Evidence Rules Relevance 104(a) Preliminary Qs: qual of wit/priv/admiss evid determ by judge.

. Not bound FRE except priv.

104(b) Conditional Relevance: Admit pending suff to find fulfillment

Rule for every obj. to things OTHER THAN relevance. (Hearsay, etc.) Uses prepond, can rely on inadmiss evid

401 Relevance = Any tendency to make fact more/less likely: 2 pieces: 1.Probtvnss 2. Materiality 402 Relevance. Relevant = in, Irrelevant = out. 403 Conditional Relevance. Evid may be excluded probative value substantially outweighed: danger of unfair prejudice/confusion/misleading/waste time/unnecessary
Compulsory Process [Chambers]: If evid crit to CRIM D, other assur trust, admiss even if viol other FRE

Only time here: Irrelevant unless other fact true. (EX: Authenticity) Uses could find from admiss evid

Character Evidence Huddleston Standard: (simple 104(b)-like inquiry) Court decides whether 1. Relevant and 2. jury could find by preponderance of evid Jury must be able to reasonably conclude: 1. Occurred 2. (D) did it 404(a) Propensity: Evid of character only admiss to show: (Status/Addict: Can ask for lim
instruct, motive)

(1) Accused: CRIM: pert. trait by accused/pros to rebut (open the door) (2) Victim: o CRIM: Subj to 412, pert. trait by accused/pros to rebut o CRIM HOM: Evid. of peacefulness by (P) to rebut 1st aggressor evid. (even self-def) (3) Witness: Per 607, 608, 609 Good character = open season, CAN be rebutted by spec. examples

404(b) Evidence of Other Acts: Around-the-Box NOT admiss. show action in conformity therewith. YES admiss. show motive/oppor/intent/ plan/knowledge/narrative integrity[Old Chief]+++ CRIM: (P) disclose gen. nature of evid. before trial (if during: good cause) o Knowledge/Plan: Had special knowledge/tools necessary to commit crime o Motive: Why specific crime BUT prejudicial value high o Identity: Narrowing pool, need sufficient similarity (i.e. hard to copycat) Less probative if identity accused not an issue/can be shown without Modus Operandi: Green santa suit: prob relatively high [Trenkler], prej high. o Narrative Integrity: [Old Chief] Jury wouldnt believe/understand otherwise

o Doctrine Chances: somethg (even nonconvt) so math unlik by accident: let jury
decide if possible

o Absence of Acc: Something should have made (D) more careful, and acc less
likely. 405(a) Habit: Where trait admiss. under 404: Direct = testimony of reputation/opinion (APPLIES TO BOTH SIDES) Cross = inquiry allowable into relevant specific instances 405(b) Routes around Propensity: Where trait essential charge/claim/def, proof may be of prior acts 406 Habit (this is still subject to 401(a) determ of rel) (Note: unclear if even char evid) Routine prac/habit of person/org. admiss via: opinion/prior acts suff in # [Halloran] NOTE: If its a bad char trait, not supposed to use 406 to suggest! (Too close to 404) Sexual Crimes: Prior FALSE accuse not bar (bc no sex). If jury could reas find false, go to 608. According to court decisions, 403 is still available to (D)s here. (Esp rel if just any piece case) 412 -- Rape Shield: Can only use if CRIME ITSELF involves sexual misconduct. If not, 405 & 406 (b)(1): Victims Sexual Conduct inadmissible except: (A) Other source of semen / injury / inconsist. Phys evid

(b)(2): Civil Sexual Misconduct admiss if probative value substantially outweighs prejudicial value

(B) Sexual contact with (D) ONLY: offered by (P) / offered by (D) TO PROVE CONSENT (C) exclus would viol (D)s const rights (NO REPUT/OPIN): per Olden, 6thAmend allow show wit bias

413 SexCrimes: (D) accused of CRIM sex assault (any part of gen, even attempt) (few states ratif) (a) other acts of sex crimes (may if relevant) DOES 802(hearsay) or 403 apply? UNCLEAR! 414 SexCrimes: (D) accused of CRIM child molestation (any part of gen, even attempt) (a) other acts of child molestation (may if relevant) 415 SexCrimes: CIVIL sex crimes/child molest. (only a few states have ratif) (a) admissible per 413/414 (may if relevant) Impeaching Witnesses ((D) if take stand): NOT ABOUT TRUTH, ABOUT DOUBTING WITNESS good character = open season, CAN be rebutted by spec. examples BIAS/WITS lims: No FRE. Can always Q wit reliab: couldnt have seen, bad eyes, doesnt know D well
(unls char, =608)

