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EVIDENCE OUTLINE FALL 2019: GARLAND
PRELIMINARY QUESTIONS AFFECTING ADMISSIBILITY
FRE104—Preliminary Questions
 (a) In General—The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound
by evidence rules, except those on privilege. (The admissibility of evidence is determined solely
and exclusively by the judge)
 (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. The
court may admit the proposed evidence on the condition that the proof be introduced later.
o Conditional relevancy- probative value depends upon satisfying basic req. of relevancy &
upon the existence of some matter of fact. (If a letter purporting to be from Y is relied upon
to establish an admission by him, it has no probative value unless Y wrote or authorized it).
 = PRELIMINARY FACT QUESTION FOR JURY
 Ex: love letter- only relevant if D wrote it
 (c) Conducting Hearings So the Jury Cannot Hear—The court must conduct any hearing on a
preliminary question so that the jury cannot hear it if:
o The hearing involves the admissibility of a confession;
o A defendant in a criminal case is a witness and so requests; or
o Justice so requires
 (d) Cross-Examining a Defendant in a Criminal Case—By testifying on a preliminary
question, a defendant in a criminal case does not become subject to cross-examination on other
issues in the case.
 (e) Evidence Relevant to Weight and Credibility—This rule does not limit a party’s right to
introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
OVERVIEW (104)
 Preliminary Fact Definition: fact that must be proved to qualify an evidential item for admission.
 Preliminary Fact-Finding Steps:
1. Identify proffered evidence
2. Identify the preliminary facts that condition the admissibility of the proffered evidence
3. Characterize each preliminary fact as one conditioning either the relevance (104(b)) or
privilege, qualification, or admissibility (104(a)).
 If Conditional104(b)
 If Privilege, qualification, or admissibility104(a)
 104(b)
o Trial judge decides whether the evidence in the record is sufficient to sustain a finding that
the preliminary fact exists. (i.e. whether a reasonable jury could find that the fact exists)
o Jury determines whether the preliminary fact exists
o Judge ONLY decides whether there is sufficient evidence to support a jury finding- whether
a reasonable jury could believe that the evidence is what it purports to be by a
preponderance of evidence.
o Proponent of evidence has the BOP (by a preponderance of evidence- whether civil or
criminal trial) on the question of the existence of a foundational fact & judge can give
instruction as to that & that if the proponent did not meet the burden of proof → jury must
ignore the piece of evidence.
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BUT if the fact is a foundational & ultimate consequential fact that is an essential
element of the charged offense  if criminal case 
 Judge must admit if finds preliminary fact by a preponderance of evidence
 BUT the jury must find the fact by beyond a reasonable doubt (the measure
of the ultimate BOP (burden of proof)).
o EXAMPLES of 104(b) Issues:
 Question of accused’s identity as the perpetrator of an uncharged act proffered
under 404(b)
 Whether W has personal knowledge under 602
 Whether an exhibit or other evidence is authentic under 901.
o Even if court finds sufficient foundation to admit evidence under 104(b), opponent can
offer rebutting evidence
104(a)
o Trial judge decides, as a trier of fact, whether the preliminary fact exists
o If preliminary fact exists & coincides w/ a fact on the merits, trial judge allows jury to
resolve the factual issue independently
o ANALYSIS
 Standard- judge must determine the evidence is relevant by a preponderance of
evidence for the jury to hear the evidence (proponent has BOP)
o EXAMPLES OF 104(a) Issues:
 Proof of W’s membership in same community to prove good character w/
reputation, or familiarity to give witness opinion under 404 and 405.
 Whether there was a controversy at the time under 408 or plea discussions under
410.
 Whether a W is an expert.
 Whether a fact exists for a hearsay exception applies
 (a)
803(b)(2) whether the declarant believed death was impending
 (b)
804(b) whether declarant is unavailable
 Examples of NOT 104(a) or (b) issues
 Deciding whether evidence is unduly prejudicial under 403 = legal question
 Whether a “genuine question exists as to the authenticity of the original”
under the BER (best evidence rule)
RELEVANCE
RULE STATEMENT: Relevancy is a relationship between an item of evidence and the proposition it sets
forth to prove. If an item of evidence tends to prove or disprove any proposition, it is relevant to that
proposition. Whether the immediate or ultimate proposition is properly provable in the case (materiality)
is determined by the pleadings; the procedural rules applicable; or the substantive law governing the case.
FRE402
 RULE: Relevant evidence is admissible unless any of the following provides otherwise:
o The United States Constitution;
o A federal statute;
o These rule; or
o Other rules prescribed by the Supreme Court
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RULE: Irrelevant evidence is not admissible.
RULE: Not all relevant evidence is admissible.
FRE401—Test for Relevancy
 RULE: 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.
Relevancy exists only as a relation between an item of evidence and a matter properly provable in
the case such that the evidence has a tendency to make a fact more or less probable. The standard
is one of admissibility, not sufficiency. Therefore the evidence does not need to prove the case at
issue, but lay a brick in the wall.
o Any Tendency: Suggests that even slight tendency is enough. Exception is that not able to
use character evidence to prove motive to commit a crime b/c test is any tendency & can
prove that’s logically probative
o Fact or Consequence – issue of the case; relevance is a relationship & what is the evidence
offered to prove. Defined by substantive law & the pleadings. Need not be in dispute.
Relevance is not affected by the availability of alternative proofs, however may become
inadmissible under 403 for waste of time or undue prejudice.
o More or Less Probable: this is a rule of admissibility; doesn’t have to prove the case in its
entirety – just has to make the case more or less probable to assist in proving the case.
o Does adding this piece of evidence tip the scale even slightly? Y → logically relevant.
Knapp v. State: (p83) May evidence be admitted of the falsity of a story that a witness testifies that he
heard? D claims that an old man was beaten to death by the victim and that he killed the victim as selfdefense and that D feared him... Prosecution and that offers evidence that the old man died because of
alcoholism and senility, not by being beaten death....The issue was not whether what D heard was true or
false, but whether D had heard the story...by showing there was no basis in what D said has a tendency to
make it less probable that D’s testimony was true. Evidence is admissible if it is relevant in that it tends to
prove or disprove any consequential matter in a case. The fact that the story Knapp claims he heard about
the victim is not true tends to disprove Knapp’s claim that he actually heard the story, which in turn tends
to disprove his claim of self-defense.
RELEVANCY ANALYSIS
1. What is the evidence?
a. Take each piece of evidence item by item. Make a list and determine whether it is a statement,
document, or a piece of physical evidence.
b. Examples: Is the evidence physical? (Knife); is it demonstrative? (Model); is it an observation
by a witness?
2. What is the evidence offered to prove? (Element and/or identity)
a. This requires knowledge of the elements of substantive law pertaining to criminal and civil
actions. Some element of the crime or civil cause of action, or some defense to either is always
the ultimate object of the evidentiary offer. However, one usually seeks to prove some
intermediate proposition leading to an element of the case.
3. Does the evidence help to prove that for which it is offered?
a. (a) Does the evidence offered tend to make it more or less likely that some assertion of fact
at issue in the case is really true;
i. Logical relevance means evidence having any tendency to make the existence of a
fact that is of consequence to the determination of the action more probable or less
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probable than it would be without the evidence. Evidence is logically relevant if it
makes the fact of consequence more likely or less likely
b. (b) How does the evidence tend to do so?
i. Unless the premise is articulated, one cannot focus on why the evidence has some
tendency to prove or disprove the fact for which it is offered.
ii. Show how the evidence helps prove the point.
