RELEVANCE
I.
Regular relevance R401
A.
Low threshold
II.
Conditional Relevance R104b
A.
If relevance of evidence depends on existence of fact--
B.
Proof sufficient to support finding of fact existing must be introduced
III.
Stipulation R403
A.
Jury doesn’t have to hear details
B.
Old Chief i.
Can’t necessarily demand to stipulate, but ii.
Balance probativeness of stipulation without full details against… iii.
Unfair prejudice of full details described
IV.
Automatically Excluded R407-8
A.
Remedial measures as proof of negligence
B.
Settlement offers/discussions
C.
Insurance
D.
Offers to pay med expenses i.
Surrounding statements might get in
E.
Exceptions i.
Witness bias ii.
Negate claims of undue delay iii.
Obstruction of investigation
PROBATIVE V PREJUDICE R404(b)
Balance at end of every decision process

CHARACTER EVIDENCE PROCESS
I.
?
A.
NO character propensity evidence, like truthfulness, in civil case
B.
MUST still be probative of one of these non-propensity reasons
C.
Propensity i.
HYPO: D accused of killing dog, intro conviction for previous dog killing
1.
Goes through propensity box
D.
Habit/Routine R406 i.
One time’s not enough
E.
Motive i.
HYPO: wanted for stickup, suspected shot cops
1.
Threat of going back to jail motivated shooting
2.
Just because he’s wanted criminal doesn’t mean he shoots cops ii.
HYPO: streetcar operator was rushing day he ran someone over
1.
Motivated to be in a rush that day
2.
Sounds like he’s overly hurried, propensity
F.
ID i.
Test: “whether crime is idiosyncratic” ii.
Must include jury instruction against prejudice iii.
HYPO: Bombs in two cases very similar, low odds it could’ve been diff bombers
( Trenkler )
1.
Had previous incident killed 500 people, might be too prejudicial iv.
HYPO: guy has same gun as in crime
1.
Likely same gun used to kill agent
2.
Propensity to use that gun violently
G.
Intent
H.
Knowledge i.
HYPO: D knew about hidden compartment last time, so knows now
I.
Absence of Mistake
J.
Modus Operandi i.
Doctrine of Choices
1.
“The odds that this randomly happened…”
2.
Goes around propensity box by looking at law of averages ii.
HYPO: three wives killed, gets in

A.
D > Self: circumstantial evidence that D did not commit crime (specific only if character crucial to crime) i.
P may rebut
1.
Reputation/opinion a.
Can bring in crimes of D to show that W lying, or doesn’t know
D’s problems (
Michelson )
B.
D > V i.
Reputation/Opinion ii.
P may rebut
1.
Evidence of D same trait
2.
Rep/op and specific acts
3.
In homicide case: Victim being peaceful and therefore not first aggressor
C.
D > anyone: party character = essential element i.
Rebuttal of entrapment: saying you have no proclivity towards this crime ii.
Proving/rebutting evidence of truth in libel/slander iii.
Resolving parental custody
D.
P > D: ONLY if D claimed V first aggressor
A.
Reputation/Opinion R608a i.
Intro for Own Witness
1.
Truthfulness ONLY if attacked first
2.
If attacked, can bring witnesses to defend ii.
Enemy Witness: other witnesses to attack
B.
Prior Convictions R609 i.
Severe Crimes
1.
Year+ in prison
2.
>10 years ago doesn’t come in
3.
Balancing test ( Gordon ): a.
Nature of crime b.
Time since conviction, subsequent history c.
Similarity btwn past crime and charged crime d.
Is W’s testimony crucial to outcome of case? e.
Centrality of credibility issue ii.
Crimen Falsi
1.
Likely to lie on stand
2.
No 403 balancing here a.
Unless >10 years ago
C.
Specific Acts: ONLY to prove untruthfulness i.
NO extrinsic evidence of this ii.
Cross-Examination: can ASK about bad acts of:
1.
W themselves (“did you lie to a cop last year?”) (NO arrest question)
2.
Other W they’re testifying about (“did victim lie to cop last year?) iii.
Stuck with answer witnesses give here
1.
You can cross the witness who impeached yours, but that’s it

