MBE Subjects II_Evidence Outline

8/12/2019 MBE Subjects II_Evidence Outline

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MBE EVIDENCE

I. GENERAL PROVISIONS

A. Introduction

1. Approach for the MBE

a. Choose the best answer out of the ones that are given

b. Underline the cause of action. Situate the question procedurally. And then as yourself why the evidence is

being offered.

c. As yourself whether question is relevant.

!. "hree Main Areas "ested

a. Character

b. #$peach$ent of witnesses

c. %earsay& is by far& the $ost i$portance

B. The Federal Rules of Evidence

1. 'rigin of (ules)

a. "here are two ways rules co$e into being* either +1, an advisory co$$ittee reco$$ends a rule or +!,

Congress passes a law that includes a rule of evidence.

!. Application

a. "he -ederal (ules govern all civil and criminal trials and proceedings in federal courts& including Banruptcyand ad$iralty cases and proceedings. "hey do not apply to preli$inary questions of fact& grand ury

proceedings& preli$inary hearings& sentencing and probation hearings& law enforce$ent officials go to udges

to get warrants and bail proceedings.

C. Rulings on Evidence (Rule 103)

1. (equire$ents for Appellate (eview

a. /here a ruling ad$its evidence& a ti$ely and specific obection $ust be $ade to preserve the issue for

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appeal.

!. 'ffer of 0roof

a. /here a ruling ecludes evidence& an offer of proof is required& unless the substance of the evidence was

apparent fro$ the contet.

b. #f the error is not preudicial to the outco$e& then the har$less error rule applies. Error is har$less if the ury

would have reached the sa$e verdict even if the error did not occur* no substantial rights are affected.

c. #f no obection is $ade& the evidence will be ad$itted even if obectionable.

d. "he only ti$e a reversal will result fro$ the ad$ission of evidence despite an obection not being raised is when plain

error is found2error that affects a substantial right of a party* a serious $istae that affects the verdict* i.e.& preudicial&

reversible error2obvious& egregious.

. !reli"inar# Facts (Rule 10$(a))

1. 0reli$inary -acts

a. 0reli$inary facts are things lie +1, co$petency2witness qualifications* +!, ad$issibility* and +3, privilege.

!. 4ying 4eclarations

a. -or a dying declaration& the burden is on the udge when deter$ining ad$issibility of evidence.

b. "he standard used is the 5preponderance of the evidence.6

c. A udge is not bound by the rules of evidence when deter$ining preli$inary facts ecept with regard to

privileges. %owever& rules regarding privilege apply.

3. Conditional (elevancy +-(E 178+b,,

a. /here the ad$issibility of one ite$ of evidence is conditioned upon the relevancy of another ite$ of evidence&

the udge shall ad$it such evidence if the udge $aes the necessary preli$inary finding.

+1, "he judge $ust deter$ine whether there is enough evidence for the jury to find that the necessary fact

eisted.

E. %i"ited Ad"issi&ilit# (Rule 10')

1. "he (ule

a. 9i$iting instruction) #f evidence is ad$itted as to one party or for one purpose but inad$issible as to another

party or for another purpose& the court shall restrict the evidence to its proper scope and instruct the ury

accordingly.

"he burden is on the opponent to request li$iting instruction.

F. Re"ainder of or Related ritings or Recorded tate"ents (Rule 10*)

1. (ule of Co$pleteness

a. /here a party introduces part of a writing or recording& the adverse party $ay +i$$ediately, introduce any

other writing or part of the writing& which& in fairness& ought to be considered.

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II. JUDICIAL NOTICE

A. +udicial ,otice (Rule -01)

1. 4efined

a. :udicial ;otice is a substitute for proof where the court accepts certain 5Adudicative6 facts as true without

requiring for$al presentation of evidence.

!. Co$$only <nown -acts

a. "he first ind of udicial notice is commonly known facts& which are not subect to reasonable dispute*

generally nown within the urisdiction of the court.

3. -acts that are Capable of Accurate = (eady 4eter$ination

a. "he second ind of udicial notice is facts which are capable of accurate and ready determination by resort to

sources of unquestionable accuracy.

b. "hese include such things as +1, the accuracy of radar* +!, blood tests* +3, 4;A profiling* +8, historical

records* +>, prevailing interest?$ortgage rates* and +@, -athers 4ay 18 was :une 1th.

c. A court will not tae udicial notice of such things as clai$s that the US Supre$e Court is very conservative or

that secondDhand s$oe causes lung cancer.

8. -acts /ithin a :udges 0ersonal <nowledge

a. "he udge $ay not tae udicial notice of a fact $erely because it is within her nowledge.

>. Mandatory :udicial ;otice +(ule !71+d,,

a. :udicial notice is mandatory if requested by a party and court is supplied with the necessary infor$ation.

b. #ssues of udicial notice $ay be raised for the first ti$e either preDtrial& during trial& or on appeal.

@. Contradictory Evidence

a. As a general rule& once a fact is udicially noticed& no contradictory evidence is per$itted on that issue.

. Effect of :ury #nstruction on :udicial ;otice

a. A civil jury must accept a udicial notice fact as conclusive.

b. A criminal jury may 2but is not required to2accept a udicial notice as conclusive.

"he effect of a ury instruction on udicial notice is the $ost highly tested udicial notice issue.

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III. PRESUMPTIONS

A. !resu"tions in /eneral and Civil Actions and !roceedings (Rule 301)

1. Burden of 0roduction

a. "he party that has the burden of going forward and producing evidence has the burden of production.

!. Burden of 0ersuasion

a. "he burden of persuasion refers to the degree to which a partys clai$s $ust be proven.

b. "he burden of persuasion is set at one of three levels.

+1, beyond a reasonable doubt in cri$inal cases

+!, preponderance of evidence in $ost civil cases

+3, clear and convincing evidence i.e. liable cases

3. Burden of 0roof

a. "here are two ways to shift a burden of production) +1, affir$ative defenses and +!, presu$ptions.

8. 0resu$ptions

a. A presu$ption arises where one set of facts, Basic Facts& once established& gives rise to another set of facts&

Presumed Facts& absent a contrary showing i.e. the $ailing of a letter creates presu$ption that it wasreceived.

b. 5Bursting Bubble6 "heory

+1, 'nce the opponent presents sufficient evidence that the presu$ed fact is not true& the presu$ption

disappears and the Bubble Bursts.

c. (ebutDability of 0resu$ptions

+1, Most presu$ptions are rebuttable in civil cases but not in cri$inal cases.

+!, #n cri$inal cases& presu$ptions are rare and disfavored since if not rebutted& the result would be a

udg$ent as a $atter of law +which violates 4ue 0rocess and is unconstitutional.

+3, "here are so$e 5soDcalled6 presu$ptions that are irrebuttable* they are really not presu$ptions so $uch

as they are si$ply rules of law.

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IV. RELEVANCY AND ITS LIMITS

A. Ad"issi&ilit# /enerall#

1. 5(elevant Evidence6 +(ule 871,

a. Evidence which tends to $ae the eistence of any fact $ore probable or less probable than it would be

without the evidence is 5relevant evidence.6

b. 9ogical (elevance

+1, Evidence has logical relevance if it has probative value* that is& it is logically relevant if it has so$e logical

tendency to prove or disprove a fact of consequence.

c. 9egal (elevance

+1, 0ublic policy considerations are balanced against the evidences probative value.

!. Ad$issibility of (elevant Evidence +(ule 87!,

a. (elevant evidence is generally ad$issible* irrelevant evidence is inad$issible.

3. Eclusion of (elevant Evidence on Grounds of 0reudice& Confusion& or /aste of "i$e +(ule 873,

a. (elevant evidence $ay be ecluded if the probative value is substantially outweighed by the following si

considerations)

+1, (is of unfair preudice) evidence that invites the ury to $ae a decision on an i$proper ground.

+!, Confusion

+3, Misleading the ury

+8, /aste of ti$e

+>, Undue delay

+@, Cu$ulative and repetitive evidence

Unfair surprise is not a reason to eclude the evidence.

Most 873 obections are properly overruled* the (ule 873 Balancing "est favors ad$ission.

b. So$e Co$$on (elevancy 0roble$s

+1, #n negligence and product liability cases& evidence of prior or subsequent accidents $ay be relevant to prove that

+1, a dangerous condition eisted* +!, a product is defective* +3, the cause of an accident* or +8, notice that a

dangerous condition eisted.

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+!, #n negligence and product liability cases& evidence of prior or subsequent accidents $ay be relevant only if

the other accidents occurred under su&stantiall# si"ilar conditions& that is& only if there was a

5substantial identity of $aterial circu$stances.

c. Absence of 5Si$ilar Accidents6

+1, "he absence of si$ilar accidents can be used to rebut a clai$ that there eisted a dangerous condition

or to show lac of negligence.

8. 'ther "ypes of Evidence

a. 4irect evidence does not require that an inference be $ade. 5# saw 4 shoot the victi$.6

b. Circu$stantial evidence requires that an inference be $ade. -or ea$ple& if a witness testifies 5# didnt

actually see defendant shoot victi$& but # heard the gunshot& i$$ediately turned around& and saw defendant

running down the alley&6 this testi$ony per$its the inference that defendant shot the victi$.

c. (eal evidence refers to obects +lie the $urder weapon, relevant to the case.