1. Ex: Deductive - One who has a fixed design to kill is more likely to kill. D had a
fixed design to kill V; therefore D probably killed V
4. Is the evidence, though logically relevant, inadmissible because it is unduly unfair?
a. Even though logically relevant, evidence nevertheless may be excluded if to admit it would
entail risks which range all the way from inducing decision on a purely emotional basis, at
one extreme, to nothing more harmful than merely wasting time, at the other extreme.
b. If the probative value of the relevant evidence is substantially outweighed by the danger of
unfair prejudice, it will be excluded.
c. Refer to analysis below
EXCLUDING RELEVANT EVIDENCE
FRE403 Probative Value v. Prejudicial Effect
 RULE: The court may exclude relevant evidence if its probative value is substantially outweighed by
a danger of one or more of the following:
o Unfair prejudice;
 Unfair prejudice is an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one. In reaching a decision whether
to exclude on grounds of unfair prejudice, consideration should be given to the
probable effectiveness or lack of effectiveness of a limiting instruction.
o Confusing the issues;
o Misleading the jury;
o Undue delay;
o Wasting time; or
o Needlessly presenting cumulative evidence
FRE403 Analysis
 Under 104(a), the judge conducts the balancing test.
 Requires the trial judge to take account of the full evidentiary context of the case at the time of
ruling.
 If there is a danger of unfair prejudice, the judge must evaluate the degrees of probative value and
unfair prejudice, and exclude the evidence if warranted (and possibly accept a less prejudicial
substitute)
 Judge must make these calculations with an appreciation of the offering party’s need for
evidentiary richness and narrative integrity in presenting a case.
o Just because two pieces of evidence might go to the same point would not mean that only
one of them might come in.
o Stipulations: The general rule is that a party may prove her case with any otherwise
admissible evidence, and may not be forced to accept a stipulation. The exception to this is
when the issue on which the disputed evidence is offered is an issue that could not benefit
from any evidentiary richness.
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Two examples:
 D offers to stipulate that he was a felon – this is accepted b/c cannot offer
anymore evidence for evidentiary richness. He either is or is not a felon.
 D offers to stipulate that he was speeding to keep gory pictures of the accident
out of evidence – this is rejected b/c P’s need for evidentiary richness is
satisfied by letting in the pictures
Judge CANNOT consider credibility of evidence when deciding probative value b/c that’s the jury’s
decision → must assume that the evidence is believed.
o Judge can consider credibility ONLY IF he finds NO reasonable juror could find the evidence
is credible- 104.
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CHARACTER EVIDENCE
DEFINITION: Character evidence is evidence of a person’s disposition or propensity to engage or not
engage in certain types of behavior.
 EX: Honesty/Dishonesty; drunkenness/temperance; peacefulness/violence; reckessless/care
 Character evidence rule prohibits propensity- one who has a taste for a particular behavior is
more likely to perform that behavior again.
FRE404 (a)—Evidence of a character trait is not admissible to prove action in conformity therewith on a
particular occasion, except:
 (1) Character of the Accused (“The Mercy Rule”) –evidence of a pertinent character trait can be
offered by:
o An accused
o Prosecution to rebut the same (if the accused opens the door first)
o If victim’s character trait is offered under 402(a)(2), prosecution can offer the evidence of
the same trait against the accused.
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(2) Character of alleged victim—evidence of pertinent character traits of the alleged victim can
be offered by:
o An accused
o Prosecution to rebut the same
o Evidence of peaceful character trait offered by the prosecution in a homicide case to rebut
evidence that the alleged victim was the first aggressor.

(3) Character of Witness—evidence of the character of a witness, as provided in rules 607, 608,
and 609.
o FRE607—any party, including the party who called the witness, may attack the witness’s
credibility.
o FRE608-- 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.
o FRE609-- Except for a criminal conviction under Rule 609, extrinsic 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
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of: (1) the witness; or (2) another witness whose character the witness being crossexamined has testified about.
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4th Exception (not listed in 404(a)): Character in sex offense, sexual assault, and child molestation
cases (FRE 413-415)
FRE404 (b)—Other Crimes, Wrongs, or Acts for Purposes Other Than Character (Not a character evidence
rule)
 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may be admissible for other purposes, such as:
motive, opportunity, intent, preparation/planning, knowledge, identity (modus operandi), or
absence of mistake/accident. (Subject to 403 analysis) [DISCUSS FRE105 limited admissibility—
admissible for one purpose, not admissible for another; this may play into the 403 analysis].
o Motive
 Can show to prove (1) identity; or (2) malice when specific intent is required.
 Exception to rape shield laws: If D can show that the victim had a motive to fabricate
the rape, then the evidence of prior sexual relations can be admitted.
o Opportunity
 Access or presence at the scene of the crime
 Possession of distinctive or unusual skills such as were employed in the commission
of the crime.
o Intent
 To show, without considering motive, that D acted with malice, deliberations, or the
requisite specific intent but only if intent is disputed, otherwise it is irrelevant.
 Example:
 Evidence that D had possessed two stolen credit cards for 10 months
admissible to prove that he intended to keep a planted silver dollar taken from
the mail rather than to return it to postal authorities as he claimed. The
reasoning: Because D has unlawful intent in the extrinsic offense, it is less
likely that he had lawful intent in the present offense
o Preparation/Planning
 To prove the existence of a larger plan, scheme, or conspiracy. CEC requires evidence
of a specific plan.
o Knowledge
 To show that the act in question was not performed inadvertently, involuntarily, or
without guilty knowledge. Propensity reasoning is only banned with respect to
conduct, not with respect to state of mind.
 Similarities between the charged and the extrinsic offense need not be extensive or
part of a unified plan.
o Identity (Modus Operandi)
 Indisputably one of the ultimate purposes, identity, in itself, should not be a ticket to
admission
 Identity is an inference that flows from one or more of the other theories of
admissibility:
 Plan
 Motive
 Modus Operandi-- the similarity between the other-act and the crime charged
is so striking that the same person probably committed both offenses.
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o To prove other crimes by D so nearly identical in method as to earmark
them as the handiwork of the D
o Pattern and characteristics of the crimes must be so unusual and
distinctive as to be like a signature.
o Absence of Mistake/Accident (Doctrine of Chances)
 To show, by similar acts or incidents, that the act in question was not performed
inadvertently, accidentally, or involuntarily.
 Used to prove that the chances of the accident happening more than once is very high
or that D is either guilty or the unluckiest person in the history of innocent
bystanders.
 Proving prior crimes or acts is sometimes used as a way to rebut a claim by D that the
charged crime was an accident or mistake (Brides of Bath – D had claimed that several
of his wives had “drowned” in the bath tub).
 What are the chances of the accident happening more than once?
o Other Uses Not Listed in 404(b)
 To complete the story of the crime—on trial by placing it in the context of nearby and
nearly contemporaneous happenings.
 Propensity for abnormal sexual relations – to show a passion or propensity for
unusual and abnormal sexual relations. See FRE 413-415 (this is now character use
and not other purposes use).
 Prior acquitted crimes – may be admitted under Rule 404(b) without violating double
jeopardy or due process
 Also applies to subsequent acts
o 404(b) Does Not List Pattern as an Exception:
 Patterns of acts may show identity, intent, plan, absence of mistake of one of the other
listed grounds, but a pattern is not itself a reason to admit the evidence
Character Evidence Arises in two different ways:
 Character in Issue: When character is an element of the crime, claim or defense.
o Examples:
 The chastity of a victim under a statute specifying her chastity as an element of the
crime of seduction
 Competency of the driver in an action for N entrusting a motor vehicle to an
incompetent driver
 Defamation, wrongful death
o General relevancy not an issue; only question is to the allowable methods of proof under
Rule 405.
 Circumstantial (prohibited use): Character evidence is susceptible of being used for the purpose
of suggesting an inference that the person acted on the occasion in question consistently with his
character:
o Examples:
 Evidence of a violent disposition to prove that the person was the aggressor
 Evidence of honesty to disprove a charge of theft
o Raises questions of relevancy as well as questions of allowable proof under Rule 405.
FRE405: Methods of Proving Character
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(a) Reputation or Opinion:
o In cases where character evidence is admissible, proof may be made by:
 Testimony as to reputation
 Must show witness has basis for knowing person’s reputation in the pertinent
community.
 Testimony in the form of an opinion
 Must show witness knows person well enough.
o Specific instances of conduct may be explored as proof on cross-examination.
(b) Specific Instances of Conduct:
o Specific instances of conduct may also be used as proof where a person’s character/character
trait is an essential element of a charge, claim, or defense
FRE406: Habit; Routine Evidence
 Evidence of the habit of a person or of the routine practice of an organization, whether corroborated
or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the
person or organization on a particular occasion was in conformity with the habit or routine practice.
