Evidence Outline Goodno (Spring 2013) : Exam: We Do NOT Need To Know Rule Numbers or Case Names I.P

Evidence Outline
Goodno (Spring 2013)

Exam: we do NOT need to know rule numbers or case names
I. PROGRESSION OF CASES:
a. Civil:
i. Fact discovery, legal research demand letter discovery trial appeal
b. Criminal:
i. Charges / indictment pre-trial release preliminary hearing (judge only) or grand
jury plea bargains trial sentence appeals and habeas
II.
WHY FEDERAL RULES OF EVIDENCE?
a. Mistrust of juries
b. Accurate fact-finding
c. Substantive policies (fairness)
d. Extrinsic policies (privileges)
i. Attorney-client, doctor-patient, marriage
e. Pragmatic (efficiency, control scope and duration of trial)
III.
ANATOMY OF A TRIAL:
a. Motions in limine
i. Exam: likely have to write one
ii. Made to exclude evidence and often forces settlement
b. Jury selection
i. Voir dire conducted by judge in federal court
ii. Challenges: unlimited for cause, but only three preemptory (Batson)
c. Opening statement
i. Not argument (would be grounds for mistrial)
ii. Only tell a story: The evidence will show . . .
d. Case-in-chief
i. Direct vs. circumstantial evidence:
1. Direct: no inferential process (eyewitness)
a. Ex: seeing it snow
2. Circumstantial: inferential
a. Ex: seeing snow on ground the next morning
ii. Tangible vs. testimonial evidence:
1. Tangible: three types
a. Real: tangible things related to case
b. Recorded statements (includes writings)
c. Demonstrative: illustrative evidence that is fair, accurate depiction
2. Testimonial:
a. Direct: no leading questions unless hostile witness (R611(c))
b. Cross: can be leading, but not beyond scope (R611(b), (c))
i. Cross examination should not go beyond the subject matter of the
direct exam and matters affecting the witnesss credibility.
iii. Objections (R103)
1. Must be timely and made on specific grounds
iv. Offer of proof:
1. Not in front of jury (grounds for mistrial)
2. Show what objected evidence would have proven to build record for appeal
v. Judge vs. jury (R104)
1. Judge decides preliminary questions (admissibility, witness competence,
privilege)
2. Jury decides if evidence is true (facts)
e. Trial motions
i. Civil: judgment as a matter of law
ii. Criminal: judgment for acquittal (defendant only)
f. Closing arguments
i. Argue evidence (not character or personal vouching)
g. Jury instructions
i. Given by judge but written by attorneys
Evidence Outline
ii. Types: substantive, curative, limiting (R105), presumptions, order of decisions
h. Jury deliberations (secret)
i. Verdict
i. Must be unanimous in criminal cases
ii. General vs. specific verdicts
j. Judgment and post-trial motions
i. Can renew earlier motions (i.e. JMOL)
k. Appeals: three-step inquiry
i. When to file appeal
1. Final judgment rule, but two exceptions in criminal cases
a. Privilege ruling when government loses
b. Motions to suppress
ii. Applicable standard of review: normally abuse of discretion
1. Judge only reviews record, so make it clear
iii. What to appeal (R103)
1. Parties only entitled to fair trials, not flawless ones
2. Exam: two-step analysis
a. First, 103(a): no error unless substantial right was affected AND
i. (a)(1)(2): timely objection with specific grounds OR
ii. (e): A court may take notice of a plain error affecting a substantial
right even if the claim of error was not properly preserved
b. Second, determine what type of error
i. Harmless: didnt affect judgment, so not appealable
ii. Reversible: affected substantial right (outcome); therefore, appealable
1. Plain error: always substantial right; reversible
2. Reversible error harmless if judge gives curative instruction
(R105)
IV.
EXAM ANALYSIS
a. Tangible Evidence Analysis
i. Question asked properly?
ii. Logical relevancy
iii. Foundation/authentication
iv. If writing, BER
v. Excluded as hearsay?
vi. Excluded on social policy grounds?
vii. Excluded as character evidence?
viii. Privilege?
ix. Pragmatic relevancy
x. Appeals
b. Testimonial Evidence Analysis
i. Question asked properly?
ii. Logical relevancy
iii. Witness questioning:
1. Competent witness?
2. Proper examination?
3. Proper impeachment or rehabilitation?
4. Proper opinion?
iv. Excluded as hearsay?
v. Excluded on social policy grounds?
vi. Excluded as character evidence?
vii. Privilege?
viii. Pragmatic relevancy
ix. Appeals
Evidence Outline
V.
RELEVANCY
a. Exam: start with logical relevance (R401) and end with pragmatic relevance (R403)
b. All logically relevant evidence is admissible so long as it is properly authenticated unless it is
subject to an exclusion rule or pragmatically irrelevant
c. Logical relevancy:
i. R401: Evidence is relevant if:
1. (a) it has any tendency to make a fact more or less probable than it would be
without the evidence AND
2. (b) the fact is of consequence in determining the action.
ii. R402: Relevant evidence is admissible unless [its excluded under other rules]
1. Has tendency to prove related substantive issue (will always tie back to pleadings
or indictment)
2. Exam: Ask, What is crime charged or what is claim?
iii. Inductive formula (regurgitate verbatim on exam)
1. General principle: Generally, [proposition].
2. Inference: Thus, [the evidence here] is relevant because it has a tendency to
make it more or less probable that [proposition].
iv. Exam tips:
1. Note difference with Cal. Code: any tendency . . . to prove or disprove any
disputed fact
2. Historical difference between materiality and relevance isnt important
3. Relevance does not go to weight (factual truth) or sufficiency (satisfaction of
burden of proof) because jury decides them
a. Dont make mistake of saying that just because it might not be true (i.e.
But consider these other factors!) means the evidence isnt relevant
b. Evidence is only irrelevant if the general premise is always false; dont
argue its irrelevant if the premise might be false
c. Almost impossible to challenge general premise enough to exclude evidence
d. Narrative richness and jury expectations support broad interpretation of
401
d. Pragmatic Relevance
i. R403: The court may exclude relevant evidence if its probative value is substantially
outweighed by danger of:
1. Unfair prejudice, confusing the issues, misleading the jury,
2. Undue delay, wasting time, or needlessly presenting cumulative evidence.
ii. Probative value: tending to prove
iii. Unfair prejudice:
1. When the only possible purpose is to inflame the minds of the jurors or to impair
their objectivity
2. Gruesome photos almost always get in
iv. Undue delay issues:
1. ACN: surprise is not grounds for R403 objection because continuance is more
appropriate (however, you could make an undue delay argument)
v. Rule favors admissibility due to presumption that evidence is admissible
1. Assess evidence in full evidentiary context, not as island
2. Stipulations: does showing stipulated evidence create unfair prejudice when
saying the stipulation would serve the same purpose?
3. Narrative richness and jury expectations are not 403 analysis
e. Evidence Admitted for Limited Purpose
i. R105: If the court admits evidence that is admissible against a party for a purpose
but not against another party or for another purposethe court, on timely request,
must restrict the evidence to its proper scope and instruct the jury accordingly.
ii. ACN: this rule shares close relationship with R403
Evidence Outline

1. When evidence is relevant (R401) but prejudicial (R403), limiting instruction can
cure unwanted spillover effect
a. Real effect: jury still hears it and ignores instruction
2. Criminal trials: separate trials instead of issue limiting instruction (e.g. spillover
confessions)
f.
VI.
Rule of Completeness
i. R106: If a party introduces all or part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any other partor any other writing
or recorded statementthat in fairness ought to be considered at the same time.
ii. Rule 106 trumps hearsay rules
1. When second part of writing comes in but is hearsay, no valid hearsay objection,
but ask for limiting instruction
FOUNDATION / AUTHENTICATION
a. R901(a): To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is
i. Exam: standard is not proof; standard is sufficiency to support a finding
b. First step: determine whether tangible or testimonial evidence
c. Tangible evidence:
i. Three types: (1) real; (2) recorded statements; and (3) demonstrative
ii. Seven steps to lay proper foundation:
1. Mark exhibit for identification show to opposing counsel lay foundation
offer exhibit into evidence give opposing counsel time to object judge
admits if 901(a) sufficiency standard is met show to jury
iii. How to Lay Foundation: R901(b)
1. Real evidence
a. Use personal knowledge: R901(b)(1)
b. Hesitancy goes to weight, not admissibility
c. Ask: What is this? How do you know?
d. Can use demonstrative evidence for illustration if real evidence is
unavailable, but subject to R403
e. Chain of custody: missing link does not prevent admission so long as theres
sufficient proof evidence is what it purports to be
i. Usually requires original link between evidence and defendant to
testify
ii. More tolerant of gaps in transporting evidence
iii. Much stricter in criminal cases than civil
iv. Do you recognize? How so? When did you first see? What did you
do with it? Did anyone else have access? How do you know? In
same condition now as it was when in your possession?
2. Recorded statements
a. Writings
i. Use 901(b)(1)(4), (7)(8)
1. (1) Testimony of witness with knowledge
2. (2) Non-expert opinion about handwriting
3. (3) Comparison by expert witness or the trier of fact
4. (4) Distinctive characteristics and the like
5. (7) Evidence about public records
6. (8) Evidence about ancient documents
ii. Exam: we will lay foundation for electronic docs (email, Facebook,
Twitter)
iii. 901(b)(1): personal knowledge
1. Can use to authenticate ones own emails and someone elses if
used in conjunction with 901(b)(4)
Evidence Outline

iv. 901(b)(4): appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances
1. Can be based solely on circumstances as long as they are
sufficient
2. Reply doctrine: use to authenticate emails that respond logically
to earlier email
3. To prove sender is defendant: call IP expert, add circumstantial
and personal knowledge (but still difficult to do)
v. 901(b)(8): ancient documents
1. Dont usually need much foundation b/c all personal witnesses
are dead
b. Tape recordings
i. Use 901(b)(1), (5), (9)
1. (1) Testimony of witness with knowledge
2. (5) Opinion about a voice
3. (9) Evidence about a process or system
ii. 901(b)(1): Witness listened to tape? Recognize voice? Tape true
and accurate reproduction?
iii. 901(b)(5): voice identification even if unknown language
iv. 901(b)(9): tape recording process by witness who operated it
1. New McMillian factors (Exam: use for any sort of machine or
electronic document/printout)
a. Device capable of making true recording and in good
working order
b. Operator was qualified to operate and did so properly
c. No changes made to recording
d. Identity of speakers established
e. Tape was properly preserved
2. This test good for medical records/photos and computerized
documents/email
3. Gaps in recording go to weight, not admissibility
c. Other exhibits
i. Photos: ask anyone familiar if photo truly and accurately depicts
what is in the photo
ii. X-rays: 901(b)(1) and (9)
1. Ask for personal knowledge and whether machine was working
properly (McMillian factors)
iii. Computer printout: 901(b)(1) and (9)
d. Telephone conversations
i. Cannot authenticate out of the blue caller by self-ID only
1. Need circumstantial evidencee.g. phone record of number,
previous convos allowing for ID
ii. 901(b)(3): maybe compare to previously authenticated recording of
voice
iii. 901(b)(4): reply doctrine
iv. 901(b)(5): voice recognition
v. 901(b)(6): must call home or business number
vi. If call was taped, need McMillian factors
e. Self-authenticating evidence: R902
i. Exam: review all examples from textbook
ii. 12 very specific types of documentsno grey area
1. Domestic public documents under seal
2. Domestic public documents not under seal
Evidence Outline
VII.

