FRE 103--- APPELLATE REVIEW OF EVIDENTIARY QUESTIONS
FRE 103—ruling is not prejudicial unless a substantial right of a party is affected.
On an objection or motion to strike MUST state the specific ground unless it is obvious
from the circumstances (PLAIN ERROR). An appellate court will refuse to review.
Last you could claim ineffective assistance.
AC will only review if 1) preserved the issue for appeal, 2) party persuades the AC that
the TC committed error in admission or exclusion, 3) must affect a substantial right.
If the witness answers before you object get a motion to strike. TC decision gets abuse of
discretion. If the TC makes an error of law that will be under a de novo standard.
FRE 601—competency of witnesses in general
Every person is competent to be a witness except by these rules. However in civil actions
w respect to an element of a claim or defense to which state law supplies the rule of
decision, the competency of that witness is determined according to state law.
Fre 605-- Competency of judge jurors and attorneys
Judge may not testify as a witness. No objection needed to preserve the point.
FRE 606—Competency of juror as a witness
a)—juror cant testify at the same trial. If juror is called opposing side can object out of
presence of the jury
b)—inquiry into validity of verdict or indictment. Juror may not testify as to any matter
or statement occurring during the course of the jury deliberations EXCEPT that a juror
may testify on the question whether extraneous prejudicial information was improperly
brought to jury’s attention or whether any outside influence was improperly beared on a
juror.
In diversity—state law may supplement competency. Maybe competent but not credible.
Under federal rules an atheist is competent to testify.
CL disqualified atheists and children. Evidence of religion is not admissible to prove
credibility. 606a is an exception to 103a requiring timely objection because of influence
on jurors. Rule 605 is an even more complete exception because obvious error of law.
Rule 606 b does not permit internal deliberation to be the subject of testimony because
we want finality in cases and not to have to poll every juror.
Dead mans law—it would be unfair for a living person to testify to conversations with a
dead person who could not contradict—congress found that states should be allowed to
enforce this if they want.
Baliff testimony not barred by 606. Juror testimony must be about outside influence
(flipping coin to decide not outside influence). Jurors will always bring in their own
personal knowledge so not a ground for reversal.
Witness recollection refreshed thru hypnosis-Courts have dissenting views. Some hands down don’t allow, some allow if the other
side can rebut and test the credibility to the jurors. Some let in hypnosis but have to be
careful about what was known before hypnosis and after. Under cali rule 795 admissible
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if it meets certain criteria. No detailed federal rule, mostly 601 governs. The rock case
says a state cannot have a categorical rule not allowing a D from testifying post-hypnosis.
FRE 602—The Personal Knowledge Requirement
Witness may not testify unless evidence sufficient to support a finding is introduced that
the witness has PK of the matter. Evidence may be the witnesses own testimony. This
rule is subject to rule 703 relating to opinion testimony by expert witnesses.
Rule 703 EXCEPTION allows an expert witness to testify based on facts she did not
perceive w her own senses.
The least reliable testimony is by someone who didn’t perceive the event.
As long as it is possible from the evidence he had PK you allow it, if the jury would find
that he had personal knowledge would that be supportable. Unless the evidence is so one
sided that there is no way a rational juror would think this person had personal
knowledge than you allow it.
A witness who once remembered something but no longer does, does NOT have PK.
PK means not only having been there, but also being able to communicate it. Old people
who cant talk don’t have PK. May serve some other function such as demonstrative
evidence.
You can have PK even if you have a bad view as long as you perceived the event.
FRE 603—Oath requirement. Affirmation does not invoke God.
FRE 901—REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
a) requirement of authentication as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what the
proponent claims.
b) Illustrations of authentications. These are not a limiting exhaustive list though.
Usually evidence is either testimony or some form of tangible evidence. This rule
basically has to do w tangible evidence. Whether the evidence is satisfied is a 104b
question. However evidence contesting the authenticity may still be admitted. How
much credit to give this evidence is a jury question. Claim about the item of evidence
must be consistent w the item’s relevance.
The most common way to authenticate is to call a witness with PK of the item to testify
that the item is what they claim it to be.
Demonstrative evidence—does not depict the real object; but merely illustrates the
witness testimony about them. (photo) Photo can be real evidence if offered as evidence
of the actual event in question not merely a witness testimony about those events.
Authentication through chain of custody—an items unique appearance might
allow the witness to say that is def the gun I saw w/o being the person that collected the
gun because its identifiable. However when there is no identifiable mark they can only
testify that this is what I saw looks like. To prove this is the same item you have to
establish a chain of custody.
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Cant have a long break in the chain of custody. Ex—cop etches initials into a gun
probably enough to authenticate unless this is common practice and could have been
another cop w another gun.
The standard is sufficient to support a finding which is an easy standard to meet. As long
as a reasonable juror would possibly believe its authentic.
FRE 902—SELF AUTHENTICATING
Extrinsic evidence is not needed to prove authenticity. Documents w seals, copies of
public records, official publications, newspapers. No evidence other than the evidence
itself.
FRE 1002—REQUIREMENT OF ORIGINAL (BEST EVIDENCE RULE)
If you are trying to prove the contents of a writing, recording or photograph then you have to
use the original. If you want to prove the contents you have to use the thing itself—that is the
requirement of this rule. The best evidence of its content is the thing itself. A persons
recollection is not as good as the thing itself.
EXCEPTIONS-- FRE1003-- a duplicate of the original is OK (printouts). FRE 1004-Original is not required and other evidence of contents of a writing (testimony) is admissible if
originals are lost or destroyed, original is not obtainable, original is in possession of opponent, or
the collateral(not closely related to a controlling issue).
FRE 1006—Summaries are ok if the contents are voluminous.
In order to make a BER objection the witness must be testifying to facts they claim are
based on the writing, photo, or recording. If they don’t mention it than cant object on
BER. As long as they are testifying about the contents you can object.
A duplicate will not be admissible when a genuine question of authenticity is raised ie
that’s not my signature.
Admissible if the evidence was destroyed by the opponent. Opponent would have to
have the original though since hes the one that destroyed it.
FRE 201—JUDICIAL NOTICE OF ADJUDICATIVE FACTS
To get JN the fact must not be subject to reasonable dispute and meet the 2 reqt below.
Governs only the JN of adjudicative facts.
The question is what kind of facts to we dispense w the formal requirements of proof.
What does JN mean—facts that will be deemed true w/o requiring formal proof. There are 2
categories of these facts that qualify.
 Facts that are generally known w/in the territory of the TC
 Capable of accurate and ready determination by resort to sources whose accuracy cannot
be reasonably questioned.
A fact can be JN if not subject to reasonable dispute because of the 2 elements above.
In a criminal case court shall instruct the jury it may but is not required to, accept as
conclusive any fact judicially notices. The JN may not be deemed conclusive.
The court must take JN if the party supplies the court with the necessary information.
Court must provide the adverse party an opportunity to argue JN. JN can be taken on
appeal.
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The rule does not govern the JN of law. Court hesitate to do this. Interpret statutes.
Courts regularly take JN of domestic (same state) law and federal law. Not other states.
Foreign nation goes to a jury. No municipal law.
Legislative facts—are those which have relevance to legal reasoning and the lawmaking
process. Courts must be permitted to take JN of legislative facts. Legislative facts are
not indisputable. The court will take a stand based on lawyer arguments. Law of
evidence doesn’t touch this.
You could take JN that a technology (breathalyzer) is sound but not JN of the results. If
the judge personally knows something that is not enough to take JN.
FRE 401—RELEVANT EVIDENCE
Evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable than it would be w/o the evidence.
FRE 402—RELEVANT EVIDENCE IS GENERALLY ADMISSIBLE;
IRRELEVANT EVIDENCE INADMISSIBLE.
Has to be a material fact. Its either relevant or its not. No such thing as very relevant.
Method for analyzing all evidence cases/ always start w these 3 questions
1. Start with the obvious question what is the evidence
2. What is it offered to prove/reason that the proponent is offering
3. Is it relevant for that purpose/ if not then rule 402 says it is not admissible
How weak can the generlization be before the evidence is not relevant.
When you don’t believe it is true than not relevant. If the generalization is only
true half the time the evidence is still relevant—you refute this with probably value.
4 things to test the accuracy of what people are saying (testimonial infrimties)
1. Perception is one thing that affects the accuracy of the witnesses testimony, makes you
think you saw something you didn’t. Possibility of a misperception. Witness
competency is also perception.
2. Sincerity of the witness.
3. Ability to communicate/ narration. We are interpreting what the person is saying into its
meaning. They say something really means something else.
4. Memory—between the event and the trial.
The jury has to decide about what evidence is relevant. If certain testimony goes to discredit a
witnesses testimony like it was raining might raise one of the testimonial infirmities, that’s
relevant.
In California only relevant if it goes to a disputed issue.
FRE 403—EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF
PREJUDICE, CONFUSION OR WASTE OF TIME
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If the probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
One kind of prejudice is unfair if the evidence is likely to be given more weight than it is
entitled to. This is inferential prejudice
Evidence that encourages the jury not to apply its reasoning power but convict the person
based on other circumstances this is unfair prejudice because it leads the juror to
lawlessness – nullification prejudice.
Evidence that has lower probative value doenst need to have as much prejudice in order
to exclude it.
A TC doesn’t is error to say something isn’t accurate, must say assuming this is true how
much value does it have and how much harm does it cause.
Could be a waste of time If the other side concedes a point.
Not all 403 issues reviewed under an abuse of discretion. If completely miss the law then
de novo. Very rare they reverse a 403.
UNDISPUTED FACTS
Where a D admits a fact, the P desire to present the case they want is outweighed by
prejudice. Ie—D admits hes an ex-felon you cant show hes an exfelon and admit his
prior crimes.
PROBALISTIC EVIDENCE
The probability of several things occurring together is the product of their separate
probabilities. Chance of flipping a coin heads 2 times in a row is 50% x 50% which is
25%. So three times in a row is 50% x 50% x 50%. – product rule.
FRE 104—PRELIMINARY QUESTIONS OF FACT
A)—preliminary questions re. Qualification of person to be a witness, existence of a
privilege, or the admissibility of evidence shall be determined by the court, subject to the
provisions in B. In making that determination the court is not bound by the rules of
evidence except those w/ respect to privileges.
B)—when the relevancy of the fact depends upon fulfillment of a condition of fact, the
court shall admit it upon, or subject to, the introduction of evidence sufficient to support a
finding of the fulfillment of the condition.
C)—hearings on the admissibility of confessions are always done by the court.
As a consequence the rule 104 starts with
Judges decide preliminary facts and not jurors. Preliminary questions concerning the
admissibility of evidence shall be determined by the court. This is the basic default rule.
There is an exception so when is it safe to leave the determination of preliminary facts to the
jury
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This goes to 104 b—the exception relevance conditioned on a fact.
 when the relevancy of evidence is conditioned upon the fulfillment of a conditon of fact
 the court shall admit it upon, or subject to
 the intro of evidence sufficient to support a finding of the fulfillment of the condition.