 Character v. Habit
o Character is a generalized description of one’s disposition, or of one’s disposition in respect
to a general trait, such as honesty, temperance, or peacefulness.
o Habit must be SPECIFIC. A habit is the person’s regular practice of meeting a particular kind
of situation with a specific type of conduct, such as the habit of going down a particular
stairway two stairs at a time (almost an automatic response).
 RULE: Evidence of a repetitive pattern of specific behavior—habit—may be introduced if relevant.
Prior Sexual Conduct
Two ways for prior sexual conduct to be admissible (which would otherwise be banned propensity
evidence):
1) Rape Shield Laws
a. Generally prohibit reputation and sexual behavior evidence to show unchaste character for
inference of consent but do allow prior sexual behavior under some exceptions.
FRE: Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior
Evidence generally inadmissible – The following evidence is not admissible in any civil or
criminal proceeding involving alleged sexual misconduct:
 (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior
 (2) Evidence offered to prove any alleged victim’s sexual predisposition.
Exceptions:
 Criminal Cases: The court may admit the following evidence in a criminal case:
o Evidence of a prior sexual act with the accused, if offered to prove consent;
o Evidence of specific instances of a victim’s sexual behavior, if offered to prove
that someone other than the defendant was the source of semen, injury, or other
physical evidence; and
o Evidence whose exclusion would violate the defendant’s constitutional rights of
presenting a defense and the confrontation clause.
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Civil Cases: The court may admit evidence offered to prove a victim’s sexual behavior
or sexual predisposition if its probative value substantially outweighs the danger of
harm to any victim and of unfair prejudice to any party. The court may admit evidence
of a victim’s reputation only if the victim has placed it in controversy.
FRE413: Similar Crimes in Sexual Assault Cases
In a criminal case in which a defendant is accused of a sexual assault, the court may admit
evidence that the defendant committed any other sexual assault. The evidence may be
considered on any matter to which it is relevant.
 Court must first determine that there was sexual assault (touching done intentionally
w/o consent).
FRE414: Similar Crimes in Child Molestation Cases
In a criminal case in which the defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other child molestation. The evidence may be
considered on any matter to which it is relevant.
 Child means below 14.
FRE415: Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
In a civil case involving a claim for relief based on a party’s alleged sexual assault or child
molestation, the court may admit evidence that the party committed any other sexual assault or
child molestation.
2) Motive
a. If D can show that the victim had a motive to fabricate the rape, then the evidence of prior
sexual relations can be admitted.
b. Evidence of prior sexual relations can be admitted to show possible motive for fabricating
complaint or to show other behavior closely similar to behavior on occasion in question.
OTHER POLICY BASED RELEVANCE RULES
SIMILAR HAPPENINGS
 RULE: In a negligence action, evidence of other similar accidents or occurrences may be relevant
circumstantially to show a defective or dangerous condition, notice thereof, or causation on the
occasion in question.
 RULE: The judge must determine whether there is a substantial similarity in the operative
circumstances between the proffer and the case at bar and whether the evidence is probative on a
material issue in the case. The judge must then determine whether the probative value is
outweighed by the prejudicial effect.
 Preliminary Fact Determination by Jury
o Whether the circumstances between the proffer and the case at bar were substantially
similar.
SUBSEQUENT REMEDIAL MEASURES—FRE407 [DISCUSS 105—limited admissibility]
 RULE: When, after an injury or harm allegedly caused by an event measures are taken that, if taken
previously, would have made the injury or harm less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence, culpable conduct, a defect in the product’s
design, or a need for a warning or instruction.
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EXCEPTIONS
o Evidence of subsequent remedial measures can be admitted when offered for another
purpose such as:
 Proving ownership, if controverted
 Control, if controverted
 Feasibility of precautionary measures, if controverted
 Impeachment
FEASABILITY
o Narrow Concept
 D has not put it in issue unless D contends the measure is not “physically,
technologically, or economically possible”
o Broad Concept
 “More than that which is merely possible, but includes that which is capable of being
utilized successfully”
CEC § 1151: Same as FRE 407 except no exceptions
OFFERS IN COMPROMISE FRE408 [DISCUSS FRE105 limited admissibility]
 RULE: Settlement offers and agreements are not admissible.
o Promotes settlements and compromises.
 FRE408
o Evidence of conduct or a statement made during compromise negotiations about the claim
is not admissible.
 However, just because material is provided during compromise negotiations, it is not
necessarily w/in the rule.
 The rule “does not require the exclusion of any otherwise discoverable
material merely because it is presented in the course of compromise
negotiations. Hence, as long as evidence is independently discoverable, the
rule does not immunize it for trial.
o Cannot use this rule for Impeachment purposes
o A demand for payment is not an offer. For the letter to be a compromise and fall under the
rule, it must contain language of settlement.
 EXCEPTIONS
o When the evidence is offered for another purpose, such as: (1) proving a witness’s bias or
prejudice, (2) negating a contention of undue delay; or (3) proving an effort to obstruct a
criminal investigation or prosecution.
o In re (1)—this is the example of P1 and P2 suing D. D settles with P2 then calls P2 as witness.
P1 can call the settlement into trial to show P2 is biased.
OFFERS TO PAY MEDICAL AND SIMILAR EXPENSES FRE409 [DISCUSS limited admissibility]
 RULE: Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury.
o Statements accompanying the offer are not within the exclusionary effect of the rule.
 Hence, statements admitting fault are not excluded by the rule.
Admissions made during offer to pay → are not protected under FRE 409, only the offers to pay
Admissions made during settlement → are protected under FRE 408
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WITHDRAWN GUILTY PLEAS FRE410
 Prohibits from entering into evidence a withdrawn guilty plea. This also includes statements that
went into the guilty plea.
 Prohibited Uses: In a civil or criminal case, evidence of the following is not admissible against the
defendant who made the plea or participated in plea discussions:
o A guilty plea that was later withdrawn
o A no contest plea
o A statement about either of those pleas made during a proceeding under federal rule of
criminal procedure 11 or a comparable state procedure; or
o A statement made during plea discussions with an attorney for the prosecuting authority if
the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty
plea.
 If the parties were negotiating and D or his counsel said something that indicated
guilty, then the negotiations broke down, the prosecutor can’t bring that into
evidence at trial.
 Exceptions: The court may admit a statement descried in 410(a)(3) or (4):
o In any proceeding in which another statement made during the same plea or plea discussions
has been introduced, if in fairness both statements ought to be considered together; or
o In a criminal proceeding for perjury or false statement, if the defendant made the statement
under oath, on the record, and in the presence of counsel.
 Under Mezzanato, a D can waive the protections of FRE410, at least with respect to introduction of
statements covered by the rule offered against a D to impeach.
LIABILITY INSURANCE FRE411 [DISCUSS limited admissibility if used for other purpose]
 RULE: Prohibits the admission of evidence that a person was or was not insured against the issue
of liability.
o This rule does not require the exclusion of evidence of insurance against liability when
offered for another purpose, such as proof of agency, ownership, control, or bias or prejudice
of a witness.
HEARSAY
FRE801: Hearsay Definition
 A statement, other than one made by the declarant while testifying at trial or hearing (basically,
out of court statements and not statements made while in court testifying), offered in evidence to
prove the truth of the matter asserted.
FRE802: The Rule Against Hearsay
 Hearsay is not admissible except as provided by these rules or by other rules prescribed by the
Supreme Court pursuant to statutory authority or by Act of Congress.
The judge, under 104(a), decides questions of admissibility.
ANALYSIS
Step 1: Is the evidence a statement?
 Nonot hearsay and admissible
 Yes go to next step.
 RULE: A statement is an oral or written assertion, or nonverbal conduct of a person, if either is
intended as an assertion. Nothing is an assertion unless intended to be one.
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o Determine whether the declarant intended to make an assertion.
 Verbal: If a person speaks in words, it can scarcely be doubted that an assertion
made in words is intended by the declarant to be an assertion.
 Non-assertive Verbal Conduct: Some forms of speech are not assertive on their
face. These could be viewed as not an assertion.
