentially on a dispute.
 Greater risks arise if the minimally relevant evidence come from experts.
 The jury may believe that a complex professional opinion resolves a key factual dispute,
when the opinion relates only to a minor subpoint.
 The jurors may have difficulty understanding that an expert opinion is relevant only if
they first find that a predicate exists.
 For these reasons, judges exercise more control over the “fit” between expert evidence
and the facts in a case.
o Fit requirement often leads courts to reject expert evidence related to causation.
Rule 403 Considerations:
o Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.
o Because of this risk, the judge in weighing possible prejudice against probative force under R. 403 of the
present rules exercises more control over experts than over lay witnesses.
o Rule 403 forms the third step in a 3-part analysis that many courts undertake when assessing expert
Evidence Outline—Fall 2018—Morrison
Parties may also raise questions about a particular expert’s qualifications, the basis of the
expert’s testimony, and whether the expert has offered an opinion that is too conclusive.
Three-part analysis used when assessing expert evidence:
1. Is the evidence reliable, both in its underlying principles and its application to the case?
2. Does the evidence fit the case and help the trier of fact?
3. Even if the evidence satisfies these requirements, does the danger of unfair prejudice, confusion, or
misleading the jury substantially outweigh the probative value?
The criteria that a court considers when assessing reliability may vary depending on the type of expert evidence
as issue.
o It may be appropriate to apply one or two of the Daubert factors to a non-scientific expert.
o Witnesses that draw upon technical or other specialized knowledge often develop their insights without
publication, peer-review, or controlled studies.
 Accountants testifying about business practices
 Auto mechanics explaining car repairs
 Farmers describing cultivation
o Under circumstances where the Daubert factors offer no help at all, the trial judge must determine
other methods of assessing reliability, looking to the particular field of expertise.
Introducing or challenging expert testimony under R. 702 requires very fact-specific arguments.
o Trial attorneys must probe the methods used by their experts, as well as those of the opponent.
o Understanding the expert’s method, its relation to methods used by other experts in the field, and
application of the technique to the disputed facts allows the attorney to craft arguments that will
persuade the trial judge.
Standard: Preponderance of the evidence
Evidence Outline—Fall 2018—Morrison
Qualifying an Expert
 Typically done pre-trial, which enables to describe their qualifications briefly before the jury.
 Even if the judge approves an expert technique, or the technique is so well established that an
opponent doesn’t challenge it, a party must still find a witness to bring that information to court.A
witness must in fact be qualified before offering evidence about scientific, technical, or other
specialized knowledge.
 The witness may establish her qualifications by pointing to a number of different factors:
o Knowledge
o Skill
o Experience
o Training
o Education
 Three Stage Process:
Evidence Outline—Fall 2018—Morrison
o Laying a Foundation—Attorney who called the expert lays a foundation for the witness’s
expertise by asking questions about the witness’s credentials and qualifications.
 The attorney may use leading questions to do this, even though the questions occur
during direct examination, because the attorney is eliciting uncontested background
information about pedigree.
 After the attorney has laid the foundation, she will move that the judge certify the
witness as an expert.
o Voir Dire by Opposing Counsel—Opposing counsel has a chance to ask the witness questions in
order to test his credentials.
 Rather than allowing the witness to proceed directly from a recitation of her credentials
to her substantive testimony, opposing counsel will show the jury the gaps I the
witness’s expertise.
 Cross-examination can more readily expose the flaws in an individual’s training than it
can reveal problems in the theoretical underpinnings of an entire scientific field.
 After voir-dire, opposing counsel decides whether to object to the witness’s certification
as an expert.
o The judge then rules on the motion to certify the witness.
 The parties may shorten this three-step process by stipulating that the witness is an
Expert Need Not Have Formal Education or Training, given a large number of fields do not lend
themselves to formal schooling or training.
o Witnesses may qualify in these abstract areas because of their independently developed
knowledge, skills, or experience.
o Expert witnesses on business practices often obtain specialized knowledge through their work
in the field, apprenticeships, hands-on-training, or years on a job.
o With experts who base their knowledge on experience or informal training, R. 702’s fit
requirement assumes special importance.