If part 1 of this is not met then its not in this rule. The first phrase tells you whether you have a
conditional relevancy problem, 2 and 3 phrase tell you what to do. There is evidence already in
the record or the attorney will present evidence later.
When there is a conditional relevancy the court still has a role to play, a filter but with large
holes if there is evidence sufficient to support a finding (104b) or there will be evidence later. If
the victim dies by stabbing then the statement we found a machete in the garage would be let in
because there is evidence (the victim died by stabbing) sufficient to support a finding.
The admissibility standard under 104 a is preponderance of the evidence. Preliminary facts are
always preponderance in civil or criminal or even constitutional.
Hypo
Prosecution of d for stealing from v home. V testifies that one of the object stolen was a Ferrari.
D object on relevancy grounds claiming v did not own a Ferrari.
The relevancy of the testimony is dependent on a fulfillment of a condition of fact which
is that the v owned one. The court should say is there evidence sufficient to support a finding
that the v owned a Ferrari and a statement made by the v that he owned one would be enough to
let it in, leave it up to the jury after to decide the truthfulness.
Example – arguing about whether something is a dying declaration. Court must decide
the preliminary fact of whether witness believed he was about to die.
One choice could be to let the statement in and tell them to ignore it if they find he wasn’t
on his deathbed.
The other choice is for the court to decide this preliminary issue itself and only allow the
jury to hear it if the courts finds this and all the other requirements are met.
The first options problem would be to require the jury to ignore relevant evidence if it
finds the preliminary facts not true. 104a-- The evidence is relevant even if preliminary
fact that he thought he was dying was not true because it helps the fact finder determine
who killed the witness. This is irrational to ask of a juror. The TC will decide
preliminary facts necessary to the admission of certain evidence. The court is not
confined to admissible evidence when making this determination.
Second example—where jurors allowed to decide preliminary questions. 104b
D denies killing P. Officer’s testimony he found a large dagger in D house is only
relevant if victim was killed by stabbing. If that fact is true evidence of the dagger
increases the possibility that D was the killer. It is not necessary for the judge to decide
the factual decision on how the victim was killed.
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Here if the courts says only consider the testimony about the knife if you find the victim
was killed by stabbing the jury could probably do that. The evidence is not a technical
rule it is common sense. As long as the P has provided evidence sufficient for a
reasonable juror to find the victim died from a stab wound the jury should be allowed to
decide this. – this is called conditional relevancy. Its only relevant if the preliminary fact
(V died from stabbing) is true. ---104b.
Whether a witness has personal knowledge is a question left to the jury. Authenitcation
is also treated as conditional relevancy.
The court must decide things under 104a under a preponderance of the evidence standard
or more likely than not. Court may use any evidence it wants even inadmissible except
privileged. The court can take the very statement itself into account. If the proponent
only came w the statement itself to support the existence of preliminary facts, at CL no
under FRE unclear.
Under 104b—the court use a evidence sufficient to support a finding. The court need not
believe a preliminary fact is true only that a reasonable juror could reach that conclusion.
In this case the judge should only consider evidence that the jury will be able to hear.
What if the preliminary fact is the same as an ultimate fact the jury must decide.
Ex—co-conspirators statement, court has to decide if it would meet this exception which
also shows the guy was a conspirator. The only thing the court cannot do is tell the jury it
has found there was a conspiracy.
There are argument conditional relevance doesn’t make sense because the jury would just
disregard facts it didn’t find were true. So no need for gate keeper in 104b.
HEARSAY
All testimony is subject to question on 4 basis. Perception, memory, sincerity, narration.
The testimonial infirmities.
In criminal context its just unfair to have a trial by affidaivit.
FRE 801—DEFINITIONS FOR HEARSAY
A)—statement is an oral or written assertion or nonverbal conduct of a person if it is
intended by the person as an assertion. B)—declarant is the person that makes the
statement. C)—hearsay is a statement other than the one made by the declarant while
testifying at the trial or hearin, offered in evidence to prove the truth of the matter
asserted. D)—a statement is not hearsay if 1) prior statement of witness, 2) admission by
party-opponent.
FRE 802—HEARSAY RULE
Hearsay is not admissible except as provided by these rules or by other rules prescribed
by the supreme court pursuant to stat authority or by an act of congress.
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We can distinguish between a declarant and a witness. They might be the same person.
In a hearsay analysis you are looking at what the declarant said.
This is the asserion based model.
An assertion (not defined in 801) is words or conduct intends to convey information. A
question is generally not considered assertive. An order or instruction generally isn’t
hearsay. Conduct not intended to assert a fact would not be a statement. The act of a dog
generally not hearsay.—nothing would be gained from having the animal in court.
Conduct of mechanical devices is not hearsay. However when actually the assertion of a
person thru the device that is hearsay.
The statement has to be made other than while testifying. Statements at earlier trial or
even in the court if not under oath are hearsay.
Truth of the matter asserted
First what is the purpose of entering this statement. Must begin with relevance.
Second determine the first step in the chain of inferences that leads from the statement to
the conclusion. Hearsay analysis requires you only to consider the first inference from
the statement to the fact it is offered to prove. This is the first inference rule.—a
statement is offered to prove the truth of the matter asserted only if the first inference
from the statement must be true in order for the statement to prove the factual conclusion
the party wishes to prove. The statement is hearsay if the matter it asserts has to be true
in order for the evidence to be relevant.
Is what the declarant saying have to be true in order to be relevant—hearsay.
Must be being offered to be hearsay so someone jumping up in the gallery of the
courtroom yelling D is the murdered is not hearsay because not being offered.
Affidaivit and depo come under the hearsay rule.
The assertion can be something different than what it looks like. “I may have b.o. but at
least I never robbed a bank” the assertion is a accusation that he robbed the bank so if
used to prove he robbed a bank than its hearsay.
EVIDENCE AND CONDUCT THAT IS NOT HEARSAY
1. Situations in which the utterance or conduct constitutes words of
independent legal significance or verbal acts.
When the word are not evidence of a K but are the actual K itself that is not hearsay.
When the speaking of the words constitutes an act to which the substantive law attaches
legal significance. When words are not about the offer, but are the offer. If hearsay kept
this out it would be impossible to prove the deal. When words constitute the actual
slander that is ILS.
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2. Situations in which the value of the evidence derives from the fact that words
were spoken, not from the truth of the matter asserted.
Sometimes the fact that words were spoken is relevant in itself. If you need to know
whether a person was alive at a certain point, evidence the person said I’m alive would be
non-hearsay. Its not the content that matters.
The words spoken do not derive their value from their content but merely from the fact
they were spoken.
3. Situations in which the words are being offered to show their effect on the
listener rather than to prove the truth of the matter asserted
A persons words or conduct is relevant because of the effect they have on the person who
hears them. Sometimes the statement will be hearsay if offered to prove one thing but
not another. Brake ex) when mechanic statement offered to prove the brakes were
defective hearsay, when offered to show D knew brakes were defective not hearsay.
In the second example the truth of the statement doesn’t matter.
Whenever the reaction of a person who heard a statement is relevant to an issue in the
case, the statement is not hearsay if offered on that basis. – this creates a problem if
limited admissibility because hearsay for one but not another. – rule 105 says the court
should offer a limiting instruction. The court may use 403 to completely exclude the
statement if it does the balance test in favor of exclusion. However 403 weighs heavily
in favor of admission.
4. Situations in which the words or conduct constitute circumstantial evidence
of the declarants state of mind
Declarants state of mind a relevant fact. Ex—p says D is a lazy slob who hasn’t worked
a day in her life. Relevant to D character—hearsay. Relevant to show P feelings towards
D and that P would not have given P a gift. However if the statement is a direct one like I
don’t like her that is hearsay—maybe be exception under declarants then existing state of
mind later.
Some out of courts statement are admissible non hearsay when used to show knowledge.
Tryin to skirt the situation sometimes because every statement of a fact is also
circumstantial evidence of the declarant’s belief that the fact is true. the key is if there is
any special significance to the state of mind of the declarant.
Is the victims knowledge specifically important—kid in van case it was to prove the kid
had knowledge of the interior. Doesn’t necessarily mean admissible could be 403.
Ex—police sketch, HS if OTP that’s what the D really looked like. NHS if offered to
prove that victim had knowledge of an individual who had the appearance described.
Persons statement about her then existing intention to do something in the future. A
statement I am going to buy a gun tonight—not HS. It falls w.in circumstantial evidence
of the declarants then existing SOM. Others would treat it as direct evidence of the
declarants SOM which would be hearsay but subject to the exception 803(3). Forward
looking statements are admissible to prove the intentions of the declarant.
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Backward looking statements—someone tried to poison me—hearsay if offered to prove
someone tried to poison her. However to prove V didn’t commit suicide admissible.
Doesn’t have to be true, just being used to show the declarants state of mind. – relevant
non hearsay. However could be 403.
Difference between this and the direct statement of declarant state of mind which is
hearsay but subject to the exception is the HS one is I believe, or I think… that is direct
and HS.
5. Situations in which words or conduct are not assertive or are assertive of
something other than what they are offered to prove.
Non assertive conduct—ex) leaving your kids w someone shows that person is
competent. The actors don’t intend to assert the fact. In CL non assertive conduct offered
to prove the actors belief was HS. Look to deception on whether it really is assertive
conduct. Courts exclude this as non HS though.
Non assertive conduct can also be a subset of circumstantial evidence about a declarants
then state of mind.
If done for a purpose other than to state a fact then non HS. Covering your homes is not
assertive that a hurricane is coming.
Assertion does not require intent.
Alternative model of hearsay—the declarant model
Feds chose to reject this model and adopt the assertion based model.
This model said HS is a statement made by a declarant, other than while testifying at the
trial or hearing, the value of which depends on the credibility of the declarant. Any
hearsay under assertion based would also be in the declarant model, however declarant
model would also sweep nonverbal conduct that wouldn’t be HS now.
When court stray away from assertion towards declarant its because they believe the
value of the conduct or utterance is highly dependent on the declarants credibility.
Im the king of spain being used to show insane would be hearsay under decalarant but not
under assertive definition.
FRE 805—HEARSAY W/IN HEARSAY
H w/in H is not excluded under the H rule if each part of the combined statements
conforms with an exception to the H rule provided in these rules.
The testimony will not be admissible unless an exception exists for each layer of H. no
part will be admissible unless both have exception. In order to get anything in there must
be an exception for both. D said to Witness zed said he would kill me if I didn’t help him
rob the bank. Z to D—ill kill you… not H because used for SOM of D. D to Witness
zed said… -H because truth of matter. So neither get in.
HEARSAY VS. PERSONAL KNOWLEDGE
The difference between an objection based on hearsay vs. personal knowledge
The source of the conlusion is not someones observation but based on someone else.
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There is a HS problem when the witness is testifying about a statement out of court. If the
witness doesn’t quote or paraphrase then there is a personal knowledge problem and not
hearsay.. ie the tax agent relying on tax receipts. The tax agent says based on the research I
have done creates the problem where is he relying on out of court statement or doing his own
research.