a. Must be signed by officer and certified by another public
officer that signing officer has official capacity and
signature is genuine
3. Foreign public documents
4. Certified copies of public records
5. Official publications
6. Newspapers and periodicals
a. ACN: authenticating publication may leave open questions
of authority/responsibility, which go to weight, not
admissibility
7. Trade inscriptions and the like
8. Acknowledged documents
9. Commercial paper and related documents
10. Presumptions under Acts of Congress
11. Certified domestic records of regularly conducted activity
12. Certified foreign records of regularly conducted activity
iii. Generally, jury should accept the matter as authentic in absence of
sufficient counterproof
iv. FRCP has slightly more relaxed rules: allows admission without seal
3. Demonstrative evidence
a. Not always clear line between real and demonstrative evidence
b. Must establish: (1) offered for illustrative purposes to aid jury; and (2) not
misleading
c. Types of aids limited only by creativity and originality: photos,
experiments, movies, wounds, models, charts, diagrams, computer
animation
BEST EVIDENCE RULE
a. Applies only to writings and nothing else
b. Violations are usually considered harmless error because policy reasons for rule are eroding
c. Three-step analysis:
i. Is it a writing?
1. R1001(1)(2): includes recordings and photos
2. Examples: license plate, engraving, numbers on police badge, letter, email, stop
sign, musical score, paintings (probably), recorded musical performance
ii. If yes, is it offered to prove the contents of the writing?
1. Two options: evidence required by law to prove content (contracts, bribery,
obscenity) or evidence tactically chosen to prove content (police reports)
2. If tactical, can offer additional evidence subject to R403 objection
a. Ex.: offer police report and officer testimony
b. If you dont need to produce writing, you can choose not to and avoid BER
entirely
3. BER does not apply if witness testimony is based from own memory, but BER
does apply for testimony not based on independent knowledge
a. ACN: An event may be proved by nondocumentary evidence, even though
a written record of it was made if based on independent knowledge
b. ACN: BER doesnt apply to testimony that books or records have been
examined and found not to contain any reference to the designated matter
iii. If yes, BER applies and you must produce original
1. R1003: may produce duplicate
a. Duplicate can be original for sake of BER when it is the writing most
directly relevant to the suite.g. when a copy of a letter is the actual piece
of paper at issue
b. R1000(d): duplicate is a counterpart produced by a mechanical,
photographic, chemical, electronic, or other equivalent process or technique
that accurately reproduces original
Evidence Outline
VIII.

2. R1004: original not required and other evidence of contents admissible if original
is:
a. (1) lost or destroyed; (2) not obtainable by any judicial means; (3) in
possession of opponent; or (4) a collateral matternot closely related to
controlling issue
b. ACN: if original is destroyed, there are no degrees of secondary evidence;
therefore, even if you have a perfect copy of original, you do not need to
produce it
3. R1006: may produce summary of contents of voluminous documents:
a. As long as the documents themselves are admissible, and
b. The originals are made available to the opposing party
4. R1007: can prove contents of writing by other partys admission
HEARSAY
a. Generally
i. Elements for each category are italicized
ii. Look for: I heard, He said, I said, etc.
1. Even if DL testifying to his own out-of-court statement, its still hearsay
iii. Public policy of excluding hearsay
1. Not trustworthy
a. Declarant (DL) not under oath
b. Cant observe DLs demeanor
c. Cant cross-examine DL on accuracy of communication or veracity/sincerity
iv. Double hearsay: each level must be admissible (start analysis with inner layer)
b. Is it hearsay? Three elements
i. Statement: R801(a)(1)
1. A persons oral or written assertion, or nonverbal conduct if DL intended it as
assertion
2. Writing/oral statement: DL must expect the communication to be accepted as
true
3. Nonverbal assertive conduct
a. Non-assertive utterances: irony, questions, commands, lies
b. Silence:
i. Usually, silence is non-assertion
ii. Not hearsay if used merely to show knowledge of no prior complaints
iii. But can be assertive conduct for adopted admission (R801(d)(2)(B)) if
a reasonable person would, under the circumstances, protest that a
statement made in his presence is untrue (see factors below)
c. ACN: burden on party claiming that the assertive intention existed
ambiguous cases will be resolved against him in favor of admissibility
4. Only a person can make an assertion
a. Info from machines or animals is not hearsay
b. But consider if human creates the mechanical statement (e.g. spreadsheet)
ii. Out of court
1. R801(c): DL does not make statement while testifying at current trial or hearing
2. Affidavits/declarations/depositions are always hearsay
iii. Offered to prove the truth of the matter asserted (TMA)
1. General rule: if you are proving the truth of whatever is in quotes, its hearsay
2. Exam: even if you decide statement isnt offered for TMA, discuss possible
exclusions or exceptions anyway in case youre wrong
3. Four categories of non-TMA uses
a. Impeachment by prior statement
i. Statement offered to show witness is a liar, not that whatever he said
is true
ii. Prior inconsistent statement doesnt need to be under oath
iii. FRE different from CEC. In California, you can argue TMA
b. Verbal acts (legally operative facts)
Evidence Outline
c. Is it
i.
ii.
iii.
iv.

i. Operative words to which the law attaches legal significance offered
merely to prove that they were spoken
ii. Use for contacts, defamation, bribery, solicitation
iii. Can bootstrap nonverbal acts as part of verbal act (e.g. pointing)
iv. Doesnt matter if DL meant to assert a truth
c. Effect on listener
i. Offered to show listener/reader was put on notice, acted
(un)reasonably, or had prior knowledge
ii. Shows why listener/reader should have acted a certain way
iii. Exs.: man from gas company says hes employee; drug warning labels
1. TMA of label goes to weight, not admissibility
d. DLs state of mind
i. Circumstantial evidence offered to indirectly reveal what DL
thinks/believes
ii. Look for words indicating dislike, insanity, knowledge, memory, or
belief
1. Exs.: My husband was a jerk, so he gets $1, I am Thor.
iii. Exam: differentiate between non-TMA use and state of mind exception
1. Use non-TMA when accuracy of statement doesnt matter
2. If you see words I feel, I like, I am, etc. use R803(3) instead
e. Miscellaneous
i. Not everything fits neatly in one of these four categories
ii. If not, say this evidence is offered for the non-hearsay purpose
of_____
a hearsay exclusion?
R801(d): statutorily defined as not hearsay because its inherently trustworthy
Evidence can be offered for TMAso use it to argue both TMA and credibility where
appropriate
Prior inconsistent statement: R801(d)(1)(A)
1. DL must testify
a. DL does not have to be testifying now, but just sometime at trial
2. DL must be subject to cross-examination
a. No guarantee cross will be effective: I dont recall, etc. still subject to
cross
i. Even if DL pleads the Fifth on cross, still counts as cross
b. Only time DL wouldnt be subject to cross is grand jury (but FRE doesnt
apply anyway)
3. Prior inconsistent statement
a. What if current statement is I dont recall?
i. Common rule: would reasonable person conclude statements
materially differ?
ii. CA: if DL forgets, judge must rule whether DLs forgetfulness is fake
4. Prior statement was under oath
5. Prior statement was at trial, hearing, proceeding, or deposition
a. Key is reliabilitydecided on a case-by-case basis
b. Courts split on if border patrol stations or IRS offices are proceedings
c. Homes usually not proceeding
6. FRE different from CEC
a. CEC 1235: allows all prior inconsistent statements for TMA, and the prior
statement doesnt to be under oath
b. Exam: explain how same statement can be used both ways and discuss
implications
Prior consistent statement: R801(d)(1)(B)
1. DL must testify
2. DL must be subject to cross examination
3. Prior consistent statement
Evidence Outline

4. Offered to rebut an express or implied charge that DL recently fabricated it or
acted from an improper influence or motive
a. Temporal requirement: prior consistent statement must predate motive to
lie
i. If statement postdates motive, can only use to rehabilitate credibility
1. Must give limiting instruction saying not for TMA
b. Statement admissible for TMA only after opponent opens the door
v. Prior identification: R801(d)(1)(C)
1. DL must testify
2. DL must be subject to cross-examination
3. Statement identifies a person as someone DL perceived earlier
a. Ex.: composite sketchonly DL must testify and be subject to cross (not
artist)
b. Ex.: I know the robber. It was D.sufficient as visual ID
c. Verbal description alone is insufficient to meet R801(d)(1)(C): if victim only
gives physical description, must also have some physical element
i. If DL knows person previously perceived, that counts
d. If eyewitness doesnt remember making prior ID, officer may testify to it,
but eyewitness still needs to testify and be subject to cross
vi. Party admission: R801(d)(2)(A)
1. Statement offered against opposing party
2. Defendant made statement
a. Defendants personal knowledge not required
b. Very broad rule: drunk/sleeping/nearly dead statements still admissible
c. Statement of intent: I am going to kill you is still admissible even though
D did not actually admit to past murder
i. Anything that helps establish mens rea or actus reus is admissible
d. Guilty pleas are admissible in later trials, but cannot use:
i. Withdrawn guilty pleas
ii. Nolo contendere pleas
iii. Statements by very young minors
iv. Apologies
e. Spillover confessions
i. Can only be used against DL, not any other Ds implicated in confession
ii. Limiting instruction not sufficient to cure problem in criminal cases
1. But it usually is sufficient in civil cases
iii. Solution: bifurcate trial or redact confession if it isnt too obvious that
joint Ds are the redacted portion
vii. Adopted admission: R801(d)(2)(B)

