P v. D approach
● Who’s calling the witness
● Who is the witness
○ It’s Chuck
● What is Chuck testifying to
○ He said _____
USE THE FORMAT HE RECOMMENDED – MULTI STEP PROCESS
Character Evidence
1. The rule against propensity reasoning, 404(a)(1)
2. Acts offered for non-propensity purposes, 404(b)
3. Trait as an essential element, 405(a)
4. Exceptions: when criminal D opens the door, 404(a)(2)
5. Methods of proving character, 405(a)
Impeachment
6. Ways to impeach a witness
7. Witness’s character for veracity
a. 608(a): Reputation and opinion
b. 608(b): Limits on extrinsic evidence
c. 609: Prior convictions as evidence of veracity
Hearsay
8. Definition: Offered for the truth of the matter asserted, 801(c)
9. Non-hearsay purposes
10. Exclusions: W’s prior statements; party-opponent statements (admissions), 801(d)
11. General Exceptions, 803
12. Unavailability Exceptions, 804
The Rule Against Character Evidence
FRE 404(a)(1). Evidence of a person’s character or character trait is not admissible to prove that
on a particular occasion the person acted in accordance with the character or trait.
Propensity reasoning not allowed
Character Evidence —> Trait —> (can’t be used to show) Conduct
2020 Accidents —> Carelessness → Acted careless on 1/31/22
Hypo: Plaintiff sues Defendant for negligence after an auto accident on January 31, 2022.
Plaintiff wants to introduce evidence that Defendant was involved in four auto accidents in 2021.
Exceptions to FRE 404(a)(1)
FRE 404(a)(2): Exceptions for a defendant or victim in a criminal case
FRE 404(a)(3): Evidence of a witness’s character for truthfulness or untruthfulness (608, 609)
FRE 404(b): Evidence not offered to prove a trait (e.g., motive, opportunity, intent, preparation,
plan ….)
Except propensity reasoning is allowed under these rules:
FRE 404(a)(2). Exceptions for a Defendant or Victim in a Criminal Case
FRE 404(a)(3). Exceptions for a Witness [FRE 608, 609]
Character Evidence → Trait → Conduct
FRE 608: Prior lies —> Dishonesty → Lying on stand now
FRE 609: Conviction —> Dishonesty → Lying on stand now
The Rule Against Character Evidence
Propensity reasoning is generally not allowed …
Character Evidence —> Trait ✘ Conduct
Except propensity reasoning is allowed under these rules:
• FRE 404(a)(3). Exceptions for a Witness [FRE 608, 609]
• FRE 404(a)(2). Exceptions for a Defendant or Victim in a Criminal Case
Character Evidence —> Trait —> Conduct
Careful driving —> Carefulness —> Careful on 1/31/22
Hypo: D is charged with reckless driving after an auto accident on January 31, 2022. Defendant
wants to introduce evidence that he is a very careful driver. Propensity reasoning is generally
not allowed …
FRE 404(a)(2) Exceptions for a Defendant or Victim in a Criminal Case.
The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence
is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged
victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim was the first aggressor.
FRE 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in
the form of an opinion.
● On cross-examination of the character witness, the court may allow an inquiry into
relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be proved by
relevant specific instances of the person’s conduct.
Hypo: Bus driver suffers psychotic episode and kidnaps one of the children on his bus. The
child’s parents sue the bus company for negligence, alleging that the company should have
known about the driver’s mental illness. Parents seek to introduce evidence of driver’s
prior conduct manifesting psychoses. Admissible?
Psychotic acts —> Unfit for position —> Negligent hiring
The Rule Against Character Evidence
FRE 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in the
form of an opinion. On cross-examination of the character witness, the court may allow an
inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be proved by
relevant specific instances of the person’s conduct.
Character in issue (“essential element of a charge, claim, or defense”) is rare:
1. Negligent entrustment
2. Defamation
3. Entrapment (defense)
Impeachment
1. Bias —> Motive to lie
2. Capacity —> Inability to know/remember
3. Prior Inconsistent Statement —> Inconsistency
4. Contradiction —> Substantive proof
5. Character for veracity —> Propensity to lie (609, 609)
FRE 608(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or
supported by testimony about the witness’s reputation for having a character for truthfulness or
untruthfulness, or by testimony in the form of an opinion about that character. But evidence of
truthful character is admissible only after the witness’s character for truthfulness has been
attacked.
1. Bias —> Motive to lie
2. Capacity —> Inability to know/remember
3. Prior Inconsistent Statement —> Inconsistency
4. Contradiction —> Substantive proof
5. Character for veracity —> Propensity to lie (609, 609)
FRE 608
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character for truthfulness or
untruthfulness, or by testimony in the form of an opinion about that character. But
evidence of truthful character is admissible only after the witness’s character for truthfulness has
been attacked.
(b) Specific Instances of Conduct. … [E]xtrinsic evidence is not admissible to prove
specific instances of a witness’s conduct in order to attack or support the witness’s character for
truthfulness. But the court may, on cross-examination, allow them to be inquired into if
they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2)
another witness whose character the witness being cross-examined has testified about.
● Except for criminal convictions under Rule 609
.