If the witness does not quote or paraphrase but simply relies on another persons
perception as described in an out of court statement the proper objection is PK.
Exception vs. exemption
Exceptions—803, 804, 807. Exemptions—801(d)
Exceptions mean the statement is hearsay but there is an exception. Exemption—these
are not HS even though it analytically satisfies the definition.
2 kinds of exemptions, prior statement and party admission.
1. Prior statements of witnesses- but only certain kind
 Prior inconsistent, Prior consistant, Identification
Under California law party admission treated as hearsay but come under an exception under the
federal law they are Not hearsay—exempt.
EXEMPTIONS FROM THE HS RULE;
PARTY ADMISSIONS-- FRE 801D2
Must be admission by a party opponent, offered against a party, and is
a) a) the partys own statement in either an individual or representative capacity, or
b) b) a statement of which a party has manifested an adoption or belief in the truth,
or
c) c) a statement by a person authorized by the party to make a statement concerning
the subject, or
d) d) a statement by a party’s agent or servant concerning a matter w/in the scope of
the agency or employment made during the existence of the relationship or
e) e) a statement by a coconspirator of a party during the course and in furtherance
of the conspiracy.
The contents of the statement shall be considered but are not alone enough to establish
the declarants authority under subdivision c, the agency or employment relationship
under d, the existence of a conspiracy and participants of the declarant and the party
against whom the statement is offered under e.
So, if a party has made a statement, the party’s opponent is entitled to offer that statement
into evidence to prove the truth of anything relevant including the matter asserted. Any
statement made by a party may be offered by the party’s opponent. This means any party
can produce a witness to testify about an opponent’s statement.
Admission doesn’t mean admitting anything it just means saying anything, as long as it’s
the party’s statement and offered against that party. Somehow the statement is going to
be tested.
Offered against him—so the party who made the statement couldn’t offer it.
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The completeness doctrine—if one party offers part of a statement the opponent is permitted to
offer the rest of the statement if that would explain it, put in context, or give the jury a better
understanding of what the statement meant. Is a limited exception under federal law limited to
writings and recorded expressions. this is the exception to the declarant not being allowed to
offer her own statement
The party admission rule is the easiest rule of evidence. Only requirement is the statement of the
pary and offered against the party. Doesn’t have to have been against the interest of the party
when it was made.
For party admissions the courts do not require the declarant to have personal knowledge of the
facts contained in the statement. So even if defendant didn’t have PK of the fact when they said
it, its still admissible.
FRE 106—remainder of or related writings or recorded statements
When a writing or recorded statement is introduced by a party, an adverse party may offer any
other part or any other writing or recorded statement which ought in fairness to be considered
contemporaneous with it. (completeness doctrine).
ADOPTIVE ADMISSIONS
A party manifests a belief in the truth of something another person says. The speakers statement
becomes the statement of the other. Ex)—you ran the red light, shaking head up and down.
Silence can be an AA. D must have heard and understood, and if under the circumstances you
would expect a person who disagreed with the statement to say something. --- 104a question in
most jdx, not all. 104a because requires hearing the thing the D is adopting.
VICARIOUS ADMISSION
Ex—corporate spokesman. Will be an authorized admission if offered against the corporation.
Authorized admission rule applies to external as well as internal statements. Internal—financial
records. Under 801d2d, is non hearsay regardless of whether the agent was authorized to speak
concerning the matter. It just must concern the conduct of the declarants job, and made while he
was an employ of the store/corp.
Statements of gov. agents do not qualify as party admissions in criminal case. Courts that may
revamp this look at the rank and authority of the gov. official who made the statement.
CO-CONSPIRATOR STATEMENTS
Preliminary facts—there must have been a conspiracy, the declarant must have been a member
of the conspiracy, the statement must have been made while the conspiracy was in existence;
and, the statement must have been made in furtherance of the conspiracy.
These are all 104a questions. – the judge just cannot inform the jury he found a conspiracy.
Court only uses the more likely than not standard. The jury would have to use beyond a
reasonable doubt. Co-conspirator statements are admissible even if conspiracy is not charged.
Also applies even if the declarant is not a party. The prosecution is going to benefit from this
every time. The statement cant form the sole basis for finding the preliminary facts. Don’t need
a lot of extra evidence just some. Can be made after the guys get caught if the conspiracy is still
going on.
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EXEMPTIONS—FRE 801D1—PRIOR STATEMENT BY WITNESS
Not hearsay if 1) prior statement by a witness. The declarant testifies at the trial or hearing or is
subject to cross-examination concerning the statement, and the statement is A) inconsistent w the
declarants testimony and was given under oath at a trial, hearing, or deposition, or B) consistent
with the declarants testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper inlfluence or motive, or C) one of identifcation of a
person made after perceiving the person.
Prior inconsistent
Declarant must testify at the trial or hearing, and the declarant must be subject to crossexamination concerning the prior statement. Saying I don’t know or remember is still subject to
cross.
Can be used substantively or to impeach the witness (non substantively)
Substantively only if 2 requirements met
 Statements is inconsistent w the witnesse’s testimony at the trial; and
 Statement was given under oath
So substantive use not admissible if just made to a friend. Basically must have been made as a
witness in a prior proceeding.
There is no requirement the prior inconsistent statement be made under oath when used to
impeach.
A statement of prior consistant statement will only be admissible if
 Statement is consistant w witnesses statement at trial; and
 Statement is offered to rebut an express or implies charge of recent fabrication or
improper influence or motive.
Timing is important, must have been made before the alleged influence. Prior statements need
not have been made under oath.
Statements of prior identification
Declarant must testify at the hearing, subject to cross about the statement, and must be one of
identification after perceiving the person. The declarant doesn’t have to testify about the
identification, just requires testifying at the trial. Usually sufficient if takes the stand and
willingly answers questions.
Descriptions are not available by this rule, identification must be of a specific person. The ID
doesn’t have to be in person, it could be from a photo. There might be other reasons to exclude
like cops created an improper lineup. It doesn’t have to be the person that made the ID, it could
be the cop who she made the ID to.
EXCEPTIONS TO HEARSAY
803—23 exceptions regardless if the declarant is available, 804—5 exceptions only when the
declarant is unavailable, 807—catchall residual exception.
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EXCEPTIONS TO HS WHERE AVAILABILITY OF DECLARANT IS IMMATERIAL
Time sensitive statements
FRE 803 (1) AND (2)
1) PRESENT SENSE IMPRESSION
statement describing or explaining an event or condition made while the declarant was
perceiving the event or condition; or immediately thereafter.
2) EXCITED UTTERANCE
a statement relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.
803 (1)—a person is observing an event that is not startling event. There is no requirement the
statement be made to an observer who had an equally good opportunity to observe the event and
who can therefore validate the observation.
803 (2)—104a question, all preliminary facts must be there. Because the statement will be
relevant even if one or more of the prelim facts are not true so 104a.
there is no clear or precise time limit. If sufficient time has passed to give the person time to
reflect on the event, the statement will not qualify. If the statement is in response to a question
that is likely to be reflection.
Excited utterance must relate to the condition, present sense must describe it.
Statements concerning state of mind and physical condition
FRE 803 (3) AND (4)
3) Then existing mental, emotional, or physical condition
A statement of the declarants then existing state of mind, emotion, sensation, or physical
condition (such as intent plan, motive, design, mental feeling, pain, and bodily health),
but not including statement of memory or belief to prove the fact remembered or believed
unless it relates to the execution, revocation, identification, or terms of declarants will.
4) statements for the purpose of medical diagnosis or treatment
Statement made for purpose of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.
803(3)
Referred to as the state of mind exception. These statements directly assert the
declarants state of mind so they are hearsay. When not offered to prove the truth of the
matter its circumstantial evidence about SOM and not hearsay. Use the first inference
rule to tell the difference.
Ex—im planning on meeting her for dinner (hearsay, SOM) I’m going to meet her for
dinner (nonhearsay)
Must be about the then existing state of mind so backward looking statements are not
admissible under the rule. However present SOM about the future does apply because
referring to thoughts she then has in her mind.
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The rule does not allow the court to admit statements concerning a fact remembered or
believed if offered to prove the fact remembered or believed.
The one exception is the last part of the rule relating to wills.
The rationale of this rule is necessity and reliability. Ex) OH! That cramp really hurts—
excited utterance, present sense impression, state of mind.
803(4)
a person seeking medical help is unlikely to lie. CL was limited to purposes of medical
treatment has been expanded to diagnosis. This exemption permits statements made to a
doctor she had no intent of receiving medical treatment from. This is not limited to
statements made to medical professionals. Ex)—please get help I cant feel my legs, is
covered by the exception. The exception is also not limited to statements concerning the
declarants own medical condition. Parent talks about the sons condition.
However exception only applies to statements that are reasonably pertinent to medical
diagnosis. However anything reasonably pertinent so description of events may fall
under the exception. I was hit by a car may be pertinent to the doctor.
Most courts hold exception only applies to statements for getting medical diagnosis not
receiving so doctors statement you have cancer not under this rule
FRE 803 (5)—RECORDED RECOLLECTION
A memo concerning a matter which a witness once had knowledge but now has
insufficient recollection shown to have been made and adopted by the witness when the
matter was fresh in the witness mind and to reflect the witness knowledge correctly. If
admitted the memo may be read into evidence, but not itself received as an exhibit unless
offered by an adverse party.
It must not now be possible for the witness to testify completely and accurately. If the
witness did not directly write the memo she must have read it at the time and concluded it
was correct. This memo is a substitute for oral testimony. Because a transcript of oral
testimony couldn’t be taken into deliberation room by jury, neither can this. However if
the opponent wants to offer this into evidence they may do so. For this exception the
persons whose knowledge is preserved in the memo must testify in order for the
exception to apply. The proponent of the evidence has to prove all the prelim facts are
there and this can only be done thru the declarant.
Difference between recorded recollection and refreshing a witnesses recollection.
You can use anything to refresh a witnesses recollection. You can lead the witness.
None of these methods of jarring the witness recollection are evidence though. If none of
these work then you provide the missing info w a recorded recollection which must be
admissible evidence under this exception.
FRE 612—writing used to refresh memory.
If a writing is used while testifying, or before testifying and its in the interest of justice.
An adverse party is entitled to have the writing produced at the hearing, to inspect it,
cross examine, and introduce into evidence portions of it. If claimed there are portions
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not related to subject matter of testimony the judge looks at it in camera. If the writing is
not delivered pursuant to this rule, in crim cases strike the testimony or declare a mistrial.
This gives the adverse party an opportunity to show it is the writing and not the witness
memory that is the true source of testimony. If this is the case this is inadmissible
hearsay.
Business and public records
FRE 803 (6)—RECORDS OF REGULARLY CONDUCTED ACTIVITY
A memo …made at or near the time by, from a person w knowledge, if kept in the course
of regularly conducted biz activity, and it was the regular practice of that biz activity to
make the memo..all as shown by the testimony of the custodian or other qualified
witness, unless the source of information indicates untrustworthiness. The term business
applies to a calling of every kind whether or not conducted for profit.