Standards for Impeaching Witness
IV.
Reputation/Opinion R405
A.
Opinion i.
Someone who really knows D, can form legit opinion
B.
Reputation i.
Rehabber has lived in W community for a long time
V.
Huddleston Admissibility Standard: Conditional Relevance
A.
Reasonable jury looking at all evidence could have found acts to be true i.
Same as conditional relevance ii.
NOT preponderance of the evidence iii.
Even if acquitted, reasonable jury still might have found true
B.
Protections from low bar: i.
No propensity ii.
R402 relevancy iii.
R404 probative v prejudice
SEXUAL CHARACTER EVIDENCE
I.
V sexual past evidence barred R412
A.
Evidence of past false accusations perfectly allowed ( State v Smith )
B.
Relationship with P witnesses, PTSD evidence not allowed
A.
Specific instances to prove someone else committee crime
B.
Specific instances WITH D to prove consent
C.
Constitutional violations
1.Due Process/right to fair trial: how important is the evidence to the trial?
2.Confrontation Clause: i.
Bias ( Olden ) a.
Can introduce evidence of V having reason to lie, like to cover up cheating ii.
Untruthfulness (by jurisdiction)
3.Sixth A right to compel witnesses in defense
4.Right to testify in one’s defense i.
Can use her past actions to prove D state of mind, that he thought she’d be easy and thought there was consent ( Knox ) ii.
Can say that V was upset in aftermath of sex, though have to be careful describing actual incident ( Stevens v Miller )
III.
Similar Acts by D Go In R413

HEARSAY DEFINED
I.
Definition:
A.
Out of court statement… i.
Including affidavit
B.
Offered to prove truth of matter asserted i.
Did declarant mean to assert that fact?
II.
ID’ing
A.
Assertion = conveying something other party doesn’t know
B.
Nonverbal: Conduct v Assertion i.
Was there an audience? If not, likely conduct
1.
Deckhand testifying that ship captain inspected ship and sailed on it, testifying to seaworthiness ii.
Did actor intend to make assertion? If so, assertion
1.
Scientist > former nuke test site with family indicates safe
2.
President > former nuke test site is him ASSERTING its safe
A.
Verbal Act Exception: if it has legal weight, like saying ‘I do,’ in
B.
Implied v Indirect Assertions (DIAGRAM) i.
Implied
1.
No intent to communicate assertion, no info shared
2.
Does listener already know what’s being asserted? a.
If so, not hearsay
3.
HYPO: “Can I have a fork?” a.
NOT meant to assert “there are no forks” b.
The waiter ALREADY KNOWS there are no forks c.
Could prove absence of forks in restaurant, bc implied ii.
Indirect
1.
Assertion in statement, but diff from desired one
2.
Process a.
What is statement being offered to prove? b.
Is what party’s trying to prove DEPENDENT on truth of statement assertion? i.
If the direct assertion needs to be true for the indirect one to be true, hearsay
3.
HYPO: “I’m going running,” also asserts “I’m healthy enough to run” iii.
Choosing
1.
What’s actually being asserted?
2.
Courts don’t want unspoken assertion let in
3.
HYPO: Manager tells employee to de-ice stairs a.
Looking at stairs = Implied assertion, can see stairs are icy b.
Inside building = Indirect assertion that stairs are icy

HEARSAY EXCLUSIONS 801d
Lack of Intent to Communicate
I.
Nonassertive words like “ouch”
II.
Statement uttered to prove something other than asserted
A.
Similar to Indirect Assertion
B.
HYPO: A asks B, “what should I do with investments?” i.
Offered to prove B’s mental competence ii.
Obviously, A thinks B is mentally competent, iii.
BUT not what he’s saying
III.
Statement = circumstantial proof of knowledge
A.
Is there some other piece of evidence that statement is being compared to?
B.
HYPO: D has document accurately describing meth cooking > D knows how to make meth > D is meth dealer
Other Hearsay Exclusions
IV.
Prior inconsistent statement under threat of perjury
A.
Includes depositions
V.
Prior consistent statement IF rebutting credibility attacks
VI.
Prior ID
A.
Independent matching of memory to person, NOT just story bout incident
B.
HYPO: statement to nurse about who beat you up i.
P will say prior ID R801 ii.
D will say just a statement
VII.
Opposing party’s or coconspirator’s statements
A.
They can testify themselves and confront, so why not?
B.
Employer/employee i.
Even if your boss doesn’t know the facts, his statement gets in (Sophie the Wolf)
C.
Coconspirator needs ( Bourjaily ): i.
Evidence of conspiracy
1.
Don’t need to charge conspiracy
2.
Do need some evidence though ii.
Statement in furtherance of conspiracy iii.
Between declarant and party