 Questions - “Why did you do that?” This is a question but can serve as an
assertion that the declarant believed the other person did something.
 Commands/orders of directions
 Nonverbal Conduct: Can be assertive and non-assertive
 Assertive nonverbal conduct – some nonverbal conduct, such as the act of
pointing to identify a suspect in a lineup, is clearly the equivalent of words,
assertive in nature, and to be regarded as a statement.
 Non-assertive nonverbal conduct – implied hearsay - Because an actor’s
belief is implied, the drafter’s say that as long as it was not the intent of the
actor to assert that belief, it is not a statement and not hearsay
 Silence: Usually not intended to be an assertion and not hearsay (ex. Passengers on
train were silent so offered to prove that their silence indicated no complaints about
temperature).
 Non-human conduct: not considered a statement, and not hearsay. [Exam tip: Was
a human behind that message? If a human was behind the message, then might be
hearsay, i.e. a sign.]
Step 2: Is the evidence offered for the truth of the matter asserted?
 Nonot hearsay and admissible
 Yesgo to next step
OTMA
 A statement may be logically relevant in two ways:
o (1) The mere fact that it was made, or heard, by a particular person, regardless of its
truth or falsity, may tend to establish an ultimate fact in the case;
 This is NOT HEARSAY and NOTMA.
 Examples:
o Statement of an offer in contract. The statement (whether declarant
intended to really offer) need not be true to be probative, only
whether the statement was made (fits objective theory of contract
law).
o “I am the pope” – not hearsay because not offered for the truth of
whether she is the pope but whether she believed she was the pope
and therefore delusional.
o (2) The statement may be relevant only if the statement is true.
 If the statement is relevant under alternative (2), then it is hearsay, and admissible
only if it fits within an exemption or exception to the exclusionary rule of hearsay
(this is OTMA)
 Example
o “I believe I am the pope” – is hearsay because it is offered for the
truth of the matter asserted that she believed she was the pope and
was therefore delusional.
NOTMA
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Operative Legal Fact
o An operative legal fact is one that creates or extinguishes a legal right, claim, or defense.
 Because the utterance in itself is an element of the cause of action, charge, or
defense, it is relevant merely because the words were uttered (or written).
o Where words themselves have legal significance apart from their truth, the fact of
independent probativeness renders them non-hearsay.
 EX: Gunman threatens/demands cash from V.
 Utterances establish a forced taking, supporting robbery
 EX: P agrees to sell and D to buy, striking bargain.
 Utterances form contract, supporting claim for breach.
o “Under the law of______________, this utterance creates/extinguishes a legal right, claim, or
defense.”
State of Mind of the Auditor/Hearer
o This is used to prove what the hearer perceived.
o EX: statements tending to show notice, knowledge, motive, or good-faith belief
o RULE: When evidence is offered for the effect upon the person who hears it, it is not
offered for the truth of the matter asserted, but is relevant merely because it is uttered.
 EX: Being put on notice or having knowledge, showing motive, or showing how the
information that one possessed had a bearing on the reasonableness, good faith or
voluntariness of that person’s subsequent conduct.
 EX: Wife runs to husband and says Victor raped her. Husband runs and shoots Victor
and is now on trial. Evidence is his wife’s statement. Evidence not offered for the
truth of her statement but for one who hears a statement who reasonably and
honestly believes is provoked to kill. Not offered to prove Victor raped the wife but
offered to show provocation.
 Effect on the hearer. Terrorist case. The guy thought he was going to die. Not offered
to prove what the terrorists said, but the effect it had on the hearer.
State of Mind of Declarant (Non-Assertive)
o The use of a declarant’s statement by circumstantial reasoning to prove the then existing
state of mind of the declarant.
o The statement would have to be one where the declarant does not directly assert the state
of mind that the proponent is trying to prove.
 Ex: “Joe threatened to kill me,” offered to prove that the declarant is afraid of Joe.
o Demonstrates the intent of the actor/declarant.
o If direct assertion, then hearsay. If indirect, then just shows state of mind of declarant.
State of Mind—Knowledge of Declarant (Traces of the Mind Theory)
o This is offered to show that the statement gave the witness certain knowledge that they
would not have had without the statement.
o The evidence is offered to show the impression that some alleged external reality made
upon the mind of the declarant, to prove that the declarant perceived or experienced the
external reality.
o A person having peculiar knowledge (little girl makes statement to mother concerning
details of D’s home) could only have obtained that knowledge by contact with an external
reality giving the person that knowledge (she was in his home and this was the only way
she could know what the house looked like). Thus, having the knowledge supports the
conclusion that the declarant in fact had contact with that external reality.
NOTMA BECAUSE—Relevant merely b/c uttered
o Relevant merely b/c uttered & not OLF or one of the 3 SOM
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o Brown: NOT OK to have IRS agent testify to 160 tax returns that  falsified b/c  can’t cross
examine the people whom the IRS agent spoke to & IRS agent didn’t bring in the records so
 could ask about them. Dissent: IRS agent got the information through his own efforts &
shouldn’t have to bring in the people.
o Estate of Murdock (made up case, 1983): Will contest & when plane crashed, not known who
died 1st & sheriff testified that man said “I’m alive” is OK b/c mere fact he spoke shows
alive, not admitted for OTMA that actually alive
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CONFRONTATION CLAUSE AS A BARRIER
RULE: The confrontation clause applies in criminal cases and provides that the accused must have
the opportunity to face his/her accuser in court. Under the Crawford Test, any testimonial
statement offered against an accused is only admissible (1) if the accused has the right to crossexamine at trial the person making the statement; or (2) had a prior opportunity to cross-examine
that declarant and the declarant is shown to be unavailable.
o Crawford Test
 (1) To any testimony given at a formal proceeding;
 (2) To any statement made to police or other government personnel during
interrogation; and
 (3) May include any statement made under circumstances where an objective
witness reasonably believes that the statement would be available for use at a later
trial.
o Crawford Expanded—Ongoing Emergency Doctrine
 Statements are nontestimonial when made in the course of police interrogation under
circumstances indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.
 They are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.
o Forfeiture by Wrongdoing
 For forfeiture of the confrontation rights to apply, the trial court must find that the
purpose of the D to act was to prevent the witness from testifying.
Step 3: Even though the statement is hearsay and OTMA, it may still be admissible under one of the
exemptions or exceptions to the rule against hearsay.
EXEMPTIONS FROM THE HEARSAY RULE
FRE801(d)(1) Prior Statement by Witness
 A statement is not hearsay if the declarant testifies at trial or hearing and is subject to crossexamination about the prior statement, and the statement is:
o Inconsistent with the declarant’s testimony and was given under oath subject to penalty of
perjury at trial, hearing, or other proceeding, or in deposition, or
o Is consistent with the declarant’s testimony and is offered to rebut express or implied
charge against declarant of recent fabrication or improper influence or motive.
o One that identifies a person as someone the declarant perceived earlier.
 Prior ID need not be soon after incident—a photo display/line-up ID weeks after is
just as admissible as ID at scene.
 Prior ID can be admitted at trial by the witness or by testimony of witness 2 (PO)
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LIMIT: Witness with prior ID must testify in court and be subject to crossexamination on the statement.
Testimony about the prior ID will be admissible even though the witness is not able
to make the ID in court.
If the W cannot remember, or denies having made the out-of-court ID, another
witness can testify to the prior ID.
CEC requires witness to testify that the ID “Was a true reflection of his opinion at the
time”
FRE801(d)(2) Opposing Party Statements
 Statements offered against an opposing party are exempt from the hearsay rule if the statement:
o Was made by the party in an individual or representative capacity;
 The statement does not have to be against interest
 The statement can be an opinion
 The declarant need not have personal knowledge
o Is one the party manifested that it adopted or believed to be true; (admission by silence
included)
 The jury must determine that someone made a statement outside of court that
accused the defendant of the crime or tended to connect the defendant with the
commission of the crime, and the defendant did not deny it, the jury must decide
whether each of the following is true:
 The statement was made to the defendant or made in his presence
 The defendant heard and understood the statement
 The defendant would, under all the circumstances, naturally have denied the
truth of the statement.