2. Party by words or conduct manifests an adoption/belief in its truth
a. Exam: analyze whether, under the totality of the circumstances, a
reasonable person in the partys position who heard and understood
statement would deny truth of statement if it isnt true
b. Exam: there will be an adopted admission question
c. Silence: usually non-assertion, but can be assertive under this test
i. Factors to consider for tacit admissions:
1. Party heard the statement
2. Matter asserted was within his knowledge
3. Occasion and nature of statement were such that he would likely
have replied if he didnt mean to accept what was said
4. Party understood the statement and its significance
5. Physical or psychological factors
6. Whether speaker was someone D would likely ignore
Evidence Outline

7. Whether Miranda warnings were given or D is in custody
ii. Post-Miranda silence may not be used as assertive conduct
1. Modern trend: if a reasonable person would verbally object postMiranda, testimony is allowed if govt not questioning defendant
iii. Pre-Miranda silence is admissible if assertive conduct under this test
viii. Speaking agent admission: R801(d)(2)(C)
2. Statement by a person authorized to speak on partys behalf
a. Exs.: lawyers, public relations people, brokers
b. First, check to see if statement is verbal act (therefore, not hearsay)
c. FRCP trump FRE
i. Party can plead inconsistent statements without later admission
1. Can plead inconsistent legal theories, but not facts
ii. Generally, pleadings and answers to rogs from any case are admissible
iii. Experts and requests for admission only admissible if from current case
ix. Employees and agents: R801(d)(2)(D)
2. Statement made by partys employee
a. Law unclear whether you need corroborate statement that DL is
agent/employee
b. Usually not an issue because employer will admit DL is employee
3. Concerning matter within scope of agency or employment
a. Admissible even if statement marked private or internal
4. Made during existence of agency or employment
a. Need not be during working hours, but must be before employment is
terminated
5. DL doesnt need personal knowledge
6. Against government
a. Unclear if government employees can speak on behalf of the government
b. More likely if speaker is high up the food chain
x. Co-conspirators: R801(d)(2)(E)
2. Existence of conspiracy
a. Need independent evidence beyond witnesss statement
b. ACN: Contents of statement shall be considered but are not alone sufficient
to establish DLs authority
3. Co-venturers
a. D and DL both part of conspiracy
b. Testifying witness doesnt have to have been criminally charged
4. Pendency: during the course

a. Statement must be made during (not before or after) conspiracy
i. Even after arrest, maybe still during the course if you lie to police while
others are carrying out conspiracy
b. Statements made after arrest are not during the course
i. Still might get in as party admission, but will have spillover confession
issues
5. Furtherance of conspiracy
6. Procedural issues
a. Judge decides preliminary issue of whether conspiracy exists under R104(a)
i. James hearing: can introduce evidence of conspiracy outside presence
of jury
ii. Should offer independent evidence before testimony to avoid James
hearing
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Evidence Outline

b. Standard of review:
i. Court looks to preponderance of evidence of conspiracy (even in
criminal trials)
ii. Then, jury must decide beyond reasonable doubt to convict
d. Is it a hearsay exception?
i. Generally
1. Still considered hearsay, but admissible because statements are inherently
trustworthy
2. DL usually does not have to testify
a. Two exceptions: 803(5) and (18)
3. ACN: Exceptions are phrased in terms of non-application of the hearsay rule,
rather than in positive terms of admissibility, in order to repel any implication
that other grounds for exclusion are eliminated.
a. Even if statement meets exception, always do 401 and 403 analysis
4. Exam: first eight exceptions tested most heavily
ii. Common oral statements: res gestae
1. Present sense impression: R803(1)
a. Statement describing or explaining event (includes all senses)
b. Made while DL perceives event/condition or immediately thereafter
i. 911 calls usually get in because theyre made while DL perceiving
event or immediately thereafter
ii. Statement must usually be in present tense: He is shooting me.
1. If past tense, check excited utterance exception
2. Excited utterance: R803(2)
a. Statement relating to event or condition
b. Made while DL under stress of excitement caused by event/condition
i. Unlike R803(1), slight time lapse allowable
1. No set amount of timeconsider R403
ii. Modern trend: dont need to corroborate excitement
c. Common in accident, violent crime, and child abuses cases
3. Then-existing mental, emotional, or physical condition: R803(3)
a. Very closely related to R803(1)
i. If you can get evidence in under 803(1), you probably can under
803(3) too
b. Does not include statement of memory or belief to prove fact remembered
or believed
i. Statements of believe are irrelevant under R403: speculation,
misperception
ii. Exception: belief is admissible if victims mental state is element of the
crime
1. Ex.: self-defense (D says, I believe victim was going to kill me)
a. Or victim tells third party, I believe D is going to kill me
2. Must still be in present tense
c. State of mind
i. Statement must be contemporaneous with state of mind (i.e. I am
angry)
1. Must be experiencing condition at time of statement
2. Statement should be in present tense
ii. Statement cannot be backward-looking (i.e. I was angry)
iii. Differences between R803(3) and non-TMA state of mind:

1. Exam: very important!
2. R803(3): when DL makes a direct statement about mental state
a. Exs.: I feel, I like, I am
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Evidence Outline

b. Statement must be accurate to be offered for TMA
c. Statement must be in present tense
3. Non-TMA: circumstantial evidence of DLs state of mind
a. Statement does not need to be accurate/truthful
b. Not trying to prove truth of quote
d. To prove subsequent conduct
i. Can offer assertion to prove what DL subsequently did
ii. Ex.: Last week I was offered a job in Vegas, so I plan to go there
tomorrow
1. First clause: inadmissible as backward-looking
2. Second clause: admissible as assertion of intent
3. Raise rule of completeness, which then triggers 403
a. Very difficult to win rule of completeness over 403
objection
iii. Second-party Hillmon:
1. DLs statement used to prove subsequent conduct of another
2. Courts are split (exam: discuss all three unless clearly in
California)
a. Some courts allow it (9th Cir. and California)
b. Some courts dont allow it
c. Some courts allow it if independent evidence corroborates
the other persons intent
e. Relating to DLs will
i. Backward-looking statements are admissible if they relate to DLs will
ii. Rationale: DLs state of mind very important, but DL is dead
4. Medical treatments: R803(4)
a. Statement made for purposes of medical diagnosis/treatment
b. Statement reasonably pertinent to diagnosis/treatment
c. Very broad rule
i. Any statement for medical treatmentcan be to doctor, nurse, maybe
family
ii. Family can speak for ill/unconscious person if its for medical treatment
d. Statements as to fault/identification would ordinarily not be admissible
i. Exception: child abuse cases
1. DLs motive must be consistent with purpose of promoting
treatment of diagnosis
2. Must be reasonable for doctor to rely on information
ii. Exam: can also try to fit other types of abuse into this exception
iii. If statement to doctor for medical purposes implicates DL as guilty of
something, it can come in later in trial
iii. Written records
1. Past recollection recorded: R803(5)
a. Written statement about a matter witness once knew about but now cant
fully remember
b. Statement made or adopted by witness
i. Adopted: police can write a statement and DL willingly signs it
c. While fresh in witnesss memory
i. Very lenient: some courts have said three years later is ok
d. Accurately reflects witnesss memory
i. Lenient: generally ok to have accuracy clause and signature
e. Procedure
i. Unwritten fifth element: DL must testify in court in order to meet first
element
ii. Record may be read into evidence, but may be received as an exhibit
only if offered by an adverse party
iii. Two-step procedure
12
Evidence Outline

1. First, use past recollection refreshed
2. Second, use past recollection recorded if witness still doesnt
remember
2. Business records: R803(6)
a. Written business record of any kind
i. Business and record both defined very broadly
ii. Exam: consider Ebay account
1. Would be business record for consistent seller, but not for onetimer
b. Record concerns acts, opinions, or diagnoses
i. Very broad
c. Made at or near the time by a person with knowledge
i. Source of info must be person with knowledge
ii. Person who makes the record does not need knowledge (i.e. secretary
writing down board minutes)
iii. Ex.: patient goes to doctor and says, The first doctor cut my nerve
1. Whether patient truly has knowledge goes to weight, not
admissibility
d. Kept in the ordinary course of business
e. Made in the ordinary course of business
i. Exam: there will be multiple choice question on this
ii. If source of info doesnt act in regular course of business, essential link
is broken
iii. Ex.: police report incorporating info obtained from bystanders
1. Bystanders are not in business of reporting crime
iv. But can meet this element by using other hearsay exceptions (e.g.
police officer takes down record of excited utterance)
f. As testified to (or certified by affidavit) by custodian
i. Custodian must have first-hand knowledge of record keeping system
ii. Need to meet both 803 and 901 requirements
g. Trustworthy
i. Records prepared in anticipation of litigation not admissible
ii. Medical records are admissible
h. Double Hearsay
i. Virtually all business records will contain double or triple hearsay
ii. Exam: always start with first speaker and work through layers
1. Analyze actual statement first, and if it fits an exception, then
analyze business record
i. Police reports
i. Since police reports are inadmissible as public records in criminal cases
(see infra), cannot admit as business records in criminal cases
3. Public records: R803(8)
a. Any written record of any public office setting forth:
i. Offices activities; or
1. Ex.: court transcripts
ii. Matters observed while under legal duty to report, excluding law
enforcement reports in criminal cases; or
1. Ex.: IRS liens, building inspector code violation report, police
reports from scenes, witness statements at scene
2. Exam: grey area on whether D could offer helpful police report
iii. Investigative reports: factual findings from legal investigations in civil
case or against government in criminal case
1. Ex.: detective report explaining investigation
2. Government cannot offer police report against D in criminal case
3. But officer can testify about facts in the report, even though
report will be inadmissible (unless officer is expert)
13
Evidence Outline