B. Character Evidence

1. Civil Cases +-(E 878+a,,)

a. #n general& character evidence or propensity evidence is inad$issible to prove conduct in confor$ity

therewith.

ECE!TI,) 4efendants and victi$s in a cri$inal case when the defendant opens the character issue.

ECE!TI,) /here character is an essential ele$ent of a cause of action& clai$& or defense. #n these cases&

character can be used by opinion& reputation or prove of specific acts.

ECE!TI,) Seual assault or child $olestation civil cases

b. 'rdinarily character $ust be proved only by +1, reputation and +!, opinion.

+1, Specific acts rarely used to prove character.

c. Specific causes of action where character is an issue& and all $ethods can be used& include the following)

+1, 4efa$ation cases.

+!, Child custody cases.

+3, ;egligent entrust$ent

+8, ;egligent hiring

+>, 9oss of consortiu$

!. Cri$inal Cases

a. Entrap$ent& cri$inal fraud& and perury are the few instances where character is at issue in a cri$inal case.

b. An i$portant caveat to note is that& when the cri$inal defendant clai$s selfDdefense& the victi$s character is

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not at issue in the strict sense.

c. #t is also i$portant to note that& in cri$inal cases& it is relatively rare that a cri$inal defendants character is an

essential ele$ent of a charge or defense.

d. FRE $0$(a)(1)

+1, "he prosecution $ay not initially introduce evidence of defendants bad character.

ECE!TI,) 0rosecution $ay be first to offer evidence that the 4 has co$$itted other acts of seual

assault or child $olestation

ECE!TI,) /here court has ad$itted evidence of victi$s character offered by the 4& prosecution can

be first to offer evidence that the 4 has sa$e character trait

+!, "esti$ony about a pertinent trait of the defendant +the defendants good character, must first be raised

by the defendant. "hat is& a defendant $ay 5open the door6 with reputation or opinion evidence of his

good character to prove his innocence and the prosecution $ay so rebut.

+3, Evidence $ust always concern a pertinent character trait. "he prosecution cannot offer rebuttal evidence

that 4 has reputation for dishonesty when assault is at issue in the trial.

+8, 'nce the door to character evidence has been opened& the prosecution $ay rebut with reputation or

opinion evidence& but not specific instances evidence during 4#(EC" EFAM#;A"#';)+>, 'n C('SS EFAM#;A"#';& by any party& reputation& opinion and specific instances are all ad$issible.

e. FRE $0$(a)(-)

+1, A defendant $ay offer reputation or opinion evidence of the bad character of the victi$ +to show

defendant acted in selfDdefense, and the prosecution $ay rebut the sa$e way.

+!, #f all defendant says is that he acted in selfDdefense& the prosecution $ay ;'" offer evidence of

defendants character for violence& unless it is a ho$icide case.

+3, #f defendant offers evidence of victi$s character for violence& the prosecution $ay rebut with evidence of

the victi$s character for nonviolence?peacefulness.

H#C"#M A""AC<E4 -#(S" EFCE0"#';) #- 4 on crossDea$ of prosecution witness elicits testi$ony

that victi$ attaced first& prosecution cannot use reputation evidence to show victi$ was peaceful in

assault case& but can do so in ho$icide case.

+8, Evidence in these cases is li$ited to opinion or reputation evidence only. 'nly eception is that if 4

introduces character witnesses& then the prosecutor can as about specific acts on crossDea$ination.

%owever& evidence is used to udge the credibility of the character witness and not to assu$e that the 4

has a particular character trait and therefore& $ust have co$$itted a cri$e.

f. FRE $0$(&) 2IIC4 Rule

+1, Evidence of character $ay be ad$issible when offered for a purpose other than to show conduct in

confor$ity with ones character.

+!, Circu$stantial evidence of other cri$es& wrongs or acts is generally inad$issible& but $ay be offered to

prove the following +5M#M#C6,)

M D Motive

# D #ntent

M I Avoidance of Mistae

# D #dentity

C I Co$$on plan or sche$e

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+3, M#M#C evidence $ay have occurred before& during& or after the date of the offense.

3. %abit) (outine 0ractice +(ule 87@,

a. Evidence of the habit of a person& or routine practice of an organiJation& whether corroborated or not and

regardless of the presence of eyewitnesses& is relevant to prove conduct in confor$ity of the habit.

9oo for these inds of words) always, automatically, regularly, instinctively, without fail, habitually .

But generally& not words lie) usually, often, frequently .

b. A party $ay testify to his own particular habit.

8. 9egal (elevancy +-(E 87I811,

a. Evidence& even though relevant& $ay be barred due to public policy considerations.

b. u&se5uent Re"edial easures +S(Ms, +(ule 87,

+1, Evidence of S(M is inad$issible to prove negligence& culpable conduct& design defect& or the need for a

warning.

+!, S(Ms can be used +1, to sho6 o6nershi or control& +!, to i"each& or +3, to sho6 the feasi&ilit# of

recautions.

+3, "he ti$ing of the re$edial $easures covered by this rule $ust be subsequent to the incident at issue in

the case.

+8, "he public policy of this rule is to encourage persons to fi dangerous conditions and to $ae products

safer.

c. /ith respect to the -easibility of 0recautions

+1, #f defendant clai$s 5a different accelerator design was not feasible6 to prevent such accidents& evidence

that defendant did $ae subsequent changes to $ae the design of the accelerator safer is ad$issible

to refute defendants clai$* this rule applies in negligence and products liability cases.

d. Co"ro"ise and ffer to Co"ro"ise (Rule $07)

+1, #n general& evidence of an offer to settle a clai$& which is disputed either as to validity or a$ount& is

inad$issible to prove liability.

+!, "he public policy of this rule is to encourage court settle$ents.

+3, Evidence of an offer to co$pro$ise $ay not be used to i$peach with a prior inconsistent state$ent.

+8, An eception to the general rule eists* evidence of a co$pro$ise or offer to co$pro$ise is ad$issible

(1) to sho6 &ias or re8udice9 (-) to negate a contention of undue dela#9 or (3) to sho6 efforts to

o&struct a cri"inal investigation.

"here $ust be

a dispute as to a$ount or fault +liability,* an offer is ad$issible as an ad$ission if both fault and da$ages are

ad$itted& '( where no clai$ has been filed or threatened.

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e. !a#"ent of edical and i"ilar E:enses (Rule $0;)

+1, Evidence of offering to pay $edical +hospital or si$ilar, bills is inad$issible to prove liability for an inury

where no clai$ has been $ade.

+!, But note) State$ents that are $ade while offering to pay $edical or si$ilar epenses are ad$issible.

f. Inad"issi&ilit# of !leas< !lea iscussions< and Related tate"ents (Rule $10)

+1, A plea and any state$ents $ade during plea negotiations by a defendant in a civil or cri$inal proceeding

will be inad$issible against the defendant in a later proceeding.

+!, "his rule applies to +1, pleas of guilty later withdrawn* +!, pleas of nolo contendere +no contest,* +3, plea

colloquy with udge& and +8, offers to plead guilty +i.e.& any state$ents by defendant during plea

negotiations,.

+3, "his rule does not apply to state$ents $ade to the police2onl# to state"ents "ade to the

rosecutor or her designee +a plea bargain is a contract,.

+8, Eceptions) #f part of evidence is later ad$itted into evidence& rule of co$pleteness can be applied to

ad$it these state$ents* if 4 co$$its perury during plea colloquy& it can be offered* if 4 signs an

agree$ent with prosecutor to waive his 817 rights before the trial and later $aes inconsistent

state$ents at trial& then the prosecutor can use evidence of the waiver to i$peach.

g. %ia&ilit# Insurance (Rule $11)

+1, #n general& evidence that a person was or was not insured is inad$issible to prove negligence or fault&

$uch lie the rule of subsequent re$edial $easures.

+!, Eceptions to this general rule eist. Evidence of liability insurance $ay be ad$itted for another purpose&

such as +1, roof of agenc#& +!, o6nershi or control< and +3, &ias or re8udice of a 6itness.

>. e:ual Conduct

a. #n se offense cases& the Rae hield la6 provides a broad rule of eclusion +(ule 81!,.

b. According to the (ape Shield law& in any civil or cri$inal proceeding involving alleged seual $isconduct&evidence offered to show the alleged victi$s seual behavior& seual predisposition& and other seual history

is ecluded.

c. %owever& there is an eception to the (ape Shield law. #n a cri$inal case& secific acts +but not opinion or

reputation evidence, are ad$issible in three instances)

+1, 0rior consensual intercourse) #f the 4 alleges consent and there was a previous consensual relationship

between 4 and victi$& then 4 can bring in that evidence*

+!, "hird party se$en) #f 4s defense is that victi$ suffered inury by having se with another person& then 4

can introduce evidence that victi$ had se with this other person*

+3, Most proble$atic I #f evidence of other seual conduct on the part of victi$& if proof of such evidence is

essential to 4s constitutional rights& then it can be ad$itted i.e. 4 wants to show that victi$ has a $otive

for falsely accusing hi$ b?c she was in a relationship with another person and cheating on hi$& then he

can bring up victi$s relationship with another person in order to defend hi$self.

d. #n civil cases& reputation& opinion and specific evidence is ad$issible of probative values substantially

outweighs unfair preudice and& in the case of reputation evidence& plaintiff put her reputation at issue.