 Judge makes initial determination whether there is sufficient evidence to support
finding.
 Jury makes ultimate decision on the preliminary facts, usually without any
instruction.
 In order for an admission to constitute an admission by silence, it must (1) be made
in the presence of the accused, and (2) the accused must remain silent.
o Was made by a person whom the party authorized to make the statement on the subject;
 Must have specific authority. If no specific authority determine whether employee
w/in scope of employment.
o Was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed; or
 No authority to speak, but within scope of agency/employment.
 FACTORS FOR AGENCY
 The agent must have (1) power to alter relationships between the principal
and third parties; (2) a fiduciary duty toward the principal; and (3) the right
of the principal to control the agent’s conduct.
o Was made by the party’s coconspirator during and in furtherance of the conspiracy.
 PRELIMINARY FACTS
 There was a conspiracy
 The defendant and declarant were parties to the conspiracy
 Statement was made in furtherance of the conspiracy
 Statement was made in the pendency of the conspiracy.
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Statements not made in furtherance of the conspiracy will be excluded as idle
chatter.
 Prior statements of conspirators are admissible against the new member.
The statement must be considered but does not by itself establish the declarant’s authority under
(C); the existence or scope of the relationship under (D); or the existence of the conspiracy or
participation in it under (E).
NOCTURNAL ADMISSIONS
o Admissible, as it may be argued that the utterances made were non-assertive.
FALSE EXCULPATORY STATEMENTS
o When evidence of D’s exculpatory statements are contradicted, the jury (1) must decide if
the exculpatory statement were untrue and that D made them voluntarily and with
knowledge of their falsity; and (2) may consider the statement as circumstantial evidence
of D’s consciousness of his own guilt.
BOOTSTRAPPING
o Whether a judge can use the contents of the hearsay statement in determining the
applicability of the evidence.
 Bootstrapping is not part of the FRE
 Total Bootstrapping is using the contested evidence on its own to determine
admissibility.
 Partial bootstrapping is looking at other non-contested evidence as well as the
contested evidence in making its determination.
 NO TOTAL BOOTSTRAPPING UNDER FRE 801(D)(2).
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EXCEPTIONS TO THE HEARSAY RULE
SPONTANEOUS AND CONTEMPORANEOUS EXCLAMATIONS
 Preliminary Fact Question
o Whether the event occurred that either caused a startling event, or is being described as it
is being perceived.
FRE 803(1) PRESENT SENSE IMPRESSIONS (Contemporaneous)
 RULE: A statement describing or explaining an event or condition, made while or immediately
after the declarant perceived it is admissible under the present sense impression exception of the
hearsay rule.
o The declarant need only describe or explain an event or condition while perceiving it.
o The declarant cannot be describing what he had seen based on a past event—Lira.
o The identity of the declarant is not an absolute prerequisite to introduction of a PSI
statement.
 RATIONALE: Substantial contemporaneity of event and statement negate the likelihood of
deliberate or conscious misrepresentation.
FRE 803(2) EXCITED UTTERANCES (Spontaneous)
 RULE: A statement by the declarant relating to a startling event or condition while under the
stress of excitement caused by the event or condition is admissible under the excited utterances
exception to the hearsay rule.
 RATIONALE: Circumstances may produce a condition of excitement, which temporarily stills the
capacity of reflection and produces utterances free of conscious fabrication.
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FRE 803(3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION
 RULE: A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan)
or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but
not including a statement of memory or belief to prove the fact remembered or believed is
admissible as an exception to the hearsay rule.
 CEC: Allows for declaration of past state of mind provided however that the past state of mind is
material to the case.
 RATIONALE: State of mind declarations are pretty reliable given no perception problems.
 HILLMON DOCTRINE
o Allows proof of a declarant’s declaration of intent to do an act in the future to prove that
the declarant carried out that intent and did the stated act.
o Statement must be forward-looking, or else will be excluded as a fact remembered.
o If the declarant’s statement involves future conduct of a third person then the admissibility
of such statement depends on the approach the court will take.
 Narrow Reading: Under the narrow reading the statement is inadmissible to prove
conduct of third person, and is limited only to the intent of the declarant to engage
in future acts.
 Broad Reading: Statement is admissible to prove the conduct of third persons
 Majority: Statement is admissible to prove the conduct of third persons if there is
also corroborating evidence.
FRE 803(4) MEDICAL DIAGNOSIS AND TREATMENT
 RULE: A statement that (a) is made for—and is reasonably pertinent to—medical diagnosis or
treatment; and (b) describes medical history; past or present symptoms or sensations; their
inception; or their general cause.
o Statements about the cause of injury are admissible, however statements about fault are
not, as they are not reasonably pertinent to diagnosis or treatment.
o Statements from the patient to the doctor are admissible, however statements by the
doctor to the patient are not.
o Statements about the identity of a person responsible for injuries or conditions are seldom
pertinent to diagnosis or treatment. However, some courts have seen the need for physical
and mental treatment as justification for receiving statements about the perpetrator under
the exception in child abuse cases.
 RATIONALE: Statements made to a doctor are reliable.
FRE 803(5) PAST RECOLLECTION RECORDED
 RULE: A record that:
o (a) Is on a matter the witness once knew about but now cannot recall well enough to testify
fully and accurately;
o (b) Was made or adopted by the witness when the matter was fresh in the witness’s
memory; and
o (c) Accurately reflects the witness’s knowledge
 If admitted, the record may be read into evidence but may be received as an exhibit only if offered
by an adverse party.
 Declarant must be a witness in court.
 3 Ways Witness Recalls
o Present Recollection (traditional)
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 W takes the stand and testifies from memory
o Present Recollection Revived (or refreshed)
 W takes the stand and answers a question “I don’t remember”
 Counsel can use anything (document, newspaper, report), perhaps marked as
exhibit.
 Shows to W and asks “remember now” W says “yes”
 Once recollection is revived, the marked exhibit is not introduced by proponent, but
it can be shown by the other side to show the effect on recollection.
o Past Recollection Recorded
 After attempt to refresh fails, counsel shows W a writing and asks if the writing is a
correct record of events.
 If W can testify that W
 Remembers the writing was a correct record, and
 It was made simultaneously with or adopted after the event recorded
 Then it qualifies as past recollection recorded and can be read into evidence.
RATIONALE: The writing dates from a time at which the W’s recollection of the event perceived
was fresh. The recorded recollection is therefore reliable.
FRE 803(6) BUSINESS RECORDS—RECORDS OF REGULARLY CONDUCTED ACTIVITY
 RULE: A record of an act, event, condition, opinion, or diagnosis is admissible under the business
records exception to the hearsay rule if:
o (a) The record was made at or near the time by – or from information transmitted by –
someone with knowledge;
o (b) The record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
o (c) Making the record was a regular practice of that activity; and
o (d) All these conditions are shown by the testimony of the custodian or another qualified
witness, or by a certification that complies with Rule 902(b)(11) or (12) or with a statute
permitting certification.
 But this exception does not apply if the source of information or the method or circumstances of
preparation indicate a lack of trustworthiness.
Laying Foundation
 Authentication
o Mark the exhibit and hand it to W (custodian or person who knows how the record was
prepared)
o Ask W:
 Do you recognize this?
 What is it that you recognize it to be?
 (Business record of our business)
 How is it that you recognize it to be that?
 (I pulled it out of file b/c of the subpoena you sent me, put in briefcase &
brought it to court today, look at it & see it is the same record I put in my
briefcase yesterday)
 Is it in the same/substantially same condition as when you pulled it from records?
 Business Records Exception
o Ask W:
 Was the record made at or near the time of the event recorded?
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 By, or by information transmitted by, a person w/ knowledge?
 In the regular course of business?
 Kept in the regular course of business?
Best Evidence Rule
o Ask W:
 Is this a true and accurate copy of the record?
 Move to admit the record into evidence.
