BASICS PA HEAR PICCASO BROWN P Privileges A - Authentication HEAR Hearsay P Plea I Impeachment C Character Evidence C- Compromise A Admissibility S SRM

S SRM O Other bad acts B est Evidence Rule R Relevance O Opinion testimony W !itnesses N "otice #$udicial notice% State the ob$ection that is most li&ely to be raised' then discuss the arguments (or admission in response and reach a conclusion as to the validity o( the ob$ection) *iscuss both sides o( the argument I( there is another ground (or ob$ecting to a piece o( evidence' discuss in same +ay) RULINGS ON EVIDENCE Federal Rule 103. Rul !"# $! E% de!&e '() Re&$rd $* $**er a!d rul !" ,he court may add any other or (urther statement +hich sho+s the character o( the evidence' the (orm in +hich it +as o((ered' the ob$ection made' and the ruling thereon) It may direct the ma&ing o( an o((er in -uestion and ans+er (orm) '&) Hear !" $* +ur, In $ury cases' proceedings shall be conducted' to the e.tent practicable' so as to prevent inadmissible evidence (rom being suggested to the $ury by any means' such as ma&ing statements or o((ers o( proo( or as&ing -uestions in the hearing o( the $ury) -e.a# Rule 103. Rul !"# $! E% de!&e '() Re&$rd $* O**er a!d Rul !". ,he o((ering party shall' as soon as practicable' but be(ore the court/s charge is read to the $ury' be allo+ed to ma&e' in the absence o( the $ury' its o((er o( proo() ,he court may add any other or (urther statement +hich sho+s the character o( the evidence' the (orm in +hich it +as o((ered' the ob$ection made' and the ruling thereon) ,he court may' or at the re-uest o( a party shall' direct the ma&ing o( an o((er in -uestion and ans+er (orm)

DIFFERENCE BE-WEEN FRE / -RE0 -RE ma&es a -uestion0and0ans+er (orm o( o((er o( proo( mandatory at the re-uest o( either party FRE -uestion and ans+er (orm is discretionary +ith the court) N$1e#0 O((er o( proo( to preserve error in the e.clusion o( evidence the substance o( the evidence should be sho+n to the court by an o((er o( proo() An o((er o( proo( enables o Appellate court to determine +hether e.clusion +as erroneous and harm(ul o Permits trial $udge to reconsider the ruling in light o( the actual evidence) Sometimes the o((er o( proo( is evident (rom the conte.t +ithin +hich the -uestions +ere as&ed1 o(ten during cross0e.amination) I* ,$u l$#e a1 a! e% de!1 ar, 2ear !"3 1 # ,$ur re#4$!# ( l 1, 1$ 5a6e a! $**er $* 4r$$*. I* ,$u d$!713 ,$u l$#e 12e $44$r1u! 1, 1$ d$ 1 $! a44eal. I1 8US- (e $! 12e re&$rd. AD8ISSIBILI-9 Federal Rule 10:. Prel 5 !ar, ;ue#1 $!# 'a) ;ue#1 $!# $* ad5 ## ( l 1, "e!erall,. Prel 5 !ar, <ue#1 $!# concerning the -uali(ication o( a person to be a +itness' the e.istence o( a privilege' or the admissibility o( evidence #2all (e de1er5 !ed (, 12e &$ur13 sub$ect to the provisions o( subdivision #b%) In ma&ing its determination it is not bound by the rules o( evidence e.cept those +ith respect to privileges) '() Rele%a!&, &$!d 1 $!ed $! *a&1. !hen the relevancy o( evidence depends upon the (ul(illment o( a condition o( (act' the court shall admit it upon' or sub$ect to' the introduction o( evidence su((icient to support a (inding o( the (ul(illment o( the condition) -e.a# Rule 10:. Prel 5 !ar, ;ue#1 $!# 'a) ;ue#1 $!# $* Ad5 ## ( l 1, Ge!erall,. Preliminary -uestions concerning the -uali(ication o( a person to be a +itness' the e.istence o( a privilege' or the admissibility o( evidence shall be determined by the court' sub$ect to the provisions o( subdivision #b%) In ma&ing its determination the court is not bound by the rules o( evidence e.cept those +ith respect to privileges) '() Rele%a!&, C$!d 1 $!ed $! Fa&1. !hen the relevancy o( evidence depends upon the (ul(illment o( a condition o( (act' the court shall admit it upon' or sub$ect to' the introduction o( evidence su((icient to support a (inding o( the (ul(illment o( the condition) DIFFERENCE BE-WEEN FRE / -RE0 N$!e Scope 2 Purpose o( Rule 3456 o Admissibility o( evidence o(ten depends upon an issue o( (act #E.) I( hearsay is o((ered as a dying declaration' its admissibility depends on +hether declarant believed his death +as imminent +hen he made the statement% this is a preliminary -uestion7 o Rule 345 sets (orth the respective roles o( the $udge and the $ury in deciding preliminary -uestions C$!d 1 $!al rele%a!&e0 evidence is relevant only i( certain other evidence is (irst introduced

o E.) ,he love letter is conditionally relevant only i( rad is the author) -2e +ud"e3 !$1 12e +ur,3 de& de# 4rel 5 !ar, <ue#1 $!# $* *a&1 12a1 de1er5 !e 12e ad5 ## ( l 1, $* e% de!&e. o H$= 5u&2 4r$$* # !e&e##ar, 1$ 5a6e 12e &$!d 1 $!al rele%a!&, l !6> Relatively lo+ threshold) ?ud"e d$e#!71 2a%e 1$ (e &$!% !&ed 12a1 Brad =r$1e 12e le11er3 (u1 12a1 12ere # e!$u"2 e% de!&e 12a1 a REASONABLE +ur$r COULD * !d 12a1 Brad =r$1e 12e l$%e le11er. ,he (unction o( the $udge is merely to determine +hether a prima (acie case has been presented' "O, to decide the actual issue o( genuineness) E.) Even i( $udge is not convinced that the voice on the tape is *8s' so long as $ury CO9:* reach a contrary conclusion' it must be given the opportunity to do so) La1er &$!!e&1 $!@AC$!!e&1 !" u4A o !here evidence is presented that is sub$ect to e.clusion on an ob$ection that its relevancy has not been sho+n or that it lac&s ade-uate (oundation' a $udge may admit the evidence conditionally upon counsel8s promise to ;connect it up later)< o I( counsel never connects up' $udge can stri&e evidence and instruct $ury to disregard it' !hether preliminary -uestions must be out o( the hearing o( the $ury is up to the trial court $udge8s discretion +hether the matters e.pose the $ury to pre$udicial matters' RELEVANCE

Federal Rule :01. De* ! 1 $! $* BRele%a!1 E% de!&eA =Relevant evidence= means evidence having any tendency to ma&e the e.istence o( any fact that is of consequence to the determination o( the action more probable or less probable than it +ould be +ithout the evidence) -e.a# Rule :01. De* ! 1 $! $* BRele%a!1 E% de!&eA =Relevant evidence= means evidence having any tendency to ma&e the e.istence o( any (act that is o( conse-uence to the determination o( the action more probable or less probable than it +ould be +ithout the evidence) DIFFERENCE BE-WEEN FRE / -RE0 N$!e ,o be relevant' evidence must possess logical probative value to+ard some (act that is legally o( conse-uence to the case) o Relevance is not whether a piece of evidence proves the ultimate fact, but whether it tends to prove the ultimate fact. Ho+ do you &no+ ho+ inherently strong evidence is> o It is both the number of steps and the strength of the inference that each of step allows.

o ,here is nothing inherently strong about direct evidence and nothing inherently +ea& about circumstantial evidence it all depends) *irect evidence6 proves a conse-uential (act directly1 no in(erence has to be dra+n (rom the evidence to the conse-uential (act) Circumstantial evidence6 re-uires that the (act0(inder dra+s in(erences (rom the evidence in order to conclude that some conse-uential (act e.ists Whether a proposition if of consequence to the determination of the action is governed by substantive law. o :oo& to +hat is trying to be proved) E.) I( Pr is trying to prove possession o( a gun' (act that gun +as loaded is not relevant) How probative does a piece of evidence have to be in order to be relevant? o I1 5u#1 2a%e 12e l$" &al *$r&e 1$ a**e&1 a ra1 $!al *a&1 * !der7# e#1 5a1 $! $* 12e l 6el 2$$d $* 12e e. #1e!&e $* a 5a1er al *a&1. Incremental changes it does "O, have to prove the case7 I( be(ore the evidence you thought there +as a ?@A chance that * did it and a(ter the evidence you thin& that there +as a ?BA 0 it is relevant7 CC Re5e5(er 12 # = 12 2ear#a, 12e #1a1e5e!1 d$e#!71 2a%e 1$ 4r$%e a!,12 !"D 1 +u#1 !eed# 1$ -END 1$ 4r$%e #$5e12 !" *eterminations o( relevancy under Rule 543 are o(ten balanced under 54?1 i( it is o( doubt(ul relevance under 543 it +ill probably be e.cluded under 54?)

E.a54le# $* 2$= e% de!&e &a! (e rele%a!1 Admissions by conduct o ,he probative value o( (light as circumstantial evidence o( guilt depends upon the strength o( the in(erences Crom the de(endant behavior to (light Crom (light to consciousness o( guilt(rom consciousness o( guilt to consciousness o( guilt concerning the crime charged(rom consciousness o( guilt concerning the crime charged to a&1ual guilt o( the crime charged) o Other conduct ,hreats' bribes' use o( a (alse name' re(use to provide hand+riting samples' etc Occurrence or absence o( similar events o !ith negligence or product liability cases' past occurrences o( absence o( similar accidents may be relevant but they must be substantially similar1 similarity o( conditions are important E.) Side+al& slip0and0(all case in Maine o I( other accident is used to sho+ notice' similarity o( condition is not as important Federal Rule :0E. Rele%a!1 E% de!&e Ge!erall, Ad5 ## (leD Irrele%a!1 E% de!&e I!ad5 ## (le All relevant evidence is admissible' e.cept as other+ise provided by the Constitution o( the 9nited States' by Act o( Congress' by these rules' or by other rules prescribed by the Supreme Court pursuant to statutory authority) Evidence +hich is not relevant is not admissible)

-e.a# Rule :0E. Rele%a!1 E% de!&e Ge!erall, Ad5 ##a(leD Irrele%a!1 e% de!&e !ad5 ##a(le All relevant evidence is admissible' e.cept as other+ise provided by Constitution' by statute' by these rules' or by other rules prescribed pursuant to statutory authority) Evidence +hich is not relevant is inadmissible) 54D establishes the general principles that o All relevant evidence is admissible unless made inadmissible by some particular rule or la+ E.' Rule 545' 54E and B4D #hearsay% may e.clude relevant evidence o Irrelevant evidence is not admissible

Federal Rule :03. E.&lu# $! $* Rele%a!1 E% de!&e $! Gr$u!d# $* Pre+ud &e3 C$!*u# $!3 $r Wa#1e $* - 5e Although relevant' evidence may be e.cluded i( its probative value is substantially out+eighed by the danger o( un(air pre$udice' con(usion o( the issues' or misleading the $ury' or by considerations o( undue delay' +aste o( time' or needless presentation o( cumulative evidence)F ;+aste o( time< not in ,RE RULE :03. E.&lu# $! $* Rele%a!1 E% de!&e $! S4e& al Gr$u!d# Although relevant' evidence may be e.cluded i( its probative value is substantially out+eighed by the danger o( un(air pre$udice' con(usion o( the issues' or misleading the $ury' or by considerations o( undue delay' or needless presentation o( cumulative evidence) DIFFERENCE BE-WEEN FRE / -RE0 E.clusion o( relevant evidence because it is a ;+aste o( time< is in CRE' but !$1 ,RE) Relevant evidence may be e.cluded i( the legitimate probative value o( the evidence is substantially out+eighed by the potential damage that the evidence might do to the orderly' e((icient' and (air process o( the trial) o Calls (or a balancing test involves the trial court8s discretion) Rule *a%$r# ad5 ## $! general rule is that the balance should be struc& in (avor o( admission) o Courts use Rule 54? sparingly) Pre+ud & al %alue 5u#1 SUBS-AN-IALL9 OU-WEIGH 4r$(a1 %e %alue $* e% de!&e. o Relevant evidence is inherently prejudicial so in order for it to be excluded it must substantially outweigh its probative value. o Rule does not protect against pre$udicial evidence' only 9"CAIR:G pre$udicial evidence E.) 9n(airly pre$udicial evidence could include evidence +hich appeals to $ury8s sympathy' arouses its sense o( horror' provo&es its instincts to punish or other+ise causes a $ury to base its decision on something other than the established proportions in the case)

E.) Regret chart $ury may be more li&ely to rule against a driver i( they &no+ he has insurance' etc) ?ud"e NO- 1$ de1er5 !e &red ( l 1, o !hen +eighing probative value against un(air pre$udice under Rule 54? court should consider the probative value a##u5 !" the evidence is believed "O, to the degree that the court (inds it believable)

HEARSA9 CC Al=a,# a#60 H$= # 12e #1a1e5e!1 4r$(a1 %e> CC CC Hear#a, da!"er# 'SCA8P) S !&er 1,3 &$55u! &a1 %e a( l 1,3 5e5$r,3 4er&e41 $!CC CC FE90 D$e# 1 5a11er =2e12er 12e #1a1e5e!1 # 1rue $r !$1>CC Federal Rule G01. De* ! 1 $!# ,he (ollo+ing de(initions apply under this article6 'a) S1a1e5e!1. A =statement= is #3% an oral or +ritten assertion or #D% nonverbal conduct o( a person' i( it is intended by the person as an assertion) '() De&lara!1. A =declarant= is a person +ho ma&es a statement) '&) Hear#a,. =Hearsay= is a statement' other than one made by the declarant +hile testi(ying at the trial or hearing' o((ered in evidence to prove the truth o( the matter asserted) 'd) S1a1e5e!1# =2 &2 are !$1 2ear#a,. A statement is not hearsay i(00 #3% Prior statement by witness) ,he declarant testi(ies at the trial or hearing and is sub$ect to cross0e.amination concerning the statement' and the statement is #A% inconsistent +ith the declarant/s testimony' and +as given under oath sub$ect to the penalty o( per$ury at a trial' hearing' or other proceeding' or in a deposition' or # % consistent +ith the declarant/s testimony and is o((ered to rebut an e.press or implied charge against the declarant o( recent (abrication or improper in(luence or motive' or #C% one o( identi(ication o( a person made a(ter perceiving the person1 or #D% Admission by party-opponent. ,he statement is o((ered against a party and is #A% the party/s o+n statement' in either an individual or a representative capacity or # % a statement o( +hich the party has mani(ested an adoption or belie( in its truth' or #C% a statement by a person authoriHed by the party to ma&e a statement concerning the sub$ect' or #*% a statement by the party/s agent or servant concerning a matter within the scope of the agency or employment' made during the existence of the relationship' or #E% a statement by a coconspirator o( a party during the course a!d in furtherance of the conspiracy) ,he contents o( the statement shall be considered but are not alone su((icient to establish the declarant/s authority under subdivision #C%' the agency or employment relationship and scope thereo( under subdivision #*%' or the e.istence o( the conspiracy and the participation therein o( the declarant and the party against +hom the statement is o((ered under subdivision #E%) -e.a# Rule G01. De* ! 1 $!# ,he (ollo+ing de(initions apply under this article6 'a) S1a1e5e!1. A =statement= is #3% an oral or +ritten verbal e.pression or #D% nonverbal conduct o( a person' i( it is intended by the person as a substitute (or verbal e.pression) '() De&lara!1. A =declarant= is a person +ho ma&es a statement)

'&) 8a11er A##er1ed. =Matter asserted= includes any matter e.plicitly asserted' and any matter implied by a statement' i( the probative value o( the statement as o((ered (lo+s (rom declarant/s belie( as to the matter) 'd) Hear#a,. =Hearsay= is a statement' other than one made by the declarant +hile testi(ying at the trial or hearing' o((ered in evidence to prove the truth o( the matter asserted) 'e) S1a1e5e!1# W2 &2 Are N$1 Hear#a,. A statement is not hearsay i(6 #3% Prior statement by witness) ,he declarant testi(ies at the trial or hearing and is sub$ect to cross0e.amination concerning the statement' and the statement is6 #A% inconsistent +ith the declarant/s testimony' and +as given under oath sub$ect to the penalty o( per$ury at a trial' hearing' or other proceeding e.cept a grand $ury proceeding in a criminal case' or in a deposition1 # % consistent +ith the declarant/s testimony and is o((ered to rebut an e.press or implied charge against the declarant o( recent (abrication or improper in(luence or motive1 #C% one o( identi(ication o( a person made a(ter perceiving the person1 or #*% ta&en and o((ered in a criminal case in accordance +ith Code o( Criminal Procedure article ?B)4@3) #D% Admission by party-opponent) ,he statement is o((ered against a party and is6 #A% the party/s o+n statement in either an individual or representative capacity1 # % a statement o( +hich the party has mani(ested an adoption or belie( in its truth1 #C% a statement by a person authoriHed by the party to ma&e a statement concerning the sub$ect1 #*% a statement by the party/s agent or servant concerning a matter +ithin the scope o( the agency or employment' made during the e.istence o( the relationship1 or #E% a statement by a co0conspirator o( a party during the course and in (urtherance o( the conspiracy) DIFFERENCE BE-WEEN FRE AND -RE0 ,e.as de(inition o( hearsay is broader #&eeps more statements O9,% and closer to C: concept o( hearsay) ,e.as uses phrase =verbal e.pression= in Rule B43#a%' +here (ederal version uses =assertion)= ,e.as Rule B43#c% ;matter asserted< means that a statement is hearsay i( it 54l e# something' i( it is that implication is unintentional) #,his means that ;nonassertive verbal conduct< and ;verbal assertions used in(erentially< are hearsay in ,e.as' but "O, in CRE% E.) Zenni ;Put I34 on :amelegs< this is not an assertion' it is an e.pressionJcommand) So under CRE' so it is "O, hearsay) It is a ;matter< though so it IS hearsay under ,RE) ,e.as Rule B43#e%#3%' Prior Statement by !itness' is consistent +ith Cederal Rule B43#d%#3% as to civil cases but in criminal cases' ,e.as Rule B43 di((ers (rom the civil and (ederal versions in t+o +ays6 ,e.as adds #3% =e.cept a grand $ury proceeding= in prior inconsistent statements1 D **ere!&e (e1=ee! FRE / -RE W2a1 &$!#1 1u1e# 2ear#a, ! *ederal &$ur1> !ept out" o E.plicit verbal assertions o Assertive' nonverbal conduct W2a1 # NO- 2ear#a, ! *ederal &$ur1> let in" o "onassertive' nonverbal conduct

o "onassertive' verbal conduct o Kerbal assertions used in(erentially W2a1 &$!#1 1u1e# 2ear#a, ! -e.a# &$ur1> !ept out" o E.plicit verbal assertions' o Assertive nonverbal conduct o "onassertive verbal conduct o Kerbal assertions used in(erentially W2a1 # NO- 2ear#a, ! -e.a# &$ur1> let in" o "onassertive' nonverbal conduct CO88ON LAW o "onassertive' verbal conduct =a# hearsay o "onassertive' nonverbal conduct =a# hearsay) E.) Sending man to sanatorium evidence he +as insane) o Kerbal assertion used in(erentially =a# hearsay) o Prior statement by a +itness regarded as hearsay 3 #1e4# 1$ de!1 *, !" 2ear#a, o Is there an out of court statement? Corms Oral !ritten Action o Is the action intended as an assertion #CRE% or o Is the action a substitution (or +ords #,RE% I( $ust noises #ie scream% +ere these intended as a substitute (or verbal e.pression> #e.) Screams intended as verbal e.pression to sho+ *C is in pain% or +ere they $ust made so no ris& o( SCAMP> ;Out o( court< means out o( ,HIS courtroom Even i( it +as made at another trial o What is the evidence being offered to prove? I( o((ered (or some purposes statement o&ay1 i( o((ered (or other purposes' not o&ay o #oes the probative value of this statement depend on the credibility of the declarant is it being offered for the truth of the matter asserted?" Is the statement only relevant if it is true? I( it doesn8t depend on credibility o( the *C' then it is "O, HEARSAG) I( it does' then it is HEARSAG) FE90 *oes it matter i( it is true or not> o ;Hey' nice A M you got there< o((ered to prove that Condor copied A M8s design) Ges it matters +hether it is true bJc i( *C didn8t really thin& it +as an A M then it +ouldn8t be relevant to sho+ that Condor copied A M8s design) o ;S+artH is a (ool< o((ered to sho+ L8s bias against S+artH) *oes it matter +hether it is true or not> Ges) I( L +as $o&ing' he may not be biased against S+artH)