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@. Rules $13=$1' +Evidence of Si$ilar Cri$es in Seual Assault and Child Molestation Cases, I Allows prosecution

to introduce propensity evidence for cases involving seual assault or child $olestation.

a. #n a criminal case in which the defendant is accused of child $olestation or seual assault& specific acts by the

defendant are ad$issible and $ay be considered as they bear on any relevant $atter +including propensity or

disposition to co$$it se offenses,.

b. #n a civil case in which a clai$ for da$ages or other relief is predicated on a partys alleged co$$ission of

seual assault or child $olestation& specific acts by the defendant are ad$issible and $ay be considered as

they bear on any relevant $atter +including propensity or disposition to co$$it se offenses,.

c. A (ule 873 li$itation eists whereby these specific acts are ad$issible subect to the discretion of the udge*

thus& such specific acts $ay be ruled inad$issible if& in the udges discretion& the evidence is too grueso$e or

$ay confuse the ury.

d. #t is i$portant to note these prior acts used in cri$inal cases need not have been tried +i.e.& a prior conviction

or arrest is not required,* they can si$ply be allegations& which $eet the 5preponderance of the evidence6

standard. Even if person was tried previously and acquitted& the evidence of prior acts can be ad$ittedK

e. #t is also worth noting that these specific acts need not have been prior to this particular act* they $ust si$ply

be prior to this prosecution.

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V. PRIVILEGES

A. !rivilege< /enerall# (Rule '01)

1. Rule '01

a. Absent contrary provision by the Constitution& Congress& or the US Supre$e Court& the law of privilege is

governed by the principles of the Co$$on 9aw& subect to superseding state law.

b. Application

+1, #n diversity actions& the privilege of a witness is deter$ined by state law.

+!, #n federal question cases and criminal cases& the privilege of a witness is deter$ined by co$$on law.

!. 0rivilege Under Co$$on 9aw

a. 0rivileges are an eception to the ordinary rules of law that no one has a right to +1, refuse to be a witness& +!,

refuse to disclose any $atter& or +3, refuse to produce any obect or writing.

b. Confidential Co$$unication 0rivileges

+1, "here are four confidential co$$unication privileges recogniJed in federal courts and in all >7 states) (1)

la6#er>client< (-) s#chotheraist>atient< (3) clerg#"an< and ($) hus&and>6ife (sousal and

"arital). ;o federal co$$on law privilege for doctorDpatient privilege.

3. %a6#er>Client !rivilege

a. "he client is the holder and $ay refuse to disclose +and prevent other persons fro$ disclosing, confidential

co$$unications $ade for the purpose of seeing professional?legal advice or services.

b. Confidential co$$unications include oral and written state$ents as well as conduct intended to beconfidential* they do not include observations that the lawyer $aes i.e. bloodDstained clothing worn by client.

c. 0reeisting docu$ents +e.g.& ban records& deeds, are not privileged but the discussion about the$ would be.

d. /or product +$aterial prepared by the attorney in anticipation of litigation, is privileged.

e. #f a third party is present during an attorneyDclient conversation& the attorneyDclient privilege etends to that

third party if that partys presence is essential or necessary to further the purpose of the representation.

f. "he presence of attorney representatives2including people hired by the attorney to assist in the rendition of

legal services2during an attorneyDclient conversation does not destroy the privilege.

g. "he presence of unnown eavesdroppers does ;'" destroy the privilege* however& nown or anticipated

eavesdroppers do destroy the privilege.

h. Clients include any person +public officer& corporation& or association, who is seeing professional legal services or

consulting with the possibility of obtaining such legal services.

i. 9awyers include any person authoriJed or reasonably believed by the client to be authoriJed +i.e.& disbarred

attorney& never licensed, to engage in the practice of law in any state or nation.

. "he holder of the privilege is the client* thus& the client $ay clai$ the privilege or the clients lawyer $ay clai$

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the privilege on the clients behalf.

. /aiver of the 9awyerDClient 0rivilege +(ule >7!,

+1, -ailure to assert a privilege in a ti$ely $anner usually results in a waiver. %owever& the privilege is

waived only to the etent to per$it reasonable scrutiny by the opposing party +partial waiver,.

+!, A waiver of a privilege generally operates as a partial waiver i.e. not all confidential co$$unications are

opened up between lawyerDclient.

+3, A 5blanet6 or total waiver results only if +1, the waiver was intentional and +!, both the disclosed andundisclosed info concerns the sa$e subect $atter.

l. Situations /here "here is ;o 9awyerDClient 0rivilege

+1, "he lawyerDclient privilege is inapplicable where the client co$$unicates onDgoing or future cri$e or

fraud.

+!, "he lawyerDclient privilege is inapplicable where there is a suit between the lawyer and client +e.g.&

$alpractice& breach of duty between lawyer and client,

+3, "he lawyerDclient privilege is inapplicable where two or $ore clients have the sa$e lawyer and later the

oint clients have a falling out which results in litigation& the $atters they discussed with the lawyer are

not covered unless the clients specifically agree otherwise.+8, Client identity is generally not privileged unless disclosure of the identity would disclose other privileged

$atters.

+>, -ee arrange$ents are not privileged unless the disclosure of the fee arrange$ent would disclose other

privileged $atters.

$. 4uration of 9awyerDClient 0rivilege

+1, "he lawyerDclient privilege begins upon the initial contact and persists beyond the clients death.

8. !h#sician and !s#chotheraist>!atient !rivilege

a. "he -(E does not recogniJe a physicianDpatient privilege* where such a privilege eists& it $ust be created bya state law.

;ote rule for physicianDpatient privilege if applicable) 0atient has privilege to revent disclosure of

infor"ation confidentiall# conve#ed to a h#sician where the patient conve#ed the infor"ation for the

urose of o&taining a diagnosis or treat"ent and the infor"ation 6as ertinent to diagnosis or

treat"ent.

0rivilege does not apply where the patient put his condition in issues such as personal inury suit& where the

physicians services were sought to aid in cri$e or fraud or to escape capture after cri$e or tort& in case of

$alpractice arising our of physicianDpatient relationship. California does not recogniJe this privilege in cri$inal

cases. -(E does not recogniJe it at all . Apply state law in diversity cases.

b. The FRE recogni?es s#chotheraist>atient rivilege* it protects confidential co$$unications between a

licensed psychotherapist and a patient who is seeing a diagnosis or treat$ent for a $edical condition

+$edical or e$otional,.

c. "his privilege etends to licensed social worers& psychologists& $ental health specialists& psychiatrists& and

$arriage counselors but not to educational and vocational counselors.

d. Eceptions to the 0sychotherapistD0atient 0rivilege

+1, "his privilege does not etend to the following four circu$stances)

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+a, State$ents $ade that regard co$$it$ent proceedings

+b, State$ents $ade in courtDordered ea$inations i.e. sanity ea$ination

+c, #f so$eone $aes clai$ to da$ages and psychiatric condition such as 0"S4 is part of the clai$&

then it is waived.

+d, -uture cri$es that the patient is planning to co$$it

>. ousal (Testi"onial) !rivilege

a. "he spousal +testi$onial, privilege not to testify against ones spouse in a cri$inal proceeding is held by the

witness* in other words& if the spousal witness wants to testify against a spouse& the nonDtestifying spouse

cannot preclude the testi$ony. "his privilege does not apply in civil cases.

b. "he spousal +testi$onial, privilege is lost upon divorce. But it is applicable to $atters before or during

$arriage.

c. "he spousal +testi$onial, privilege has two eceptions.

+1, 4oes not apply in a civil action between spouses such as divorce or child custody and +!, in a cri$inal

prosecution where one spouse is charged with a cri$e against the other spouse or one of their ids.

d. arital Co""unications !rivilege

+1, "he $arital co$$unications privilege can be asserted by either spouse in either civil or cri$inal

proceedings.

+!, "he $arital co$$unications privilege protects only confidential co$$unications between spouses during

the ti$e of their $arriage. #t does not cover observations.

+3, "he $arital co$$unications privilege is not lost upon divorce.

+8, "he $arital co$$unications privilege does not etend to the following three circu$stances)

+a, 9itigation involves cri$e of one spouse against another or their children.

+b, 4ivorce proceedings

+c, :ointly charged with co$$itting a cri$e i.e. cheating on ta returns

@. Religious !rivilege (!riest !enitent or Clerg#"an !rivilege)

a. "his privilege protects confidential co$$unications $ade fro$ penitent to clergy$an in his professional

capacity as spiritual advisor.

b. "he state$ent needs to have been $ade under conditions of confidentiality.

. Identit# of Infor"er

a. A newsperson has no -irst A$end$ent privilege to refuse to disclose the identity of his sources* however&

13



states can provide 5shield laws6 to afford such a privilege.

. E:ecutive !rivilege

a. "his is a courtDcreated privilege +U.. v. !i"on +18,,* the US Supre$e Court recogniJed such a

Constitutional privilege for the 0resident.

b. Courts decide whether privilege applies.

+1, More liely to sustain specific eecutive privilege clai$s involving national security.

