EVIDENCE OUTLINE I) INTRODUCTION A) Rules of Evidence are TOOLS 1) Do not require the trier of fact to accept any piece

of evidence as fact (a) Allows trier to hear or see evidence, then determine whether evidence has any value (b) Presumption that trier of fact should see evidence 2) Proponent chooses which tool/Rule to use to get evidence admitted 3) Judges do not have to abide by these rules (a) Rules don!t say "shall# (b) Judges free to interpret as they see fit (c) $owever, "privileges# must be abided by B) Rules of %nclusion 1) Evidence is presumed to be admissible (a) &et it in and let the 'ury decide what weight to give it 2) (o long as at least one rule allows evidence in, then it!s admissible even if all other rules so it!s not C) Different )eanings of "Evidence# 1) *hree +ommonly ,sed Definitions of Evidence (a) Proof - the "stuff# offered by the parties at trial to meet the legal requirements for showing the elements of a claim, cause of action, or defense (i) &awsuits are won or lost over good proof (b) *he Rules - governs admissibility of proof. guides 'udge how to conduct trial (i) +ontain numerous evidentiary "foundations# - procedures and 'udicial findings that are prerequisites to the admissibility of evidence at trial (c) %n Evidence -meets the requirements of the rules and may be ta/en bac/ to the 'ury room by the 'ury to be considered in deliberations (i) 0o longer controlled by the parties (ii) Part of the official case file (iii) ,nder the control of the client 2) +ategories of Evidence (a) Real Evidence - physical, tangible evidence, the thing itself (b) Representative Evidence - represents another thing, e g diagrams, 12rays, photos (c) *estimonial Evidence - comes from witnesses 3) 3eight of Evidence (a) +ircumstantial Evidence - requires the trier of fact to draw inferences which prove the fact (b) Direct Evidence - evidence which directly proves the point (c) 4oth types of evidence are treated the same, but 'uries tend to give more weight to circumstantial because they were able to ma/e that conclusion D) *he Process 1) ,nder 5RE 6778a9, the +ourt/Judge controls the trial process (a) $elps the trier of fact determine the truth (b) Avoids wasting time (c) Protects witnesses from harassment

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(d) $as ability to alter order of proof - Huddleston v. U.S. (i) +hange sequence of witnesses (ii) Allow witnesses to be recalled (iii) (hould not change order of proof to overcome a burden of proof (iv) )ethod of questioning special witnesses 8children9 (v) Jury note ta/ing, questions, receipt of e1hibits Plaintiff begins with direct e1amination (a) +annot use leading questions, e1cept: (i) *o set the stage (ii) 3hen the witness is hostile (iii) 3hen the witness is an adverse party (iv) 3itness is identified with an adverse party - U.S. v. Anderson ; Rule 6778c9 (b) A leading question: (i) +ontains an answer so that witness can reply with a yes or no (ii) %mplies an answer e1ists - U.S. v. Grassrope (iii) Practice *ip: ,se language "3hat, if any<# (c) ,se witnesses and e1hibits to build a case (d) 0arrative form is generally not allowed, but is within the discretion of the court (i) 3itnesses don!t /now the law and may and tend to stray into irrelevant areas (ii) U.S. v. Garcia and U.S. v. Pless Defendant is allowed to cross2e1amine (a) &eading questions are allowed - U.S. v. Smith (b) &imited to sub'ect matter of direct e1amination - Rule 6778b9 (c) Rule 611(b) Allows Defendant Counsel to ex lo!e b"as# !e$ud"%e & ot'e! (atte!s w'"%' affe%t %!ed"b"l"t) (i) Relationship to party (ii) E1pected benefits from the action (iii) Prior +onvictions (iv) Prior &ies (v) =ther reasons to &ie Re2Direct E1amination (a) &imited to sub'ect matter brought up on cross 8normally pointless9 (b) (ame &imitations apply as Direct E1amination (i) But many judges believe that the rules of evidence are suspended on redirect examination Re2+ross E1amination (a) ,nless re2direct brings up something completely new, re2cross is normally not allowed (b) &imited to sub'ects brought up on re2direct %f Defendant puts on evidence, the same limitations will apply Rule 67> gives the +ourt self2imposing powers (a) 67>8a9 - allows +ourt to call its own witnesses 8rarely done9 (b) 67>8b9 - allows +ourt to question all witnesses (i) Quercia v. U.S.

(ii) %f Judge ma/es error, you (ust ob'ect no matter how much the 'udge may not li/e it (iii) 5ederal Judge may comment on the evidence Quercia v. U.S.; Hickory v. U.S. so long as it does not interfere with fact2finding function of trier of fact 8) *he 'ury does have the ability and power to question witnesses, but this creates a practical problem and the 'ury is rarely told that they have this power - U.S. v. Richardson; U.S. v. Feinber E) Determining Admissibility of Evidence 1) +ourt not bound by Rules of Evidence, e1cept as to matters of privilege - Rules 7?>8a9 ; 77?78d9879 2) %n determining whether: a9 a person is qualified to be a witness. b9 a privilege e1ists. and/or c9 a piece of evidence is admissible, court is governed only by the rules of privilege - !our"aily v. U.S. 3) Proponent must show by a preponderance of the evidence that the evidence supports the introduction of the evidence 4) Relevancy dependent upon fulfillment of a condition 2 Rule 7?>8b9 (a) applies in two situations: (i) 3here evidence is to be admitted sub'ect to being later connected up with evidence which shows its relevance. or (ame test as above (ii) 3hen the occurrence of a fact is necessary to ma/e the evidence relevant (ame test except 'udge must find that a reasonable trier of fact could find the conditional fact by a preponderance of the evidence, before the evidence is presented to the trier of fact for consideration (b) +ircumstances where court required a Rule 7?>8b9 finding: (i) Adoptive Admissions - finding that defendant heard statement which was being imputed to him. U.S. v. #occo; U.S. v. Gill (ii) Absence of Public Records - finding that the event would have occurred in the 'urisdiction from which the records search occurred. U.S. v. $atta% !allesteros (iii) Drug &edgers as (tatements of Party =pponent - finding that sufficient evidence e1isted to lin/ ledgers to defendant, U.S. v. Gill (iv) (imilar Act Evidence - whether the defendant is sufficiently connected to the other act. U.S. v. Herndon, (v) E1istence of past se1ual relationships - Rule>7@ U.S. v. Platero (vi) Admission of party opponent - whether defendant was spea/er, U.S. v. &uni a%Pere' (vii) =ther drug crimes part of charged conspiracy - finding factual connections U.S. v. !altha'ard (viii) =pinion Evidence - showing that opinion relates to admissible data and relates to a fact in the case (ankee Atomic )lec. *o. v. U.S. (ix) (e1ual Discrimination +ases - whether facts showed defendant!s involvement in the conduct of which plaintiff complained evidence very susceptible to emotional responses and reactions by lay persons comprising the 'ury

 +ourts have required competent proof that defendant was involved with related environment prior to introducing evidence to 'ury (x) 0otice of facts - conditioned on proof defendant saw notice - U.S. v. Ansaldi (xi) Rule A?78a9 Document Authentication - +ames ,on *onstruction v. #rustees o- *.. $ort a e Group (xii) E1pert *estimony as to &and Balue - proof it can be and is li/ely to be used for the purpose cited by the e1pert U.S. v. Acres o- ,and (c) 3igmore on relevant facts: (i) the fundamental rule, universally accepted, is that with reference to facts whose relevancy depends upon others, the order of presentation is left to the discretion of the party himself/ sub'ect of course to the general discretion of the trial court in controlling the order of evidence (ii) %n other words, if an evidential fact offered has an apparent connection with the case on the assumption that other facts shall also be proved/ it may be admitted 0o ob'ection, therefore, can be made merely on the ground that the other facts have not yet been evidenced 5) =b'ections (a) *o be able to raise an evidentiary issue on appeal, you (ust preserve the issue with a proper ob'ection - Rule 7?C8a9879 (i) %t must be timely (ii) %t must state the specific ground for the ob'ection (b) %f court e1cludes the evidence based on the ob'ection, must (a*e an offe! of !oof which gives the court information about the evidence - Rule 7?C8a98@9 (i) i e "%f the witness were allowed to testify, he/she would have stated<# (c) =b'ections must be on the record or they never happened (i) 3atch out for tric/y/loyal court reporters (ii) Don!t assume 'ust because it was said that it is on the record (d) +ourt may supplement an offer and its ruling which addresses the character of the evidence or the form in which it was offered - Rule 7?C8b9 (e) *his should all be done outside the hearing of the 'ury - Rule 7?C8c9 (f) +ommon *ypes of =b'ections (i) &eading Duestions - questions that suggest an answer (ii) As/ed and Answered Duestions - questions that have already been as/ed of the witness and answered (iii) +ompound Duestions - questions that actually incorporate two or more questions in a single sentence (iv) Duestions assuming facts not in evidence (v) Argumentative - questions that merely engage in the witness in improper argument (vi) Duestions calling for speculation - as/ for information beyond the witness! personal /nowledge or questions as/ing the witness to provide an admissible opinion (vii) 0on - Responsive Answers - witness! answers don!t answer the question posited (viii) 0arrative Answers - answers e1ceed the scope of the questions put to them

