104(a) – Questions of admissibility – Qualifications of witness or admissibility of evidence in sole discretion of trial judge. Privileges in discretion of trial judge under rules in effect. 201 – Judicial Notice (a) – only for Adjudicative Facts (b) – must be a fact not subject to reasonable dispute, and either 1) generally known within court’s jurisdiction, or 2) can be proved by sources whose accuracy cannot be reasonably questioned (c) – Court MAY take notice if requested or on its own (d) – Court MUST take notice if requested by party and supplied with necessary info (e) – Party requesting judicial notice must be timely heard (f) – Notice may be taken at any stage of proceeding (g) – In civil cases, judicially noticed facts binding on jury. In criminal cases, jury MAY disregard any judicially noticed fact 301 – Presumptions – Burden of Going Forward - if presumption of fact introduced, other party has burden of rebutting. If it can rebut, presumption “bursts” (“bursting bubble”), otherwise left intact Burden of Going Forward NEVER SHIFTS Burden of Persuasion from party required to prove something – parties must always persuade factfinder o In criminal cases, Burden of Persuasion ALWAYS on prosecution, even when Burden of Going Forward is on accused 401 – Definition of Relevancy Relevant Evidence – evidence that has any tendency to make a fact more or less probable to the jury – does it “move the needle?” 402 – Relevant Evidence Admissible, Irrelevant Evidence Inadmissible. 403 – Excluding Relevant Evidence – if probative value of evidence is outweighed by Danger of Unfair Prejudice Confusion of Issues Misleading the Jury Undue Delay Waste of Time Needlessly Cumulative 404(a) – Character Evidence Generally – Evidence of character not admissible to prove action in conformity with character. Exceptions: 404(a)(1) – Character of Accused in Criminal Cases o Pertinent Trait offered by accused, or by prosecution to rebut o If 404(a)(2) evidence of alleged victim has been brought in by accused, prosecution may bring in same trait 404(a) – Character Evidence Generally – Evidence of character not admissible to prove action in conformity with character. Exceptions: 404(a)(2) – Character of Victim in Criminal Cases o Pertinent trait of victim offered by accused, or by prosecution to rebut o In case of homicide where accused says victim was aggressor, prosecution can offer peaceful character of victim to rebut o Both subject to Rule 412 (sex offenses generally inadmissible) 404(a) – Character Evidence Generally – Evidence of character not admissible to prove action in conformity with character. Exceptions: 404(a)(3) – Character of Witness – Evidence under 607, 608, 609 404(b) – Crimes, Wrongs, or Acts – not admissible to prove action conforming to character Can be admitted for other purposes! o Motive o Opportunity o Intent o Plan o Preparation o Knowledge o Identity o Absence of Mistake or Accident 405(a) – Proving Character by Reputation Can prove character by reputation, including lay opinion on reputation (no competence issues!) Can cross-examine by asking about specific instances of conduct 405(b) – Proving Character by Instances of Conduct – can introduce as part of charge, claim, or defense 406 – Habit Evidence Relevant to prove that conduct (of individual or organization) was in conformity with habit or routine practice Doesn’t need to be corroborated or have eyewitness testimony backing it 407 – Subsequent Remedial Measures – Inadmissible (Public Policy) Exception – admissible for impeachment, or to prove ownership, control, or feasibility of precautionary measures 408 – Compromises and Offers to Compromise Inadmissible for: o Proving Liability o Proving Existence or Amount of Claim o Impeachment by Prior Inconsistent Statement Admissible for: o Bias or Prejudice o Negating Undue Delay o Proving an Obstruction of Justice 412(a) – Sex Offenses –Victim’s Sexual History is Inadmissible (exceptions in 412(b)) 412(a)(1) – Evidence that victim engaged in other sexual behavior 412(a)(2) – Evidence of victim’s sexual predispositions 412(b) – Sex Offenses – Victim’s Sexual History Admissible 412(b)(1) – Admissible in Criminal cases only and IFF is in an exception o (a) – To prove that accused was not source of semen, injury, or evidence o (b) – To prove that victim consented to sex o (c) – If exclusion would violate defendant’s constitutional right (to present a defense and obtain favorable testimony in his favor) 412(b)(2) – In civil cases, sexual history is admissible if its probative value SUBSTANTIALLY OUTWEIGHS danger of harm or unfair prejudice to victim. Evidence of victim’s reputation admissible only if placed in controversy. 