Evidence
Rule 401- Relevance
 Test:
o Any tendency to make a fact more or less probable (low threshold)
 Logical relevance: “more or less probable”
 Legal relevance: “fact is of consequence”
 Look to substantive law to determine
Rule 403- Excluding relevant evidence for prejudice, etc.
 Objection overrule 401 & 402
 Empowers judge to exclude certain evidence (rarely reversed)
 5 FACTORS
o (1) The extent to which the evidence will arouse emotions or irrational
prejudices among the jurors. (Judges more likely to exclude evidence that
triggers strong emotional reactions)
o (2) The extent to which the jury might over-value the evidence
o (3) The strength of the connection between the evidence and the elements of
the case. (Judges are more likely to admit evidence that is closely related to
essential elements a case, even when that evidence is highly emotional)
o (4) Whether the advocate can prove the same facts through less prejudicial or
confusing means.
o (5) Whether it would be possible to reduce prejudice or other harm from
introducing the evidence. (If the judge can redact prejudicial components of the
evidence or instruct the jury to refrain from improper uses of the evidence, she
will be more likely to admit the evidence)
 Common 403 scenarios:
o Damaging evidence: evidence that strongly supports the position of one party
and damages the other is not “unfair” it’s just persuasive
o Photos and videos: as long as the opposing part has the opportunity to crossexamine the video/photo maker about perspective and editing, and to explain to
the jury how the video/photo might convey an erroneous impression
o Undesirable behavior: parties sometimes attempt to introduce evidence of an
opponent’s unconventional lifestyle, hoping that jurors’ biases will lead them to
view the opponent negatively (even when lifestyle evidence is relevant it may
still be excluded under 403 for unfair prejudice)
o Flight: prosecutors frequently offer evidence of flight from the police to show
consciousness of guilt
 403 Steps:
o (1) Determine whether evidence is probative and material. If yes, presumably
admissible under 402.
o (2) Assess strength of probative value
o (3) Assess strength of any 403 counterweights:
 Unfair prejudice- undue tendency to move the tribunal to decide on an
improper basis (usually emotional)
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Confusing the issue
Misleading the jury
Undue delay
Wasting time
Needlessly presenting cumulative evidence
Cases:
o State v. Bocharski
 Greusome autopsy photos
 Things to consider:
o Size of pictures
o how long the jury gets to view (bring pictures back to
deliberation?)
o black and white or color?

o Old Chief v. US
 Whether admission of prior felony conviction, including
names/circumstance violated 403
 Unfair prejudice: “the capacity of some concededly relevant evidence to
lure the fact finder into declaring guilt on a ground different from proof
specific to the offense charged.”
Rule 104(b)- Conditional Relevance
 The evidence is relevant if a factual predicate is true but not if it is false
 Preponderance of the evidence standard
 Judges Role: to decide whether a reasonable juror could find the contested fact to be
true. If so, the judge admits the evidence. If not, judge does not admit.
 Jury’s role: if the judge admits the evidence, the jury is instructed to disregard it if they
find the contested fact does not exist.
 TEST: Could a reasonable jury infer/find the fact by a preponderance of the evidence?