II) CO+,ETENT -ITNESSES A) %f a witness is not competent, then they will not be allowed to go before the trier of fact to present any evidence 1) 0o testimony is allowed 2) 3hile rare that a witness is incompetent, do not ignore this requirement 3) +ompetency rules do not change from civil to criminal cases B) ,nder Rule 6?7, every person is competent to be a witness e1cept as otherwise provided in the rules 1) (o long as the person can testify in some manner, he or she should be allowed 2) 4eing high or addicted to drugs at the time of the incident will not render the witness incompetent 3e want to throw it all out in front of the 'ury and let them sort out the credibility of the witness C) %n civil cases, where state law provides an element of the claim or defense, then state law must be applied to determine competency 1) )issouri +ompetency &aw (a) >A7 ?7? - %nterest of 3itness (i) 0o person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason o- his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility (ii) %n any such suit, proceeding or probate matter, where party or agent is dead or is shown to be incompetent, and the adverse party or his agent testifies with respect thereto, then any relevant statement or statements made by the deceased party or agent or by the incompetent prior to his incompetency, shall not be excluded as hearsay, provided that in trials before a 'ury, the trial 'udge shall first determine by voir dire e1amination out of the hearing of the 'ury that the declarant would have been a competent witness and that his alleged statement or statements would have been admissible in evidence if he were available to testify (b) >A7 ?E? - +onvicts (i) Any person who has been convicted of a crime is a competent witness. (ii) Prior criminal convictions may be proved to affect credibility in a civil or criminal case (iii) Prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his credibility in a criminal case (uch proof may be either by the record or by his own cross2e1amination, upon which he must answer any question relevant to that inquiry, and the party cross2e1amining shall not be concluded by his answer (c) >A7 ?6? - %ncompetent Persons (i) Person mentally incapacitated at time of his or her production for e1amination (ii) +hildren under 7? years who appear incapable of receiving 'ust impressions of the facts presented, provided, however, that e1cept as provided in

subdivision 879 of this section, a child under the age of ten who is alleged to be a victim of an offense pursuant to chapter E6E, E66 or E6F, R()=, shall be considered a competent witness and shall be allowed to testify without qualification in any 'udicial proceeding involving such alleged offense *he trier of fact shall be permitted to determine the weight and credibility to be given to the testimony (iii) Attorneys are incompetent when it comes to client communications or attorney!s advice to client without the client!s consent (iv) any person practicing as a minister of the gospel, priest, rabbi or other person serving in a similar capacity for any organiGed religion, concerning a communication made to him or her in his or her professional capacity as a spiritual advisor, confessor, counselor or comforter (v) physician, chiropractor, psychologist or a dentist, concerning any information acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist or dentist 2) %llinois +ompetency &aws (a) 77E27> 3itness +ompetency (i) Every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter, e1cept as provided in subsection 8b9 (ii) A person is disqualified to be a witness if he or she is: incapable of e1pressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him or her. or incapable of understanding the duty of a witness to tell the truth (iii) A party may move the court prior to a witnessH testimony being received in evidence, requesting that the court ma/e a determination if a witness is competent to testify *he hearing shall be conducted outside the presence of the 'ury and the burden of proof shall be on the moving party (b) F27?7 %nterested 3itnesses (i) 0o person shall be disqualified by reason of his or her interest in the event thereof, as a party or otherwise, or by reason of his or her conviction of any crime. (ii) (uch interest or conviction may be shown for the purpose of affecting the credibility of such witness. and the fact of such conviction may be proven li/e any fact not of record, either by the witness himself or herself or by any other witness cogniGant of such conviction, as impeaching testimony, or by any other competent evidence (c) F2@?7 Dead )an!s Act (i) %f party sues or defends as representative of deceased or person under a legal disability, no adverse party or person directly interested shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which too/ place in the presence of the deceased or person under legal disability, ex%e t in the following instances:

 %f any person testifies on behalf of the representative to any conversation or event with the deceased or person disabled which too/ place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event %f the deposition of the deceased or disabled is admitted in evidence on behalf of the representative, any adverse party or interested person, if otherwise competent, may testify concerning the same matters admitted in evidence any testimony competent under section F2>?7 of this act, is not barred by this section no person shall be barred from testifying as to any fact relating to the heirship of a decedent D) Rule 6?@ limits witnesses to those with personal knowledge of the matter 1) 3itness perceived event through one of the senses 2) E1ception for E1pert 3itnesses - Rule I?C E) ,nder Rule 6?C, 3itness must be able to ta/e, understand, and follow an oath to tell the truth 1) 0eed not be sworn on the 4ible. anything will wor/ so long as it is important F) Reasons to E1clude a 3itness 1) Rule >?C 2 *estimony is merely cumulative, needless, a waste of time or will cause undue delay (a) (tops a parade of witnesses from testifying on the same point (b) (tops witnesses who can add very little to the case (c) (tops witnesses that will require a delay in the case 2) Rule >?C - Probative value of the witness! testimony is substantially outweighed by the danger of unfair pre'udice (a) 0ote: 5A%R PREJ,D%+E %( A&&=3ED (i) *hat!s what trials are all about (ii) Relevant evidence is inherently pre'udicial, but it is only unfair pre'udice, substantially outweighing probative value, which permits e1clusion of relevant matter under Rule >?C %ts ma'or function is limited to e1cluding matter of scant or cumulative probative force (iii) Rule >?C is meant to rela1 iron rule of relevance to permit the trial 'udge to preserve the fairness of the proceedings by e1clusion despite its relevance %t is not designed to permit the court to "even out# matter (b) Definition of "substantial# is up to 'udge!s discretion 3) Rule >?C - *estimony will confuse of mislead the 'ury III) AUT.ENTICATION A) =nce a witness is competent, witness may then "sponsor# either documents or physical evidence 5irst question for witness is to show that the document or ob'ect is genuine 8this is the process of authentication9 1) %f evidence is not authenticated, trier of fact will not get to see or hear about it B) Applies to documents and any other physical ob'ects U.S. v. 1ombro2ski C) Rule A?78a9 - proponent of evidence must first show that it is genuine

1) RELIA/ILIT0 IS NOT AT ISSUE 8at this level9 (a) %t does not matter, for e1ample, if there was ever a contract made if the offeror of the evidence is using it for evidence of notice and not a contract 2) Proponent must lay a foundation sub'ect to Rule 7?>8b9 (a) Judge need only decide that there is sufficient evidence to support a finding of authenticity (b) %t is up to the trier of fact to ma/e the final decision about whether the evidence is authentic D) Rule A?7 lists some methods of authentication used in common situations 1) A?78b9879 - *estimony from a /nowledgeable witness 2) A?78b98@9 - 5or handwriting, a person with familiarity not acquired for purposes of litigation may state whether handwriting is authentic 3) A?78b98C9 - %f specimens have been authenticated, e1pert of trier of fat may ma/e comparisons 4) A?78b98>9 - Appearance, contents, substance, internal patterns or other distinctive characteristics, ta/en in con'unction with circumstances (a) (erial 0umbers (b) Distinctive physical mar/ings (c) &etters, etc with distinctive contents ; circumstances surrounding their discovery, U.S. v. Smith. U.S. v. $uno' 5) A?78b98E9 - Boice %D may be made by anyone familiar with the voice 6) A?78b9869 - *elephone conversations may be authenticated by one participant identifying the participants or by the person receiving the call identifying self or by proving the number called 7) A?78b98I9 - Public records require proof that they are required to be /ept by law and were so filed and /ept in that office 8) A?78b98F9 - Ancient Documents or Data +ompilations 8li/e phone boo/s9 9) A?78b98A9 - Process or system 8e g J2rays, videotape9 requires proof of the process or system and showing that it produces accurate results 10) A?78b987?9 - the +ongress or (upreme +ourt may set rules of authentication E) Rule A?@ spares a party the trouble of formally offering foundational evidence and calling a stream of witnesses 1) Does not ensure automatic admissibility 2) ,nder Rule 7?>8e9, =b'ections can still be raised, 'ust not those based upon lac/ of foundation 3) (ome documents are presumed to be genuine and thus require no authenticating witness (a) A?@879 - Domestic public documents under seal (b) A?@8@9 - domestic Public documents not under seal. but some public official must still certify that the signer of the document has an official capacity and that the signature is that of the official (c) A?@8C9 - 5oreign public documents (d) A?@8>9 - +ertified +opies of public records (e) A?@8E9 - =fficial Publications (f) A?@869 - 0ewspapers and periodicals (g) A?@8I9 - *rade %nscriptions and &abels

(h) A?@8F9 - Ac/nowledged Documents (i) A?@8A9 - +ommercial Paper ; related Documents (j) A?@87?9 - presumptions under acts of +ongress (k) A?@8779 - +ertified Domestic records of regularly conducted activities ( ) A?@87@9 - +ertified foreign records of regularly conducted activities 4) A party may still use Rule A?7 to authenticate 5) As a practical matter, this rule includes any document to which parties stipulate to the authenticity (a) Everybody wants "to get home# so where it!s possible to streamline the process, advocates will (b) +ourt can hold you in contempt if you fail to stipulate, so do so where you can F) Procedures for Authentication 1) *hree *raditional Duestions to As/ a 3itness for Authentication Purposes (a) Do you recogniGe prosecution/plaintiff/defendant!s e1hibit for identification purposesK (b) 3hat is the e1hibit for identification purposesK (c) $ow do you recogniGe itK 2) Real or Documentary evidence can be modified or altered 5ourth Duestion ensures that the evidence has not been changed (a) %s the e1hibit, for identification purposes, in substantially the same condition as it was when you last saw itK 3) 5or representative evidence, inquiry focuses on the accuracy of the evidence, not on the li/elihood of tampering 5ourth Duestion determines that accuracy (a) %s the e1hibit, for identification purposes, a fair and accurate representation of what it depicts as of a particular time and date Lwhen the incident in question occurredKM (b) "Does "t t!ul) and a%%u!atel) de "%t123 4) 3hen evidence is susceptible to changes in its condition between the time the evidence is gathered and the time it is presented in court, fun4"b"l"t) ma/es it susceptible to fraud 5) C'a"n of Custod) - evidence is traced from its source to the courtroom (a) %ntended to show that no custodian of evidence has permitted alteration or tampering that would impugn the evidence!s authenticity (b) An item that is unique, non2fungible or readily identifiable does not require such a foundation (i) 0ote: non2unique can be made unique with initials for e g 6) Voir dire - for e1hibits, are mini cross e1aminations restricted to the question of whether a proper foundation has been laid for admissibility 7) %f evidence is admitted, it is the offering party!s responsibility to request that it be published to the 'ury IV) RELEVANC0 A) Even if a witness is competent and evidence can be authenticated, it must then be shown to be relevant before a court will allow the trier of fact to hear about it Relevance is a fact based determination that the testimony or physical evidence has importance to an issue in the case