PRIOR INCONSISTENT STATEMENTS
Rationale
I.
Motive to Lie: these statements must be truthful bc parties would be honest
II.
Timing: must have been uttered before parties had any motive to lie
Types
A.
Extrinsic or in court
B.
Admissible only to impeach i.
Though impeached could permit statement in
C.
Not for truth of assertion i.
Fatal Attraction HYPO: Michael Douglas said he had affair ii.
=motive, even if statement doesn’t prove truth of affair
A.
Must have been: i.
Prior testimony OR ii.
Prior ID
B.
Cross ONLY i.
Needs to be able to explain or deny
C.
Can examine about probative only
D.
Admitted to prove truth of matter asserted
A.
Must be unavailable + prior opportunity to be crossed (look below)

WITNESS UNAVAILABILITY R804
Reasons for Unavailability
I.
Privilege
II.
Refusal
III.
Lack of Memory/Infirmity
IV.
Disappearance/Death
Exception Types
A.
ONLY if party or predecessor had opportunity and motive to cross i.
Different parties, but same goals; like suing sailor in court and Coast Guard at hearing ( Lloyd ) ii.
Depo doesn’t count as cross
B.
Tougher standard than R801
A.
Party must have subjectively expected imminent death i.
Week before you die prob doesn’t count (
Shepard and poisoning)
A.
Broad definition: wouldn’t have made it if not true
B.
How to Use i.
Self-Inculpatory Statements
1.
Only use the parts of statements that incriminate
2.
Must ignore parts that are exculpatory ii.
Criminal context
1.
Requires corroborating circumstances
2.
Mens rea could get dicey a.
Arsonist fingering hirer might be entirely admissible b.
But fact that he wasn’t mastermind might be exculpatory iii.
Conspiracy Context
1.
Can’t use statement of one conspirator against another, because biased
( Crawford )
A.
Party prevented witness from appearing, like killing them
B.
Needs intent to prevent testimony, not just wrongdoing ( Gray )

AVAILABILITY IMMATERIAL
A.
Admissible for truth of situation
B.
Can include narrative during events (Dog-Mauling Case, 911 call) i.
D could say party wasn’t seeing anything concrete ii.
P would at least get screaming in
A.
While party is still in situation, shortly thereafter i.
Dog-Mauling Case could also get in through here
A.
Admissible for mental state
B.
Intentions/impressions for future can be sketchy i.
Might be just “propensity for someone to do something” ( Hillmon , death in desert)
MEDICAL STATEMENTS
A.
Not only to doctors
B.
Criteria i.
Subjective: was statement made to get/enable treatment?
1.
Facts stated must be relevant to treatment ii.
Objective: reasonable Dr rely on in diagnosis/treatment?
1.
Allows in how you got injuries, NOT just symptoms
2.
HYPO: pushed down the stairs a.
Fact that didn’t just fall could affect physical impact, treatment b.
Cause could be irrelevant to fall itself
3.
HYPO: child tells bout caretaker abuse ( Iron Shell ) a.
Dr needs to check if abuse continuous
4.
Statement to person taking you to Dr might count
5.
Statement during treatment might count, jurisdiction dependent
C.
Rationale i.
People tell medical truth to get healthy
A.
Come in under same rule as above
B.
Admissible for truth even if just basis for Dr testimony

