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Evidence – Bar Attack Outline – Andrew M.

Gelbman
GENERAL: Rulings (a) if ruling admits, must make timely & specific objection to preserve issue; i) If answer already heard, motion to strike req. ii) general objection (“I object”) insufficient to
preserve issue. b) if ruling excludes, offer of proof req. unless substance apparent from context i) If error not prejud. to outcome, harmless-error rule applies (jury would reach same verdict even if
error didn’t occur; no substantial rights affected); ii) If no objection made & evidence admitted, reversal only if plain error found (Plain error = affects substantial right of ¶ or serious mistake that
affects verdict i.e. prejud., reversible error) Preliminary Facts (a) Judge determines admissibility; jury assigns weight (POTE); b) Conditional relevancy i) Admissibility of item of evidence conditioned
upon relevancy other evidence (judge determines whether enough to find necessary fact); c) Limited admissibility i) If evidence admitted for 1 purpose but inadmissible for another, court must
restrict evidence to proper scope & instruct jury accordingly (counsel must request instruction); d) Testifying on preliminary matter doesn’t waive 5th Amendment priv. vs. self-incrimination on other
issues i) Cross-examination limited to scope of preliminary issue(s) Remainder of Related Writings or Recorded Statements (a) Rule of completeness: Where one ¶ introduces part of
writing/recording (doesn’t apply to conversations), adverse ¶ may immediately introduce other writing that fairly ought to be considered along w/ it. JUDICIAL NOTICE 1) Judicial notice substitute
for proof where court accepts facts as true w/o requiring formal evidence (a) Commonly known facts not subject to reasonable dispute; gen. known w/i jurisdiction of court. b) Facts capable of
accurate & ready determination by resort to sources of unquestionable accuracy i.e., accuracy of radar; blood tests; DNA; historical records; prevailing interest rates. Judicial notice mandatory if:
requested by ¶; & supplied w/ necessary info. Effect of jury instr. on judicial notice HIGHLY TESTED) Civil jury: must accept as true b) Crim jury: may accept as true PRESUMPTIONS
1) Burden of production = who must produce (a) Burden of going forward/producing evidence on π in civil; Pros. in crim; 2) Burden of persuasion = how much evidence must be produced ) 3 levels:
i) Preponderance of evidence (POTE) = Trad. civil standard; used in some aspects of crim. cases (motion to suppress; voluntariness of confess) ii) Clear & convincing (CnC) = crim. related civ.
actions (fraud, validity of deed/will); insanity in fed. court, burden on Δ; iii) Beyond reasonable doubt (BARD) = crim standard in guilt phase. Burden of proof ) 2 main ways to shift burden. of prod.:
i) Affirmative defenses (i.e., statute of limitations; Rule 12(b)(6); self-defense; laches) ii) Presumptions (generally, not in crim cases) Presumption = conclusion made regarding existence of fact
drawn from other evidence admitted & proven true (2) Most presumptions rebuttable, but some presumptions made irrebuttable by statute or common law RELEVANCY & ITS LIMITS “Relevant
evidence” tends to make existence of any fact more/less probable than w/o evidence ) Logical relevance = some probative value, logical tendency to dis/prove fact of consequence b) Legal
relevance = evidence “helpful” in deciding case 2) Excluding Relevant Evidence (Rule 403 balancing test) ) If probative value of evidence substantially outweighed by: (1) danger of unfair
prej.; (2) confusion of issues; (3) misleading jury; (4) undue delay; (5) waste of time; or (6) needless cum. presentation 3) Character Evidence = evid. of person’s general
propensity/disposition for honesty, peacefulness, & violence b) Civil i): inadmissible to prove conduct in conformity therewith except where character essential element of COA (i.e., π in
defamation case) ii) 3 forms: (1) rep (W aware of rep of ¶ in relevant community) (2) opinion (W sufficient knowledge to form opinion about particular trait) (3) specific acts (character essential
element of trait, specific instances person’s conduct may be offered too) c) Crim i) Δ’s character (1) Pros. can’t initially introduce evidence of Δ bad character (2) Testimony about pertinent
