Evidence – Carter – Fall 2010 – Attack Sheet
ARTICLE I: GENERAL PROVISIONS
 FRE 104: Preliminary Questions (Preliminary question hearing/Sidebar)
o 104(a): Questions of Admissibility Generally:
 Covers qualification of person to be a witness, existence of a privilege, or
admissibility of evidence
 Rules of evidence do not apply, except privilege
 Preliminary questions of fact are determined by the court by a
preponderance of the evidence, see, e.g., Bourjaily
o 104(b): Relevancy Conditioned on Fact:
 When relevancy of evidence depends on fulfillment of condition of fact:
 Court shall admit it upon, or subject to, introduction of evidence
sufficient to support finding of fulfillment of condition
o FRE 104(e): Weight and credibility
 FRE 105: Limited Admissibility (Limiting Instruction)
ARTICLE II: JUDICIAL NOTICE
 FRE 201: Judicial Notice of Adjudicative Facts
o FRE 201(b): Kinds of facts: not subject to reasonable dispute
 FRE 201(b)(1) generally known within the territorial jurisdiction of the
trial court OR
 FRE 201(b)(2) capable of accurate and ready determination
o FRE 201(g): Instructing jury:
 In a civil action or proceeding:
 Court shall instruct the jury to accept as conclusive any fact
judicially noticed
 In a criminal case:
 Court shall instruct jury that it may, but is not required to, accept
as conclusive any fact judicially noticed
ARTICLE III: RELEVANCY AND ITS LIMITS
 FRE 401: Definition of “Relevant Evidence”
 FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
 FRE 403: Prejudice substantially outweighs probative value
o Chapple: error to admit gory pictures of charred body of skull and victim, when
cause of death not contested
 FRE 404: Substantive Character Evidence
o FRE 404(a): Character evidence not admissible for the purpose of proving action
in conformity therewith on a particular occasion, except:
 FRE 404(a)(1): Character of the accused:
 Crim case:
o Offered by the accused OR
o By the prosecution to rebut the same OR
o If evidence of trait of victim is admitted for accused,
evidence of same trait of accused for prosecution
 FRE 404(a)(2): Character of victim:
1










Crim case
Subject to limits of FRE 412 (victim’s past sexual behavior/sexual
predisposition in a sex offense case)
o Offered by the accused OR
o By the prosecution to rebut the same OR
o Homicide case:
 Evidence of peacefulness of victim, offered by
prosecution to rebut evidence that victim was first
aggressor
 FRE 404(a)(3): Character of witness (character for credibility) governed
by FRE 607/608/609
o FRE 404(b): Other crimes, wrongs, or acts*:
 Evidence of other crimes, wrongs, or acts not admissible to prove
character of person in order to show action in conformity therewith
 It may be admissible for other purposes:
o Motive
o Opportunity
o Intent
o Preparation
o Plan
o Knowledge
o Identity (may be based on M.O.) OR
o Absence of mistake or accident
 Prosecution shall provide rxable notice of general
nature of any such evidence it intends to introduce
in advance of trial or during trial
 Huddleston: When there is a question as to whether D really committed
the prior act: (See p. 4 of outline)
FRE 405: Methods of Proving Character
o FRE 405(a): Reputation or Opinion:
 Inquire into relevant specific instances on cross
o FRE 405(b): Specific Instances of Conduct
 In cases in which character/trait of character an essential element of
charge, claim, defense
FRE 406: Habit; Routine Practice
o Relevant to prove conduct in conformity
FRE 407-411: Forbidden Evidence
FRE 407: Subsequent Remedial Measure
FRE 408: Compromise and Offers to Compromise (civil)
o FRE 408(a): Prohibited uses
o FRE 408(b): Permitted uses
FRE 409: Payment of Medical and Similar Expenses
FRE 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements (Guilty
pleas admissible)
FRE 411: Liability Insurance:
o Not admissible to prove N.
2