If the foundation is laid above, the evidence is admissible under an exception to the hearsay rule
under the business records exception, UNLESS the source of the information or the circumstances
of preparation indicate a lack of trustworthiness.
o If the record was created in anticipation of litigation that alone is not enough to indicate
a lack of trustworthiness.
o However, a record created in anticipation of litigation along with other considerations will
likely indicate a lack of trustworthiness.
 If someone who had a motive to exonerate himself made the record, then lack of
trustworthiness.
 If made by someone who was not personally involved and not foreseeably a target of
a lawsuit, then trustworthy.
Hearsay w/in Hearsay
 RULE: If the report contains a statement from a person who does not have a duty to report (hearsay
+ report hearsay  double hearsay)  that statement must satisfy an exemption or exception to
the hearsay rule to be admitted.
o But if there are multiple statements that may be hearsay all made by persons with a business
duty to report then all statements within the umbrella of the business records exception are
admissible.
 RULE: Business records w/in business records are admissible.
Business Duty
o Does a source of information in a business record have the duty to report the information?
o The source of the statement must have a business duty to report the information to
guarantee trustworthiness; if no duty, then no guarantee of trustworthiness.
o If the record was not made subject to a business duty, then it is not under the umbrella of the
business records exception, and is inadmissible.
 NOT SATISFIED: Ex: Johnson v. Lutz: The bystander had personal knowledge of the
accident, but had no business duty to provide the information. The police officer had
a duty to acquire and report the information, but had no personal knowledge of the
accident. The court excluded the police report because it didn’t meet the business
records exception
 SATISFIED: Ex: PO witnesses an accident, and reports to her supervisor, who writes
a report. The report is one level of hearsay, and the statement in the report is the
second level of hearsay. Both are within the business records exception because PO
witness had a duty to report to supervisor. Thus, the PO’s statement falls under the
umbrella of the BRE
FRE 803(7) ABSENCE OF ENTRY IN RECORDS KEPT IN ACCORDANCE OF 803(6)
 RULE: Evidence that a matter is not included in the memo, reports, records, or data
compilations, in any form, kept in accordance w/ 803(6), is NOT hearsay if:
o Offered to prove the nonoccurrence or nonexistence of the matter,
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o If the matter was a kind of which a memo, report, record, or data compilation was
regularly made and preserved,
o Unless the sources of information indicate a lack of trustworthiness.
UNAVAILABILITY REQUIRED
FRE 804(b)(2)—DYING DECLARATIONS
 RULE: A statement made by the declarant under the belief of imminent death, made about its cause
or circumstances may be introduced in a prosecution for homicide or in a civil case.
o Under FRE death is not required, simply a showing of unavailability. CEC requires death.
o FRE allows the exception only in homicide cases, where there is an exceptional need.
o Civil cases where the stakes do not involve possible imprisonment.
o Not allowed in ordinary criminal cases.
o DEATH MUST BE IMMINENT AND STATEMENT MUST BE MADE WHEN EVERY HOPE OF LIFE
HAS GONE FROM THE PERSON MAKING THE STATEMENT.
o Dying declarations are admissible only if they are the statement of a fact. If they merely express
the opinion of the declarant, they are inadmissible.
 Exception
 WHEN THE OPINION OF A WITNESS IS THE DIRECT RESULT OF OBSERVATION
THROUGH HIS SENSES, THEN IT IS ADMISSIBLE
o Suicide notes are admissible as a dying declaration.
 Death, must be soon after the writing of the letter.
 RATIONALE: Intrinsic assurance of trustworthiness, thereby making cross-examination
unnecessary. It is assumed that a person who knows death is impending is less likely to lie than
others, because a fear of god is acute.
IMPEACHMENT OF WITNESS
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RULE: Leading questions are not allowed on direct, but allowed on cross-examination. Crossexamination should not go beyond the subject matter of the direct examination and matters
affecting the witness’s credibility.
o (Who, What, Where, When, How = not leading)
o Leading is okay when hostile witness, or when it’s used to develop facts not in dispute.
RULE: Under FRE607, any party may attack the credibility of a witness, including the party calling
the witness. However, a party cannot call a witness if the primary purpose of doing so is to impeach
in order to bring in otherwise inadmissible evidence. (RATIONALE—jury may ignore limiting
instruction, if solely to impeach).
o Hogan—Prosecution called W knowing W was going to testify that D did not do the crime,
just to introduce inadmissible hearsay of W to DEA saying D did do it; INADMISSIBLE.
o If unsure what witness will testify to, court can hold a voir dire, out of jury’s presence.
o Switch Up: Can call W to give helpful testimony and if surprised by W’s unfavorable
testimony, can introduce statement solely for purpose of impeachment (judge’s discretion)
o In theory, could call W and if hostile, impeach and request a limiting instruction—but can’t
do if the limiting instruction won’t help.
o Limiting Instruction
 Permissible to limit impeaching evidence to impeachment purposes.
 “This evidence may not be used to prove the truth of the matter asserted, may only
be used to assess the credibility of W in court.”
 Court need not give limiting instruction sua sponte.
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RULE: If evidence is a prior statement made by a declarant-witness under penalty of perjury at a
trial, hearing, or other proceeding or in a deposition, then it will be admissible as substantive
evidence (OTMA) or solely to impeach as a prior inconsistent statement.
o If admitted solely to impeach
 Opponent is entitled to limiting instruction
 Prosecutor can’t call W primarily for this purpose
 Can’t be used to overcome directed verdict motion
o EX: Impeachment evidence is grand jury testimony by W.
METHODS OF IMPEACHMENT
1) Impeachment By Contradiction
 RULE: Impeachment by introducing contradictory testimony (of another W)
o Ex: W1 testifies that light was red & W2 testifies that it was green; W1 has been impeached
by contradiction.
o Cf: Impeachment by prior inconsistent statement—self-contradiction—attacks W w/ W’s
own prior inconsistent statement, no contrary evidence about the underlying facts.
 Collateral Matter Rule
o RULE: When seeking to impeach a witness by contradiction on a collateral matter, extrinsic
evidence is INADMISSIBLE. However, bias, interest, mental capacity, defect in perception,
or anything else going to W’s capacity are NOT collateral, and therefore the rule does not
apply.
 Collateral Matter—attempt to use evidence of fact that is not a fact of consequence
independent of impeachment.
 Extrinsic Evidence—any evidence other than testimony from W seeking to
impeach (from the W’s mouth)
 Ex: Another W’s testimony or physical evidence requiring another W to lay
foundation.
o Test of Collateralness
 Could the fact as to which error is predicated have been shown in evidence for any
purpose independently of the contradiction? (i.e. bias, interest, mental capacity, etc.)
o For collateral matters cross-examiner can ask W questions regarding the matter, but is
bound by the answer and cannot call another W or introduce physical evidence.
o RATIONALE: Waste of time, jury confusion
2) Impeachment by Character of Witness
 RULE: Character evidence of W is admissible for purposes of proving action in conformity
therewith on a particular occasion as provided in rules 607, 608, and 609.
o Reputation/opinion regarding untruthful/dishonest character608(a)
o Prior bad act NOT resulting in conviction608(b)
o Prior bad act that resulted in conviction609
FRE608 (a) Impeachment by 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.
o W2 testifying about W1 must have adequate foundation:
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Reputation—familiar w/ where W lives, works, etc. & W’s reputation.
Opinion—must know W for some period of time and have opinion of C for
truthfulness.
FRE608 (b) Impeachment by Specific Incidents on Conduct (but no conviction)
 Except for a criminal conviction under Rule 609, extrinsic 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:
o The witness; or
o Another witness whose character the witness being cross-examined has testified about.
 EX: Isn’t it true that you: (a) lied on employment application; (b) engaged in fraud; (c) arrested for
forgery.
 NOTE: Because W lied/committed fraud/forgery it is probative of his character for untruthfulness.
FRE609 Prior Convictions: Impeachment By Evidence of Conviction of a Crime
 Against a Witness(a)(1)(A)
o RULE: Evidence that a witness has been convicted of a crime punishable by death or
imprisonment in excess of one year is admissible, unless the probative value of the
evidence is substantially outweighed by its prejudicial effect.
o RELEVANCY: One who committed a felony is more likely to be a liar.
