Evidence

Question 1

Background Info

Presentation of Evidence & Witness Testimony order

Answer 1

Presentation of Evidence
* P case-in-chief → D case-in-chief → P rebuttal
* sometimes it will be important where you are in the presentation of evidence, in terms of admissibility

Witness Testimony Order
* For each witness: Direct Examination by Proponent → Cross by Opponent → Redirect by Proponent
* because there are certain things that you can do on cross that cannot do on direct

Question 2

FRE 103

Rulings on Evidence

Objection!

Answer 2

you can preserve an objection for appeal only if the error affects a substantial right of the party and if:
1. the ruling is admitted
* you must timely object and state the reason

2. the ruling excludes
   * a party informs the court of its substance by an offer of proof

Sometimes it is so obvious, saying objection is enough and you dont need to state reason

What does it mean to [affects a substantial right] of the party = Aka the HARMLESS ERROR RULE
* Must affect a ‘substantial right’ i.e., have caused harm, or have impacted case outcome
* you are entitled to a fair trial not an error free trial

Offer of proof?
* If were my expert were allowed to testify, he would say X

Question 3

Relevance

Rule Statement

Answer 3

Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than the fact would be without the evidence
* All relevant evidence is admissible unless a rule says otherwise.
* Irrelevant evidence is not admissible.

you gotta pick:
* say whether it is more probable or less probable

Question 4

Relevance

Application

Answer 4

Evidence → Fact of Consequence → Element/Witness Credibility
* A Fact of Consequence is a fact that goes to a legal element, meaning it is going to impact the outcome or a fact that goes to witness credibility

Question 5

403

Rule Statement

CUM NUW

Answer 5

The court may exclude relevant evidence if its probative value is substantially outweighed by one or more of the following danger(s):
* Confusing the Issues
* Unfair Prejudice
* Misleads the jury
* Needlessly Cumulative
* Undue Delay
* Wastes Time

General balancing test
* Balance the evidence’s probative value against the possible dangers (to accuracy or efficiency) of admission
* Dangers 1-3 = accuracy of the fact finding process
* Dangers 4-6 = the progression of trial

Question 6

403

in General

• open the door?
• Mitigation?
• 403 error?

Answer 6

Opponent of the evidence may “open the door”
* For example, character evidence may have an improper use; however, when it meets an exception, you are opening the door and thus taking away the danger

Mitigating unfair prejudice = Emotional response; improper use
* Redact
* Limiting Instruction

403 error
* 403 error will be reviewed under a ~highly deferential~ abuse-of-discretion standard

Question 7

403

Probative Value?

How persuasive is the evidence on a fact of consequence?

Answer 7

Strength of inferences between item of evidence and FOC (generalizations underlying the inferences)
* Primary measure of probative value
* Is it a generalization that most people believe (i.e. gravity) or is it something more like “rich people drive nicer cars than poor people”?

Certainty of starting point → how certain and unambiguous the piece of evidence / witness is
* Length of chain of inferences does not determine how certain
* This is NOT witness credibility, this is for the fact finder to decide

Need: Does it go to a……
* Central Issue? Is the factual issue that this evidence goes to, does it go to a central factual issue?
* Disputed issue?
* Little/no other available evidence on this point → what else could be offered on this point? Must it be this piece of evidence? Do you really need it?

example of central issue
* Ex: In an unpaid wages case, pay rate would be central

Need can include: telling a believable, compelling story (old chief)

Question 8

403

Dangers

1 - 3 = accuracy of the fact finding process

Answer 8

Unfair Prejudice → Two types
* Emotional Response → Evidence about a party can trigger a response (positive or negative) that will interfere with logical fact finding (i.e. emotions, prejudice, undue sympathy, consciousness of guilt) or
* Improper use → the danger of the jury using evidence properly even if there is a valid purpose for the evidence goes against other evidence rules (i.e. impermissible character evidence like previous prison sentence)

Confusing the issues → When the jury gets distracted by a collateral issue; too much focus from something far away from the central dispute
* Does it take away from the central question? Are we going to end up with a mini trial on x issue?

Misleads the jury → Risk that the evidence will cause the jury to draw a mistaken inference
* Jury likely to draw mistaken inference or to overvalue the offered evidence

Question 9

403

Dangers

4 - 6 = the progression of trial

Answer 9

(4) Undue Delay, (5) Waste of Time, & (6) Needlessly Cumulative
* Evidence would unnecessarily prolong the trial, evidence is repetitive, or the evidence adds little to no new information

Examples
* The prosecution calls a medical examiner to testify about the victim’s cause of death. Then the prosecution calls another medical examiner to corroborate the first witnesses conclusion
* A court preventing a defendant from calling 8 character witnesses who will testify to the same thing

Question 10

105

Limiting Instruction

Answer 10

If the court admits evidence that is admissible for [one] purpose – but not for another purpose
* the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly

Opponent of the evidence needs to object if they want the limiting instruction

you’ll note that the court should instruct the jury to use the evidence only as evidence of X, not y.
* this is what you will say
* ToR 1 is good; ToR 2 is bad!

Question 11

Standards of Review

ESSF

Evidence Sufficient to Support a Finding

Answer 11

A reasonable jury could find by the preponderance of the evidence that X

Question 12

104(a)

Preliminary Fact Questions

• Foundational Questions
• 104(b)

Answer 12

When the admission of an item of evidence depends upon establishing a “foundation fact” or element,” the judge is not bound by FRE
* Judge’s standard = preponderance of evidence (>50%)

104(b) Relevance That Depends on a Fact.
* When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.

Example
* P wants to put on Witness to testify that on the evening of the accident Witness was at a restaurant and overheard a woman saying, “I cannot believe I hit little Paul. I should definitely stop drinking on the job.”
* We have a missing fact, who is the woman. Thus, you must prove the woman = bus driver
* You have to put on ESSF that the speaker was the driver

Question 13

Foundation

Personal Knowledge

if the “piece of evidence” comes from witness testimony

Answer 13

The proponent of a witness must put on ESSF that the witness perceived with their 5 senses what they are testifying to.