8ul1 4le Hear#a, +hen there is more than one level o( hearsay #! says Sam told her that Sally told him something% o E.amine each statement separately and see i( each statement is hearsay' and i( so' +hether it (alls +ithin an e.ception)

FEDERAL RULE #a%0#c% contain the basic de(inition o( hearsay similar to that at common la+) #d% lists t+o categories o( out0o(0court statements that are deemed not to be hearsay even though they are o((ered to prove the matter asserted o #c% Certain prior statements by +itnesses o #d% Opposing party admissions) N$!%er(al &$!du&1 AS 2ear#a,. o In FEDERAL COUR- testimony about a person8s out0o(0court nonverbal conduct can constitute hearsay O":G i( the conduct +as intended as an assertion) E.) : as&ed K to point to man +ho hurt her1 K pointed to de(endant this is an assertion7 o In -EHAS COUR- testimony about a person8s out0o( court nonverbal conduct can constitute hearsay i( it is intended as a substitute (or verbal e.pression) 8a11er 54l ed (, u11era!&e o FEDERAL COUR- "O, HEARSAG 0 i( an out0o(0court utterance is o((ered to prove a matter implied by' but not asserted in' the utterance) E.) U. . v. Zenni not hearsay (or govt agents to testi(y that +hile searching Menni8s premises' calls +ere made to place bets bJc these +ere not ;assertions< that Menni +as a boo&ie even though they imply that Menni is a boo&ie) o -EHAS COUR- HEARSA9 - an out0o(0court utterance is a ;statement< used to prove the truth o( the ;matter asserted< so it is hearsay) U. . v. Zenni +ould be hearsay in ,e.as bJc ;put I34 on :amelegs< is a statement used to prove that Menni is a boo&ie bJc this statement implies Menni is a boo&ie S1a1e5e!1# U#ed *$r N$!-Hear#a, Rea#$!# S1a1e $* 8 !d $* De&lara!1 o E.) I( the issue is +hether testator intended to disinherit Son' !8s testimony' ;I heard , tell several people that his son +as a no good bum< "ot hearsay bJc the statement by , is circumstantial evidence o( ,8s negative attitude to+ards Son) !hether Son really is a bum or not is not important) S1a1e5e!1# rele%a!1 a4ar1 *r$5 12e -RU-H $* 12e 5a11er o An out0o(0court statement is not inadmissible as hearsay i( it has relevancy apart (rom the truth o( the matter that it asserts or implies) I( the ma&ing o( the statement is in itsel( relevant' evidence that the statement +as made is not barred by the hearsay rule) E.) Statement o((ered to sho+ declarant8s &no+ledge o( (acts' not the (acts stated) Ver(al a&1#@Le"all, $4era1 %e la!"ua"e o E.) ,he +ords that constitute the o((er' acceptance' or terms o( a contract) BE CAREFUL0 I( an outsider #not someone part o( the contract (ormation% ma&es a statement' it is not itsel( an operative act relevant (or the (act said)

o E.) ,ransactional +ords that accompany the delivery o( money or property may establish a gi(t' loan' bribe' bet or payment o( a debt o((ers' re$ections' acceptances' terms o E.) Statements o( donative intent ;I +ant you to have this car)< o E.) *eclarations by an occupant o( land' o((ered to sho+ that the possession +as adverse) One element o( adverse possession is that the person/s claim to possession o( the property must be open and notorious) Evidence that he publicly stated that he had paid (or lac&acre #regardless o( +hether he actually had paid (or it% +ould be evidence that he openly claimed possession) o BE CAREFUL0 A receipt is a memorialiHation o( a transaction' not the transaction itsel() S1a1e5e!1# 1$ #2$= e**e&1 $! #1a1e $* 5 !d $* l #1e!er $r reader. o Statement that is o((ered to sho+ the e((ect on one +ho heard or read the statement) E.) In the prosecution o( a man (or the murder o( his +i(e' de(endant8s testimony that he +as told shortly be(ore the homicide that his +i(e +as having an a((air) Ad!ins v. "rett letter +i(e +rote to her husband +hich said' ;Gou are distaste(ul to me< sho+ not that H is distaste(ul' but sho+s her state o( mind) E.) !ords that establish notice or &no+ledge +here notice or &no+ledge o( a person is relevant) ,estimony that motor vehicle inspector told de(endants prior to accident that the car8s tires +ere unsa(e) E.) Statements that tend to establish that a party acted in good or bad (aith) E.) On the issue o( +hether the * acted in good (aith in (iring the plainti((' !8s testimony' ;Police chie( told *e(endant that Plainti(( had been caught embeHHling (rom his previous employer)< 3% "ot hearsay bJc the (act that this statement +as made to * tends to prove that he +as acting in good (aith +hen he (ired Plainti(() 8ul1 4le Hear#a, Pr$(le5# !hen evidence contains at least t+o out0o(0court statements' each o( +hich is o((ered (or its truth $xample% &ral 'ssertions o ! testi(ies6 ;My neighbor' Lune' told me that her husband' H' promised to (i. the (ence)< o ! is the +itness1 there are t+o declarants and t+o out0o(0court statements6 #3% H is the declarant o( the statement #to Lune%' ;I promise to (i. the (ence)< #D% Lune is the declarant o( the statement #to !%' ;H promised to (i. the (ence)< $xample% Writing o A +riting that incorporates an oral statement) o Plainti(( o((ers a hospital record prepared by *r) C' ;NlutH says he (ell o(( a sca((old)< o ,+o declarants and t+o out0o(0court statements6 #3% NlutH is declarant o( the statement #to *r) C%' ;I (ell o(( a sca((old)< #D% *r) C is declarant o( statement #made in the record%' ;NlutH said' OI (ell o(( a sca((old)< 'pproach o AnalyHe each statement separately) o *etermine i( it is hearsay and i( it is' then +hether there is an e.ception) Federal Rule G01'd)'1) Pr $r #1a1e5e!1 (, = 1!e##.

,he declarant testi(ies at the trial or hearing a!d # #u(+e&1 1$ &r$##-e.a5 !a1 $! &$!&er! !" 12e #1a1e5e!1' and the statement is #A% inconsistent +ith the declarant/s testimony' and +as given under oath sub$ect to the penalty o( per$ury at a trial' hearing' or other proceeding' or in a deposition' or # % consistent +ith the declarant/s testimony and is o((ered to rebut an e.press or implied charge against the declarant o( recent (abrication or improper in(luence or motive' or #C% one o( identi(ication o( a person made a(ter perceiving the person1 -e.a# Rule G01'd) '1) Pr $r #1a1e5e!1 (, = 1!e##. ,he declarant testi(ies at the trial or hearing and # #u(+e&1 1$ &r$##-e.a5 !a1 $! &$!&er! !" 12e #1a1e5e!1' and the statement is6 #A% inconsistent +ith the declarant/s testimony' and +as given under oath sub$ect to the penalty o( per$ury at a trial' hearing' or other proceeding except a grand (ury proceeding in a criminal case' or in a deposition1 # % consistent +ith the declarant/s testimony and is o((ered to rebut an e.press or implied charge against the declarant o( recent (abrication or improper in(luence or motive1 #C% one o( identi(ication o( a person made a(ter perceiving the person1 or #*% ta&en and o((ered in a criminal case in accordance +ith Code o( Criminal Procedure article ?B)4@3) DIFFERENCE BE-WEEN FRE / -RE0 FRE and -RE are the #a5e *$r & % l &a#e#) In &r 5 !al &a#e# -RE &eeps out statements made at )a grand (ury proceeding) in subpart #A% on prior inconsistent statements) At C: a prior statement by a +itness +as normally regarded as hearsay' but under Rule B43 some' but not all' are admissible) BE CAREFUL ma&e sure +itness is sub$ect to cross0e.amination' not $ust direct e.amination -2ree -,4e# $* S1a1e5e!1# all$=ed '" *ertain prior testimonial inconsistent statements. o A prior inconsistent statement that +as made #a% under oath #b% sub$ect to the penalty o( per$ury' #c% at an earlier trial' hearing or other proceeding or deposition o A +itness can be impeached by sho+ing that he has previously made statements inconsistent +ith his testimony' but those statements can also be o((ered as substantive evidence i( they (all under this rule) I( they do not (all under this rule statement may be admissible (or impeachment' but a limiting instruction must be given upon re-uest to $ury that the impeachment evidence is only to re(lect on the +itness8s credibility' not to establish (acts) o -RE0 In ,e.as statements made a1 a "ra!d +ur, 4r$&eed !" in a &r 5 !al 1r al are not admissible (or their substantive value) +" *ertain ,rior *onsistent -tatements o Can sometimes be used to rehabilitate a +itness i( it is #a% consistent +ith +itness8s trial testimony and #b% o((ered to rebut a charge #e.press or implied% that the +itness either has recently (abricated his testimony or is testi(ying (rom an improper motive or in(luence) *" -tatements of Identification o A !8s out0o(0court identi(ication o( a person made a(ter perceiving him is admissible)

o ,he (act that a ! earlier pic&ed the * out o( a line0up is admissible not only to rehabilitate the ! #i( the !8s ability to identi(y the de(endant has been attac&ed% but also as substantive evince #as evidence that the out0o(0court identi(ication o( de(endant is true%) RULE G01'd) 'E)- AD8ISSION B9 A PAR-9-OPPONENFederal Rule G01'd)'E)0 Ad5 ## $! (, Par1,-O44$!e!1 'd) S1a1e5e!1# W2 &2 Are N$1 Hear#a,. A #1a1e5e!1 # !$1 2ear#a, * 'E) Ad5 ## $! (, 4ar1,-$44$!e!1) ,he statement is o((ered against a party and is #A% the party8s o+n statement in either an individual or a representative capacity or # % a statement o( +hich the party has mani(ested an adoption or belie( in its truth' or #C% a statement by a person authoriHed by the party to ma&e a statement concerning the sub$ect' or #*% a statement by the party8s agent or servant concerning a matter +ithin the scope o( the agency or employment' made during the e.istence o( the relationship' or #E% a statement by a co0conspirator o( a party during the course and in (urtherance o( the conspiracy) ,he contents o( the statement shall be considered by are not alone su((icient to establish the declarant8s authority under subdivision #C%' the agency or employment relationship and scope thereo( under subdivision #*%' or the e.istence o( the conspiracy and the participation therein o( the declarant and the party against +hom the statement is o((ered under subdivision #E%) -e.a# Rule G01'E) S1a1e5e!1# W2 &2 Are N$1 Hear#a,. Ad5 ## $! (, 4ar1,-$44$!e!1) ,he statement is o((ered against a party and is6 #A% the party/s o+n statement in either an individual or representative capacity1 # % a statement o( +hich the party has mani(ested an adoption or belie( in its truth1 #C% a statement by a person authoriHed by the party to ma&e a statement concerning the sub$ect1 #*% a statement by the party/s agent or servant concerning a matter +ithin the scope o( the agency or employment' made during the e.istence o( the relationship1 or #E% a statement by a co0conspirator o( a party during the course and in (urtherance o( the conspiracy) RULE G01'd) - DIFFERENCES BE-WEEN FRE / -RE In FRE (or '&) statement by a person authoriHed by the part to ma&e a statement concerning the sub$ect 'd) a statement by the party8s agent or servant concerning a matter +ithin the scope o( the agency o( employment' made during the e.istence o( the relationship Pvicarious liabilityQ 'e) a statement by a co0conspirator o( a party during the course and in (urtherance o( the conspiracy) Gou need additional corroborating evidence that the person +as authoriHed to ma&e a statement #c%' that the party8s agent represented the party #d%' or that the parties +ere co0conspirators #e%) -RE "o re-uirement (or this additional evidence A party may not ob$ect on hearsay grounds +hen 2 # $44$!e!1 o((ers a statement made by that party1 #P may o((er any statement made by *' or * any by P% ,echnically' this is "O, an e.ception' it8s simply de(ined as non0hearsay ,his e.ception is "O, based on the ground that such statements are reliable) o Statements are admitted on a 12e$r, $* re#4$!# ( l 1, or estoppel o 9$u #a d 13 ,$u are re#4$!# (le *$r 1 CONSE;UENCES

o '1) L 5 1ed Ad5 ## ( l 1, Admissible O":G as evidence against the party that made the statement #important in multi0party litigation% FFSo i( you can use a Rule B4? or B45 e.ception 9SE I, it +ill be admissible against everyoneFF P sues mechanic and auto manu(acturer) P calls ! to testi(y that he heard mechanic say ;those bra&es on P8s car +ere not properly installed by manu(acturer' but I should have still been able to (i. them< it8s admissible against mechanic as HIS admission but "O, against auto manu(acturer) o 'E) N$ 4er#$!al 6!$=led"e re<u re5e!1 Ordinarily +e re-uire +itnesses or declarants to have (irst hand &no+ledge about +hat they are testi(ying about) ut +e don8t re-uire this bar here1 the other party can come (or+ard and de(end his statement i( he +ants too !ol( case6 Employee didn8t &no+ +hether the +ol( had bitten the child' but since she said it' +e are going to hold her responsible (or it and let it in) An admission by party opponent does "O, HAKE ,O E A" A*MISSIO" o A"G statement by a party opponent (alls +ithin this1 Admissions by conduct !hen a party acts in a +ay that an in(erence may be dra+n that she believes hersel( to be liable' it is o(ten deemed a party admission) o E.) Clight a(ter the commission o( a crime1 assumption o( a (alse name1 resisting arrest1 attempting to bribe an arresting o((icer' +itness or $uror1 (abrication or destruction o( evidence1 attempting to commit suicide1 re(using to ta&e a breath test) o Party can o((er only HIS OPPO"E",8S S,A,EME",S1 not his o+n statements 3 1,4e# $* ad5 ## $!# (, 4ar1, $44$!e!1# u!der 12 # e.&e41 $! o +asic !ind% A party8s o+n statement #P o((ers statement made by *' etc% o 'doptive 'dmissions% A party can in e((ect ;adopt< a statement made by another as their o+n1 i( they do that it is treated as their o+n #as i( they made it% E.4l & 1 ad$41 $!6 I( you hear another statement and nod or say ;that8s right< then this is an e.plicit adoption -a& 1 ad$41 $!0 I( a statement is made in a party8s presence +hich contains an assertion that a reasonable person under the circumstances +ould deny i( it +ere not true' a (ailure to deny is construed as a tacit adoption Must have been unreasonable (or them to deny #this is +here +e have the right to remain silent +hile under arrest% O LEC,IKE ,ES, +hat a reasonable person +ould deny' not necessarily the de(endant o E.) I( * is silent a(ter an arrest' this is reasonable) E.amples 9niversity president8s acceptance o( grievance committee8s report and implementation o( its recommendations served as an adoption o( report)

Admission by ac-uiescence or silence 0 +hen an accusatory statement is made in de(endant8s presence' he understands and has an opportunity to deny it' the statement and his (ailure to deny are admissible against him) o V &ar $u# ad5 ## $! '#a5e ! FRE / -RE) A principal' employer or co0conspirator party is liable (or statements another ma&es' even though the party does "O,HI"R to adopt or mani(est a belie( in the statement) ,hese are made by someone +ith a special relationship to the party1 an ARE",' EMP:OGEE' CO0CO"SPIRA,OR) In these cases the party is "O, ,HE *EC:ARA", but bJc o( this special relationship it seem (air to re-uire the party to e.plain or clari(y the declarant8s statement' to preclude it (rom being &ept out on hearsay grounds o Rule G01'd)'E)'D) E54l$,er@E54l$,ee I( an employeeJservant ma&es a statement it can be admitted against an employer) An Agent8s or Employee8s statement is considered the party8s statement O":G i( that person is authoriHed to spea& on behal( o( the party # M,% ,+o simply re-uirements under CREJ,RE Statement must concern a matter +Jin scope o( agency or employment o FF Statement does "O, have to be made +hile +or&ing' it $ust has to concern a matter in the scope o( employment) ,he statement must be made +hile declarant is still an agent or employee BE CAREFUL i( an EMP:OGER spea&s' it cannot be held against the servant or employee) o C$-&$!#4 ra1$r 'Sa5e ! FRE / -RE) ,hree Re-uirements *eclarant and party +ere co0conspirators Statement +as made during the conspiracy o Be &are*ul see ho+ long the conspiracy +as1 may be years and easy to (it statement in as ;during< Statement +as made in furtherance o( the conspiracy o Be &are*ul con(essions are rarely ;in (urtherance< o( the conspiracy Rationale# Agency theory1 co0conspirators are ;partners in crime< so +e can hold them responsible (or the statements o( each other) Issues +ith Kicarious Admissions o( Co0conspirators !ho decides6 o Ludge decides i( the re-uirements o( this e.ception #? things above% have been met1 preliminary -uestion so $udge decides Procedural problems6 o Court has to assume that there +as a conspiracy in order to let the statement in and o(ten +hether there +as a conspiracy to robJmurderJetc is +hat is on trial) Scope

o !heel0and0hub conspiracies +J large group o( people in a conspiracy to smuggle drugs but don8t &no+ each other1 -uestionable +hether statements o( one conspirator can be held against another HEARSA9 EHCEP-IONS Federal Rule G03. Hear#a, E.&e41 $!D A%a la( l 1, $* De&lara!1 I55a1er al. ,he (ollo+ing are not e.cluded by the hearsay rule' even though the declarant is available as a +itness6 -e.a# Rule G03. Hear#a, E.&e41 $!#D A%a la( l 1, $* De&lara!1 I55a1er al. ,he (ollo+ing are not e.cluded by the hearsay rule' even though the declarant is available as a +itness6 .. #eclarant I- available/ PRESEN- SENSE I8PRESSION Federal Rule G03'1) Pre#e!1 Se!#e I54re## $!. A statement describing or e.plaining an event or condition made +hile the declarant +as perceiving the event or condition' or immediately therea(ter) -e.a# Rule G03'1) Pre#e!1 Se!#e I54re## $!. A statement describing or e.plaining an event or condition made +hile the declarant +as perceiving the event or condition' or immediately therea(ter) DIFFERENCE IN -RE@FRE NONEI "o re-uirement that +itness be able to chec& declarant8s statement the +itness +ho recounts the hearsay utterance does not have to personally observe and chec& +hat the declarant describes) Rule re-uires that declaration' i( not simultaneous +ith the event' is made immediately therea(ter or only +ith a very short lapse o( time) o A (e+ secondJa minute o EHA80 :oo& to +ords li&e ;$ust happened< ;$ust told< E.&e41 $! ONL9 COVERS #1a1e5e!1# DESCRIBING OR EHPLAINING a! e%e!1 $r &$!d 1 $! - !arr$=er 12a! Rule G03'E) =2 &2 e.1e!d# 1$ #1a1e5e!1# Brela1 !" 1$A a! e%e!1 $r &$!d 1 $! o ;He &illed me' he &illed me< not a presence sense impression bJc not *ESCRI I"R the man in the picture) Per#$!al 6!$=led"e. A hearsay declarant 5u#1 have personal &no+ledge o( the matter the statement is o((ered to prove) o A statement o((ered as a present sense impression is e.cluded in the absence o( evidence su((icient to support a (inding that the declarant personally perceived the matter) EHCI-ED U--ERANCE Federal Rule G03'E) E.& 1ed U11era!&e. A statement relating to a startling event or condition made +hile the declarant +as under the stress or e.citement caused by the event or condition)