FRE 803(7)—ABSENCE OF ENTRY IN RECORDS FROM (6)
Evidence that a matter is not included in the memo, to prove the nonoccurrence or
nonexistence of the matter, if the matter is the kind that would normally be in these,
unless indicate a lack of trustworthiness (you can admit evidence that the biz records DO
NOT show certain things that may indicate liability)
FRE 803(8)—PUBLIC RECORDS AND REPORTS
Records or reports setting forth a) activities of the agency, or B) matters observed
pursuant to a duty to report, EXCLUDING in criminal case matters observed by cops C)
in civil actions and criminal against the gov. factual findings resulting from an
investigation made pursuant to an authority of law.
FRE 803(10)—ABSENCE OF PUBLIC RECORD OR ENTRY
To prove the absence of a record or statement.. was regularly made and preserved by a
public office, that diligent search failed to disclose the record.
This exception assumes that records of regularly conducted biz activity are sufficiently
reliable to admit even if hearsay. If the record was kept in the regular course of biz and it
was the regular practice to make such a record its sufficiently reliable.
The content of admissibility is broad- includes opinions and diagnoses. The person
transmitting the info must have PK. A compilation is admissible as long as each person
contributing had PK. However when a person is not acting under a biz duty 803-6 does
not apply. Cops report from eye witnesses normally not under this exception, but if
captured something like an excited utterance the cops record could be admissible.
The business activity must be something they normally engage in. however documents
created for litigation will come under this exception because they have biz purpose as
well as use in litigation.
If it’s the habit to normally keep sales recording in her head wont come under this
because must be the regular practice to make these memos.
The rule does not demand the author of the record testify. Anyone can as long as they are
familiar with the biz and its record keeping.
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Sometimes its uneccessary to have a person testify to lay down the foundation for biz
records. The proponent can present a declaration. The proponent must provide prior
written notice they intend to introduce the evidence in this manner.
The public record exception is in there to encompass things that wouldn’t be transcribed
in the normal course of biz. Public officials are trustworthy.
There are limitations on public records.
 A)-- The record that sets forth the activities of the office or agency—payroll doc.
Admission w/o limitation.
 B)—matters observed pursuant to duty imposed by law.. ( a cops observation of a crime
scene, different kind of observation made by a property inspector) excluding in criminal
cases matter observed by police officers and other law enforcement personnel
(investigator, chemist) or(cops are considered adversarial to the D) this limitation only
applies when the record is offered by the gov, not when offered by the D (like officer A
saw officer B plant drugs could be offered by the d. these criminal limitations are ok
because we don’t want trial by affidaivit. However will be admitted when the record is
created by a public agency who is not in law enforcement. This provision applies to
records that simply describe observed data w/o analysis leading to factual findings.
 C)—in civil actions and against the gov in criminal cases, factual findings resulting from
an investigation made pursuant to authority granted by law. The gov couldn’t bring this
but the D could. Like the D was 5’2 the D who is 5’10 could bring it. Includes opinions
as long as those opinions are based on investigatons and factual findings. Ex) cause of
airplane crash report admitted, even if finding partly based on eyewitness testimony. The
eyewitness statements however not admitted unless another hearsay exception.
803 (10) (7)
records are relevant for what is not in them. 7- biz records admissible to show something
not in them. (credit card co. offers statement to show no payment was made.) 10—same
function for public records. ( public filing to show registering handgun did not take
place.)
EXCEPTIONS TO HEARSAY WHERE THE UNAVAILABILITY OF THE
DECLARANT IS REQUIRED
FRE 804—DEFINTION OF UNAVAILABLE
1) exempted by privilege, 2) persists in refusing to testify concerning the subject matter
despite a court order to do so, 3) testifies to lack of memory of the subject matter of the
declarants statement, 4) unable to be present because of death or physical or mental
illness, 5) proponent has been unable to procure declarants attendence by reasonable
means.
A declarant is not unavailable if absences above are due to procurement or wrongdoing of
proponent for preventing the witness from testifying.
Unavailability is a 104a question. Even a groundless claim of privilege may make the
declarant unavailable. A witness who does not remember the subject matter of her prior
statement is unavailable as a witness even though she is considered subject to cross
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examination. This does not apply unless the declarant herself testifies to a lack of
memory.
Finally you cant force a person to be unavailable just to get their statement in.
FRE 804 (B) (1)—FORMER TESTIMONY
Testimony given as a witness at another hearing of the same or different proceeding or in
a depo, if the party against whom the testimony is now offered or in a civil action a
predecessor in interest, then the party against whom the evidence is being admitted must
have had an opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination.
HAS TO HAVE BEEN TESTIMONY. Cant just be a sworn statement.
If a witness becomes unavailable in the second proceeding. So for civil case requires
everything a crim case does but doesn’t have to be the party can be a predecessor in
interest. In a crim case it has to be the same party. Predecessor in interest means a party
whos interest and motivation track those of the party against whom the evidence is now
offered. The persons testimony must have been a witness. The former testimony need
not have been given at trial.
Must have had the opportunity to question the witness. Even if the first trial was criminal
and the second was civil there was still a similar motive. If the D changed lawyers still
counts as similar motive.
Ways to prove are the transcript of the prior testimony, or someone who had first hand
knowledge of what was said, not the truth of what was said just the actual words. No
requirement of best evidence since the transcript would be the best because BER only
applies when a party seeks to prove the contents of the writing.
FRE 804 (B)(2)—DYING DECLARATION
In a prosecution for homicide or in a civil action a statement made by a declarant while
believing that the declarants death was imminent, concerning the cause of what the
declarant believed to be impending death.
Based on reliability. Especially applies to those w/ religious views of the afterlife.
Note the rule does not require that the declarant died. Thus if declarant is unavailable for
other reasons and the prereq are met its admissible. – 104a, the court may consider the
statement itself. If the declarant expressed hope of recovery that would undermine
impending death.
FRE 804 (B)(3)—DECLARATION AGAINST INTEREST
Statement which was at the time it was made so far contrary to the declarants pecuniary
or proprietary interest or so far subjected the declarant to civil or criminal liability, or to
render invalid a calim by the declarant against another, that a reasonable person in the
declarants position would not have made the statement unless believing it was true.
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A statement tending to expose the declarant to criminal liability and offered to exculpate
the accused is not admissible unless corroborating circumstances clearly indicate
trustworthiness of the statement.
Limitations are statements that would tend to subject the declarant to criminal liability
because those don’t seem as reliable unless supported by corroborating. Criminal D
would take advantage of the rule by having a witness testify that another person, no
longer available had confessed to the crime.
However where is the fairness that there is only a requirement of corroborating evidence
that tends to exculpate the defendant and not for statements that inculpate both the D and
the declarant.
Ex) if zed testified her and D committed the crime then disappears the P could use that.
If Z testified she committed the crime alone and disappears, D could not use that unless
she had corroborating evidence.
While the federal rule does not, California rule specifically includes statements that
create the risk of making him an object of hatred, ridicule or social disgrace in the
community.
Standard of the rule—not what the declarant thought, but what a reasonable person in
declarants position would have thought. Ie) a reasonable person would not have made
the statement unless it was true. – 104a. whether the statement is truly accurate depends
on the circumstances of how it was said.
Neutral or self serving statements
Court in willamson found neutral statements made during the course of an otherwise self
incriminating statement are not w/in the scope of this exception. Does not allow
admission of non inclupatory statements even if made w/in one.
Difference between this and party admission
PA don’t have to be inculpatory or even require PK. PA does not require unavailability.
The only limitation of PA is has to be offered against the party. Declarations against
interest must be against interests, need not be made by a party, and declarant must be
unavailable. Statement is objectionable if declarant lacks PK.
FRE 804 (B)(6)—forfeiture by wrongdoing exception.
A statement offered against a party that has engaged or acquiesced in wrongdoing that
was intended to, and did, procure the unavailability of the declarant as a witness.
That party forfeits the protection of the HS rule. A defendant waive his constitutional
confrontation rights by threatening a witnesses life. They could be responsible as a
reasonable consequence, acquiesced suggests you don’t have to be directly involved.
Mere participation in a conspiracy may not be enough, but if the conspiracy is ongoing.
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FRE 807—RESIDUAL EXCEPTION
A statement not specifically covered by 803 or 804 but having sufficient trustworthiness
is not excluded by hearsay if A) statement is offered as evidence of a material fact, B) the
statement is more probative on the point for which it is offered than any other evidence
which the proponent can procure thru reasonable efforts, C) the general purpose of these
rules and the interest of justice will best be served by admission of the evidence.
However a statement under this provision will not be admitted unless the proponent
makes it known to the adverse party in advance of the trial to provide the opponent with
an opportunity to meet it, the proponents intention to offer and particulars of it including
declarant name and address.
This rule goes to need and reliability.
The evidence will not be admitted unless the statement is not specifically covered by 803
or 804, but has equivalent level of trustworthiness. Must be offered as evidence of a
material fact. Must be more probative than anything else you could get. Interest of
justice and notice.
The near miss problem
Depends on the interpretation of residual. Some say like darts where if you barely miss
you still get points others say no evidence is if you don’t meet the prereq not admissible.
Courts will judge the trustworthiness of it.
Grand jury testimony
Grand jury witness cant be cross examined. D is not there nor represented. Because d in
a criminal trial had no opportunity to cross witness before grand jury, their testimony
may not be admitted under former testimony exception. Courts taking the near miss
approach may say admissible if it meets 807.
The residual exception tends to favor the gov. in prosecution.
Hearsay and the constitution
6th amendment confrontation clause. Rule doesn’t forbid the use of hearsay as long as the
D has the ability to confront the witness who reports the hearsay. Fear of trial by
affidaivit. Confrontation clause is only necessary if the evidence satisfies a hearsay
exception. The key the court found was an indicia of reliability in the statement.
A co-conspirator statement is more probative than the declarants testimony at trial.
Unavailability requirement in this scenario would produce lil to no benefit. Co
conspirator satisfies confrontation even if no declarant and even if don’t demonstrate
declarant is unavailable.
The residual exception is not firmly rooted. Co conspirator was firmly rooted which
meant no further inquiry into reliability was needed.
Things not firmly rooted require inquiry into their reliability.
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The court established a bright line rule
1. The declarant had to be unavailable
2. Had to be trustworthy
To determine trustworthy
 The evidence falls in a firmly rooted hearsay exception
 Even if it doesn’t then you can show sufficient circumstantial guarantees of
trustworthiness.
Firmly rooted
 Is it old
 Is it widely accepted.
Firmly rooted exceptions
 Excited utterance
 Present sense impression
 But also the former testimony
 Co-conspirators
For non firmly rooted there must be adequate circumstantial
 Corroboration—other evidence points to the same facts that the statement does
 Circumstantially—the context the statement was made, all the circumstances that
surround the making of the statement, does it suggest trustworthiness.
Court said only circumstantial can be used but YOU CANNOT USE
CORROBORATING EVIDENCE. The SC said you cant look to other evidence and say
that shows this evidence is reliable.
This is where things stood until march of this year and the Crawford case.