A witness’s own testimony describing that they saw/heard.etc. will suffice.

Note → even if you have brain damage and no memory, you still have personal knowledge that you do not remember

Example
* Witness claimed to see incident from slim crack in cell door; judge reviewed diagrams of prison cells and found it was impossible for witness to have observed from there

Question 14

Foundation

Competency

ORAT

if the “piece of evidence” comes from witness testimony

Answer 14

Witnesses are presumed to be competent unless there is reason to
doubt one or more testimonial qualities

• capacity to observe,
• ability to remember,
• ability to relate information accurately,
• ability to tell the truth.

ORAT

If nothing leads you to question it, just say no facts lead to questioning competence

Question 15

Foundation

Rule

If the piece of evidence is an exhibit

Answer 15

Any physical or documentary evidence must be properly
authenticated. Proponent must produce by ESSF to support a finding that the item is what the proponent claims it is.

Proponent needs to get a witness with knowledge to show ESSF that the exhibit is what it is purported to be (low bar).
* extrinsic evidence

Some exhibits may also be self authenticating = When the item is so likely to be genuine, you don’t have to call a witness with knowledge
* newspapers, certified copies of public records (sealed)

After, the other side can object to admission to evidence via contrary evidence or argue foundation evidence is not ESSF.

Question 16

Best Evidence Rule

summary?

trying to prove the CONTENTS of an exhibit
* BER is only triggered when someone is either testifying about the contents of a writing/recording/photograph or putting on some other evidence of the content of the writing/recording/photograph
* If it just exists and is being offered – no BER

Answer 16

Is it implicated?

• Examples of when you know BER is implicated: The photo showed,” “The recording contained,” “The voicemail told me”

Original or duplicable (mechanically, electronically, digitally created copy, not a handwritten copy) is required UNLESS they have a good reason (not in bad faith) as to why they can’t and they can’t use the judicial system to get it (i.e. via a subpoena).

• If original or duplicate was lost in good faith and not obtainable by judicial process → SECONDARY EVIDENCE IS ADMISSIBLE (i.e., witness can testify to the writing’s contents or can recreate the contents)

Summary of voluminous writings allowed as long as other side is given fair opportunity to review underlying docs

examples:
* texts
* showing route you took on an apple watch (from practice exams)
* offering a contract
* when you use notes (i.e a medical record) and then offer them to prove TMA
* scuba company came in and said we had a contract, this is what it said, I saw her sign it, here’s what the terms were, I don’t have the original or the duplicate
* If the expert is testifying about the content of their report, like “I wrote a report about plaintiff’s injuries and here is what my report said”
* Copyright case → Amateur comic writer sues George Lucas saying you stole some of my Star Wars design. Amateur did not have his original magazine so he did a re-sketch. BER is now implicated and the analysis is necessary.

Question 17

Character evidence

General rule/definition

(a)(1) & (b)(1)

1. Is it Character evidence or is it 404(b)(2)? Habit? or EE? figure this out in ToR -> (a single piece of evidence can be both Character evidence and non-character)
2. If it is, does an exception apply?
3. IF yes, is it in the proper form?

Answer 17

Evidence of a person’s character is generally not admissible to show that they acted in accordance with that character on a particular occasion
* (b)(1) = specific acts but same = In the past year, I saw D run 3 stop signs and speed 10 mph over = this will fail anyway unless essential element

evidence of a person’s character offered to prove conduct in accordance therewith

Question 18

Character evidence

when character = essential element

NOT CHARACTER EVIDENCE

Answer 18

If character is an EE of a charge, claim or defense, all types of Character evidence admissible unless there are 403 issues.

• opinion
• reputation
• PSA

• libel
• defamation

Question 19

Character evidence

Habit

NOT CHARACTER EVIDENCE

Answer 19

Evidence of a habit to prove conduct in accordance with that habit is admissible.

Habit = less of a moral tendency; routine practices that are almost
involuntary (3x is not a habit)

Question 20

Character evidence

404(b)(2)

NOT CHARACTER EVIDENCE

when a PSA is offered to prove something other than character

Answer 20

Articulate the non-char purpose
* do this in your relevance analysis

put on ESSF that the PSA happened

prep for 403 objection
* do not do full blown 403 analysis
* you are going to say the danger of the jury using this as character evid (improper use) that X substantially does or does not outweigh the probative value that X

If you are the prosecution, you have to provide notice

Rule
* Past act offered to prove something other than character evidence is admissible

Question 21

Non-Character Theories Of Relevance

MOPP-KIIA

Answer 21

Motive
* PSA admissible because it motivated the charged crime.
* Failing warehouse arson guy with a lot of debt example

Opportunity
* Commission of a crime sometimes requires a particular opportunity, such as access to a protected place or to special tools. To prove that the D had the opportunity to commit a crime like this, the prosecutor may offer evidence that the D enjoyed access to the protected place or special tools on another occasion.

Plan/Preparation
* PSA of getting supplies

Knowledge
* Relevant to show they knew how to do the crime.
* Breaking into a safe

Identity (subset includes M.O)
* that it wasn’t someone else, but the defendant, who likely did the thing
* Police officer stealing from johns example

Intent
* Evidence of PSA can be admissible to prove that a D possessed the intent necessary to commit a crime
* Son killing father by running him over but wife says son tried to poision him before example.

Absence of mistake/lack of accident
* D will claim mistake, but some PSA will show that it is unlikely that it was a mistake
* Very similar to intent motive and knowledge

Res Gestae
* “Evidence needed to complete the story”
* we need to offer the PSA to show the crime even happened

Consciouness of guilt

Question 22

Character evidence

Exception

Criminal Case only

Mercy Rule, open the door, homicide case
* Memory tool = the prosecution always gets to rebut whatever the other side puts on

Answer 22

Mercy Rule
* a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it
* As a defendant, I can offer evidence of my pertinent trait
* And if the character evidence is admitted, the prosecutor may offer pertinent evidence to rebut it

Create Reasonable Doubt
* a defendant may offer evidence of an alleged victim’s pertinent trait

and if admitted, the prosecutor may:
* offer evidence to rebut it; and
* offer evidence of the defendant’s same trait (fight fire with fire)

Homicide
* the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor

pertinent = relevant to that specific crime being charged

Question 23

Character evidence

if in a exception, is it in the proper form?

