Sam’s Evidence Outline 2017

Sam’s Evidence Outline 2017

Sam’s Evidence Outline 2017

General Provisions

FRE §103 Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the
error affects a substantial right of the party and: (i.e. not harmless)
Raising Objections
(1) if the ruling admits evidence, a party, on the record:
(A) timely [1]objects or [2] moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or (but always state your
grounds for objection, even if it is obvious)
Defending Evidence
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless
the substance was apparent from the context.

Maintaining Objections
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record —
either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for
appeal.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement
about the character or form of the evidence, the objection made, and the ruling. The court may direct that an
offer of proof be made in question-and-answer form.
- But if the judge doesn't rule on a motion in limine before the trial, you need to bring it up at trial.

Shielding the Jury

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must
conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if
the claim of error was not properly preserved.

FRE§ – Preliminary Questions

If the court admits evidence that is admissible against a party or for a purpose — but not against another party
or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and
instruct the jury accordingly.

FRE§105 – Limiting Evidence Not Admissible Against Other Parties for Other Purposes
If the court admits evidence that is admissible against a party or for a purpose—by not against another arty or
for another purpose—the court, on timely request must restrict the evidence to its proper scope and instruct
the jury accordingly

**If evidence is only admissible against 1 of 2 ∆’s, the jury will usually hear the evidence and then be told to
disregard it.
EXCEPTION: If ∆ is giving a confession testimony against a coconspirator, and is against the constitutional
rights of the ∆, then a limiting instruction is not enough!

FRE§106 – Remainder of or Related Writings or Recorded Statements

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RULE OF COMPLETENESS
- First, Rule 106 allows a party to introduce qualifying portions of a writing or recorded statement as
soon as the opponent offers the first portion.
 They don't have to wait until the case-in-chief is over or rebuttal
- Second, Rule 106 applies only to writings and recorded statements; it does not apply to other forms
of evidence, such as oral conversations, photographs, and physical objects.
- Third, although parties most often invoke Rule 106 to introduce remaining portions of a single writing
or recording, they may also use the rule to introduce whole writings or recordings when necessary to
understand another document offered by the opponent.
 Could include additional letters during correspondence.
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Judicial Notice
Adjudicative Facts - such as who did what and when, are the ones on which trials focus and are the most
important facts in deciding cases. Therefore, they can be judicially noticed only if indisputable, which means:
Generally known to informed people, or to informed people in the jurisdiction, or verifiable by resort to
unimpeachable sources
FRE§201 – Judicial Notice
A. Scope  only governs adjudicative facts
B. Kinds of Facts that can be judicially noticed: The court may judicially notice a fact that is not subject to
reasonable dispute because it:
1. Is general knowledge
2. Almanac or encyclopedic facts
3. courts own records
4. well-known scientific principals
C. The court can:
1. take judicial notice on its own
2. must take judicial notice if a party requests it and the court is supplied with the necessary information.
[BY FILING A MOTION FOR JUDICIAL NOTICE]
D. Timing: At ANY TIME
E. Opportunity to be Heard  even if the court notices a fact on its own, the parties may be heard.
F. Instructing the Jury
1. Civil case  the jury must accept the noticed fact as conclusive  BINDING
2. Criminal Cases  the jury may or may not accept the fact as conclusive  NOT BINDING
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Relevancy and its Limits

3 Basic Principals of Relevance
1. Evidence is relevant if it has any tendency to make a fact of consequence more or less likely.
(§401)
a. Materiality – proposition that the evidence tends to prove is of consequence
b. Probativeness – Some tendency to make that proposition more or less likely
2. All irrelevant evidence is inadmissible.
3. All relevant evidence is admissible unless:
a. An Exclusion rule is applicable
b. Probative value is substantially outweighed by pragmatic considerations (§403)

FRE§401 – Test for Relevant Evidence

Evidence is Relevant if:
i. It tends to make a fact in issue more or less likely
ii. The fact is material
Prejudicial Non-Prejudicial
Relevant Issues Arise Admissible; Subject to Other
Evidentiary Rules
Not Relevant Reversible Error Harmless Error