1) )ust always as/: "-.AT is the evidence relevant toK# (a) (ingle piece of evidence can give rise to a wide variety of inferences (b) 4ecause there is usually some uncertainty about what may be inferred from particular evidence, relevance is oriented around probabilities 2) Relevant evidence is al2ays pre'udicial to the other side *his "fair# pre'udice is encouraged 3) %t may still be e1cluded if it!s too pre'udicial or if it is confusing, cumulative or wastes time 8Rule >?C9 4) DOES NOT +ATTER I5 CIVIL OR CRI+INAL CASE AT T.IS LEVEL B) Relevant Evidence - ,nder >?7, evidence having the tendency to ma/e the e1istence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, i e anything that moves you a step closer to the truth 1) *wo Elements: (a) Probative - evidence is probative of a fact at issue if it ma/es a fact more or less li/ely (b) 5act of +onsequence - "a fact of consequence to the determination of the act# is a fact helpful to resolving the suit and includes the following: (i) Element of the cause of action, claim, or defense (ii) +redibility of the witnesses (iii) 4ac/ground facts 2) Applies to both witness testimony and e1hibits 3) ,nder Rule >?@, "All relevant evidence is admissible, e1cept as otherwise provided by the +onstitution, +ongress, these rules, or other rules prescribed by the (upreme +ourt pursuant to statutory authority# 4) 4ias is always relevant because it affects the credibility of the witness 5) Rele6an%e "s not affe%ted b) Counte! A!4u(ents# Let t'e 7u!) De%"de t'e Issue C) +onditional Relevance - 3hen the relevance of evidence depends on the e1istence of a fact 1) Rule 7?>8b gives 'udges discretion to conditionally admit evidence so long as the missing lin/ will be "connected up# by proof of the missing fact 2) *his evidence will be admitted by the 'udge if a reasonable 'ury could find by a preponderance of the evidence that the missing fact e1ists 3) Division of 5act25inding 4) Poses type of "competency# requirement, because it demands that evidence have a minimum level of connection to the facts in the case D) Admissibility 1) Evidence that is not relevant is inadmissible - Rule >?@ 2) Even if relevant, may still be inadmissible (a) )ust be admissible pursuant to other rules (i) E g a double2hearsay statement attributing a confession to a defendant would be relevant but not admissible under the hearsay rules (b) Even if admissible under other rules, it may still be e1cluded if: (i) Rule >?C - it is cumulative, needless, confusing, waste of time or will cause undue delay

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(ii) Rule >?C - the probative value is substantially outweighed by the danger of unfair pre'udice Application must be done cautiously and sparingly &ast Resort )eant to rela1 iron rule of relevance to permit court to "even out# the weight of evidence, to mitigate a crime, or to ma/e a contest where there is little or none (iii) 8,nfair pre'udice# - does NOT mean strongly influences the 'ury %t is when there is an "undue tendency to suggest decision on an improper commonality# 0eed for relevant evidence often is considered greater than the potential harm that could result from the admission of such evidence Probability as evidence of guilt in a criminal case (a) (tatistical evidence is routinely admitted (b) $owever, evidence offered to show the unlikelihood that another person with the same characteristics as the defendant committed the crime charged is inadmissible (i) "$ow li/ely is it that a man of 1 traits at 1 time driving 1 car did this crimeK# is not allowed Evidence of E1cessive Biolence (a) %mproper to offer evidence that will so blind a 'ury as to the facts of the case that the 'ury ma/es an emotional determination (b) +annot be so violent in appearance that 'ury will lost their lunch (cientific Evidence (a) E1perimental scientific evidence may be unfairly pre'udicial if it is not "substantially similar# to what it intends to create Nenerally covered under Rule I?@ - E1pert *estimony See in-ra (imilar Acts - Nenerally e1cluded but See in-ra

V) .EARSA0 A) $earsay - a statement of a person made at any time other than while testifying which you are offering to prove the truth of the contents of the statement - however, certain things which are hearsay by this definition, are still e1cluded from being hearsay 1) Rule F?78c9 2) %n other words, it is something that was said outside of the courtroom which is now being offered in evidence to prove some fact (a) Even depositions ta/en in a courtroom no matter how court2li/e are "out of the courtroom# (b) Even transcripts of prior trials since it is not the %u!!ent trial (c) Even if at trial but during recess Recess is not "at trial# 3) Assertion 4ased Definition (a) %f there is an assertion, it does not matter if the person is ta/ing the stand (b) *he rationale is that the person has had time to thin/ it over and possibly reanalyGe their own perceptions (c) 3e would want the ability to cross2e1amine those assertions at the time they were made (d) %f the statement is not being offered to prove the truth of the matter asserted, it is not hearsay and may be admitted - U.S. v. ,ookin *loud

(i) $owever, more specific reasons will need to be given 4) (tatement - ,nder RuleF?78a9, an oral or written assertion or nonverbal conduct which is intended to be an assertion 8i e a head nod in response to a question9 (a) 0on2assertive conduct is not hearsay *herefore, if conduct 8or statement9 is not meant as an assertion, it is hearsay (b) %ntent to be an assertion at the time the act occurred is vital (i) "ouch# constitutes a non2assertive verbal refle1 reaction admissible to prove pain, but not equivalent of purposeful assertion (ii) the e1tent that one reacts to a stimulus and others might infer something is not at issue %ntent is what matters, and if there is no intent to ma/e an assertion then it!s not an assertion (c) U.S. v. &enni - person calls boo/ie!s office and wants to place his bet *he assertion is not that bets may be placed over the phone but that the person wants to ma/e a bet 5) Declarant - ,nder Rule F?78b9, person who ma/es a statement *herefore, it!s not possible for there to be a hearsay declarant without a hearsay statement 6) ,nder Rule F?@, hearsay is not admissible e1cept as provided in: (a) *he Rules of Evidence 8e1ceptions9 (b) Rules created by the (upreme +ourt 8with the authority of +ongress9 (c) An Act of +ongress (d) Due Process and the +onfrontation +lause (i) Admission of out2of2court statement did not violate confrontation clause, because witness!s presence at trial assured defendant full and effective cross e1amination *ali-ornia v. Green (ii) +lause does not necessarily bar hearsay that prosecutors offered pursuant to non2firmly rooted hearsay e1ceptions 3hio v. Roberts B) (tatements that w"ll 9ual"f) as not being "offered to prove the truth of the matter asserted# and t'us be ad("tted 1) A statement which is used to explain the conduct of the person after hearing the statement - U.S. v. $alik 2) A statement which is, in reality, a misrepresentation - U.S. v. Feldman 3) A statement which is a false exculpatory statement - U.S . v. *osta (a) 3itness /nows that he or she is in trouble and will say anything to avoid getting into trouble (b) *he truth of the statement is not at issue 4) A statement which proves that a person was given notice of a fact or condition 5) A statement offered to prove good or bad faith - U.S. v. Harris C) 3ho can be source of hearsayK 1) +an be the same person - if a witness testifies about statements he or she made at some earlier time before their testimony, this is hearsay 2) +anNOT be a party opponent, despite the language of Rule F?78d98@9 3) +o2conspirators (a) Any co2conspirator spea/s for the entire conspiracy, even if added on the last day (b) Proof of "+oncert of Action# is uncharged conspiracy

D) Rationale: %f it is hearsay, it is not admissible because it is not reliable and it denies the other party the right to cross e1amine the declarant %n our system of 'ustice, cross e1amination is held to be the engine by which truth will be found 1) Rule F?6 2 when a hearsay statement is admitted into evidence the credibility of declarant of the statement may be attac/ed as if the declarant had testified 2) Any evidence which could have been used had the declarant testified may be used and the declarant need not be first given the chance to e1plain or deny the contradictory evidence 3) $earsay Dangers - factors that cross2e1aminers are not unable to probe when hearsay substitutes for in2court testimony 8R=*+9 (a) Re8memory9 - how well did the declarant recall those events at the time the hearsay statement was madeK (b) =bserve/Perception - did the declarant have an adequate opportunity to observe the events to which the hearsay statement refersK (c) *ruth/(incerity - does the hearsay declarant!s out2of2court statement actually reflect the declarant!s beliefK (d) +ommunication Difficulties - how accurately does the declarant!s choice of words describe the eventsK E) Rule 1:;(a) Analysis 1) Rules of Evidence do not apply to foundat"onal 9uest"on"n4 2) )ay court rely solely on hearsay to determine if hearsay is admissibleK (a) *he committee says yes, but case law and courts are more cautious 3) Rule F?E states that hearsay contained within hearsay is admissible if each part of the hearsay is admissible under the rules F) Rule <:1(d)(1) -if the declarant testifies and is subject to cross-examination then the follow"n4 a!e not 'ea!sa) and may be admitted into evidence: 1) A statement which is inconsistent with the declarant!s trial testimony and which was given under oath sub'ect to the penalty of per'ury 8case law9 %nconsistent testimony includes: (a) %ncomplete answers to questions (b) +ontrived )emory &oss (c) (ilence (d) +hanges in position (e) (tandard of )inimal %nconsistency - case law has trended such that almost any divergence will suffice to permit use of prior statement %t is enough if the proffered LstatementM ta/en as a whole, either by what it says or by 2hat it omits to say/ affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict 2) %f not made under oath, the statement may only be used to "( ea%' the witness and may not be introduced as substantial evidence 3) A statement consistent with the declarant!s trial testimony and is offered to rebut an e1pressed or implied assertion that the trial testimony was either recently fabricated or was produced by improper motive or influence (a) statement must have been made before the motive to fabricate arose Oou may not use statements to bolster a witness +an onl) use to rebut the assertion of fabrication