Exception

do this even if you think no exception

Answer 23

Opinion and Reputation is OK

NO PSA unless cross-examination
* So you can ask about specific instances that are relevant to the character trait that the character witness just testified to! INQUIRE
* has to be in good faith
* cross-examiner has to live with the witness’s answer

The purpose for allowing that inquiry is to test the character witnesses basis of knowledge or their judgment.
* if you did not know, then you obviously do not know much
* If you did know and you still say X, then we do not trust your judgment

Question 24

all together

Sexual Assault-Specific Character Evidence Exceptions

Exception in Criminal/Civil?

Answer 24

If a criminal defendant is accused of sexual assault, their other sexual assaults are admissible to prove character
* SA PSA –> D has sexually violent char –> D committed this SA = ALLOWED
* Notice requirement
* 403 still available
* ESSF

(a) Victim’s sexual behavior or predisposition
* cannot use victim’s other sexual behavior OR sexual predisposition

exception to (a)
* criminal = Can only use other sexual behavior or sexual predisposition to prove—> (1) Someone other than D is source of physical evidence and (2) If proving consent, can show previous sexual history w/ this D

• civil = reverse 403 = OSB/P admitted only if probative value substantially outweighs prejudicial impact

Question 25

Policy Rules ## Footnote SCOPE?

Answer 25

* Subsequent Remedial Measures * Compromise * Offers to Pay Medical and Similar Expenses * Pleas, Plea Discussions, and Related Statements * Existence of Liability Insurance or Lack Thereof

Question 26

Subsequent Remedial Measures

Answer 26

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove fault/culpability/defect/need for warning * But the court may admit this evidence for another purpose, such as **impeachment** or — if disputed — **proving ownership, control, or the feasibility of precautionary measures.** ## Footnote Measure? * Acts that would have made an injury or harm less likely to occur Feasibility? * When the defense is “I could not make this safer” Example * D repairing a staircase can be evidence that D has control of the property Multiple ToR * 403 available * 105 limiting instruction for the improper use of like fault

Question 27

Compromise

Answer 27

Offers to compromise, and statements made during negotiation, are **not admissible** to prove/disprove validity of claim or amount owed. Also not admissible to impeach by a **PIS or a contradiction** The court may admit this evidence for another purpose. * Such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Question 28

Offers to Pay Medical and Similar Expense

Answer 28

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. * but the statements that accompany them are admissible (piecemeal it) ## Footnote Example * Acknowledgement of fault that comes with the offer to pay is admissible

Question 29

Pleas, Plea Discussions, and Related Statements

Answer 29

In a civil or criminal case, evidence of the following is **not admissible** against the D who made the plea or participated in the plea discussions: * a guilty plea that was later withdrawn * statements made while negotiating that guilty plea

Question 30

Existence of Liability Insurance or Lack Thereof

Answer 30

Evid 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’s bias or prejudice or proving agency, ownership, or control

Question 31

# Impeachment 5 types Impeachment ## Footnote basic concepts

Answer 31

(1) Show a witness’s character for untruthfulness * Reputation or opinion; intrinsic [608] * Criminal convictions [609] (2) Show that W made a prior inconsistent statement [613] (3) Witness bias (4) Contradict a witness’s testimony through other evidence.. or common sense/knowledge (5) Attack testimonial qualities * Ability to observe * Ability to remember * Ability to relate accurately * Understanding of duty to tell truth ## Footnote * You can impeach any witness because credibility is always an issue * You cannot bolster

Question 32

# Basics Impeachment and Rehab | any party can impeach a W, including the proponent ## Footnote Scope of Cross and Leading Q's

Answer 32

You can impeach any witness because credibility is always an issue * Impeach = attack witness’ credibility, show that their account is not reliable * Rehabilitate = repair the attack on witness’ credibility 2 Main Rules on Rehab * Cannot bolster = must wait until W is impeached * Rehab evidence must respond to the type of impeachment (EX = to rehab PiS, you need Prior consistent statement) ## Footnote Scope of Cross * Scope of cross-examination is whatever was covered on direct examination plus credibility of the witness. Leading Q's * A leading question is a question that suggests the answer and it's allowed on cross or if there is something about the witness that makes them adversarial or hostile to you

Question 33

# Impeachment Prior Inconsistent Statements ## Footnote Judge decides whether it is truly inconsistent

Answer 33

**Rule for Intrinsic Evidence:** * Intrinsic evidence of PIS admissible to impeach. * No need to give advanced notice or disclose its contents, but upon request opposing counsel has the right to learn of the statement. **Rule for Extrinsic Evidence:** * Extrinsic evidence only allowed if it is a non-collateral issue and the witness HAS a chance to explain/deny * Exception “when justice so requires.” ## Footnote Starter Rule * A witness may be impeached with their PIS When witness is impeached with a prior inconsistent statement, you can rehab with a prior consistent statement As justice requires? * What if, through no fault of their own, Cafe’s counsel only learns of Lisa’s PIS (that the floor was dry) in the middle of trial, AFTER Lisa has been dismissed? Can P call Stewey to testify to the PIS?

Question 34

# Impeachment A witness’s character for truthfulness or untruthfulness ## Footnote impeaching a witness by showing that they have an untruthful character, showing that they are a liar by nature.