CRAWFORD
The wifes statement in this case is a written statement to the police. Not prior testimony.
Narrowly qualified under declaration against interest.
The court said testimonial hearsay—former testimony, grand jury testimony, formal statements
to the police when being interrogated.
The confrontation clause was written to prevent testimony from being used against the D unless
that person is on the stand. We don’t want cops getting on the stand and reading people
statements.
Since this was testimonial in nature this is what was barred by the confrontation clause.
Bright line rule is..
Testimonial hearsay is inadmissible against a criminal defendant unless it was cross examined by
the D. – grand jury testimony does not survive. In Dent the grand jury testimony is inadmissible
against a criminal D. period. The police taking a statement from a witness, seems to fit under
recorded recollection rule but was testimonial in nature and would be inadmissible.
Evidence rules have to give way to allow a criminal D to offer evidence that would be
inadmissible hearsay.
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There is narrow times when this would be allowed, for the most part only in extreme
situations where you look at it and say this is really bad.
If its testimonial – then Crawford.
If non testimonial—Roberts applies
In Roberts—a preliminary hearing testimony was admissible evidence because the D was
given the opportunity to cross at the prelim and it was reliable. When a hearsay declarant
is not present for cross at trial the confrontation clause requires a showing he is
unavailable. Even then the statement is only admissible if it is reliable. Reliability can
be inferred when it firmly falls w/in a hearsay exception. In other cases the evidence
must be excluded at least absent a showing of particularized guarantees of
trustworthiness. Roberts requires specific guarantees of trustworthiness.
Court found trustwothiness must be shown from a totality of the circumstances but the
relevant circumstances include only those that surround the making of the statement and
that render the declarant particularly worthy of belief.
Court may not look to corroborating evidence to verify the accuracy of the statement.
FRE 404-- CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE
CONDUCT; OTHER CRIMES
A) character evidence generally—not admissible for the purpose of proving action in
conformity therewith on a particular occasion except
1-- character of accused—evidence of trait of character offered by an accused or by the
prosecution to rebut the same, or if evidence of an alleged victim is offered by an accused
and admitted under 404a2, evidence of the same character of the accused offered by
prosecution
2—character of alleged victim—character of alleged victim offered by an accused, or by
the prosecution to rebut the same or evidence of character trait of peacefulness of the
alleged victim offered by the prosecution in a homicide case to rebut evidence that victim
was the first aggressor.
3—character of a witness—rule 607,608,609
B) other crimes wrongs or acts—not admissible to prove the character of a person in
order to show action in conformity therewith. May however be permissible for other
purpose such as motive, opportunity, intent, preparation, plan, identity, or absence of
mistake of accident, modus operendi, provide that upon request by accused, the
prosecution in a criminal case shall give notice.
FRE 405—METHODS OF PROVING CHARACTER
a—reputation or opinion. In all cases where evidence of character is admissible, proof
may be made by testimony as to reputation or by testimony in the form of opinion. On
cross examination inquiry is allowed into relevant specific instances of conduct.
b—specific instances of conduct. In cases in which character of a trait or character of a
person is an essential element of a charge, claim or defense, proof may also be made of
specific instances of that persons conduct.
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Character of accused (criminal defendant)—a Defendant in a criminal case is allowed to offer
evidence of a pertinent trait of her own character. We allow the D to do what we don’t allow the
prosecutor to do which is to prove his innocence by character.
If the D chooses to do that the Prosecution is allowed to rebut that. If the D never offers
evidence that he is a good character then the P can never offer evidence that he is a bad person.
Character of the victim—allows the criminal D to offer evidence about the character of the
victim, or the prosecution to rebut the same.
The prosecution can then offer evidence against the D as to that same trait.
For 405
The basic rule is proof may be made by opinion or reputation.
However on cross examination inquiry is allowable into relevant specific instances of conduct.
When character is something you have to prove we should allow all CE. When character is a
specific element you can use also specific conduct—405b
2 instances where the P can offer character evidence first under 404
404a2—homicide prosecution where d claims victim was first aggressor
404a1 and 2—d makes a claim about victims character then P can use character evidence about
D.
Propensity evidence—evidence shows a persons tendency to act in a certain way. –
character evidence. Habitual behavior.
Character evidence must have a moral or ethical component.
2 kinds of prejudice
 inferential error—jury might overvalue the evidence, this is a strong indicator the person
committed the crime.
 Nullification---jury might here this person did something else bad and just forget or not
care if they committed this crime but just we gotta put them away or punish them.
3 purposes for which character evidence might be offered (doesn’t mean admissible just
relevant)
1. When character is something you have to prove, a required element. – ex. Negligent
entrustment let someone use your car and that person gets in an accident, part of the proof
is showing you know they had a tendency to be a bad driver. When character is an
essential element, you cant win your claim or defense w/o proving character the rule is
very open and lets you prove character thru many methods.
2. To prove how someone acted out of court. To prove someone committed the robbery you
prove that they are the sort of person that does that. Not necessarily admissible but
relevant. Circumstantial evidence
3. circumstantial evidence of in court behavior. To prove character as circumstantial
evidence of the truthfulness of a witness.
Community reputation is the most widely accepted and used. Reputation, opinion,
specific instances of conduct are the 3 ways to do it.
Opinion would be testimony of someone who knows the persons character well enough
to assert an opinion about it. Rule 701 governs lay opinion. Requires it be rationally
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based on perception. However while a coworker may be able to testify to promptness
they may not have enough insight into that person to determine peacefulness. Usually the
witness may not explain the basis for the opinion by referring to specific instances of
conduct.
Could offer expert opinion governed by 703.
When character evidence is otherwise admissible you can use reputation and opinion
evidence. Specific instances may only be raised during cross examination. However
when an essential part of a claim then specific instances may be used on direct.
On direct- opinion and reputation. On cross- specific instances.
In cross examining a witness using specific instances of conduct Have you heard would
be ok, but did you know would not.
Another rule has been added.
FRE 413—EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES
In a criminal case where a D is accused of an offense of sexual assault, evidence of the
defendants commission of another offense of sexual assault is admissible. Have to give
the D notice.
Rule 413-415 do away with character prohibition in sexual assault and child molestation
prosecutions as well as civil cases based on this misconduct.
The prosecution in a rape case could enter into evidence instances of D prior sexual
history but the D could not bring in evidence of P prior history.
FRE 412—SEX OFFENSE CASE; EVIDENCE OF ALLEGED VICTIMS PAST
SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION
Evidence is generally inadmissible.
Exceptions—in a criminal case to show another person was the source of semen, injury,
or other physical evidence. Specific instances of sexual behavior by victim with respect
to accused to show consent.
In a civil case—evidence offered to prove the sexual behavior of an alleged victim is
admissible if it is otherwise admissible under the rules and probative value substantially
outweighs the danger of harm to the victim. Evidence of an alleged victims reputation is
admissible only if it has been placed in controversy by the alleged victim.
Finally there are some procedural rules like in camera review, doesn’t just go to a jury.
Special ruled for homicide protection
404a2 provides a special exception in homicide prosecutions in which the D claims
alleged victim was first aggressor. P may offer evidence of the victim character for
peacefulness to rebut any evidence offered by the D to prove the victim was first
aggressor. This is the only instance where the prosecution can be first party to offer
evidence of any persons character. In every other situation P is forbidden to offer
character E until D has opened the door.
Other crimes wrongs or acts—404b.
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Not admissible to prove character, but may be admissible to prove the other things like
motive. Have to be careful not used to show she has the character to commit these type
of crimes but rather she had the opportunity to commit these type of crimes. Court must
decided if a limiting instruction will be enough. As long as propensity is not character
based its admissible. (Motive, opportunity, plan, preparation, intent, knowledge, identity)
Doctrine of chances—ex) man has 3 wives that die the same way. What are the chances
that these all happened coincidentally. Because the evidence of prior acts has doesn’t
show necessarily that the person is the type that would do this but rather proves the
corpus delicti of the crime its admissible.
The term act means misconduct. Any conduct that forms part of the matter at issues is
not covered by 404b. some courts have held that to mean any crimes that were in the
same time frame. They call in inextricably intertwined.
A persons drug addiction or membership in a gang is probably another intertwined crime
wrong or act.
Timing of uncharged misconduct
Nothing in the rule requires that the evidence at issue concern acts committed before the
act at issue in the case. The only limitation is relevance. Theory would be the D had a
plan. Sometimes timing matters if evidence of other conduct doesn’t make sense as
applied to this case.
Degree of similarity required between charged and uncharged conduct
Varies according to the circumstances. With same crimes in a geographic area that’s
weak evidence of plan and probably wont be admitted.
Whenever a party offers uncharged misconduct evidence the proponent must not only
specify the general theory but the ultimate purpose for what the evidence is offered.
4 step process
 evidence must be offered for a proper purpose
 evidence must be relevant
 probative value of the evidence must not be substantially outweighed by the
danger of unfair prejudice or other concerns of rule 403
o jury might use it for character, give it more weight than it deserves,
nullification. If the evidence is not in dispute might confuse the jury or
waste of time.
 pursuant to 105 the court must issue a limiting instruction if a party requests it do
so, and may offer one even w/o a request.
Judge/jury function; how much proof is needed for the uncharged conduct.
Even if the D was acquitted in the previous crime you can still use that. This is a 104b
question in the prior misconduct.
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FRE 406—HABIT ROUTINE PRACTICE
Evidence of the habit of a person or 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.
Habit evidence is generally admissible in contrast to character evidence. There are no
limits on proving habit. The behavior doesn’t have to be automatic. Requires testimony
concerning a sufficient number of instances of the behavior to persuade the court it rises
to habit. Second part a stores routine of giving a specific receipt is admissible to prove
customer received a receipt on a particular occasion.
Evidence of similar events
Evidence that people have suffered under similar conditions. Similar happenings is not
evidence of propensity. Habit evidence refers to repeated conduct, whereas a single
event can be a similar happening. Similar events took place under the same or closely
simlar circumstances. Ex) 5 people have run into the pole in the front of a store. The
absence of similar accidents under similar conditions has a tendency to prove lack of
unreasonable danger. Ex 2) if they increase the pole size then the events are maybe not
similar enough so evidence of prior incidents not admissible because could influence the
jury or be used as character evidence.
EXCLUSION OF RELEVANT EVIDENCE FOR POLICY CONCERNS
FRE 407—SUBSEQUENT REMEDIAL MEASURES
When after an injury or harm allegedly caused by an event, measures are taken that , if
taken earlier would have made the harm less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence, culpable conduct, a defect in a product, a
defect in a products design, or a need for warning or instruction. This rule does not
require the exclusion of evidence of subsequent measures when offered for another
purpose such as proving ownership, control, or feasibility of precautionary methods, if
controverted, or impeachment.
California does not apply this rule to products liability case.
The rule only applies when evidence is offered to show fault, and then only when its
relevance depends on an inference that the remedial measure stands as the actors
recognition of fault. The rule does not forbid any other use of the evidence.