1. Is this a crime of dishonesty or false statement?
If yes, admissible. No discretion. No balancing.
If no …
2. Is this a felony or a misdemeanor?
If misdemeanor, not admissible. No discretion.
If felony …
3. Is the witness the criminal defendant?
If regular witness, admissible subject to 403.
If accused, admissible if probative value outweighs prejudicial effect to the
defendant (Flat 403).
4. But, was the conviction (or release) more than 10 years ago?
● If yes, not admissible… Unless, probative value substantially outweighs prejudicial
effect (Reverse 403).
Hearsay (FRE 801-807)
The Definition, 801(c): An out-of-court-statement offered “to prove the truth of the matter
asserted”
The Rule, 802: Hearsay is inadmissible
Common Non-Hearsay Uses (not offered for the truth)
1. Verbal acts (words with legally operative significance)
2. Impeachment (showing inconsistency)
3. Effect on the hearer (to prove notice, motive, reasonable belief, etc.)
4. Circumstantial evidence of declarant’s state of mind (lies)
Admissible Hearsay
Exclusions: Out-of-court statements that are admissible for their truth
801(d)(1)(A): Declarant-witness’s prior inconsistent statement:
● if under oath at a formal proceeding
801(d)(1)(B): Declarant-witness’s prior consistent statement:
● if offered to rebut a charge of recent fabrication or
● if offered to rehabilitate credibility
801(d)(2): Opposing party’s statements:
● anything you say can be used against you (as well as anything said by your agents or
co-conspirators)
General Exceptions (803):
803(1)
Present Sense Impression (“Look at that …”)
803(2)
Excited Utterance (“Oh, my …!”)
803(3)
Then-existing Mental, Emotional, Or Physical Condition (“I feel …”)
803(4)
Statement Made for Medical Diagnosis/Treatment (“Hey, doc …”)
803(5)
Recorded Recollection (“I wrote it down back then …”)
803(6)
Records of Regularly Conducted Activity (Business Records)
803(7-15)
[Other records of regular activity: public records, church records, family records,
and real property documents (and their absence)]
803(16)
Statements in Ancient Documents (before 1/1/1998)
803(17)
Market Reports And Similar Commercial Publications
803(18)
Statements in Learned Treatises
803(19-21)
Reputation (re: personal/general history, boundaries, or character)
803(22-23)
Judgments (re: convictions, personal/general history, or reputation)
Declarant Unavailable Exceptions (804):
804(b)(1) Former testimony, if:
• formal proceeding
• Under oath
• Similar motive and opportunity to cross
804(b)(2) Dying declaration, if:
• D believes about to die
• Statement about cause of death
• Offered in a in homicide case or a civil case
804(b)(3) Statement against interest
• Only if a reasonable person would say only if true
• Corroboration required in criminal case
804(b)(4) Statement of personal or family history
804(b)(6) Forfeiture by wrongdoing
• If D’s unavailability wrongfully caused with intent to prevent
testimony
Residual Exception (807): Beware Confrontation Clause problems
—
Class #26: Additional Rules
A. Relevance
• Conditional Relevance, 104(b)
• Personal knowledge, 602
• Authentication, 901
• Prejudice, 403
• Limiting Instruction, 105
• Impermissible inferences, 407-411
B. Opinion
• Lay Opinion, 701
• Expert Opinion (reliability), 702
• Bases of expert opinion (hearsay), 703
C. Miscellaneous
• Judicial Notice, 201
• Best Evidence Rule (original documents), 1005
• Rule of Completeness, 106
D. Privileges, 501
Conditional Relevance
FRE 104(b): Relevance that Depends on a Fact. When the relevance of evidence depends
upon whether a fact exists, proof must be introduced sufficient to support a finding that the fact
does exist. The court may admit proposed evidence on the condition that the proof be
introduced later.
Logical Relevance
FRE 401: Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the
action.
Conditional Relevance
FRE 104(b): Relevance that Depends on a Fact. When the relevance of evidence depends
upon whether a fact exists, proof must be introduced sufficient to support a finding that
the fact does exist. The court may admit proposed evidence on the condition that the proof be
introduced later.
Conditional Relevance in Practice: Foundation
• Rule 901
Authentication of exhibits
• Rule 602
Personal knowledge for witnesses
• Rule 404(b) Proof of D’s prior bad acts
Foundation for Witness Testimony
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. Evidence to prove personal knowledge may consist of the witness' own testimony. This
rule does not apply to a witness’s expert testimony under rule 703.
Authentication
FRE 901(a). In General. To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that the item
is what the proponent claims it is.
FRE 901(b). Illustrations.
(1)
Testimony of a witness with knowledge
(2)
Nonexpert opinion about handwriting
(3)
Comparison by an expert witness or the trier of fact
(4)
Distinctive characteristics and the like
(5)
Opinion about a voice
(6)
Evidence about a telephone conversation
(7)
Evidence about public records
(8)
Evidence about ancient documents or data compilations
(9)
Evidence about a process or system
(10) Methods provided by statute or rule
Relevant, But Inadmissible
FRE 403: The court may exclude relevant evidence if its probative value is substantially
outweighed by the danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Fear that jury will use evidence for an improper purpose:
Rule 403 —> Excludes
Rule 105 —-> Instructs
FRE 105. Limiting Evidence that is Not Admissible Against Other Parties or for Other
Purposes. If a court admits evidence that is admissible against party or for a purpose—but not
against another party or for another purpose—the court, on timely request, must restrict the
evidence to its proper scope and instruct the jury accordingly.