o Admissible to prove agency/ownership/control/bias
FRE 412: Relevance of Victim’s Past Sexual Behavior/Sexual Predisposition in Sex
Offense Cases (see p. 5-6 of outline)
ARTICLE V: PRIVILEGES (SUPER OBJECTION—ALL STAGES, ALL
PROCEEDINGS)
 FRE 501: General rule (for federal criminal and federal question cases)
o Privilege governed by principles of common law, as they may be interpreted
in light of reason and experience
 However, in diversity cases, privilege determined in accordance with
state law
 Background info on privilege, esp. attorney-client privilege:
o Swidler & Berlin: Attorney-client privilege survives the death of the privilege
holder (client)
o Confidential information must be treated by privilege holder as such
 Cabbie/murderer
 Suburban Sew ‘N Sweep v. Swiss Bernina: If company does not take
precautions to destroy privileged docs, cannot claim that info is
protected by A-C privilege when gotten by dumpster divers
 Privilege holder can tell multiple people with whom talks are
privileged
o Privilege holder must have rxable expectation of confidentiality under the
circumstances
o Non-communicative observations/actions are not privileged
 E.g. person shows up at attorney’s office covered in blood
 Proposed but Rejected FRE on Privilege
o Required reports privileged by statute
o Attorney-Client (p.7)/FRE 502 (p.11-12):
 A-C Privilege and Work Product Protection
 Upjohn:
o A-C privilege attaches to lawyers’ convos with EEs
o WPP attaches to notes/memos of interviews
 Exceptions: Crime/Fraud: In re Francis Carter: If services of lawyer
were sought/obtained to enable anyone to commit/plan to commit what
client KoSHK to be crime/fraud
 Joint Clients: Communication relevant to matter of common interest
between two or more clients
 Etc. (p.7-8)
o Psychotherapist-Patient
 Jaffee v. Redmond: Federal courts recognize a psychotherapist-patient
privilege under FRE 501 (p.9)
 Patient holds
o Husband-Wife
 Testimonial Privilege: Blocks all testimony by one spouse against the
other, including testimony about pre-marital events or acts
 Applies only if spouses are married when testimony is sough
3

o
o
o
o
o
Trammel: Witness spouse is privilege holder
o D spouse cannot claim privilege to stop spouse from
testifying against him
 Spousal Confidences Privilege: Blocks testimony about private
communications between spouses while they were married
 Applies forever to protect communications during marriage
 Montgomery: Spouses are co-privilege holders
o D spouse can claim privilege to stop spouse from
testifying about confidential communications between
spouses
Clergy-Penitent
Political Vote
Trade Secrets
Secrets of state and other official information
Identity of informer
ARTICLE VI: WITNESSES:
 FRE 607: Who May Impeach
o Five types of impeachment
 Bias: Witness’ like/dislike or fear of party, or witness’ self interest
 Basically always relevant
 Abel: Witness’ and party’s common membership in organization
probative of bias
o Type of organization relevant to show source and strength
of bias
o No limit on use of extrinsic evidence to show bias
 Manske:
o Self-interest: D claims Pszeniczka fabricated testimony to
frame him
o Fear: D claims Coburn and Cambell corroborated P’s false
story because he had threatened them
o Sensory perception: Physical/mental condition of witness that leads to inability to
perceive accurately/to provide credible testimony based on something perceived
o Character for credibility: FRE 608/609
o Prior inconsistent statement: FRE 613
o Contradiction: something that witness said in testimony is not true
 Generally proved by extrinsic evidence
 Can be prior inconsistent statements—but if they are offered for
contradiction, they are offered for TOMA and require HS
exceptions
 Can be other evidence, e.g. OJ is impeached by receipt after saying
he wouldn’t buy BM shoes
 No contradiction on collateral matters: Contradicting evidence should
have relevance aside from its impeaching effect
 Tends to prove a substantive point
o e.g. the shoes were O.J.’s
4




Tends to contradict and to prove another impeaching point
o e.g. bias: Witness said he met driver for first time after
accident but they had been dating for a year
 Collateral/not allowed: Witness said he saw
accident when returning from drugstore, but
drugstore was not open that day
FRE 608: Evidence of Character and Conduct of Witness (Character for credibility)
o FRE 608(a): Opinion and Reputation evidence of character:
 FRE 608(a)(1): Evidence may refer only to character for
truthfulness/untruthfulness AND
 FRE 608(a)(2): Evidence of truthful character admissible only after
character of witness for truthfulness has been attacked by
opinion/reputation evidence or otherwise (e.g. bias)
o FRE 608(b): Specific Instance of (Non-Conviction) Conduct:
 Other than conviction of crime (FRE 609), may not be proved by extrinsic
evidence
 Extrinsic evidence: anything other than acknowledgment/denial of
witness himself
 But may, if probative of (un)truthfulness*, and in discretion of court, be
inquired into on cross
 *Manske: Behavior taking advantage of others in violation of their
rights is probative of (un)truthfulness e.g. threatening witnesses
o e.g. “Isn’t it true that you lied to get into law school?”
 Can cross on specific acts concerning character of (un)truthfulness of
another witness as to whose character witness being crossed has testified
 E.g. “Did you know that A lied to get into law school?”
FRE 609: Impeachment by (Specific) Evidence of Conviction of a Crime:
o FRE 609(a)(1):
 Evidence that a witness other than an accused has been convicted of a
crime (felony): FRE 403
 Evidence that an accused has been convicted of a crime (felony): Reverse
FRE 403 (probative value outweighs prejudicial effect)
 Lipscomb: “All felony convictions are probative of credibility to
some degree”
o FRE 609(a)(2): Evidence that any witness has been convicted of a crime
(misdemeanor/felony): if readily can be determined that was crime of dishonesty
or false statement
 Not subject to FRE 403 limitation
 Much narrower than “probative of (un)truthfulness” that comes in under
608(b)
o FRE 609(b): 10 year time limit, unless reverse 403, requires notice to adverse
party
FRE 611(b): Scope Rule: Cross limited to subject matter of direct and matters affecting
credibility of witness
5