Answer 34

(a) * A witness’s credibility may be attacked/supported by **testimony** about the witness’s character for truthfulness or untruthfulness * **With opinion or reputation** * Remember, no bolstering! (must wait until W is impeached & rehab with the same type of impeachment) (b)(clause 1) * **Extrinsic evidence is not admissible to prove specific instances** of a witness’s conduct in order to attack/support the witness’s character for truthfulness (b)(1) = intrinsic * But the court may, on cross-examination, allow the specific instances to be inquired into IF they are PROBATIVE of the character for truthfulness/untruthfulness * good faith basis (b)(2) = extrinsic * On cross exam, you can ask a witness (Extrinsic) about specific instances * good faith basis * the same kind of inquiry (if they know.. or dont know..) to test the basis of knowledge of the character witness as b(1) but not lisa * are you aware, mr. brown (character witness after he said imo, Lisa is truthful [using a]), that Lisa cheated on her Bio Exam? | Once impeached reputation evidence can be offered - beware of bolstering ## Footnote Is it not true, ms. simpson, that you cheated on your taxes -- i plead 5th -- allowed

Question 35

# Impeachment by Crim Conviction Definitions

Answer 35

Felony * Crime that is punishable by a year or more in prison or death Crimen Falsi * A crime that involves an element of untruthfulness * Such as fraud 10 years * If more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later * |------------------------------------------|now * Convicted * Released Released * Means released from physical confinement * Not when you are don with probation or parole The theory of relevance * If you have been convicted of a crime, you are more likely to lie in court when you’re testifying as a witness ## Footnote Cannot use 403 in 609 because different variations built into it

Question 36

# Impeachment Criminal Convictions ## Footnote The issue with impeachable convictions is figuring out which balancing test to apply

Answer 36

* Confirm (c) or (d) does not apply * Is conviction old? → (b) * Is conviction for crimen falsi? → (a)(2) * Is conviction a felony? → (a)(1) * Is W a criminal D in this case? → (a)(1)(B) ## Footnote If it is not a felony and not crimen falsi = exclude

Question 37

# Impeachment Criminal Convictions [609] ## Footnote 609(a)

Answer 37

(a) → 10 years or less (1) For a felony that is not a crimen falsi (A) W is not Crim D → **Admit subject to 403** (B) if W IS Crim D → admit conviction **if probative value of evidence outweighs its prejudicial effect** (2) for a misd/felony crimen falsi → **admit auto** ## Footnote (a)(1)(A), where not crim D, this means civil defendant!

Question 38

# Impeachment Criminal Convictions [609] ## Footnote 609(b)

Answer 38

(b) → more than 10 years * its probative value substantially outweighs its prejudicial effect * Proponent must give notice

Question 39

# Impeachment Criminal Convictions [609] ## Footnote (c) and (d) and (e)

Answer 39

(c) effect of a pardon, annulment, or cert of rehab * If the conviction has been pardoned, annulled, or the former criminal defendant has received a certificate of rehabilitation, then that conviction is inadmissible because that conviction does not exist as a legal matter anymore (d) juvenile adjudications * Generally inadmissible unless not crim D's and really needed ## Footnote (e) pending appeals * The impeachable conviction is on appeal → it's still admissible, although you can also offer that it's being appealed as the other side

Question 40

# Impeachment Bias

Answer 40

You can always use bias to impeach! * Extrinsic or intrinsic * Bias can be shown intrinsically and extrinsically | special relationship b/w parties ## Footnote Witness’s Bias can be anything that suggests the witness is impartial and has a reason to slant their testimony in one direction or another (personal interest, gain, corruption, ensure).

Question 41

# Impeachment Contradiction

Answer 41

Admissible to introduce evidence (usually bringing in a witness) that contradicts something the witness has said is admissible to impeach. * Extrinsic evidence ok as long as not collateral ## Footnote Contradiction is just evidence that contradicts what the witness said. * The witness testifies that the light was green. * The other side calls a witness who testifies that the light was red (both substantive and impeachment) * Collateral = whether the witness was walking home from McDonald's v. Burger King is not central to the dispute

Question 42

Attack Testimonial qualities ## Footnote ORAT

Answer 42

You can do it! * Observe * Recall * Relay Accurately * Understand duty to tell truth

Question 43

# Hearsay Definition ## Footnote step 1: figure out if it is hearsay

Answer 43

Out of court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless an exception applies. **Statement?** * intended assertion **Declarant** * person who made the statement at issue. **Sometimes, witness is the declarant** * W: I said, "X is true" that day ## Footnote **when declarant = witness PAY ATTENTION** * generate extra exceptions, or even perhaps an extra ToR

Question 44

# Hearsay Truth of the Matter Asserted?

Answer 44

The theory of relevance relies on the assertion in the statement being true Why is the proponent offering the statement into evidence? * is the proponent offering the statement to show that the statement is, in fact, true? = TMA * or is it being offered for some other reason that doesn't depend on the statement being true? = non-hearsay purpose ## Footnote To prove it was not raining on 1/1/21, Witness testifies: On 1/1/21, Y said to me, "The sky is perfectly clear." * OOC = The sky is perfectly clear * the TMA = The sky was perfectly clear * BUT ALSO it is being offered for the TMA because you are offering it to prove that it WAS NOT RAINING = so for this ToR chain, the sky being perfectly clear has to be true * The sky has to have been perfectly clear in order for you to follow that chain of inferences

Question 45

# Hearsay Non-hearsay uses ## Footnote ELN-SKI

Answer 45

* Effect on the listener → regardless of its truth, it impacted the listener * Legally operative facts → statements that, merely by being uttered, create legal rights and obligations (i.e. contracts) * Notice * Impeachment (PiS) → not offered for truth but to show W is liar → not SUBSTANTIVE evidence * Spoliation * Knowledge of the speaker → negligence D had told neighbor before accident that D was aware of dangerous condition on property ## Footnote 403 and HS? * ToR 1 = HS; Tor 2 = Non-HS * Court conducts 403 analysis: if Danger of jury using statement for TMA substantially outweighs probative value, then exclude

Question 46

# Hearsay Double Hearsay ## Footnote Who spoke to whom? system works really well or use quotation marks I do not have to do quotation marks when a witness testifies (no HS analysis) because it is not OOC * witness testifies: Delivery person told me "shift manager said, 'P slipped because floor was slippery from mopping'"

Answer 46

Double Hearsay is admissible so long as an exception applies to each level * do not forget to run each level through the definition of HS → OOC TMA ## Footnote Examples * Lisa testifies: Harris told me, "Elon tweeted, 'The floor was wet.'" If Lisa's testimony is offered to prove that the cafe fllor was wet, is it HS? * TMA by Elon = Floor was wet (inner HS) * TMA by Harris = Elon said/tweeted that | TMA is that the statement was made (outer HS) this will pretty much always be true → The truth of the matter asserted in the outer hearsay will be that the inner hearsay was spoken, written, declared, reported

Question 47

Nonverbal Conduct? ## Footnote when does it become an assertion?