-e.a# Rule G03'E) E.& 1ed U11era!&e. A statement relating to a startling event or condition made +hile the declarant +as under the stress or e.citement caused by the event or condition) DIFFERENCE IN FRE@-RE NONEI !hen a hearsay statement is o((ered as an e.cited utterance the court must decide +hether the declarant +as so e.cited or distraught at the moment o( the utterance that he did not re(lect #or have an opportunity to re(lect% on +hat he +as saying) ,he contents o( the statement as +ell as the circumstances including the declarant8s appearance' behavior' and condition' may be relied upon to establish the occurrence o( an e.citing event' and the declarant8s personal perception o( it) ,he sub$ect matter re-uirement o( Rule B4?#D% ;E.cited 9tterance< is signi(icantly more liberal than that o( Rule B4?#3% ;Present Sense Impression<) o B4?#3% statement that is ;describing or e.plaining an event or condition< o B4?#D% 0 statement ;relating to a startling event or condition)< ,he statement 5u#1 (e 5ade =2 le 12e de&lara!1 # u!der 12e #1re## caused by the e.citing event) I( the event is su((iciently startling the period o( stress may persist (or some time) o Several (actors should considered including ,he lapse o( time bet+een the event and the declarations ,he age o( the declarant ,he physical and mental state o( the declarant ,he characteristics o( the event ,he sub$ect matter o( the statements ;!ho is the butcher +ho did this>< declarant +as a doctor so probably he +asn8t e.cited to see a bad medical problem) I( re-uisite stress is sho+n' a statement may -uali(y even i( made in response to -uestioning) Startling event that triggers statement does not to be crime or event (rom +hich litigation arises

S-A-E OF 8IND SO8 e.&e41 $! &$%er#6 !1e!1 #;I plan to go the store tomorro+%' (el e* #;I thin& that my bra&es are bad<%' a11 1ude #;I don8t li&e him<%' 5$1 %e #;I o+e him one (or that%' 5e!1al *eel !" #;I am bored studying<%' 4a ! #;my head hurts<%' and ($d l, 2eal12 #;I have the (lu<% Federal Rule G03'3) - -2e! e. #1 !" 5e!1al3 e5$1 $!al3 $r 42,# &al &$!d 1 $!. A statement o( the declarant/s then e.isting state o( mind' emotion' sensation' or physical condition #such as intent' plan' motive' design' mental (eeling' pain' and bodily health%' but not including a statement o( memory or belie( to prove the (act remembered or believed unless it relates to the e.ecution' revocation' identi(ication' or terms o( declarant/s +ill) -e.a# Rule G03'3) - -2e! E. #1 !" 8e!1al3 E5$1 $!al3 $r P2,# &al C$!d 1 $!. A statement o( the declarant/s then e.isting state o( mind' emotion' sensation' or physical condition #such as intent' plan' motive' design' mental (eeling' pain' or bodily health%' but not including a statement o( memory or belie( to prove the (act remembered or believed unless it relates to the e.ecution' revocation' identi(ication' or terms o( declarant/s +ill)

DIFFERENCE BE-WEEN FRE / -RE NONEI F$ur &a1e"$r e# '1) S1a1e5e!1# $* 4re#e!1 ($d l, &$!d 1 $! I( it is a statement o( a present bodily condition' loo& to B4?#?%1 i( it is o( a past condition or e.ternal (act i( it is made (or purposes o( medical diagnosis or treatment' loo& to B4?#5% 'E) S1a1e5e!1# $* 4re#e!1 #1a1e $* 5 !d $r e5$1 $!3 $**ered 1$ 4r$%e a #1a1e $* 5 !d $r e5$1 $! $* 12e de&lara!1 12a1 # a1 ##ue ! 12e &a#e '3) S1a1e5e!1# $* 4re#e!1 #1a1e $* 5 !d u#uall, !1e!13 4la!3 $r de# "! - $**ered 1$ 4r$%e #u(#e<ue!1 &$!du&1 $* 12e de&lara!1 ! a&&$rda!&e = 12 12e #1a1e $* 5 !d. C $illmon case allo+ed state0o(0mind statements to sho+ subse-uent conduct o( the declarant C ,he subse-uent conduct must then be relevant ':) S1a1e-$*-5 !d #1a1e5e!1# $* a 1e#1a1$r3 $**ered $! &er1a ! ##ue# ! = ll &a#e# It must be a statement o( the declarant8s state0o(0mind' not any one else8s) D #1 !"u #2 (e1=ee! 12ree 12 !"# =2e! 12e #1a1e5e!1 # $**ered a# & r&u5#1a!1 al e% de!&e 12a1 1e!d# 1$ re%eal #$5e12 !" a($u1 12e DC7# #1a1e $* 5 !d o #3% Someone +ould not have made this statement under circumstances unless it +as true o #D% Evidence that is o((ered !$1 as evidence o( the *C8s state o( mind' but o( the listener8s state o( mind Sel(0de(ense e.amples) o K says ;I am going to &ill * +hen I see him< so * is then (ear(ul) ,his statement can be o((ered to sho+ that * +as (ear(ul +hen he sa+ K) o #?% !hen the statement is being o((ered as direct evidence o( the *C8s state o( mind !hen the person8s state o( mind is at issue in the case' then the court can admit hearsay evidence offered to prove the person0s state of mind. o Rationale# !hen people say +hat they thin& or ho+ they (eel physically or emotionally' there are no perception or memory problems to diminish the accuracy o( +hat they say) H9PO I!-#1a1e re# de!&, o Student +rote parents to say she intended to stay in ,e.as inde(initely) ,his is o((ered under the state o( mind e.ception) o ASN6 !hen she applied to resident tuition' did she intend to stay in ,e.as permanently> I( she subse-uently changed her mind' this is "O, an issue +e are loo&ing to her state o( mind at that KERG instant) I( letter is meant to sho+ her state o( mind' then it (alls +ithin hearsay e.ception !hat i( she +rites the letter on Ceb) 3> August 3> but doesn8t apply (or resident tuition until August' does it still apply> o ,here may be an issue o( relevancy #her state o( mind may have changed%' but not a hearsay problem) I54r$4er U#e O* Pre#e!1 S1a1e $* 8 !d0 -$ 4r$%e -ru12 $* U!derl, !" Fa&1# A statement o( a present state o( mind may !$1 be used to prove the truth of the facts underlying the belief)

o E.) K8s statement' ;I am a(raid o( *< is admissible to prove K did not voluntarily go +ith *' but "O, admissible to prove * did anything to induce such a state o( mind) Ad!ins v. "rett !i(e8s statements to husband are o((ered to prove o #3% the +i(e8s (eelings to+ards her husband A"* o #D% that the de(endant is the cause o( these (eelings #or lac& thereo(% (or her husband HEARSAG 0 Statements 0 ;*e(endant is nice to me) * gives me (lo+ers) I +ent riding +ith *< o ,hese do "O, (all into the SOM e.ception bJc they are o((ered to sho+ +hat she has done +ith *' "O, ho+ she (eels) Problem in Ad!ins 0 state o( mind statements #you are distaste(ul to me' I don8t li&e you<% intert+ined +ith statements about the * 0 ;* sends me (lo+ers' * is nice to me% o Cirst statements +ithin the state o( mind e.ception o Second statements "O, +ithin the state o( mind e.ception Statements are outside the e.ception i( o((ered to prove one thing' but (all +ithin the e.ception i( o((ered to prove something else o 9sually this is handled +ith a limiting instruction to the $ury Ad!ins says a limiting instruction may not be enough so you should consider alternatives o E.) Admit SOM statements' but don8t let the +itness testi(y to the other stu(( Courts sometimes allo+ this' but sometimes the statements are so intert+ined it is di((icult) %utual &ife 'nsurance v. $illmon Hillmon +rites a letter to his (amily +hich says ;I plan to go to Croo&ed Cree&< Statement is o((ered as a statement o( currently e.isting intention to do something in the (uture o ,hus o((ering to sho+ that he did (ollo+ through o ,hus o((ering circumstantial evidence that it +as his body) hepard v. U. . ;*r) Shepard has poisoned me< o ,he statement is admissible as nonhearsay because somebody +ho is committing suicide +ould not say ;*r) Shepard has poisoned me)< ,hat is not consistent +ith a suicidal state o( mind) o Cact that she MA*E the statement is important' not +hether or not the statement is true) ,his is not the &ind o( thing that suicidal people say Circumstantial evidence o( state o( mind Problem is i( $ury heard ;*r) Shepard poisoned me< it +ould di((icult (or them to accept it $ust as circumstantial evidence and not loo& at it as evidence that *r) Shepard poisoned her !ould ;state o( mind< hearsay e.ception +or&> o "o) ,his statement covers bac&+ard0loo&ing statement) o ,he mental state e.ception allo+s proo( o( a person8s statement o( (act to sho+ that the person believed the (act to be true but prohibits the use of a person0s statements of feeling to prove that a remembered fact is true. ,hus' proo( that a *C said ;I sa+ ill yesterday< +ould be inadmissible i( o((ered to prove that the *C did see ill on the day be(ore he spo&e) It +ould' ho+ever' be admissible to sho+ that at the time the *C said it' the *C thought he has seen ill on the previous day)

o ASF0 !hat is this belie( based on> (ood-chipper woman case !oman said' ;I( anything happens to me' it +on8t be my doing and H +ill have good alibi< ,his is admitted as circumstantial evidence o Husband said that +i(e may $ust be missing or in hiding) o Someone going into hiding +ould "O, ma&e a comment li&e that) I1 # 54$r1a!1 1$ d #1 !"u #2 (e1=ee! 12ree 12 !"# =2e! 12e #1a1e5e!1 # (e !" $**ered a# & r&u5#1a!1 al e% de!&e 12a1 1e!d# 1$ re%eal #$5e12 !" a($u1 12e DC7# #1a1e $* 5 !d #3% Statements not made under the circumstances unless it +as true #D% Statement o((ered not as evidence o( *C8s state o( mind' but o( the listener8s state o( mind #?% Statement o((ered as direct evidence o( the *C8s state o( mind o ,he student really did plan to reside in ,e.as at the time o( the letter CC D **ere!&e (e1=ee! S2e4erd a!d W$$d&2 44er &a#e#CC I* =e are ad5 11 !" 12e S2e4ard &a#e #1a1e5e!1#3 =e are ad5 11 !" 12e #1a1e5e!1# AS 2ear#a, (u1 1r, !" 1$ ad5 1 12e5 u!der 12e #1a1e $* 5 !d e.&e41 $!. H$=e%er ! $rder 1$ ad5 1 12 # a# a #1a1e5e!1 =2ere 12e 1ru12 $* 12e 5a11er # rele%a!1 12e! =e 2a%e 1$ a#63 BW2a1 =$uld 5a6e 12e DC #a, 12a1 S2e4ard 4$ #$!ed 2er> a!d 12e! =e =$uld 2a%e 1$ l$$6 1$ 4a#1 e%e!1#. H$=e%er * =e are ad5 11 !" 12e #1a1e5e!1 a# & r&u5#1a!1 al e% de!&e $* 12e DC7# #1a1e $* 5 !d 'a# ! W$$d&2 44er) 12e! 12e 1ru12 $* 12e 5a11er # !$1 54$r1a!1 #$ =e d$!71 2a%e 1$ l$$6 1$ 4a#1 e%e!1#. SELF-DEFENSE W2a1 * 12 # #1a1e5e!1 =a# $**ered ! #el*-de*e!#e> ! testi(ies that K said ;I( I ever see * again' I am going to &ill him)< o O((ered as evidence that +hen * and K sa+ each other' K tried to &ill *' and * only acted in sel(0de(ense) Is this then a statement that tends to sho+ K8s state o( mind in regards to a (uture event> o I( so' this (its in the hearsay e.ception) I( * had heard that K had threatened to &ill him' this +ould tend to sho+ that * +as (ear(ul that the ne.t time he ran into K' he +as a(raid K +ould &ill him) o It +ould tend to prove the listener8s #*8s% state o( mind) o Sho+ that * reasonably (eared that this is +hat K +as going to do +hen they ne.t met) Similar to the $illmon case in that the statement tends to sho+ Hillmon +as going to the cree&) o I( +e o((er this statement (or sel(0de(ense it tends to sho+ K +as planning to hurt *) !hen +e are loo&ing at circumstantial evidence o( state o( mind it +ill either be #3% based on the (act that +e don8t believe that a person +ould say this i( the *8s theory is true or #D% +e can loo& at either the e((ect on the listener H9POS '1) O! #ee !" BuJJ,3 12e W 2eard 12e DC #a, B-2a1 # 12e 5a! I #a= r$( 12e (a!6A $**ered 1$ 4r$%e 12a1 BuJJ, r$((ed 12e (a!6. o :i&e the hepard case) HEARSAG 00 it is being o((ered (or its truth)

It is about a belie( #state o( mind e.ception%' 9, it about something that happened in the past #bac&+ard0loo&ing that the *C sa+ uHHy rob the ban& in the past% so it is "O, a hearsay e.ception) FF Plus the *C8s state o( mind is not at issue in this case) 'E) -$ #2$= DC7# !#a! 1,3 DC7# #1a1e5e!1 BI (el e%e I a5 Na4$le$!.A o O((ered to sho+ that the *C E:IEKES that he is "apoleon1 it (it the hearsay e.ception bJc it is "O, bac&+ard0loo&ing 00 it sho+s +hat he (eels right no+) o *i((erent (rom earlier e.ample o( ;I am the Pope< being used to sho+ that *C is insane) In that case she is saying that she IS the pope #and thus +hen it is o((ered it is not hearsay but it is not trying to prove the truth o( the matter asserted% and in this case he is saying that he E:IEKES that he is "apoleon #it is hearsay' but it (alls +ithin an e.ception)% '3) BI (el e%e 2e # a# #2ar4 a# 2e e%er =a#A $**ered 1$ #2$= 12a1 12e &$u# ! =a# 5e!1all, &$54e1e!1 a1 12e 1 5e $* 12e #1a1e5e!1. o ac&+ard0loo&ing belie( bJc the statement about his cousin8s mental competency is based on his past e.periences +ith the cousin) o It is being o((ered to prove that your cousin is as sharp as ever and that is something that is a past event that you have (ormed a belie( about) Lust as i( you said that ;I believe that * shot K< that is being o((ered to prove the *C8s belie( about an event that happened in the past) ':) Le11er *r$5 5$5 12a1 #a d 12a1 2er dau"21er # "$ !" 1$ "a5(le a=a, all 2er 5$!e, a#6 !" 12e le11er re& 4 e!1 1$ 1al6 1$ 2er. o Statements o((ered to sho+ that the letter0+riter believed that the cousin +as sane) o ,here is no e.plicit statement that the cousin is sane' but +e can determine that (rom it is non0assertive' verbal conduct) CRE "O, hearsay so it is let into court) ,RE HEARSAG this is a verbal assertion that is o((ered to prove the truth o( the matter asserted and ;matter asserted< in ,e.as includes anything implied by the statement) ,he cousin8s sanity is implied in this case (rom the (act that this letter +as +ritten and the probative value o( that belie( is +hat is important I( it is hearsay' then it is a bac&+ard0loo&ing statement bJc cousin8s sanity is based on past e.periences so not +ithin state o( mind e.ception) 'K) DC " %e# d a5$!d# 1$ ! e&e. 1K da,# la1er DC d e# a!d &2 ldre! =a!1 d a5$!d# (a&6. o a" +efore she gives diamonds to niece, #* says 1I love my niece more than my children.2 Hearsay' but it (its +ithin the e.ception) Pure state o( mind1 this is ho+ she (eels about her niece and her children at the moment1 relevant to her actions 5 days later) o b" 3 days after giving diamonds to niece, 1I love niece more than my children.2 Hearsay' but (its +ithin the e.ception) Still relates to her current state o( mind) ,his is ho+ she (eels today and it is relevant to ho+ she (elt E days ago) o c" -he told her children 1I gave the diamonds to niece, too bad !ids.2 ,+o options

#3% I( o((ered to prove its truth' it is hearsay) o It +ould not (it into the state o( mind e.ception bJc it is bac&+ard0loo&ing tal&ing about +hat she did in the past) #D% I( o((ered as circumstantial evidence' not hearsay) o Regardless o( its truth' +ould she even say this to her children> o Part o( +hat ma&es this statement as nonhearsay circumstantial state o( mind is that she said this to her children1 someone +ouldn8t ma&e this statement to this person in these circumstances unless it +as true o extra" If on day 3 she hands the diamonds to the niece and says 14his is a gift.2 "ot hearsay bJc ;this is a gi(t< is legally operative languageJindependent legal signi(icance1 the niece can act on it +hether or not the statement +as true) 'nother possibility 0 Statement against interest6 this is a statement against *C8s pecuniary interest1 she doesn8t have it anymore so against her (inancial status D #1 !"u #2 (e1=ee! o !hen the statement is simply circumstantial evidence o( state o( mind ;I can8t stand you &ids' I love niece better< o !hen the statement is o((ered to sho+ its e((ect on the listener Sel(0de(ense e.ample (rom yesterday o Pure state o( mind ;I love niece more than my children< O12er 4r$(le5# Something in the past that I"C:9E"CES a current state o( mind o E.) o.er claimed that his brother0in0la+ stole his championship belt) ,he brother0 in0la+ said ;I am sorry I stole your belts< Cirst hal( o( the statement ;I am sorryS< sho+s his currently e.isting state o( mind1 ;I stole your belts< is a past event ac&+ard0loo&ing part o( statement not admissible under state o( mind hearsay e.ception o Ho+ever since the brother0in0la+ +as unavailable' it could come in as a statement against interest #loss o( pecuniary interest% #in FRE *C must be unavailable% ?$ !1 &$!du&1 most courts admit a statement o( A that he intends to do an act +ith as evidence o( both A8s and 8s subse-uent conduct) o E.) ;I am going to meet Loe in the lot at T644< SOM intentions (or both people o 5imitations Some courts say it is admissible O":G to sho+ *C8s intention so it must come in +ith a limiting instruction Some courts re-uire corroborating evidence as to the other person8s intention be(ore they +ill admit the statement Some court e.clude such statements' particularly +hen they are o((ered largely i( not e.clusively to sho+ the other person8s intention A #1a1e5e!1 12a1 #4ea6# $!l, $* 12e DC7# 4re#e!1 #1a1e $* 5 !d3 (u1 1 # rele%a!1 (e&au#e 1 54l & 1l, #4ea6# a($u1 #$5e12 !" ! 12e 4a#1.