 An expert witness’s qualifications must match the testimony she offers.
Rule 703 Bases of an Expert’s Opinion Testimony
The expert need not confine his testimony to matters he personally observed.
o “Perceived by” the expert = first-hand observations
o “Made known to” the expert = second-hand information (facts reported to the expert, hearsay, etc.)
o Experts may base opinions on facts they have been made aware of.
o The expert may learn these facts by reviewing data before trial or by listening to other witnesses during
the trial itself.
 If the expert relies upon facts gathered before trial, those facts may include inadmissible
Evidence Outline—Fall 2018—Morrison
An expert witness may offer an opinion bases on inadmissible evidence, but only if experts in that field
reasonably rely upon that type of information.
o But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose
them to the jury only if their probative value in helping the jury evaluate the opinion substantially
outweighs their prejudicial effect.
 An expert may not disclose inadmissible evidence to the jury.
 Reverse of Rule 403—Requires a strong showing of probative value (or of minimal prejudice) to
support disclosure.
 Only takes into consideration the probative value of the evidence in helping the jury evaluate
the expert’s opinion.
Another way for an expert to base an opinion on facts learned at trial is for the expert to testify in response to a
hypothetical question.
o The examining attorney will formulate a hypothetical that summarizes the relevant evidence offered in
the case.
o The attorney will then ask the expert to give an opinion assuming that all of those facts are true.
Reasonable Reliance Standard:
o Experts in the witness’s field must in fact rely upon the type of evidence that the expert used.
o That reliance must be reasonable.
o A judge may reject an expert’s opinion because it relies upon data that seems untrustworthy and
because the data fail to comply with standards observed by other experts.
If we have evidence in which the probative value is exactly as strong as its prejudicial effect, R. 403would allow
in the evidence, but 703 would.
o R. 403 is tilted towards admission.
o In R. 403, the evidence come in unless the prejudicial effect is much bigger than the probative value.
o In R. 703, the presumption is that the evidence will be excluded unless the probative value is much
bigger than the risk of prejudice.
Rule 705 Disclosing the Facts or Data Underlying an Expert’s Opinion
 An expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or
o An expert may state a bare conclusion, such as that the plaintiff “will never walk again,” or than a
confiscated substance is “high quality cocaine”
 Primary value of R. 705 is that an expert may state a conclusion first, capturing and focusing the jury’s attention.
o The witness may then explain the data that produced this conclusion.
 Recognizes that an opposing party may want to reveal otherwise inadmissible evidence supporting an expert’s
o The expert’s underlying facts may be unreliable or speculative; if so, the party calling the expert may not
want to reveal the underlying facts.
o In such a case, the opposing party may want to force the expert to reveal the data.
 On cross-examination, the expert may be required to disclose those facts or data.
Evidence Outline—Fall 2018—Morrison
When an expert does base an opinion on trial testimony, the expert must clarify what parts of the testimony
support her opinion.
o If the witnesses offered conflicting testimony, the expert must identify the version of the facts she is
using as the basis of her opinion.
o If an expert discounts the testimony of a witness, she should reveal that fact.
Rule 704 Opinion on Ultimate Issue
 704-(a)—General Rule: An opinion is not objectionable just because it embraces an ultimate issue.
o An ultimate issue
o It isn’t the final question that determines the entire case (e.g. the defendant is guilty, or the plaintiff was
contributorily negligent)
o One of the important inferences a jury must make in order to decide the case.
o Examples:
 Whether death was caused by a gunshot wound
 Whether the substance found was really cocaine
 Whether the accident caused the paralysis
o An expert’s opinion may bear on an ultimate issue (the getaway car was a Honda Civic, the victim was
killed by a blunt instrument, these ingredients are used to make meth) unless it tells the jury what result
to reach (e.g., the defendant is guilty).