BUT (at some point may reach point need to rehabilitate w 608 bc impression = Wit a liar) 404(a)(3) Evidence of character of witness allowed per 607, 608, 609 607: Any party can impeach witness (even party calling)

608 Evidence of Character/Conduct of Witness (attacking or supporting)(Note:still priv self incrim) (a) Must be OPIN/REP: 1. Must be char. un/truth 2. Truth ONLY after char attacked by opin/rep evid (b) Specific instcs: Other than 609 cant prove w EXTRINSIC, but if court thinks prob of truthful char, can allow on CROSS: 1. Concern char for un/truth 2. Concern char for un/truth of other wit testif about REM: No extrinsic = EX: Ask whether lied before, but if says no stuck w answer. 609 Past Convictions (a)(2) Crimin Falsi: YES no matter punish if elements req proof act dishon/false (NOT Subj to 403) Unclear if crimes involving deceit count, some judges say so but bad bc blurs 609(a)(1) (a)(1) Other crimes shall be admitted if: Not (D): YES IF punish by > 1 year or death (Subj to 403): Vs. (D): YES IF punish by > 1 year or death AND prob value outweigh prej effect (easier test) (b) Inadmiss if > 10 yrs latest cnvt/rel UNLESS ints of jusic., prob of spec facts/circ subs outw prej BUT (c) pardon/annulment inadmissible if based 1. Rehabil. & no subsq convict > 1 year 2. Actual innocence (d) Juv. adjud gen not admiss. CRIM: Of Wit if admiss under 609(a) & satisfied nec fair
determ (TOUGH TEST)

(e) pending appeal admissible (as is conviction) 613 Exceptions (a): Examining witness on prior statement (written or not) statement need not be disclosed (b) Prior inconsistent: Not admissible UNLESS witness available (opportunity to explain/deny & opposing party can interrogate) OR the interests of justice otherwise require 806 Attacking and Supporting Credibility of Declarants Hearsay Statement When a hearsay statement (or Party-Opp 801(d)(2)) admitted, cred may be attacked & supported: Admissiblility: Any evidence which would be admissible for those purposes if had testif as wit o (see above) Inconsistent: No requirement that dec have been afforded opp to deny/explain Hearsay: Generally excluded under 802, BUT: Truth of what said (bad), Fact that said (Fine!) (MOM)
Non-Hearsay Uses: Prove effect on listener (i.e. not truth)/LegallyOpWords VERBAL ACTS (Threat/DutyReport/K)

Not Hearsay if 1.AlreadyKnow[You stabbed me alone] 2. Not using words to PROVE what said! [Wright,
letters & competence]
(test: could it be a lie?)

801(a) Statement=1) oral/written assertion,OR 2) nonverbal cond if INTENDED assertion 801(c) Hearsay: Hearsay = out-of-court statement offer prove truth matter asserted 801(d)(1): NOT Hearsay -- Witness: if: Declarant testifies at trial, subject to cross, & (A): inconsistent w testimony (under oath subj. to penalty of perjury) (B): rebut express OR implied charge against witness of recent fab/improp inf

Consider: Child knows what room looks like. Not for content of room, so maybe not hearsay.

(C) ID of person soon after perceiving (even police sketch, even if cant remember now) 801(d)(2): NOT Hearsay -- Party-Opponent: if: statement offered AGAINST a party and is (A) partys own statement (B) statement party has manifested an opinion/belief is true
Adoptive Admission by Silence: heard & understood / could respond / circ called for / fail to / no spec circ (C) statement by person authorized by party to make statement on subject (can be employee)

(D) statement by agent/servant concerning matter within scope of employment DURING exist relationsh Words alone dont establish relationship (E) statement by co-conspirator during course of and in furtherance of conspiracy. 803: Exceptions (Anytime) (1) Present Sense Impress: while/immediately after (w/in mins) perceiving event/condition (2) Excited Utterance: Related to startling event while under stress of excitement (3) Then existing Mental/Emotional/Physical Condition of Declarant: (Often: How feel, but NOT
Why)

YES YOUR FORWARD LOOKING intent/plan/motive/design/pain/health NO memory/belief unless: Will. i.e. I plan to go with Hillmon [Hillmon] (Q: what if
need their car?)