o E.) * is on trial (or murder) Pr +ants to o((er evidence that the night that K +as murdered K said ;I am a(raid o( *)< ,his is being o((ered to prove * &illed K) Is that statement a statement o( K8s currently e.isting state o( mind> GES) *o +e care +hether K REA::G +as a(raid o( * or not> "ot really' but implicit in that statement is that * gave K some reason in the past to be a(raid o( him) ,his in(erence is the only reason that this statement is relevant) Su55ar, Pure statements regarding state o( mind Statements regarding the e((ect on the listener o "ot hearsay i( o((ered to prove the listener8s state o( mind Statements o((ered to sho+ circumstantial evidence o( *C8s state o( mind Mi.ed statements #(uture and past0loo&ing elements% Statements that are state0o(0mind but are only RE:EKA", (or past0loo&ing components Will exception% ac&+ard0loo&ing statements ARE allo+ed O":G i( the thing believed or the (act remembered relates to the e.ecution' revocation' identi(ication or terms o( *C8s +ill) I e.ecuted my +ill last +ee&' I revo&ed my +ill last month' I e.cluded you (rom my +ill' I le(t you diamonds in my +ill (all +ithin state o( mind e.ception purely out o( necessity o Rationale6 *C usually dead and +e +ould rather have this in(ormation than not) 8EDICAL DIAGNOSIS OR -REA-8ENFederal Rule G03':) S1a1e5e!1# *$r 4ur4$#e# $* 5ed &al d a"!$# # $r 1rea15e!1) Statements made (or purposes o( medical diagnosis or treatment and describing medical history' or past or present symptoms' pain' or sensations' or the inception or general character o( the cause or e.ternal source thereo( inso(ar as reasonably pertinent to diagnosis or treatment) -e.a# Rule G03 ':) S1a1e5e!1# *$r Pur4$#e# $* 8ed &al D a"!$# # $r -rea15e!1. Statements made (or purposes o( medical diagnosis or treatment and describing medical history' or past or present symptoms' pain' or sensations' or the inception or general character o( the cause or e.ternal source thereo( inso(ar as reasonably pertinent to diagnosis or treatment) DIFFERENCES BE-WEEN FRE / -RE NONEI Rationale behind rule% o #3% Gou +ant to be honest +ith a doctor to get the correct diagnosis and treatment) o #D% *octors have medical e.pertise to be reliability (ilters i( you lie about symptomsJ disease) Rule e.tends to both treating physicians A"* consulting physicians #physicians consulted solely (or the purposes o( e.pert testimony% o At C:' e.ception only applied to treating physicians o As (or (irst rationale about honesty (or treatment purposes' the court assumes that i( you are dishonest +J a consulting physician since he is not treating you' $ury can (igure it out)

,he rule covers both past and present symptoms * they are relevant to diagnosis and treatment o At C:' e.ception applied only to present symptoms -2e #1a1e5e!1 5u#1 (e rela1ed 1$ 12e 4a1 e!17# d a"!$# # $r 1rea15e!1 o Admissible 0 ;I +as hit by a car< o Inadmissible ;,he car +as driving through a red light)< o CON-ROVERS9 !hether identity o( person +ho caused need (or medical treatment relates to patient8s diagnosis or treatment) 'rgument for o Identity necessary (or se.ual abuse cases (or S,*s' pregnancy' etc o Identity necessary (or mentalJemotional treatment o E.) Child abuse cases o Identity necessary to remove K (rom abusive environment as part o( treatment 'rgument against o Gou may not be honest o E.) Child custody battles1 claims o( abuse o *octor does not have e.pertise to be reliability (ilters (or identity issues H9PO o )a**ie1 child abuse cases o )a**ie court s&eptical o( the rationale behind the rule bJc6 o Whether the incentive to tell the truth is present6Reliability Parent ma&ing a statement against another parent' courts s&eptical about +hether incentive to be truth(ul is there) *ivorce or child custody case accusations o( child abuse to ma&e the other parent loo& bad) !hen it is a child +ho is ma&ing the statement' does the child have the same incentive to be truth(ul> *oes a child understand that you have to tell the truth to be treated correctly> Some courts +ill not allo+ statement unless child understands importance o( being truth(ul +J a doctor) o Whether the doctor is a reliability filter. *octor is a reliability (ilter as to medical symptoms and +hether the child +as abused1 "O, a reliability (ilter +hen it comes to the identity o( the abuser) o $xpert testimony 7 we want to ma!e this more consistent E.perts can testi(y about medical conditions' give opinions +hether there is physical evidence o( child abuse' but doctor cannot testi(y ;I thin& step(ather abused the child< bJc not +ithin realm o( doctor8s e.pertise H9PO

o Mother0in0la+8s statement about son threatening to &ill daughter related to her depression1 admissible bJc she +as depressed bJc her son +as cruel Statement does "O, have to be made by patient1 can be made by anyone about patient8s symptoms (or purpose o( medical diagnosisJtreatment #e.) )a**ie mother made statement about se.ual abuse% Statements CA" be made 1$ non0physicians nurses' ambulance +or&ers' maybe even (amily i( (or purposes o( medical treatment and diagnosis o Psychiatrists allo+ed by most courts "O, A::O!E* statements (rom doctors to patients1 statements bet+een doctors BE CAREFUL Statements 8R&9 doctors or nurses to the patient does not (it +ithin this e.ception1 not (or the purpose o( medical treatment) PRESEN- RECOLLEC-ION REFRESHED

Federal Rule L1E. Wr 1 !" U#ed 1$ Re*re#2 8e5$r, E.cept as other+ise provided in criminal proceedings by section ?E44 o( title 3B' 9nited States Code' i( a +itness uses a +riting to re(resh memory (or the purpose o( testi(ying' either00 #3% +hile testi(ying' or #D% be(ore testi(ying' i( the court in its discretion determines it is necessary in the interests o( $ustice' an adverse party is entitled to have the +riting produced at the hearing' to inspect it' to cross0 e.amine the +itness thereon' and to introduce in evidence those portions +hich relate to the testimony o( the +itness) I( it is claimed that the +riting contains matters not related to the sub$ect matter o( the testimony the court shall e.amine the +riting in camera' e.cise any portions not so related' and order delivery o( the remainder to the party entitled thereto) Any portion +ithheld over ob$ections shall be preserved and made available to the appellate court in the event o( an appeal) I( a +riting is not produced or delivered pursuant to order under this rule' the court shall ma&e any order $ustice re-uires' e.cept that in criminal cases +hen the prosecution elects not to comply' the order shall be one stri&ing the testimony or' i( the court in its discretion determines that the interests o( $ustice so re-uire' declaring a mistrial) -e.a# Rule L1E. Wr 1 !" U#ed 1$ Re*re#2 8e5$r,. I( a +itness uses a +riting to re(resh memory (or the purpose o( testi(ying either #3% +hile testi(ying1 #D% be(ore testi(ying' in civil cases' i( the court in its discretion determines it is necessary in the interests o( $ustice1 or #?% be(ore testi(ying' in criminal cases1 #A:!AGS I" CRIMI"A: CASES% an adverse party is entitled to have the +riting produced at the hearing' to inspect it' to cross0e.amine the +itness thereon' and to introduce in evidence those portions +hich relate to the testimony o( the +itness) I( it is claimed that the +riting contains matters not related to the sub$ect matter o( the testimony the court shall e.amine the +riting in camera' e.cise any portion not so related' and order delivery o( the remainder to the party entitled thereto) Any portion +ithheld over ob$ections shall be preserved and made available to the appellate court in the event o( an appeal) I( a +riting is not produced or delivered pursuant to order under this rule' the court shall ma&e any order $ustice re-uires' e.cept that in criminal cases +hen the prosecution elects not to comply' the order shall be one stri&ing the testimony or' i( the court in its discretion determines that the interests o( $ustice so re-uire' declaring a mistrial)

DIFFERENCE BE-WEEEN FRE / -RE0 In both CRE and ,RE in civil cases the opposing party may inspect +ritings consulted by a +itness be(ore testi(ying #as opposed to +hile testi(ying% O":G i( the court determines in its discretion that it is necessary in the interests o( $ustice) In ,RE the opposing party in criminal cases A:!AGS has the right to inspect documents used to re(resh memory regardless o( +hether the +itness revie+s them be(ore or +hile testi(ying) ,resent recollection refreshed% I( a ! is on the stand and can8t remember something' attorney may sho+ her a picture' play a song' anything' to re(resh her memory) Once her memory is re(reshed' ! testi(ies (rom memory) Gou do !$1 admit the item used to re(resh the +itness8s memory into evidence) o !e do not +ant the $ury to +eigh this evidence too heavily) 9sed o(ten +ith ;pro(essional< +itnesses) #doctors' cops' those +ho may serve as +itnesses a lot% BEFORE -RIAL 'd **ere!&e (e1=ee! FRE / -RE)0 I( the attorney sho+s a +itness documents to re(resh her memory before trial' attorney must in(orm court and the court +ill decide +hether to sho+ the document to the opposing side in the interests o( $ustice) o In -e.a#' i( a &r 5 !al 1r al and the attorney sho+s a +itness documents to re(resh her memory (e*$re trial' attorney 8US- give documents to opposing side1 not discretionary Opposing side has an absolute right to see those documents) o In *ederal rule#' no such re-uirement) PAS- RECOLLEC-ION RECORDED Federal Rule G03 'K) Re&$rded re&$lle&1 $!. A memorandum or record concerning a matter about +hich a +itness once had &no+ledge but no+ has insu((icient recollection to enable the +itness to testi(y (ully and accurately' sho+n to have been made or adopted by the +itness +hen the matter +as (resh in the +itness/ memory and to re(lect that &no+ledge correctly) I( admitted' the memorandum or record may be read into evidence but may not itsel( be received as an e.hibit unless o((ered by an adverse party) -e.a# Rule G03 'K) Re&$rded Re&$lle&1 $!. A memorandum or record concerning a matter about +hich a +itness once had personal &no+ledge but no+ has insu((icient recollection to enable the +itness to testi(y (ully and accurately' sho+n to have been made or adopted by the +itness +hen the matter +as (resh in the +itness/ memory and to re(lect that &no+ledge correctly' unless the circumstances of preparation cast doubt on the document:s trustworthiness. I( admitted' the memorandum or record may be read into evidence but may not itsel( be received as an e.hibit unless o((ered by an adverse party) DIFFERENCE BE-WEEN FRE / -RE0 N$!e Ele5e!1#0 A recorded statement concerning a matter is admissible as PRR i( the (ollo+ing re-uirements are met '1) -2e de&lara!1 1e#1 * e# a1 1r al 'E) He $!&e 2ad 4er#$!al 6!$=led"e a($u1 12e 5a11er

'3) He !$= 2a# !#u** & e!1 re&$lle&1 $! 1$ 1e#1 *, *ull, a!d a&&ura1el, a($u1 1 ':) He 5ade $r ad$41ed 12e #1a1e5e!1 'K) W2 le 12e e%e! =a# #1 ll *re#2 ! 2 # 5e5$r,D a!d 'L) I1 a&&ura1el, re*le&1ed 2 # 6!$=led"e a1 12e 1 5e.

D #1 !&1 *r$5 Pre#e!1 Re&$lle&1 $! Re*re#2ed ,resent recollection refreshed is the procedure by +hich counsel uses an item in an e((ort to trigger a +itness8s (aulty memory and then the +itness testi(ies (rom memory) ,ast recollection record is used +hen a +itness8s memory cannot be re(reshed) I( ! testi(ies that he made a +riting near the time o( event and it accurately re(lected the event' the +riting may be substituted (or !8s memory) Even though this is a Rule B4? e.ception #*C Availability Immaterial% the availability o( the *C is "O, immaterial bJc ! must be on the stand testi(ying7 ,he memorandum is !$1 allo+ed in the $ury room as an e.hibit o It may only be read into evidence) o *one so it is not given more +eight than it should) E((ort to ma&e the evidence as much li&e oral testimony as possible) o However the opposing party is entitled to examine the memo and introduce it. ,he +riting must have been made +hile the incident +as (resh in the *C8s memory) N$1e0 8ade OR Ad$41ed 12e #1a1e5e!16 Even i( the +itness did not create the +riting himsel(' i( it +as created at his direction #dictation% or adopted by him #he read over and approved the content o( someone else8s statement% it may -uali(y as PRR BUSINESS RECORDS EHCEP-ION Federal Rule G03'L) Re&$rd# $* re"ularl, &$!du&1ed a&1 % 1,. A memorandum' report' record' or data compilation' in any (orm' o( acts' events' conditions' opinions' or diagnoses' made at or near the time by' or (rom in(ormation transmitted by' a person +ith &no+ledge' i( 6e41 ! 12e &$ur#e $* a re"ularl, &$!du&1ed (u# !e## a&1 % 1,' and * 1 =a# 12e re"ular 4ra&1 &e $* 12a1 (u# !e## a&1 % 1, 1$ 5a6e 12e 5e5$ra!du53 re4$r13 re&$rd $r da1a &$54 la1 $!' all as sho+n by the testimony o( the custodian or other -uali(ied +itness' or by certi(ication that complies +ith Rule T4D#33% ' Rule T4D#3D%' or a statute permitting certi(ication' unless the source o( in(ormation or the method or circumstances o( preparation indicate lac& o( trust+orthiness) ,he term =business= as used in this paragraph includes business' institution' association' pro(ession' occupation' and calling o( every &ind' +hether or not conducted (or pro(it) -e.a# Rule G03'L) Re&$rd# $* Re"ularl, C$!du&1ed A&1 % 1,. A memorandum' report' record' or data compilation' in any (orm' o( acts' events' conditions' opinions' or diagnoses' made at or near the time by' or (rom in(ormation transmitted by' a person +ith &no+ledge' i( &ept in the course o( a regularly conducted business activity' and i( it +as the regular practice o( that business activity to ma&e the memorandum' report' record' or data compilation' all as sho+n by the testimony o( the custodian or other -uali(ied +itness' or by a((idavit that complies +ith Rule T4D#34%' unless the source o( in(ormation or the method or circumstances o( preparation indicate lac& o( trust+orthiness)

= usiness= as used in this paragraph includes any and every &ind o( regular organiHed activity +hether conducted (or pro(it or not) DIFFERENCE BE-WEEN FRE / -RE0 N$!e. FRAP Feep1 Regular course1 At or near the time1 Personal &no+ledge Rationale# records &ept in the ordinary course o( business tend to be reliable bJc the business person has the pro(essional incentive to ma&e sure they are reliable) o Cocus on the routine0ness o( the records) 4he record must be one that is !ept in the regular practice of business, made in the regular course of business, made at or near the time of the event, the person who ma!es the record or who has the business duty to transmit the !nowledge must have personal !nowledge Coundation (or this rule consists o( (our elements o #3% Record +as made and &ept in the course o( a regularly conducted business activity1 o #D% It +as the regular practice o( business activity to ma&e record #ie routine record% o #?% ,he record +as made at or near the time o( the event that it records1 o #5% ,he record +as made by' or (rom in(ormation transmitted by' a person +ith &no+ledge1 the person +ith &no+ledge must have acted in the regular course o( business' or as it is sometimes put' must have had a (u# !e## du1, to report) CC F!$=led"e re<u re5e!1CC ; -ee below ,hese elements must be sho+n by the testimony o( the custodian or ;other -uali(ied +itness< #ie any person +ho can credibly testi(y that record satis(ies the re-uirements o( the e.ception%) <nowledge requirement% it is not re-uired that the +itness have personal &no+ledge o( the contents o( the particular entry or the circumstances in +hich it +as made as long as the +itness can testi(y that the records generally satis(y the conditions o( the rule) o ! does not need to have personal &no+ledge o( the entireties in the records as long as he has &no+ledge o( the procedures under +hich the records +ere created) o Even i( the ma&er o( the record lac&s personal &no+ledge o( the recorded (acts' i( the in(ormation comes (rom someone else +ho has a business duty to report the in(ormation the personal &no+ledge re-uirement is (ul(illed) E.) PO (iles a report +hich states ;O((icer Lones told me that she sa+ the motorcycle run the red light and crash into the truc&)< +usiness% very broadly de(ined1 can include the activity o( an individual as long as it is done' and records are &ept' regularly) o <io case6 Rovt) claimed Nio had underpaid his ta.es1 government introduces the diary o( another dealer +ho +rote do+n all o( his tips and pro(its as a business record) D$u(le 2ear#a, 4r$(le5# ! BR Re&$rd# I( the ma&er o( a business record obtains the in(ormation recorded (rom another person' a double hearsay problem arises) !hether the record is admissible depends on the source o( the in(ormation recorded and the applicability o( other hearsay e.ceptions) o E.) Plainti(( o((ers PO8s report +hich states ;Shortly a(ter the accident I spo&e +ith ystander) She told me that the car ran a red light)<

I( o((ered to prove that the car ran the red light' this report contains double hearsay6 the PO8s +ritten statement #; ystander told me the car ran the red light<% and ystander8s statement to PO #;Car ran the right light)<% o E.) Gou +ant to prove that a person stayed in a hotel on a certain day so you get the hotel records that say ;U +as here on Lanuary 35< is there a double hearsay problem> Hotel may be accurately recording +hat guest says but ho+ do +e &no+ +hat guest says is accurate> SCAMP7 CC BE CAREFUL I( the record is o((ered merely to sho+ that the ;in(ormer< made the statement' there is only one level o( hearsay) o E.) PO8s report states' ; ystander told me' ;,he car ran the light)< I( o((ered merely to prove that ystander made this statement #not to prove that the car ran the light% ystander8s statement is not hearsay) PO8s statement is hearsay but -uali(ies as a R) 15ac! of trustworthiness2 o(ten re(ers to documents prepared in anticipation of litigation or under circumstances that might suggest a motive to misrepresent) 'bsence of Record6 CRE #and ,RE>>>% allo+ re(erence to business records to prove the non0 occurrence o( an event not recorded i( it +as the practice o( the business to record such events) o "ot really a need (or such an e.ception though since the business8s silence +ould not be a ;statement< and thus could not be hearsay) PUBLIC RECORDS

Federal Rule G03'G) Pu(l & re&$rd# a!d re4$r1#) Records' reports' statements' or data compilations' in any (orm' o( public o((ices or agencies' setting (orth #A% the activities o( the o((ice or agency' or # % matters observed pursuant to duty imposed by la+ as to +hich matters there +as a duty to report' e.cluding' ho+ever' in criminal cases matters observed by police o((icers and other la+ en(orcement personnel' or #C% in civil actions and proceedings and against the Rovernment in criminal cases' (actual (indings resulting (rom an investigation made pursuant to authority granted by la+' unless the sources o( in(ormation or other circumstances indicate lac& o( trust+orthiness) -e.a# Rule G03'G) Pu(l & Re&$rd# a!d Re4$r1#. Records' reports' statements' or data compilations' in any (orm' o( public o((ices or agencies setting (orth6 #A% the activities o( the o((ice or agency1 # % matters observed pursuant to duty imposed by la+ as to +hich matters there +as a duty to report' e.cluding in criminal cases matters observed by police o((icers and other la+ en(orcement personnel1 or #C% in civil cases as to any party and in criminal cases as against the state' (actual (indings resulting (rom an investigation made pursuant to authority granted by la+1 9":ESS the sources o( in(ormation or other circumstances indicate lac& o( trust+orthiness) DIFFERENCE BE-WEEN FRE / -RE0 In FRE the trust+orthiness issues only pertain to (actual (indings in #C% In -RE the trust+orthiness issues pertain to the entire statute) Rationale# Public o((icials have a duty to be reliable)