If D defende on ground he is not responsible for maintaing the sidewalk outside the store
then the evidence would be admissible to show ownership. Limiting instruction.
Timing
The remedial measure must have been taken after the event that gave rise to the action.
Only excludes remedial conduct undertaken after the issue. If I own a 2002 car with a
problem accident occurs in 2004 and they fixed that problem on cars starting w/ 2003,
before the accident that is admissible and not w/in the rule.
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If the defendant made a claim that it was impossible to fix that particular problem then
you can introduce evidence of susbsequent fixing of that problem, that would be
admissible. – challenging feasibility.
You can also admit subsequent remedial measures to impeach a witness. Courts however
are cautious to admit this for impeachment purposes, probably has to be a direct
impeachment.
Court retains 403 power over it.
FRE 408—COMPROMISE AND OFFERS TO COMPROMISE
Evidence of offering or accepting or attempting to accept or offer valuable consideration
in compromising is not admissible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compromise negotiations is also
inadmissible. This rule does not require the exclusion of any other evidence otherwise
discoverable merely because it is presented in the course of compromise negotiations.
This rule also does not require exclusion when offered for another purpose such as
proving bias or prejudice of a witness, negativing a contention of undue delay, or proving
an effort to obstruct a criminal investigation or prosecution.
FRE 409—PAYMENT OF MEDICAL AND SIMILAR EXPENSE
Evidence of furnishing or offering or promising to pay medical, hospital, or similar
expenses occasioned by an injuryis not admissible to prove liability for the injury.
Rule 408 applies to efforts of both parties. Must be engaged in a bona fide effort to
compromise a claim that is “disputed as to validity or amount.” Rule applies to
completed compromise and unsuccessful ones. Rule excludes settlement demands/offers.
This includes statement of fact even if otherwise would be a party admission. Party need
not state a fact “arguendo.” Rule only applies when offered to prove liability. If rules
permit discovery of certain evidence, a party may not shield that evidence by presenting
it during compromise. Application of the rule not limited to the parties currently at trial.
Evidence that another party settled the claim in the same manner is also excluded if
offered to prove liability for the claim, its invalidity, or the proper amount.
Want to encourage negotiation and has low probative value.
The biased witness
If P settles w one of the D and offers to pay him off w a settlement from the other D then
evidence of their deal is admissible to show the bias of the witness.
Rule 409—doesn’t require the person making payment to have been involved in the
accident or even be a party to the suit. Any persons offer will be excluded if offered to
prove liability for the accident. In addition the conduct need not take place directly after
the accident. Only applies to medical bills. Offer to pay towing charge or loss wages
would not be excluded.
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408 vs. 409
Sometimes 408 and 409 overlap. 409 excludes offers even in the absence of a disputed
claim. If the claim was disputed tow charges would be excluded under 408 but no 409.
408 excludes statements made in connection w the compromise while 409 does not
exclude statements of fact. The drafters thought frank discussion was more important in
408 than 409. 409 does not contain a list of permissible uses. Even so the evidence is
only excluded when offered to prove liability. Any other purpose the evidence is not
excluded.
FRE 410—INADMISSABILITY OF PLEAS, PLEA DISCUSSION, AND
RELATED STATEMENTS
Not in any civil or criminal proceeding, admissible against the defendant who made the
plea or was a participant in plea discussions:
A plea of guilty that was later w/drawn. A plea of nolo contendere. Any statement made
under rule 11. any statement made in the course of plea discussions w/ an attorney for
the prosecuting authority which do not result in a plea of guilty or which result in a plea
of guilty later w/drawn.
However, such a statement is admissible in any proceeding where another statement
made in the course of the same plea or plea discussion has been introduced and in the
interest of fairness should be considered contemporaneous, or in a criminal proceeding
for perjury or false statement if the statement was made by the defendant under oath, on
the record and in the presence of counsel.
A guilty plea that was never withdrawn may be used against a D in a later proceeding. If
a D withdraws the plea you cant in the subsequent proceeding enter evidence that he once
pleaded.
With a nolo contendere plea the gov. gives up the right to use the plea in a subsequent
proceeding.
Cant use statements in a nolo contendere hearing or withdrawn guilty plea hearing.
Plea bargain exclusion must have been made during discussion w an attorney for the
prosecuting authority. Statements made to cops are thus not protected. Unless the cops
are acting as an agent for the prosecutor.
If the D offers a statement made during the plea bargain in fairness another statement
might be let in. if the d later gets charged w perjury then his statements in the plea
hearing will be admitted.
Plea evidence is not admissible even for impeachment purposes.
Suppose a prosecutor inserts a waiver clause. Allows a D to plead to a lesser charge but
stipulates that if talks break down she can use all the plea discussion. Absent some
indication that the agreement was enetered into unknowingly or involuntarily, an
agreement to waive the exclusionary provisions of the plea statement rules is valid and
enforceable. The practice of obtaining waivers as a result of this case Mezzanatto has
increased dramatically.
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FRE 411—LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not admissible upon the
issue whether the person acted negligently or otherwise wrongfully. Rule does not
require exclusion when offered for another purpose such as proof of agency, ownership
or control, or bias or prejudice of a witness.
Courts are pretty strict about this so the safest thing if you want to offer evidence for
another purpose is to make a motion in limine.
However when a party contest ownership evidence they took out insurance is highly
probative of ownership. 2nd maybe witness bias since money wont be coming out of D
pocket. 3rd maybe juror are connected so asking the jury insurance questions—courts
will limit the scope of these questions.
Sometimes incidental disclosure of insurance happens and the court will just give a jury
instruction not to draw any inferences will not declare a mistrial.
EXAMINING WITNESSES; ATTACKING AND SUPPORTING CREDIBILITY
OF WITNESSES
MODE OF WITNESS EXAMINATION
FRE 611
a) control by court
the court controls the mode and order of interrogating the witness so as to make the
iterrogation productive, avoid needless consumption of time, and protect witnesses form
undue embarrassment and harrasment.
B) scope of cross examination
Cross should be limited to the subject matter of the direct and matters affecting the
credibility of the witness. The court may permit at its discretion the inquiry into
additional matters as if on direct.
c) leading questions
Leading questions should not be used on direct except as necessary to develop the
witness’ testimony. Ordinarily leading questions are permitted during cross. When a
party calls a hostile witness, an adverse party, or a witness identified with the adverse
party interrogation may be by leading questions.
Court use 611a to regulate the manner of questions. If they are ambiguous or its unclear
what facts they hope to reveal. Confusing, misleading, argumentative. Argumentative is
asserting facts w such force that it suggests those facts are already established and the
witness answer doesn’t matter. Compound question. Question that assume facts not in
evidence. Cumulative. Asked and answered—courts reluctant when asked by one party
after the other not the same party. Calls for narrative.
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611b – if the court determines cross goes beyond the scope of the direct, the second
sentence gives courts the right to permit cross as is on direct examination, meaning
cannot be conducted w leading questions as a cross normally can.
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611c—leading questions—permissible on cross and impermissible on direct. Restricts
because they are suggestive. That risk is less on cross. Same reason why permits leading
for adverse witness on direct. Sometimes outweighed by the fact the witness might not
be able to give important testimony w/o leading questions.
IMPEACHMENT
Cal ev. Code 780—testimony proof of truthfulness; consideration
To impeach is to call into question the witness credibility.
Things you can impeach on
A—demeanor and manner in which they testify. Gives you a basis on how to guage the
accuracy. The rules assume the demeanor affects the credibility.
B—character of the testimony—is it plausible. Maybe doesn’t add up because contrary to what
you know to be true in general.
C—extent of his capacity to perceive recollect and communicate.
D—extent of his opportunity to perceive. – was there an obstruction between witness and event.
E—evidence of character of the witness, how we can use the trait of honesty as to support the
cred of a witness.
F—bias
G-- Previous consistant statements. / Inconsistan statements from the W.
H—existence of any facts testified by him. Impeachment by contradiction. If the testimony is
contradicted by other evidence than the testimony is lowered, if wrong about one thing wrong
about another.
The most important way to lower the credibility of a witness is to show a witness bias
Extrinsic is anything other thatn what comes out of the witnesses mouth here and now at the trial.
There are situations in which you know the witness is not being truthful but you might not be
able to bring in extrinsic to prove that.
FRE 607—WHO MAY IMPEACH
The credibility of the witness may be attacked by any party, including the one that called
the witness.
Abolished the voucher rule that said you could only impeach adverse witness.
The possibility for abuse is a party calling their own witness because they know he will
provide testimony inconsistent w a prior statement so the only way to get it in is to call
him. Purpose could be to get the jury to hear the statement. Some fed courts have
required damage and surprise in order to get prior inconsistent statement. Some have
rejected this.
IMPEACHMENT BY METHODS NOT COVERED BY SPECIFIC CL OR
STATUTORY RULES
Things that go to opportunity/capacity to perceive. Recollect, narrate. == testimonial
infirmities.
Opportunity to perceive accurately, capacity to perceive accurately, recollect
accurately(consumption of alcohol or durgs), narrate accurately and comprehensibly,
appearance and status factors, demeanor (avoid eye contact), plausibility. – not subject to
specific rules so P could not have a specific rule objection unless D was hostile.
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WITNESS CHARACTER
Character for truthfulness. 1) opinion and reputation for truthfulness, 2) specific instance
of lying or telling the truth, 3) criminal convictions that suggest a character for
untruthfulness.
Different rule for each 3 and religious belief.
FRE 608A—OPINION AND REPUTATION EVIDENCE OF CHARACTER
The credibility of a witness may be attacked or supported by evidence in the form of
opinion or reputation subject to these limitations. 1) the evidence may only refer to a
character for truthfulness or untruthfulness, and 2) evidence of a truthful character is
admissible only after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
Evidence “may” be admitted so courts have 403 discretion. Places no limit on the rep or
opinion evidence so you can get that from another witness, document, or out of court
declarant. Rule 608 draws no distinction between lay and expert opinion suggesting both
are acceptable under the rule so they require compliance w this rule as well as 701 for lay
and 702 for expert.
Reputation evidence must have a witness that has sufficient exposure to the witness and
the community. Out of court and in court component.
Opinion and rep about any other trait then truthfulness of witness is inadmissible to prove
witness credibility. General moral character also inadmissible.
You cant prove truthful unless its been attacked.
FRE 608B—SPECIFIC INSTANCES OF CONDUCT
Specific instances of conduct of a witness for the purpose of attacking or supporting the
witness credibility, other than conviction of a crime as provided in rule 609 (untruthful),
may not be proved by extrinsic evidence. They may be inquired into on cross
examination of the witness, 1) concerning the witness character for truthfulness, or 2)
concerning the character for truthfulness or untruth of another witness as to which the
character witness being crosses has testified. Does not operate as a waiver of the accused
privilege against self incrimination when examined w/ respect to matters which relate
only to credibility.
Evidence from any other source other than the witness cross will be extrinsic. Other
witness testimony is extrinsic. Counsel can ask a witness about the witness conduct but if
the witness denies it, it cant be proved by any other evidence. The exception is 608b2
which says if a witness is brought in to testify about the witness character (character
witness) for truthfulness or untruth can give specific instances of conduct even though
she would be considered extrinsic evidence. Only if probative of truthfulness though.