Answer 47

Nonverbal conduct becomes hearsay ONLY if it actor intended it to be an assertion * judge makes the determination under 104(a) preponderance of evidence standard * nothing is an assertion unless intended to be one ## Footnote Ex: hiding something while you think someone is not looking is not an intended assertion

Question 48

# Hearsay Exceptions Declarant Witness exceptions

Answer 48

(d)(1) = Declarant testifies & subject to cross * PIS under oath at proceeding * Consistent statement to rebut improper motive * Consistent statement to rehab on other ground * DW identifies

Question 49

Declarant testifies & subject to cross ?

Answer 49

Declarant testifies? * meaning that the Declarant is on the witness stand now, or has been on the witness stand during this very trial. Subject to cross? * The declarant witness is on the witness stand, took an oath, and is answering questions voluntarily * It does not matter if they deny making the prior statement * If the witness is brain damaged or says they do not have memory of it, it doesn't matter…they are still subject to cross * BUT if the witness refuses to answer any questions, **claiming privilege**, then they are not subject to cross ## Footnote Owens * was a federal prosecution for an assault and the assault victim had suffered traumatic brain injury such that he couldn't remember the prior ID that was admissible under Prior ID exception * But his prior out of court ID came in because victim was the declarant witness and was on the witness stand doing his best to answer questions * **and so that counted as subject to cross, although there was nothing to cross on because all he could say was I don't remember.**

Question 50

PIS under oath at proceedings ## Footnote Elements

Answer 50

* Declarant-witness, subject to cross * Prior statement is **inconsistent** with current testimony * Prior statement was given under **penalty of perjury** * Prior statement was made at trial/hearing/depo or other **proceeding** ## Footnote So who decides what is inconsistent? * judge Feigned memory loss? Evasive answers? * still will be counted as inconsistent Proceeding? * Recorded police interrogation? No * Police line-up? No * Grand jury? Yes

Question 51

Consistent statement to rebut improper motive ## Footnote Elements

Answer 51

* DW and subject to cross * Prior statement is **consistent** with testimony * And offered to **rebut charge of recent fabrication or improper motive** * Statement was made **before** motive arose

Question 52

Consistent statement to rehab on other ground

Answer 52

To rehabilitate the declarant’s credibility as a witness when attacked on another ground; Example * Witness you have bad memory this was two years ago you barely know him → impeached on bad memory testimonial quality * I can offer witness’s statement two years ago to rehab her **and** for the truth of the matter asserted

Question 53

DW prior identifications

Answer 53

Elements * DW, subject to cross * Statement ID’s a person as someone declarant perceived earlier Example * That is the person who stole my purse! * That is the person who was driving the car that ran the red light! * The prior ID can be either consistent or inconsistent with trial testimony * testified to by DW themselves or by 3rd party (such as a police officer) ## Footnote **Identifies** a person as someone the declarant **perceived earlier** * [i.e., before the OOC statement of ID].

Question 54

# Hearsay Exceptions Party Admissions ## Footnote Step 1: Ask, is it being offered **against the party who made it**? If no, don’t use these H-S exceptions!

Answer 54

* Party-opponent * Adoptive Admissions * Employee/Agent Admissions * Authorized Admissions * Co-conspirator's Statements ## Footnote With authorized, employee, or conspiracy exceptions → the court can consider the statement itself in determining whether the foundational elements are met but that is not enough to prove it fully. You must have some other corroborating evidence.

Question 55

Party opponent

Answer 55

* OOC Statement was **made by the party** * OOC Statement is **offered againt the same party** ## Footnote NO OTHER ELEMENTS * declarant does not even need personal knowledge Anything that your opponent said or wrote is admissible if you offer it. * except privilege What happens when Two d’s are tried together & one of them has made statements out of court * can redact co-defendants name

Question 56

Adoptive Admissions | Adoptive Admissions

Answer 56

A declarant makes a statement and a party adopts it, either by signing it, saying they adopt it, saying something that suggests they adopted it, or sometimes not saying anything. * A **statement** was made by the declarant * The party did something to **manifest adoption** of the statement/belief in its truth * Statement is being **offered against the party** ## Footnote R/E – adoption by silence * If under the circumstances, a reasonable person would have object/protest, silence can constitute adoption

Question 57

Authorized Admissions

Answer 57

Authorized admissions * Statement was made on a **subject** * By person whom party **authorized** to make a statement on that subject * Statement **offered against that party** ## Footnote This is the one-off explicit authorized statement Example * MLS texts nina, "Tell the class I am stuck on Bart and I will start class 10 mins late." Nina announces on Canvas, "Spencer is stuck on Bart; class will start at 9:10" * Evidence student sues MLS and wants to offer canvas announcement to prove class started late that day * OOC and TMA? yes. * Statement made on subject? Class start time * by person whom party authorized? yes tell the class * Offered against party? yes against MLS

Question 58

Employee/Agent Admissions

Answer 58

* Declarant is **agent/employee** of party * Statement made **during relationship** * Statement is on a **matter within scope** of agency/employment **relationship** * Statement offered **against that party** ## Footnote Ex – Delivery person * Job is to deliver good, punctually, follow traffic laws, interact with supplier/buyer * How slippy the floor is would not be in the scope of delivery persons job * RELATED TO THEIR EMPLOYMENT Extras * lawyers are agents * includes independant contractors

Question 59

Co-Conspirator Statements ## Footnote This is where one coconspirator makes a statement and it's admissible against another coconspirator.