Rules 407-411- Specialized relevance
 Rule 407- subsequent remedial measures (SRM)
o Creates a perverse incentive for defendants
o Juries may give too much weight to SRD’s
o NOT ADMISSIBLE FOR:
 Negligence
 Culpable conduct
 A defect in a product/design
 A need for warning or instruction
 WHY?: (1) subsequent conduct is not an admission; (2) social policy of
encouraging people to take/not discourage steps in furtherance of added
safety
o MAY BE ADMISSIBLE FOR:
 Impeachment
 Proving ownership/control
 Feasibility of precautionary measures
 Other
 Rule 408- Compromise offers and negotiations (SEE CHART)
o Facilitates settlements/encourages open settlement negotiations
o Avoids prejudice
o (1) Applies to all parties (CIVIL ONLY)
o (2) defines compromise offers and acceptances broadly
o (3) protects all conduct or statements made during compromise negotiations
o LIMITATIONS:
 (1) rule repeatedly uses word “claim”
 (2) requires the parties to “dispute” some aspect of the “claim”
 (3) to invoke rule, statements or conduct must occur during “compromise
negotiations”
 (4) excludes statements and conduct during compromise negotiations
when offered for 3 purposes:
 (1) to prove validity/amount of a claim
 (2) to disprove validity/amount of a claim
 (3) to impeach a witness’s testimony through a prior inconsistent
statement
 ** CANNOT USE TO MAKE PREEXISTING EVIDENCE INADMISSIBLE
 408(a)(2)- EXCEPTION: when offered in a criminal case… (Rule 410)
 408(b)- EXCEPTIONS: proving a witness’s bias/prejudice, negating
contention of undue delay, or providing an effort to obstruct a criminal
investigation or prosecution
 Rule 409- Offers to pay medical and similar expenses
o Encourages settlements, reduce damages
o No need for “claim” or “dispute”
o No protections around statements surrounding offers to pay medical expenses*
 Rule 410- pleas, plea discussions, and relates statements
o Does not exclude evidence of final guilty pleas
o TEST:
 (1) Defendant displayed “an actual subjective expectation to negotiate
a plea;” and
 (2) that expectation was “reasonable given the totality of the objective
circumstances”
 Rule 411- Liability insurance
o Cannot use to prove negligence or “wrongful”
o May use to prove bias, agency, ownership, control
Rule 404- Character Evidence
 Evidence of character is not admissible to prove propensity, meaning proving action in
conformity with the character trait
 Propensity box argument:
made drugs
in the past
to prove bad
person
to prove action
in accordance
therewith

to prove
intended to
make drugs
o Impermissible—must go AROUND propensity box
o Instead: Made drugs in past to prove he was a person who knows about
drugsto prove intended to make drugs
o May also use limiting instruction to make sure the jury uses the evidence
correctly
o Permitted uses under 404(b)(2): KIPPOMIA (see rule)
 “Modus Operandi”- the two crimes must be so distinctive that the inference that
nobody else could have done it overcomes the jury’s temptation to engage in propensity
reasoning
o US v. Tenkler: bomb explosion, trying to say that the defendant’s bomb was like
a previous bomb he built, so this must be the same guy (evidence for prior
knowledge)
 two-part test:
 determine whether the evidence has some special relevance
independent of its tendency simply to show criminal propensity
 if the evidence has special relevance on a material issue, careful
403 analysis
o MO means exactly the same, not just similar
Rule 608- A witness’s character for truthfulness or untruthfulness
 With rule 404(a)(3)
 Only applies after someone becomes a witness
 Applies both to criminal and civil
 *Can only offer evidence that witness is truthful AFTER witness’s character for
truthfulness has been attacked
 Limitations in 608 do not apply to non-character impeachment (608(c) and (d))
 EXAMPLES ON 307 (answer on 309-10)
 Impeaching witness is allowed to provide negative information in one of 2 way:
o Describing the testifying witness’s reputation for truth-telling
o Giving an opinion about the testifying witness’s typical truthfulness
Rule 609- Impeachment by evidence of a criminal conviction
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Permits impeaching a witness or defendant with evidence of a felony conviction, or with
evidence of any conviction involving dishonesty or a false statement, so long as the
conviction is less than 10 years old.