. Fifth A"end"ent !rivilege Against elf>Incri"ination

a. A Constitutional privilege that applies only to evidence that is 5testimonial .6

b. 0resentations of real and de$onstrative for$s of evidence are not protected +e.g.& blood& hair& fingerprints&

scars,.

c. "he accused in a cri$inal trial has a -ifth A$end$ent privilege to refuse to tae the stand.

d. "he prosecution $ay not co$$ent on defendants refusal to tae the stand. #n a civil case& inference is

per$issible

e. 9i$ited waiver of privilege) #f defendant waives his privilege in preDtrial hearing& that preDtrial testi$ony and waiver

cannot be used in the trial.

f. /itnesses or parties in civil cases $ust assert the -ifth A$end$ent privilege on the stand.

g. "he -ifth A$end$ent does not apply when the witness waives the privilege and when the witness is given

i$$unity.

h. #$$unity

+1, "ransactional i$$unity& which is seldo$ used in the federal courts& prevents a witness fro$ being

prosecuted for any cri$e referred to in the testi$ony.

+!, Use i$$unity& which is $ore co$$on& prohibits the govern$ent fro$ using both the actual testi$ony of

the witness& and any evidence derived therefro$& against the witness.

14



VI. WITNESSES

A. itnesses< /enerall#

1. /eneral Rule of Co"etenc# (Rule *01)@

a. Every person is co$petent to be a witness& ecept for the udge.

b. Ecusing a /itness

+1, A court $ay ecuse a witness if the probative value of the witness testi$ony is outweighed by unfair

preudice.

c. 4ead Mans Statutes

+1, Unlie 4ead Mans Statutes& the -(E does ;'" disqualify any witness +survivor, fro$ testifying about

any transaction involving the decedent.

+!, #f a state has a 4ead Mans Statute& the federal court will apply it under the Erie doctrine.

!. %ac of !ersonal no6ledge (Rule *0-)

a. A witness $ay only testify to $atters about which he has personal nowledge.

Applies to hearsay declarant with one eception) party opponents

b. 9ay witnesses $ust have personal nowledge acquired by $eans of one of their five senses.

c. Epert witnesses $ay testify on the basis of vicarious nowledge +because an epert stands on the shoulders

of those in the field who have co$e before,.

3. ath or Affir"ation (Rule *03)

a. A witness $ust declare to testify truthfully by oath or affir$ation 5in a for$ calculated to awaen his

conscience.6

8. Interreters (Rule *0$)

a. An interpreter is qualified the sa$e way as an epert witness& and $ust tae an oath or affir$ation.

>. Co"etenc# of +udge as itness (Rule *0')

a. "he presiding udge $ay not testify in that trial as a witness.

b. "he obection is auto$atic and need not be $ade in order to preserve it for appeal.

@. Co"etenc# of +uror as itness (Rule *0*(a))

a. A uror $ay not testify as a witness before the ury of which he is a $e$ber.

b. "he obection to such testi$ony shall be heard outside the presence of the ury.

c. A uror may not testify +or provide an affidavit, as to the $anner in which the ury reached its decision. -or

ea$ple& a uror cannot testify with respect to +1, any state$ents $ade during deliberations& +!, thought

15



processes by which urors reached their decisions& or +3, votes taen to reach the verdict.

d. A uror may testify as to i$proper outside influences . -or ea$ple& a uror $ay testify as to +1, etraneous

preudicial infor$ation i$properly brought to the urors attention& +!, whether any outside influence was

i$properly brought to bear on any uror& and +3, clerical?secretarial error +i.e.& $istaes on the verdict for$,.

e. A urors affidavit is ad$issible if it concerns whether a uror +1, brought a newspaper into the ury roo$& +!,

$ade an unauthoriJed visit to the scene& +3, accepted a bribe& +8, conducted an outDofDcourt eperi$ent& +>,

received any threat& +@, had i$proper co$$unications with court personnel& or +, brought a bible into the ury

roo$ and read passages suggestive of defendants guilt to other urors.

B. I"each"ent

1. /ho May #$peach +(ule @7,

a. "he credibility of a witness $ay be attaced by any party& including the party calling the witness.

!. Collateral Matter (ule

a. Etrinsic evidence on collateral $atters is inad$issible to i$peach a witness.

b. Etrinsic evidence refers to all evidence other than intrinsic evidence& that is& all evidence other than evidence

produced by testi$ony fro$ witness on crossDea$ination.

3. ethods of I"each"ent

a. According to the Supre$e Court& &ias or re8udice is al6a#s "aterial +never collateral, and so etrinsic

evidence can be used to bring out or show that bias or preudice as long as witness is given opportunity to

eplain or deny

b. ensor# defects2a difficulty or inability to observe& co$$unicate& re$e$ber2are always relevant& never

collateral.

8. Evidence of /itnesss Character for Untruthfulness +(ule @7a,

a. !oor character@ A witnesss character for untruthfulness is always $aterial and $ay be attaced by using

reputation or opinion evidence. Etrinsic evidence is ad$issible.

b. A witnesss character for truthfulness can be shown by reputation or opinion evidence only if the witnesss

credibility for truthfulness has first been attaced.

c. CrossDea$ination about specific acts that reflect on his truthfulness such as perury or fraud is acceptable.

d. Evidence of itnesss Conduct or Bad Acts +(ule @7a,

+1, #$peach$ent with nonDconviction $isconduct evidence bearing on truthfulness) Specific instances of theconduct that did not result in conviction can be used to i$peach in both civil and cri$inal cases if the acts

involved lying. ;ote that theft is not lying.

+!, #f the witness lies about the specific instance& etrinsic evidence is inad$issible to prove the prior

dishonest act.

+3, "he ea$iner is bound by the witnesss answer in the sense that etrinsic evidence cannot be

introduced to contradict witnesss answer& but ea$iner $ay as followDup questions to try and get the

witness to ad$it or change answer.

>. I"each"ent &# Evidence of Conviction of Cri"e +(ule @7,

16



a. Applies in both civil and cri$inal cases* applies to all witnesses.

b. -elonies2-(E @7+a,+1, D Cri$es punishable by $ore than a year. Misde$eanors that do not involved false

state$ents are inad$issible to i$peach.

+1, -elonies that do not involve false state$ents +e.g. $urder& robbery& rape, $ay be ad$issible subect to

the (ule 873 balancing test +i.e.& ecluded if the probative value is substantially outweighed by unfair

preudice,.

#n the case of criminal defendant, we reverse this test. $efault is prosecutor cannot use $%s old

conviction, unless prosecutor can show that the probative value outweighs prejudice.

c. Cri"es involving dishonest# or false state"ent2-(E @7+a,+!,

+1, Ad$issible as a $atter of right +i.e.& no balancing,& as long as less or equal to 17 years old. #f cri$e

readily involves dishonesty or false state$ent& then no balancing test. Such cri$es include perury&

forgery& fraud.

;'"E) Mae sure the evidence is offered not for propensity but for i$peach$ent.

d. FRE *0;(&) 10>Dear Rule

+1, Convictions $ore than 17 years old are inad$issible to i$peach unless the probative value substantially

outweighs the preudicial effect. ;otice to the opponent is required.

+!, &he '()year time limit is $easured fro$ the start of the later of either +1, the date of conviction or +!, the

date of release fro$ confine$ent& whichever is later.

e. :uvenile Adudications

+1, #nad$issible against the accused if he testifies.

+!, -or all other witnesses& discretionary +civil or cri$inal cases,2ad$issible& subect to the courts

discretion. #f ad$ission is necessary for a fair deter$ination of the issue of guilt or innocence.

f. Convictions under Appeal

+1, Convictions under appeal are ad$issible& but evidence that the conviction is under appeal is alsoad$issible.

g. Arrest records& indict$ents& and other charges

+1, "hese are inad$issible under (ule @7.

@. (eligious Beliefs or 'pinions +(ule @17,

a. Evidence of a witnesss religious beliefs is inad$issible to i$pair or enhance credibility.

C. E:a"ination of itnesses

1. Mode and 'rder of #nterrogation and 0rosecution

a. "he udge +the court, shall control the ea$ination of witnesses and presentation of evidence to effectively

ascertain the truth and prevent harass$ent of witnesses.

b. 9eading Luestions2(ule @11

+1, 'n direct ea$ination& leading questions are generally not allowed.

+!, 'n crossDea$ination& leading questions are li$ited to the scope of direct and to $atters affecting

17



credibility +i$peach$ent questions,.

+3, Although generally not allowed on direct ea$ination& leading questions $ay be appropriate in the

following five circu$stances) +1, hostile witnesses& +!, adverse witnesses& +3, child witnesses& +8, to

solicit preli$inary bacground infor$ation& and +>, to refresh witnesss recollection.

!. /riting Used to (efresh Me$ory +(ule @1!,

a. Anything can be used to refresh the recollection of a witness. Steps)

1. Give the copy of the evidence to the udge if the udge lies to see it

!. Give a copy to opposing counsel. "he opponent $ay inspect& crossDea$ine the witness and offer into evidence

anything used to refresh the $e$ory of the witness& as a way to i$peach witness.

3. Mar it as an ehibit for identification. "he proponent does not need to ad$it into evidence what he used to

refresh.

8. As the witness to read the docu$ent silently

>. "ae the evidence bac. As the witness to independently testify

(ecorded recollection eception to the hearsay rule)

+1, "he witness once hand personal nowledge of the facts.