FRE 611(c): Leading Questions: Not on direct except as necessary to develop witness’
testimony, should be permitted on cross, permitted for hostile witness, adverse party (on
direct), witness closely identified with adverse party
FRE 612: Writing Used to Refresh Memory (Present Recollection Refreshed): Witness
uses writing to refresh memory for purpose of testifying either:
o While testifying OR
o Before testifying
 Baker: Defense should have been allowed to refresh present recollection
of policeman testifying by showing him report written by fellow officer
regarding fact that victim did not ID D as robber/attacker
 Witness looks at memo to refresh memory but testifies on basis of
present, indep. knowledge
 Memory aid not received or read into evidence
 Memory aid can be ANYTHING
FRE 613: Prior Statements of Witnesses: Prior Inconsistent Statement
o FRE 613(a): Examining witness concerning prior (un)written statement: need not
show statement to witness/disclose contents at that time
o FRE 613(b): Extrinsic evidence of Prior Inconsistent Statement: not
admissible unless:
 Witness afforded opportunity to explain/deny AND
 Opposite party afforded opportunity to interrogate witness on OR
 Interests of justice otherwise require
o DOES NOT APPLY TO PARTY ADMISSIONS
 N.B. You can introduce the extrinsic evidence
without first asking witness about it but other side
must have opportunity to recall/question about it
 Webster: R: impeachment by prior inconsistent statement not permitted
when employed as mere subterfuge to get inadmissible evidence before
jury (but ok here)
 Harris: Majority allows impeachment by use of un-Mirandized post-arrest
statements that he was selling heroin that are inadmissible for substantive
purposes
 Jenkins: Use of prearrest silence to impeach accused’s credibility when he
takes the stand is acceptable
 E.g. D stabbed victim, did not wait for police/report, claimed selfdefense, and was impeached by failure to report
ARTICLE VII: OPINIONS AND EXPERT TESTIMONY:
 FRE 701: Lay Opinion: Limited to opinions/inferences:
o (a): Rationally based on perception of witness AND
o (b): Helpful to a clear understanding of witness’ testimony or determination of
fact in issue AND
o (c) Not based on scientific, technical, or other specialized knowledge
 FRE 702: Expert Testimony: If scientific, technical, or other specialized knowledge will
assist trier of fact to understand evidence/determine fact in issue, witness qualified as
expert by:
6
o
o
o
o
o




Knowledge
Skill
Experience
Training OR
Education
 May testify in form of opinion or otherwise IF:
 (1) test. based upon sufficient facts or data
 (2) test. product of reliable principles and methods AND
 (3) witness has applied principles and methods reliably to facts of
case*
 Daubert: Key factors in court’s determination of whether scientific
evidence is reliable
 Can it be tested?/Has it been tested?
 Has it been subjected to peer review and publication?
 What is the known or potential rate of error?
 Is it generally accepted in the field?
 Kumho Tire: Court MAY consider Daubert factors in determining whether
expert testimony in a field other than science is reliable (ct. has
considerable leeway in deciding how to determine reliability of expert
test.)
FRE 703: Bases of Opinion Test. by Experts: May be perceived by/made known to expert
at or before hearing
o Need not be admissible for opinion to be admissible if of type rxably reliable
upon by experts in field
 Otherwise inadmissible facts/data shall not be disclosed to jury by
proponent of opinion
 Unless Reverse 403
FRE 704: Opinion on Ultimate Issue:
o FRE 704(a): OK except:
o FRE 704(b): in crim case, NOT as to whether D did/did not have mental
state/condition constituting element of crime charged or of defense thereto
FRE 705: Disclosure of Facts/Data Underlying Expert Opinion: Can give
opinion/inference without first testifying to facts/data, unless court requires otherwise
o May be required to disclose underlying facts/data on cross
FRE 706: Court Appointed Experts
ARTICLE VIII: HEARSAY:
 FRE 801: Definitions
o FRE 801(a): Statement:
 (1) an oral or written statement OR
 (2) non-verbal conduct of a person, if it is intended by the person as an
assertion
o FRE 801(b): Declarant: Person who makes a statement
 Animals not HS declarants
 Machines not HS declarants
o FRE 801(c): Hearsay is:
7