 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.
 Judges still reject testimony that threatens to supplant the judge’s power to declare the law, the jury’s authority
to apply the law to the facts, or the jury’s task of resolving credibility.
 Although 704 allows witnesses to testify about ultimate issues, most judges prefer witnesses to avoid legal
terms like “negligent” or “guilty beyond a reasonable doubt”.
o These phrases threaten to usurp the judge’s authority to articulate the legal standards governing the
case, exceed the witness’s expertise, and confuse the jury.
Evidence Outline—Fall 2018—Morrison
Character Evidence
Rule 404(a)(1) Character Evidence Not Admissible to Prove Propensity
 Evidence of a person’s character or character trait is, in general, not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait.
o Example: In a civil suit from an auto accident, P cannot show that D has the general character trait of
carelessness, or even that D is a generally careless driver, to suggest that D probably acted carelessly in
the particular accident under litigation.
 A person’s general character, or his particular character trait, is admissible if it is an essential element of the
o Example: P says that D has libeled him by calling him a liar. D may introduce evidence of P’s character for
untruthfulness, since that character trait is an essential element of D’s defense that his statement was
 When character is directly in issue, all three types of character advice are admissible.
o (1) Specific Acts—Neighbor recounts how Fred punched someone.
o (2) Witness’s Opinion—“I’ve known Fred a long time, and I think he’s an aggressive, violent person”
o (3) Subject’s Reputation—“Everyone in town knows that Fred is an agressibe, violent guy”
 Doesn’t bar a particular type of evidence, but bars a particular line of proof.
o Character evidence is inadmissible to prove that the person acted in accordance with that character on a
particular occasion, usually the one at issue in a trial.
Evidence Outline—Fall 2018—Morrison
Rule 404(b) Crimes, Wrongs, or Other Acts
Evidence Outline—Fall 2018—Morrison
The prosecutor may not introduce evidence of other crimes committed by D for the purpose of proving
that because D is a person of criminal character, he probably committed the crime which he is charged.
Evidence Outline—Fall 2018—Morrison
o Nor may the prosecutor show D’s prior bad acts that didn’t lead to convictions for this purpose
Other crimes or bad acts by D may be admitted if this is done not to show D’s general criminal
disposition, but to establish circumstantially some elements of crime charged, such as proving:
o Motive –Why a person might have committed the crime at issue
o Opportunity—The fact that they have had access to the scene or the location where the ligated
act took place.
o Intent: Other crimes may be used to prove that D had the particular intent required for the
crime charged, which is generally done to rebut D’s contention that he did the act charged
innocently or unknowingly.
o Preparation/Plan—Refers to component units of a larger whole, not simply the same crime
done many times over.
o Knowledge
o Identity—Other crimes may be used to show that D was really the perpetrator, if he disputes
this. The prosecution may be allowed to show that D committed other crimes, and that the
other crimes and the crime charged are part of a common plan or scheme.
 Modus Operandi: If the perpetrator’s identity is in doubt, proof that D has committed
prior crimes that are so similar in method that they constitute his “signature” and this
identify him as the perpetrator of the crime charged, may be proved.
 Modus operandi can really only be used when a crime is so specific that it could
have only been done by one person.
o Absence of Mistake
o Lack of Accident
The other crimes need not have led to a conviction.
Most courts will not automatically exclude evidence of other crimes merely because of an acquittal.
Even when other crimes by D circumstantially establish an element of the present charge, the judge
must still balance probative value against prejudice, and must exclude if the latter substantially
outweighs the former.
Not necessarily bad acts or acts that took place prior to the trial.
Standard: The standard under which the judge must find the other act occurred is preponderance of
the evidence.