good-character trait must first be raised by Δ (depends on what Δ on trial for—i.e., peacefulness in violent crime of violence, honesty in fraud) (b) Once Δ raises, Pros. may rebut w/ rep or
opinion evidence ii) V pertinent trait/character (1)Δ may offer evidence of V violent character as circumstantial evidence V first aggressor (a) Pros. may rebut w/ good character of V,
or bad character of Δ thru rep or opinion (i) Special Rule in Homicide: if Δ offers evidence V initial aggressor, Pros. may offer evidence of V’s good character for peacefulness iii) Evidence used
for other than showing conduct in conformity w/ one’s character (1) Circumstantial evidence of other wrongs may be offered to prove: (a) Motive; Intent; absence of Mistake; Identity; Common
scheme or plan (MIMIC) (b) Other acceptable evidence: knowledge, opportunity, or preparation Habit (a) habit, or routine practice of person/org. relevant to prove conduct in conformity w/ habit (i)
Look for always, automatically, regularly; Not: usually, often, frequently Legal Relevancy relevant evidence barred due to public policy Subsequent remedial measures i) Inadmissible to prove:
negligence, culpable conduct, design defect, or need for warning ii) Admissible to show: ownership or control, impeachment, feasibility of precautions if controverted Compromise & offers to
settle inadmissible if disputed about either validity or amount to prove liability but admissible to show bias or prejudice, or negate contention of undue delay. Payment of medical expenses
inadmissible to prove liability for injury Pleas Δ statements made during plea negotiations to prosecutor inadmissible vs. Δ in later proceeding (not statements to cops; only to prosecutor Liability
insurance evidence ¶ was/not insured inadmissible to prove negligence/fault but admissible to prove agency, ownership or control. Limits of coverage never admissible Sexual Conduct Rape-
shield law: any proceeding involving alleged sexual misconduct, evidence of V’s sexual behavior/predisposition, & other sexual history excluded except in crim cases to show (a) Consent (past
acts w/ this Δ showing consent) (b) Source of semen, injury, or other phys. evidence (c) Evidence constitutionally req. In civil cases admissible if probative value substantially outweighs danger of
harm to any V & of unfair prejudice to any ¶. Evidence of V’s rep admissible when V brings it in b) Evidence of similar sex assault & child molest crimes specific acts by Δ admissible & may be
considered, if bears on any relevant matter In civil cases, when damages predicated on sex assault/child molest, same rule. PRIVILEGES Attorney-Client client holds priv. & may refuse to disclose
(& prevent others from disclosing) confidential communications made for seeking prof. legal services i) lawyer may assert on behalf of client (i.e., client’s death) b) “Confidential Communications”
protected, not observations “Communications” include oral & written statements & conduct intended as confidential (2) Eavesdroppers—unknown eavesdroppers don’t destroy priv.;
known/anticipated eavesdroppers do ii) Pre-existing docs (i.e., bank records, deeds) not privileged iii) Work product prepared by attorney in anticipation of litigation (i.e., docs, files, notes) privileged
but may be admissible if ¶ seeking admission can show substantial hardship & no other way to obtain evidence. Third Parties— priv. extends to: i) Essential 3P (i.e., one furthering some purpose
of relationship); Attorney reps (i.e., ¶ hired by attorney to assist in rendition of legal services) “Client” = Any person/entity seeking prof. legal services or consulting w/ possibility of obtaining legal
services e) “Lawyer” = one authorized, or reasonably believed by client to be authorized (i.e., disbarred attorney), to practice law. No attorney-client priv. for future crime/fraud, suits btwn attorney
& client (i.e., dispute over fee, or malpract.) “Joint client” exception (two clients hire same attorney & sue each other) Doctor-Patient FRE never recognized, all states do. Psychotherapist-Patient
protects confidential communications btwn licensed psychotherapist, LSW, psychologists, mental health specs, psychiatrists, marriage counselors & patient seeking diagnosis/treatment for med.