(i) )otive to fabricate might be notice of pending litigation or trials (ii) (ubsequent or immediate reactions to an event generally allowed (b) (tatement need not have been made before the impeaching evidence came into e1istence (c) (tatement must have been made by the witness and not some third party (d) Practice *ip: 3hen accusing the person of lies, don!t say "you made up everything# otherwise, everything can come into rebut the allegation 4) +ross2E1amination which leads to the use of Rule F?78d98798b9: (a) %mpeachment with a plea argument (b) Duestioning the truthfulness of a victim!s se1ual assault (c) Duestioning whether a witness had told police about the defendant in an interview (d) Duestioning whether prior grand 'ury testimony differed from trial testimony 5) A statement in which the declarant identified a person after having seen them 8police line2up9 (a) U.S. v. 32ens - identified prior to court but beating did not allow for long2term memory 6) /UT a defendant generally cannot introduce a self2serving out2of2court statement he made which is in line with his not guilty plea !) ,a!t) Ad("ss"ons= Rule <:1(d)(>) - sets forth rules when statements by a partyopponent are not 'ea!sa)? %n all cases, it must be offered against the party who: 1) (traight Admission 2 Personally made the statement 8Rule F?78d98@98a99 2) Representative Admission 2)ade the statement in a representative capacity 8Rule F?78d98@98a99 3) Adopted Admission 2 $as manifested an adoption or belief in the truth of the statement 8Rule F?78d98@98b99 (a) A party may adopt a document by using it in a way that shows the party accepts the statements in the document as true (i) %ssues of pro1imity in time and space 4) AuthoriGed Admission 2 AuthoriGed another to ma/e a statement concerning the sub'ect 8Rule F?78d98@98c99 5) Employee Admission 2 $ad an agent or servant who made the statement concerning a matter within the scope of the agency or employment and made while that relationship e1isted 8Rule F?78d98@98d99 (a) (tatements by a party!s attorney (b) (tatements by a party!s e1pert 6) +o2+onspirator Admission 2 +onspirator made the statement during the course of and in furtherance of the conspiracy - 8Rule F?78d98@98e99 7) 0=*E: Even though contents of a statement may be considered to determine whether the statement falls within one of the above categories, it is not sufficient, standing alone, to then allow those statements to be admitted 8) T'!ee /as"% ,!"n%" les to A6o"d Confus"on (a) A party cannot offer the party!s own out2of2court statement into evidence as a party admission 5or a statement to be admitted into evidence as a party admission, it must be the adversary who offers a party!s statement into evidence against the party (b) Any statement can qualify as a party admission, regardless of whether or not it

confesses wrongdoing or was in any way against the party!s interests at the time it was made (i) 3hen parties believe that they can advance their legal claims by offering their adversaries! statements into evidence, the party e1emptions allow them to do so (c) a party!s out of court statement can qualify as an admission regardless of when it was made Admissibility does not depend on a declarant being a party to a lawsuit at the time a statement is made Anything that any of us has ever said is a potential tic/ing time bomb party admission ") Rule F?78d98@9 is labeled "admissions by a party opponent# but it applies to any statement, regardless of whether the statement is an admission 1) Does not have to be admitting anything, can have the most neutral effect and be allowed 2) in a civil case, if it is the statement of a party2opponent, need only show that the party opponent made the statement him or herself Rule F?78d98@98a9 3) in a criminal case, if it is the statement of a defendant, there are additional hurdles: (a) statement was made voluntarily (b) if statement was made while in custody, then the statement must have been made after waiver of )iranda rights (i) Judge must rule on this before it goes to the trier of fact (ii) *he trier of fact may later consider the voluntary nature of the statements in deciding the weight to give the statement #) +ourts have also stated that a statement which is an operative fact or a verbal act is not a hearsay statement (ome statements are facts which must be proven to show a material fact in the case *hese statements are not hearsay 1) ). . a document that both parties have agreed upon that describes both parties! legal rights 2) =ther e1amples that are not hearsay 8defined by case law9 (a) 3estern ,nion money order forms (b) +ontracts and slander 8so long as the contract as accepted i e signed9 (c) 5D%+ insurance certificate (d) Demands for a refund (e) (tate Department!s official statements about a treaty allowing enforcement of ,( laws (f) +ast ballots (g) +hec/s (h) (tatements introduced to later show they are false (i) *estimony that e1plains how an investigation developed when relevant and not too pre'udicialPespecially if the testimony goes to noncontroversial matters or rebuts suggestions by the other side 3) 3hat constitutes a verbal actK +onsider U.S. v. Stover (a) Novernment wanted to introduce statements of &ama to undercover agent through whom she supplied drugs to the defendants +ourt found &ama not co2 conspirator 3ere statements properly admittedK (b) According to the Advisory +ommittee, a 6e!bal a%t is a statement that affects the legal rights of the parties (uch rights are limited to statements that have

independent legal significance, such as contractual offers or inter vivo gifts (c) 0egotiations with agent does not fall within that definition 4) +areful, though may be non2assertive and thus might be admitted, the action/statement may not be relevant and thus still properly e1cluded $) 5ive (tep $earsay )atri1 1) Does evidence constitute an out2of2court statementK 2) %f so, for what purpose does the offering party offer the out2of2court statementK 3) %f the offering party offers an out2of2court statement for non2hearsay purposes 8for a purpose that does not depend on the statements accuracy9, is that purpose relevant and if so, is its probative value substantially outweighed by the ris/ of unfair pre'udice or the other factors set forth in rule >?CK 4) %f the offering party offers an out2of2court statement for its truth, can the party satisfy the foundational requirements of any of the numerous e1ceptions or e1emptions to the hearsay ruleK 5) Even if an out2of2court statement is admissible for the purposes of the hearsay rule, does the +onfrontation clause require its e1clusion 8necessary only when prosecutors offer hearsay statements in evidence against criminal defendants9K %) rawford v! "ashington - Admissibility turns on whether hearsay assertions are testimonial 1) *estimonial statements can be admitted against a criminal defendant only if the defendant has had a previous opportunity to cross2e1amine the declarant 2) (tatements are non2testimonial when made in the course of the police interrogation under circumstances ob'ectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency 3) (tatements are testimonial when the circumstances ob'ectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution 4) 3hen formal pretrial questioning is feasible and the importance of the case and the feared unavailability of the witness at trial combine to outweigh time and e1pense, depositions are one way that prosecutors can satisfy *ra2-ord &) Davis v! "ashington - 3hen are hearsay assertions testimonial 1) a A77 call, and at least the initial interrogation conducted in connection with the call, is ordinarily not designed primarily to "establish or prove# some past fact but to describe current circumstances requiring police assistance 2) the caller was not acting as a witness, no witness goes into court to proclaim an emergency and see/ help 3) *his is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot evolve into testimonial statements (a) After the operator gained the information needed to address the e1igency, the emergency ended (b) *hen on, statements were testimonial VI) .EARSA0 E@CE,TIONS UNDER RULE <:A A) E1ceptions are based on circumstantial probability of reliability %n other words, there is reason to believe that it is probable that the hearsay is reliable enough to do away with cross e1amination

B) C) D)

E)

F)

1) T.ESE ARE STILL .EARSA0 STATE+ENTS T.OUB. 2) %t also does not (atte! "f 'u(an o! not that ma/es statement Rule >?C - pre'udicial, undue delay, confusion, etc still in play %t!s always in play Rule F?C E1ceptions do not depend on the availability of the declarant 1) +an use e1ceptions whether witness is on the stand or they are not available 2) ,nli/e Rule F?7 #xemptions that require presence of declarant $istorical Rationale that it is more probable than not that a statement is truthful 1) 3hen you are shoc/ed, it is unli/ely that you ta/e the time to thin/ up a lie and instead you blurt out the truth 2) 3hen you believe you are about to die, you will not have a lie be the last words 3) 3hen you are creating a record for a business, you typically want those records to be accurate Proof of Actual ProbabilityK 1) 3e do not condition admissibility of the statement on showing that the belief is true in the case of the statement %t is !esu(ed 2) 4y showing the supposition is false, you may be able to /eep a statement out under >?C )ost +ommonly ,sed F?C E1ceptions 1) RE)E)4ER: (tatements of party opponent is not e1ception because it!s NOT hearsay 2) 5irst 5our - Ex"st"n4 +ental States (a) F?C879 - present sense impression (i) an event or condition occurred and the declarant observed and reacted (ii) declarant made statement while perceiving the event or immediately thereafter (iii) cannot mi1 statements (iv) 4est 8but not necessary9 to show statement made in presence of other (v) 4est 8but not necessary9 to corroborate statement with other evidence (b) F?C8@9 - e1cited utterance (i) 4roader than present sense impression (ii) An e1citing or startling event occurred and the declarant observed and witnesses it (iii) (tatement was made in response or because of event (iv) &onger time period allowed, so long as you can prove "under stress# caused by event *he more shoc/ing the event, the longer time generally e1tended (v) 4est if can prove made in front of others and corroborated 8if declarant is not identified, courts will loo/ towards corroboration9 (vi) Declarant may participate in the event (c) F?C8C9 - e1isting mental, emotional or physical condition (i) (tatements which disclosed declarant!s then e1isting state of mind, emotion, or physical condition %ntent, plan, motive, mental feelings, pain, and/or bodily health (ii) (tatement was made spontaneously 8not mandated by rule, but the courts seem to require it9 (iii) )ay be used to show the state of the mind of the defendant, victim or other party