FRE §402 – Relevant Evidence

Relevant Evidence is admissible unless any of the following provides otherwise:
i. The US Constitution;
ii. A federal Statute;
iii. These rules; or
iv. Other rules prescribed by the Supreme Court.
1. Irrelevant evidence is not admissible
2. There’s no specific rules excluding relevant evidence, it comes in
i. also abolishes common law objections, theoretically only FRE objections can be made, but FRE
§611 gives judges reasonable control over the interrogation of witnesses

FRE§403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, Etc.
The Court may exclude relevant evidence if its probative value is substantially outweighed by dangers:
1. Unfair prejudice
2. Confusing the jury
3. Undue delay
4. Waste of time
5. Estimation problems

Character Evidence – evidence that refers to a person’s general propensity or disposition (a person is violent or
peaceful)
- When is character evidence admissible at trial?
o Generally: the law disfavors character evidence
o Exception:
1. When a person’s character is a material element in the case  the character of the person is
something that must be proved as either the claim or the defense
2. When character evidence is used to prove conduct in conformity with that character trait on
the occasion in question  character as circumstantial evidence of conduct on a particular
occasion
a. CRIMINAL CASES:
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i. The criminal defendant’s character  to prove that he acted in conformity with that
character trait [PROSECUTION CAN NOT BRING UP IN CASE IN CHIEF BUT CAN IN
REBUTTAL BUT ONLY IF THE DEFENDANT OPENED IT UP]
o Can’t offer specific instance of CONDUCT; only REPUTATION or
OPINION testimony about a RELEVANT character trait
o Impeaching: When the prosecution is going after the defendant’s character
witness  may ask about SPECIFIC INSTANCES of the defendant whose
character is in question; Prosecution may not offer extrinsic evidence in
reference to the specific instances.
 Incidents of conduct that apply to the wrong character trait  can
be offered to show that character witness shouldn’t be believed,
not that the defendant was acting with character trait
o Impeaching: by having the prosecution bring their OWN rebuttal character
witness, who can give REPUTATION or OPINION evidence
ii. The victim’s character  ONLY IN SELF DEFENSE CASES Can offer evidence to
show victim is a violent person and therefore acted as a violent person;
REPUTATION or OPINION only [PROSECUTION CAN NOT BRING UP IN CASE IN
CHIEF BUT CAN IN REBUTTAL BUT ONLY IF THE DEFENDANT OPENED IT UP]
b. CIVIL CASES: You can never use character evidence unless it is an element of a crime
3. Witness’s bad character for truthfulness to impeach credibility  deals with a specific character
trait; does the witness have a propensity to lie on the stand.
a. When a witness testifies at trial (Civil or criminal) using evidence that that witness has a
poor character for truthfulness
i. Character witness renders opinion that target witness has a poor character for
truth
ii. Target witness’s reputation for truthfulness in the community
iii. Offering evidence of certain kinds of criminal convictions
a. Felonies committed by the target witness
i. Only allowed to impeach the character for truthfulness
ii. But only if, the probative value is not outweighed by the prejudice
b. Misdemeanors and Felonies that involve false statement
c. Evidence of other bad acts that involve deceit or lying but didn’t result
in a conviction
i. Lawyer forced to take the witness at his word  no extrinsic
evidence

FRE§404 – Character Evidence; Crimes or Other Acts

A. Character Evidence
1. PROHIBITED: Propensity Reasoning – evidence used to show that a person’s character is not
admissible to prove that on the occasion in issue, the person acted Pwith that character.
2. EXCEPTIONS TO PROPENSITY REASONING: for ∆ [only apply in a criminal case]
a. ∆ offers evidence of a pertinent character trait  prosecution can offer evidence to rebut
b. ∆ offers evidence of a pertinent character trait of a victim  prosecution can offer evidence to
show that
1. Evidence to rebut (victim did not have character trait)
2. Offer evidence to show that ∆ has that same character trait
c. ONLY IN HOMICIDE CASES: prosecutor can offer evidence of a victim’s peacefulness to rebut
evidence that the victim was the first aggressor
3. PROPENSITY EXCEPTIONS FOR WITNESSES, NON-PARTIES  subject to §§607, 608, 609
B. Crimes, Wrongs, and Other Acts
1. PROHIBITED: evidence of a crime, prior wrong, or other act, is not admissible to prove a person’s
character to show a person acted with that character.
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2. PERMITTED USES: With Notice in a Criminal Case – may be admissible outside of propensity context
to show:
a. Motive
b. Opportunity
c. Intent
d. Modus Operandi
e. Preparation
f. Knowledge, etc.
- On request by ∆, Prosecutor must:
1. Provide Reasonable Notice
2. Do so before trial (or asap with good cause)