Opinion Testimony: Lay Witnesses
The Common Law Rule: Witnesses could testify only about facts; witnesses could not give
opinions.
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.
Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule
does not apply to a witness’s expert testimony under Rule 703.
FRE 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:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.
Opinion Testimony: Expert Witnesses
FRE 702: A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Who can be an expert?
What form can expert testimony take?
What can an expert testify about?
• Helpful opinion
• Sufficient data
• Reliable principles
• Reliably applied
Opinion Testimony: Expert Witnesses
FRE 703: An expert may base an opinion on facts or data in the case that the expert has been
made aware of or personally observed. If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject, they need not
be admissible for the opinion to be admitted. 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.
Judicial Notice
FRE 201(b): Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a
fact that is not subject to reasonable dispute because it: (1) is generally known within the
trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.
Best Evidence: The Original Documents Rule
1002: Original required:
(1) to prove contents
(2) of a writing, recording, or photograph
1003: Duplicate allowed unless:
(1) genuine question re authenticity, or
(2) unfair to allow duplicate
1004: Original not required and other evidence admissible if:
(1) original lost or destroyed (unless
done by proponent in bad faith)
(2) original not obtainable (by process)
(3) opponent has original (and notice)
(4) relates to collateral matters
1007: Party’s written admission or deposition can substitute for original
The Rule of Completeness
FRE 106. Remainder of or Related Writings or Recorded Statements. If a party introduces
all or part of a writing or recorded statement, an adverse party may require the introduction, at
that time, of any other part—or any other writing or recorded statement—that in fairness ought
to be considered at the same time.
• Applies only to writings and recordings
• Option of adverse party
* Required (no discretion for judge)
• Adverse party may interrupt other side’s case
• To introduce more of the document
• If partial introduction is unfair (great discretion for judge)
Privilege
Policy: • Reliability? • Efficiency?
• Promoting socially beneficial relationships by encouraging communication and preserving
harmony
• Attorney-Client
• Spouse-Spouse
• Priest-Penitent
• Psychotherapist-Patient
• Doctor-Patient (New York)
• Social Worker-Client (New York)
• Reporter-Source (New York)
Not:
• Accountant-Client
• Teacher-Student
• Parent-Child
• Siblings
• Long-Term Partners
• Best Friends
Attorney Work Product
Elements
1. Work done “in anticipation of litigation”
a. Ordinary: fact gathering
b. Opinion: conclusions, strategies, mental impressions of lawyers
Exceptions
1. Ordinary: “substantial need and inability to obtain without undue hardship”
2. Opinion: much more than “substantial need” (perhaps absolute)
3. Waiver: Disclosure to adversary
Attorney-Client Privilege
Elements
1. Attorney-Client Relationship
2. Communication
3. Confidential
4. To get legal advice
5. Belongs to client
Exceptions
1. Waiver
• voluntary
Spousal Privilege
Evidence – Class #25
Character Evidence
1. The rule against propensity reasoning, 404(a)(1)
2. Acts offered for non-propensity purposes, 404(b)
3. Trait as an essential element, 405(a)
4. Exceptions: when criminal D opens the door, 404(a)(2)
5. Methods of proving character, 405(a)
Impeachment
6. Ways to impeach a witness
7. Witness’s character for veracity
a. 608(a): Reputation and opinion
b. 608(b): Limits on extrinsic evidence
c. 609: Prior convictions as evidence of veracity
Hearsay
8. Definition: Offered for the truth of the matter asserted, 801(c)
9. Non-hearsay purposes
10. Exclusions: W’s prior statements; party-opponent statements, 801(d)
11. General Exceptions, 803
12. Unavailability Exceptions, 804
Class #26: Additional Rules
A. Relevance
• Conditional Relevance, 104(b)
• Personal knowledge, 602
• Authentication, 901
• Prejudice, 403
• Limiting Instruction, 105
• Impermissible inferences, 407-411
B. Opinion
• Lay Opinion, 701
• Expert Opinion (reliability), 702
• Bases of expert opinion (hearsay), 703
C. Miscellaneous
• Judicial Notice, 201
• Best Evidence Rule (original documents), 1005
• Rule of Completeness, 106
D. Privileges, 501
The Rule Against Character Evidence
PROBABLY NO MC BUT SHORT ANSWER QUESTIONS (two or three sentence hypos)
Epistemological questions
Fairness questions – Evidcen rules are so complex that its almost impossible fo ra pro se litigant
to make it throug a trial
609 impeachment by prior convictions - Is the nature of our legal system taht ppl get rearrested.
Why is it form our legal system that makes it like this. Poverty structural racism provery
substance abuse. Very few criminal defendants testify in their own defense because of rule 609
609 may systematically disadvantage defendants