b. Trustworthy: four factors (exam: discuss all four)
i. Timeliness
ii. Expertise
iii. Hearing
iv. Motivation problems
v. [Trustworthiness goes to weight/credibility, not admissibility]
1. Note tension since it is an element for admissibility
c. Exam: go through both 803(6) and 803(8) for public records
i. Can almost always get public records in under either exception
d. If part of report is admissible, redact inadmissible portion
i. Completeness trumps hearsay, but very high standard
ii. Exam: always discuss 403 issues with redaction
iv. Minor Exceptions
1. Absence of records
a. Absence of business records: R803(7)
b. Absence of public records: R803(10)
i. Absence of public records not hearsay, but testimony of absence can
be
ii. Rationale: lack of routinely made records is trustworthy
2. Specific records
a. Milestones
i. Public records of vital statistics: R803(9)
ii. Records of religious organizations concerning personal or family
history: R803(11)(12)
iii. Certificates of marriage, baptism, and similar ceremonies: R803(12)
iv. Family records: R803(13)
1. Exs.: family Bibles, genealogies, tombstones
b. Real property
i. Records and statements affecting interest in property: R803(14)(15)
c. Judgments
i. Judgments of previous conviction: R803(22)
1. But not nolo contendere plea
ii. Judgments involving personal, family, general history, or boundaries:
R803(23)
3. Other writings
a. Statements in ancient documents: R803(16)
i. Document must be at least 20 years old
ii. Easier authentication/foundation
1. R901(b)(8): need evidence that document
a. Is in condition that creates no suspicion of inauthenticity
b. Was in place where, if authentic, it would likely be, and
c. Is at least 20 years old
b. Market reports and similar commercial publications: R803(17)
i. Published data relied upon by groups or the public
ii. Exs.: price lists, city directories, growth statistic charts
c. Statements in learned treatises, periodicals, or pamphlets: R803(18)
i. Reliable authority that expert relies upon or is subjected to on cross
ii. Can read but not offer into evidence
4. Reputation: R803(19)(22)
a. What is said or thought about property boundaries or ones character
b. Ex.: libel caseestablish reputation to prove that statement wasnt libel
v. Difference between R803 and R804
1. R803: based on assumption that hearsay statement possesses qualities that
justify the conclusion that whether or not DL is available is not a relevant factor
in determining admissibility
14
Evidence Outline

2. R804: reflects preference that DL be on the stand to testify, but that hearsay is
better than a complete loss of evidence
a. R804 statements not as reliable or trustworthy as live testimony, but
hearsay will be admissible if DL is unavailable to testify
vi. R804 exceptions
1. DL must be unavailable (five ways to be unavailable)
a. Privilege
b. DL refuses to testify despite court order to do so
c. DL testifies to not remembering
d. DL cannot be present or testify because of death or then-existing infirmity,
physical illness, or mental illness
i. Must be very sick, but exception for child abuse victims
e. DL absent from trial or hearing and statements proponent has not been
able, by process or other reasonable means, to procure DLs attendance
under R804(b)(1) or (6) or DLs attendance or testimony under R804(2)(4)
i. Subpoena probably enough, but helpful to reimburse costs and
expenses
1. Prisoners: cannot subpoena for civil case, but can take deposition
ii. Reasonableness standard quite stringent: must show strong attempt
2. Statement must fit into R804(b) exception
a. (1) Former testimony
i. DL unavailable
ii. Must be given as witness at trial, hearing, or deposition under oath and
iii. Offered against party (or predecessor in interest if civil case) who had
similar motive to develop DLs testimony in prior hearing
1. Predecessor in interest: party with common motive to cross DL
a. Very high standard
b. Exam: use argument but acknowledge difficulty in
satisfying it
2. Co-owners of business are in privity
3. Predecessor in interest only works if civil case comes after
criminal case due to different standards of proof
iv. Transcript of prior proceeding can only be read into evidence
1. But can get in with double punch via R804(b)(1) for DLs
statement, then R803(6) public record or R803(8)
v. Former Testimony (FT) vs. Prior Inconsistent Statement (PIS):
1. Exam: will be question on the difference
2. FT: DL testified in prior hearing and is now unavailable
a. PIS: DL testified in prior proceeding and in current
proceeding
3. FT: DL subject to cross at prior proceeding
a. PIS: DL subject to cross at current proceeding
4. FT: statement does not need to be inconsistent w/ current
testimony
a. PIS: statement does need to be inconsistent w/ current
testimony
b. (2) Dying declaration
i. Exam: will be tested because she loves it
ii. DL unavailable
iii. Must be criminal homicide or civil case
1. Ex.: attempted murdered does not satisfy this element
iv. DL must make statement believing death is imminent
1. Does not mean DL needs to be dead
2. Death does not need to be imminent, but DL does need to think
it is
3. Must be settled hopeless expectation of death
15
Evidence Outline

v. Statement must be about cause or circumstances of death
c. (3) Statement against interest
i. DL unavailable
ii. Statement must be so contrary to DLs proprietary, pecuniary, or penal
interest
1. Statements against social interest do not qualify
2. Exam: Goodno always considers whether DL is trying to curry
favor with law enforcement by telling the truth
3. In criminal case, must have corroborating evidence
iii. Reasonable person would not make statement
iv. Difference between statement against interest and party-opponent
admission
1. For party-opponent admission, the party must make the
statement, DL does not need to be unavailable, and statement
does not need to be against interest (just inconsistent)
v. Statements of mixed interest

1. Ex.: I was delivering for drugs. I did so for X.
2. First sentence against interest, but second sentence either
collateral/neutral/narrative or self-serving
3. To determine if statement is against interest, view in whole
context
4. Exam: Court only allows self-incriminating parts and redacts
others
a. Raises completeness and 403 issues
d. (4) Statement of personal or family history
i. DL unavailable
ii. Statement about self or about relative or other intimate association
iii. Corroborating evidence not required, but its good to have
iv. Very narrow in scope
1. Ex.: Mom loved dad so much that she married him
2. Only she married him would be admissible
e. (6) Forfeiture by wrongdoing
i. DL unavailable
1. Can just prove D made DL unavailable
2. Do not need to go through rest of 804(a) analysis
3. Judge decides based on preponderance of evidence
ii. Party engaged in/acquiesced to wrongdoing
iii. Party specifically intended to, and did, procure DLs unavailability
1. Judge decides intent based on preponderance of evidence
3. Failure to cross at preliminary hearing does not waive R804 exception
4. R804 does not apply if statements proponent produced or wrongfully caused
DLs unavailability as witness in order to prevent DL from attending or testifying
a. Generally, governments refusal to grant DL immunity does not qualify as
producing unavailability
vii. Catchall exception: R807
1. Trustworthy
a. Multi-factor balancing test
i. Propensity for truthfulness
ii. Whether statement was under oath
iii. Personal knowledge
iv. Time lapse
v. Corroboration
vi. Motivation
2. Evidence of material fact
16
Evidence Outline

a. Usually met as long as evidence is relevant under R401
3. More probative than other evidence reasonably available
a. Show reasonable and diligent search
4. Interests of justice served
a. Easily met if statement is trustworthy
5. Pre-trial notice
a. Courts will often allow continuances to argue R807 objections
6. Child abuse cases
a. Federal courts use 807 catchall, but raises constitutional concerns
7. Grand jury testimony
a. Only way to get grand jury testimony in is through R807
b. Not admissible under R801(d)(1)(A) or R804(b)(1) because DL not subject to
cross
e. Confrontation Clause
i. Generally
1. Issue only in criminal cases
2. Exam: the word unconstitutional should trigger Crawford issue
3. Sixth Amendment: In all criminal trials, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.
a. Confronted with: witness must testify in Ds presence (unless D
misbehaves)
b. Witness must be available for cross-examination
ii. Exam: Confrontation Clause checklist
1. Criminal case
2. Admissible hearsay by government against defendant
a. No Confrontation Clause issue with non-TMA categories
b. But does impact exclusions and exceptions
3. Testimonial
a. Statements made under circumstances that would lead objective witness
reasonably to believe the statement would be available for use at a later
trial
i. Ex parte in-court testimony or functional equivalent
1. Exs.: affidavits, custodial examinations/confessions, prior
testimony where D was unable to cross (grand jury), pretrial
statements expected to be used prosecutorially
ii. Extrajudicial statements contained in formalized testimonial material
1. Exs.: affidavits, depositions, prior testimony, confessions
iii. Statements taken by police officers in course of interrogation
1. Any kind of structured police questioning
iv. At minimum, testimonial covers:
1. Prior testimony at preliminary hearing, grand jury, or prior trial
2. Police interrogations
b. Differentiate from casual, offhand, or overheard remarks, which are not
testimonial
c. Business records usually not testimonial, but they are if made in anticipation
of litigation
i. Exam: always analyze Crawford for business records
ii. Only crucial witnesses need to testify
iii. Ex.: lab report saying substance is cocaine
1. Issue becomes who is crucialprobably at least first and last
people in chain of custody
d. Exception: ongoing emergency
i. Statements are non-testimonial when made in the course of police
investigation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency.
17
Evidence Outline
IX.