+!, "he docu$ent was $ade by the witness or under the witness direction or adopted by the witness

+3, "he docu$ent was written or adopted at a ti$e when facts were fresh in the witness $e$ory

+8, "he docu$ent was accurate when $ade

+>, "he witness now has insufficient recollection to testify as to the $atters contained

b. Using 0rivileged Material to (efresh

+1, /here privileged $aterial is used to refresh& the court will rule a waiver has occurred and allow the

adverse party to inspect.

3. !rior tate"ent of itness +(ule @13,

a. 0rior consistent state$ent is not hearsay and ad$issible for all purposes if $ade before bribe or inconsistent

state$ent. 'therwise it is inad$issible for any purpose. A rior inconsistent state"ent +50#;S6, that is not5sworn6 and is ad$issible only to i$peach ;'" "' 0('HE "(U"% '- 0(#'( #;C';S#S"E;"

S"A"EME;".

;'"E) #f 0#S of witness was given under oath at trial or deposition& then it is not hearsay and ad$issible for all

purposes.

"hree step approach to ad$issibility of i$peach$ent evidence)

1. #s source of i$peach$ent etrinsic evidence or testi$ony at this proceeding of witness being i$peached

18



!. #f etrinsic& is it ad$issible given i$peach$ent technique Etrinsic evidence is inad$issible to contradict

collateral $atter.

3. Any other foundation require$ents

a. Etrinsic evidence of a prior inconsistent state$ent by a witness $ay be ad$issible provided +1, the

witness is afforded an opportunity to eplain or deny the evidence at so$e point during the trial and

+!, opposing counsel is afforded an opportunity to interrogate the witness unless the 5interests of

ustice6 require otherwise.

b. 0#;S $ay be oral or written* the contents of the writing need not be shown to the witness but $ust be shown

to opposing counsel upon request.

8. Calling and Interrogation of itness &# Court +(ule @18,

a. "he court +the udge, on its own $otion $ay call witnesses and all parties $ay ea$ine any witness called by

the court.

b. "he court $ay also interrogate any witness called by a party.

>. E:clusion of itnesses +(ule @1>,

a. #n general& at the request of a party& the court shall order witnesses ecluded& so that they cannot hear

testi$ony of other witnesses.

b. %owever& there are three eceptions to this rule* it does not authoriJe the eclusion of the following)

+1, Cannot eclude parties to the case and their representatives

+!, 0ersons whose presence is essential to the trial i.e. lawyers

+3, And in cri$inal cases& prosecutor is allowed to have so$eone who has assisted the prosecutor.

(e$edy) $istrial& witness in conte$pt. Co$plaining party has to show that eclusion is not har$less error.

Evidence to suort 6itness credi&ilit# is inad"issi&le unless credi&ilit# of 6itness has &een attaced or

i"eached as to truth>telling.

1. #f character of witness is attaced by character witnesses who give opinion or reputation& or under crossD

ea$ination by prior acts& or character of witness for truthDtelling is attaced by using prior convictions& then it is

clear that character of witness for telling truth has been i$peached and the party who called the witness can

rebut that with good character for truthDtelling.

!. "he $ere fact that witness is biased or preudiced is not attac on witness character for telling the truth. Sa$e

for prior inconsistent state$ent.

19



VII. OPINIONS AND EXPERT TESTIMONY

A. Acceta&le Testi"on#

1. inion Testi"on# &# %a# itnesses (Rule 01)

a. #f the witness is not testifying as an epert& any testi$ony given that is an opinion or an inference $ust be +1,

rationally based on the perception of the witness& +!, &ased on ersonal no6ledge< and +3, helful to a

clear understanding of the 6itnesss testi"on# or the deter"ination of a fact in issue .

b. 0roper Scope of ;onDEpert 'pinion "esti$ony

+1, Ea$ples of the proper scope of nonDepert opinion can be re$e$bered using the $ne$onic

5HEM0SS.6

Halue of property

E$otions

Measure$ents i.e. speed of auto

0hysical state such as intoication& fat or sli$

Sensory descriptions

Sanity +of testator in will cases,

c. #$proper Scope

+1, 'pinions on legal $atters +contributory negligent& the for$ing of a contract& the use of ecessive for$,

stated in legally conclusory ter$s are not appropriate.

!. Testi"on# &# E:erts (Rule 0-)

a. "o testify as an epert& the witness $ust $eet certain require$ents +5S<EE"6,) sill& nowledge& education&

eperience& training. #f so&

i. helpful to ury

ii. witness $ust be qualified

iii. witness $ust believe in opinion to reasonable degree of certainty

iv. opinion $ust be supported by proper factual basis

v. opinion $ust be based on reliable principles that were reliably applied to the facts in the case I4aubert?<u$ho standard

b. #f the witness is testifying as an epert& the subect of that testi$ony $ust be +1, appropriate and +!, relevant

or helpful to assist the ury& as in uses specialiJed nowledge to reach conclusion the average uror could not

figure out for herself.

c. #f the witness is testifying as an epert& any testi$ony given that is an opinion $ust be based on reliable

$ethods& devices& or techniques and reliably applied to the facts of the case.

d. au&erts /uidelines for eter"ining Relia&ilit# of E:ert Testi"on#

+1, "he Supre$e Court offered a list of factors +5"A0ES6, that could be considered by udges when

20



deter$ining the reliability of an eperts opinion testi$ony. "rial udges have discretion to apply the

following)

"ested I %as the theory been tested

Acceptance I #s the theory generally accepted in the scientific co$$unity

0eer review I #s it published in peerDreviewed ournals

Error rate I /hat is the error rate& if any

Standards I Are there standards developed in the scientific co$$unity for deter$ining whethertheories have been appropriated applied

B. Basis of inion Testi"on# &# E:erts (Rule 03)

1. "hree Bases

a. "he eperts opinion testi$ony can be based on the eperts own personal nowledge.

b. "he eperts opinion testi$ony can be based on facts or hypotheticals presented at trial.

c. "he eperts opinion testi$ony can be based on facts acquired prior to trial* these outDofDcourt facts $ust be ofthe type 5reasonably relied upon6 by other eperts in the particular field.

;'"E) E:ert can rel# on inad"issi&le evidence in for"ing oinion. CrossDea$iner can bring up basis

for opinion even if it is inad$issible. 0roponent cannot bring up inad$issible evidence unless udge says that

probative value of the evidence substantially outweighs the ris of unfair preudice. "hen& there would be a

li$iting instruction.

C. isclosure of Facts or ata nderl#ing E:ert inion (Rule 0')

1. 4irect v CrossDEa$ination

a. An epert $ay testify and give reasons without first testifying to the underlying facts or data& unless the courtrequires otherwise* however& the epert $ay be required to disclose these facts on crossDea$ination.

. inion on lti"ate Issue (Rule 0$)

1. General (ule

a. An epert $ay give an opinion or inference that e$braces an ulti$ate issue.

Eceptions) Epert cannot testify on legal conclusions i.e. whether 4 was guilty of contributory negligence& 4

was guilty of the cri$e& witness told the truth or not.

!. 9i$itation in Cri$inal Cases

a. An epert $ay not give an opinion as to whether a cri$inal defendant did or did not possess the $ental state or

condition that constitutes an ele$ent +or defense, of the cri$e charged. Epert can only diagnose $ental

condition and eplain what it is.

#n a civil case& epert can testify as to the $ental condition of the testator.

21



VIII. HEARSAY

A. Gearsa# (Rule 701)

1. 4efinitions

a. *earsay is an outDofDcourt state$ent& other than one $ade by the declarant while testifying at trial& offered to

prove the truth of the $atter asserted.

b. A (ule 71 statement is either +1, an oral or written assertion or +!, nonDverbal conduct intended as an

assertion.

c. +ssertive conduct is conduct intended to co$$unicate as a substitute for words +e.g.& pointing a finger to give

a direction* shaing a head yes or no* a s$ile& win& or obscene gesture* a setch by a police artist,.

d. ;onDassertive Conduct

+1, ;onDassertive conduct is nonDhearsay.

+!, "he following are so$e ea$ples) +1, videotape showing a defendants de$eanor* +!, defendant waling

with a li$p or an unsteady gait due to inury or intoication* +3, defendant taling with slurred speech* +8,

defendant hiding fro$ police or fleeing the scene* and +>, defendant hiding evidence.

;'"E) State$ent has to be $ade by hu$an being to be an assertion.

B. Anal#sis of Gearsa# Issues

1. -ocus on the words in question

!. 4eter$ine who the declarant is.

3. /hether the words declarant has spoen or declarants conduct $ade an assertion.

8. -or what purpose is the assertion being introduced into evidence #f it is to prove truth of the assertion& then it is

hearsay. #dentify the state$ent& and consider why it is offered and what it would be relevant to prove in the partys

case. "hen consider whether ury would be $isled if the out of court speaer +declarant, was lying or $istaen #f

yes& then it is hearsay. #f no& not hearsay.

>. #f hearsay& see if any of the eceptions to hearsay apply.