(iv) )ay be used to show intent for future conduct, but it may not be applied retroactively 2 Hillmon (v) )ay be used to show past conduct, with the e1ception of declarant!s will (vi) )ay not use a statement of memory or belief to prove the fact remembered or believed (d) F?C8>9 - statements for the purpose of medical diagnosis or treatment (i) &ogic: no one lies if they need medical treatment (ii) (tatements must be made to get either a diagnosis or treatment (iii) (tatement may describe past medical history, but must relate to a present diagnosis or treatment (iv) &imited to statements about symptoms, pains or sensations or the perceived inception or general character of the cause or source, if necessary to the diagnosis or treatment (v) 4ecause a statement for diagnosis is admissible, a patient!s statement to his own e1pert witness, in preparation for trial, is admissible despite the fact that one has every reason to lie at that point (vi) (tatements cannot include conclusions about fault (vii) Practically spea/ing: if doctors state that it was necessary for diagnosis, it will generally be let in 3) E1ceptions not based on mental states (a) F?C8E9 - recorded recollections (i) =ccurs when witness can!t remember anything but remembers that he had said something in the past (ii) See Refreshing Recollection in-ra (b) F?C869 - records of regularly conducted activity (i) *he "4usiness Records# e1ception (ii) Rationale: 4usinesses need accurate records to function properly (iii) )ust relate to a record of: An act, event, condition, opinion or diagnosis (iv) *he record 8or initial entry9 must have been made at or near the time of the thing recorded &ater production of computer printouts o/ if the original data meets the conditions set forth (v) Record must have been made by, or from information received from, a person with /nowledge of the thing recorded (vi) Record must be one which was /ept in the course of regularly conducted business activities =ne time recording does not qualify (vii) Regular business practice to ma/e the record (viii) Betted by a records custodian (ix) 4usiness records can include diaries and records of a criminal enterprise 8ANA%0 don!t confuse statements of party opponent, which are 0=* hearsay9 (x) =ne business record may include the records of another (uch records may be able to come in, if double hearsay is avoided (xi) Records prepared in anticipation of litigation are NOT admissible (c) F?C8I9 - absence of entry in records /ept in accordance with Rule F?C869 (i) %f the record should be in the files of an entity, and it is not, it may be used as proof that it never e1isted

(ii) Avoiding deliberate destruction of documents by parties wanting to use this rule Establish all the factors set forth in F?C869 plus: a diligent search of the records was made 0o such record was found (d) F?C8F9 - public records and reports (i) *hin/ of as "business records# e1cept applies to the government (ii) Record must be a record, report, statement, or data compilation in any form (iii) Record must be from a public office or agency (iv) Record must set forth Activities of the office or agency 8a9 )atters observed pursuant to duty imposed by law as to which matters there was a duty to report 8b9 $owever, need not report on data found solely by the agency !oerner v. !ro2n 4illiamson #obacco *hese type of records are not admissible as to either party in a criminal case, unless the information was compiled by law enforcement officers as part of a routine duty, which is not part of a criminal investigation %n civil actions and proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law 8c9 *hese types of records are admissible: Against any party in a civil action Against the government in a criminal case, if they set forth factual findings of an investigation onclusions and opinions based on factual findings are also admissible !eech Aircra-t *orp. 5. Rainey (v) Pursuant to Rule A?@, these records will almost always be self2authenticating (e) F?C8A9 - records of vital statistics (i) (ubset of F?C8F9, deals with records /ept of births, marriages, deaths, etc (ii) )ust show that the report of these vital statistics: E1ists in some form 3as made to a public office 3as made pursuant to a requirement of law (f) F?C87?9 - absence of public record or entry (i) (imilar to F?C8I9 - same idea and same proof required (ii) U.S. v. Hale. - statement that the national firearms transfer record does not show a registration properly admitted (iii) U.S. v. Ur6hart - this is still good law post *ra2-ord VII) .EARSA0 E@CE,TIONS UNDER RULE <:; & <:C A) Rule F?> - (ust !o6e de%la!ant "s una6a"lable 1) ,nli/e F?C where it does not matter 2) *his does not mean that declarant be dead, merely that declarant is not available after a best efforts attempt to obtain declarant!s testimony (a) 4urden of Proof is Preponderance of the evidence (b) %t is a 7?>8a9 hearing that must be on the record

3) *his e1ception does not apply if the proponent of the hearsay is the one that procured the unavailability of the witness B) *o be unavailable: 1) Dead 2) Asserting a valid privilege (a) )ere assertion of party privilege is not enough to render unavailable (b) )ore than 'ust Eth amendment (i) *he assertion of the Eth must be a valid assertion of the Eth (c) Judge must rule that the assertion is valid 3) =utside the court!s 'urisdiction 8called to military, for e1ample9 4) AttemptS to obtain witness have failed 5) 3itness has disappeared 8and the proponent did not cause it9 (a) Sub oena t'e w"tness 6) Refuses to testify, even if held in contempt of court (a) (till requires bringing the witness in and having the 'udge rule that the witness is being held in contempt of court 7) 3itness has a valid lac/ of memory (a) 3itness with lac/ of memory "s a6a"lable for F?7 purposes, but NOT F?> (b) &ac/ of memory to what witness said after event is insufficient when witness did not remember facts of the crime - U.S. v. Uribe 8) +annot testify because of physical or mental reasons C) Rule <:; Ex%e t"ons: 1) F?>8b9879 5ormer *estimony (a) *estimony given by the declarant at an earlier hearing under oath (b) E g : testimony from detention hearing, depositions, former testimony from another trial (c) *he Party against whom the testimony is offered 8or in a civil proceeding a predecessor in interest9 (ust 'a6e 'ad= (i) *he opportunity to develop the testimony of the declarant in direct, cross, or redirect 8all that is required is opportunity, there is no reason to bar admission if the opportunity was not ta/en full advantage of9 (ii) A similar motive to develop the testimony of the declarant in direct, cross or redirect 8newly discovered impeachment does not bar use of prior testimony9 (iii) %n civil cases, grand 'ury transcripts will generally not meet this test for lac/ of ability to cross2e1amine 8because they are secret9 (iv) %n +riminal +ases may be admissible against government, if court finds that government had same motive to develop the testimony (v) a predecessor in interest - very broad interpretation, not 'ust privity with prior party (d) Every element (ust be satisfied 2) F?>8b98@9 (tatement ,nder 4elief of %mpending Death (a) (tatement made by declarant who has a reasonable belief that death is imminent (b) (tatement concerns the cause or circumstances of what the declarant believed to be impending death (c) (tatement is offered in the 'o("%"de prosecution related to the declarant!s death or in a civil action proceeding

(d) Declarant need not have actually died but must still be unavailable (e) (tatement must contain first2hand /nowledge of the declarant 3) F?>8b98C9 (tatement Against %nterest (a) (tatement of the declarant which, at the time it is made: (i) (ub'ects him to civil or criminal liability (ii) %s contrary to the declarant!s pecuniary or proprietary interests (iii) Renders invalid a claim of the declarant against another (b) a reasonable person in the declarant!s position would not have made the statement unless it were true (c) if offered by a defendant to show that another has committed the crime, the statement (ust 'a6e %o!!obo!at"n4 %"!%u(stan%es which clearly indicate the trustworthiness of the statement (i) /UT it may not be hearsay2 it could be "statement of adverse party# (ii) Protects against government attempts to use statements to inculpate defendants (d) +ircumstances include whether: (i) the declarant was e1posing himself to criminal liability (ii) the declarant!s motive and whether he had any reason to lie (iii) whether the declarant repeated the statement (iv) to whom the statement was made (v) the relationship between the declarant and the accused. and (vi) the nature and strength of independent evidence relevant to the conduct before the court U.S. v. !umpass (e) where only part of the statement inculpates the declarant, only that portion may be admitted (f) statement need not be a confession so long as it inculpates the declarant (g) Bruton v! %!&! 7 introducing the confession of a co2defendant (i) =ne defendant!s confession that interloc/s the other defendant!s does not ma/e them admissible even if they are mirror images (ii) =ne does not have a motive to tell the truth if it goes against someone else (h) *hese types of statements are NOT firmly rooted e1ceptions to hearsay rule, so the confrontation clause may still come into play (i) (tatements which are sufficiently trustworthy may be used, but (ii) onsider rawford 4) F?>8b98>9 (tatement of Personal or 5amily $istory (a) Declarant!s statement about his or her own: (i) 4irth, Adoption, )arriage, divorce, legitimacy, relationship by blood (ii) =ther fact or personal or family history (b) Declarant!s statement about these factors as to another with whom they were related or had a close relationship (c) %f the declarant is spea/ing of himself, there are no foundational requirements (d) %f the declarant is spea/ing of another, must show relationship between declarant and other person and that when the statement was made the declarant had no motive to lie D) Rule <:C Ex%e t"ons 1) Rule F?I - when you must absolutely get a piece of evidence in front of the trier of