Evidence Outline—Fall 2018—Morrison
Exceptions to the Ban on Character Evidence
Rules 404(a)(2) Exceptions for a Defendant or Victim in a Criminal Case
Evidence Outline—Fall 2018—Morrison
Rule 405 Methods of Proving Character
Reputation evidence and the character witness’s own opinion as to D’s good character is allowed.
o May be proved by relevant specific instances on direct
o Character is an essential element of a charge, claim or defense typically only in the following
 Entrapment
 Libel
 Parental fitness hearings
o What is at stake in those situations is the existence of the character trait, not whether a party
acted in accordance with that trait.
Evidence Outline—Fall 2018—Morrison
Evidence Outline—Fall 2018—Morrison
Evidence of Character in Sexual Offense Cases
No time limitation, no limitation on
Can be considered for any purpose, including a character inference
All have disclosure requirements—duty to let defendant know
Does not have to be a conviction—any type of evidence that is proved by a preponderance
Rule 413 Similar Crimes in Sexual Assault Cases
Rule 414 Similar Crimes in Child Molestation Cases
Evidence Outline—Fall 2018—Morrison
Rule 415 Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
Rule 412 Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition
Evidence Outline—Fall 2018—Morrison
Rule 406 Habit; Routine Practice
Habit evidence can be used to prove that a person acted in accordance with their habit, given habit
evidence is more predictive and less likely to be
o Regardless of whether it is corroborated
Typically a set response to a specific situation
o Usually morally neutral
o Semi-automatic—Putting keys in a bowl by the door, fastening your seat-belt before driving,
checking that back door is locked
In order to show habit, the behavior must be nearly invariable, specific, and frequently repeated.
o Describes one’s regular response to a repeated specific situation.
o Person’s regular practice of meeting a particular kind of situation with a specific type of
o Character is a person’s tendency to act prudently in all the varying situations in life, in business,
in family life, in driving, and in walking across the treat.
 Character is a generalized description of one’s disposition.
Rule 404(a)(3) Character Evidence: Exceptions for a Witness
Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
Evidence Outline—Fall 2018—Morrison
Testimonial Capacities:
 Perception—The witness didn’t see what happened, or couldn’t hear clearly.
 Memory—Witness doesn’t remember all the details
 Narration—Witness has given the jury the wrong impression.
 Sincerity:
o Show that the witness is lying now, because they have a reason to lie in this
particular, or
o The witness is a big, fat liar.
Rule 607 Who May Impeach a Witness
Evidence Outline—Fall 2018—Morrison
 Any party, including the party that called the witness, may attack the witness’s
 A
Rule 608 A Witness’s Character for Truthfulness or Untruthfulness
608(b)—Specific instances of untruthful conduct may only be inquired into on crossexamination.
Evidence Outline—Fall 2018—Morrison
Rule 613 Witness’s Prior Statement
Prior inconsistent statement is only allowed for impeachment and not substantively
Evidence Outline—Fall 2018—Morrison
Rule 609 Impeachment by Evidence of a Criminal
 The probative value of the conviction for impeachment purposes must substantially
outweigh its prejudicial effect.
Evidence Outline—Fall 2018—Morrison
Questions to ask:
o What is the evidence being offered to prove?
o Are we concerned about the declarant’s sincerity?
o Did the declarant intend to communicate the matter sought to be proved by the statement?
 Non-Hearsay:
o Non-assertive words
o Words offered to prove something other than what they assert
o Assertions offered as circumstantial proof of knowledge.
Rule 802 The Rule Against Hearsay
 Hearsay is not admissible except as provided by theses rules or by other rules prescribed by the
Supreme Court pursuant to statutory authority or by Act of Congress.
Rule 801(a)-(c) Definitions
 Nothing is an assertion unless the declarant intended to communicate something to someone.
 Statement—A person’s oral assertion, written assertion, or non-verbal conduct, if the person intended
it as an assertion.
 Declarant—Person who made the statement
 Hearsay is an (1) out-of-court statement (2) offered in evidence by a litigant (3) to prove the truth of
the matter asserted by the declarant.