412(c) – Party introducing evidence under 412(b) must give prior notice and proffer, and allow court to interview victim in camera and with all records sealed. 413 – Evidence of Similar Crimes in Sex Assault Cases Evidence that a sex assault defendant has committed another sex assault admissible and relevant. Prior Notice and proffer required Includes non-consensual sex conduct, deriving pleasure from inflicting pain or death, or conspiracy to commit a related act 501 – Privileges – Governed by common law “in the light of reason and experience.” In state law cases, apply state rules. Spousal Privilege – Spouse cannot be compelled to testify about communications with other spouse. o Does not apply to acts o Does not apply to joint criminal activity o Does not apply if one spouse chooses to testify against other spouse – privilege applies only if being forced to speak Attorney-Client Privilege – Lawyer cannot be compelled to reveal confidences/secrets of a client (whenever Rule 1.6 applies, so does the privilege), even if client is dead Work Product Privilege – Lawyer cannot be compelled to discuss conversations with other lawyers or produce documents prepared in anticipation of litigation. Can be overridden with showing of good cause and in camera inspection to determine relevance, prejudice, unavailability of other means of acquiring testimony Reporter-Source Privilege – Reporter cannot be compelled to reveal their sources. Not constitutionally required, not in all states, no federal law. Can be overridden with showing of good cause (especially for Sixth Amendment compelling evidence) and in camera inspection to determine relevance, prejudice, unavailability of other means of acquiring testimony Doctor-Patient Privilege – Doctor cannot be compelled to discuss patient information disclosed in the course of obtaining medical treatment. Therapist-Patient Privilege – Psychotherapist cannot be compelled to discuss patient information disclosed in the course of obtaining therapy or psychiatric treatment. Clergy-Communicant Privilege – Clergy who offer spiritual counseling cannot be compelled to discuss information disclosed by communicants in the course of counseling 601 – Competence – All witnesses are presumed competent until rules say otherwise 602 – Witness cannot testify unless evidence shows they have personal knowledge of the matter (including their own testimony), or experts under 703 607 – Credibility of Witnesses can be impeached by any party, including the calling party! 608(a) –Character/Conduct of Witness can be attacked through Opinion and Reputation evidence, subject to limitations 608(a)(1) – Only for truthfulness/untruthfulness AND 608(a)(2) – Only after character for truthfulness has been attacked 608(b) –Character/Conduct of Witness can be attacked by specific incidents of conduct, but they CANNOT RELY ON EXTRINSIC EVIDENCE. But they can be used on cross to impeach character for truthfulness or testimony about the truthfulness of another witness they’re testifying for. 609(a) – Impeachment by Evidence of Conviction of Crime Admissible 609(a)(1) – Conviction for crime not involving dishonesty admissible IFF: o Crime was a felony o Rule 403 Balancing Test– Does probative value outweigh prejudice? 609(a)(2) – Conviction for a crime involving dishonesty always admissible w/o factors of 609(a)(1) 609(b) – Convictions older than ten years inadmissible (dated from conviction or release), unless court determines that probative value outweighs prejudicial effect. 609(c) – Convictions annulled by pardons, certificate of rehab, or finding of innocence inadmissible 609(d) – Juvenile crimes inadmissible, except to impeach credibility of witness (not accused), and court is satisfied that evidence is necessary. 609(e) – Pendency of appeal does not make a conviction inadmissible, but the appeal itself is admissible 610 – Evidence of Religious Belief or Opinion of a witness inadmissible 611(a) – Court controls mode and order of evidence to make trial effective, avoid wasting time, and protect witnesses from harassment or undue embarrassment 611(b) – Cross-examination limited to subjects raised on direct examination and witness credibility. Everything else requires court permission. 