CIVIL CASES #A% Records o( the agency8s O!" activities1 (ocuses on internal matters1 purely (actual matters o E.) :ottery records o( ho+ many tic&ets sold' # % Records the Agency is Re-uired to Observe and Report1 (ocuses on e.ternal matters o ;Matters observed< re-uires personal &no+ledge o Records setting (or matter that the agency is re-uired by la+ to observe and report) ,his includes the recording o( public o((icials8 o+n (irst0hand observations) o E.) order chec&point8s recordings o( license plates that cross the border #C% Cactual (indings o Cactually based opinionsJ(indings are admissible as long as they are made pursuant to an investigation that has authority granted by la+) o Controversial ho+ (ar ;circumstances PthatQ indicate a lac& o( trust+orthiness< go Rainey case #govt) plane crash% sets (orth that the public record is presumed trust+orthy and it is up to the opponent to prove that it is untrust+orthy) o Rel a( l 1,0 timeliness o( reports' s&ill o( person +ho made report' i( there +as motivation (or individual +ho made report to be less than trust+orthy' ho+ (actual (indings +ere (ound' ho+ good +as data underlying report' +hether it is a (inal report or an interim report o ,he (act that the report may be based in part or even largely on hearsay does "O, necessarily render the (actual (indings inadmissible #ifferent than the +R exception. 9nder the R e.ception +e +on8t let in statements based largely on bystander statements) Scottish plane e.plosion case evidence based entirely on hearsay CRI8INAL CASES #A% "o change) Record o( agency8s O!" activities) # % I! a &r 5 !al &a#e' i( the matter observed is by a police o((icer or other la+ en(orcement personnel' it is I"A*MISSA :E) o lan&et e.clusion +hether the evidence i( o((ered (or or against the client) o U. . v. +ates chemist case o E.&e41 $!0 Courts have allo+ed ;matters observed< by la+ en(orcement i( it is ministerial in nature and !$1 done in preparation (or trial) C$ur1# 2a%e dra=! a d #1 !&1 $! (e1=ee! 12e !%e#1 "a1 %e re4$r1 $* a 4$l &e $** &er $! $!e 2a!d a!d r$u1 !e re&$rd !" $* !*$r5a1 $! (, #$5e$!e =2$ 2a44e!# 1$ (e la= e!*$r&e5e!1 4er#$!!el. #C% ,he (actual (indings can be used6 o In civil cases o Against the governmentJstate in criminal cases 12e D &a! $**er 12e * !d !"#I o "O, be used against a de(endant in a criminal case) =o use of +usiness Records $xception >?@ A" to get around criminal bloc!s in ,R exception% Gou cannot subvert B4?#B% by o((ering the same evidence as a R under B4?#V%

'bsence of Record to ,rove =on;Occurrence6 ,he absence o( a public record o( an event may be used to prove the non0occurrence o( the event i( reports o( such an event are regularly made) DECLARAN- UNAVAILABLE

Federal Rule G0:. Hear#a, E.&e41 $!#D De&lara!1 U!a%a la(le. #a% *e(inition o( 9navailability) ;9navailability as a +itness< includes situations in +hich the declarant #3% is e.empted by ruling o( the court on the ground o( privilege (rom testi(ying concerning the sub$ect matter o( the declarant8s statement1 or #D% persists in re(using to testi(y concerning the sub$ect matter o( the declarant8s statement despite an order o( the court to do so1 or #?% testi(ies to a lac& o( memory o( the sub$ect matter o( the declarant8s statement1 or #5% is unable to be present or to testi(y at the hearing because o( death or then e.isting physical or mental illness or in(irmity1 or #E% is absent (rom the hearing and the proponent o( a statement has been unable to procure the declarant8s attendance #or in the case o( a hearsay e.ception under #b%#D%' #?%' or #5%' the declarant8s attendance or testimony% by process or other reasonable means) A declarant is not unavailable as a +itness i( e.emption' re(usal' claim o( lac& o( memory' inability' or absence is due to the procurement or +rongdoing o( the proponent o( a statement (or the purpose o( preventing the +itness (rom attending or testi(ying) -e.a# Rule G0:. Hear#a, E.&e41 $!#0 De&lara!1 U!a%a la(le #a% *e(inition o( 9navailability) =9navailability as a +itness= includes situations in +hich the declarant6 #3% is e.empted by ruling o( the court on the ground o( privilege (rom testi(ying concerning the sub$ect matter o( the declarant/s statement1 #D% persists in re(using to testi(y concerning the sub$ect matter o( the declarant/s statement despite an order o( the court to do so1 #?% testi(ies to a lac& o( memory o( the sub$ect matter o( the declarant/s statement1 #5% is unable to be present or to testi(y at the hearing because o( death or then e.isting physical or mental illness or in(irmity1 or #E% is absent (rom the hearing and the proponent o( the declarant/s statement has been unable to procure the declarant/s attendance or testimony by process or other reasonable means) A declarant is not unavailable as a +itness i( the declarant/s e.emption' re(usal' claim o( lac& o( memory' inability' or absence is due to the procurement or +rong0doing o( the proponent o( the declarant/s statement (or the purpose o( preventing the +itness (rom attending or testi(ying) DIFFERENCE BE-WEEN FRE / -RE IF ,$u 2a%e a de&lara!1 =2$ # u!a%a la(le3 BU- ,$u 2a%e 12e r 1e#1 5$!, *r$5 a *$r5er 1r al 12e!0 -RE says in order to prove that the declarant is unavailable' you must sho+ that you cannot procure their a11e!da!&e OR their testimony)

FF Gou have to sho+ you can8t get the declarant to attend A"* you can8t ta&e his deposition) FRE says i( you can8t procure their attendance' you can use their (ormer testimony) FF All you have to sho+ is that you can8t get the declarant to attend) K "r$u!d# #u** & e!1 1$ &$!#1 1u1e u!a%a la( l 1, o ' claim of privilege o Refusal to testify o 5ac! of memory o #eath or physical or mental illness or infirmity !ith illness or in(irmity' $udge +ill consider the duration and severity o( illness) o 'bsence from the hearing and inability of the proponent to procure the declarant0s attendance or testimony by process or other reasonable means. urden o( sho+ing unavailability o( the declarant is on the proponent o( the hearsay evidence) FRE 0 In regard to B45#a%#E% 9nable to procure *C8s attendance by process or reasonable means6 o Criminal 0 trial in +hich (ormer testimony is o((ered against an accused' the e((orts o( the prosecution to produce the +itness at trial is $udged by ;good (aith< e((orts) o Civil 0 i( the declarant resides out o( the reach o( process' but has indicated a +illingness to appear at trial voluntarily' the hearsay may be inadmissible) I( absence alone is relied upon (or unavailability' Rule B45#a%#E% re-uires that the proponent sho+ an inability to obtain the testimony #such as by deposition% as +ell as the attendance o( the declarant' i( the hearsay is o((ered under Rule B45 #b%#D%' #?%' or #5%) o ,he re-uirement o( attempt to depose declarant does not apply statements o((ered under Rule B45#b%#3% PCormer ,estimonyQ reasoning that they already have the testimony so deposing the +itness again isn8t necessary) FOR8ER -ES-I8ON9 Federal Rule G0:'()'1) F$r5er -e#1 5$!, '() Hear#a, E.&e41 $!#. ,he (ollo+ing are not e.cluded i( the declarant is unavailable as a +itness) Cormer ,estimony) ,estimony given as a +itness at another hearing o( the same or a di((erent proceeding' or in a deposition ta&en in compliance +ith la+ in the course o( the same or another proceeding' i( the party against +hom the testimony is no+ o((ered' or' in a civil action or proceeding' a predecessor in interest' had an opportunity and similar motive to develop the testimony by direct' cross' or redirect e.amination) -e.a# Rule G0:'()'1) F$r5er -e#1 5$!, '() Hear#a, E.&e41 $!#. ,he (ollo+ing are not e.cluded i( the declarant is unavailable as a +itness6 #3% ,ormer testimony) In civil cases' testimony given as a +itness at another hearing o( the same or a di((erent proceeding' or in a deposition ta&en in the course o( another proceeding' i( the party against +hom the testimony is no+ o((ered' or a person +ith a similar interest' had an opportunity and similar motive to develop the testimony by direct' cross' or redirect e.amination) In criminal cases' testimony given as a +itness at another hearing o( the same or a di((erent proceeding' i( the party against +hom the

testimony is no+ o((ered had an opportunity and similar motive to develop the testimony by direct' cross' or redirect e.amination) In criminal cases the use o( depositions is controlled by Chapter ?T o( the Code o( Criminal Procedure) DIFFERENCE BE-WEEN FRE / -RE0 FRE and -RE are largely the same despite the CRE8s more restrictive language) FF !ith 9navailability Re-uirement' in FRE you don8t need to get *C8s testimony again) Gou do in -RE F$r5er 1e#1 5$!, rule# ,estimony must have been ta&en at another hearing or deposition Cormer testimony is only admissible i( the party against whom it is now being offered had o #3% ,he $44$r1u! 1, and o #D% ,he 5$1 %e to develop the testimony in the (ormer hearing in much the same +ay that it +ould do i( the declarant +ere testi(ying in the current proceeding) ,estimony given by a +itness at another hearing +ill be admissible * the party against +hom the testimony is no+ o((ered had an opportunity and similar motive to develop the testimony) I( state had same motivation to develop the testimony in the (irst case as they do in this case A"* had opportunity to probe the +itness' then may be admissible O!l, 12e $44$r1u! 1, 1$ de%el$4 1e#1 5$!, # re<u red1 there need not be actual e.amination o( the +itness by the party or predecessor in interest) o It does not need to be cross0e.amination either1 direct e.amination may be enough) So grand $ury testimony may be o((ered against the govt i( there is similar motive) CIVIL CASES Prede&e##$r ! I!1ere#1 O6a, *$r C % l Ca#e# o Even i( the party against +hom the testimony is no+ being o((ered did not have the opportunity and motive to develop the testimony at the earlier hearing' the (ormer testimony is admissible i( a predecessor in interest o( the party had the opportunity and motive to do so) Similar motive6 a party is regarded as having a similar motive to develop the testimony +hen the issue to +hich the testimony related at the (ormer hearing is substantially identical to the issue in the present proceeding) o *i((erences as to tactics or strategy' ho+ever reasonable' are disregarded) Prede&e##$r ! I!1ere#10 courts have generally interpreted ;predecessor in interest< broadly to encompass any party +ith a similar interest and motive) o A strict reading is that a predecessor in interest is someone in privity +ith the party against +hom testimony is no+ being o((ered but (ederal courts have tended to interpret the re-uirement as $ust someone +ith a similar interest in developing the testimony) D9ING DECLARA-IONS Federal Rule G0:'()'E) -tatement under belief of impending death. In a prosecution (or homicide or in a civil action or proceeding' a statement made by a declarant +hile believing that the declarant/s death +as imminent' concerning the cause or circumstances o( +hat the declarant believed to be impending death)

-e.a# Rule G0:'()'E) #ying declarations) A statement made by a declarant =2 le (el e% !" 12a1 12e de&lara!1M# dea12 =a# 55 !e!1' concerning the cause or circumstances o( +hat the declarant believed to be impending death) DIFFERENCE BE-WEEN FRE / -RE0 FRE permits dying declarations only in homicide prosecutions and in civil cases 0 "O, in non0 homicide criminal cases) -RE e.tends the e.ception to all cases) Rationale based on theory that a declarant +ill not lie on his deathbed) o *eclarant M9S, E:IEKE that his death is IMMI"E", H9PO0 Severely burden +oman &ept as&ing PO i( she +as dying' he told her no' but evidence +as enough to sho+ that she &ne+ death +as imminent) o ,raditionally only allo+ed (or murder cases H9PO0 *e(endant &ills D victims) KD ma&es the dying declaration ;* shot us)< oth K3 and KD die) KD8s statements are admissible against * in the trial o( +hether * shot K3) Su & de !$1e# o *C &no+s that death is imminent since he is about to &ill himsel(1 courts split Ludge determines +hether a statement is a dying declaration1 may +eigh credibility o( !1 preponderance o( the evidence) Since the theory behind dying declarations is that people +ill tell the truth i( they thin& they are about to die' the other side may produce evidence that the *C didn8t really thin& he +as about to die and thus may not have the same inclination to tell the truth7 S-A-E8EN-S AGAINS- IN-ERESFederal Rule G0:'()'3) S1a1e5e!1 A"a !#1 I!1ere#1. '() Hear#a, E.&e41 $!#. ,he (ollo+ing are not e.cluded by the hearsay rule i( the declarant is unavailable as a +itness6 @" -tatement 'gainst Interest) A statement +hich +as the time o( its ma&ing so (ar contrary to the declarant8s 4e&u! ar, $r 4r$4r e1ar, interest' or so (ar tended to sub$ect the declarant to civil or criminal liability '4e!al !1ere#1)3 or to render invalid a claim by the declarant against another' that a reasonable person in the declarant8s position +ould not have made the statement unless believe it to be true) A statement tending to e.pose the declarant to criminal liability and o((ered to e.culpate the accused is not admissible unless corroborating circumstances clearly indicate the trust+orthiness o( the statement) -e.a# S1a1e5e!1 A"a !#1 I!1ere#1 De&lara!1 CAN (e a%a la(le Rule G03'E:) 'E:) S1a1e5e!1 A"a !#1 I!1ere#1. A statement +hich +as at the time o( its ma&ing so (ar contrary to the declarant/s pecuniary or proprietary interest' or so (ar tended to sub$ect the declarant to civil or criminal liability' or to render invalid a claim by the declarant against another' or to ma&e the declarant an ob$ect o( hatred' ridicule' or disgrace' that a reasonable person in declarant/s position +ould not have made the statement unless believing it to be true) In criminal cases' a statement tending to e.pose the declarant to

criminal liability is not admissible unless corroborating circumstances clearly indicate the trust+orthiness o( the statement) FF Can be used against A"GO"E not $ust against the person +ho said it DIFFERENCE BE-WEEN FRE / -RE0 FRE #1a1e5e!1 a"a !#1 !1ere#1 rule re<u re# 12a1 12e de&lara!1 (e u!a%a la(le '2e!&e G0:). -RE #1a1e5e!1 a"a !#1 !1ere#1 rule #a,# 12e de&lara!1 CAN (e a%a la(le '2e!&e G03) -RE all$=# #1a1e5e!1 (, a de&lara!1 12a1 =$uld #u(+e&1 2er 1$ 2a1red3 r d &ule $r d #"ra&e. Pr$4r e1ar, W property o ;I don8t o+n lac&acre' U does< Pe&u! ar, W (inancial o ;I o+e U I344< or a receipt ac&no+ledging payment Pe!al W civil $r criminal o C % l W either sub$ects *C to civil liability or renders a *C8s claim against another invalid #;I &ne+ the salesman +as lying +hen he told me the car only has 54'444 miles on it<% o Cr 5 !al W statements that tend to sub$ect the declarant to criminal liability Be &are*ul the use o( declarations against penal interest to e.onerate an accused are only allo+ed +hen corroborating circumstances clearly indicate the trust+orthiness o( the statement) ,his is distinguishable (rom a ;party admission< an out0o(0court statement by a party o((ered against the party is admissible as an admission under Rule B43#d%#D% and is not sub$ect to the re-uirement o( Rule B45#b%#?% that it is against the declarant8s interest) Must be against declarant8s interest at the time it was made o :oo& at the (actual conte.t o( the statement to determine +hether it is against interest and +hether declarant &ne+ it) o Statements that initially appear against *C8s interest may not be so i( (acts indicate that *C did not thin& o( possible adverse conse-uences or vie+ed statement as sel(0serving Be &are*ul 8IHED 8O-IVES In a statement against interest that $!l, =2a1 # a"a !#1 12e de&lara!17# !1ere#1 # all$=edI o E.) Case in +hich declarant con(essed to the crime' but also implicated the de(endant) His o+n con(ession +as a statement against interest' but his implication o( someone else +as "O, a statement against interest so it is "O, allo+ed in1 custodial con(ession +here the +itness has a motive to pass the blame to someone else o E.) "aval Murder case girl told (riend about ho+ her boy(riend and she &illed another girl1 in this case she +as not trying to pass blame1 she +as not trying to implicate her boy(riend1 she +as proud o( the murder) Statements A::O!E* I") Statements against Penal Interest6 does not need to be outright con(ession o( guilt' but must tend to sub$ect declarant to criminal liability to the e.tent that a reasonable person +ould not ma&e the statement unless it +as true) o A statement may -uali(y even though it +as made to a (riend or (amily member) Statements against penal interest o((ered to e.culpate accused corroboration re-uired) o Courts identi(ied a variety o( (actors relevant to court8s determination +hether a statement against penal interest o((ered to e.culpate an accused possess su((icient ;corroborating circumstances clearly indicating the trust+orthiness o( the statement)<

o Cactors may include6 Relationship bet+een the declarant and accused #absence o( a close relationship ma&es it less li&ely that the story is (abricated (or the bene(it o( the accused% !hether the statement +as made voluntarily a(ter Miranda +arnings !hether there is evidence that statement +as made to curry (avor +ith authorities) CONFRON-A-ION CLAUSE Si.th Amendment o( 9S Constitution guarantees a criminal de(endant the right ;to be con(ronted +ith the +itnesses against him)< Hearsay issues6 Raises problems +ith hearsay bJc the hearsay declarant is e((ectively the +itness against the de(endant and she is o(ten not in court) o "o con(rontation clause problem i( the hearsay *C testi(ies and can be cross0e.amined) o CC problem only arise +hen *C does not testi(y at trial and cannot be cross0e.amined OLD -ES-0 +hio v. Roberts6 the Con(rontation Clause re-uired the prosecution either to call the declarant or to sho+ that the declarant +as unavailable) o SC said6 I( *C does not testi(y' t+o0prong test to determine +hether CC applies6 #3% !hether the *C is unavailable A"* #D% !hether the hearsay is reliable) o I( the HS +as reliable and *C doesn8t testi(y bJc he is unavailable' no CC problem -rawford re$ects +hio v. Robert analysis bJc it +as inconsistent +ith the history o( the CC1 created inconsistent results and treated CC as a substantive' instead o( a procedural' right) o I( statement is testimonial' +e go to Cra+(ord test) I( not testimonial' no CC problem) o "e+ test6 I( *C does not testi(y' *C8s statement +ill be inadmissible against the accused unless6 3% !hether the *C is unavailable A"* D% !hether the accused had a PRIOR opportunity to cross0e.amine the *C !hen does the CC apply> o I1 a44l e# =2e! 12e $u1-$*-&$ur1 #1a1e5e!1 =a# 1e#1 5$! al. !hether or not the statement +as testimony is +hat brings it +ithin CC #avis v. Washington K tells T33 operator * +as ;$umpin8 on her'< K identi(ies *avis as assailant' later re(uses to testi(y $ammen case 0 Report o( *K' PO comes' Hammen says nothing' later tells PO H harmed her) :ater re(uses to testi(y) Evidence o((ered at these trials +ere statements made by the +omen to T33 operator or PO 0 are these testimonial> S1a1e5e!1# are !$!-1e#1 5$! al =2e! 12e & r&u5#1a!&e# $(+e&1 %el, !d &a1e 12a1 12e 4r 5ar, 4ur4$#e # 1$ a## #1 12e 4$l &e 1$ 5ee1 a! $!"$ !" e5er"e!&, o .avis Statements to T33 operator had primary purpose to enable the police to meet an ongoing emergency at least inso(ar as the statements made until * ran a+ay S1a1e5e!1# are 1e#1 5$! al =2e! 12e & r&u5#1a!&e# $(+e&1 %el, !d &a1e 12a1 12ere # !$ $!"$ !" e5er"e!&, a!d 12e 4r 5ar, 4ur4$#e 1$ e#1a(l #2 $r 4r$%e 4a#1 e%e!1# 4$1e!1 all, rele%a!1 1$ a la1er &r 5 !al 4r$#e&u1 $!.