Admissible Hearsay
Evidence Outline—Fall 2018—Morrison
Exceptions to Hearsay
Rule 803:
 Rule 803(1) Present Sense Impression
 Rule 803(2) Excited Utterance
 Rule 803(3) Statements of Then-Existing Condition
 Rule 803(4) Statements for the Purpose of Medical Diagnosis
 Rule 803(5) Recorded Recollection
o Rule 612 Writing Used to Refresh a Witness’s Memory
 Rule 803(6) Business Records
 Rule 803(8) Public Records
 Rules 803(7), (10), (16)-(18)
Rule 804:
 Rule 804(a) Unavailability
 Rule 804(b)(1) Former Testimony
 804(b)(2) Dying Declarations
 804(b)(3) Statement Against Interest
 804(b)(6) Statement Offered against a Party that Wrongfully Caused Declarant’s Unavailability
Rule 805 Hearsay Within Hearsay:
 Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.
Rule 807. Residual Exception
(a) In General. Under the following circumstances, a hearsay statement is not
excluded by the rule against hearsay even if the statement is not specifically covered by
a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of
(b) Notice. The statement is admissible only if, before the trial or hearing, the
proponent gives an adverse party reasonable notice of the intent to offer the statement
and its particulars, including the declarant’s name and address, so that the party has a
fair opportunity to meet it.
Evidence Outline—Fall 2018—Morrison
Sixth Amendment—Confrontation Clause: Confrontation of Hearsay Declarants
 "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses
against him.”
 Applies only to criminal trials, and with respect to witnesses against the defendant.
 The right has three components:
o The right to be present when a witness testifies against a criminal defendant
o The right to be in the view of the witness
o The right to cross-examine the witness
 When the prosecution offers hearsay evidence against a criminal defendant, there are two questions
that must be addressed:
o First, does the evidence fall within an exemption or exception to the hearsay rule?
o Second, would the admission of the evidence violate the Confrontation Clause?
 Where the prosecution introduces an out of court statement for a purpose other than
proving the truth of the assertions in the statement, the Confrontation Clause is not
 Business records made for ordinary business purposes do not implicate the
Confrontation Clause.
 [Crawford v. Washington]—An out of court testimonial statement may be used against the accused on
in the declarant is either
o Available for cross-examination; OR
o Proved to be unavailable and the testimonial statement was previously subject to crossexamination by the accused.
o Testimonial statements are those made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later trial.
 The testimonial character of a statement can be based either on the circumstances
apparent to the declarant (the formality of the setting, the fact that the audience
included police or court officials, etc…) or the involvement of the government in eliciting
the statement even if not apparent to the declarant.
 Examples of testimonial statements: Testimony at a preliminary hearing, grand jury
testimony, testimony at a former trial, police interrogations where the primary purpose
of the interrogation is to establish or prove events potentially relevant to later criminal
prosecution, affidavits prepared for trial, forensic reports that are made for use in
criminal proceedings.
 The more formal, the more likely the statement is testimonial
o Non-testimonial statements receive no constitutional protection, and their use in criminal cases
is checked only by the hearsay rule.
 Statements that indicate its primary purpose was to enable police assistance to meet an
ongoing emergency.
 [Michigan v. Bryant]: To determine the primary purpose of a statement made by a victim at the scene
of a criminal investigation, the court should examine the police’s perspective and the surrounding
circumstances, in addition to the victim’s perspective.
o The mere fact that an encounter was informal does not render it nontestimonial.
 [Ohio v. Clark]: Statements made for the purpose of getting help, rather than to get the accused in
trouble, are non-testimonial.
Evidence Outline—Fall 2018—Morrison
Forfeiture by Wrongdoing—The accused forfeits confrontation right if he purposefully procures the
absence of the declarant through criminal or other wrongful conduct.
o To fall within the forfeiture doctrine, the Accused must intend to prevent the witness from
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