ii. Four-factor balancing test
1. Focus of questions (present or past event)
a. Narrative of past events vs. DL still in danger
2. Whether current emergency exists
a. DL safe vs. still in danger
3. Level of formality
a. Formal written document vs. cry for help
4. DLs intent
a. Helping investigation vs. helping end a threatening
situation
iii. Conversations that begin as ongoing emergency can evolve into
testimonial
4. DL unavailable for cross
a. Two requirements: (1) DL presently unavailable for cross; and (2) defendant
had no prior opportunity to cross-examine
b. Opportunities to cross: depositions and preliminary hearings
c. Grand jury not an opportunity to cross
d. DLs unavailability easier to satisfy than for R804(a)
5. Confrontation Clause bars statement unless:
a. Historically non-testimonial or
i. Forfeiture-by-wrongdoing (Giles)
ii. Co-conspirator statements (dicta)
iii. Dying declarations (dicta)
b. Elements of FRE require DLs availability
SOCIAL POLICY EXCLUSIONS

a. Generally
i. Evidence otherwise admissible, but statutorily not admissible because public policy
favors behavior
ii. Exam: 407 and 410 tested most heavily
b. Subsequent Remedial Measures: R407
i. When D remedies behavior (e.g. car recall) subsequent to accident
1. Remedial measure must come after initiation of litigation
2. If subsequent behavior happens prior to litigation, it is admissible subject to 403
ii. R401: relevant because if D changes behavior after accident to prevent it from
happening again, it is more likely that Ds behavior/product was negligent/defective
iii. Public policy: subsequently changing behavior is equally consistent with true
negligence or accident
1. Goodno: essentially a 403 issue because even though evidence is probative, jury
would use it to wrongly conclude subsequent measures mean negligence
iv. Permitted uses
1. Impeachment
a. Exam: D must really take opposite position
i. Ex.: We could never have changed it, but then made subsequent
change)
ii. Judgment call or at the time mean evidence likely not admissible
as impeachment
b. Reflects narrow view and allows Ds to make judgment calls
2. Proof of ownership/control
a. Ex.: if city subsequently fixes pothole in city sidewalk after litigation is filed
3. Feasibility of precautionary measures: split
a. Narrow view: not physically or technologically possible
i. Excludes more evidence because D would have to contend behavior
was absolutely impossible
18
Evidence Outline

ii. Encourages Ds to make judgment calls without fear of punishment by
future Ps
b. Broad view: includes motives and explanations beyond mere physical
impossibility
v. Prohibited uses
1. Negligence
2. Culpability
3. Defect
4. Liability
vi. Product liability cases
1. Exam: difference between FRE and CEC
a. R407 does apply to strict liability cases
b. CEC does not apply to strict liability cases
i. Rationale: manufacturers will fix products no matter what to avoid
future liability by many plaintiffs
ii. Means Ps can admit subsequent remedial evidence to prove liability
c. Civil compromise Offers and Negotiations: R408
i. R401: relevant because if offer is large or small, it tends to show claim is valid or
invalid
II. RULE: no party may offer the following evidence to prove validity or amount of disputed
claim or to impeach
1. Furnishing, promising, offering, accepting, promising or offering to accept a
valuable consideration in compromising or attempting to compromise the claim;
2. Conduct or statement made during compromise negotiationsexcept when
offered in criminal case and when negotiations related to claim by public office in
the exercise of its regulatory, investigative, or enforcement authority
a. If D offers to compromise in prior civil case, it is admissible in subsequent
criminal cases
iii. Exceptions: court may admit evidence for another purpose, such as proving bias or
prejudice, negating contention of undue delay, or proving effort to obstruct criminal
investigation or prosecution.
iv. Offers of compromise
1. Prior civil negotiations or settlements used in subsequent criminal or civil action
2. Excludes pre-existing information to discussions
a. Ex.: if P says he smoking gun during settlement negotiations, he must
produce it during discovery if negotiations fail
v. Disputed claim
1. Rule does not apply to statements made before dispute
2. Generally need an actual lawsuit or P demanding certain amount of money
a. Statements made before actual dispute are admissible
vi. Multi-party settlements
1. Ex.: M and N sue O, then O settles with N
a. In Ms trial against O, M cannot impeach O based on Os settlement with N
vii. Subsequent criminal case
1. Cannot admit previously paid civil fine to prove criminal guilt
2. Statements made in public officers presence are admissible in subsequent
criminal cases
a. But not statements made in private investigators presence
viii. Subsequent civil case
1. Ds guilty plea in criminal case is admissible in subsequent civil case
d. Offers to Pay Medical and Similar Expenses: R409
i. Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or
similar expenses resulting from an injury is not admissible to prove liability for the
injury.
ii. R401: relevant because A more likely to pay for Bs injuries if he is responsible for them
iii. Narrower than R408
19
Evidence Outline

1. Does not cover conduct or statements of negotiations
2. Ex.: Im sorry I ran the red light. Ill pay for your medical bills.
a. Only Im sorry I ran the red light is admissible
e. Pleas, Plea Discussions, and Related Statements: R410
i. R401: relevant because D more likely to be guilty/liable if he considered taking plea
II. RULE: plea discussions not admissible to prove anything against civil or criminal D
1. Prosecutors can get D to waive R410 rights prior to plea discussion
iii. Guilty pleas
1. When D pleads guilty, discussions are admissible
a. Entire discussion is admissible only if fairness requires the entire discussion
to get in
2. Plea discussions cover only the discussions, not confession
a. But confessions admissible as relevant through hearsay exception 803(22) if
felony plea
iv. Prohibited uses
1. Guilty plea later withdrawn
2. Nolo contendere plea
3. Statement made during proceeding on either of those pleas under FRCrimP 11 or
comparable state statute
4. Statement made during plea discussions with prosecutor if discussions did not
result in guilty plea or they resulted in later-withdrawn guilty plea
a. Discussions with police
i. Not considered plea bargain because prosecutor is not present, so
admissible
ii. ACN: maybe could argue police are agents who purport to have
authority to bargain
iii. Exam: give argument against admissibility, but conclude govt will
probably win
v. Exceptions to prohibited uses
1. Statement must be made as part of R410(a)(3) or (4)
a. If defendant introduces part of plea discussion, and in fairness the
statements ought to be considered together; or
b. In a criminal proceeding for perjury or false statement, if the defendant
made the statement under oath, on the record, with counsel present
i. Ex.: if D pleads guilty under penalty of perjury, but later with draws
plea, his confession can be used in perjury case against him
vi. Third parties
1. If D talks to prosecutor about dropping charges against third party and also
makes incriminating statements, statements likely admissible
2. R410 does not cover discussions for third parties
f.
X.
Liability Insurance: R411

I. RULE: evidence that a person was or was not insured against liability is not admissible
to prove whether the person acted negligently or otherwise wrongfully. But the court
may admit this evidence for another purpose, such as proving a witness bias or
prejudice, or proving agency, ownership, or control.
ii. R401: relevant because reckless people have insurance
1. Less relevant in modern society where law requires insurance
iii. Prohibited uses:
1. Liability
iv. Permitted uses:
1. Ownership or control
2. Bias or prejudice
3. Intertwined with admission, but court should try to redact if possible
CHARACTER EVIDENCE
a. 401 relevancy theory: propensity or non-propensity
20
Evidence Outline
i. Propensity: if offered to prove someone acted in accordance with character, NOT
admissible unless
1. Impeachment
a. BICCS (see infra)
b. Character evidence is admissible to prove bias, inconsistent statement,
character for untruthfulness, contradiction, and sensory/mental deficiency
2. Sex offense case
A. Victims sexual history not admissible unless
i. Criminal case
1. Only when
a. R412(c) procedure met; and
i. File motion specifically describing evidence and its
purpose at least 14 days before trial
ii. Serve motion on all parties
iii. Notify victim
b. Issue of whether defendant was source of semen/injury; or
c. Issue of victims past sex with defendant to show consent;
or
d. When Constitution requires evidence to be admitted to
prove motive of false claim
2. Method
a. Specific acts only: no reputation or opinion
ii. Civil case
1. Only when procedure met (same as criminal case)
2. Method
a. Opinion or specific act
i. Reverse 403: presumed to be not admissible, so must
prove probative value substantially outweighs
prejudice
b. Reputation
i. Reverse 403 only if victim placed her reputation in
controversy
b. Defendants sexual history
i. Sexual assault case analysis:
1. 401: once a sexual offender, always a sexual offender
2. 404(a): character evidence generally inadmissible, but
3. R41315: Ds prior sex offenses are admissible in sexual assault
cases
a. Must be conviction
4. 403: admissible unless prejudice substantially outweighs
probative value
a. More recent sexual acts are more probative, but even very
old acts will likely survive 403 objection
ii. Method:
1. Specific acts only: no reputation or opinion
2. Can prove prior acts, which must be convictions
3. Character at issue in civil case

a. Only when
i. Character is element of offense
1. Ex.: defamation, negligent entrustment, child custody, wrongful
death
b. Method
i. Reputation, opinion, or specific acts
21
Evidence Outline

4. Character of criminal defendant
a. Only when
i. Defendant offers it
ii. Prosecution rebuts if defendant opens door
1. Defendant taking the stand always opens the door to honesty
iii. Prosecution shows defendant had same trait as victim if defendant
opens door
1. Defendant opens door to victims character
b. Method
i. Reputation or opinion
ii. Specific acts only as inquiry on cross (Do you know about . . . ?)
5. Character of criminal victim
a. Only when
i. Defendant offers it
ii. Prosecution rebuts if defendant opens door
1. Means prosecution cannot call character witnesses in case-inchief
iii. Homicide exception
1. In self-defense case (D said V struck first), prosecution can call
character witness in rebuttal to say victim was peacemaker
b. Method
i. Reputation or opinion
ii. Specific acts only as inquiry on cross (Do you know about . . . ?)
ii. Non-propensity: admissible
1. MIMIC: Motive; Intent; Lack of Mistake; Identity/Modus Operandi; Common Plan
a. Generally
i. Must always ask for limiting instruction for non-propensity purpose
ii. Notice only required for criminal, but not civil, cases
iii. Exam: focus on Ds claims of defense to trigger issue
iv. Method:
1. Specific acts can be proven
2. Unclear whether reputation or opinion evidence is admissible
b. Motive and Intent
i. Triggered when D claims he didnt intend to commit crime, but prior
bad acts show he intended to do same thing as in the past
ii. Analysis:
1. 401: generally, people who do something in the past intend to do
it again
a. Do not frame 401 as once a bad guy, always a bad guy
2. 404: character evidence usually not admissible, but
motive/intent is not character evidence
3. 403: motive/intent almost always more probative than prejudicial
a. Stipulations: specifics are less likely to survive 403
objection, but if facts closely mirror, then they are more
probative
iii. Notice: govt must give notice if D asks
iv. Standard of proof
1. Judge rules on admissibility by sufficiency standard, and jury
decides by preponderance of evidence whether bad acts actually
occurred
2. Can even admit acquittals because preponderance standard is
lower than beyond reasonable doubt
c. Absence of Mistake
22
Evidence Outline