o $ammen statements testimonial bJc no emergency since +hen PO got there Interrogation into past conduct1 determine +hat happened' not +hat IS happening W2e! de1er5 ! !" =2e12er #1a1e5e!1# are 1e#1 5$! al &$ur1 l$$6# 1$ 12e DC7# 4ur4$#e. o Are these statements being made as a substitute (or testimony or not> -2 !"# #avis Clear U4 CC applies to a broader set o( statements CC does not only apply to (ormal investigationsJinterrogations CC applies O":G to testimonial statements1 i( a statement is nontestimonial' CC does not apply -2 !"# #avis D$e# NO- Clear U4 !hose purpose are +e tal&ing about> o Police o((icer8s purpose> *C8s purpose> oth> F$ur e.a54le# $* =2e! CC ##ue# ar #e B" -tatement made to an uncover agent6government informer o *C doesn8t &no+ he is tal&ing to a PO1 PO8s primary ob$ective is to investigate o "ot *C8s primary purpose to provide the in(ormation but PO8s primary purpose is to get the in(ormation) o !ho do +e (ocus on> C" *hild abuse cases o Statements that childJparent ma&es to doctor under Rule B4?#5% o *octor as&s -uestion about identity are they doing that (or treatment or to pass the in(o on to the police> o Primary purpose> Secondary purpose> oth> Is it both (or treatment and (or police> o Rape cases !oman goes to the hospital a(ter being raped and evidence is collected Evidence collection has an investigative purpose' but no ongoing emergency !ill statements made regarding the investigative (unction be considered testimonial or non0testimonial> @" #omestic violence cases o PO get *K victims to testi(y early on in a deposition so * theoretically has chance to cross0e.amination o *8s attorney probably isn8t ready to cross though and the purpose o( a preliminary hearing to establish probable cause is very di((erent (rom a trial) o So i( K later doesn8t +ant to testi(y' prosecution can claim that she already testi(ied D" 8orfeiture by wrongdoing o I( the * is guilty o( (or(eiture by +rongdoing' the * has +aived the CC claim) o I( ! does not testi(y bJc * has ;procured< the !8s non0testimony or coerced ! not to testi(y' * cannot raise a CC) !ith all o( these problems' it is still up in the air) O-HER RULES Federal Rule 10L. Re5a !der $* $r Rela1ed Wr 1 !"# $r Re&$rded S1a1e5e!1#

!hen a +riting or recorded statement or part thereo( is introduced by a party' an adverse party may re-uire the introduction at that time o( any other part or any other +riting or recorded statement +hich ought in (airness to be considered &$!1e54$ra!e$u#l, +ith it) -e.a# Rule 10N. Rule $* O41 $!al C$54le1e!e##. !hen part o( an act' declaration' conversation' +riting or recorded statement is given in evidence by one party' the +hole on the same sub$ect may be in-uired into by the other' and any other act' declaration' +riting or recorded statement +hich is necessary to ma&e it (ully understood or to e.plain the same may also be given in evidence' as +hen a letter is read' all letters on the same sub$ect bet+een the same parties may be given) /(riting or recorded statement/ includes depositions. DIFFERENCE BE-WEEN FRE / -RE0 FRE does not speci(ically have a Rule 34@' they $ust e.tend rule 34V) FRE 34V only applies to +ritten and recorded statements' "O, oral statements) I( a party o((ers PAR, o( a recordJconversation into evidence' that part may be misleading i( ta&en out o( conte.t) o Opposing side may o((er the rest o( conversation to put it into conte.t or e.plain it) E.) I( someone o((ers part o( a statement in !ee& 3 and you aren8t going to be able to produce the rest o( the statement until !ee& 5' you are allo+ed to introduce that evidence contemporaneously +ith that (irst evidence) -e.a# Rule L1K. Pr$du&1 $! $* S1a1e5e!1# $* W 1!e##e# ! Cr 5 !al Ca#e#. 'a) 8$1 $! *$r Pr$du&1 $!. A(ter a +itness other than the de(endant has testi(ied on direct e.amination' the court' on motion o( a party +ho did not call the +itness' shall order the attorney (or the state or the de(endant and de(endant/s attorney' as the case may be' to produce' (or the e.amination and use o( the moving party' any statement o( the +itness that is in their possession and that relates to the sub$ect matter concerning +hich the +itness has testi(ied) '() Pr$du&1 $! $* E!1 re S1a1e5e!1) I( the entire contents o( the statement relate to the sub$ect matter concerning +hich the +itness has testi(ied' the court shall order that the statement be delivered to the moving party) '&) Pr$du&1 $! $* E.& #ed S1a1e5e!1. I( the other party claims that the statement contains matter that does not relate to the sub$ect matter concerning +hich the +itness has testi(ied' the court shall order that it be delivered to the court in camera) 9pon inspection' the court shall e.cise the portions o( the statement that do not relate to the sub$ect matter concerning +hich the +itness has testi(ied' and shall order that the statement' +ith such material e.cised' be delivered to the moving party) Any portion +ithheld over ob$ection shall be preserved and made available to the appellate court in the event o( appeal) 'd) Re&e## *$r E.a5 !a1 $! $* S1a1e5e!1. 9pon delivery o( the statement to the moving party' the court' upon application o( that party' shall recess proceedings in the trial (or a reasonable e.amination o( such statement and (or preparation (or its use in the trial) 'e) Sa!&1 $! *$r Fa lure 1$ Pr$du&e S1a1e5e!1. I( the other party elects not to comply +ith an order to deliver a statement to the moving party' the court shall order that the testimony o( the +itness be stric&en (rom the record and that the trial proceed' or' i( it is the attorney (or the state +ho elects not to comply' shall declare a mistrial i( re-uired by the interest o( $ustice) '*) De* ! 1 $!. As used in this rule' a =statement= o( a +itness means6

#3% a +ritten statement made by the +itness that is signed or other+ise adopted or approved by the +itness1 #D% a substantially verbatim recital o( an oral statement made by the +itness that is recorded contemporaneously +ith the ma&ing o( the oral statement and that is contained in a stenographic' mechanical' electrical' or other recording or a transcription thereo(1 or #?% a statement' ho+ever ta&en or recorded' or a transcription thereo(' made by the +itness to a grand $ury) Ras&in Rule Mid0trial discovery rule that O":G applies in criminal cases A(ter a +itness' any +itness other than the accused' (inishes direct e.amination in a CRIMI"A: case' opposing party is entitled to any ;statement o( the +itness< in the party8s possession that relates to sub$ect matter o( direct e.amination testimony #e.) Any deposition' intervie+' etc% o A(ter Pr calls a ! and ! (inishes testimony' de(ense can get !8s statements that relate to the +itness8s direct e.amination) o It doesn8t matter +hether the ! loo&ed at it' re(reshed recollection o *iscovery rule that allo+s the opposing party to get at the +itness8s o+n statement ;Statement< must be a +ritten statement that the +itness made' adopted' or approved) o Someone else can +rite it do+n i( the +itness reads and signs it) o Or i( can be a substantially verbatim recital o( an oral statement made by the +itness so long as it is contemporaneously recorded) o E.) I( you are the prosecutor and you ta&e notes +hile the +itness is tal&ing' that is "O, a statement o( the +itness' 9":ESS i( you are +riting do+n EKERG,HI"R the +itness says that is a substantially verbatim recital and thus a statement) In Federal C$ur1# there is a similar rule +hich is no+ codi(ied in the Cederal Rule o( Criminal Procedure DV)D #basically the same as ,U Rule V3E% CHARAC-ER EVIDENCE Ba# &# 3) !hat is the character evidence being o((ered to prove> D) May character evidence be o((ered to prove this> ?) I( so' ho+ may character be proved> P$## (le U#e# $* C2ara&1er E% de!&e C2ara&1er a# a! Ele5e!1 $* a Cla 5 $r De*e!#e o In this case' evidence o( a person8s character is direct evidence o( a (act critical to the case o W2e!e%er &2ara&1er 1#el* # a! ele5e!1 $* a &la 5 $r de*e!#e3 e% de!&e $* &2ara&1er # ad5 ## (le. E.amples =egligent entrustment or hiring +here plainti(( claims O+ner negligently entrusted his car to *river' plainti(( must establish as one o( the elements o( his cause o( action that *river +as to the type o( person to +hom a car should be loaned #(or e.) bJc he +as a terrible driver%

#efamation truth as a *e(ense in a libel or slander case' a de(endant may asset the de(ense o( ;truth< i( * called plainti(( a ;liar'< Plainti((8s character as a liar is an element o( de(endant8s de(ense o( truth) $ntrapment *ustody 'ction 9ental *ondition or *ompetency

FRE :0:. C2ara&1er E% de!&e N$1 Ad5 ## (le -$ Pr$%e C$!du&1D E.&e41 $!#D O12er Cr 5e# 'a) C2ara&1er e% de!&e "e!erall, Evidence o( a person/s character or a trait o( character is NO- admissible (or the purpose o( proving action in con(ormity there+ith on a particular occasion' e.&e410 #3% *haracter of accused 0 Evidence o( a pertinent trait o( character o((ered by an accused' or by the prosecution to rebut the same' or i( evidence o( a trait or character o( the alleged victim o( the &r 5e only allowed in criminal cases" is o((ered by an accused and admitted under Rule 545 #a%#D%' evidence o( the same trait o( character o( the accused o((ered by the prosecution1 #D% *haracter of alleged victim 0 Evidence o( a pertinent trait o( character o( the alleged victim o( the crime o((ered by an accused' or by the prosecution to rebut the same' or evidence o( a character trait o( peace(ulness o( the alleged victim o((ered by the prosecution in a homicide case to rebut evidence that the alleged victim +as the (irst aggressor1 #?% *haracter of witness 0 Evidence o( the character o( a +itness' as provided in rules V4@' V4B and V4T ) '() O12er &r 5e#3 =r$!"#3 $r a&1# Evidence o( other crimes' +rongs' or acts is not admissible to prove the character of a person in order to show action in conformity therewith) It may' ho+ever' be admissible (or O,HER purposes' such as proo( o( motive' opportunity' intent' preparation' plan' &no+ledge' identity' or absence o( mista&e or accident' provided that upon re-uest by the accused' the prosecution in a criminal case shall provide reasonable notice in advance o( trial' or during trial i( the court e.cuses pretrial notice on good cause sho+n' o( the general nature o( any such evidence it intends to introduce at trial) -RE :0:. C2ara&1er E% de!&e N$1 Ad5 ## (le -$ Pr$%e C$!du&1D E.&e41 $!#D O12er Cr 5e# 'a) C2ara&1er E% de!&e Ge!erall,. Evidence o( a person/s character or character trait is NOadmissible (or the purpose o( proving action in con(ormity there+ith on a particular occasion' e.&e410 #3% -haracter of accused) Evidence o( a pertinent character trait o((ered6 #A% by an accused in a criminal case' or by the prosecution to rebut the same' or # % by a party accused in a civil case o( conduct involving 5$ral 1ur4 1ude' or by the accusing party to rebut the same1 #D% -haracter of victim) In a criminal case and sub$ect to Rule 53D' evidence o( a pertinent character trait o( the victim o( the crime o((ered by an accused' or by the prosecution to rebut the same' or evidence o( peaceable character o( the victim o((ered by the prosecution in a homicide case to rebut evidence that the victim +as the (irst aggressor1 or in a civil case' evidence o( character (or violence o( the alleged victim o( a##aul1 %e &$!du&1 o((ered on the issue o( sel(0de(ense by a party accused o( the assaultive conduct' or evidence o( peaceable character to rebut the same1 #?% -haracter of witness) Evidence o( the character o( a +itness' as provided in rules V4@' V4B and V4T)

'() O12er Cr 5e#3 Wr$!"# $r A&1#. Evidence o( other crimes' +rongs or acts is not admissible to prove the character o( a person in order to sho+ action in con(ormity there+ith) It may' ho+ever' be admissible (or other purposes' such as proo( o( motive' opportunity' intent' preparation' plan' &no+ledge' identity' or absence o( mista&e or accident' provided that upon timely re-uest by the accused in a criminal case' reasonable notice is given in advance o( trial o( intent to introduce in the State/s case0in0chie( such evidence other than that arising in the same transaction) FF ,e.as e.tends the character evidence e.ceptions to civil cases +hich involve ;moral turpitude< or have a criminal basis) Cederal Rule 545 only applies to criminal cases) DIFFERENCE BE-WEEN FRE / -RE0 3% In a criminal case CRE 545 provide that i( an accused o((ers evidence o( a trait o( character o( the alleged victim' then the prosecution may o((er evidence o( the same trait o( the accused) E.) * says K +as violent1 P can o((er evidence that * is violent In a criminal case ,RE 545 does !$1 allo+ the prosecution to o((er evidence o( the same trait o( character o( the accused in response to the de(ense o((ering evidence o( that same character trait in the victim) D% In civil cases CRE provides that an =accused= may o((er evidence o( good character and that the =prosecution= may rebut) ,RE provides that' in a civil case' a party accused o( =conduct involving moral turpitude= may o((er evidence o( good character' and that the accusing party may o((er character evidence in rebuttal) ?% ,RE also allo+s a civil party accused o( assaultive conduct to o((er evidence o( the victim/s violent character) CRE limits this e.ception to criminal cases) CHARAC-ER EVIDENCE NEG6 !hy is the evidence being o((ered> o Sho+ that a person acted in con(ormity +ith that character 0 "O, A::O!E* I( that character is honest' maybe that the person didn8t commit the crime I( the character is dishonest' maybe that the person committed the crime o I( character itsel( an element o( the claim or de(ense A::O!E* E. -leghorn v. 0ew )or! -entral RR operator negligently s+itched the s+itch1 character evidence o((ered to sho+ that RR &ne+Jshould have &no+n that operator +as a drun&ard and they +ere negligent in hiring him E.) :ibel charge A says is evil) I( the statement is true # really is evil%' it is a de(ense to libel) : may try to prove character as part o( your de(ense) o I( character is used circumstantially to prove something O,HER than con(ormity) E.) Child custody case1 mother +ants to o((er evidence that (ather is a drun&) "ot an element o( claim' but it IS circumstantial evidence o( the better parent) Ge!eral Rule0 we cannot offer evidence of a person0s character if it is offered to show that the person acted in conformity with that particular character on a particular occasion.

E.) ,o prove * murdered K' Pr +ants to o((er evidence that * has a violent character "O, admissible)

!hy do +e &eep this out> o ,his evidence may in(luence the $ury ,OO much) o Lust bJc a person acted dishonestly in the past it does not prove he acted dishonestly on ,HIS particular occasion1 problem is $ury might dra+ this conclusion) o Luror might see previous instances o( dishonesty and thin& * should be in $ail +hether or not he is guilty o( ,HIS crime) E.&e41 $! 1$ 12e rule0 ' criminal defendant may offer evidence of his E&&# character to show that he acted in conformity with that good character and thus didn0t commit the crime. W2a1 6 !d $* e% de!&e &a! 2e $**er 1$ 4r$%e 12 #> o Reputation and opinion 0 !s may only testi(y to the de(endant8s reputation in the community) He may !$1 o((er evidence o( speci(ic acts to prove his good character) o Hearsay> ;People say that he is honest< o((ered to prove that de(endant is honest) Hearsay e.ception6 Rule B4?#D3% Reputation as to character) I( a de(endant puts a character +itness on the stand' he opens his character up (or P to rebut Pr$#e&u1$r &a!0 o #3% Cross0e.amine *8s character +itness) As& -uestions as&ed to impeach *8s good reputation in the community Pr can as& a reputation +itness called by * +hether she ;has heard< about speci(ic acts o( the * that +ould re(lect badly on *8s reputation) o ;*id you &no+< W improper ,heory behind cross0e.amination is to test +hether ! really &no+s de(endant8s reputation) In reality' -uestions o(ten suggest that de(endant actually *I* the things the prosecution is as&ing about) o Pr as&s speci(ic -uestions< ;*id you hear that on Oct) 3E' de(endant didS< so more li&ely that $ury +ill believe that * actually did it% o Pr limited by a ;good (aith< re-uirement to only -uestion the ! about instances o( conduct that Pr believes happened %ichelson In -H' (or criminal cases' Pr can o((er evidence o( crimes that the * has been as long as he proves them beyond a reasonable doubt) 9, i( ! says' ;"o' I did not hear that< then P CA""O, o((er proo( that these things occurred1 Pr # ($u!d (, W7# a!#=er o E.trinsic evidence to prove event occurred is "O, allo+ed Pr is limited to -uestions that pertain to the relevant character traits that the ! testi(ied to and +here the Pr has a good (aith belie( that the act occurred) A"a ! - Rule :0: E.&e41 $! *$r 12e C2ara&1er $* 12e Alle"ed V &1 5 - Rule :0:'a)'E)

FRE Rule :0:'a)'E) Character o( alleged victim 0 Evidence o( a pertinent trait o( character o( the alleged victim o( the crime o((ered by an accused' or by the prosecution to rebut the same' or evidence o( a character trait o( peace(ulness o( the alleged victim o((ered by the prosecution in a homicide case to rebut evidence that the alleged victim +as the (irst aggressor1 -RE :0:'a)'E) -haracter of victim) In a criminal case and sub$ect to Rule 53D' evidence o( a pertinent character trait o( the victim o( the crime o((ered by an accused' or by the prosecution to rebut the same' or evidence o( peaceable character o( the victim o((ered by the prosecution in a homicide case to rebut evidence that the victim +as the (irst aggressor1 $r in a civil case' evidence o( character (or violence o( the alleged victim o( assaultive conduct o((ered on the issue o( sel(0de(ense by a party accused o( the assaultive conduct' or evidence o( peaceable character to rebut the same1 DIFFERENCE BE-WEEN -RE / FRE0 FRE0 :imited to criminal cases -RE0 Criminal cases a!d in civil cases +here the evidence sho+s character o( violence o( K o( assaultive conduct !hat &ind o( evidence can * use to prove K8s violent character> Rule 54E o Reputation and opinion' "O, speci(ic acts) K8s reputation (or violence) * could "O, o((er that K &illed someone t+o years ago) I! FRE3 NO- -RE Pr may o((er evidence o( the same character trait o( the accused) o I( de(ense o((ers evidence that K +as violent' Pr can o((er evidence that * is violent)

H9PO ; $vidence of the Fictim0s *haracter SE:C0*ECE"SE ,+o theories o( sel(0de(ense o #3% K started the (ight and * only struc& bac&1 K +as (irst aggressor o #D% Preemptive stri&e theory * reasonably (eared that K +ould cause * bodily harm so * shot him be(ore this could happen) I( it is a reasonable (ear' * is $usti(ied in responding) Murder trial) * claims sel(0de(ense) * +ants to o((er evidence that6 o K had reputation (or being violent) o K &illed someone t+o years be(ore) #* did not &no+ about this% o * believed K had beaten someone one year be(ore) #regardless o( +hether this +as true% CIRS, ASN6 !hat is the evidence being o((ered to prove> 5et0s start with the second theoryG,re;$mptive -tri!e 4heory In the second theory evidence is o((ered to prove that * too& a preemptive stri&e o K had reputation (or being violent I( * &ne+ this reputation (or violence and it +ould color *8s thin&ing about +hat K +as about to do then it is relevant) It bears on *8s state o( mind) "ot evidence o( character though) o K had &illed someone t+o years be(ore) #* does not &no+%