C. Evidence ffered for ,on>Gearsa# !uroses

1. 'ffering state$ents to show effect on the listener i.e. landlord received notice that tenant wanted to cancel the

lease& super$aret put on notice that there is oil spill on floor in a negligence action& 4 testifying that there was a

warning sign in a contributory negligence case. "hese include state$ents offered to create $otive i.e. husband told

by Ben that wife was having etraD$arital affair& and she ended up dead. Bens state$ent to husband can be

introduced. "hese are not offered to prove truth of the $atter asserted.

22



!. State of $ind I 5# a$ ;apolean Bonaparte.6 0rove that person is suffering fro$ delusion.

3. Herbal acts I /ords with independent legal significance i.e. offer and acceptance& defa$atory state$ents& words

that are a cri$e when uttered D 5# will have se with you for N!776 and threats in order to etort& 5"hat is $y land6 in

an adverse possession case.

8. /ords that establish condition of the speaer or speaers nowledge of facts are ad$issible.

>. /ords that have operative quality i.e. calls placed to a ga$bling establish$ent.

. tate"ents 6hich are ,on>Gearsa# (Rule 701(d)) or for BE 2ad"issi&le &ecause not hearsa#4

These are e:e"tions fro" the definition of hearsa# for certain out of court state"ents offered for the truth of

the "atter asserted.

1. Ad"issions or state"ents &# art# oonent. "his is an ee$ption& and thus& not hearsay.

;'"E) 4istinguish party ad$ission fro$ state$ents against interest eception

a. $irect admission is a state$ent of a party offered against hi$ by his opponent& including conduct such as

flight& bribes& failure to turn over evidence& docu$entation sub$itted by the party elsewhere.

b. +doptive admission is an ad$ission by silent acceptance or initial of so$e other persons state$ent.

c. #mplicit admission) Ad$issions by silence require that the party heard and understood the state$ent and thata reasonable person would have denied the state$ent i.e. no response to 5you ran a red light6

d. +uthoried admission is a state$ent by a partys agent or representative such as lawyers state$ent on behalf

of a client& an agents state$ent on behalf of a principal& or a CE's state$ent on behalf of a co$pany.

e. -mployee /icarious0 +dmission is a state$ent of a partys e$ployee offered against the party by the

opponent* the state$ent +1, $ust be $ade during the eistence of the relationship and +!, $ust concern a

$atter within the scope of e$ploy$ent.

#n both cases& authoriJation can be epress or i$plied.

!. CoDconspirators state$ents

a. State$ents of coDconspirators& whether or not a conspiracy is charged& can be used against all other coD

conspirators& even if they are not aware that a conspiracy eists.

b. A state$ent of a coDconspirator can be used against another coDconspirator if four require$ents are $et.

+1, Both the declarant and the party against who$ it is offered& were $e$bers of the conspiracy at the ti$e

the state$ent was $ade.

+!, State$ent has to be $ade during course of conspiracy

23



+3, State$ent has to be $ade in furtherance of the conspiracy

"he state$ents can be used to prove agency authority& e$ploy$ent and conspiracy but contents of state$ents are

not sufficient to establish conspiracy& agency authority or e$ploy$ent.

In addition to the non>hearsa# art# ad"issions< there are three e:e"tions fro" the usual hearsa#

definition.

-or all of the following to be a hearsay ee$ption& there are two ey require$ents)

+1, "he declarant $ust testify at the trial or hearing and +!, the declarant $ust be subect to crossDea$ination

concerning the state$ent.

1. !rior Inconsistent tate"ents ,ER ATG2-(E 71+d,+1,+A,

+1, A prior inconsistent state$ent is per$itted to be offered for its truth if it was 5sworn&6 that is& if it was

subect to penalty of perury +under oath, at a trial& deposition& or other proceeding.

+!, A prior inconsistent state$ent $ade as part of grand ury testi$ony can be offered for its truth.

+3, A prior inconsistent state$ent $ade as part of a coroners inquest can also be offered for its truth.

+8, #n contrast& a prior inconsistent state$ent contained in an affidavit is not ad$issible to prove the truth of

the $atter asserted.

!. !rior Consistent tate"ents2-(E 71+d,+1,+B,

+1, A prior consistent state$ent is per$itted to be offered for its truth if offered to rebut a charge of recent

fabrication or i$proper influence subect to the aboveD$entioned require$ents.

0rior consistent state$ents are rarely tested on the MBE.

3. !rior Identifications2-(E 71+d,+1,+C,

+1, A prior state$ent of identification of a person $ade after perceiving hi$ can be ad$issible.

E. Gearsa# E:cetions@ Availa&ilit# of eclarant Irrelevant (Rule 703)

1. !resent ense I"ressionHRule 703(1)

a. A 5present sense i$pression6 is not ecluded by the hearsay rule& even if the declarant is available as a

witness.

b. A 5present sense i$pression6 is a state$ent $ade by the declarant describing or eplaining an event orcondition $ade while or i$$ediately after perceiving it.

c. A 5present sense i$pression6 has the following characteristics.

+1, 0ersonal nowledge

+!, Spontaneity

+3, Unidentified declarant is alright

24

EFAM

"#0



+8, Can be oral or written i.e. a tet $essage

+>, 4oes not need to be startling

!. E:cited tteranceHRule 703(-)

a. An 5ecited utterance6 is not ecluded by the hearsay rule& even if the declarant is available as a witness.

b. An 5ecited utterance6 is a state$ent relating to a startling event $ade while the declarant was under the

stress of ecite$ent caused by the event or condition.

c. An 5ecited utterance6 has the following characteristics.

+1, Startling event

+!, State$ent does not have to be $ade i$$ediately thereafter as long as person is under the stress or

ecite$ent of the startling event

+3, 0ersonal nowledge

3. tate"ents of a Then>E:isting ental< E"otional< or !h#sical ConditionHRule 703(3)

a. A state$ent of a 5thenDeisting $ental& e$otional& or physical condition6 is not ecluded by the hearsay rule&

even if the declarant is available as a witness.

b. A state$ent of declarants thenDeisting physical& e$otional& or $ental condition is ad$issible if relevant to

show declarants state of $ind.

c. Characteristically& a state$ent of a 5thenDeisting $ental& e$otional& or physical condition6 need not have

been $ade to a $edical person.

d. "his eception to the hearsay rule does not include state$ents of priorDeisting conditions +e.g.& 5# had a

headache6 or 5# did not get any sleep last night6,.

e. "his eception to the hearsay rule also does not generally include state$ents of $e$ory or belief* however&

state$ents of $e$ory or belief $ade by a testator are ad$issible +the 5/ill6 eception,.

8. tate"ents for !uroses of edical iagnosisTreat"entHRule 703($)

a. A state$ent for the 5purpose of $edical diagnosis or treat$ent6 is not ecluded by the hearsay rule& even if

the declarant is available as a witness.

b. 4oes not have to be $ade to a doctor) Characteristically& state$ents for the 5purpose of $edical diagnosis or

treat$ent6 can be $ade to any $edical personnel or other person for the purpose of trans$itting the

state$ent to $edical personnel.

c. State$ents for the 5purpose of $edical diagnosis or treat$ent6 must be useful for diagnosis and treat$ent .

#nad$issible evidence is redacted.

>. !ast Recollection RecordedHRule 703(')

a. A 5past recollection recorded6 is not ecluded by the hearsay rule& even if the declarant is available as a

25



witness.

b. A 5past recollection recorded6 $ay be used where the witness has a present $e$ory proble$2the witness

$ust lac sufficient current $e$ory of the event to testify fully and accurately.

c. "o introduce a 5past recollection recorded&6 the following require$ents $ust be $et.

+1, #f witness does not re$e$ber enough but has a $e$orandu$ they $ade at ti$e they had a clear

$e$ory of the event& and put it into writing& which was accurate& then the $e$o can be read to the ury.

+!, 0aper record of $e$o is not introduced into evidence and it goes into the trial record as so$e

recollection that the witness once had but no longer has.

d. "he adverse party has the right to +1, inspect the recorded past recollection* +!, use it in crossDea$ination*

+3, show it to the ury for co$parison* and +8, introduce relevant portions into evidence.

@. Records of Regularl# Conducted Activit#HFRE 703(*)

a. According to the 5Business (ecords Eception&6 certain business records are not ecluded by the hearsay

rule& even if the declarant is available as a witness.

b. "he 5Business (ecords Eception6 applies to any $e$orandu$& record& report of acts or events made at or

near the time by a person with knowledge& if ept in the course of a regularly conducted business activity & and

if it was the regular practice of that business to $ae such a record or report& as shown by the testi$ony of

the custodian or other qualified witness& provided the infor$ation does not lac trustworthiness.

c. A business record that falls outside the hearsay rule has the following characteristics or $eets the following

require$ents.

+1, (ecord have to be ept in regular course of business i.e. a $e$o prepared for litigation but not in routine

practice does not qualify

+!, %as to be the regular course of business or routine practice of institution to eep that ind of record

+3, (ecord has to be at or near the ti$e

+8, "he person who $aes the record has to have personal nowledge and has to have personal duty to

record or report that nowledge

d. Ea$ples of records $ade in the 5routine practice6 of a business include things such as police accident

reports& sales receipts& hospital records& and payroll records.

e. Authentication of the business records can be $ade by either the custodian of the records or other qualified

witness or by affidavit or stipulation.