o 2 categories:
 Felony convictions
 Crimen Falsi (see ACN pp. 145)
 Look at statutory elements of crime
o 5 factors for 609(a)(1)(B)
 Nature of crime
 Time of conviction and witnesses subsequent history
 Similarity between past crime and current crime
 Importance of defendant’s testimony
 Centrality of the credibility issue
o Cases:
 US v. Brewer: government has the burden to prove the probative value of
the evidence outweighs a prejudicial effect to defendant (using 5 factors)
o *If the witness is not the accused: conviction of a crime punishable by death or
imprisonment in excess of 1 year shall be admitted (subject to 403)
o *If the witness is the accused: conviction of a crime punishable by death or
imprisonment in excess of 1 year shall be admitted if the court determines that
the probative value of admitting the evidence outweighs its prejudicial effect to
the accused
o *Conviction more than 10 years, not admissible unless the court determines, in
the interest of justice that the probative value of the conviction substantially
outweighs its prejudicial effect
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Rule 607- Who may impeach a witness
 “Any party, including the party that called the witness, may attack the witness’s
credibility”
o Trumps limitation of 608(b)
o Stuck with witness’s answer (cannot prove with extrinsic evidence)
Rules 413-415- Sexual assault/child molestation cases
 Threshold requirements:
o Must be accused of an offense of sexual assault or child molestation
o Court must find the evidence proffered is evidence of the defendant’s
commission of another sexual assault/child molestation
o Evidence must be relevant under 401; and
o Evidence must go through a normal 403 balancing test
 Rule 412- “the rape shield law”
o Character evidence rule about propensity
o Needed so evidence admitted under 404 used for some other purpose still
cannot be admitted
o 412(a)
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Applies to both criminal and civil cases
Applies only to trials “involving alleged sexual misconduct”
Broadly bars evidence of sexual behavior or predisposition regardless of
the purpose for which a litigant offers that evidence
Must disclose the evidence to opposing counsel 14 days before trial (412
hearing, sealed record)
o Case:
 State v. Smith
Rule 406- Habit; Routine practice
 Adds a non-propensity purpose to 404(b)(2)
 “habit” refers to specific repeated responses to a particular situation or stimulus
o Allows proof of habit/routine as evidence that a person/organization acted in
conformity with that habit on a particular occasion
o Ex: how a mechanic changes oil (same steps every time)
 Habit v. Propensity
o The specificity of the conduct
o The distinctiveness of the situation producing the conduct
o The regularity of the conduct
 Halloran v. Virginia Chemicals
o Where the issue involves proof of a deliberate and repetitive practice, a party
should be able, by introducing evidence of such habit or regular usage, to allow
the inference of its persistence, and hence negligence on a particular occasion
o Habit involves more than un-patterned occasional conduct
Hearsay (generally)
 Definition: an out of court statement made to prove the truth of the matter asserted
 All witnesses are declarants, but declarants are witnesses only when they testify under
oath at a trial or hearing
 4 testimonial capacities:
o (1) Perception- declarant may misperceive the condition/event in question
o (2) Memory- declarant might err in calling to mind the event/conditions
o (3) Narration- declarant might misspeak, be misunderstood, not state facts
correctly, etc.
o (4) Sincerity- declarant might shade the truth/falsify
 3 tools to test accuracy:
o (1) Oath
o (2) Personal presence at trial/demeanor
o (3) Cross-examination
 Assertions
o Can be conduct subject to hearsay rules
 Ex: nodding head when asked a question  acting for an audience
 ASK: could this be a lie?
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If acting without an audience, most likely not a lie (we don’t lie to
ourselves, generally)
o Implied assertions
 Based on context
 Ex: “don’t run that stop sign”
 Really means “do you see there is a stop sign ahead?”
 Implied assertions are intentionally communicative and therefore
hearsay
 If it is a necessary link in the chain of inferences, then it is being offered
for the truth of the matter asserted
 *key is whether the declarant intend to communicate her belief
Hearsay Rules
 Rule 801(d)(1)
o 3 types of admissible statements
 (1) Prior inconsistent statement
 (2) Prior consistent statement offered to rebut fabrication OR to
rehabilitate witness’s credibility
 (3) Prior statement that identifies someone the declarant perceived
earlier
 Rule 801(d)(2)- admissions/party opponent statements
o a party’s own statement
o must be offered against a party
o cannot offer own out-of-court statement
 Rule 801(d)(2)(B)- admission by silence
o 4 preconditions:
 (1) that the party against whom the statement is offered, heard the
statement
 (2) that the party could have responded
 (3) that the circumstances naturally called for a response
 (4) the party failed to respond or deny (or responded but didn’t rebut)
 Ex: pp. 411-12, problem 7.13
 Rule 801(d)(2)(E)- coconspirators
o Elements:
 (1) statement
 (2) of coconspirator of a party
 (3) made during the course of the conspiracy
 (4) made in furtherance of the conspiracy
 Rule 804- Unavailable witness
o Declarant’s in-court testimony is unavailable, but we as a society nonetheless
deem the declarants prior statement particularly trustworthy and/or necessary
 Rule 804(b)(1)- former testimony
o From Lloyd v. American Export: “if it appears that in the former suit a party
having a like motive to cross-examine about the same matters as the present
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party would have, was afforded an adequate opportunity for such examination,
the testimony may be received against the present party.”