fact and it does not fit within any of the categories of hearsay e1ceptions (a) Rare that 'udges rule for this 2) Proponent must (a) show that evidence is not covered by F?C and F?> e1ceptions (b) offer evidence as evidence of a material fact (c) show that evidence offered is more probative than any other evidence the proponent can obtain (d) show that the general purpose of the rules and the interests of 'ustice will be best served by the evidence!s admission (e) show, by a totality of the circumstances, that the evidence has equivalent circumstantial guarantees of trustworthiness as found in any of the Rule F?C or F?> e1ceptions (f) 4"6e not"%e of intent to use the evidence under F?I and must disclose the name and address of the declarant (i) notice must be given sufficiently long before the trial to allow the other party a fair opportunity to respond (g) e1ample of evidence allowed: (i) des/ calendars, diaries (ii) deceased co2defendant!s statements to his lawyer (iii) statement of co2defendant at time of arrest (iv) statement of victim to her mother (v) trial testimony VIII) .EARSA0 UNDER RA"'(RD A) 4asis of hearsay rules is to maintain the right to cross2e1amine a witness 1) #very hearsay e1ception violates this right B) *ra2-ord applies onl) "n %!"("nal %ases where the Conf!ontat"on clause is implicated C) E1isting E1ceptions to hearsay rules only apply if statement is test"(on"al in nature 1) (tatements that were made under the circumstances which would lead an ob'ective witness reasonably to believe that the statement would be available for use at a later trial 2) Practical Difficulty in that don!t /now it until it has been 'udged to be so 3) (tatements may include affidavits, depositions, prior testimony, custodial interrogations, or confessionsP"we!ll /now it when we see it# D) %f the testimony involves non2testimonial hearsay, then rules of evidence govern 8they apply even if non2testimonial9 E) Davis D when statements are testimonial and non2testimonial in A77 call 1) %f police are not in investigative stage and are still "in response,# then any statements made are non2testimonial 2) =nce situation is normaliGed and peace is being /ept, then statements may become testimonial 3) )oves away from *ra2-ord!s "would a reasonable person believe that statements made would be used in litigation# to "what are the police doing# F) +ourts of Appeals have not been very welcoming 1) (tatements made to friends or acquaintances not covered 2) (tatements made to undercover informants not covered if declarant does not /now

the person is an informant 3) +o2conspirator!s statements not covered if meet rule F?78d98@98e9Pof course, they were never hearsay to begin with 4) *ra2-ord does not apply in sentencing hearings or supervised release hearings 5) +ustomer complaints to company are not covered 6) *estimony about conduct which does not mention statements made by the informant are not covered 7) Defendant!s own statements to the police are not covered !) +hanged "procured unavailability# to require "ntent to ma/e unavailable 1) unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying %n cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying2as in the typical murder case involving accusatorial statements by the victim2the testimony was e1cluded unless it was confronted or fell within the dying2declaration e1ception ") $armless error analysis applies IX) ,RESU+,TIONS A) 4urdens of Proof 1) Presumptions do not shift the burden of proof to the other side, but may be enough to ma/e prima facie case (a) +reates a burden to go forward (b) =ther side may have to present evidence attac/ing the presumption, if they don!t, then trier of fact must consider the presumption 2) =ur system gives burden of proof to one asserting the claim or affirmative defense 3) presumption %annot shift the burden of proof to a criminal defendant B) )ore li/ely to be used in civil cases because of how they may influence the "beyond a reasonable doubt# standard in a criminal case C) Rule A:1 1) Presumption against a party imposes a duty to go forward with evidence to rebut or meet the presumption 2) Deals with !ebuttable presumptions 8no rule on conclusory presumptions, those are only addressed in case law9 3) Applies only in civil cases and proceedings not otherwise provided for by an Act of +ongress or the Rules 4) Does not shift the burden of proof 5) Does not define the term presumption 6) Does NOT deal with "nfe!en%es (a) %nferences are lin/s between two pieces of evidence which the trier of fact is permitted, but is not required, to ma/e An inference of /nowledge that property is stolen arises from possession of that property soon after the theft (b) =nly practical difference: Presumptions get you a 'ury instruction, inferences do not D) ,niform Rules of Evidence C?7 defines presumption as: 1) Qbasic fact! means a fact or group of facts that give rise to a presumption 2) 8inconsistent presumption# means that the presumed fact of one presumption is

inconsistent with the presumed fact of another presumption 3) "presumed fact# means a fact that is assumed upon the finding of a basic fact 4) "presumption# means that when a basic fact is found to e1ist, the presumed fact is assumed to e1ist until the none1istence of the presumed fact is determined as provided in Rules C?@ and C?C E) E1amples 1) Proof that a letter was mailed raises presumption that it was delivered 2) Person missing for I years is presumed dead 3) Proof that a lawyer prepared a will which names that lawyer as beneficiary raises a presumption of undue influence 4) A first marriage is presumed to continue 5) Possession of real estate raises presumption of ownership 6) +ompetent person is presumed to continue to be competent F) =vercoming Presumptions 1) %f the other party offers evidence against the presumption sufficient to overcome the presumption, then the presumption has no weight and ceases to e1ist *hen to 'ury 2) Presumption of innocence is a constitutional right not covered in the federal rules of evidence %t is a sufficient presumption to allow the trier of fact to acquit a defendant unless the government can produce enough evidence to overcome the presumption 3) Neneral Rule that evidence that an adversary fails to contest does not automatically satisfy the burden of persuasion is sub'ect to two common "e1ceptions# (a) 3hen the burdened party!s uncontested evidence gives rise to a presumption, 'udge or 'ury must find that the presumed fact is true (i) %f the presumed fact is itself a material fact, uncontested evidence automatically satisfies the burden of persuasion (ii) =utcome is controlled (b) %f the burdened party!s evidence in a civil case is e1ceedingly compelling and the adversary fails to offer contrary evidence rationally worthy of belief, a 'udge may conclude as a matter of law burdened party has satisfied the burden of persuasion (i) Rare, because most 'udges ta/e parties! rights to 'ury trial very seriously (ii) %mpossible in criminal cases G) Rule A:> 1) states that if a presumption goes to a fact which is an essential element of the charge or a defense to the charge and where state law provides the rule of decision, the effect of the presumption will be determined by the law of that state (a) Reverse may apply if the state court must rely on federal law 2) Applies only in civil cases ") *wo *ypes of Presumptions in +riminal conte1t 1) Permissive Presumptions (a) allows2but does not require2the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any /ind on the defendant (i) basic fact may constitute prima facie evidence of the elemental fact (b) Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof) it affects the application of the "beyond a reasonable doubt# standard only if there is no

rational way the trier could ma/e the connection permitted by the inference (i) only in that situation is there any ris/ that an e1planation of the permissible inference to a 'ury, or its use by a 'ury, has caused the presumptively rational factfinder to ma/e an erroneous factual determination (c) trial court may allow it to go to the trier of fact if the basic facts are proven under a preponderance standard 2) )andatory Presumptions (a) may affect not only the strength of the "no reasonable doubt# burden but also the placement of that burden* it tells the trier that he or they must find the elemental fact upon proof of the basic fact) at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts (i) +ourt has generally e1amined the presumption on its face to determine the e1tent to which the basic and elemental facts coincide (b) +o the extent that the trier of fact is forced to abide by the presumption) and may not reject it based on an independent evaluation of the particular facts presented by the &tate) the analysis of the presumption,s constitutional validity is logically divorced from those facts and based on the presumption,s accuracy in the run of cases! (i) +ourt has held it irrelevant in analyGing a mandatory presumption, but not in analyGing a purely permissive one, that there is ample evidence in the record other than the presumption to support a conviction (c) +andato!) ,!esu( t"ons "n C!"("nal Case2 (i) +onclusive )andatory Presumption removes the presumed element from the case once the state has proved the predicate facts giving rise to the presumption it violates the presumption of innocence and will not be allowed E1amples: law presumes that a person intends the ordinary consequences of his voluntary acts law presumes that every person intends the necessary and natural consequences of his acts %ntent is presumed from the actions of the defendant (ii) Rebuttable )andatory Presumption Do not remove the presumed element from the case but does require the trier of fact to find the presumed element unless the defendant persuades the trier of fact that such a finding is unwarranted, however it cannot shift the burden of proof on the element to the defendant Nive the defendant the burden of persuasion 8or production9 but not the burden of proof %t does not even require a preponderance of the evidence to overcome the presumption )ay still fail if the 'ury instructions would allow a reasonable 'ury to believe that the defendant had a burden of giving evidence or if it will not actually allow the trier of fact to re'ect the presumption 8so be careful9 %f there is any sort of necessity to it such that the 'ury cannot ignore it in a