i. Triggered when D claims he didnt commit crime, but prior bad acts
show has done it before
ii. Analysis:
1. 401: the more likely an event happened in the past, the less
likely it is a mistake/accident now (doctrine of chances)
2. 404: character evidence usually not admissible, absence of
mistake is not character evidence
3. 403: the more past events, the more probative
a. Govt will almost always win 403 objection
d. Identity/Modus Operandi
i. Triggered when D claims he didnt commit crime, but prior bad acts
show a similar pattern/signature/trademark linking D to current crime
ii. Analysis:
1. 401: criminal as the same MO each time he commits crime, so
the MO here makes it more likely he committed this one
2. 404: character evidence usually not admissible, identity/modus
operandi is not character evidence
a. D can perform reverse 404 and show someone else has
same MO when committing that crime
i. Does not need to give govt notice
3. 403: very probative, though prior convictions based on weak
evidence might be somewhat less probative
e. Common Plan
i. Triggered when prior bad acts show existence of larger continuing plan,
scheme, or conspiracy of which the charged crime is a component
1. Often triggered by RICO charge
ii. Analysis:
1. 401: [the evidence] tends to prove common plan of ____
2. 404: character evidence usually not admissible, but common
plan is not character evidence
3. 403: RICO charge very probative
2. Habit of person or routine practice of organization
a. Evidence of a persons habit or an organizations routine practice may be
admitted to prove that on a particular occasion the person or organization
acted in accordance with the habit or routine practice
i. Does not need corroboration or eyewitness
b. Habit: semi-automatic behavior
i. Line between habit and character often fuzzy
1. Frame character as specific habits
2. Often: hard to know if it qualifies as habit
a. One court said a dozen times was not habit
3. Exs. of habits (not character):
a. Always telling family when traveling; wearing seatbelt;
walking in crosswalk; carrying gun
4. Exs. of character (not habits):
a. Going to church, being a drunk, getting six speeding
tickets, beating spouse
ii. If character, govt cannot introduce specific act unless D opens door
iii. If habit, govt can introduce and prove specific facts during case-inchief
c. Routine practice of organization
i. Witness should probably have personal knowledge, but might not need
to
1. At minimum, witness should know routine and have seen
guidelines implemented
ii. Routine checklists sufficient
23
Evidence Outline
XI.

1. Missing steps go to weight, not admissibility
2. Generally easy to admit if there is written procedure or checklist
iii. Solo practitioners qualify as organization
WITNESS COMPETENCY
a. Three requirements, which are presumed to be satisfied:
i. Personal knowledge
ii. Capacity to recall
iii. Ability to understand duty to testify truthfully
B. RULE: everyone is presumed competent to testify except
i. Lack of personal knowledge
1. Must lay foundation that witness has personal knowledge of the matter, which
can consist of witnesss own testimony
2. R703: exception for experts
ii. Refusal to take oath/affirmation
1. Witness must take oath or affirmation to testify truthfully
2. Very flexible: as long as witness understands duty to testify truthfully, he is
competent
a. Even children or witness judged insane
iii. Presiding judge
1. Strict prohibition that presiding judge cannot testify at trial
2. Party need not object to preserve issue on appeal
3. Judge can testify in subsequent trials in which he does not preside, but cannot
cross him on his prior mental processes (e.g. why he chose a particular sentence)
4. R614: judge allowed to ask questions
a. Some questions could turn into testimony if narrative, leading, etc.
iv. Sitting juror
1. Strict prohibition that sitting juror cannot testify
2. Once jury deliberations begin, jurors cannot testify about statements or incidents
that occurred during deliberations
a. But can poll the jury after
b. If deliberations have not yet begun, judge can question jurors
3. Three exceptions: juror can testify about
a. Extraneous prejudicial information
i. Google mistrial: when jurors are exposed to outside information
ii. Cannot testify about internal influences (drunk, high, incompetent,
etc.)
1. Jurors specialized knowledge, even if not discussed in trial:
probably internal
iii. Bad jury does not violate 6th Amendment because parties had
opportunity to perform voir dire and observe jurors during trial
b. Outside influence
c. Mistake on verdict form
i. Very narrow: usually only when jurors checked the wrong box on
verdict form
ii. Math mistakes do not qualify, because it was internal deliberation
1. But aggrieved party could file post-trial motion
v. Constitutional issues
1. Defendant has right to confront witnesses against him
2. Children abuse cases
a. Children sometimes allowed to testify via closed circuit
b. Must be specific finding that welfare of child overrides Ds right to face
accuser
c. Child must still give live testimony (not pre-recorded)
3. Hypnosis
A. RULE: cannot have per se rule prohibiting post-hypnosis memories
24
Evidence Outline
XII.

b. Post-hypnosis memories admissible if there is special training, recording,
corroborating evidence, and cross-exam
c. Rule limited to criminal defendants, because they have constitutional right
to testify
i. States split on witnesses, but probably allowed if defense witness
ii. FRE same as California
vi. Dead man state statute

1. Not in FRE, but Erie mandates application of state law
2. Witness cannot testify about a transaction with dead person when offered against
dead persons estate
3. CEC: hearsay exception
a. Allows witness to testify against dead person, but also admits dead persons
words (via anyone who heard him)
PROPER EXAMINATION
a. Main event: direct; cross; objections
i. Direct
1. Substance: background, personal knowledge, substantive questions
2. Method: non-leading questions
i. Exception: can ask leading questions: (1) when witness is hostile; or (2)
when necessary to develop witnesss testimony
ii. Hostile witness: court decides
iii. To develop witnesss testimony: children, witness with mental
deficiencies, background information, refreshing witness recollection
1. Refreshing recollection
a. Can refresh on both direct and cross
b. Can use leading questions
c. Non-evidence memory aid
d. Not read into evidence or offered as exhibit
e. Other party inspects, witness silently reviews, gives back,
and then, if memory refreshed, testifies
f. Can use anything to refresh
2. Exam: distinguish between refreshing recollection (above) and
past recollection recorded (below)
a. Written statement about a matter witness once knew but
now cannot fully remember
b. Witness must have made/adopted report
c. While fresh in witnesss memory
d. Statement accurately reflects witnesss memory
e. If witness cannot remember written statement he once
made, can introduce witnesss own statement
f. Can only read into evidence unless adverse party offers as
an exhibit
iv. When witness says, I cant remember
1. Can use leading questions
2. First, refresh witnesss recollection
a. Ask, Would it refresh your recollection if you
reviewed _____?
b. Hand it to witness to read quietly to yourself and look up
when you are done
c. Is your memory refreshed?
i. If yes, re-ask question so witness can testify
ii. If no, proceed to past recollection recorded
3. Past recollection recorded
a. Use only when witness still cannot remember after leading
questions and refreshing recollection
25
Evidence Outline

b. Witness must have given prior statement
c. Lay foundation to read witnesss prior statement into
record
v. Forgetfulness vs. inconsistencies
1. Forgetfulness
a. First refresh witnesss recollection
b. If that doesnt work, use past recollection recorded
2. Inconsistencies
a. R613: can use prior inconsistent statement as
impeachment
b. R801(d)(1)(A): can use prior inconsistent statement as nonhearsay for TMA
i. DL must testify
ii. DL must be subject to cross
iii. Prior inconsistent statement
iv. Under oath
v. At trial, hearing, proceeding, or deposition
3. Distinguishing between forgetfulness and inconsistencies
a. FRE: would reasonable person conclude statements
materially differ?
b. California: judge decides whether forgetfulness is fake
ii. Cross
1. Substance: specific points and control of witness
a. Impeachment: attacking witnesss credibility
b. Inquiry about preparation
i. Adverse party entitled to inspect any writing used to refresh witnesss
memory, even when writings used prior to testimony (e.g. deposition)
ii. Binders of preparatory materials are work product, but using them to
prep witness waives that objection
1. Interests of justice require them to be produced, because they
are neither a fishing expedition nor an invasion of counsels zone
of privacy
iii. How to prep a witness:
1. First priority: tell the truth
2. Educate witness on the law
3. Listen to the question and answer only it with short, direct
answers
4. If you do not understand, say so
5. Do not answer until objections are ruled on
2. Method: leading, but not beyond scope
iii. Objections
1. Must be timely and on specific grounds
2. If objection overruled, give offer of proof to preserve record
b. Excluding witnesses
i. At a partys request or on its own, the court may order witnesses excluded so they
cannot hear other witnesss testimony
ii. But the court cannot exclude
1. Party
2. Party representative
3. Essential person (usually expert or investigation officer)
4. Person authorized by statute to be present (usually victim)
a. Narrow definition: murder victims children are not victims
c. Proper impeachment
i. Can impeach any party both direct and cross
ii. Can use leading questions
iii. 401 relevancy: to prove witness is untrustworthy, not for TMA
26
Evidence Outline