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FRE 609—CONVICTION OF A CRIME
A) – evidence that a witness other than the accused has been convicted of a crime shall be
admitted pursuant to 403, if the crime was punishable by death or imprisonment over 1
year and if probative value outweighs prejudicial effect; and
2) – evidence that any witness has been convicted of a crime shall be admitted if it
involved dishonesty or false statement, regardless of the punishment.
B) time limit—not admissible if more than 10 years. Unless court determines probative
value outweighs..however not admissible unless proponent gives notice.
C) effect of pardon—not admissible if conviction is subject to pardon anullment or
certificate of rehab.
d) – juvenile adjudication—generally not admissible. However in a criminal case may
allow if attack the credibility of an adult and necessary for a fair determination on the
issue of guilt and innocence. Court has discretion to apply against witness other than
accused.
e)-– pendency on appeal—does not make the evidence inadmissible. Evidence of
pendency of appeal is admissible
rule 609—places no limits on extrinsic evidence. Inapplicable when a conviction is to
prove motive intent or any other 404b. trial court judge must admit 609a2. 609a1—
judge weighs. When the witness is the accused burden is shifted to party offering the
evidence. When witness is not accused evidence is admitted unless opponent can show
balance.
Luce case—D has to take the stand in order to preserve for appeal an improper
impeachment w a prior conviction. D was told in pretrial they would allow the prior so
he didn’t take the stand and it never came out, he couldn’t appeal. D has to place himself
in danger.
FRE 610—RELIGIOUS BELIEFS OR OPINIONS
The beliefs or opinions of a witness on matters of religion is not admissible for the
purpose of showing the witness credibility is impaired or enhanced.
Doesn’t make inadmissible political or philosophical. Not inadmissible if used to show
bias of a witness, basis for clerical privilege, damages, modus operandi, motive, conduct,
and the basis for a claim or defense subject to 403.
BIAS MOTIVE OR INTEREST
No specific federal rule. Witnesses prior experience w a party in the case or the court.
Personal interest in the outcome of the case. The SC said this is a form of witness
credibility evidence that needs to be allowed pretty broadly.
Bias can only be proven circumstantially. May be proved by other witnesses. Courts can
exclude evidence of bias under 403 and 611a.
Several courts require you give the witness an opportunity to admit or deny bias if bias is
evidenced by a prior statement. You can still admit extrinsic evidence of bias even after
the witness admits to it. As long as the witness gets an opportunity to explain their prior
inconsistent statements.
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IMPEACHMETN BY CONTRADICTION
Not regulated by a specific rule.
 A party may not impeach a witness by contradiction on a collateral matter using
extrinsic evidence
Collateral matters are those that have no importance to the case except in its tendency to
undercut the credibility of a witness by contradiction rather than in some other manner. –
in most cases the court will find the matter not collateral. Could be not collateral if it
shows the witness misperceived.
A party seeking to impeach a witness on a collateral matter must take the answer of the
witness.
The federal rules have not adopted this CL rule about collateral and extrinsic evidence
but they routinely follow it by applying 403.
FRE 801D1A—PRIOR INCONSISTANT STATEMENTS
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to
cross examination concerning the statement, and the statement is.. inconsistent w the
declarants testimony, and was given under oath at a trial, hearing, or other proceeding or
deposition.
FRE 613
A) – examining witness concerning PIS. In examining the witness concerning a PIS
made bythe witness, whether written or not, the statement need not be shown nor
the contents disclosed to the witness at that time, but on request the same shall be
shown to opposing counsel.
B) Extrinsic evidence of a prior inconsistent statement. 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 in the
interest of justice otherwise require. Does not apply to admission of party
opponent in 801d2.
2 reasons you want to get in a PIS. One is to reveal the truth of the matter of the prior
statement and the other is question the witness credibility. Substantive use and an
impeachment use.
PIS are non hearsay making them substantively admissible if 3 conditions are met.
1. The declarant testifies at the trial or hearing
2. The declarant is subject to cross concerning the statement
3. The inconsistent statement was made under oath subject to perjury.
Witness must have made the prior statement under oath.
If witness claims he doesn’t remember the incident or his prior testimony he is subject to
cross, but not unavailable for rule 804a3 and that’s ok.
When used strictly for impeachment its easy to see not hearsay. You don’t have to show
the statement first, you could just ask isn’t it true you once said this. Extrinsic evidence
is admissible so long as the witness is afforded some time during the trial to explain or
deny the statement. Courts can use 403 to limit extrinsic evidence of a collateral matter
that is a PIS.
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FRE 806—ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT
(hearsay when the declarant is not there)
When a hearsay statement in 801d2c,d,or e, has been admitted into evidence the
credibility of the declarant may be attacked, and if attacked may be supported by any
evidence which would be admissible for those purposes if declarant at any time,
inconsistent with the declarants hearsay statement, is not subject to any requirement that
the decalarant may have been afforded an opportunity to deny or explain. If the party
against whom a hearsay statement has been admitted calls the declarant as a witness, the
party is entitled to examine the declarant on the statement as if under cross examination.
This rule is about when a party offers the prior statement of a person who does not testify.
The jury is entitled to evaluate the credibility of the declarant. 806 provides that the
declarant cred may be attacked as if he testified. Exempts 806 from some of the
impossible reqt. Ex) you could counter a dying declaration w/ an accusation from the
declarant someone else did it.
FRE 801D1B—PRIOR CONSISTANT STATEMENTS
A statement is not hearsay if…consistent w the declarants testimony and is offered to
rebut an express or implied charge against the declarant of recent fabrication or improper
influence or motive.
PCS only admissible under limited circumstances. Rebut a claim of undue influence if he
made the same statement before the alleged bribe. Before D allegedly made the threat
witness testified to the same thing. Importance of timing.
1. Declarant testifies at the trial or hearing
2. Declarant is subject to cross concerning the statement
3. The PCS is offered to rebut an express or implied charge of recent fabrication or
improper influence or motive; and
4. The prior consistent statement was made before the alleged improper influence or
motive arose.
Differences between PIS and PCS.
The statement is admissible substantively. Also admissible to rehabilitate witness
credibility. Difference between PCS and PIS—difficult to separate the 2 uses w a PCS
but not w a PIS. Because of this PCS is not admissible to support credibility unless it
is also admissible to prove the truth of the matter asserted in that statement.
Another difference is that to be admitted substantively PIS must have been made under
oath. Being under oath is not a reqt for PCS.
 613 does not create any procedural reqt for PCS but they do for PIS.
 613b which regulates proof by extrinsic evidence explicitly applies only to PIS.
 613a is when examining the witness herself overturn the CL requiring informing
the witness of certain details re. The PIS, doesn’t apply to PCS .
 613 designed to protect from embarrassment and surprise which doesn’t apply to
PCS.
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nor is the fact finder likely to be misled by proving the statement thru extrinsic
evidence rather than the witness-declarant herself.
LAY AND EXPERT OPINION EVIDENCE




Who is competent to give opinion testimony
What may opinion testimony be based on
Is the opinion helpful
What sort of methodology or reasoning process must form the foundation for the
opinion evidence
FRE 701—OPINION TESTIMONY BY LAW WITNESSES
If witness is testifying not as an expert, the witnesses testimony in the form of opinions or
inferences is limited to opinions or inferences which are A) rationally based on the perception of
the witness, b) helpful to a clear understanding of the witness’ testimony or the determination of
a fact in issue, and c) not based on scientific, technical, or other specialized knowledge within
the scope of rule 702.
The courts allow things like speed assumptions. If the court concludes the testimony is opinion
then it has to satisfy A). if a court concludes it does not contain opinion then rule 602 governs
requires be based on perception.
The aim of this section is not to exclude but to force witnesses to be more specific.
Difference between lay and expert is that lay is not based on scientific, technical, or other
specialized knowledge w.in scope of 702. this means if the witness arrives at her opinion thru
special skill 702 governs not 701. opinions under 701 cant be based on hearsay. But if
testimony is I heard him say I am the czar, in my opinion hes crazy that’s ok. – must be based on
the perception of the witness. Must be sufficient perception based on quality and quantity to
make the determination. Must have had a significant opportunity to observe.
Lay opinion must be helpful—opinion covneys info the witness cannot otherwise relate to the
jury. 2) witness can describe some but not all of the perceptual details that produce the opinion.
3) witness can desrcribe all the components of his perception but opinion conveys additional
info. 4) saves time, saying looked drunk is quicker than blood shot eye slurring etc.
Sometimes lay can be unhelpful, the court balances. When just giving the overall not helpful
sometimes you need the individual facts.
FRE 702—TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise if
(1) based on sufficient facts or data, (2) testimony is the product of reliable principles and
methods , (3)and the witness has applied the principles reliably to the facts of the case.
Assists the trier of fact on complicated issues. Esoteric beyond most people comprehension,
when they can explain confusing, when w/o understainding would be incomplete.
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The court however will refuse to hear testimony like the D was negligent.
The degree of training needed is to assist the trier. The area of competence must match the
witness background.


Frye v US set a standard for reliability-- Court agreed and set a standard ,is the reliability
of the machine generally accepted by experts in the field. Left the reliability
determination to the field itself.
In 1993- the daubert case holds the FRE rejected the frye test and adopted a general
standard of reliability and relevance. Reliebaility not determined by a single factor of
field but severl factors. Daubert made a very fundamental change, frye test left expertise
to the experts in the field, daubert leaves it to the judge. Judge has to be persuaded that
particular knowledge is reliable. So what used to be simple parts of witness testimony
now take forever to prove reliability.
The most important basis is relevance, and reliable.
Dauber did mention 4 or 5 things to take into account. The factors were
 whether the evidence is a product of a theory or technique that has been tested.
 Has it been subject to peer review and publication.
 Is there a known error rate, if so is that rate acceptably high.
 Also whether it is generally accepted in the relevant community.
Kumho tire--505
Does the dauber decision also apply to other specialized knowledge- technical non scientific.
The court in a tireblowout case wanted to testify to the tire blowout. The concept of dauber does
apply to this, reliable and relevant but the specific factors don’t necessarily apply. This standard
in dauber of general gatekeeper is to apply to all testimony not just scientific.
The expert must offer evidence that can persuade the court by a preponderance of the evidence,
doesn’t have to be perfect.
P 506—us v llera plaza
D made an argument that while fingerprints have been used for a long time, the expert for the
prosecution shouldn’t be able to testify that there was a match. You can testify to the similarities
but the expert could not say in my opinion these 2 are a match. The court eventually allowed it.
Dauber allows for reexamination for all kinds of evidence, a new approach to looking at
supposedly scientific technology.
Pipitone v Biomatrix
P developed salmonella poisoning. Can the expert testify there was a connection between the
injectin and developing salmonella. The problem is that arguably none of the daubert factors
have been satisfied.
The expert here eliminated other possibilities. His opinion was important. He had studied this
patient. What he said made sense. So the court even though not able to find the daubert criteria
was not satisfied still made the decision the evidence should be admittied.