condition (mental or emotional) Except statements regarding: commitment proceedings; court-ordered examinations; or when condition part of claim, such as personal injury or malpract. vs. Dr.;
Future crime/fraud (same as attorney-client). Marital Privileges Marital Communications asserted by either spouse (both holders), & applies in both civil & crim cases. Protects confidential
communications (i.e. intended confidential by ¶s) btwn spouses during marriage only Majority position: Observations not protected (i.e., sees spouse using drugs) Communications in in
presence older children, friends, & relatives not privileged. Exceptions: (1) Crimes or intentional torts committed by spouse vs. other spouse or child (2) Divorce proceedings/adverse civil proceedings
(3) Joint participation in crime (i.e., spouse commits crime w/ help of other spouse; other spouse may be compelled to testify about commo/obs. btwn them) Spousal Immunity (testimonial) protects
all communications, regardless of confidentiality, both during & before marriage; includes testimony, observations, & impressions (1) priv. held by: ¶ spouse (CL)/ W spouse (FRE) meaning W
spouse can’t be compelled to testify, can if so desires. Privilege applies in crim cases only, both before & during marriage (entire priv. lost upon divorce). Exceptions: Suits btwn spouses;
Suits involving child of either spouse (i.e., spouse tried for child abuse; other spouse may be compelled to testify) Religious Privilege protects confidential communications made btwn penitent &
clergyman in capacity as spiritual advisor. Either may assert Fifth Amendment (vs. Self-Incrimination) applies to testimonial evidence (i.e., taken on stand) not to: real & demonstrative evidence
(i.e., blood; hair; handwriting samples; fingerprints; tattoos) Prosecutor may not comment on Δ refusal to testify. Does not apply when W waives. When waived, cross-exam limited to subject matter
about which priv. waived. Immunity Transactional—W cannot be prosecuted for underlying offense Use(less)— statements cannot be used vs. W, but no agreement to never prosecute
WITNESSES Competency Gen. everyone competent to testify Competency of Judge presiding judge may not testify at trial (objection automatic & need not be made) Competency of Juror may
not testify before jury of which is member. Juror may testify to: (a) Extraneous prejud. info improperly brought to juror’s attention; (b) Whether outside influence improperly brought to bear on any
juror; or (c) Clerical/secretarial error (i.e., mistakes on verdict form) Impeachment Collateral-Matter Rule (CMR) evidence solely affecting credibility of W. While questioned about collateral matter,
¶ cross-examining W bound by W’s answer to matters solely affecting credibility. Extrinsic evid. on CM inadmissible to impeach. Impeach. Methods Bias/prejudice always material; CMR doesn’t
apply, can impeach; Sensory defects Inability to observe, communicate, or remember always relevant, never collateral; but not allowed to whether W addicted to drugs or alcohol (unless immediately
connected to credibility); Prior inconsistent statements (FRE 613, see infra) Character Rep or opinion; bad acts; felony convictions; convictions involving dishonesty Character Evidence & W
Conduct: W’s untruthful character always material & may be attacked by rep/opinion evidence. W’s truthful character shown by rep/opinion evidence only if W’s credibility for truthfulness attacked
first. Cross-exam about specific acts reflecting on truthfulness (perjury or fraud) acceptable. Bad-Act Impeach: Spec. instances of conduct of any testifying W probative of W’s truthfulness admissible
to attack/support W credibility. Elements: (1) question; (2) on cross; (3) about proper unconvicted acts re: (un)truthfulness/(dis)honesty. (2) Limits (a) Q probative of truthfulness (b) Q must be asked
in good faith (c) bad acts not too remote in time (consider Rule 403). Only Q of fact allowed; not rumors/arrests. Evidence of Conviction of Crime Felonies if used to impeach W other than Δ,
conviction subject to R403 balancing test. If used to impeach Δ, conviction admitted if Pros. shows probative value outweighs prejud. effect. Crimes involving dishonesty/false statement (felonies
& misdemeanors): Evidence of conviction admissible as matter of right (i.e., no balancing), if conviction ≤ 10y old (e.g. perjury, forgery, tax evasion, fraud, embezzlement & all crimes involving
deceit, untruthfulness, or falsification - (inadmissible): assault, battery, DUI, CPCS, theft). Convictions ≥10 y old inadmissible to impeach unless probative value substantially outweighs prejud.