 Against an Accused(a)(1)(B)
o RULE: Evidence that an accused has been convicted of a crime punishable by death or
imprisonment in excess of one year is admissible, only if the probative value outweighs the
prejudicial effect. (Presumptively inadmissible)
 If the prejudicial effect is even slightly higher than the probative value than it is
excluded.
 When a prior act is very similar to the charge for which defendant is on trial, the
evidence is likely to be excluded for prejudicial effect. The more dissimilar the prior
act, the better it is for admissibility.
o RELEVANCY: One who committed a felony is more likely to be a liar.
 CEC§352Only those convictions involving moral turpitude and the court must determine that
the probative value of the evidence substantially outweighs its prejudicial effect. No reverse
balancing test
 Dishonest Crime or False Statement Conviction (Crimen Falsi) (a)(2)
o RULE: Evidence that any witness (accused or not) has been convicted of a crime shall be
admitted if it involved dishonesty or false statement, regardless of the punishment. No
judicial discretion to exclude the evidence.
 Ex: perjury, fraud, embezzlement, false pretense; NOT bank robbery, shoplifting, or
larceny
 RULE: D must testify (and then be impeached) to raise and preserve review of claim for improper
impeachment by prior conviction.
 RULE: If D’s attorney introduces prior conviction (to take away the sting), can’t later appeal
claiming prior conviction evidence is inadmissible b/c D introduced it himself.
o D must testify if chooses to, be impeached, not introduce prior conviction himself,
then can appeal on prior conviction issue.
 (b) If more than 10 years have passed since the event, the court in its discretion can admit
it if:
o In the interest of justice; or
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o The probative value substantially outweighs its prejudicial effect.
(c) Juvenile convictions inadmissible unless criminal casecourt may permit juvenile
conviction of W, other than the accused, if W is an adult, and the evidence is necessary for
fair determination of issue of guilt or innocence.
(e) Doesn’t matter if appeal pending, but evidence of pending appeal is admissible.
FRE806
 RULE: When a hearsay statement has been admitted, the declarant’s credibility may be attacked
and then supported by any evidence that may be admissible for those purposes, if declarant had
testified for those purposes.
o Court may admit evidence of Declarant’s inconsistent statement, and can examine
declarant as if on cross-examination.
Psychiatric Condition
 RULE: Evidence of a psychiatric condition is admissible to impeach a witness, as it may show lack
of capacity, perception, memory, or narrative ability. Extrinsic evidence is also admissible (e.g.
hospital records showing commitment).
o Cf: Bad acts inadmissible under 608(b) if no bearing on truthfulness, and inadmissible
under 609 if no felony conviction.
3) Inconsistent Statement
FRE613 Prior Statements of Witness
Prior Inconsistent Statements
 RULE: 613(a) – In examining a witness concerning a prior statement made by the witness, whether
written or not, the statement need not be shown nor its contents disclosed to the witness at that
time, but on request the same shall be shown or disclosed to opposing counsel.
 RULE: 613(b) – Extrinsic evidence of a prior inconsistent statement by a witness is not admissible
unless the witness is afforded an opportunity to explain or deny the same and the opposite
party is afforded an opportunity to interrogate the witness thereon, or the interests of justice
otherwise require. This provision does not apply to admissions of a party-opponent as defined in
rule 801(d)(2).
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RATIONALE
o Want to prove witness is not credible. If W denies making the prior inconsistent statement,
bring extrinsic evidence to prove the making of the statement.
Foundation Requirement for Prior Inconsistent Statements
 On cross-examination, get the witness to repeat what he said on direct.
 Ask whether he has ever made a contrary statement at any time or place, and identify the person to
whom the statement was supposedly made, and ask him specifically about the language used and
ask again whether he has made a contradictory statement.
 Upon denial, excuse the witness
 After opponent rests his case, produce the impeaching witness and prove the contradictory
statement by him, or require the witness to be placed on call and then be recalled.
Collateral Matter Rule Still Applies
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RULE: The collateral matter rule applies to impeachment by prior inconsistent statements. If the
inconsistency relates to a collateral matter, then extrinsic evidence cannot be brought in on a
collateral matter.
Prior Consistent Statements (FRE 801(d)(1)(B))
 RULE: A prior consistent statement of a witness is admissible to rebut a charge of recent fabrication
or improper influence or motive only when those statements were made before the charged
recent fabrication or improper influence or motive.
o Admissible as non-hearsay only if offered to rebut a charge or fabrication or improper
influence or motive.
4) Bias
 RULE: There is no federal rule that governs whether evidence of bias is admissible, however the
court has discretion to admit evidence that is probative of bias. The collateral matter rule does not
apply.
o Abel—common membership in gang is probative on possibility of bias, even w/o showing
that member has adopted the group’s tenetsgang membership was admissible.
 NOTE
o Almost impossible to exclude evidence of bias on 403 grounds, because of the probative
value. Always relevant.
BEST EVIDENCE RULE
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RULE: In proving the contents of a writing, where such terms are material, the original writing must
be produced, unless it is show to be unavailable for some reason other than the serious fault of the
proponent.
o Writing
 Writings consist of letters, words, or numbers, or their equivalent, set down by
handwriting, typewriting, printing, photographing, electronic recording, or other
data compilation (FRE1001)
o Materiality
 Content is material when it is a fact of consequence
 I.e. newspaper not material when witness saw what happened and later learned
about it in the newspaper.
o Original
 An original includes any writing, recording, or photograph (includes motion picture).
A duplicate is admissible to the same extent as the original unless (1) a genuine
question is raised about the original’s authenticity; or (2) the circumstances make it
unfair to admit the duplicate.
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Exception to BER
o An original is not required and other evidence of the content of a writing, recording, or
photograph (secondary evidence) is admissible if:
 Original is lost or destroyed;
 An original cannot be obtained by any available judicial process;
 Original is in the possession of the opponent, and opponents fails to produce it; or
 The writing, recording, or photography is not closely related to a controlling issue.
 In this situation, the writing would likely be considered a collateral matter.
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Secondary Forms of Evidence
o The most common form of secondary evidence is oral testimony. Note that handwritten
copies are also considered secondary forms of evidence and not duplicates within the
meaning of the rule.
Best evidence triangle
red = BER applicable
blue = BER inapplicable
Writing
Testimony
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Conclusion
RULE: The BER is not a rule requiring the best available evidence. The purpose of the BER is to have
an accurate accounting of complex data.
Inscribed Chattels
 When faced with an inscribed chattel, the trial judge has discretion whether to consider the object
as a chattel (original not needed) or as a writing (BER applies and original needed). Factors to
consider are:
o Need for precise information
o Ease or difficult of production
o Simplicity or complexity of the inscription.
Public Records (FRE 1005)
 A copy of a public record may be admissible if (1) it is a certified copy; or (2) a witness who has
compared it the original can testify that it is a correct copy. If neither of these options is reasonable,
then other evidence of the contents can be given.
Summaries of Voluminous Writing (FRE 1006)
 Voluminous materials may be presented by chart, summary, or calculation, so long as the underlying
originals or duplicates are made available to the opponent.
BER Functions of the Court and Jury (FRE 1008)
 When the admissibility of other evidence of contents of writings depends upon the fulfillment of a
condition of fact (whether an excuse applies), the question whether the condition has been fulfilled
is ordinarily for the judge to decide under 104(a). However, the jury determines, under 104(b) any
issues raised about whether (1) the writing ever existed, (2) another writing is the original, or (3)
other evidence of content accurately reflects the content.
CEC Secondary Evidence Rule
 Any secondary evidence of an original is admissible as the original unless (1) a genuine dispute
exists concerning material terms of the original writing and justice requires its exclusion, or (2)
admission of the secondary evidence would be unfair. The secondary evidence rule, however, does
not relax the requirements of authentication.
 All secondary evidence is presumptively admissible, except oral testimony, unless:
o The proponent does not have possession or control of a copy and the original is lost or has
been destroyed without fraudulent intent on the part of the proponent, and
o Where the proponent does not have possession or control of the original or a copy and
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Neither the original nor the copy was reasonably procurable by the proponent by use
of the court’s process or other reasonable means or
 The original is not closely related to the controlling uses and it would be inexpedient
to require its production.
o Since copies of official records and documents authorized to be recorded, or filed are
generally available, copies, rather than testimony, must be offered to prove the contents of
the originals.