WRITTEN RECOLLECTIONS
A.
ID’ing i.
Substitute for testimony ii.
Must be written by W
B.
Criteria i.
Firsthand knowledge at time BUT unable to recall ii.
Statement made near actual event iii.
Witness vouches for accuracy
1.
Needs to guarantee accuracy in court (Lil Arnold case)
A.
Lets W refresh memory
B.
Actual recording not admitted
OFFICIAL RECORDS R803
A.
Adversariality i.
Police records/investigations can’t come in because could be biased towards getting criminal ii.
If adversarial, creator of record must testify as to method of creation
1.
Chemist in crime lab must testify as to how generated results, in order for results to be admissible ( Ontes )
2.
IRS tax assessment can get in because assessor on stand, and because supposedly less adversarial ( Hayes ) iii.
Things like fingerprints/photos get in just fine
B.
Use i.
Crim: Only against gov, NOT against D ii.
Civil: everyone
A.
Qualification i.
Can’t have been made in prep for litigation
1.
Police chemical records get in, because business of lab is litigation
B.
Use i.
Employee must testify about own records, or about records made by another employee ii.
Business can’t speak to part of record created by customer (
Vigneau , Western
Union signing not admissible) iii.
Can’t be used to get around Public Records exception parameters

RESIDUAL EXCEPTION R807
Criteria
I.
Necessity
A.
Crucial to case
B.
Really impractical to get proof of substance otherwise
II.
Trustworthiness
A.
More reliable than actual witness
Use
III.
Like 403/404: always throw in
IV.
HYPO: newspaper article bout fire 80 years ago ( Dallas v Commercial Union )

CONFRONTATION CLAUSE
CRIM ONLY
*Do after hearsay (RULE INTERACTIONS NEXT PAGE)
Criteria
I.
Definition
A.
W/O opportunity to cross-examine accuser, testimonial evidence can’t get in ( Crawford , stabbing and self-defense/not)
Wife claimed spousal priv, so couldn’t be crossed
A.
= Designed to create record for trial
B.
Primary Purpose Test (Bryant) requires OBJECTIVE analysis of: i.
Circumstances: objective ii.
Intention of speaker
1.
What would RPPUSC have intended by statement?
2.
Might want to ID threat…
3.
Or to get cops to arrest your enemy iii.
Intention of questioner
1.
Police: might want to control emergency
2.
Or might want to establish case
C.
Determination Examples i.
Testimonial: establish facts of past crime
1.
Affidavit on domestic battery ( Hammon v IN ) ii.
Not Testimonial:
1.
Ongoing emergency a.
911 call, “he’s jumping on me” (
Davis v Washington ) b.
Victim just shot, perp could be running around with gun ( Bryant )
2.
Informal
3.
Events as they happened iii.
Examples
1.
Police interviews may or may not be testimonial
2.
Criminal lab results must be accompanied by technician ( Melendez-Diaz )
3.
Calculations for victim ID, not actually introduced into evidence ( Williams v IL ) (got in but questionable) a.
Prob made for facts of crime b.
Need to hear procedure c.
Machines aren’t making assertions d.
No incentive to lie, no D in sight e.
Not evidence itself, but basis for expert testimony
D.
Dying declarations to cop fine
I.
Declarant Unavailable R804: need of prior cross covers
II.
Declarant Availability Immaterial R803: D prob available

III.
Present Sense Impression
A.
Can be a prob: HYPO calling cops on neighbor selling drugs i.
Ongoing emergency needs to stop, not testimonial ii.
Telling cops why to arrest someone, testimonial
IV.
Excited Utterance: could be problem if said in anger, testimonial
V.
Medical History Statement: not part of police rep. so prob not testimonial
VI.
Business/Public Records
A.
Records like lab testing reflect determinations, need actual creator on stand ( Bullcoming )
B.
Other business records just fine without witness