FRE§405 - Methods of Proving Character

A. By Reputation or Opinion (NO EXTRINSIC EVIDENCE ALLOWED!)
When evidence of a person’s character is admissible, it may be probed by testimony about the person’s
Reputation or by testimony in the form of an opinion.
ON CROSS EXAM – of the character witness (who’s character is being questioned) the court may allow an
inquiry into relevant specific instances of the persons conduct
B. Specific Instances of Conduct
When a persons character trait is an essential element of a charge or claim or defense, the character trait may
also be proven (by reputation or opinion) by relevant instances of the person’s conduct.

FRE§406 – Habit; Routine Practice

Evidence of a persons habit or routine practice may be admitted to prove that on a particular occasion the
person acted in accordance with that habit or routine practice.
Court may admit this evidence regardless of whether it is corroborated or there was an eyewitness
HABIT CHARACTER
Ones response to a repeated specific situation The sum of ones regular habits  no specific
instances

FRE§407 – Subsequent Remedial Measures

When measures are taken that would have made an earlier injury less likely to occur, the measures are not
admissible to prove
1. Negligence
2. Culpable conduct
3. Defect in product or design
4. A need for a warning
BUT allowed for another purpose, must be an issue in dispute, such as impeachment, or proving ownership,
control, or feasibility of precautionary measures

FRE§408 – Compromise Offers and Negotiations

A. PROHIBITED USES
To prove or disprove the validity of an amount of a disputed claim OR
To impeach by prior inconsistent statement or a contradiction
- Furnishing promising or offering, or accepting, promise to accept, etc.
- Conduct or a statement made during compromise negotiations
B. EXCEPTIONS
Allowed to be admitted to prove: bias, prejudice, negating a contention of undue delay, or proving an effort
to obstruct a criminal investigation or prosecution

FRE§409 – Offers to Pay Medical and Similar Expenses

** ONLY PROTECTS OFFER AND NOT STATEMENTS MADE IN CONJUNCTION**
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offer ≠ admissible to prove liability for injury

FRE§410 – Pleas, Plea Discussions, and Related Statements

** Does not protect against data discovered during the course of plea negotiations
A. PROHIBITED USES
Criminal OR Civil  a plea is not admissible against the ∆ who made plea or participated in discussions
1. A guilty plea that was later withdrawn
2. A nolo contender plea
3. A statement made during the plea proceedings
4. Statement made during plea discussion w/ prosecuting authority (if discussions did not result
in a guilty plea later withdrawn)
B. EXCEPTIONS ONLY APPLY TO 3 & 4
1. If ∆ opens the door and brings in the statement; the π can as well (∆ can waive his 410 rights tho,
so watch over your client)
2. Proceeding from perjury or false statement, if the ∆ made the statement
a. On record
b. Under oath
c. w/ counsel present

FRE§411 – Liability Insurance

**Evidence that shows an individual was or was not insured**
Not Permitted Permitted
To prove that a person was acting negligently or Proving a witness’s bias, prejudice, or proving
wrongfully agency, ownership, or control
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Privileges
FRE§503 – Proposed Rule – Lawyer-Client Privilage
B. client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential
communications made for the purpose of facilitating the rendition of professional legal services to the client,
a. between himself or his representative and his lawyer or his lawyer’s representative, or
between his lawyer and the lawyer’s representative, or
b. by him or his lawyer to a lawyer representing another in a matter of common interest, or
c. between representatives of the client or between the client and a representative of the client, or
d. between lawyers representing the client.

C. Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the
personal representative of a deceased client, or the successor, trustee, or similar representative of a
corporation, association, or other organization, whether or not in existence. The person who was the lawyer at
the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is
presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone
to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who
claim through the same deceased client, regardless of whether the claims are by testate or intestate succession
or by inter vivos transaction; or
(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the
lawyer to his client or by the client to his lawyer; or
(4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested
document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if
the communication was made by any of them to a lawyer retained or consulted in common, when offered in an
action between any of the clients.