A statement
Made out of court
Offered into evidence
To prove the truth of the matter asserted
 Pacelli: Cannot admit HS statements that imply TOMA, even if
they do not state it directly e.g. “The murder was bungled by
leaving the body where it could be found.”
FRE 801(d): Statements which are NOT HEARSAY (HS Exclusions): A
statement is NOT HS if:
o FRE 801(d)(1): Prior statement by witness: Declarant testifies at trial AND
 Is subject to cross concerning the statement AND
 The statement is:
 FRE 801(d)(1)(A): Inconsistent with the declarant’s testimony
AND was given under oath subject to a penalty of perjury at a
trial/hearing/other proceeding*/depo OR
o *Smith: Sworn affidavit signed by hooker at station
naming pimp as attacker was made in other proceeding
(minority rule) (see p. 20 for specifics)
o N.B. Forgetfulness/Evasive Answers/Silence: If court
believes you are feigning, prior inconsistent statement
will come in under FRE 801(d)(1)(A)
 If court believes you have a genuine medical
reason to forget, prior inconsistent statement
will not come in under this rule
 FRE 801(d)(1)(B): Consistent with the declarant’s testimony
AND offered to rebut express/implied charge against declarant
of recent fabrication/improper influence or motive OR
o Tome: Prior consistent statements of abused child to six
witnesses naming father as abuser admitted in error
because not made before recent fabrication/improper
influence or motive came into being
 FRE 801(d)(1)(c): One of Identification of person made after
perceiving person
o Motta: Composite sketch of robbery suspect based on
witness’ description admissible under this exception
 Res gestae: ID should be done close in time to
perception (no express limit)
o FRE 801(d)(2): Admission by party-opponent: Statement offered against a
party* AND is
 FRE 801(d)(2)(A): Party’s own statement
 *Victim is party represented by state, so her admissions come
in against prosecution
 Bruton: Joint Ds. Error to admit Evans’ statement, “Bruton
and I committed the robbery.”
 FRE 801(d)(2)(B): Adoptive admission: party manifested
adoption/belief in truth
8



Hoosier: Tacit admission because did not deny girlfriend’s
statement in situation in which person would be expected to
deny that statement if untrue (see p. 21-22 for reqs of tacit
admission)
 See p. 22 for silence/statements/Miranda
 FRE 801(d)(2)(C): Speaking Agent: statement by person authorized
by party to make statement concerning subject
 FRE 801(d)(2)(D): Agent in SOE: statement by agent re: matter in
SOE, during existence of agency relationship
 Mahlandt: “Sophie bit a child”
 FRE 801(d)(2)(E): Coconspirator: of party during and in furtherance
of conspiracy
 Bourjaily: Existence of conspiracy and D’s participation in it
are preliminary questions of fact under FRE 104(a) (see p.23)
CL HS Exclusions (NOT HEARSAY):
o Imperatives: no TOMA
 But cannot use “Look at the red barn” to prove there was a red barn.
o Interrogatives: no TOMA
o Impeachment by prior inconsistent statement: not offered to prove TOMA
o Verbal Act: Words of independent legal significance, offered to prove the act
o Effect on the Hearer: Hearer’s reaction must be at issue
o Verbal Object/Chattel: Words on object that are integral part of object itself;
not separate statements
 Generally affixed in the course of business
 But see Duffy
o Circumstantial Evidence of State of Mind: Offered to support inference re:
person’s state of mind when at issue
o Circumstantial Evidence of Memory: Offered to support inference re:
person’s memory of event/place, which could not exist unless they actually
saw event/place
o Non-complaint/non-reporting: Cain v. George: Not complaining about
heater is act/omission, not HS statement
FRE 803: HS EXCEPTIONS, AVAILABILITY IMMATERIAL:
o FRE 803(1): Present sense impression: Describing/explaining
event/condition while perceiving or immediately thereafter
 Nuttall: Admissible: statements on phone and immediately after “I am
sick/I will have to go in” to prove was forced to go in
o FRE 803(2): Excited utterance: Re: startling event/condition while declarant
under stress of excitement caused by event/condition
o FRE 803(3): Then existing, mental, emotional, physical condition:
 State of mind
 Victims’ statement of fear not admissible because victim’s
state of mind not at issue
 But see: The Hillmon Doctrine: present intention admissible
to prove subsequent conduct of declarant
9
o Pheaster: MAJORITY RULE: present intention of
declarant INADMISSIBLE to prove conduct of
someone other than declarant (Pheaster ruled contrary)