LAY V EXPERT TESTIMONY R701-6
Criteria
A.
Firsthand knowledge/perception i.
Particular knowledge:
1.
Drug use
2.
Business area expertise a.
Sometimes only for your specific firm b.
Personal experience > general principles
B.
Nongratuitous, actually useful i.
Would jury have wanted to be in witness’ shoes when forming opinion? ii.
Nonfactual inferences: “he’s tall”
1.
Kind of opinion, can’t be reduced to fundamental facts
C.
No scientific testimony i.
Can’t BS pieces of expert testimony under lay guise (
Ganier , tried to sneak form for incriminating computer searches)
Criteria (DOWN THROUGH F)
A.
Proper qualifications i.
Not necessarily formal training ii.
Experience must be significant ( Jinro v Secure Investments , Korean culture and girl)
B.
Proper topic
: if average judge/juror could figure out, doesn’t work i.
“Consistent with account” works ( Zimmerman trial) ii.
CANNOT reach ultimate legal conclusions
1.
Testifying to matter of law, that cop didn’t follow normal procedure
( Hugh v Jacobs )
2.
Can’t say handwriting exactly matches, just qualities in common iii.
“Macho” and “Match” sounding alike (
Chesebrogh-Pond ) iv.
Can’t testify as to specific individual credibility ( Batangan )
C.
Sufficient basis i.
Facts they’ve been informed of, even if not observed ii.
Attorneys can ask hypos based on R104b conditional relevance to flesh out expert opinion iii.
Can’t be totally based on hearsay material (
Williams v IL , lab test was hearsay exception but still hearsay) iv.
Psychiatrists can reasonably rely on
D.
Relevant/reliable methods
… i.
Normally relied on by experts in these cases ii.
Reasonably relied on here
E.
Reliably applied to facts ( Daubert, Kumho ) (LOOK DOWN)

Court doesn’t have to go through every point (
Kinney ) i.
Can technique be tested? ii.
Peer reviewed?
1.
Might not work for experience-based expertise iii.
Known rate of error/quantifiable reliability? iv.
Existence of standards for industry? v.
General acceptance?
F.
R403 challenge i.
Facts must be more probative than prejudicial

AUTHENTICATION OF EVIDENCE R901-2
A.
Easy standard of proof, but can be argued
B.
Chain of Custody i.
Helpful for docs that may have ben tampered with
C.
Nonexpert unqualified on handwriting i.
But personal knowledge for lay testimony could work
II.
R902: gov seals speak for themselves
A.
Exhaustive list if needed
A.
Needs to be at least 20 yrs old with established authenticity
B.
Condition/finding place must make sense ( Stelmokas , Holocaust docs)
A.
Usually based on phone ownership/voice recognition
B.
Can piece together using distinct characteristics R901b4 ( State v Small , accent)
A.
Someone present must testify to authenticity; for CGI, creators ( Simms )
B.
Silent Witness Theory: video authenticates itself court considers ( Wagner v State ): i.
Time/date ii.
Editing/tampering iii.
Equipment used iv.
Procedure/security around equipment v.
Testimony ID’ing video subjects
C.
HYPO: cop sleeping while video rolls i.
Prob wouldn’t work under normal theory ii.
Prob would work under silent witness
A.
Original doc required, unless excused R 1002 i.
Drawings made after litigation began don’t count (
Lucasfilm )
B.
Mechanically-made duplicates that preclude human error admissible R1003 i.
IM convo copied and pasted into Word couldn’t work (
US v Jackson )
C.
Destruction, bad faith, loss of original can excuse R1004

PRIVILEGES R501
Application
I.
Reason: policy reasons
II.
Experience: law in other jurisdictions
A.
Just bc states recognize some priv, doesn’t mean fed should draw expansive priv
( Redmond , Scalia)
Types
I.
II.
( Redmond )
A.
Shouldn’t be absolute i.
Psychiatrists not necessarily central to mental health ii.
Therapists to social workers a jump iii.
If patient knew/intended for threats to get out, might not protect
B.
Evidentiary needs could overrule priv
C.
Still strong
( Valerie Plame case)
A.
1 st
Amendment i.
Protects freedom of press ii.
LE importance butts up against
B.
R501 common law priv i.
Majority:
1.
Don’t recognize priv
2.
Even if did, wouldn’t apply here ii.
Concurrence 1:
1.
Who would even count as journo?
2.
This should be legislative iii.
Henderson Concurrence: same iv.
Tatel Concurrence: Public interest v Priv balancing test
1.
Would find no priv here
A.
Found at time of evidence creation i.
If attorney wasn’t working for you when statement was made, even if he does later, doesn’t count (
Gionis )
B.
Client intent
C.
Inadvertent Disclosure ( Williams , doc accidentally sent and asked back) i.
Unintentional? ii.
Reasonable steps to prevent?
1.
Sworn statements on production practices would’ve helped
2.
Spreadsheets to keep track?
3.
Tumeframe?
4.
Production control? iii.
Reasonable steps to rectify?
1.
One letter without follow-up insufficient
2.
Atty/client priv must be guarded