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FRE 703—BASES OF OPINION TESTIMONY BY EXPERTS
If of a type reasonably relied upon by experts in that field, The rule says an expert can use
inadmissible evidence when forming an opinion but the opponent is protected by the fact that the
proponent cannot offer the evidence unless the judge says that the probative value in assisting
the jury to evaluate the experts opinion substantially outweighs their prejudicial effect.—only the
proponent is barred, the opponent can offer it.
Don’t need to rely on PK for their assessment.
FRE 704—OPINION ON ULTIMATE ISSUE
a) except as provided by subdivision b, testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by
the trier of fact.
b)no expert witness testifying w/ respect to the mental state or condition of a D in a criminal case
may state an opinion or inference as to whether the defendant did or did not have the mental state
or condition constituting an element of the crime charged or of a defense thereto. Such ultimate
issues are matters for the trier of fact alone.
Regardless of this rule which is trying to liberalize a lil, a judge will never let a witness say, the
driver was negligent. Especially when it includes a legal term like negligence the court will
never allow. But you could say the defect in the product “caused” the injury.
If testimony is otherwise admissible it is not objectionable because it embrace an ultimate issue
to be decided by the trier of fact. You have to go back to 701 or 702 that it assists and be
helpful. As statement that he should win or lose are not helpful. The problem is largely dealt
with because pinions that go straight to the issue are dealt w by 701.—still has to be helpful and
assist.
An expert may not testify to whether the D did or didn’t have the mental state.
An expert can testify that he suffers from psychosis, that’s ok. If the question is was the D
insane – you cant do it.
FRE 705—DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERTS OPINION
The expert may testify in terms of opinion or inference and give reasons therefore w/o first
testifying to the underlying facts or date, unless the court requires otherwise. The expert may in
any event be required to disclose the facts on cross.
Remember that an expert can base his opinin on inadmissible evidence. This rule does not
require he disclose before making an opinion, until cross when you ask what do you base that
opinion on. Cross examination on the inadmissible data relied upon will be permissible to show
the basis relied upon was unreliable.
Know that there is a 706 rule about court appointed experts, don’t want the jury to give more
weight to this expert.
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PRIVILEGE
501 general rule—you look to principles of CL as interpreted by the courts of the US in light of
reason and experience. Privilege law will be CL developed. The privileges of witnesses will be
determined by state law. Where state law provides the COA you look to the state law.
Most privileges apply during discovery as well as at trial.. most evidence rules don’t apply at
depo. For discovery it just has to be calculated to lead to admissible evidence.
The communication is what is privileged and not the information.
The holder of a privilege is the only person that can waive the privilege.
Waiver—the modern view is there is waiver only when the holder of the privilege acts in a way
that is not reasonable in maintaing.
If someone listens in on you and your clients speaking that is a waiver. California – as long as
the client took reasonable steps to not waive there is no waiver. Conduct inconsistent w a
reasonable effort to maintain confidentiality
Holder—the holder decides whether the privilege should be asserted. The other party may be
obligated to assert the privilege on behalf of the holder. The holder ma give authority to
disclose. But the decision to waive belongs solely to the holder. Client and patient are the
holder. Decided on a priv by priv basis. Clergy they are both the holder. Some courts say
waiver of a significant portion of a priv conversation either waives that whole convo or the entire
priv regardless of the subject matter.
ATTORNEY-CLIENT
Attorney client applies to relationships even before the relationship begins, no need for money
to change hands. There is argument that if the person believes you are an attorney that could be
in the relationship.
For a corporate client-- Court rejected that only people high in the company could be protected.
The court said there were 3 important things
 Directed by legal counsel to get legal advice. – for the prpose of obtaining frank legal
advice.
 The employees were told to keep confidential only for attorneys eyes.
 These communications concerned matters w/in the scope of employees work.
Wouldn’t matter that attorney wasnit licensed as long as the client believed he was. Doesn’t
matter if attorney declines to take the case. The attorneys communication is also protected.
The usual rule is that a person not essential to the representation was there then the
communication is not confidential
If concerning legal advice and in the scope of the employees work then it will be protected.
What happens to attorney client privilege after the client dies—whether upon the attorneys death
whether privilege applies and the court says yes.
If the client sues an attorney for malpractice or attorney sues client for fees than relationship will
not be confidential.
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Crime- Fraud exception-503d (proposed)
Cant hire an attorney to help cover up a crime, so no interest in encouraging these type of convo.
You can say I committed this crime I need a defense and that is privileged , but I did this and I
need help covering it up is not privileged. Cant hire an attorney to enable or aid in the
commission. The purpose of the communication was to assist in crime or fraud.
104a question to decide whether privielege applies. – however only thing court cant use is the
privileged info. the rule 104a allows the court to conduct an in camera inspection of the alleged
privileged material subject to crime fraud exception if the opponent can make a showing.
A factual basis adequately to support a good faith belief by a reasonable person that n camera
review of the material may reveal evidence to establish the claim that crime fraud exception
applies. – basically have to show not a fishing expedition
MEDICAL PRIVILEGE
Physician patient has generally lost favor. In jaffe they decided there was a psychotherapist
privilege. Courts are allowed to recognize based on CL.
When the patient tenders her medical condition in a lawsuit there is no privilege involved with
that. Also if you put your psychological status at issue—the patient litigant exception applies not
only when the client places her medical staus in issue but also when the court decides it is an
issue.
States define psychotherapist very broadly. Held it applies to clinical social worker. Dangerous
patient exception—exercise reasonable care to determine if a patient poses a threat of harm, and
to take reasonable steps when that harm exists.
CLERGY PRIVILEGE
The holder is not just the confessor but the clergy as well. Courts don’t want to interfere w
religious doctrine, says you should confess. In addition probably wouldn’t do any good not to
recognize the privilege.
Since both get the privilege, if the confessor is willing to have him talk about what was said the
priest can refuse. Exists for confidential communication that take place w/in other religious
beliefs. So no doctrine about formal confession, as long as a confidential communication
seeking the kind of services that clergy is supposed to render, it will be privileged.
Must be about the sort of thing they are there for. Not necessarily religious, just the kinds of
things w/in that practice the clergy.
SPOUSAL PRIVILEGE
2 married people who have a communication is privileged. In most states both have the privilege
so you can keep the other person from revealing as well. Some states make only the speaker priv
but that doesn’t really work.
The priv is only during the marriage, but the privilege survives the marriage. The purpose is to
have spouses feel free to speak to one another. That applies even when the marriage is over.
Only applies to married couples. People who live together forever don’t get it.
The second privilege is the privilege not to testify against your spouse—the adverse testimony
priv.
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If your spouse is a party the other side cannot force you to provide testimony adverse to your
spouse. This does not survive the marriage. If the marriage is over when the spouse is called
there is nothing to preserve so adverse spousal testimony doesn’t apply if the marriage is over.
Who is the holder—trammel case, SC decided the holder of the privilege is the testifying spouse.
If the holder wants to testify she can, the spouse cant make her not. If it is voluntary it is the
testifying spouse.
Exceptions to spousal priv—crime-fraud, proceedings to commit either spouse because of
spouses mental condition, proceeding to determine competency of spouse, proceedings between
spouses, criminal prosecutions of a spouse for crimes committed against the other spouse or their
child.
BURDENS OF PROOF AND PRESUMPTIONS
Burden of persuasion is substantive law that establishes what is the amount of evidence a party
must present to prevail (ie crim beyond a reasonable doubt), second thing of BOP is who has to
do it.
The prosecution bears the burden of persusasion for all elements of the crime, D bears all for
affirmative defense. The burden of persuastion rarely shifts. If it does shift it’s a matter of
substantive law not evidence.
Burden of production—who at any given moment of the trial has the responsibility of offering
evidence in support of its position.
To offer evidence in support of its position, takes more than a scintilla of evidence. Probably
means evidence sufficient to support a finding, def not high, just evidence that is SUFFICIENT.
The effect of that is getting to a jury. The burden of production comes into play when someone
asks for a directed verdict.
Most courts require affirmative evidence to meet the burden of production. Cant rely on making
the other witness not believable on its own, there has to be some affirmative evidence.
What are presumptions
A presumption compared to an inference. Both have to do w the relationship between evidence
and a conclusion. Inferring a fact from another fact.
With a presumption – there are foundational facts, and presumed facts. The difference is that an
inferenc is always permissive, a presumption is mandatory. Where it applies , if you find the
foundational facts to be true you MUST find the presumed facts to be true. that’s the difference
between presumption and inference.
Real presumptions are rebuttable. They are procedural devices that throw on the opponent an
obligation
So rebuttable presumptions
You have these because it aids the adjudicative process. Makes proof easier. Helps prevent
distortion. Where the fact is almost certainly true anyway. Most presumptions are of this kind.
Ex. Letter mailed properly will be presumed delivered. Based on the strong likelihood its true,
and avoid the lengthy proof.
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Some presumptions have substantive purposes—there is a social policy reason for having them.
Ex. All people in a car will be presumed to have possession of a gun that’s in the car. That’s to
keep people out of cars w guns. Encourage or discourage certain conduct. So create this
mandatory presumption but its rebuttable.
This kind of presumption not just about logical inference, its probably likely not everyone in the
car has the gun but the presumption is based on social policy.
How a presumption comes to being.
 If the D does nothing and the jury found the foundational facts true, they must find the
presumed facts.—mandatory effect of the presumption. The judge instructs the jury.
 Second thing a d can do is challenge the foundational facts. When offered enough
evidence for the burden of production the court says if you find the foundation facts are
true then you must find the presumed facts are true.
 Third option is D challenges the existant of the presumed fact.
Wigmore v MCormick
Bursting bubble theory—wigmore—presumptions can disappear. When we don’t have evidence
to meet a BOP on the presumed facts, but if the opponent offers enough evidence on the
presumed facts the presumption goes away.
An argument against that is policy are for social policy reasons so shouldn’t be dispelled so
easily. Once the P offered evidence to meet the BOProduction the BOPersuasion switches to the
other side. Now the D has to prove the presumption wrong. – morgan and mcormick.
As for which theory we use (wigmore vs. morgan)
The wigmore bursting bubble theory is the federal rule 301. that view applies in federal. But
rule 302 says where state law in diversity case state substantive law you look to the state
evidence law about presumptions.
The California law—in the 600’s there are 2 lists. The one that are adjudicative are wigmore.
The presumption that are more substantive are more morgan. 2 lists some are one and the other.
The lists aren’t complete some aren’t in the evidence code so the court has to decide what the
presumption are.
Presumptions can rarely if ever be applied to criminal D.
There are pemissive and mandatory presumption. Inference is OK presumption not. True
presumptions rarely if ever can be applied, but inferences can.
What if you have 2 presumptions.
You apply the presumption w stronger social policy base. If neither then the one w the most
logical base.
Some courts say w 2 conflicting presumption you apply neither and let it go to the jury.
4 things a D can do against presumption
nothing, challenge presumed, challenge foundational, challenge both.
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