effect. Arrest records, indictments, & other charges inadmissible. Guilty pleas & suppressed evidence admissible to impeach Examination of Witnesses Leading Questions Gen. not permitted on
direct but permitted on cross. Leading questions may be used on direct if: Hostile; adverse; or child W; prelim. background info; or to refresh recollection Writing Used to Refresh Memory On direct,
may refresh W memory but proponent may not introduce writing into evidence (don’t confuse w/ past recollection recorded); Authentication of writing not req.; Any writing, photograph, further
questioning, or other form of evidence will suffice. Rights of adverse ¶: May inspect & use on cross; Show writing to jury for comparison w/ W testimony Introduce relevant parts into evidence Prior
Statement of W: Under FRE 613, PINS not “sworn” & admissible only to impeach -Differs from FRE 801, where PINS admissible for truth. Statement may be oral or written. Foundation Req.—
Extrinsic evidence of PINS by W may be admissible if: (1) W afforded opp. to explain/deny evidence during trial; & Opposing counsel afforded an opp. to interrogate sponsoring W, unless interests
of justice req. otherwise. If W denies making PINS, extrinsic evidence gen. admissible to impeach - If W admits making PINS, W has right to explain answer. Calling & Interrogation of W by Court
court on own motion may call witnesses, & all ¶s may examine any W called by court - court may interrogate/question any W called by ¶. OPINIONS & EXPERT TESTIMONY Lay Ws: Any opinion
testimony that lay W must be: Rationally based on perception of W; & helpful to clear understanding of W’s testimony or determination of fact in issue Proper scope of non-expert opinion includes
(VEMPSS): Value of one’s own land; Emotional state of other; Measurements (i.e., speed of vehicle, height, weight, distance); Physical states (i.e., intoxicated, tall/short; fat/skinny; healthy/sick;
happy/sad); Sensoy descriptions (i.e., smell, sound, tase, color); Sanity of testator. Improper scope: Opinions stated in conclusory terms Expert Testimony: expert must have special skills,
knowledge, education, experience, or training. Testimony relevant (i.e., subject matter appropriate, & opinion helpful/relevant to assist jury) MBE follows Daubert factors (mnemonic: TAPES): has
theory been Tested? (If so, how extensively?); general Acceptance in relevant community; Peer review of scientific theory; degree/rate of Error; Standards (Frye test, - general acceptance in
scientific community- minority position on MBE; trap answer) Rule 702 formula: Qualifications + (Relevance + Reliability) = Admissibility Basis of Opinion Testimony by Experts i) Personal
knowledge at/before trial; ii) Facts presented to expert at trial (i.e., hypothetical questions); iii) Facts presented to expert out of court (i.e., reports from others, incl. inadmissible evidence). Out-of-
court facts must be of type “reasonably relied upon” by other experts in field. Opinion on Ultimate Issue Gen. expert may give opinion/inference embracing an ultimate issue (e.g. permissible):
cause of accident, illness, death; whether product unreasonably dangerous/defective; whether doc forged/genuine; whether Δ insane/mentally ill (e.g. impermissible): legal conclusion π
contributorily negligent; legal conclusion re: content of law (i.e., Δ intended to kill V) Limitation in crim cases: an expert may not give opinion whether Δ did/did not possess mental state or
condition constituting element (or defense) of crime charged, such issues determined jury HEARSAY out-of-court statement by declarant offered to prove truth of matter asserted.