Marital Privilege – 2 Kinds

Spousal Immunity
Criminal Case ONLY
Holder: Witness Spouse
Exists only during a VALID marriage
Complete ban on all testimony whatsoever
When marriage ends, so does the privilege
SUBJECT TO: Waiver for subjective disclosure
Confidential Marital Communications
Criminal or Civil Cases
Holder: Either Spouse (varies)
Survives the end of the marriage
Only applies to Confidential Communications
If the marriage is annulled there is no privilege
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Witnesses

FRE§601 - Competency to Testify in General

Every person is competent to be a witness.
I. Exceptions
1. §605 - A judge may not testify at a trial in which she presides
2. §606(a) – A juror may not testify in a case in which he is sitting

FRE§602 - Personal Knowledge

a witness may only testify to a matter if evidence introduced is sufficient to show that the witness has personal
knowledge of the matter; not an absolute but may consist what the witness’s perception is.
II. Evidence to prove personal knowledge, can be from a witness’s own testimony.
III. Two Major Exceptions:
1. Admissions – statements by a part to a trial that are offered in evidence by opposing party
a. An admission may be used in evidence even if it based on the second-hand
information or guesswork, rather than perception.
2. Rule does not apply to expert witness testimony (§703)

FRE§603 – Oath to Testify Truthfully

Before testifying a witness must give an oath or affirmation to testify truthfully. It must be in a form designed
to impress that duty on the witness
I. No special formula is required, basically the witness can swear to whoever, but once he does if he lies,
he is a perjurer.

FRE§607 – Who May Impeach a Witness

ANY PARTY including the party that called the witness, may attack the witness’s credibility

FRE§608 – A Witness’s Character for Truthfulness or Untruthfulness

A. REPUTATION OR OPINION - witnesses credibility may be attacked or supported by testimony about the
witnesses reputation for having a truthful character or by testimony of opinion about that character.
Truthful character can only be brought up after his truthful character has been attacked.
B. SPECIFIC INSTANCES OF CONDUCT – Except for criminal conviction under Rule §609 – extrinsic
evidence is not admissible to prove specific instances of a witnesses conduct in order to attack or support
the witnesses character for truthfulness
On CROSS  the court may allow them to be inquired into if they are probative of a character for
truthfulness or untruthfulness of
1. The witness or;
2. Another witness whose character the witness being cross examined has testified about.
By testifying on another matter: a witness does not waive any privilege against self incrimination for
testimony that relates only to the witness’s character for truthfulness.

FRE§609 – Impeachment by Evidence of a Criminal Conviction

In General: Apply to a witness’s character for truthfulness by evidence of a criminal conviction
1. Crime punishable by death or by imprisonment for more then one year
a. Evidence MUST be admitted [subject to §403]  [CRIMINAL OR CIVIL] if the witness is NOT the
defendant and
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b. MUST be admitted in a criminal case in which the witness is a defendant, if the probative value
outweighs its prejudicial effect to the defendant
2. For any crime, regardless of the punishment, the evidence MUST be admitted if the court can readily
determine that establishing the elements of the crime required proving a DISHONEST ACT OR FALSE
STATEMENT
Timing: conviction must have been in the last 10 years and isn’t kept out by §403

DIRECT EXAM CROSS EXAM

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- Direct exam may cover any relevant matter.
- Leading Questions - §611(c) – leading
questions should not be used on direct
examination except as necessary to develop
the witness’s testimony. They are permitted
on x-exam or with an adverse or hostile
witness
I. §611(c) - Allows leading questions on direct as
necessary to help develop the witness’s
testimony
i. basically, allowed to remind a
witness of something
ii. would be permitted to help
witnesses who have difficulty
testifying (children, bad English
speaker, etc)
iii. permitted on direct for preliminary
matters (undisputed issues), which
helps move things along.
- Asked and Answered – Objection – Ordinarily
only available only against direct examiners,
when they ask the same question twice
- Leading Questions - §611(c) – leading questions
should be allowed during cross exam
I. Enables an attorney to have control over a
witness who may be out to undermine your
case and who ordinarily would not be available
for a friendly pre-trial preparation
- Non-Responsive Answer – Objection – if a witness
strays from the paved path and gives an out-there
answer, you can object, a witness is supposed to
answer each question directly.
I. Some judges allow either side to make this
objection, but in theory it is only the examining
attorney who is allowed to object.
- Scope of Cross Examination - §611(b) – Cross exam
should not go beyond the subject matter of the
direct exam and matters affecting the witness’s
credibility. The court may allow inquiry into
additional matters as if on direct exam.
- Common Law – minority of jx, rejected the
limitation and allow cross exam on any relevant
issue. FRE§611(b) codifies the majority opinion.
I. There is no FRE about redirects, the usual rule is
that re-direct is limited to issues that were
brought up for the first time on cross.