(4) For the Purposes of Medical Diagnosis/Treatment: Describing pain/symptoms/cause if reas pert 2 part test: 1. Declarant purpose promote treatment? 2. Reas for doc to rely? NOTE: CAUSES are pertinent, FAULT is not BUT what if help protect future health? (5) Recorded Recollection (refresh not evid): Wit had knowl & now insuff = OK if when fresh & accurate 4 elements: 1. 1sthand know 2. at/near time 3. Cant remem 4. Vouch at trial even sign so true (6) Business Records: Admiss if 1. At time 2. Famil w operations 3. Regular course biz 4. Regular prac UNLESS indicate lack of trust: from someone else NEED 1. Duty to Report OR 2. hearsay exp o If someone told employee: ctonsider each leg & reliability [Vigneau] (7) Absence in Business Records: unless sources/circ indicate lack of trust (i.e. after accident: Palmer) (8) Public Records: RATIONALE: Public officials likely to perform honestly, unlikely to remember. (A) activities (B) duty to report except CRIM police reports (MAYBE nonadversarial/use by (D). NO biz rcds) (C) CIVIL: facts from investigations against Govt in CRIM cases (UNLESS lack of trust) (10) Absence of Public Record: Can prove nonoccurrence of condition (16) Ancient Documents: Anything older than 20 years (if authentic)
Also: (9)Vital stats to pub off/(12) marrge & sim cert/(13)FamRcds/(14)PropRcds/(15)StatemntsinPropRcds/ (18)RepFamHst /(22)

804: Exceptions (Unavailable) (unless bad faith: 804(6): intended to & did make wit unavail) (a) unavailble = (1) priv (2) refusal (3) lack of memory (4) unable (5) absent after reas means (b)

(1) Former Testimony: If party against (or CIV: pred in int) had opportunity & sim motive to question (2) Dying Declaration: CRIM HOMIC or CIV: believe death imminent (no hope) re: cause/circ of death (3) Against Interest: Contrary to penal interest. (Unless exculpate other, then only clearly indic trust) (4) FamHistory: (A) declarants own birth/adopt/divor (even no means pers know) (B) same of close rel 807: Exceptions (Residual): Sort of creating new exception. VERY hard. Maybe intrinstically rel sit. Statement w equiv circ guar trust if (A) offer evid mat fact (B) more prob than any other evid proc thru reas efforts (C) gen purp of rules & interest of justice best served by including. (Must give reas notice) Confrontation: ONLY applies: 1. CRIM (D) 2. GovtOffers 3. out-of-court testimonial 4. TOMA 5. dec
unavail (JUDGE DECIDES) (GOOD FAITH)

6th Amendment: Right to be confronted w/ witnesses against Crawford: If otherwise admiss state is TESTIMONIAL, cannot admit UNLESS 1. Unavail 2. Prior
opp cross

Child wit in sex crime & face-to-face: To avoid, need individualized finding of trauma.

Testimonial: Best test: Cry for help vs. assist law enforce Other: know/should know used
at trial?

o Testimony hearing/grand jury/trial (YES), o Police interrog (MAYBE: Scalia Yes, prim purp rel to prosecut Ask: assess danger
vs. build case) Cant have cop say I talked to Wit, then Arrested (D) bc testimony = CLEAR CONCL that Wit named (D) [Williams] o Business records (NO but Gott says Maybe sometimes) o Lab reports: Have to call a knowledgeable person [Melendez-Diaz] in future, maybe not. Non-Testimonial: Not subject more discretionary inquiry: circ guar of reliability

PRIMARY PURPOSE = mess. Ongoing Emerg = ok to ID (D) [Michigan v Bryant]

Opinion Testimony: Cant use 404 evid, but can if elements nec: i.e. examples of psychotic behav 701: Lay: opin/inference lim to: (a) rationally based on percep (b) help clear understand (c) not based on
sci/tech/speclzd

702: Expert: Judge must decide 1. would assist trier 2. Wit qualifies as expert 3. Opin reliable [Daubert]

LANGUAGE OF RULE: Qual by know/skill/exper if based on suff data (2) reliab prin/meth (3) wit applied relb to case

Lots of judicial discretion: can be tested? / peer review? / generally accepted? / indepen of litig? [Daubert]

703: Expert Basis: Data per 403, need not be admiss for opin to be admiss.IF reas. relied upon by experts in field 705: Expert Basis: Opposing counsel can ask about underlying inadmissible facts. Improper Topics for Experts: Comm know (jury know own exper?) / Opin Ult issues trier/cred/eyewitID