Answer 59

* Declarant and party against whom statement is offered entered a **conspiracy** * Statement was made **during the conspiracy** * Statement was made **in furtherance** of the conspiracy ## Footnote During? * Conspiracies end when you are caught. So telling the police after then it doesn’t count * So after agreement was agreed to and before it ended

Question 60

# Hearsay 803 exceptions | Seven of them! ## Footnote in general

Answer 60

* Present Sense Impression * Exicted Utterance * Then Existing Mental, Emotional or Physical Condition * Statements made for medical diagnosis or treatment * Recorded Recollection * Records of a Regularly Conducted Acitvity (business records exception) * Absence of a Record of a Regularly Conducted Activity ## Footnote Allowed regardless if Declarant is available or not * The declarant, who is not even here at trial, still needs to meet the personal knowledge requirement Who decides? * 104(a) judge decides by preponderance

Question 61

Present Sense Impression

Answer 61

* An event or condition occurred * Statement **describes** or explains the event or condition * Declarant made statement **during or immediately after** the event or condition ## Footnote Describes or explains? * not an analysis or interpretation | Description without much reflection * The night is still dark because the weather patterns are such that blah blah – NO during or immediately * seconds after * Courts have allowed longer if declarant is trying to find a way to communicate So this is when you are describing something external * The night is still and dark * We’re approaching something huge

Question 62

Excited Utterance

Answer 62

* A **startling** event or condition * Statement **relates** to startling event or condition * Declarant made statement **while under stress** of excitement * Stress of excitement was **caused** by startling event or condition | subjective tesst ## Footnote Relates? * Allows a bit of analysis unlike PSI * A dog got hit! I can't believe that the owner left the gate open like that next to a busy highway! the key is that they are under the stress of whatever that startling event was * We’ve hit an iceberg! * Captain, I just came from the engine room, it's already flooding! An EU need not be made while the event is happening! * The startling event could be well over, but the declarant could still be extremely upset * You could drive your dog 30 mins to the vet and then yell Rekindling the excitement * This is where the startling event could be hours, weeks, months earlier but something happens that rekindles or retriggers the excitement * OMG! That's her! That's the woman who stole my backpack last week!

Question 63

Then-Existing Mental, Emotional, or Physical Condition ## Footnote State of mind exception

Answer 63

Declarants **then-existing** state of MIND (motive, intent, plan) OR mental, emotional, or physical condition * My leg hurts * I just LOVE Evidence class * I'm tired It cannot be a statement of memory or belief to prove fact remembered/believed * "I think P slipped on a Tuesday" to prove P slipped on Tues * So it cannot be “I am standing here thinking about or remembering how we covered party admissions last week” to prove we covered we covered party admissions in class last week ## Footnote Statement of plant/intent admissible to prove declarant acted on that plan/intent * but not 3rd party * "Im flying to Paris next week with my cousin" to show declarant was in paris but not to show cousin was in Paris Statement of memory or belief offered to prove the fact remembered or believed * I am afraid of D becauuse he got really violent with me when he found about the stuff I took * I am afraid = in ; everything else out

Question 64

Statements made for medical diagnosis or treatment

Answer 64

The statement * Is **made for purpose** of [seeking] diagnosis or treatment * Is **reasonably pertinent** to diagnosis or treatment * **Describes** medical history, symptoms or sensations, or their cause/inception | medical personnel = broad ## Footnote Statement need not be made by patient themself * Could be a family member (like a parent bringing a child to the hospital) Statement need not be made to medical personnel * Allowed as long as declarant is trying to get the information to medical personal **Medical professional’s statement is NOT included/admissible under this exception!!!** * one way -- seeking not providing

Question 65

Recorded Recollection | RWP-FAC

Answer 65

* Statement = **record** * **Witness** made or adopted the record * Statement is about something witness had **personal knowledge** of * Statement was made/adopted by witness when **fresh** in their memory * Statement **accurately** reflects witness’s knowledge * Witness **can't now remember sufficiently** ## Footnote the record is read aloud but not admitted unless the opponent offers it * Authenticating for refreshing recollection not necessary because they are not the same thing Double HS likely!

Question 66

Refreshing Recollection ## Footnote Not FRE, trial technique

Answer 66

Witness cannot remember X * a phone numbeer, the license plate of the car that struck her, what date she was fired, etc Witness's memory about X can be refreshed/jogged by Y * a document, a song, a photo, anything at all ## Footnote When you are getting ready to jog their memory, you got to give the thing to the other side Refreshing memory and past recollection recorded are often triggered at the same time on an exam

Question 67

Business Records | R(KT)M-CRAE

Answer 67

* Statement is a record of act, event, condition, opinion, diagnosis * Made by someone with knowledge or from info transmitted by someone with knowledge within the organization * The record was made at/near time of act/event/etc. * Record kept in course of regularly conducted activity of entity * Regular practice of that activity to make record Additionally * Above must be proven by custodian/qualified witness * if all elements met, judge may still exclude if source/method/circumstances of preparation indicate untrustworthiness ## Footnote example of two hard elements * So a restaurant regularly takes money from customers and produces a reciept * feeding customers and getting paid is a regularly conducted activity of a restaurant * and it is a regular practice to generate receipts not allowed for the admission of most documents that are solely prepared for litigation. * goes to the very last element

Question 68

Business duty to report

Answer 68

even if you have a record that meets the business records exception, very often it contains hearsay within it. * think of it as insiders and outsiders * so insiders of a business (people who work in it) have business duty to report accurately so it wont be double HS * but outsiders will be! Police reports * Officers considered to be under business duty to accurately report * where officer's report includes statements by those w/o business duty, then some other HS exception needed

Question 69

Absense of Business Records

Answer 69

* The evidence is admitted to prove that the matter did not occur or exist * A record was regularly kept for a matter of that kind * The opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness ## Footnote Example * Empty calendar day to show not working that day * Absence of receipt to show he did not pay * Showing a negative

Question 70

804 Exceptions! | exceptions ## Footnote we need one of (a) and one of (b)

Answer 70

* Former Testimony * Dying Declarations * Statements against interest * Forfeiture by wrongdoing

Question 71

Unavailability! | (a) ## Footnote IR-TD-AP...