o Factors for “corroboration”
 (1) timing and circumstances under which the statement was made
 (2) the declarant’s motive in making the statement and whether there
was a reason for the declarant to lie
 (3) whether the declarant repeated the statement and did so
consistently, even under different circumstances
 (4) the party or parties to whom the statement was made
 (5) the relationship between the declarant and the opponent of the
evidence
 (6) the nature and strength of independent evidence relevant to the
conduct in question
o Williamson v. US
 Self-serving statements that tend to shift the blame to another person
are inherently untrustworthy; therefore, they don’t satisfy the rationale
of the rule
 Court needs to look at context
Rule 804(b)(2)- Statements made under belief of imminent death
o Declarant doesn’t have to actually die, just need belief that they are dying
(imminent/inevitable)
o Statement must concern cause or circumstances of death
o Factors:
 Nature/extent of wounds/illness
 Length of time between statements and declarant’s death
 Opinion of medical personal who treated declarant
Rule 803- Hearsay exceptions
o Rule 803(1)- Present sense impressions
 Describing the event as it unfolds
 Only applies to statements describing or explaining the event or
condition
 Limited to statements made during or immediately after (“moments
later”) the event condition
o Rule 803(2)- Excited utterance
 Responding to a startling event
 Limited to the length of time of the excitement (subjective test)
 Applies to statements that “relate to” the startling event or condition
(broader than 803(1))
o Rule 803(3)- then existing mental emotional or physical condition
 No danger of faulty memory or misperception
 Less likely to be insincere
 “state of mind” analysis:
 (1) relevant?
 (2) hearsay?
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(3) meet 803(3)?
o Regardless of availability of declarant
 4 types of internal states:
 (1) emotional
 (2) physical condition
 (3) sensory
 (4) state of mind
 **statements of memory or belief are not admissible when
offered to prove fact remembered or believed
o Rule 803(4)- statements made to obtain medical diagnosis/treatment
 Must be actually seeking medical attention or care (subjective intent)
 Reasonably reliably pertinent to diagnosis or treatment (objective intent)
 Must fall within one of 3 categories:
 (1) medical history
 (2) past or present symptoms/sensations
 (3) their inception/cause
o Rule 803(5)- Recorded recollection
 Rule 611 & 612- refreshing a witness’s memory
 611(c)- allows leading questions
 612- can refresh a witness’s memory with document or another
item
o **must state she doesn’t remember herself then she
must agree seeing a writing would help refresh
 Declarant must be available
 Out of court statement must appear in a record or memorandum
 Made or adopted by the witness
 Memo must accurately reflect knowledge (which means that the witness
must now not be able to vouch for its accuracy in some way)
 Made or adopted by the witness at a time when her knowledge and
memory was fresh
 Must testify that at the time she made or adopted the record, she knew it
was accurate
 Now can’t remember
 Record may be read into evidence but not introduced as an exhibit unless
by the adverse party
 *may use to prove unreliability
 Two-person document rule: When 2 people are involved in creation of
the record (one sees, the other writes) the writing can be admitted as a
recorded recollection if both parties testify as followed:
 Observer: must testify that she once had knowledge and
accurately described the even while fresh in mind, but no longer
remembers

Writer: must testify she heard what was told and accurately wrote
it down.