1. Always need limiting instruction
iv. Social policy always trumps impeachment
1. Even if evidence is admissible as impeachment, it can still be excluded on social
policy grounds
v. Categories of impeachment: BICCS
1. Bias
a. 401: Generally, parties biased in [applicable way] have motive to lie.
Therefore, evidence is relevant because it makes it more probable party is
lying.
i. Exam: very important because extrinsic evidence is not allowed to
prove specific bad acts, but it is allowed to show bias
b. May be induced by witnesss like, dislike, fear of a part, or self-interest
c. Method
i. Cross-exam
ii. Extrinsic evidence
d. 403: witness credibility almost always more probative than prejudicial
e. Diffusing bomb: if you know your witness will be impeached on bias, ask
about it on direct to be first to spin facts
i. Ex.: experts will get crossed heavily on payment
2. Prior Inconsistent Statement
a. 401: once a liar, always a liar
b. 404: character evidence generally not admissible, but exception for prior
inconsistent statements
c. Method
i. Cross
1. Can cross ones own witness in good faith
2. Cannot call witness knowing he will contradict statement to get
around hearsay problem
1. Can bring in extrinsic evidence as long as witness has chance to
explain
d. Sandbagging
i. Ex.: P v. D for hitting him with shovel
1. P calls W1: D started fight; D crosses, but no mention of inconsistent statement
2. P calls W2: W1 told me P started fight
ii. Issue: extrinsic evidence allowed only if witness has chance to explain
himself
1. Therefore, to impeach W1, cross him when you have the chance
or ensure W1 will be available to return (subpoena witness and
notify court)
e. Constitutionally suspect evidence can be used for impeachment
i. Ex.: failure to Mirandize; illegal search and seizure
II. RULE: can only use after defendant takes the stand
1. When defendant takes the stand, anything that happened in
violation of his constitutional rights is admissible to impeach his
credibility
3. Character
a. 401: once a liar, always a liar
i. Exception to general rule that once a bad guy, always a bad guy is
inadmissible
b. 404: character evidence generally not admissible, but exception for
propensity to lie
c. Procedure
i. Defendant must take stand, which opens the door to his credibility
1. If D does not take stand, cannot do anything to impeach his
credibility
27
Evidence Outline

a. No reputation witness, specific acts, etc.
2. D must take stand to preserve appeal on claim of improper
impeachment with prior conviction
3. If D loses motion in limine and impeachment might be allowed,
he must take stand to appeal the loss of motion
a. California: D does not have to take stand to appeal
ii. Must have good faith basis for asking question (e.g. Have you ever
lied?)
iii. R608 does not require notice, but many courts do
iv. California:
1. Civil: impeachment by prior misconduct not allowed
2. Criminal: both cross and extrinsic evidence allowed
d. Non-conviction misconduct: R608
i. Method
1. Inquiry on cross only
ii. Evidence must be probative of truthfulness
1. Exs.: false info on employment app; false tax return or bank loan;
fake ID; stealing from employer; maybe bribes
2. Exs. of things not probative of truthfulness: murder and most
violent crimes; alcohol or drug use; adultery
3. Exam: three-way split
a. Broad: everything gets in
b. Middle: dishonest acts get in
i. Ex.: threatening witness so he will lie on the stand
c. Narrow: only evidence involving falsehood
i. Exs.: perjury; embezzlement
iii. 403: non-conviction misconduct is admissible for impeachment unless
its probative value is substantially outweighed by prejudice
e. Conviction misconduct: R609
i. Conviction: judgments, guilty pleas, nolo contendere pleas (even if
appeal pending)
1. Not pardons, annulments, certificates of rehab, or reversal on
appeal
ii. Method:
1. Inquiry on cross
2. Extrinsic evidence
a. Can prove up the conviction, but only the crime, date,
place, and sentence
b. Cannot get into details of conviction unless witness opens
door
3. Can come in for TMA if conviction falls under 803(8) public record
or 803(22) judgment or plea
iii. Felonies not involving dishonesty
1. Any felony conviction is admissible, subject to 403, regardless of
dishonesty
2. 403 analysis
a. Different standard depending on whether witness is
defendant
i. Non-defendant witness: normal 403
ii. Civil defendant: normal 403
iii. Criminal defendant: reverse 403
b. Consider type of conviction and its probative value for
truthfulness
i. High: forgery; embezzlement; perjury; fraud
ii. Moderate: robbery; burglary
iii. Low: murder; assault; rape; drugs
28
Evidence Outline

3. Criminal defendant
a. Reverse 403: evidence presumed to be not admissible
unless probative value substantially outweighs prejudice
b. Gordon Factors:
i. Deception crime
ii. Remoteness
iii. Similarity to charged offense
iv. One time vs. pattern
v. Importance of credibility issues
vi. Importance of getting Ds testimony
4. Non-defendant witness
a. Normal 403: evidence admissible unless prejudice
substantially outweighs probative value
iv. Any crime involving dishonesty
1. Misdemeanors only admissible if dishonesty or false statement
was an element of the crime
2. 403: there is no 403 analysis because the evidence automatically
comes in
3. Dishonest conviction: fraud; perjury; obstructing justice
a. Not crimes of violence, even if witness acted deceitfully in
course of committing the crime
b. Exam: if underlying facts involve dishonesty, argue both
ways
v. Convictions older than 10 years
1. Strict reverse 403: presumed not admissible unless probative
value substantially outweighs prejudice
a. Need specific facts and circumstances + notice
2. Must be more than 10 years old, so if exactly 10 years, this does
not apply
vi. Juvenile adjudications
1. Admissible only if:
a. Criminal case
b. Witness is not defendant
c. Adults conviction for offense would be admissible to attack
adults credibility
d. Admitting evidence is necessary to fairly determine guilt or
innocence
4. Contradiction
a. 401:
b. 404: character evidence generally not admissible, but exception for
contradiction
c. Method
i. Can use cross and extrinsic evidence, but almost always just use
extrinsic evidence
d. Three elements
i. Evidence is relevant to specific issue of case
1. Cannot impeach on collateral matters
2. Specific issue interpreted narrowly
3. Exam: can always try arguing credibility is specific issue when
witness testifies
a. Acknowledge courts are split, but good argument
ii. Evidence attacks credibility of specific statement
1. By contrast, if attack is on general character for untruthfulness,
use 608(b) non-conviction misconduct, which does not allow
extrinsic evidence
iii. Evidence contradicts testimony
29
Evidence Outline

1. Contradicts interpreted broadly
2. R611(c): cross limited to scope of direct
3. Element met when defendants statement on proper cross-exam
was reasonably suggested by his direct exam
a. Therefore, cross is not beyond scope of direct when
defendants testimony on direct reasonably suggested
certain things
4. If defendant blurts out answer to question while/before his
lawyer objects, probably cannot ask about it on cross
e. Contradiction vs. Prior Inconsistent Statement
i. PIS requires prior statement by witness himself, whereas contradiction
can use any extrinsic evidence to contradict witnesss testimony
f. Contradiction vs. Character for Untruthfulness
i. Contradiction requires specific issue and specific statement, whereas
Character for Untruthfulness can go to general untrustworthiness
1. But cannot use extrinsic evidence when arguing general
untrustworthiness
5. Sensory/Mental Deficiencies
a. 401: Generally, people with [applicable deficiency] have poor perception.
Therefore, the evidence here makes it more probable the witness has poorly
perceived the event.
b. Method
i. Cross-exam
d. Proper Rehabilitation
i. Can restore credibility only after being impeached
1. Can only restore credibility at point of attack
a. Ex.: if impeached via bias, then rehab limited to scope of bias attack
2. Cannot bolster credibility until witness is impeached
ii. Impermissible rehab methods
1. Expert: not allowed to testify that witness is credible
a. But expert can testify about syndromes, which help the jury evaluate
credibility
2. Religion: cannot impeach or rehabilitate based on religion
e. Proper Opinion
i. Lay person: ordinary, non-expert witness
1. R701: lay witnesses can give opinions if three elements met
a. Rationally based
i. Must lay proper foundation of personal knowledge
ii. Witness can testify about what he sees, but not about what another
person thinks
1. Ex.: He acted insanemust lay lots of foundation and not be a
diagnosis
iii. No conclusions or hypotheticals
b. Helpful
i. No guessing
c. Not expert testimony within R702
2. Avoid speculation objection by: (1) laying foundation; and (2) backing up opinion
with specific observations
ii. Expert:
1. Expert opinions allowed when three elements met
a. Helpful
i. Opinion must be relevant
ii. Lenient standard
b. Expert is qualified
i. SKEET: skill, knowledge, education, experience, or training
30
Evidence Outline
f.

ii. Must have at least one of these five, not all
iii. Lenient standard: no training or certificate necessary
c. Reliable testimony
i. Court makes determination of whether testimony is reliable
1. Factors from Daubert (non-exhaustive)
a. Evidence has been tested
b. Peer review and publication
c. Known or potential rate of error
d. General acceptance in scientific community
i. California: this is the only element (does not follow
Daubert)
2. Daubert hearing: pre-trial hearing when court decides if
admissible
a. Often very expensive and leads to settlement
ii. Court makes determination for all expert testimony, but Daubert
factors most applicable for scientific and technical experts
iii. 403: court has very wide discretion as long as it has reasonable basis
2. Expert opinions must have proper basis:
a. Must meet one of the following
i. Facts based on personal knowledge
1. Experts do not have to have personal knowledge (cf. lay
witnesses)
ii. Facts learned at trial
1. Experts cannot be sequestered
iii. Facts reasonably relied on by experts in field, even if inadmissible
1. 401: evidence relevant only for the purpose of assisting the jury
in scrutinizing an experts opinion
2. Must give non-TMA limiting instruction
3. 403: strict reverse 403
a. Probative value must substantially outweigh prejudice
b. Heavy presumption of inadmissibility
c. Exam analysis: evidence is inadmissible hearsay, but R703
for evidence upon which expert relied as long as it passes
strict reverse 403
iv. Can testify to ultimate issue, but not to legal conclusions
1. Expert can give opinion or inference as to ultimate conclusion
2. Expert can conclude as to elements, but not the entire
charge/claim
a. Ex.: standard of care ok, but malpractice is not
b. Cannot give conclusion as to mens rea element
3. Requires some degree of probability
v. Can make conclusory opinions
1. Conclusory opinions are ok, but ask for bases for opinion and
build credibility/foundation
vi. Hypothetical questions
1. Expect speculation objection
3. Expert reports
a. Never admissible for TMA, but admissible for impeachment if inconsistent
with experts testimony
Privileges
i. 401: even if logically relevant, excluded on social policy grounds
ii. Attorney-client privilege
1. Three elements
a. Confidential communications
i. Must be actually spoken
ii. Does not include observations
31
Evidence Outline