Answer 71

Declarant is unavailable if they: * invoke **privilege** * refuse after **court order** * testify that **forgot** * are **dead/ill** (need to show proof); or No show and proponent has tried to procure: * **attendance** if former testimony or forfeiture by wrongdoing * **attendance or testimony** if dying declaration or statement against interest BUT **not if proponent wrongfully caused unavailability** * exception does not apply and HS statement will be excluded ## Footnote **Absent** means not here and proponent cannot procure attendance * Whose attendance? the Declarants * Procure means I did my best, I did a subpoena and they still are not showing up! Attendance or testimony? * You can't get them into court to testify, live at the trial. * And you tried to depose them, and you weren't able to.

Question 72

Former Testimony

Answer 72

* Declarant unavailable * Testimony was given at trial, admin hearing, prelim hearing, properly conducted depo * IF **current case is criminal**: other party had opportunity and similar motive to develop declarant’s testimony on examination * IF **current case is civil**: other party or predecessor in interest had opportunity and similar motive to develop declarant’s testimony on examination ## Footnote contemplates two proceedings – this is the key * Prior proceeding, where X testified as a live witness. Testimony was recorded, transcribed. * Current proceeding, where party cannot call X because X is now unavailable, so instead offer’s X’s prior testimony under this exception, usually via transcript Opportunity to cross-examine * So if in that prior proceeding, counsel fell down on the job and didn't ask any questions, but they could have and they should have -- that is enough Predecessor in interest * So Alexis is Brenda’s predecessor in interest because Alexis, at the prior proceeding had a similar motive as Brenda has at the current proceeding

Question 73

Similar Motive?

Answer 73

Factors in determining whether there is similar motive to develop testimony in prior proceeding * Is the party in the same type of litigation situation as they were in the past, prior proceeding * Same posture against same opponent * Legal and factual issues are same * Their potential stakes (like higher in the first and less in the second better) Prior examiner asked (or should have asked) the same types of questions on cross-exam of the witness as would be asked at current trial if witness testified live ## Footnote Example → so if the first one was a contract case and now we have a tort case → those are prob not going to be the same legal issues and they're not prob going to turn on the same factual issues * Was the floor slippery? v. was the contract breached

Question 74

Dying Declaration

Answer 74

* Declarant unavailable * Statement offered in homicide or civil case * Statement made while declarant believed death imminent --> look at the circumstances to show that subjective belief that death is imminent. * Statement is about the cause or circumstances of declarant's death ## Footnote 3rd element * Subjective belief of imminent death → this main one * But also has to be somewhat objectively reasonable * I stubbed my toe, I am going to die!! No requirement death actually occurred What does imminent mean * Close enough in time that it is certain to happen

Question 75

Statement Against Interest

Answer 75

* Declarant unavailable Content of statement, at time it was made, was so counter to declarant’s interest, that a reasonable person would have made it only if it were true, including: (these are exhaustive) * Contrary to declarant’s proprietary or pecuniary interest (money and property) * Invalidates declarant’s claim against another (legal claim) * Subjects declarant to civil or criminal liability | So look at their motive at the time of making the statement ## Footnote If statement **incriminates declarant** & is offered in **criminal** case → need corroboration to show trustworthiness of statement

Question 76

Forfeiture by Wrongdoing ## Footnote Wrongdoer forfeits their right to HS objection * the opponent of the evidence

Answer 76

* Party against whom statement is offered engaged or acquiesced in wrongdoing * Wrongdoing was intended to procure the unavailability of declarant as a witness against the party * The wrongdoing did render declarant unavailable as witness (it worked) ## Footnote Acquiesced in? * Aware it is happening or agreeing to it * Knowledge of it and failed to stop it * Not stopping it and getting authorities Wrongdoing? Must it be criminal act? * No → coercion, undue influence, pressure to silence influence Wrongdoing was intended to procure the unavailability of declarant as a witness against the party? * “Intended to procure unavailability” – what if wrongdoer had several motives -- we just need one

Question 77

Residual HS exception

Answer 77

* Reliable * Needed * Notice | dont apply unless specifically instructed

Question 78

Attacking and Supporting the Declarant

Answer 78

You can impeach a hearsay declarant using the same methods generally that you use on a live witness. * Including same rehab methods The court may admit evidence of the Declarant inconsistent statement, regardless of when it occurred. * And regardless of whether the Declarant had an opportunity to explain or deny it. ## Footnote Impeaching OOC declarant * Bias * Inconsistent Statement (does not need to be prior) → don't have to confront first * Lack personal knowledge * Character for untruthfulness via rep or opinion * Impeachable convictions

Question 79

Confrontation Clause

Answer 79

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the Witnesses against him.” 6th. Approach * Hearsay offered against criminal defendant? If yes → must write about CC * If it is a hearsay statement, offered against a criminal defendant, then go ahead and state the Crawford rule. * Then you might ask yourself, is the declarant testifying IN COURT? If yes, you're good because they can be cross examined. * If no, then you've got to go into whether the OOC statement is testimonial * Then go to the last question which is has the CC clause been satisfied? unavailable and opportunity to cross ## Footnote If it's a civil case, DO NOT mention the Confrontation Clause. Ex: Offering a gun as an exhibit in a criminal case, is NOT an OOC statement and therefore no CC. If OOC offered to prove effect on the listener, say: * The Confrontation Clause applies only to hearsay statements offered against a criminal defendant. Out of court statements offered to prove something other than their truth do not raise confrontation concerns. DONE.

Question 80

Crawford

Answer 80

An absent declarant’s testimonial hearsay statements are admissible against a criminal defendant only if * (1) the declarant is unavailable and * (2) defendant had prior opportunity to cross-examine ## Footnote Unavailable v. absent * Absent means not here in trial right now

Question 81

Testimonial? ## Footnote Always keep this in mind ⇒ Tower of London! * Product of formal interrogation in an attempt to determine who committed a crime and then substitute that for live testimony

Answer 81

Primary purpose * Nontestimonial = primary purpose of interrogation is to enable police assistance and meet ongoing emergency * Testimonial = primary purpose of the interrogation is to establish or prove past events relevant to later criminal prosecution Bryant * To determine “primary purpose” of police interrogation, look at both interrogator’s and interrogated party’s purpose. Content and circumstances of statement, including (in)formality of Q&A. * ongoing emergency can be broadly defined to include emergency to the public | objective test ## Footnote Is the primary purpose of this police interaction to respond to an ongoing emergency, or is the primary purpose of the interaction to prove past facts for potential later criminal prosecution?