611(c) – Leading questions (questions that suggest an answer) cannot be used on direct, except as necessary to develop testimony (e.g. with very young children). Exceptions: Hostile witness Adverse party Witness identified with an adverse party 612 – If using a writing to refresh a witness’ memory, either before or during testimony, other party can have writing produced at hearing, cross-examine witness, and introduce relevant portions of the writing into evidence. Court can review writing in camera to excise any irrelevant portions. Court can also strike testimony or declare a mistrial in case of non-delivery to other party 613(a) – Examining Prior Statement of Witness – statement need not be shown to witness on stand, but must be disclosed to other party. 613(b) – Extrinsic Evidence of Prior Inconsistent Statement is INADMISSIBLE unless witness has opportunity to explain or deny, and other party gets to ask the witness about it. Rule does not apply to admissions of a party opponent under 801(d)(2) 701 – Lay Witness Opinion Testimony – limited to inferences: (a) Rationally based on perception of witness (b) Helpful to court in fact-finding (c) Not based on specialized knowledge (that’s expert testimony under 702) 702 – Expert Testimony – admissible if it will assist fact-finder and witness has appropriate skill, experience, or training, and… (1) Testimony is based upon sufficient facts or data (2) Testimony is the product of reliable principles and methods (3)Witness has applied the principles and methods reliably to the facts FOUR DAUBERT FACTORS (TEPA) – also apply to engineers (Kumho Tire) o Has it been Tested? o What is the Error rate? o Has it been Peer-reviewed? o Is the methodology generally Accepted in the scientific/engineering community? 703 – Bases of Opinion Testimony Facts or data that expert testimony is based on need not be admitted if they are reasonably relied upon by other experts. Facts inadmissible will not be disclosed to the jury unless court finds under 403 that probative value outweighs prejudice. 704 – Experts can offer an opinion on the ultimate issue to be decided by the trier of fact. Exception: an expert CANNOT state if a criminal defendant did or did not have a mental state constituting an element of a crime charged or a defense to it 801 – Hearsay Definitions (a) – “statement” can be oral, written, or non-verbal conduct (b) – “declarant” is one making a statement (c) – “Hearsay” is a statement other that one made by a declarant in court offered to prove the truth of the matter asserted 801(d) – Statements Which AREN’T Hearsay 801(d)(1) – Prior Statements by Witness – NOT hearsay if they are o 801(d)(1)(a) – inconsistent with present testimony and given under oath at trial or hearing, or in a deposition o 801(d)(1)(b) – consistent with present testimony and offered to rebut an assertion of recent fabrication or improper influence or motive o 801(d)(1)(c) – an identification of a person 801(d)(2) – Admissions by party opponent – NOT hearsay if they are o 801(d)(2)(a) – Party’s own statement, either as individual or representative of organization o 801(d)(2)(b) – Statement that the party has manifested a belief in its truth o 801(d)(2)(c) – Statement of a person authorized by a party to make it o 801(d)(2)(d) – Statement of a party’s agent or employee concerning a matter within the scope of their employment o 801(d)(2)(e) – Statement of a co-conspirator of a party in the course of and in furtherance of the conspiracy o (c)(d)(e) – statement can be offered, but is not itself proof of authorization, agency, or conspiracy 802 – Hearsay is NOT admissible (unless there’s an 803 exception…) 803 – Hearsay Exceptions – Availability of Declarant Immaterial 803(1) – Present Sense Impression – statement describing/explaining event in progress or immediately after 803 – Hearsay Exceptions – Availability of Declarant Immaterial 803(2) – Excited Utterance – statement about startling event/condition while declarant excited 803 – Hearsay Exceptions – Availability of Declarant Immaterial 803(3) – Mental, Emotional, or Physical Condition – statement of declarant’s then existing state of mind, emotion, or physical condition 803 – Hearsay Exceptions – Availability of Declarant Immaterial 803(4) – Medical Diagnosis – statement made for purpose of a medical diagnosis or a statement of symptoms/ pain/ sensation 803 – Hearsay Exceptions – Availability of Declarant Immaterial 803(5) – Recorded Recollection – When witness wrote down information that they now have no knowledge of while the matter was fresh in their