 "ot relevant) ,heory is based on +hat * thin&s) I( * doesn8t &no+' not relevant) o * believed that K had seriously beaten someone one year be(ore) Relevant since bears on +hether * reasonably (eared K +ould do same to him Again though this is *8s belie(' not evidence o( character) Second theory6 It is not the victim8s character that is the issue' but +hat the defendant reasonably believed about the victim) ,his is not the sub$ect o( Rule 545) 8irst theoryG. In the (irst theory' the evidence is being o((ered to prove that K started the (ight) o K had a reputation (or being violent) I( he has a reputation (or being violent' assumption that he acted in con(ormity +ith that character Reputation and opinion ARE A::O!E* #Rule 54E% o Evidence that K had &illed someone Also evidence o( K8s violent character "O, A::O!E* though because it is a speci(ic act #Rule 54E% o * believed that K had seriously beaten someone a year be(ore !hat * believed is o( no conse-uence here) Gou could ma&e a non0character argument here) Cirst theory6 !e are tal&ing about evidence o((ered to sho+ K8s character and that he acted in con(ormity +ith that character on that occasion) Rule 545) Federal Rule :0K. 8e12$d# $* Pr$% !" C2ara&1er 'a) Re4u1a1 $! $r $4 ! $!. In all cases in +hich evidence o( character or a trait o( character o( a person is admissible' proo( may be made by testimony as to reputation or by testimony in the (orm o( an opinion) On cross0 e.amination' in-uiry is allo+able into relevant speci(ic instances o( conduct) '() S4e& * & !#1a!&e# $* &$!du&1. In cases in +hich character or a trait o( character o( a person is an essential element o( a charge' claim' or de(ense' proo( may also be made o( speci(ic instances o( that person/s conduct) -e.a# Rule :0K. 8e12$d# $* Pr$% !" C2ara&1er. 'a) Re4u1a1 $! $r O4 ! $!. In all cases in +hich evidence o( a person/s character or character trait is admissible' proo( may be made by testimony as to reputation or by testimony in the (orm o( an opinion) In a criminal case' to be -uali(ied to testi(y at the guilt stage o( trial concerning the character or character trait o( an accused' a +itness must have been (amiliar +ith the reputation' or +ith the underlying (acts or in(ormation upon +hich the opinion is based' prior to the day o( the o((ense) In all cases +here testimony is admitted under this rule' on cross0e.amination in-uiry is allo+able into relevant speci(ic instances o( conduct) '() S4e& * & I!#1a!&e# $* C$!du&1. In cases in +hich a person/s character or character trait is an essential element o( a charge' claim or de(ense' proo( may also be made o( speci(ic instances o( that person/s conduct) DIFFERENCE BE-WEEN FRE / -RE0 In -e.a#' i( it is a criminal case' in order (or a ! to testi(y about the character o( accused' the ! must have &no+n the reputation prior to alleged o((ense

 Prevents people +ho only learn about * a(ter the o((ense (rom testi(ying against his character) !e don8t +ant POs to testi(y based on +hat they learn about * a(ter the crime has occurred 8e12$d# $* Pr$% !" C2ara&1er Reputation or opinion o *ra(ters e.panded past reputation to include opinion) Reputation is merely opinion mas&ed so +hy not $ust allo+ it) On cross0e.amination in-uiry can go into speci(ic instances) o * can never bring up speci(ic instances o Pr can only bring up speci(ic instances +hen cross0e.amining *8s +itness !ay that Pr can rebut the *8s good +itnesses o Cross0e.amination o( *8s +itnesses #addressed in %ichelson% o Pr can also call its o+n +itnesses as to *8s bad character) Cannot use speci(ic instances +ith o+n +itnesses H9PO6 Car accident K3 dies1 KD severely in$ured ,+o cases o State v) :ead(oot negligent homicide #criminal% o KD v) O+ner negligent entrustment o( the car to :C #civil% Evidence available6 #CRIMI"A:% "egligent homicide o S1a1e W10 1$ 1e#1 *, 1$ Lead*$$17# re4u1a1 $! =a# a (ad dr %erD LF re&e %ed L #4eed !" 1 &6e1# ! 12e 4a#1 ,ear. FF "ot allo+ed under 545#a% relevance o( speeding tic&ets +ould be o((ered to prove that :C is a rec&less driver so the $ury could in(er that he +as a bad driver on this occasion &eep out) o Lead*$$1 WE0 1$ 1e#1 *, 1$ Lead*$$17# re4u1a1 $! a# a "$$d dr %er FF Allo+ed because this is evidence o( :C8s good character trait) "O! once :ead(oot o((ered prove o( his character' the P can come bac& and as& ;Have you heard that on Lune 5' :C +as convicted o( speeding< o O":G (or the purpose o( testing the !8s credibility) Evidence available6 #CIKI:% "egligent entrustment o( the car to :C o VE W10 1$ 1e#1 *, 1$ Lead*$$17# re4u1a1 $! =a# a (ad dr %erD LF re&e %ed L #4eed !" 1 &6e1# ! 12e 4a#1 ,ear. FF Allo+ed to prove notice) KD could o((er this evidence to prove that :C +as the &ind o( person that O+ner never should have given car &eys to and that he &ne+ or should have &no+n o( this) Evidence o( :C8s reputation +ould prove both he is a bad driver a!d that O=!er 6!e= o( this) :C8s character as a bad driver is I,SE:C an element o( the case1 something the P has to prove to +in) It may be proved by reputation or opinion under #a% or by speci(ic instances under #b%)

o O=!er WE0 1$ 1e#1 *, 1$ Lead*$$17# re4u1a1 $! a# a "$$d dr %er FRE :1E. Se. O**e!#e Ca#e#D Rele%a!&e $* Alle"ed V &1 5M# Pa#1 Se.ual Be2a% $r $r Alle"ed Se.ual Pred #4$# 1 $! 'a) E% de!&e "e!erall, !ad5 ## (le. ,he (ollo+ing evidence is not admissible in any & % l $r &r 5 !al proceeding involving alleged se.ual misconduct e.cept as provided in subdivisions #b% and #c%6 #3% Evidence o((ered to prove that any alleged victim engaged in other se.ual behavior) #D% Evidence o((ered to prove any alleged victim/s se.ual predisposition) '() E.&e41 $!#. #3% In a criminal case' the (ollo+ing evidence is admissible' i( other+ise admissible under these rules6 #A% evidence o( speci(ic instances o( se.ual behavior by the alleged victim $**ered 1$ 4r$%e 12a1 a 4er#$! $12er 12a! 12e a&&u#ed =a# 12e #$ur&e $* #e5e!3 !+ur,3 $r $12er 42,# &al e% de!&e1 # % evidence o( speci(ic instances o( se.ual behavior by the alleged victim +ith respect to the person accused o( the se.ual misconduct o((ered by the accused to prove consent or by the prosecution1 and #C% evidence the e.clusion o( +hich +ould violate the constitutional rights o( the de(endant) #D% In a civil case' evidence o((ered to prove the se.ual behavior or se.ual predisposition o( any alleged victim is admissible i( it is other+ise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair pre(udice to any party. Evidence o( an alleged victim/s reputation is admissible only i( it has been placed in controversy by the alleged victim) '&) Pr$&edure 1$ de1er5 !e ad5 ## ( l 1,. #3% A party intending to o((er evidence under subdivision #b% must 00 #A% (ile a +ritten motion at least 35 days be(ore trial speci(ically describing the evidence and stating the purpose (or +hich it is o((ered unless the court' (or good cause re-uires a di((erent time (or (iling or permits (iling during trial1 and # % serve the motion on all parties and noti(y the alleged victim or' +hen appropriate' the alleged victim/s guardian or representative) #D% e(ore admitting evidence under this rule the court must conduct a hearing in camera and a((ord the victim and parties a right to attend and be heard) ,he motion' related papers' and the record o( the hearing must be sealed and remain under seal unless the court orders other+ise) 8ederal Rule #broader than ,e.as Rule% Applies in criminal A"* civil cases #di((erent (rom ,U +hich is only criminal% o E.) Civil suit +here P sues * (or se.ual assault CRE 53D applies Applies not $ust to the complainant in the case' but to A"G alleged victim o E.) Se.ual harassment case' P calls (ello+ +or&er +ho had also been harassed by *) ,he +or&er8s previous se.ual conduct is e.cluded under 53D as +ell Rule covers ;se.ual behavior< o "ot $ust actual physical conduct' but A"G evidence that implies se.ual conduct #ie contraceptive use' se.ual predisposition' manners o( dress' speech' o( li(e style%

EUCEP,IO"S o In a criminal case' "O"0character e.ceptions are allo+ed6 Evidence o( physical in$uryJmedical testimony I( * +ants to o((er evidence to proo( that the semen (ound in the K is not his or o((er proo( o( another +ay that K su((ered vaginal in$ury Evidence o( the relationship bet+een the K and * I( K and * had a previous relationship Evidence that e.clusion o( +ould violate the constitutional rights o( the * -hambers v. %ississippi# evidence +ill be allo+ed i( it is SO relevant to a critical issue that e.cluding it +ould violate *8s constitutional rights o In a civil case' e.clusion is based on a balancing test *i((erent (rom Rule 54? balancing test relevant evidence +ill be admissible unless its probative value is substantially out+eighed by its pre$udicial value In Rule 53D 0 #reverse o( Rule 54? test i( there is doubt' &eep the evidence out% evidence is &ept O9, unless probative value substantially out+eighs pre$udicial value

-e.a# Rule :1E. E% de!&e $* Pre% $u# Se.ual C$!du&1 ! Cr 5 !al Ca#e#. 'a) Re4u1a1 $! $r O4 ! $! E% de!&e. In a prosecution (or se.ual assault or aggravated se.ual assault' or attempt to commit se.ual assault or aggravated se.ual assault' reputation or opinion evidence o( the past se.ual behavior o( an alleged victim o( such crime is not admissible) '() E% de!&e $* S4e& * & I!#1a!&e#. In a prosecution (or se.ual assault or aggravated se.ual assault' or attempt to commit se.ual assault or aggravated se.ual assault' evidence o( speci(ic instances o( an alleged victim/s past se.ual behavior is also not admissible' unless6 #3% such evidence is admitted in accordance +ith paragraphs #c% and #d% o( this rule1 #D% it is evidence6 #A% that is necessary to rebut or e.plain scienti(ic or medical evidence o((ered by the State1 # % o( past se.ual behavior +ith the accused and is o((ered by the accused upon the issue o( +hether the alleged victim consented to the se.ual behavior +hich is the basis o( the o((ense charged1 #C% that relates to the motive or bias o( the alleged victim1 #*% is admissible under Rule V4T1 or #E% that is constitutionally re-uired to be admitted1 and #?% its probative value out+eighs the danger o( un(air pre$udice) '&) Pr$&edure *$r O**er !" E% de!&e. I( the de(endant proposes to introduce any documentary evidence or to as& any -uestion' either by direct e.amination or cross0e.amination o( any +itness' concerning speci(ic instances o( the alleged victim/s past se.ual behavior' the de(endant must in(orm the court out o( the hearing o( the $ury prior to introducing any such evidence or as&ing any such -uestion) A(ter this notice' the court shall conduct an in camera hearing' recorded by the court reporter' to determine +hether the proposed evidence is admissible under paragraph #b% o( this rule) ,he court shall determine +hat evidence is admissible and shall accordingly limit the -uestioning) ,he de(endant shall not go outside these limits or re(er to any evidence ruled inadmissible in camera +ithout prior approval o( the court +ithout the presence o( the $ury)

'd) Re&$rd Sealed. ,he court shall seal the record o( the in camera hearing re-uired in paragraph #c% o( this rule (or delivery to the appellate court in the event o( an appeal) 'e) Se.ual C$!du&1 $* C2 ld a# De*e!#e. ,his rule does not limit the right o( the accused to produce evidence o( promiscuous se.ual conduct o( a child 35 years old or older as a de(ense to se.ual assault' aggravated se.ual assault' indecency +ith a child or an attempt to commit any o( the (oregoing crimes) I( such evidence is admitted' the court shall instruct the $ury as to the purpose o( the evidence and as to its limited use) DIFFERENCE BE-WEEN FRE / -RE0 #3% ,RE only applies in criminal cases1 CRE applies to both criminal A"* civil cases #D% ,RE only &eep out evidence o( the complaint8s past se.ual behavior1 CRE &eeps out evidence o( any alleged victim8s se.ual behavior #?% ,RE only allo+s speci(ic instances in (ive speci(ic instances and +ith a special balancing test allo+s evidence to prove motive or bias) FRE Reputation or opinion evidence o( K8s past se.ual conduct is "O, admissible Speci(ic instances o( conduct is "O, admissible unless to sho+ o Source o( semen or in$ury Can be used to prove that persons other than * may be source o( semen or in$ury o Past Relations +ith the Accused May be o((ered to prove consent o !here constitutionally re-uired I( evidence o( the victim8s past se.ual conduct may be o((ered bJc e.clusion o( such evidence +ould deprive the accused o( his right to a (air trial -e.a# Rule :1E ,he ,e.as rule O":G applies in criminal cases o Rule 545 0 Evidence o( K8s character can be o((ered in a criminal case' but in a civil case the O":G permissible evidence o( the K8s character is i( the K had a violent character and is claiming assault against the * in the civil case) o "o opportunity in a civil case to o((er evidence o( promiscuous character o( the K W2a1 # all$=ed u!der -RE> "o reputation or opinion evidence as to K8s se.ual character =o specific instances, unless o Evidence o((ered to rebut scienti(ic or medical evidence o( mista&e E.) I( * can o((er evidence that the K had se. +J another person relatively pro.imate to the time o( the alleged rape to sho+ that the other person could have been the source o( the in$ury #that physical or medical evidence% "ot character evidence1 an alternative e.planation (or this in$ury o Evidence o( past se.ual relationships bet+een * and K Evidence to sho+ the nature o( their relationship o Evidence o( motive or bias o( the alleged victim E.) K ma&es a rape charge' * claims that K is ma&ing the charge bJc she is pregnant and doesn8t +ant to tell her mother that she is having se.

o Evidence that is admissible under Rule V4T o Evidence that is constitutionally re-uired to be admitted Add 1 $!al Federal Rule#O FRE :13 In cases +here the * is accused o( se.ual assault' evidence o( *8s commission o( another o((ense o( se.ual assault is admissible FRE :1: In a criminal case in +hich * is accused o( child molestation' evidence o( previous o((enses is admissible FRE :1K In a civil case +here the damage claim is based on se.ual assault or child molestation' evidence o( *8s commission o( similar o((enses is admissible Cederal Rules allo+ SPECICIC instances o( previous o((enses to prove the *8s character and that * acted in con(ormity +ith that character *$r #e.ual a(u#e a!d &2 ld 5$le#1a1 $! &a#e#. o Rationale% i( * is child molesterJrapist 0 vie+ed as probative evidence o( character trait o ,here does not have to be a conviction' but must be proo( that the * committed acts O-HER BAD AC-S 8IA8I COP 8otive3 Identity3 Absence o( 8ista&e or Accident' Intent' Common plan or scheme' Opportunity' Preparation) Federal Rule :0:'() O12er &r 5e#3 =r$!"#3 $r a&1# Evidence o( other crimes' +rongs' or acts is not admissible to prove the character o( a person in order to sho+ action in con(ormity there+ith) It may' ho+ever' be admissible (or other purposes' such as proo( o( motive' opportunity' intent' preparation' plan' &no+ledge' identity' or absence o( mista&e or accident' provided that upon re-uest by the accused' the prosecution in a criminal case shall provide reasonable notice in advance o( trial' or during trial i( the court e.cuses pretrial notice on good cause sho+n' o( the general nature o( any such evidence it intends to introduce at trial) -e.a# Rule :0:'() O12er Cr 5e#3 Wr$!"# $r A&1#. Evidence o( other crimes' +rongs or acts is not admissible to prove the character o( a person in order to sho+ action in con(ormity there+ith) It may' ho+ever' be admissible (or other purposes' such as proo( o( motive' opportunity' intent' preparation' plan' &no+ledge' identity' or absence o( mista&e or accident' provided that upon timely re-uest by the accused in a criminal case' reasonable notice is given in advance o( trial o( intent to introduce in the State/s case0in0chie( such evidence other than that arising in the same transaction) DIFFERENCE BE-WEEN FRE / -RE0 I! Federal C$ur1' evidence o( ;other bad acts< is admissible i( the party o((ering the evidence can prove that de(endant committed those acts by &$!d 1 $!al rele%a!&, introduce the evidence is a reasonable $uror could (ind it true)

I! -e.a#' the admissibility o( evidence o( an o((ense re-uires that the party o((ering the evidence prove that the de(endant committed the other o((ense (e,$!d a rea#$!a(le d$u(1. Rule 545 # % Other crimes' +rongs' act o Evidence o( speci(ic instances is not admissible to prove the character o( a person to sho+ that the person acted in con(ormity +ith that character on a particular occasion) o Such evidence MAG be admissible (or other purposes though #motive' opportunity' preparation' intent' plan' &no+ledge' identity' or absence o( mista&e or accident% E.amples o( ;other bad acts< o E.. 8$1 %e - 8urder $* Sa!1a Clau#e Evidence SC +as &illed bJc he +itnessed * commit other murder1 evidence to sho+ * had MO,IKE to &ill SC' "O, as character evidence) o E.. Lar"er #&2e5e - Ba!6 r$((er, :ots o( events that are part o( the same story #car chase' conspiracy' etc% evidence not o((ered to sho+ *8s character' but o((ered to sho+ +hat happened the day in -uestion period D **ere!&e (e1=ee! a &r 5e a# 4ar1 $* a lar"er #&2e5e a!d a &er1a ! 1,4e $* &r 5e (e !" &$55 11ed 5ul1 4le 1 5e#. I( a certain type o( crime is committed multiple times' as& ho+ last crime is part o( the bigger scheme) I( it doesn8t' then it isn8t allo+ed) o E.. Lar"er #&2e5e I!#ura!&e 5urder# * tried (or murdering primary bene(iciary o( li(e insurance policy) Pr +ants to sho+ that a +ee& later' * attempted to murder insured) Evidence o((ered to sho+ that murder o( the bene(iciary +as part o( a larger plan or scheme) o E.. F!$=led"e - Dru" 4$##e## $! * claims he didn8t &no+ the pot (ound on him +as pot) Police o((er evidence that a year be(ore * +as convicted o( mari$uana possession) o E.. Ide!1 1,@8$du# O4era!d * charged +J abduction) Rirl testi(ies that she +as on the playground) Man came up +ith a rabbit and o((ered to sho+ her another rabbit in his car) Pr +ants to o((er evidence that * used same techni-ue to abduct another girl) P says that i( it +as the * +ho used this same' distinctive techni-ue than it is highly li&ely that this crime +as committed by the same person) "o evidence o( character is re-uired1 $ust highly unli&ely that t+o people +ere used this same scheme to lure little girls (rom playgrounds) o E.. *arrillo &a#e #p 54V% Identity Xuestion o( +hether the crimes are distinctive enough to say that i( the * committed the other crimes' he committed this crime as +ell) Court rules that the crime in this +as not distinctive enough carrying heroin in a drug dealer8s mouth is a general practice in drug crimes ;ue#1 $! *$r &$ur1#0 When is the evidence of the other crimes so distinctive and so li!e the crime that the # is charged w6 that past crimes can be admissible to prove identity? 8$du# $4era!d

o E. Ha,e# C$u!1, H,4$ 8urder $* G-,ear-$ld " rl Ide!1 1, P +ants to o((er evidence o( another girl * con(essed to abducting' &illing A lot o( general similarities bet+een that crime and crime * is charged +ith1 * involved in the search in both and too& trophy #under+ear% (rom both) ,his +as enough to prove that i( * did one crime' then he did the other) o $x. Westfield Insurance &a#e !$1 a 5 #1a6e $r a&& de!1 Seven houses burned do+n arson> #octrine of chances% the more o(ten an accidental or in(re-uent incident occurs' the more li&ely it is that its subse-uent reoccurrence is not accidental :0:'() # $4e! 1$ 1=$ d **ere!1 =a,# $* (e !" &$!#1rued #3% I( the evidence is o((ered (or reasons outside o( the (orbidden character use #D% Even i( it does sho+ character' the evidence is permissible i( o((ered (or one o( these permissible e.ceptions ;More o( a guidelines than a ruleS< it is hard to say that 545#b% accurately states the rule in a +ay that ma&es it applicable to cases $uddleston o I! Federal &$ur1 evidence o( ;other bad acts< is admissible upon &$!d 1 $!al rele%a!&, introduce evidence i( a reasonable $uror could (ind * committed the other crimes1 i( $ury believes it they +ill use it' and i( they don8t believe it' they +on8t use it) o I! -e.a# higher threshold1 i( Pr +ants to o((er evidence o( other bad acts' Pr must o((er evidence so $ury could (ind (e,$!d a rea#$!a(le d$u(1 that * committed the other bad acts) Even i( you have a de(endant +ho has been tried and ACX9I,,E* in the past' the prosecution can still use that to o((er evidence that the * committed the prior crime under 545#b% o SC says that this doesn8t violate the double $eopardy clause I",E", Since intent is an issue in a number o( trials' introduction o( ;other bad acts< to prove intent is usually restricted to cases +here * admits the incident did occur' but that he didn8t mean (or it to occur #ie he didn8t have the re-uisite intent% o * on trial (or drug possession +ith intent to distribute) * claims ;mista&en identity< he claims it +asn8t him) P +ants to o((er evidence that he possessed drugs be(ore) E.trinsic o((ense o((ered to prove identity o * on trial (or drug possession and intent to distribute) * admits he possessed drugs' but his de(ense is that he didn8t intend to distribute it> E.trinsic o((ense o((ered that * did have that criminal intent o Courts more li&ely to admit the evidence in the second case +here the *8s state o( mind is at issue in the case rather than the *8s identity bJc he admits the incident did happen' but that he didn8t have the intent1 i( * had re-uisite mental state be(ore' he may have that mental state again no+ N$1 &e 4r$% # $! a1 12e e!d $* 12e rule6 ,o eliminate un(air surprise in criminal cases' there is a notice re-uirement) I( the accused re-uests it (rom Pr' Pr must provide reasonable notice be(ore trial)