Question 82

Hammond ## Footnote DV at home case

Answer 82

* Police arrive at victim and perp’s home * Separated victim and perp, isolated her and she recounted what happened * EMERGENCY OVER after isolation * MORE OF A DELIBERATE Q & A to assist an ongoing investigation * Recounting something that is now over something that happened in the past * Out of danger

Question 83

Davis ## Footnote DV 911 call case

Answer 83

* 911 call from victim of domestic violence victim * She made identifications (name etc) while in an ongoing emergency * Thus, her statements were designed to resolve the ongoing emergency * THUS, NOT TESTIMONIAL

Question 84

Bryant ## Footnote Bleeding out near gas station case

Answer 84

Victim was shot by bryant and drove off to a gas station where he collapsed essentially bleeding to death * Police arrive and begin questioning him * Victim is asking when is ambulance coming lol while police are saying things like who shot you * Alot of back and forth and it is a chaotic situation The police are responding to an ongoing emergency situation – they want to know if the shooter is nearby and like when did it happen * Notice that the shooter and victim are separated – victim drove away * Victim told them he was shot at shooter’s house * So they are separated which is more like the hammon facts than the davis facts but the court finds that there is an ongoing emergency because there is an armed and presumably dangerous person out there in the world.

Question 85

Statement b/w Private parties

Answer 85

At preschool, talking to teachers * Why are we even talking about CC? How is this related to talking to law enforcement? Isn't this like the kelly kapoor situation? * TEACHERS ARE MANDATORY REPORTERS = They are required to report to law enforcement Holding – not testimonial * Not acting as investigators --> Would have asked even if not mandated reporters * They were trying to help/protect not gather information for evidence in prosecution * It was a conversation of a young child rather than a formal interview. The primary purpose was to resolve an ongoing emergency because there is a 3 year old who is living with someone who hits him, he will go back home to someone who hits him! It happens like all the time! ## Footnote This case → some civilian to civilian statements can be testimonial but most won't be

Question 86

Gov Forensic Reports

Answer 86

Which say if the report was generated and the analyst, whoever was drafting the report pretty much knew or did know or signed something saying “I do know that this is going to be used in court against a criminal defendant.” * It's going to be testimonial and you're going to have to do some confrontation analysis

Question 87

# Expert Testimony Testimony By Lay Witnesses ## Footnote Testimony By Lay Witnesses: *this rule is used to distinguish lay opinion from expert opinion*

Answer 87

Rule: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: * Rationally based on the witness’s perception; * Helpful to jury to determine a fact in issue * Not based on scientific, technical or other specialized knowledge within the scope of Rule 702. (not expert in disguise) ## Footnote Wouldn't use it for character witness in final under foundation * Would use it for fact witness under foundation Rational * “I can see from his aura”

Question 88

Testimony by Expert Witness | SAS-PA ## Footnote 104(a) standard Court can appoint own witness

Answer 88

Expert OK if * specialized knowledge and would assist jury * the testimony is based on sufficient facts or data; * The testimony is the product of reliable principles and methods; and * The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case ## Footnote Specialized knowledge * dont need MD can be a my cousin vinny Daubert * The subject matter can be tested * Theory/technique has been subject to peer review and publication * General acceptance * Known, low rate of error * Standards controlling technique’s operation

Question 89

Bases of an expert’s opinion testimony

Answer 89

* An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed * An expert opinion is admissible even if it's based on inadmissible facts or data so long as experts in the field **reasonably rely** on that type of facts or data in forming opinions. * But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect ## Footnote When does the jury get to hear the facts or data underlying the expert’s opinion? When you meet reverse 403 * This is for the PROPONENT The other side can always elicit any of those bases on cross! * So the opponent of the expert can elicit however much they want of the underlying bases for the opinion.

Question 90

Expert Testimony on mental state crim

Answer 90

An opinion is not objectionable just because it embraces an ultimate issue. Except * In a criminal case * an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime or of a defense. ## Footnote you can say the premise but not the conclusion

Question 91

# in general Privileges ## Footnote Once you waive it once, you waive it for the entire trial

Answer 91

But in a civil case, state law governs privilege and supplies the rule of decision * just like competence Privilege can be waived by * by words, action * if you fail to invoke (forfeit) * voluntary disclosure of **communication** (not of facts contained in comm'n, not reference to the comm'n) = unless that disclosure is also priv'd * if privilege material becomes subject of litigation (malpractice) Scope/limits * no privilege if unnecessary 3rd party present * past crimes protected v. future crimes not ## Footnote can be invoked at any point Holder owns the privilege * Only the holder can waive or forfeit the privilege

Question 92

Attorney Client Privilege

Answer 92

Confidential communications made for the purpose of facilitating the rendition of professional legal services to the client * for the purpose of legal servies? Ex of lawyer who also assists with preparing taxes; comms related soley to other purpose not priv'd ## Footnote Wrinkles: * R/E: applies to prospective clients * R/E: Client must reasonably believe that they are consulting with an attorney (even if fake attorney) R/E: Communications in furtherance of a contemplated or ongoing crime of fraud are not protected. * look to client's intent * The attorney-client privilege does not apply, regardless of whether the attorney was aware of the illegal activity Lawyers employee or hired experts will be safe Inadvertent disclosure * Took reasonable steps to prevent disclosure

Question 93

# Marital Privilege Marital comms

Answer 93

Prevents disclosure of confidential comms b/w spouses * communication b/w spouses * during valid marriage * intended to be confidential (presumed if first two met) Exceptions * Communications regarding ongoing joint crime * Comms before marriage * Intra-family crimes | Crim and civil cases ## Footnote Holder? * both * Each spouse must waive it for the privilege not to be recognized But there is some reasonable expectation of confidentiality * Location, volume, etc

Question 94

# Marital Privilege Marital Testimonial

Answer 94

Prevents one spouse from testifying against the other * Criminal case * Married at the time of assertion ## Footnote Holder? * testifying spouse