b. Between attorney and client
i. Third-party presence destroys privilege
c. Made for purpose of legal advice
2. Holder: client
3. Length of coverage: forever (even after death)
4. Exceptions/waivers
a. Failure to timely object
b. Communication at issue
i. Exs.: malpractice; billing
c. Future crime
i. Ex.: Tomorrow I will kill my wife
d. Voluntary client disclosure
e. Inadvertent disclosure
i. Attorney mistake might result in waiver
1. Big problem in e-discovery
ii. Attorney should make non-waiver agreement with claw-back provision
1. If privileged information accidentally disclosed, other side must
give back
iii. Adverse Spousal Testimony
1. Trigger: when spouse gets subpoenaed by spouses adversary but doesnt want
to testify
2. Three elements
a. Knowledge of any information
i. Exs.: communications; observations
ii. Applies to pre- and post-marriage
b. Valid marriage
c. Only in criminal cases
i. California: also applies to civil cases
3. Holder: testifying spouse
a. Not applicable in civil cases
4. Length of coverage: so long as couple remains married
b. Joint crimes
c. Crimes against spouse
i. Spouse must testify in domestic violence cases
ii. Child exception
d. Waiver by holder
iv. Confidential Marriage Communication
1. Trigger: when spouse is asked about confidential communications with other
spouse
2. Three elements
a. Confidential communication
i. Does not cover observations
b. Made during marriage
i. Does not cover pre- and post-marriage communications
c. Between spouses
3. Holder: spouse who wants to stop other spouse from testifying in criminal or civil
case
4. Length of coverage: forever (even after death)
b. Joint crime
c. Crimes against spouse
d. Child exception
i. Common law: must be biological child of either spouse
32
Evidence Outline
XIII.

e. Waiver by holder
f. Presence of third parties, including small children
g. Judicial Notice
i. Exam: only perform 401 analysis (no other analyses)
ii. Adjudicative facts: facts particular to parties and case
1. Two types
a. Notorious facts: generally known or easy to determine
b. Manifest facts
2. Jury instruction
a. Civil: facts are conclusive
b. Criminal: jury may, but is not required, to accept as true
iii. Law
1. Mandatory: must take notice of federal and state public laws
2. Permissive: may take notice of other law
a. Exs.: ordinances; foreign law
EXAM OVERVIEW
a. Essay score: 25% for rule statement; 75% for analysis
i. MUST IRAC EVERYTHING
b. One criminal essay and one civil
c. Always 401 and 403, no matter what the prompt
i. Ex.: prompt is D objects on hearsay and character grounds
1. Correct analysis: 401 hearsay character 403
d. Hearsay: raise only reasonable exclusions/exceptions
i. Ex.: if no writing, dont raise any that require a writing
e. Confrontation Clause: only if prompt says party raised constitutional objection
f. If prompt is, What objections should be raised and how should the court rule on them?
i. Correct analysis: entire chart, but focus only on reasonable objections
g. If prompt is, What questions should you ask and why?
i. Correct analysis: focus on foundation issues (e.g. answer why with because to bring
in tangible evidence, the party needs to prove by a sufficiency standard the evidence is
what he says it is)
1. If witness is expert, go through Daubert analysis
h. Rule statements: see above is ok
i. If running out of time, outline answers
i. HEADINGS HEADINGS HEADINGS
i. For each element of each analysis
Differences Between FRE

and CA
FRE
33
California
Evidence Outline
Impeachment by Prior
Statement
Second-party Hillmon
Cannot offer for TMA; only to

show witness is liar
N/A
Subsequent Remedial Measures
Cannot admit in product liability

cases
Dead Man Statute
N/A
Expert Testimony
Court has wide latitude to admit

expert testimony based on
variety of factors
Only applies in criminal cases
Adverse Spousal Testimony

Privilege
Type of Character
Evidence
Criminal case: Ds character
Criminal case: Vs character
Civil case:
Criminal sexual assault
case: Ds character
Criminal sexual assault
case: Vs character
Civil sexual assault case:

Vs character
Admissible when:
- D offers it
- P rebuts after D opens
door
- P shows D had same trait
as V if D opens door
- D offers it
- P rebuts after D opens
door
- Homicide self-defense
exception
Character is element of
offense
Procedure met
- Defendants sexual history
always relevant
Procedure met and
- Issue whether D was
source of semen/injury or
- Issue of consent or
- Issue of false claim
Procedure met
34

Can offer for TMA
Evidence allowed to show
subsequent conduct of third
parties
Can admit in product liability
cases (exception to normal
exclusion rule)
Allows testimony against dead
man, but also allows hearsay
evidence of dead mans words
Expert testimony only allowed if
it is generally accepted in the
scientific community
Applies in all cases
Method
- Reputation or opinion
- Specific acts by inquiry
only
- Reputation or opinion
- Specific acts by inquiry
only
Reputation, opinion,
specific acts
Specific act only
- No reputation or opinion
Specific act only
- No reputation or opinion
- Opinion or specific act:

reverse 403
- Reputation: reverse 403
only if victim placed her
reputation in controversy
Evidence
Outline
Goodno
(Spring 2013)
Impeachment
Rule
Method
Possible Rehab
Methods
Bias
No FRE
Cross-exam
Explain
Social Policy
Inadmissible
to evidence
Prove:
But Admissible
to Prove
Relevant to show witness
has
Extrinsic
Prior consistent
statement
Things
Such
As:
motive to lie
Subsequent Remedial
1. Impeachment: D must
Ex.: financial stake,Liability
Measures
say remedial measure
relationship, immunity,
would have been unsafe at
hostility
time of
Inconsistent
R613
Cross-exam (even if violation
of event
Explain
2.
Ownership
Statement
constitutional right if D takes
- Cannot use prior consistent
3. Feasibility
(if
stand)
statement
(would be bolstering)
controverted):
D must say
Extrinsic evidence as long as
witness has opportunitychange
to explainwould have been
impossible
at time of
event
Character
R608, 609: disposition to be
Character witness: opinion or
Character
witness
(risky bc P
Split
on
impossible
liar
reputation
can cross character witness
Civil Offers to Compromise
1. Liability Specific
of disputed
1. Offered about
in subsequent
bad act:
specific bad acts)
claim
criminal
trial
and prior misconduct:
- Non-conviction: inquiry on cross Non-conviction
2. Impeachment
prior + probative
statement
made
only (noby
extrinsic)
of
explain to public
inconsistenttruthfulness
statement
officer
Conviction: courts split on
Bias,
delay,
- Conviction: inquiry on2.cross
or undue
whether
witness can explain
obstruction,conviction
etc.
extrinsic
Offers to Pay or Payment of Liability for injury
Related conduct
or
- Not allowed
to use specific
Medical Expenses
statementsacts
accompanying
to prove truthfulness
offer are admissible
Contradiction
No FRE, but (1) evidence is
Cross-exam
Explain (maybe)
Plea Bargain Discussions
Anything
a evidence
civil or
Two limited exceptions:
relevant to issue; (2)
evidence against
Extrinsic
(does not include
criminal
1. Fairness requires entire
attacks specific statement
of defendant
conviction)
discussion
credibility; (3) evidence
2. Basis of perjury charge
contradicts direct testimony
Liability Insurance
Liability
1. Ownership/control
Sensory/mental
No FRE
Cross-exam
Explain
deficiency
Extrinsic evidence
2. Bias
3. So intertwined with
admission
35
Evidence Outline
Evidence
Foundation: chain of
custody
Spillover confession
Civil
Less strict for missing links
Criminal
More strict for missing links
Limiting instruction usually

sufficient
Public record hearsay

exception: law enforcement
reports
Public record hearsay
exception: investigative
reports
Dying declaration hearsay
exception
Civil compromise offers and
negotiations
Admissible
Limiting instruction not

usually sufficient; must
bifurcate
Not admissible
Sex offense case: victims

sexual history
Admissible
Admissible only against

govt
Admissible
Admissible only in homicide

case
Admissible
Not admissible to show

validity of claim (but
admissible to show bias,
prejudice, etc.)
Admissible only by opinion
or specific act (reverse 403)
or reputation if victim put it
at issue (reverse 403)
Character evidence
Admissible only when

character is element of the
offense
Method: any
Non-propensity character:
MIMIC
Impeachment by character
in California
Notice not required
Impeachment by character:
non-dishonesty felony
conviction
Adverse spousal testimony
Admissible against D
subject to normal 403
Jury instruction for judicially

noticed facts
Impeachment by prior
misconduct not allowed
Not admissible (but in CA it

is admissible)
Jury required to accept as
true
36
Admissible only by specific

act when: 1) issue of
whether D is source of
semen/injury; 2) issue of
victims consent; 3) issue is
proving motive for false
claim
Admissible only when D
offers it or opens the door
and P rebuts; homicide selfdefense exception
Method: reputation;
opinion; specific act by
inquiry only
Notice required
Impeachment by prior
misconduct allowed via
cross or extrinsic evidence
Admissible against D
subject to reverse 403
Admissible
Jury not required to accept
as true

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Evidence Outline

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

vii. Adopted admission: R801(d)(2)(B)

Goodno (Spring 2013)

4. Pendency: during the course

Goodno (Spring 2013)

iii. Differences between R803(3) and non-TMA state of mind:

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

v. Statements of mixed interest

Goodno (Spring 2013)

Goodno (Spring 2013)

SOCIAL POLICY EXCLUSIONS

Goodno (Spring 2013)

Goodno (Spring 2013)

Liability Insurance: R411

3. Character at issue in civil case

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

vi. Dead man state statute

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Goodno (Spring 2013)

Differences Between FRE

Cannot offer for TMA; only to

Subsequent Remedial Measures

Cannot admit in product liability

Dead Man Statute

Court has wide latitude to admit

Adverse Spousal Testimony

Criminal case: Vs character

Civil sexual assault case:

Goodno (Spring 2013)

- Opinion or specific act:

Goodno (Spring 2013)

Limiting instruction usually

Public record hearsay

Limiting instruction not

Sex offense case: victims

Admissible only against

Admissible only in homicide

Not admissible to show

Admissible only when

Notice not required

Jury instruction for judicially

Not admissible (but in CA it