criminal case, then it is unlawful I) In a %!"("nal %ase# alwa)s !e(e(be! t'at t'e bu!den of !oof "s 8be)ond a !easonable doubt3 and t'e!efo!e# t'e $u!) (ust de%"de on t'e ele(ents? If )ouE!e 4o"n4 to "nst!u%t on a !esu( t"on# 7UR0 +UST /E INSTRUCTED T.AT T.E0 NEED NOT ACCE,T T.E ,RESU+,TION X) 7UDICIAL NOTICE A) Noverned by Rule @?7 - but rarely used in trial 1) Applies onl) to Ad'udicative 5acts 8no rule governs legislative facts9 2) @?78c9 - may ta/e 'udicial notice without request from party 3) @?78d9 - court (ust ta/e 'udicial notice on request of party and if there is sufficient evidence to support the request 4) @?78e9 2 requires the opposing party be given a chance to be heard, and be given time to prepare to respond Don-t wait until mid-trial 5) @?78g9 - court is required to instruct 'ury about the fact8s9 'udicially noticed (a) +ivil +ase - Jury is instructed to accept fact as conclusive (b) +riminal +ase 2 'ury must be told they are not required to accept the 'udicially noticed fact as proven %t is a constitutional error to fail to give the instruction B) *wo *ypes of 5acts 1) Ad'udicative 5acts - facts developed in the case at trial 2) &egislative 5acts - facts that do not change from case to case, they are universal C) 5acts that may be sub'ect to Judicial 0otice 1) Ad'udicative 5acts 2) @?78b9 - facts sub'ect to 'udicial notice %annot be sub'ect to reasonable dispute (a) 5act is generally /nown within the territorial 'urisdiction of the court (b) 5act is capable of accurate verification by going to sources whose accuracy cannot reasonably be questioned 3) 7ud"%"al not"%e +A0 NOT be based on t'e *nowled4e of t'e $ud4e 4) E1amples: (a) Neographic facts, published compilations 8phoneboo/s9, statistical facts 8surveys or insurance tables9, public records, authoritative treatises (b) (ocial (ecurity +hec/s are sent by mailK - sub'ect to change over time (c) 5ederal officers do not patrol the streets - U.S. v. *had2ick (d) +ertain time of day is daytime somewhere - U.S. v. 4ilson (e) +ontraband is smuggled in prisons - $athis v. Superior *ourt (f) (outhwestern 4ell engages in interstate commerce - U.S. v. 1eckhard (i) *wo ways to ma/e federal crime: *a1 or +ommerce (g) 0ew Oor/ has no manufacturer of firearms - U.S. v. Ramire' (h) Dietary laws are important to orthodo1 Jews - U.S. v. 8ahane D) =nce a fact has been 'udicially noticed, no more evidence should be received on that point, but Garland allows contest of 'udicially noticed fact in criminal cases 1) +are should be ta/en in as/ing a court to ta/e 'udicial notice of any essential element in a criminal case as this may be a constitutional violation as it removes the beyond a reasonable doubt finding from the trier of fact E) /otto( L"ne= 3hen you spea/ of universal truths, they must be universally /nown

XI) RE5RES.INB T.E -ITNESSE RECOLLECTIONS A) 3hen a witness forgets testimony, you %annot as/ for a continuance B) %f witness has forgotten and believes something might refresh their recollection, then you may show it 1) Oou can show them anything because it won!t be admitted into evidence (a) %t does not even have to be accurate items (b) 0eed not have been created at the time of the event or created by the witness 2) $owever, any form of writing which is used to refresh, +UST be given to opposing counsel A.EAD of time pursuant to Rule 67@ (a) Niven writing may be limited to sub'ect matter of the refreshed testimony (b) =pposing party has !"4't to %!ossFexa("ne refreshed witness based upon the ob'ect used to refresh the memory and may introduce evidence of portions which impeach the witness (c) &imiting instruction should be instructed pursuant to Rule 7?E C) Rule 67@ re.uires disclosure of any /statement0 of a witness after the witness has testified for the government in a criminal case 1) Applies whether witness!s testimony was refreshed in court or in preparation for court 2) %f witness reviewed the thing, but it did not refresh the recollection, then Rule 67@ does NOT require disclosure 3) 5ailure to +omply can result in mistrial 4) A &awyer!s 3or/ Product Privilege may be waived if it is used to refresh the witness!s testimony in court D) ,!o%edu!e fo! Ref!es'"n4 +e(o!) 1) Establ"s' t'e w"tness 'as no !esent (e(o!) of t'e fa%t (a) %ncorrect memory is not a lac/ of memory (b) 3rong facts are not a lac/ of memory 8have to impeach witness9 (c) )ust show NO memory 2) Establ"s' t'at t'e w"tness bel"e6es t'at see"n4 so(et'"n4 ("4't !ef!es' t'e"! !e%olle%t"on 3) S'ow t'e( t'e t'"n4# and as* t'e( to !e6"ew "t w"t'out s'a!"n4 "t w"t' t'e t!"e! of fa%t 4) Ta*e t'e t'"n4 f!o( t'e w"tness? (a) %t is error to allow the witness to testify by reading the thing to the trier of fact 5) As* "f t'e w"tnessEs (e(o!) 'as been !ef!es'ed 6) As* t'e w"tness t'e 9uest"on E) %f you cannot refresh the witness!s recollection, you have two options 1) %mpeach your own witness 8this loo/s bad, so best to avoid9 2) %n certain circumstances, hearsay e1ceptions, can read witness!s prior statements to trier of fact Rule F?C8E9 F) Rule <:A(G) - Past Recollection Recorded IS NOT SA+E T.INB as Refreshing Recollection 1) F?C8E9 9 states that a "memorandum or record# about a fact which the witness at one time had /nowledge but which the witness now has "insufficient# memory to testify may be read to the trier of fact as evidence in the case, but may not be admitted unless that request comes from the opposing party

2) *o Dualify, the memorandum or record must: (a) 4e shown to have been made or adopted by the witness when the matter was fresh in the witness!s memory (i) Nenerally, if witness can attest to correctness, statement is let in (b) be shown to correctly reflect the /nowledge then possessed by the witness 3) Does not violate +onfrontation +lause because the witness is still available for cross2 e1amination (a) *hough if the statement is testimonial, *ra2-ord may apply !) ,!o%edu!e to use ,ast Re%olle%t"on Recorded: 1) Establ"s' t'at t'e w"tnessEs (e(o!) CANNOT be !ef!es'ed 2) S'ow t'at a do%u(ent ex"sts w'"%' %onta"ns t'e w"tnessEs ast *nowled4e of t'e fa%t o! e6ent 3) S'ow t'at t'e w"tness e"t'e! (ade t'e do%u(ent '"( o! 'e!self o! t'at t'e do%u(ent was (ade b) so(eone else# but t'e w"tness !e6"ewed "t and ado ted "t as %o!!e%t 4) S'ow t'at t'e do%u(ent was (ade o! ado ted at a t"(e w'en t'e fa%t o! e6ent was f!es' "n t'e ("nd of t'e w"tness (a) IT -ILL NOT /E AD+ITTED INTO EVIDENCE? 0OU T.E ATTORNE0 -ILL R#AD IT TO T.E 7UR0 /UT T.E0 DONET BET IT XII) DOCU+ENTS A) As a practical matter, duplicates or reproductions of documents are fine *ests and the 4ar are the only places where 4est Document might arise B) (ubmitting Document Evidence 1) 0eed to Authenticate the ob'ect 2) 4ecause it!s a document, must overcome hearsay ob'ection (a) (tatement of a Party (b) F?C869 4usiness Record (c) F?C8F9 Novernment Record C) /est E6"den%e Rule D Rule 1::> 1) Applies only to evidence where you are proving the CONTENTS, thus applies to writings, recordings, and photos 2) Rule requires that the o!"4"nal document be produced unless another rule allows otherwise: (a) Rule 7??7 defines what is "original# (b) 5or electronically stored data the original can be a printout of the data (c) Rule 7??C allows the use of duplicates in place of the original with e1ceptions considered below (d) Rule 7??> sets forth e1ceptions for when a duplicate will suffice (e) +onsidered together, these rules seem to require that some form of the document be introduced when a witness is to testify about the contents of the document ; the proof of the contents of the document is an issue at trial 3) Rule 7??@ e1ists to prevent inaccuracies which occur in the copying of documents from affecting the outcome of the case 4) Rule 7??@ does not apply if evidence of the event exists independently of the writing and the proponent of the evidence proceeds using that independent source, such as:

(a) An oral confession which is also reduced to writing (b) )arriage (c) Payment of Debt (d) Purchases (e) +onversations 5) %n photos, if you are not using the photo to prove the contents then you need only show that the photo accurately reproduces the scene viewed 8compare a ban/ surveillance photo which identifies the robber versus a photo which shows an intersection at which an accident occurred9 D) Rule 1::A D Ad("ss"on of Du l"%ates 1) Allows admission of duplicates as defined in Rule 7??78>9 e1cept when: (a) *here is a REAL issue about the authenticity of the original (i) %llegible documents (ii) Document is suspect because it is not in the form usually used or the contents do not seem correct (b) *he circumstances would ma/e it unfair to allow the introduction of the duplicate (i) %f such is the case, a portion of the document will be admitted while the remainder will be /ept out (c) 3hen the duplicate was prepared for the purposes of litigation and not in the normal course of business (i) 1robably no longer good law (ii) ,se in impeachment instead of as admissibility 2) Rule does not require that the proponent show why the original is not being presented 3) RecogniGes that modern copying techniques are more accurate than they were in the quill and in/ pot days 4) Party opposing the introduction of the duplicate has the burden of proving it should not be admitted (a) +ourt uses Rule 7?>8a9 to determine admissibility (b) Nenerally, +ourt 'ust does not care E) Rule 1::; - O!"4"nal "s una6a"lable 1) 7??>8C9 - if opposing party has original and will not produce it, then a duplicate is admissible (a) Prevents the opposing party from using the 4est Evidence Rule as both a sword and shield 2) 7??>879 - if the originals have been destroyed and the proponent has acted in good faith, then a duplicate is admissible (a) Judge determines whether something has been destroyed and whether the proponent has acted in good faith (b) 0egligence does not e.ual bad faith 3) 7??>8@9 - if the original is beyond the 'udicial process of the court, a duplicate may be used (a) Rule 7??> states that this does not apply to collateral matters (b) =nly used when proving direct elements of the case (c) %mpeachment does not matter F) Rule 7??E 2 Public Records, Rule A?@, may always be proven with a duplicate 1) 0ot going to let the originals leave the government agency

!)