 *if both so testify, no need to consider whether there is a hearsay
exception for both layers under rule 805 (hearsay within hearsay)
o 803(6)- Business records
 Must have recorded or received by a person with personal knowledge
made at or near the time
 During regularly conducted business activity/routine practice
 Demonstrated by custodian of records (rule 902(11)/(12))
 Must not be untrustworthy
 Parker v. Hoffman: document made in anticipation of litigation
are not made for routine practice
o 803(8)- Public records
 Allows parties to admit public records (any part of government) as
hearsay exception
 Cannot use law enforcement records in adversarial setting
 Ex: police report of father/child abuse in criminal case, but
acceptable in a civil custody case
 “factual finding” includes all facts, opinions, and conclusions
 Lack of trustworthiness factors:
 Timeliness of investigation
 Special skills or experience of the official conducting the
investigation
 Whether a hearing was held by the public agency or prior to the
reporting being made
 Whether the motivation of the public agency is suspect
o Ex: whether the report was made in anticipation of
litigation
 **burden on opponent (104(a))
o Rule 807- Residual hearsay exception
 “near miss problem”
 New rule 12/1/19
 Requirements:
 (1) must not be specifically covered by a hearsay exception in rule
803 or 804
 (2) must be supported by sufficient garuntees of trustworthiness
 (3) must be more probative than any other evidence; and
 (4) must provide reasonable notice
 Factors of trustworthiness:
 (1) totality of circumstances surrounding the statement when
made
 (2) evidence of corroboration
o Ex: under oath, first hand knowledge, recanted?, other
evidence undermines/contradicts, incentive to lie?, etc.
Rule 701- Lay witnesses
 Liberal in admitting simple opinions
 Nothing that seems “expert”
o Ex: “he looked crazy”  OK
o Ex: “he is clearly schizophrenic”  not OK
 Requirements:
o “rationally based on the witness’s perception
 Personal knowledge and a reasonable person could reach
 Cannot be speculative or based on hearsay
o “Helpfulness”
 Additional info conveyed by the lay opinion
 The jurors inability to view the underlying facts and form their own
opinions
 Opinion relates to a central aspect of the case
o “no scientific, technical, or other specialized knowledge”
 Lay witnesses can give opinions based upon their distinctive experiences
 Ex: color of a car vs. valuation of a rare coin
 May draw reasonable inferences from their experiences
Rule 702- Expert testimony
 Judges must determine that both the field of expertise and the experts application of
that knowledge are reliable
 The Frye test:
o “general acceptance”
o Is the expert’s opinion “sufficiently established to have gained general
acceptance in the particular field in which it belongs?”
o Allowed scientists and other experts to set the bounds of reliability within their
fields
 Daubert/Kunho test:
o Reliability factors (PEAT)
 Peer reviewed
 Error rate
 Acceptance
 Testability
o *not exhaustive list
o Applies to all experts not just those based on science
o Shifts the gatekeeping role to judges. The trial judge now decides whether an
expert’s approach is sufficiently reliable to present to the jury
o Daubert hearing:
 (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?
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(3) even if the evidence satisfies these requirements, does the danger of
prejudice, confusion, or misleading the jury substantially outweigh the
probative value?
 *the judge must use rule 104(a)to determine whether the expert is
testifying to scientific, technical, or other specialized knowledge that will
assist the trier of fact in understanding a matter in issue (abuse of
discretion standard of review)
Rule 702- Qualifying an expert
 (1) lay a foundation for witness’s experience
o Can use leading questions
 (2) opponent has an opportunity to “voir dire”
 (3) judge rules on motion to certify the witness
 Case: Jinro: must determine what the expert is qualified to testify about
 Testimony is based on sufficient facts or data (MINOR PREMISE)
 Testimony is the product of reliable principles or methods (MAJOR PREMISE)
 Witness has reliably applied principles and methods to facts of the case (CONCLUSION)
Rule 703- Bases of expert testimony
 An expert may base an opinion on:
o Personal perception of facts or data
o Facts or data made known outside the courtroom before trial
o Facts or data made known at the hearing
 Special powers of an expert:
o Can avoid exclusion under rule 615
o Can certify documents as learned treatises under rule 803(18)
o Can state conclusions
o Do not have to base their opinions on personal knowledge and can rely on wide
range of data
 Hypothetical questions
o May not assume facts that are not in evidence, but may state disputed facts
o Argumentative hypos will be precluded
Rule 705- Expert opinion
 (1) allows an expert to state a bare conclusion
 (2) allows an expert to state an opinion even if it is based on inadmissible evidence
Rule 704- Ultimate issue
 At common law: no ultimate issue opinions
 704(a)- can address an ultimate issue question (not always)
o Judges retain ultimate authority
o Expert testimony can “embrace” ultimate issue but not supplant the role of the
judge or jury
 704(b)- mental state conclusions (insanity mostly)
o Construed very narrowly
o Can say “consistent with” mental state
o No real legal conclusions about mental states