FRE§612 – Writing Used to Refresh a Witnesses Memory

** whatever u are handing over should not be privileged information, the use of a document to refresh a
witness’s memory will waive work-product and attorney/client privilege**
(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a
criminal case, an adverse party is entitled
 to have the writing produced at the hearing,
 to inspect it,
 to cross-examine the witness about it, and
 to introduce in evidence any portion that relates to the witness’s testimony.
If the producing party claims that the writing includes unrelated matter, the court must examine the
writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party.
Any portion deleted over objection must be preserved for the record.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the
court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court
must strike the witness’s testimony or — if justice so requires — declare a mistrial.
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FRE§613 – Witness’s Prior Statement

Do you have to show the witness his prior statement during examination? NO
Can I use extrinsic evidence to show a witnesses Prior Inconsistent Statement  YES
- But the witness must be given an opportunity to explain or deny the statement (and the adverse party gets
an opportunity to examine the witness about the statement)

Impeachment
- Bolstering – generally not allowed; an attempt to strengthen witness cred before its been attacked; without
an attack on credibility there is no need to bolster the witness’s credibility; you cannot try to strengthen a
witness’s credibility before it has been attacked.
- Prior Identification of a Person - permissible form of bolstering
o Who can we impeach? Your witness or an adverse witness
o When can we impeach?
o How can we impeach?
- Collateral Fact  NOT A MATERIAL FACT; A FACT WITH NO BEARING ON SOMETHING AT ISSUE; no
relevance to the case or to the witness’s credibility
Can the impeaching fact be Assuming that extrinsic
proven with extrinsic evidence? evidence is permissible, must I
first confront the witness with
the fact about the extrinsic
evidence?
Prior inconsistent statements YES Confrontation timing is flexible
 not required to immediately
confront the witness
Bias, interest, or motive to YES [if the court allows] Court has discretion
misrepresent
Sensory deficiencies YES Not required to confront until we
prove with extrinsic evidence
Bad character for truthfulness – YES  only way to prove this No confrontation required
Bad rep about truth fact [by calling a character
witness to give opinion or
reputation testimony]
Bad character for truthfulness – You have to give them notice u
Criminal convictions want to use
Bad character for truthfulness – NO Only permissible means of
Bad acts that didn’t result in a proving is confrontation  if they
conviction but still reflect badly say they didn’t, that’s the end of
on the witness. it
Contradiction Not allowed if the fact at issue is
collateral (not material)
Allowed if the fact is NOT
collateral

Prior Inconsistent Statements

- Any witness can be impeached by showing that a prior time (in writing or orally) that the witness said
something different before.
- INCONSISTANCIES CANNOT BE SUSTANTIVE EVIDENCE!
1. They do not come in for the truth of the matter asserted  bc they are usually hearsay
2. If statement was made at trial, under oath  then it could be offered as the truth
3. If the witness is the OPPOSING PARTY, you do not need to give them opportunity to explain
prior inconsistent statement (come in as substantive evidence; excluded from hearsay)
2. Bias, interest, or motive to misrepresent
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1. Indicates that the witness has a reason to slant their testimony for one side, think employee, paid
expert, person with a grudge, friend, etc.
3. Sensory deficiencies
1. Anything to show that the perception or memory of the witness was not at its best
a. poor eyesight poor hearing, intoxication
4. Bad character for truthfulness
1. Bad reputation about character for truthfulness – the propensity to lie on the witness stand; any
witness can be impeached by calling another character witness who give OPINON or
REPUTATION;
5. Bad character for truthfulness – Criminal convictions
1. Evidence of certain criminal convictions allowed to impeach witnesses who have been convicted.
a. Any crime felony or misdemeanor that involves dishonesty or false statement
b. or a FELONY (but the court can exclude if fails a 403 balancing)
c. 10 year time limit
6. Bad character for truthfulness – Bad acts that didn’t result in a conviction but still reflect badly on
the witness’s truthfulness.
7. Contradiction -
Rehabilitation
1. Try to show witness’s good character for truthfulness
a. CAN USE: when attack on credibility was that they had a poor character for truthfulness
b. If u used a criminal conviction or prior bad act  can only be proved with an OPINION or
REPUTATION that they have a good character for truthfulness
2. Use a prior CONSISTANT statement
a. If the other side is trying to show that the witness has a reason to lie on the stand or that its
being insinuated that they have a motive to fabricate testimony
b. The fact that they said A before and are still saying A is proof they’ve been saying the same
thing [story must be the same before and after the motive to fabricate arose]