. A&sence of Entr# in RecordsHFRE 703() and (10)

a. Evidence that a $atter is not included in records or data co$pilations ept in accordance with the business or

public records may be admitted to prove the nonDoccurrence of the event or the nonDeistence of the $atter.

b. -oundation) the witness must testify that he +1, is fa$iliar with the records& +!, diligently searched the records&

and +3, found no record of the event.

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. !u&lic Records and Reorts HFRE 703(7)

a. A 5public record or report6 is not ecluded by the hearsay rule& even if the declarant is available as a witness.

b. Si$ilar foundation as business records& ecept proponent need not show the record was routinely $ade at or

near the ti$e.

c. 50ublic records and reports6 include records& reports& state$ents& or data co$pilations& in any for$& of public offices or

agencies& setting forth +1, the activities of a u&lic office or agenc# or +!, "atters o&served ursuant to dut#

i"osed &# la6 as to 6hich there 6as a dut# to reort .

d. #n cri$inal cases& this category does not include $atters observed by police officers and other law

enforce$ent personnel. 0olice reports can be introduced against the govern$ent.

e. #n civil cases& factual findings fro$ official investigations pursuant to authority granted by law are generally

dee$ed to be trustworthy* however& these records are inad$issible if the way they were prepared shows a

lac of trustworthiness.

f. -actDfinding reports and factual findings fro$ official investigations are inad$issible against the defendant in a

cri$inal case.

. Records of Jital tatisticsHFRE 703(;)

a. (ecords or data co$pilations of births& deaths or $arriages are ad$issible if the report was $ade to a public

office pursuant to require$ents of law.

17. Records of Religious rgani?ationsHFRE 703(11)

11. arriage< Batis"al< and i"ilar CertificatesHFRE 703(1-)

1!. Fa"il# RecordsHFRE 703(13)

a. State$ents of fact concerning personal or fa$ily history contained in such things as fa$ily bibles& genealogy charts&

inscriptions on fa$ily portraits& engravings on to$bstones& and urns are not ecluded by the hearsay rule& even if

the declarant is available as a witness.

13. Records of ocu"ents Affecting an Interest in !roert#HFRE 703(1$)

18. tate"ents in Ancient ocu"entsHFRE 703(1*)

a. #ncludes state$ents in a docu$ent in eistence !7 years or $ore whose authenticity is established.

1>. aret Reorts< Co""ercial !u&licationsHFRE 703(1)

a. "his category includes state$ents of obective facts but not opinions.

b. Ea$ples include such things as telephone directories& credit reports& retail sales catalogs& <elly Blue Boos&the Oellow 0ages& and the /all St. :ournal.

1@. %earned TreatisesHFRE 703(17)

a. "he 5Epert Eception6 includes state$ents $ade in treatises& tetboos& ournals& and periodicals.

b. A foundation for the 5learned treatises6 authoritativeness must be established by +1, udicial notice& +!, epert

testi$ony& or +3, stipulation.

+1, Subect areas include $edicine& art& science& and history.

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1E. Re.utation A"ong Associates< Fa"il# e"&ers Concerning !ersona Fa"il# Gistor#HFRE 703(1;)

1. Reutation Concerning Boundaries or /eneral Gistor#HFRE 703(-0)

1. Reutation as to CharacterHFRE 703(-1)

!7. +udg"ent of !revious ConvictionHFRE 703(--)

a. -inal udg$ents of previous convictions for felonies are ad$issible.

b. "he udg$ent $ay be used to prove any fact that was essential to the udg$ent.

c. Civil case) :udg$ent $ay be used by any party for any purpose.

d. Cri$inal case) #f offered by prosecution for purpose other than i$peach$ent& udg$ent $ust have been

against the defendant.

!1. +udg"ent as to !ersonal< Fa"il#< or /eneral Gistor#< or Boundaries

a. -inal udg$ents& if essential to a particular case& are ad$issible.

F. Gearsa# E:cetions@ eclarant navaila&le (Rule 70$)

"o recall what constitutes 5declarant unavailability&6 use the $ne$onic 0(#SM.

0rivilege not to testify

(efusal to testify

#ncapacitated

Subpoena

Missing

1. eclarant navaila&ilit# (Rule 70$(a))

a. A declarant is dee$ed unavailable if he asserts a privilege successfully +based upon the udges ruling,.

b. A declarant is dee$ed unavailable if there is a refusal to testify despite a court order.

c. A declarant is dee$ed unavailable if there is incapability due to death or thenDeisting physical or $ental

illness.

d. A declarant is dee$ed unavailable if absent despite a goodDfaith atte$pt to procure a witnesss attendance

+i.e.& subpoena,.

e. A declarant is dee$ed unavailable when& as a witness& the declarant testifies to a lac of $e$ory.

!. For"er Testi"on#HRule 70$(&)(1)

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EFAM

"#0



a. #f the declarant is unavailable as a witness& for$er testi$ony of this declarant is not ecluded by the hearsay

rule.

b. "he unavailable declarants for$er testi$ony $ay be used for its truth only if the following require$ents are

$et.

+1, 0arty wanting to ad$it hearsay evidence has to de$onstrate unavailability of witness A;4

+!, "he party against who$ the testi$ony is now offered had& during an earlier proceeding& an opportunity toea$ine that person and the $otive to conduct hat ea$ was si$ilar to the $otive that the party has

now

'(

+3, in a civil case& the party against who$ the testi$ony is now offered was to present in the earlier

proceeding but has a close privityDtype relationship with so$eone who was a party to earlier

proceedings+a predecessor in interest,

c. A deposition of a witness taen in a civil case $ay be ad$issible in a cri$inal case arising out of the earliercivil case.

d. "esti$ony against the accused fro$ a preli$inary hearing may be ad$itted as for$er testi$ony at trial if

plaintiff witness is unavailable because opportunity and si$ilar $otive tests are usually satisfied.

e. Grand :ury testi$ony is not ad$issible.

3. tate"ents nder Belief of I"ending eathHRule 70$(&)(-)

a. %earsay state$ent by one believing he is about to die and describing cause or circu$stances leading to

i$pending death are ad$issible in civil action and ho$icide prosecution.

b. /ith respect to 5dying declarations6& the udge deter$ines whether declarant subectively believed death was

i$$inent. 4eath need not actually result.

8. tate"ents Against InterestHFRE 70$(&)(3)

a. 4istinguish fro$ party ad$ission) "ypically& these are not state$ents by a party but by other persons.

4eclaration against interest $ust be against interest when $ade. "here is no such require$ent for party

ad$ission.

b. "hese state$ents are not ecluded by the hearsay rule if three require$ents are $et) +1, the declarant is

unavailable& +!, the declarant is a nonDparty& and +3, the state$ent was against the declarants financial

interest when $ade or subected defendant to cri$inal liability.

;'"E) #f state$ent is offered to eculpate accused& there $ust be corroborating evidence to ad$it the state$ent

>. tate"ent of !ersonal or Fa"il# Gistor#HFRE 70$(&)($)

a. "he 50edigree Eception6 refers to state$ents concerning the declarants own relationship by blood& adoption& or

$arriage or other si$ilar fact of personal or fa$ily history.

@. Forfeiture &# rongdoingHFRE 70$(&)(')

a. A state$ent offered against a party who has engaged in wrongdoing that was intended to procure the

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unavailability of the declarant as a witness will be ad$issible +even if it would usually be barred by the

%earsay (ule,.

/. Gearsa# iscellan#

1. Confrontation Clause

a. Under the Sith A$end$ents Confrontation Clause& in a cri$inal case where the declarant is unavailable&

5testi$onial6 hearsay state$ents will be inad$issible unless the defendant is given an opportunity to crossDea$ine the declarant.

b. Crawford v. /ashington D 4eclarant has to be unavailable to testify& state$ent is testi$onial& and 4 has had

no chance to crossDea$ine declarant about the state$ent.

c. 5"esti$onial evidence6 in this contet refers to situations where the pri$ary purpose of the police interrogation

is to prove past events relevant to later cri$inal prosecution. "esti$onial evidence includes such things as +1,

public records used against defendant* +!, a state$ent during police interrogation& including lab or ballistics

report and +3, collecting infor$ation fro$ an infor$ant.

d. 5;onDtesti$onial evidence6 includes situations where the pri$ary purpose of the state$ent is to aid police

during an ongoing e$ergency. "his evidence is ad$issible. %a$$ond

e. #f the hearsay turns out to be 5testi$onial,1 the cure is defendant $ust be given an opportunity to crossD

ea$ine declarant +absent forfeiture,* otherwise the testi$ony is inad$issible.

f. 11 calls $ay be testi$onial or not& depending on the circu$stances of the call.

!. Gearsa# 6ithin Gearsa# (aa< 2ultile Gearsa#4) (Rule 70')

a. /hen faced with two +or $ore, outDofDcourt state$ents& both the pri$ary state$ent and the included

state$ent $ust have a separate basis for ad$issibility. 'therwise& the entire state$ent is inad$issible.

b. #dentify the declarants. "hen as if the state$ents $ade are provided to assert truth of $atter. #f yes& then

figure out if any ee$ptions or eceptions apply.

3. Attacing and uorting Credi&ilit# of eclarant (Rule 70*)

a. #$peach$ent of a hearsay +outDofDcourt, declarant is acco$plished in the sa$e way a declarant on the stand

is i$peached i.e. rebutting an ad$itted present sense i$pression hearsay by i$peaching the witness through

(ule 7@ +prior inconsistent state$ent,.