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AUTHENTICATION
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ISSUE: Whether the evidence was properly authenticated
RULE: Authentication is a showing that something is what its proponent claims it to be.
FRE 901(a): 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 to be.
FRE 901(b) Examples of Authentication: Not Definitive
o Testimony of a witness with knowledge
 Testimony that a matter is what it is claimed to be.
o Non-Expert Testimony opinion on handwriting
 Lay testimony as to the genuineness of handwriting, based upon familiarity not
acquired for purposes of litigation.
o Comparison by trier or expert with specimens which have been authenticated
o Distinctive Characteristics and the like
 Appearance
 Contents
 Substance
 Internal patterns, or
 Other distinctive characteristics,
 Taken in conjunction with the circumstances
o Voice Identification
 Identification of a person’s voice whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based upon hearing the voice at
any time under circumstances connecting the alleged speaker.
o Telephone Conversations
 Telephone conversations, by evidence that a call was made to the number assigned
at the time by the telephone company to a particular person or business, if:
 Person  circumstances, including selfidentification, show the person answering to be the one called.
 Business  the call was made to a place of business and the conversation
related to business reasonably transacted over the telephone.
o Public records or reports
 Evidence that a writing authorized by law to be recorded or filed and in fact
recorded or filed in a public office, or a purported public record, report, statement,
or data compilation, in any form, is from the public office where items of this nature
are kept.
o Ancient Documents
o Process or system
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Evidence describing and process or system used to produce a result and showing
that the process or system produces accurate results
o Methods provided by the rules of statutes
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Judge’s and Jury’s Role
 Judge must be satisfied that a reasonable juror could find by the preponderance of evidence that the fact
could exist.
 Jury must decide whether there is enough evidence to permit a reasonable person to conclude that the
evidence is what the proponent claims it to be.
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FRE902: Self Authentication
o Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with
respect to the following:
 Domestic public records under seal
 (Government seal + signature attesting to that)
 Domestic public documents not under seal but signed and certified
 Foreign public documents
 Certified copies of public records
 Official publications
 Newspapers and periodicals
 Trade inscriptions and the like
 Inscriptions, signs, tags, or labels purporting to have been created in the course of
business and indicating ownership, control, or origin.
 Trademark essentially
 Acknowledged documents
 Certified/notarized
 Commercial paper
 Presumptions under acts of Congress
 Certified domestic records of regularly conducted activity that would be admissible
under 803(6) if accompanied with written declaration by custodian certifying record:
 Was made at or near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person with knowledge of those matters;
 Was kept in the course of the regularly conducted activity; and
 Was made as a regular practice
 Certified foreign records of regularly conducted activity
How to Show Authenticity
 Authenticity may be shown when the item of evidence is self-authenticating under 902, or through
testimony and circumstantial evidence.
 Chain of Custody
o A showing of who has had the evidence from the time of the event at issue until the time of offering
at trial. It must be shown if the evidence is not distinctive and substitution of an item of similar
appearance would affect the probative value of the exhibit.
 Line of Questioning for Authenticity
o What is this?
o Is it an accurate depiction of the scene/contract/etc.?
ADDITIONAL TERMINOLOGY
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INFERENCE - “A DEDUCTION OF FACT THAT MAY LOGICALLY AND REASONABLY BE DRAWN FROM
ANOTHER FACT OR GROUP OF FACTS ESTABLISHED IN THE ACTION”CEC § 660(b)
Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or
group of facts from which you may conclude the truth of the fact in question. CALCRIM
CIRCUMSTANTIAL EVIDENCE - “EVIDENCE THAT, IF FOUND TO BE TRUE, PROVES A FACT FROM WHICH
AN INFERENCE OF THE EXISTANCE OF ANOTHER FACT MAY BE DRAWN.” CALJIC 2.00 Not in use, replaced
by CALCRIM definition.
o CALCRIM JURY INSTRUCTION 225
o FOR CIRCUMSTANTIAL EVIDENCE TO PROVE AN ELEMENT: YOU MUST BE CONVINCED THAT P
HAS PROVED EACH FACT ESSENTIAL TO CONCLUSION BEYOND R. DOUBT
o ALSO
o FOR CIRCUMSTANTIAL EVIDENCE TO PROVE D GUILTY: YOU MUST BE CONVINCED THAT THIS IS
THE ONLY REASONABLE CONCLUSION SUPPORTED BY THE CIRUMSTANTIAL EVIDENCE
o IF YOU CAN DRAW 2 OR MORE REASONALBE CONCLUSIONS FROM THE CIRCUMSTANTIAL
EVIDENCE, AND 1 CONCLUSION POINTS TO INNOCENCE BUT 1 TO GUILT YOU MUST ACCEPT THE
ONE THAT POINTS TO INNOCENCE.
o HOWEVER, WHEN CONSIDERING THE CIRCUMSTANTIAL EVIDENCE, YOU MUST ACCEPT ONLY
REASONABLE CONCLUSIONS AND REJECT ANY THAT ARE UNREASONABLE. CALCRIM 225
DIRECT EVIDENCE
o “EVIDENCE THAT DIRECTLY PROVES A FACT, WITHOUT AN INFERENCE OR PRESUMPTION, AND
WHICH IN ITSELF, IF TRUE, CONCLUSIVELY ESTABLISHES THAT FACT” CEC § 410
o EXAMPLE: EYEWITNESS TESTIMONY
o DIRECT EVIDENCE CAN PROVE A FACT BY ITSELF. FOR EXAMPLE, IF A WITNESS TESTIFIES HE
SAW IT RAINING OUTSIDE BEFORE HE CAME INTO THE COURTHOUSE, THAT TESTIMONY IS
DIRECT EVIDENCE THAT IT WAS RAINING. CALCRIM 223
REASONABLE DOUBT
o “IT IS NOT A MERE POSSIBLE DOUBT; BECAUSE EVERYTHING RELATING TO HUMAN AFFAIRS IS
OPEN TO SOME POSSIBLE OR IMAGINARY DOUBT”
o “IT IS THAT STATE OF THE CASE WHICH, AFTER THE ENTIRE COMPARISON AND
CONSIDERATION OF ALL THE EVIDENCE, LEAVES THE MINDS OF THE JURORS IN THAT
CONDITION THAT THEY CANNOT SAY THEY FEEL AN ABIDING CONVICTION OF THE TRUTH OF
THE CHARGE” CALJIC 2.90
o “PROOF THAT LEAVES YOU WITH AN ABIDING CONVICTION THAT THE CHARGE IS TRUE. THE
EVIDENCE NEED NOT ELIMINATE ALL POSSIBLE DOUBT BECAUSE EVERYTHING IN LIFE IS OPEN
TO SOME POSSIBLE OR IMAGINARY DOUBT” CALCRIM 220
Assumpsit – K action to recover the price
Breach of warranty – product doesn’t do what it’s meant to do
Evidence – object/item, drum of paint
Offer of proof – attorney makes offer of proof if permitted… witness will testify…
Motion in Limine – to include or exclude, can come into play at trial
Motion for mistrial – judge approves if so egregious that affected jury
Inductive syllogism – D planned to kill V, therefore D probably did kill V
Deductive syllogism – one who has a fixed design to kill is more likely to kill. D had a fixed design to kill V;
therefore D probably killed V
“Ain’t necessarily so” argument – evidence, while relevant in proving something, is insufficient to permit
a reasonable jury to decide in favor of the prosecution.
TA Review
 804(b)(1): Former Testimony – Need a rule statement for this
 804(b)(2): Dying Declaration – personal knowledge required; death not required; must be unavailable
 804(b)(3): Statement Against Interest
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804(b)(6)
807: Residual
805: Hearsay within hearsay
Lab Reports and the Confrontation Clause
o Melendez Diaz
o Bullcoming
Impeachment
607: anyone can impeach a witness
Slide 13: every time 104(b) comes up
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