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2) A document with the official seal generally suffices Rule 1::6 - T'e Rule of Co( leteness and Su((a!"es 1) =ther side has right to present any portions of a document or recording which have not been given to the trier of fact, when "in fairness# those portions should also be considered (a) 0o cherry2pic/ing of provisions is allowed 2) Due to voluminous nature of these records, Rule 7??6 allows you to submit summaries to prove the contents of the records as they are the "only practicable means of ma/ing their contents available to 'udge and 'ury# (a) (ummaries of technical or comple1 material are good for lay 'uries (b) =pposing party must have been given access to the underlying documents sufficiently in advance of trial for them to determine whether summaries are fair (i) +hese materials must be admissible in trial (ii) %f not, then summary allowed for de(onst!at"6e purposes under Rule 6778a9 (c) Reep things neutral 3) (ummaries must be authenticated, generally through the testimony of the person who created the summary (a) *his does not necessarily mean that a summary witness may summariGe the testimony of other witnesses 4) (ummary +harts may rely on assumptions, but assumption (ust be supported by the evidence 5) ,nder 7??6, summaries which are admissible are treated as evidence 6) Argumentative references are not proper Rule 1::C - if the other side admits the contents of a document in testimony, deposition or by a written admission, a duplicate may be used in place of original Rule 1::< - sets forth a special rule allowing the trier of fact to determine: 1) 3hether a writing ever did e1ist 2) 3hether a different writing, recording or document is the true original 3) 3hether other evidence of contents proves the true content (a) Pre2trial discovery ma/es this rarely an issue Judge has no role in a 7??F determination 1) Done completely by *rier of 5act (pecific/(pecial Rules 1) Any evidence other than a document may have special authentication rules 2) Photographs - must show photo is a true and accurate representation of that which is depicted 3) Audio or Bideo *ape 2 must show that: (a) there have been no deletions, additions or edits (b) the machine operator /new how to operate the machine and the machine was in wor/ing order (c) how the tape 8or data9 was stored before trial (d) the statements were made voluntarily and (e) you must be able to identify the people spea/ing 4) Physical Evidence 8li/e drugs9 2 cannot be identified by merely loo/ing at the evidence, you will need to s'ow a %'a"n of %ustod) (a) 4e prepared to do this with all non2unique items

5) Electronic Data - must show normal operations of the computer have not changed 6) Alterations - be prepared to e1plain the alterations and why XIII) O,INION A) E1perts are not competent witnesses, but e1ceptions are made for them B) +ertain types of witnesses are allowed to give opinion testimony under Rules I?7 through I?6 C) Rule C:1 La) Ex e!ts - allows non2e1perts 8non scientific9 witnesses to give opinion testimony if 1) *he opinion or inference is based on the perception of the witness NOT speculation 2) *he opinion or inference is helpful to clear a misunderstanding of the witness!s testimony or to the determination of a fact in issue 3) *he opinion or inference is not based on scientific, technical or specialiGed /nowledge within the scope of RuleI?@ 4) E1amples: (a) %dentification of handwriting, the defendant!s understanding of the rules or regulations, value of property, loss of profits, identification of a drug based on prior use of the drug, sanity of the defendant (b) 5ormer leader of drug org !s opinion, based on content to defendant!s conversations, or defendant!s /nowledge and intent 5) *wo *ypes of &ay =pinion: (a) *he unskilled lay witness testifies based on observations (b) *he skilled lay witness has had an experience on enough prior occasions to have /nowledge about a sub'ect or events, and observes that sub'ect or event in the case on trial 6) *he best practice: have the witness testify to things the witness observed (a) *hen, it may not be necessary for the witness to give an opinion (b) %n any case, the things observed provide the factual basis for the witness!s opinion 7) All other "opinion# evidence (ust come from e1perts and is controlled by Rule I?@ D) Rule C:> Ex e!ts 2 where scientific, technical, or other specialiGed /nowledge will help the trier of fact to understand the evidence, then a witness who is qualified by "/nowledge, s/ill, e1perience, training or education# may give an opinion, however: 1) =pinion must be based on sufficient facts or data 2) =pinion must be product of reliable principles and methods, and 3) *he witness has applied the principles and methods reliably to the facts of the case E) Rule C:A - defines the facts or data which must be used to give the opinion 1) 5acts/data may be made /nown to the e1pert before or during e1pert!s testimony 8could theoretically put e1pert on stand without any bac/ground9 2) *he facts or data need not be admissible in evidence if they are of a type reasonably relied on by e1perts in the field in forming opinions (a) ,sually not disclosed to the trier of fact (b) %f 'udge determines that the probative value of the fact or data in assisting the trier of fact substantially outweighs the pre'udice, then the facts or data may be given to the trier of fact F) Rule C:;(a) 2 generally allows an e1pert to give an opinion on an ultimate question in the case

1) E1amples of ,ltimate Duestions (a) I?>8b9 - the (anity of a person in a criminal case (i) *estimony may address the mental illness of Defendant and the characteristics, if any, of that mental illness (ii) 4,* may not introduce e1pertHs inference or opinion that, at the time of the alleged crimes, Defendant was 879 sane. 8@9 insane. 8C9 lac/ed substantial capacity to /now the wrongfulness of his conduct. or 8>9 lac/ed substantial capacity to conform his conduct to the requirements of the law which he is charged with violating (b) *hin/ of an ultimate question as the resolution of a question which is critical to the trier of fact!s determination of the case (i) 3ho wrote the signature on the document (ii) (peed a car was traveling 'ust before impact (iii) Party!s understanding of the facts !) Rule C:;(b9 2 limits e1pert!s ability to give an opinion about the mental state of a defendant in a criminal case when that mental state is an element of the offense or of a defense to the crime *he rule limits this finding to the trier of fact ") Rule C:G 2 states that the e1pert need not testify on d"!e%t about the facts or data which underlie the opinion unless required by the 'udge, but that the facts and data may be e1plored on %!oss2e1amination 1) Aimed at hypothetical questions and their time2eating setups 2) 5or e1ample, is this goldK $ow do you /nowK I) ,!esent"n4 Ex e!t Test"(on) 1) Frye *est - scientific evidence must have gained "general acceptance# in field to which it belongs (a) (cientists in the field in question must support the reliability of the science before it may be presented in the court (b) &ead to a battle of e1perts in newer fields 2) 1aubert *est 8destroyed opinion evidence9 (a) *rial 'udge ta/es gate/eeper role and uses Rule 7?>8a9 to determine admissibility (b) *rial court must determine that the "reasoning or methodology underlying the testimony is scientifically valid# (c) *rial court must then determine whether that "reasoning or methodology can be applied to the facts at issue# 3) 1aubert 5ive 0=0 2 E1clusive 5actors for +onsideration (a) 3hether the scientific theory or technique can be or has been empirically tested (b) 3hether the scientific theory or technique has been sub'ected to peer review and publication (c) *he /nown potential error rate of the scientific theory or technique (d) 3hether standards controlling the theory or technique e1ist (e) $ow widespread is the acceptance of the theory or technique 8Frye *est9 4) 1aubert factors are neither dispositive nor e1haustive, consider also: (a) 3as the independent research done independently of litigationK (b) Did the e1pert ma/e an unfounded leap from the scientific theory or technique to a conclusion not based on the scientific theory or techniqueK (c) $as the e1pert accounted for obvious alternate e1planationsK

5)

6) 7) 8)

(d) 3as the e1pert as careful in his wor/ as he would have been had this not involved litigationK (e) 3hether the field of e1pertise claimed by the e1pert is /nown to reach reliable results +ourt Review (a) (tandard S Abuse of Discretion (b) *rial court is free to re'ect e1pert testimony if the court felt that the connection between the science and the conclusion was separated by too great of an analytical gap (i) Allows the 2udge to ma/e a scientific 'udgment (c) in non2scientific areas, the trial court could determine which of the 1aubert test factors were relevant to the technical or other special /nowledge, and gave the trial courts broad latitude in ma/ing this determination (d) *rial courts may rely on the prior decisions of other courts which have e1amined a science or technical e1pertise to determine whether a hearing is needed to review that science or technical e1pertise (i) Don!t have to test and retest (e) Tparty offering e1pert has the burden of proof 8umho - e1panded 1aubert to areas outside of science to include "technical or other special /nowledge# Post 1aubert a party may challenge an e1pert and request a pre2trial hearing on whether the e1pert meets the 1aubert test E1amining the E1pert (a) usual method of questioning an e1pert is the hypothetical question (b) party as/s the e1pert to assume certain facts, and based on those facts, e1press an opinion (c) At t'e t"(e of 9uest"on"n4# not all of the facts in the hypothetical need be before the trier of fact (d) 4efore the close of the party!s case, all of the facts assumed in the hypothetical must be in the record 8note that this does not mean that they trier of fact 8the 'ury9 has heard all of the evidence9