8. Residual E:cetion (Rule 70)

a. A state$ent not otherwise covered by an eception to the hearsay rule is nevertheless not ecluded by the

hearsay rule under certain circu$stances) +1, state$ent must be $ore probative on point than any other

evidence* +!, the party must give notice to the opposing party* +3, the state$ent must concern a $aterial issue*and +8, the udge must ulti$ately deter$ine whether& in the interest of ustice& the state$ent should be ad$itted.

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IX. AUTHENTICATION AND IDENTIFICATION

A. Re5uire"ent of Authentication or Identification (Rule ;01)

1. Every ite$ of nonDtesti$onial evidence +e.g. writings& photos& guns, $ust be authenticated.

As Condition 0recedent to Ad$issibility

a. As a condition precedent to ad$issibility& authentication requires evidence sufficient to support a finding that

the $atter in question is what its proponent clai$s it to be& through a preponderance of evidence.

b. The 2ufficienc#4 Re5uire"ent

+1, -or purposes of authentication& evidence is 5sufficient6 if a reasonable uror could find& by a

preponderance of the evidence& that it is 5genuine.6

+!, Evidence that is 5sufficient6 for purposes of authentication $ust be ad$itted by the udge* the ury&however& has the final decision as to how $uch weight to give it.

!. 4e$onstrative Evidence

a. 4e$onstrative evidence is a type of tangible evidence for which its relevance depends on its ability to eplain

or si$ulate $aterial facts in the case.

EA!%E) Maps& charts& diagra$s& scale $odels& and visual aids.

b. -oundation

+1, 4e$onstrative evidence $ust 5fairly and accurately6 represent the scene and the witness who testifies to

this $ust be substantially fa$iliar with it.

3. Real Evidence

a. (eal evidence2physical evidence actually connected to the case2is another type of tangible evidence.

EA!%E) /ritings& recordings& Drays& photographs& co$puter printouts& and selfDauthenticatingdocu$ents.

b. "o Authenticate

+1, 0arty ad$ission

+!, 4irect testi$ony by witness) (eal evidence $ay be authenticated by testi$ony fro$ ersonalno6ledge R e#e6itness testi"on#

+3, Epert opinion) (eal evidence $ay also be authenticated by its distinctive characteristics i.e. a

handwriting epert co$pares disputed signature with a genuine ea$ple

c. Fungi&le Ite"s

+1, Authenticating fungible ite$s requires an accounting of its whereabouts fro$ the ti$e of issue until trial

+chain of custody,.

+!, A brea in the chain of custody does not auto$atically render the ite$ inad$issible but will go to the

31



weight of that evidence.

d. !hotograhs and >ra#s

+1, -or these ea$ples of real evidence to be authenticated& they $ust be an accurate portrayal of what it

depicts.

+!, Authentication by the photographer or Dray technician is not required.

8. ocu"ents

a. 4ocu$entary evidence is a type of real evidence.

b. "o Authenticate

+1, 4ocu$ents can be authenticated by so$eone who has firstDhand nowledge of the docu$ent.

c. "he 5(eply6 4octrine

+1, 4ocu$ents can be authenticated with circu$stantial evidence. -or ea$ple& a reply to a letter is

circu$stantial evidence that the reply was written by the person to who$ the original letter was sent.

d. Ancient 4ocu$ents

+1, -or docu$ents that are $ore than !7 years old& they are authenticated if they are found in the place

where one would epect it to be found.

>. Gand6riting

a. %andwriting can be authenticated by +1, a layperson with fa$iliarity with a persons handwriting& +!, by epert

testi$ony& or +3, by co$parison by the trier of fact.

b. #f authentication of handwriting is done by testi$ony fro$ a layperson said to be fa$iliar with a persons

handwriting& that fa$iliarity cannot be acquired for purposes of litigation.

@. Joice Identification

a. All voices $ust be identified when a phone conversation or recording is offered in evidence.

. Telehone Calls

a. "o authenticate that an outgoing call was $ade to a particular phone nu$ber& show that the call was

answered by the person to who$ that nu$ber is assigned.

b. "o authenticate that an inco$ing call was $ade fro$ a particular phone nu$ber& show that there is a reliable

process whereby you are able to identify the source of the call or use circu$stantial evidence.

c. "o authenticate that a call involved a business& show that the call was $ade to the nu$ber assigned to that

business and that the conversation related to transactions reasonably engaged in by that business.

. E:erts

a. Eperts $ay testify to describe how a scientific or technical $ethod produces a specific result and $ay show

how such a process is accurate.

b. Eperts $ay also authenticate a scientific device under 4aubert +or -rye,.

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B. elf>Authentication (Rule ;0-)

1. So$e docu$ents do not need to be certificated because they are selfDauthenticating.

Mne$onic C';"AC

a. Certain docu$ents need no foundation witness to prove they are genuine* a$ong these selfDauthenticating

docu$ents& si are frequently tested on the MBE +5C';"AC6,.

Certified coies of u&lic docu"ents +docu$ents that bear a seal& including foreigndocu$ents,

fficial u&lications +govern$ent pa$phlets and other publications purporting to be issued bya public authority,

,e6saers and eriodicals +including boos,

Trade inscritions +tag or label that purports to have been attached in course of business andindicates ownership& control or origin,

Acno6ledged docu"ents +docu$ents where the original signature is attested before anotary,

Co""ercial aer< business records& and related docu$ents

C. u""ar#

1. Mne$onic '0(A%

a. /hen analyJing issues in this area& consider the following considerations +5'0(A%6,)

'riginal writing I 4ocu$ent has to be original& unless BE( allows us to introduce

0rivileged I #s it privileged

(elevant I #s it relevant

Authenticated I Can it be authenticated

%earsay I 4oes it contain hearsay and can we overco$e it

b. Authentication for nonDunique ite$s ) %ow do you authenticate ite$s that are facially indistinguishablefro$ other lie ite$s e.g. a bag of white powder& generic handgun. "o authenticate& proponent $ust laychain of custody de$onstrating that this is the specific ite$ proponent clai$s it to be.

33



X. C';"E;"S '- /(#"#;GS& (EC'(4#;GS& A;4 0%'"'G(A0%S

A. riginal ocu"ent RuleBest Evidence (Rule 100-)

1. Rule 100-

a. "o prove the content of a writing& recording& or photograph& the original writing& recording& or photograph is

required& ecept as otherwise provided in these rules or by Act of Congress.

b. 0urpose

+1, (educe the ris of fraud& forgery or $istae.

C'MME;") "his rule broadly covers every tangible process to record words& letters& nu$bers&pictures& and sounds.

EA!%E) -a& e$ail& Fero copy& carbon copy& videotape& C4?4H4?M03& Drays.

!. Alica&ilit#

a. "he 5Best Evidence (ule6 applies only 6here the contents of a 6riting are in issue. /ritings include

videos& photos& Drays& audio recordings& co$puter diss& or any tangible collection of data. "he rule requiresoriginal& but with $any eceptions.

b. 9egally 'perative 4ocu$ents

+1, "he contents of a writing are in issue with respect to legally operative docu$ents* the contents of such

docu$ents shape& establish& destroy so$e legal relationship.

+!, "he contents of a writing are in issue also with respect to docu$ents whose contents are relevant to

proving so$e $aterial fact to the case.

c. #ndependent Source (ule

+1, "he 5Best Evidence (ule6 does not al# 6hen there is an indeendent source to prove a $aterialfact to the case.

+!, Ea$ples include sales receipts& birth certificates& death certificates& and $arriage certificates.

+3, #f& however& a writing is offered to prove a $aterial fact even when there is an independent source to

prove this fact& the original $ust be offered unless otherwise ecused.

d. #nscribed Chattel

+1, "he 5Best Evidence (ule6 does not apply to inscribed chattel +e.g.& license plates& police badges&

to$bstones& road signs,.

3. riginals

a. An original includes either the original itself or a duplicate.

EFCE0"#';) Evidence is not ad$issible where there is a genuine question as to authenticity of the original.

b. Substitutes for 'riginals

+1, "here are three substitutes for originals) +1, duplicates +Fero copies,& +!, certified copy of a public

record& and +3, su$$aries of volu$inous records.

34



B. Ad"issi&ilit# of ther Evidence of Contents (Rule 100$)

1. Mne$onic 9'CS

a. "he original of a writing& recording or photograph is not required if one of the following four circu$stances

+59'CS6, applies. Secondary evidence can be sub$itted.

9ost original

'pponent has original and will not sub$it

Collateral $atter in litigation

Subpoena fails

0roponent who destroys the evidence in bad faith cannot testify about the contents over a best evidence rule obection.

C. u""aries (Rule 100*)

1. Contents of Holu$inous /ritings& (ecordings or 0hotographs

a. #f the contents are so volu$inous that they cannot conveniently be ea$ined in court& they $ay be presented

in the for$ of a chart& su$$ary& or calculation.

!. -oundation

a. Show that the originals the$selves would be ad$issible.

b. Give the opponent reasonable pretrial access.

c. %ave su$$aries properly authenticated by the preparer.

Documents

MBE Subjects II_Evidence Outline