o
o
o
o
o
o
Emotion
Sensation
Physical condition
 Intent
 Plan
 Motive
 Design
 Mental feeling
 Pain
 Bodily health
 Not including statement of memory/belief to prove fact
remembered/believed unless about declarant’s will
FRE 803(4): Statements for purpose of medical diagnosis/treatment:
 AND describing medical history OR
 Past/present symptoms, pain, or sensation OR
 Inception or general character of cause/external source thereof
 Insofar as rxably pertinent to diagnosis or treatment
 Backward-looking ok
 Fault statements usually not ok
 But see Blake: special case of child sexual abuse
FRE 803(5): Recorded recollection/Past recollection recorded:
 Memo re: matter about which witness once had knowledge but now
has insufficient recollection to testify fully and accurately
 Ohio v. Scott: Witness gave handwritten, signed statement to
police day after arrest re: convo with D who told her he
wrecked car and shot guy, but on stand could not remember
D’s statement.
FRE 803(6): Records of regularly conducted (business) activity: p.26-27
FRE 803(7): Absence of entry in (business) records: p.27
FRE 803(8): Public records and reports: p. 27-28
See others p. 28-30.

ARTICLE IX: AUTHENTICATION AND IDENTIFICATION:
 FRE 901: Requirement of Authentication or Identification:
o FRE 901(a): General Provision: Evidence sufficient to support finding that
matter in question is what proponent claims
 Johnson: ID of ax acceptable even though not entirely free from doubt;
rxable juror could have found that this ax was the one used in the
assault, failure to state particular characteristics of this ax go to weight
and credibility, FRE 104(e)
 Howard-Arias: Do not need every link in chain of custody to testify in
case involving 240 seized bales of mary-J
10


Bagaric: Authentication of letter may be based entirely on
circumstantial evidence, including
 Appearance
 Contents
 Substance
 Other distinctive characteristics
 Pool: Speaker IDing self by name during phone convo not enough to
authenticate that he is speaker (agent could not compare “Chip”’s
voice with voice of speaker)
o FRE 901(b): Examples of good authentication/ID (p.36)
FRE 902: Self-authentication: Extrinsic evidence of authenticity not required for
certain things (p. 36-37)
ARTICLE X: CONTENTS OF WRITINGS, RECORDINGS, PHOTOS
 FRE 1001: Definitions
o FRE 1001(1): Writings and recordings: letters, words, numbers, or equivalent, set
down by handwriting, typewriting, printing, photostating, photographing,
magnetic impulse, mechanical/electronic recording, or other forms of data
compilation
o FRE 1001(2): Photographs: include still photographs, x-ray films, video tapes,
and motion pictures
o FRE 1001(3): Original: Writing/recording itself or any counterpart intended to
have same effect by person executing/issuing it
 “Original” of photo includes negative and any print therefrom
 If data stored on computer/similar device, any printout or other output
readable by sight, shown to reflect data accurately, is an “original”
o FRE 1001(4): Duplicate
 FRE 1002: Requirement of Original (Best Evidence Rule): To prove the content of a
writing, recording, or photograph, the original is required
o Except as otherwise provided by FRE or statute
 Duffy: Shirt with laundry mark “DUF” was found in D’s car. Is both a
chattel and a writing, thus could be treated as either. Words merge with
object.
 Meyers: In a trial for perjury, was acceptable to call counsel at original
hearing to testify as to what D said. Transcript of hearing not required
 FRE 1003: Admissibility of Duplicates: Admissible to the same extent as an original
unless:
o FRE 1003(1): genuine question is raised as to authenticity of original
o FRE 1003(2): in circumstances would be unfair to admit duplicate in lieu of
original
 Turnage: Acceptable to admit copies of tapes of phone calls D made out
county workhouse
 See p. 38 for seven foundational elements that must be established
before tape recording can be admitted (as supplement to FRE
1003)
 FRE 1004: Original Not Required, Other Evidence of Contents Admissible if:
11

o FRE 1004(1): Original lost or destroyed (unless proponent did it in bad faith)
o FRE 1004(2): Original not obtainable by judicial process or procedure
o FRE 1004(3): Original not in possession of opponent who doesn’t produce it
o FRE 1004(4): Writing/recording/photo not closely related to a controlling issue
FRE 1006: Summaries: Contents of voluminous writings/recordings/photgraphs which
cannot conveniently be examined in court may be presented in form of a:
o Chart
o Summary OR
o Calculation
12