Statement either: oral/written assertion intended as communication; or Assertive conduct = intended to communicate as substitute for words (e.g. pointing to give directions; nodding yes/no; police
artist sketch) Non-assertive conduct = not intended as statement or intended to communicate & thus, not hearsay (e.g video showing Δ’s demeanor). Only human make statements, not animals
or machines (e.g.: alarm clock; radar gun; time/temp display; talking parrot). Evidence Not Offered for Truth (Not Hearsay) Effect on Listener (EOL) (e.g. notice, motive, etc.): not concerned w/
declarant, Verbal Acts words themselves give rise to COA (i.e., words have independent legal significance or are legally operative facts) - truth of statement irrelevant; fact they were uttered what
proved (e.g Transactional: words of K, deed, will, judgment or Tortious: actual defamatory words in libel/slander action) Hearsay Exemptions Statement by ¶ Opponent (SPO); Direct statement by
¶ offered vs. him by opponent whether statement of fact or opinion Regardless of whether against. interest when made. Personal knowledge not req; just req. to be said BY & used AGAINST
declarant (e.g. Civil: W testifies, “After accident, Δ said, ‘I speeding,’” used @ π’s personal injury trial or Crim: W testifies that while awaiting arraignment, W asked what Δ in for, Δ replied, “I shot
neighbor for asking too many questions”) Admission by silence reasonable person deny statement, not applicable where Δ given Miranda warnings; no comment on post-Miranda silence Adoptive
Admission evidence sufficient to show ¶ heard & understood statement & adopted it as ¶’s own Authorized Admission ¶’s agent or representative (agency express or implied) admits Vicarious
Admission statement of ¶’s employee offered vs. ¶ - statement made during existence of employment relationship; & concern matter w/i employment scope Co-conspirator Statements regardless
of whether conspiracy charged, useable vs. all co-conspirators, even if unaware of conspiracy. Existence of conspiracy prelim. fact proven by POTE; declarant member of conspiracy; statement
made “in furtherance of” conspiracy; & “during existence of” conspiracy Prior Statements (civil & crim cases) i) 3 types o & each req.: (1) declarant to testify at trial/hearing; (2) declarant subject to
cross concerning statement; & (3) statement either: (a) prior inconsistent statement (offered for its truth) or (b) prior consistent statement or (c) prior statement of identification Prior Inconsistent
Statement (PIS) permitted to be offered for its truth if “sworn” (i.e. on pain of perjury) at trial, deposition, or “other proceeding” Prior Consistent Statement (PCS) used to rehabilitate: (a) W after
inference of recent fabrication raised; or Limited use, statement must predate motive to lie or (b) declarant’s credibility attacked on another ground Prior Statement of Identification of person
made after perceiving him can be admissible when purpose to buttress reliability of in-court IDs as compared w/ those made earlier under less suggestive conditions Hearsay Exceptions Availability
of Declarant Immaterial Present Sense Impression statement describing/explaining event/condition made while/immediately after perceiving it. Requires: (i) Spontaneity (timing) (ii) Declarant
need not be known/available (iii) unexcited utterance (mundane matter) (iv) oral or written (911 tape) Excited Utterance statement re: startling event made while declarant under stress of excitement
caused by event/condition. Requires: (i) startling event; (ii) Personal knowledge; (iii) need not be immediate (unlike present sense impression) Then-Existing Mental, Emotional, or Physical
Condition admissible if relevant to show declarant’s state of mind (a) need not be made to medical practitioner (b) Look for prospective statements of intent (forward-looking); does NOT include:
(a) Past sensations (b) memory or belief, generally Statements for Purposes of Medical Diagnosis or Treatment statements made for purposes of medical diagnosis/treatment describing
medical history or past or present symptoms, pain or sensation, or their cause (a) Statement made to any medical personnel or family member (b) must be useful for diagnosis & treatment; NOT
included: statement admitting/assessing fault (i.e., “hit from behind” = admissible; “hit from behind by ¶ in blue car” = inadmissible) Past Recollection Recorded used where W lacks current
memory of event – examiner attempt (& fail) to refresh W by leading question or writing (Rule 612). Requires: Writing/record read into evidence (i) writing itself NOT received as exhibit unless
offered by adverse ¶. Memorandum made “while matter fresh” in W’s Mind. Authentication—W must testify that writing accurately reflects W’s prior knowledge (i.e.,W made or adopted statement)
Rights of adverse ¶: (a) Inspect writing; (b) Cross w/ it; (c) Show to jury for comparison; (d) Introduce relevant parts into evidence Records of Regularly Conducted Activity (Business Records
Exception) record/report of acts or events made at/near time by person w/ knowledge, if kept in course of regularly conducted business activity, & if regular practice of business to make such