Privileges: Encouraging good behavior 407: Remedial Steps Taken after accident, would have made less likely o NO show Negligence/Culpability/Defect/Need for a warning o YES show control/FEASIBILITY(if controverted)!! 408: Settlement Negotiations o Negotiations for disputed claim NOTE: MUST be a claim in dispute! If right after accident = no! 409: Offers to Pay Medical Expenses o Inadmissible to prove LIABILITY for the injury 410: Pleas: of (D) who made OR participant in hearings: o NO plea withdrawn / nolo / statement in discussions w prosecut (can be cops) Q: is it a plea hearing? Real or apparent auth to deal? o YES i) Another statement admit, ought in fair ii) CRIM: perjury/false by (D) if under oath/on record/in pres counsel 411: Liability Insurance o NO on issue of negligent/wrongful conduct. o YES on BIAS of witness, ownership or control 501 General Rule: Privileges from Constitution/statutes/principles of common law Prop. 503 Lawyer-Client (Atty = anyone reas believed by cli 503(a)(2)) Waive = intent relinq
(unclear how) (a) If intended confidential comm. (Holistic test: where? people around?) (b) Client has privilege to refuse and prevent others: client>lawyer, lawyer>othercounsel(for or against) (c) doesnt lapse at death (d) EXCEPTIONS: (1) sought/obtain aid reas know further crime / (3) breach duty by lawyer / comm. w govt lawyers

Prop. 504 Therapist-Client (Thrps = anyone reas believed by pat while engaged 504(a)(2)(A) (b) General Rule: PATIENT has right to prevent confidential comm. for purpose of diag/treat (addict) (c) Who Can: Patient/guardian/personal rep of deceased. THERAPIST only on behalf of client.
(d) Exceptions: (1) serous danger to self/others re: hospitalization if says needed (2) exam order (3) element of claim/def DOCTOR-PATIENT priv: Most states have similar to this & Lawyer-Client

Prop. 505 Husband-Wife: Generally no privlege w/o lawful marriage

SpousalTestml(505): What (anything) Who (TsftSp) Against? (CRIM(D) LastAfter? (No) Before? (Yes) o Most states & Fed courts [Trammel]: TestfyingSpouse owns. o Some states & drafters of prop rule: (D) owns.

Marital Confidences: What (ConfCom) Who (both ) Against? (Anyone) LastAfter? (Yes) Before? (No) o Exceptions: Most jurisdic one spouse charged against another/child/joint crime o Martial Confidences: Waived ONLY if tell someone else had convo (not just same info) Cant be anyone else present unless young child (doesnt understand) NOTE: NO Child-Parent: No (3rd Cir.: no one has/no impact on rltnship) vs. Yes (same as other

pvlgs)

Prop. 506 Clergymen (anyone reas believed soby person) (b) General Rule: PERSON can refuse confidential comm. to clergy in prof char as spiritual advisor Prop. 511 Waiver by Voluntary Disclosure: You waive if voluntarily disclose/consent to disclose any significant part (unless thats privileged) Authentications: Remember: Governed by 104(b), only rel if real 901: Authentication of Demonstrative Evidence: Evid must be what it purports to be for admission (a) Condition precedent. Jury must be able to find authentic by prepond (b) Methods: (1) test. of a wit w personal know (for voice ID) (2) non-expert handwriting (not for purp litg) (3) comp. by jury or expert (4) DISTINCTIVE CHARACTERISTICS (chain of
custody) (8) Ancient docs

Phone Calls: Factors: Recog voice / Call listed # and pers answ & IDs / unique facts Chain of Custody: Enough for anonymous docs & phys evid (have everyone testify,
no need perfect) Ancient Docs: (A) condition = no suspicion (B) in place where likely would be (C) =+20 years old

902: Self-Authentication:
(1) Domestic pub docs under seal (2) Domestic pub docs not under seal (if officer certifies) (3)Foreign pub docs w final cer by (A) executing person or (B) foreign official relates to genuineness (4) Certified copies of public docs (6) Newspapers (7) Trade inscriptions (11) Domestic business records per 803(6): made at time / pers know / reg course / reg prac (12) Foreign business records per 803(6): made at time / pers know / reg course / reg prac

Best Evidence: Oral testimony about content of Writings / Recordings / AV / Photographs 1001: Definitions (3) Original = photos from neg/printouts (4) Dup = Mechanical copy 1002: Req of Orig: To prove content original is required except as otherwise provided Prove the Content: Done when 1. ITSELF at issue (copyright) 2. Indep. prob value (video) 1003: Admiss of Duplicates: Satisfy unless reason to question/unfair 1004: Originals not required when: (1) Originals lost/destroyed (unless bad faith) (2) not obtainable (3) in poss of oppon (4) only
collateral val