Opinions and Expert Testimony

Lay Opinion Rule - §701
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to: (a) rationally based
on witness’s perception DOES NOT HAVE TO BE POSITIVE; (b) helpful to clearly understanding the
witness’s testimony or to determine a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of §702.
I. §701(a) – only opinions based directly on what the witness’s own perception
1. Cheryl sped by in her car, if u saw Cheryl driving, but not if your son told you, I just saw Cheryl
whiz by.
II. §701(b) – rule of preference: if more data is available and easy to convey, use them; if not, use
inferences.
2. Stating that it is expensive car is fine, if you don’t know it was a 2017 F-Type
III. §701(c) – avoids overlap between expert and lay opinion evidence and to prevent lay opinion testimony
being presented by an expert and thus permitted on the basis that he is an expert.

Ultimate Issue Rule - §704(a)

In general, an opinion is not automatically objectionable just because it embraces an ultimate issue.
I. §704(b) – provides an exception to the - §704(a) stating that during expert testimony, an expert may
not testify on the mental state of a criminal defendant.
1. §403 – permits the exclusion of opinions that are unfairly prejudicial or waste the courts time.
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Hearsay

§801  Definitions that Apply to this Article; Exclusions from Hearsay

WHAT IS HEARSAY:
1. Statement
2. Not made in court
3. Being offered for the truth of the matter asserted
WHAT IS NOT HEARSAY:
1. An Opposing Party’s Statement
a. Must be offered against the opposing party
b. Must be made by the opposing party
c. Must be one that is believed to be the truth
d. OR was made by the party’s agent, employee on a matter within the scope of the relationship
e. OR by a co-conspirator in furtherance of the conspiracy
i. Outside evidence that the declarant and the defendant are part of a conspiracy

§802  The Rule Against Hearsay

General Rule: hearsay is prohibited

§803  Hearsay Exceptions – Regardless of Whether the Declarant is Available

Exceptions to the General Rule!
1. Present Sense Impression:
a. Explaining an event or condition
b. While or immediately after the declarant perceived it
2. Excited Utterance:
a. Relating to a startling event
b. While the declarant was under the stress of the event
3. Then-Existing Mental, Emotional, or Physical Condition [can be made to an expert or a lay person]
[no backward-looking statements allowed]
a. Present state of mind or present intent
4. Statement for Medical Diagnosis or Treatment: [not just to dr.’s]
a. Pertinent to Medical diagnosis or treatment
b. Describes conditions (past or present); medical history; symptoms; etc.
5. Recorded Recollection
a. Need a record
b. Made when memory was fresh
c. Someone must vouch for the statement
6. Records of a Regularly Conducted Activity
a. Who made it? Someone with knowledge; When? At or near time of event
b. Record was kept in the course of a regularly conducted business activity
c. Making the record was a regular practice of this activity
7. Absence of a Record of Regularly Conducted Activity
8. Public Records
Made by a public office
a. Sets out:
i. The office’s activities
ii. The matter observed [NOT IN CRIMINAL]
iii. In a CIVIL CASE or AGAINST THE STATE in a criminal case
b. The opponent DOES NOT SHOW the info or source indicates a lack of untrustworthiness
22. Judgement of a Prior Conviction
a. Judgement was entered after a trial or a guilty plea BUT not a nolo contendre plea
b. Conviction was for a crime punishable by death or by imprisonment for more than a year
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c. Evidence admitted to prove any fact essential to the judgement

d. When offered by the state in a CRIMINAL case for a purpose other than impeachment, the
judgement was against the defendant.