record/report Public Records & Reports Similar foundation as business records, except proponent need not show record routinely made at/near time of event (i.e., FAA report issued years after
plane crash) Key: report must be prepared pursuant to duty imposed by law, which includes records/reports of public offices or agencies, setting forth: (a) activities of public
office/agency; (b) matters observed pursuant to duty imposed by law where duty to report (i) Does NOT include matters observed by police if offered by Pros. (Δ can offer report, &
have it admitted) Statements in Ancient Documents admissible if found where these items typically found (i.e., archives, library, possibly shoebox) (a) Includes statements in doc existing for
20+ years & its authenticity established (new rule prior to 1998) Learned Treatises foundation authoritativeness established by: judicial notice; expert testimony; or stipulation (a) Subject area:
MASH (Medicine, Art, Science, History) treatise read to jury, not physically given to jury. Availability of Declarant Material “Unavailable” triggering events—PRISM Privilege: asserting priv.; Refusal:
refusing to testify despite court order; Incapability: incapacity due to death or then-existing physical/mental illness; Subpoena: W defies good-faith attempt to procure attendance (i.e., subpoena)
Memory: W claims lack of memory. Burden on proponent of testimony to prove unavailability Former Testimony May be admitted for its truth if: (a) Declarant made statement under oath; (b) Given
by W in same or different but related proceeding, or in deposition; & (i) former action involves same subject matter, but not necessarily same COA or π (c) ¶ vs. whom evidence offered had
opportunity & similar motive to examine W W & develop testimony on direct, cross, or redirect Dying Declaration (1) Cause of death; unavailable declarant; belief of death; admissible in any civil
case or crim case if charge homicide (2) Judge determines whether declarant subjectively believed death imminent (a) declarant need not die, but declarant must be unavailable Statements Against
Interest Requires (a) Personal knowledge (b) Unavailable W (c) Non-¶ (generally) (d) Statement against interest when made (i.e., pecuniary (money), proprietary (property), or penal (jail))
Confrontation Clause In crim case where declarant unavailable, “testimonial” hearsay statement inadmissible unless Δ given opportunity to cross-examine declarant “Testimonial evidence” =
primary purpose of police interrogation to prove past events relevant to later crim Pros. (2) “Non-testimonial evidence” = primary purpose of statement to aid police during ongoing emergency
Hearsay Within Hearsay (Multiple Hearsay) Each statement must have separate basis for admissibility; otherwise, entire statement inadmissible AUTHENTICATION & IDENTIFICATION ) Real
Evidence may be authenticated by: (1) Testimony from personal knowledge showing familiarity w/ object; (2) Distinctive characteristics (i.e., gun w/ initials carved on butt); (3) Chain of custody for
fungible items: accounting for item’s whereabouts from time of issue until trial; (4) Test for photograph or x-ray: must be fair & accurate portrayal of what it depicts b) Documents may be authenticated
or ID’d by someone w/ first-hand knowledge of document, such as: (1) Custodian (W must be substantially familiar w/ items); (2) person who prepared doc/report; (3) eyewitness to signing of doc;
(4) Opinion by expert W (i.e., handwriting, fingerprints, shoe prints, tire tread marks, ballistics, etc.); (5) jury (comparing samples) Handwriting 3 ways to authenticate: (1) Layperson w/ familiarity (a)
Familiarity weight-of--evidence issue, & cannot be acquired for purposes of litigation; (2) Comparison by an expert; (3) Comparison by trier of fact Voice Identification All voices must be identified
when phone conversation/recording offered into evidence. Gen., direct evidence offered by testimony of W who recognizes voice Phone Calls i) showing that call made to number assigned: call
assumed to have gone to that person ii) showing that call made from assigned number: call assumed to have come from person assigned that number iii) In case of business: call made to business
& conversation related to business Self-Authentication ) Extrinsic evidence of authenticity not required for (Mnemonic: CONTAC): i) Certified documents ii) Official publications iii) Newspapers &
periodicals iv) Trade inscriptions v) Acknowledged documents vi) Commercial paper CONTENTS OF WRITINGS, RECORDINGS, & PHOTOGRAPHS 1) Best Evidence Rule ) To prove contents
of writing, recording, or photograph, original required except as provided in FRE Independent-source rule i) Where fact to be proved has source independent from writing (i.e., fact occurred
regardless of whether writing exists), then contents are NOT in issue & Best Evidence Rule does not apply Admissibility of Other Evidence of Contents original not required, & other evidence of
document admissible if LOCS applies: i) Lost (all originals have been lost or destroyed, unless proponent lost or destroyed them in bad faith) ii) Opponent ( opponent has possession of original &
has refused to deliver it) iii) Collateral (document not closely related to controlling issue) iv) Subpoena ( original cannot be obtained by any judicial procedure)