mind, the writing may be used to help recollection. o If admitted, the document itself does not go into evidence unless introduced by other party. (DIFFERENT from 612) 803 – Hearsay Exceptions – Availability of Declarant Immaterial 803(6) – Records of Regularly Conducted Activity – Reports/Data made at the time by people with knowledge, and kept in the course of business according to general practice o Exception: Source, method, or circumstances show lack of trustworthiness 803 – Hearsay Exceptions – Availability of Declarant Immaterial 803(7) – Absence of Records – if no records under 803(6), to prove nonexistence or nonoccurrence of a matter. Exception for lack of trustworthiness 803 – Hearsay Exceptions – Availability of Declarant Immaterial 803(8) – Public Records – Government Records, reports, statements or data, showing: o (a) regular activities of office or agency, or o (b) matters observed pursuant to duty imposed by law where there is a duty to report. (Does not apply to police reports in criminal cases) o (c) In civil cases, findings of fact resulting from an investigation pursuant to authority granted by law (except for lack of trustworthiness) 804 – Hearsay Exceptions – Declarant Unavailable 804(a) – A declarant is unavailable when: o (1) Testimony is privileged o (2) Refuses to testify o (3) Asserts a lack of memory o (4) Can’t testify because of death, or physical or mental illness o (5) Party unable to compel declarant’s attendance (or prior testimony) by process o Wrongdoing by party voids unavailability! 804(b) – Hearsay Exceptions ONLY IFF declarant unavailable o (1) Former Testimony, if offered under oath (hearing, deposition, etc.) and other party had opportunity and cause to cross-examine declarant o (2) Dying Declaration – in homicide cases or civil actions, statements made by declarant while believing death was imminent, concerning cause of death o (3) Statement Against Interest – statement so contrary to declarant’s interest (e.g. subjecting them to civil/criminal liability, invalidating claim), that a reasonable person would not have said it unless they believed it to be true Exception: Declarant’s confession to crime offered to exculpate defendant INADMISSIBLE unless corroboration clearly shows trustworthiness 805 – Hearsay within Hearsay – IFF each part of the combined statement fits an exception! 806 – Attacking/Supporting Credibility of Declarant Declarant making hearsay statement (or statement under 801(d)(2)(c,d,e) showing authorization, agency, or conspiracy) can have credibility attacked on cross Attack may be supported by any evidence admissible if declarant was a witness Evidence of prior inconsistent statement – declarant does not have to have opportunity to deny or explain If party opponent calls declarant as a witness, they can examine as if it was on cross 901(a) – Authentication/Identification – Evidence admissible if there is sufficient evidence to support a jury finding that the evidence is what proponent says it is. 901(b) – Examples 901(b)(1) – Testimony of a witness with Knowledge admissible 901(b)(2) – Lay opinion on handwriting genuineness admissible, if based upon prior familiarity with source 901(b)(3) – Comparisons by trier of fact or expert witness with specimens that have been authenticated admissible 901(b)(4) – Testimony on distinctive characteristics of a person or thing (appearance, contents, substance, patterns, in conjunction with circumstances) 901(b)(5) – Voice Identifications, either firsthand or by electronic transmission or recording, if under circumstances connecting voice to alleged speaker 1001 – Writings, Recordings, and Photographs – Definitions 1001(1) – Writings and recordings – words or sounds set down by writing or electronically 1001(2) – Photographs – stills, x-rays, videos, movies 1001(3) – Originals – writing/recording itself or counterpart having same effect (includes photo negatives and computer printouts) 1001(4) – Duplicates – anything that accurately reproduces original 1002 – Originals required 1003 – Duplicates allowed to same extent as original unless genuine question raised as to authenticity or if admission would be unfair. (Photocopies always treated as originals) 1004 – Original not required if: 1001(1) – Original lost or destroyed (unless lost/destroyed in bad faith) 1001(2) – Original cannot be obtained by available process 1001(3) – Original in possession of opponent that does not produce it after notice 1001(4) – Writing only related to collateral matter