§804  Hearsay Exceptions – When the Declarant is Unavailable

What is Unavailable?
1. A privilege applies
2. Refuses to testify despite a court order (I PLEAD THE 5TH!)
3. Testifies to not remembering the subject matter (I CANNOT RECALL)
4. Physical/Mental Illness and can’t come to trial
5. Absent from trial and we can’t get testimony by any other reasonable means
EXCEPTIONS! The following are NOT excluded if the declarant is unavailable
1. Former Testimony
a. That was given at trial, hearing or lawful depo, during this proceeding or another one.
b. It is now being offered against a party who had OPPURTUNITY or SIMILAR MOTIVE
2. Statement in the Belief of Imminent Death – Dying Declarations
a. Only allowed in HOMICIDE or CIVIL CASES
3. Statement Against Interest
a. TRUTHFUL, because it is so CONTRARY to the DECLARANT’S INTEREST because it EXPOSES
HIM to liability AND
b. Is supported by corroborating circumstances that clearly indicate its trustworthiness [CRIMINAL
CASE MUST MEET B]
4. Statement of Personal Family History
5. [Moved to Other Rule §807]
6. Statement Offered Against a Party that Wrongfully Caused the Declarants Unavailability
a. And intended their unavailability resulting from their actions [witness tampering]

§805 - Hearsay within Hearsay

§806  Attacking and Supporting the Declarant’s Credibility

When a hearsay statement or a 801 exemption [statement by the opposing party] has been admitted, the
declarant’s credibility may be attacked and then supported by any evidence that would be admissible for those
purposes if the declarant had testified as a witness.
- The court may admit evidence of the declarent’s inconsistent statement or conduct, regardless of when it
occurred or whether the declarant had an opportunity to explain or deny it

Constitutional Law Issues in Criminal Cases

Confrontation Clause
Sam’s Evidence Outline 2017

- The Confrontation clause does not apply to civil cases or to evidence offered by the accused against the
government in a criminal case. [USUSALLY HEARSAY EXCEPTION ISSUES]  Apply the Crawford
Standard  is the evidence testimonial?
Testimonial hearsay is generally inadmissible unless the accused has a chance at trial or before trial (in
some earlier proceeding) to cross-examine the declarant.
- Testimonial hearsay in the form of actual testimony given in a prior trial, deposition, or preliminary hearing
is probably subject to a constitutional requirement that the declarant be unavailable as a witness to testify
at trial
- The 6th Amendment gives criminal defendants a right to "confront" the witnesses against them.
ii. The Supreme Court held this includes a right to cross-examine those witnesses.
- Even in the face of a limiting instruction, a co-DEF's confession that implicates the other DEF that is
brought in the form of an out-of-court statement (confession) to the police violates the DEF's 6th
Amendment rights -- Bruton v. United States. (SCOTUS '68).
iii. It would be different if the co-DEF took the stand and could be cross-examined.
I. But in a joint trial, the co-DEF has his own 5th Amend. protections.
- Prosecutor has 3 options when faced with a situation similar to Bruton:
1. Redact the defendant's admission so that it does not implicate any other defendants. The redacted
statement will be admissible under Rule 801(d)(2) against the defendant who made it, and will not
infringe the Confrontation Clause rights of other defendants.
2. The prosecutor can sever the trial and try each of the defendants separately, introducing the out-of-
court admission against the defendant who made the statement at that defendant's trial.
3. The prosecutor can forego use of the statement, relying on other evidence instead.
 These exceptions raise Confrontation Clause issues in a significant subset of cases:
o 803(1) and (2) - Present Sense Impressions and Excited Utterances. (when made to law enforcement).
o 803(3) - Then-Existing Mental, Emotional, or Physical Condition. (made to LE).
o 803(8) - Public Records. (may allow some ministerial records, but most excluded).
o 803(16) - Statements in Ancient Documents. (Confessions/police reports).
o 804(b)(3) - Statement Against Interest. (those made to government agents).
o 807 - Residual Exception. (Grand jury testimony not admissible).

Compulsory Process Clause

- ROOTED IN FAIRNESS!
o The Compulsory Process Clause guarantees criminal defendants the right to subpoena witnesses and
present exculpatory evidence.
o The Compulsory Process Clause can override evidence rules that unreasonably restrict a criminal
defendant’s ability to present evidence.

Miscellaneous
§1002 - Best Evidence Rule
The best evidence rule provides guidance and framework for the admissibility of digital evidence. This rule
requires that whenever a party seeks to prove the contents of a writing, recording or photograph, the original
needs to be produced. If the original cannot be produced, a satisfactory explanation is required.