HABI.. Watch out for trigger words li!e invariably, automatically, without fail or always2 Federal Rule :0L. Ha( 1D R$u1 !e Pra&1 &e Evidence o( the habit o( a person or o( the routine practice o( an organiHation' +hether corroborated or not and regardless o( the presence o( eye+itnesses' is relevant to prove that the conduct o( the person or organiHation on a particular occasion +as in con(ormity +ith the habit or routine practice) -e.a# Rule :0L. Ha( 1D R$u1 !e Pra&1 &e Evidence o( the habit o( a person or o( the routine practice o( an organiHation' +hether corroborated or not and regardless o( the presence o( eye+itnesses' is relevant to prove that the conduct o( the person or organiHation on a particular occasion +as in con(ormity +ith the habit or routine practice) DIFFERENCE BE-WEEN FRE / -RE0 N$!e 4hree ma(or questions '1) W2a1 # a 2a( 1> o A particular response to a particular set of circumstances) o Regular' repeated response to a particular set o( circumstances o((ered to prove that a person acted in con(ormity +ith that habit) o E.) Person al+ays hatches gate in morning1 goes up stairs t+o at a time1 drin&s beer every night o E.) Roode habitually ran stop sign in his neighborhood) I( a case ever came up +here -uestion o( +hether Roode ran sign on a particular day' habit +ould be admissible) Ho+ever' i( accident +as across to+n' evidence o( Roode running the stop sign in neighborhood +ould not be admissible not same particular circumstances) o ,he more particular it is' the more li&ely it +ould be admissible as habit) 'E) I* #$5e12 !" &$uld <ual *, a# a 2a( 13 2$= d$ ,$u 4r$%e 12e 4er#$! a&1uall, 2a# 2a( 1> o Cre-uency and regularity o( the conduct) *riving by sign thousands o( times' only (ailing to stop ?4 times1 not a habit) *riving by sign ?4 times and (ailing to stop ?4 times more regular1 habit) '3) W2a1 * #$5e12 !" d$e#!71 <ual *, a# a 2a( 13 # 1 #1 ll !ad5 ## (le> o I( something happens a lot' but doesn8t rise to the level o( habit' it CO9:* S,I:: have probative value) o I( habit is di((erent (rom character' then Rule 545#a% doesn8t &noc& it out1 so +hy do +e need Rule 54V> Lust ma&ing clear that C: doctrines have been abolished) ,he admissibility o( habit evidence doesn8t turn on corroboration or the presence o( eye +itnesses) o H,4$0 I( doctor gives a +arning in V4A o( the cases' not a habit) Evidence is o((ered on +hether the doctor gave the +arning) Still probative) More li&ely than not that doctor gave the +arning in this case) Argument is that it doesn8t matter that it isn8t a habit' it is probative and there is nothing in Rule 545' 54E' 54V to prohibit this type o( evidence)

SUBSE;UEN- RE8EDIAL 8EASURE Federal Rule :0N. Su(#e<ue!1 Re5ed al 8ea#ure# !hen' a(ter an in$ury or harm allegedly caused by an event' measures are ta&en that' i( ta&en previously' +ould have made the in$ury or harm less li&ely to occur' evidence o( the subse-uent measures is !$1 ad5 ## (le 1$ 4r$%e !e"l "e!&e3 &ul4a(le &$!du&13 a de*e&1 ! a 4r$du&13 a de*e&1 ! a 4r$du&1M# de# "!3 $r a !eed *$r a =ar! !" $r !#1ru&1 $!. ,his rule does not re-uire the e.clusion o( evidence o( subse-uent measures +hen o((ered (or another purpose' such as proving o+nership' control' or (easibility o( precautionary measures' i( controverted' or impeachment) -e.a# Rule. Su(#e<ue!1 Re5ed al 8ea#ure#D N$1 * &a1 $! $* De*e&1 1Rule 2345a6 applicable to cases filed on or after 7uly 89 :33;#< 'a) Su(#e<ue!1 Re5ed al 8ea#ure#. !hen' a(ter an in$ury or harm allegedly caused by an event' measures are ta&en that' i( ta&en previously' +ould have made the in$ury or harm less li&ely to occur' evidence o( the subse-uent remedial measures is not admissible to prove negligence' culpable conduct' a de(ect in a product' a de(ect in a product/s design' or a need (or a +arning or instruction) ,his rule does not re-uire the e.clusion o( evidence o( subse-uent measures +hen o((ered (or another purpose' such as proving o+nership' control' or (easibility o( precautionary measures' i( controverted' or impeachment) '() N$1 * &a1 $! $* De*e&1. A +ritten noti(ication by a manu(acturer o( any de(ect in a product produced by such manu(acturer to purchasers thereo( is admissible against the manu(acturer on the issue o( e.istence o( the de(ect to the e.tent that it is relevant) DIFFERENCE BE-WEEN FRE / -RE0 I! -e.a#3 be(ore D44? SMR +as allo+ed (or strict liability products cases' no+ ,RE is same as CRE) -e.a# paragraph #b% +ritten noti(ication (rom manu(acturer is admissible as to e.istence o( a de(ect %c.onald case #p 5V@% Protocol change a(ter H8s death1 Pr +ants to introduce SRM to prove hospital8s negligence GR0 Evidence o( a SRM to prove negligence is "O, allo+ed) ,+o basis to this rule6 o #3% SRM is not terribly probative Probative value argument1 Relevance o #D% Policy goal to encourage people to ta&e steps in (urtherance o( added sa(ety' or at least not discourage them (rom ta&ing these steps Independent o( accurate (act0(inding' SRM evidence is e.cluded bJc +e don8t +ant to discourage people (rom ta&ing precautionary measures Rule all$=# evidence o( SMR * $**ered 1$ 4r$%e6 o Ceasibility 0 SMR can be o((ered to sho+ that it change is (easible o Impeachment o O+nership or Control 0 SRM may be o((ered to prove o+nership or control o( an area or an instrument -2 rd 4ar1, 5ea#ure# $*1e! all$=ed

o H9PO0 Pl +or&ing on a road cre+ and his leg is crushed by a piece o( machinery) A(ter the accident' a mechanic (or the construction company #not someone associated +J the machine manu(acturer% ma&es modi(ications to the machinery) Pl sues machine manu(acturer claiming de(ective design and (ailure to +arn) o Pl +ants to o((er into evidence the construction company8s mechanic' a third party' made modi(ications to the machinery) Manu(acturer ob$ects and claims SRM) o Public policy rationale #not +anting to discourage SRM% doesn8t apply to this case) It isn8t the manu(acturer8s SRM here1 it is a third party8s changes) o A number o( courts have interpreted Rule 54@ as allo+ing third party changes) Pr$du&1# l a( l 1, &a#e# o Court split as to +hether the SMR applies in product liability cases) Arguments (or admissibility are that #3% neither negligence nor culpable conduct is at issue in such a case and #D% economic (orces compel manu(acturers to ma&e their products sa(er o In the (ederal court system most courts held that the SRM rule applies in products liability cases as it does in negligence cases1 GR # 1$ e.&lude 1

-e.a# Rule :0N o ECORE D44? 0 ,e.as distinguished bet+een negligence and culpable conduct on one hand and strict product liability cases on the other allo+ed SRM (or products liability under the rationale that they already +ere as care(ul as they could be) o AC,ER D44? ,e.as no+ doesn8t allo+ SRM to prove negligence' culpable de(ect' product de(ects' design de(ects or a need (or a +arning or instruction) SRM in products liability not allo+ed) o 9, paragraph #b% A +ritten noti(ication by a manu(acturer o( any de(ect in a product produced by such manu(acturer to purchasers thereo( is admissible against the manu(acturer on the issue o( e.istence o( the de(ect to the e.tent that it is relevant' E.) *ell battery recall customer letter that dell batteries may be de(ective O!e 5$re 4$ !1O Although the public policy behind this rule is that +e don8t +ant to discourage people (rom ta&ing sa(ety measures since +e allo+ SRM evidence (or other purposes' this &inda undercuts the policy rationale1 gives the relevance rationale a (air amount o( +eight) CO8PRO8ISE AND OFFERS -O CO8PRO8ISE EVIDENCE Federal Rule :0G. C$54r$5 #e a!d O**er# 1$ C$54r$5 #e Evidence o( #3% (urnishing or o((ering or promising to (urnish' or #D% accepting or o((ering or promising to accept' a valuable consideration in compromising or attempting to compromise a claim +hich +as disputed as to either validity or amount' is not admissible to prove liability (or or invalidity o( the claim or its amount) Evidence o( conduct or statements made in compromise negotiations is li&e+ise not admissible) ,his rule does not re-uire the e.clusion o( any evidence other+ise discoverable merely because it is presented in the course o( compromise negotiations) ,his rule also does not re-uire e.clusion +hen the evidence is o((ered (or another purpose' such as proving bias or pre$udice o( a +itness' negativing a contention o( undue delay' or proving an e((ort to obstruct a criminal investigation or prosecution)

-e.a# Rule :0G. C$54r$5 #e a!d O**er# 1$ C$54r$5 #e. Evidence o( #3% (urnishing or o((ering or promising to (urnish or #D% accepting or o((ering or promising to accept' a valuable consideration in compromising or attempting to compromise a claim +hich +as disputed as to either validity or amount is not admissible to prove liability (or or invalidity o( the claim or its amount) Evidence o( conduct or statements made in compromise negotiations is li&e+ise not admissible) ,his rule does not re-uire the e.clusion o( any evidence other+ise discoverable merely because it is presented in the course o( compromise negotiations) ,his rule also does not re-uire e.clusion +hen the evidence is o((ered (or another purpose' such as proving bias or pre$udice or interest o( a +itness or a party' negativing a contention o( undue delay' or proving an e((ort to obstruct a criminal investigation or prosecution) DIFFERENCE BE-WEEN FRE / -RE0 "one Evidence that a person o((ered to settle a suit or settled a suit cannot be o((ered to prove #3% liability (or a claim or #D% amount o( damages o H9PO0 P sues * (or IE44'444) * o((ers to settle (or I544'444) P turns it do+n) P +ants to o((er evidence * +anted to settle to prove *8s liability 0 NO- ad5 ## (le) o H9PO0 Same situation) P sues *) "o+ P +ants to settle (or IE4'444) * says no) At trial * +ants to introduce evidence that P o((ered to settle this huge claim (or a small amount so $ury can in(er that P doesn8t have a good claim) NO- ad5 ## (le. o H9PO0 Suppose P o((ers to settle the suit (or I544'444 and * accepts) Case is settled) "o+ a second passenger sues * and PD +ants to o((er that * settled +ith P3 (or I544'444 so $ury can in(er * is liable) NO- ad5 ## (le. H9PO0 ;,he accident +as my (ault' but your damage claim is too high) I8ll give you IE44 to settle< I"A*MISSI :E even e.press admissions made in connection = 12 settlement o((ers are e.cluded by as long as there is a dispute either to liability or amount o( damages Rationale% Parties settle claims (or various reasons #not +anting to deal +ith litigation' etc% so the (act that they settled is not enough to prove anything about the case) ,ublic policy rationale +e +ant to encourage settlement and open communication o :a+yer +on8t ma&e an o((er i( it can be turned do+n and used against his client at trial)

S&$4e -2e &la 5 5u#1 (e d #4u1ed a# 1$ %al d 1, a!d 12e a5$u!1 $* da5a"e# o I( * says to P ;It +ill be e.pensive to litigate this) :et8s settle (or IDE4'444<and not pay the la+yer (or all this litigation)< 00 Rule 54B does "O, apply bJc * is not disputing the invalidity o( the claim or the amount o( damages involved #avidson v. ,rince &a#e o In this case the letter is "O, an attempt to settle a claim so Rule 54B doesn8t apply) E% de!&e $* #e11le5e!1 # ad5 ## (le *$r I54ea&25e!1 Pur4$#e# Evidence o( a settlement is admissible to prove bias or pre$udice6 o P sues doctor and hospital) o e(ore trial' P and doctor settle 0 Mary Carter agreement doctor +ill be able to recover amount he settles (or based on ho+ much the plainti(( gets (rom the hospital)

o I( doctor testi(ies' his testimony +ill li&ely (avor P bJc i( P collects (rom hospital' the doctor can recoup his money) o Hospital should be able to impeach the doctor by sho+ing that he has the motivation to tell a pro0plainti(( story because o( the terms o( the settlement agreement) .avidson case ull charging case1 P testi(ied in his deposition to one thing and said another in his letter to the de(endants1 court admitted the evidence (or impeachment purposes

E% de!&e #1 ll ad5 ## (leO Evidence that the other party might otherwise be able to discover cannot be insulated (rom discovery simply by mentioning it during settlement negotiations) Ad5 ## ( l 1, $* Se11le5e!1 E% de!&e ! a Cr 5 !al Ca#e H9PO0 Plainti(( v :ead(oot civil litigation (or +rong(ul death1 as part o( the settlement' P +ants :ead(oot to admit his +rongdoing and apologiHe) "o+ state brings a criminal action against :ead(oot (or negligent homicide1 state +ants to o((er :ead(oot8s admission and apology (rom his civil case settlement) *oes Rule 54B allo+ this> o Courts +ere split) Some said that this rule only pertained to civil cases +hile others said it applied to criminal cases as +ell) o Cocus on +hether de(endants +ould be less li&ely to enter into settlements in civil cases i( it could be held against them in a later criminal case A"* ho+ probative evidence o( settlement really +as #lots o( reasons +hy party might settle%) R$FI$W% Evidence that someone o((ered to settle or did settle the case is !ad5 ## (le i( o((ered to prove o :iability (or o Invalidity o( o Amount o( claim E.&e41 $!0 In a criminal case +hen negotiations pertain to a &la 5 5ade (, a "$%er!5e!1 $** &e $r a"e!&, e.er& # !" re"ula1$r,3 !%e#1 "a1 %e3 $r e!*$r&e5e!1 4$=er o I( conduct or statement +as made in the conte.t o( private party negotiations "O, subse-uently admissible in criminal case o ut i( statement made during SEC investigation admissible in later criminal case o H9PO0 "ational enterprises had psych hospitals across country1 claim that company bribed doctors to admit patients regardless o( +hether they really needed care1 &ept patients until insurance ran out) Civil govt) investigation and parallel a criminal investigation o( this company) Company settled civil claim) Company +as prosecuted (or criminal prosecution) I( during settlement process (or civil case' statements about company8s liability +ere made' they +ould be admissible in criminal case) PA98EN- OF 8EDICAL AND SI8ILAR EHPENSES Federal Rule :0P. Pa,5e!1 $* 8ed &al a!d S 5 lar E.4e!#e# Evidence o( (urnishing or o((ering or promising to pay medical' hospital' or similar e.penses occasioned by an in$ury is not admissible to prove liability (or the in$ury)

-e.a# Rule :0P. Pa,5e!1 $* 8ed &al a!d S 5 lar E.4e!#e#. Evidence o( (urnishing or o((ering or promising to pay medical' hospital' or similar e.penses occasioned by an in$ury is not admissible to prove liability (or the in$ury) DIFFERENCE BE-WEEN FRE AND -RE0 "one) Evidence that party o((ered or paid medical' hospital' or similar e.penses is not admissible to prove the paying party8s liability Bu1 +hile this o((ering is protected' other statements in connection +ith that are not protected) o I* you say ;I8m sorry the accident +as my (ault) I +ill pay your medical e.penses< ;I +ill pay your medical e.penses< not admissible ;I8m sorry the accident +as all my (ault< 0 admissible LIABILI-9 INSURANCE FRE a!d -RE Rule :11 L a( l 1, I!#ura!&e Evidence that a party has or does not have insurance is not admissible to prove that the person acted negligently or +rong(ully) ,o prove that CD +as driving negligently' you can8t o((er the (act that CD +as insured o Potential o( un(air pre$udice1 i( the $ury hears that CD has insurance' they are more li&ely to rule (or C3 bJc they &no+ CD +on8t have to pay (or it INAD8ISSIBILI-9 OF PLEAS3 PLEA DISCUSSIONS3 AND RELA-ED S-A-E8EN-S Federal Rule :10. I!ad5 ## ( l 1, $* Plea#3 Plea D #&u## $!#3 a!d Rela1ed S1a1e5e!1# E.cept as other+ise provided in this rule' evidence o( the (ollo+ing is not' in any civil or criminal proceeding' admissible against the de(endant +ho made the plea or +as a participant in the plea discussions6 #3% a plea o( guilty which was later withdrawn1 #D% a plea o( nolo contendere1 #?% any statement made in the course o( any proceedings under Rule 33 o( the Cederal Rules o( Criminal Procedure or comparable state procedure regarding either o( the (oregoing pleas1 or #5% any statement made in the course o( plea discussions +ith an attorney (or the prosecuting authority +hich do not result in a plea o( guilty or +hich result in a plea o( guilty later +ithdra+n) Ho+ever' such a statement is admissible #i% in any proceeding +herein another statement made in the course o( the same plea or plea discussions has been introduced and the statement ought in (airness be considered contemporaneously +ith it' or #ii% in a criminal proceeding (or per$ury or (alse statement i( the statement +as made by the de(endant under oath' on the record and in the presence o( counsel) -e.a# Rule :10. I!ad5 ## ( l 1, $* Plea#3 Plea D #&u## $!#3 a!d Rela1ed S1a1e5e!1#. E.cept as other+ise provided in this rule' evidence o( the (ollo+ing is not admissible against the de(endant +ho made the plea or +as a participant in the plea discussions6 #3% a plea o( guilty that +as later +ithdra+n1

#D% in civil cases' a plea o( nolo contendere9 and in criminal cases' a plea o( nolo contendere that +as later +ithdra+n1 #?% any statement made in the course o( any proceedings under Rule 33 o( the Cederal Rules o( Criminal Procedure or comparable state procedure regarding' in a civil case' either a plea o( guilty that +as later +ithdra+n or a plea o( nolo contendere' or in a criminal case' either a plea o( guilty that +as later +ithdra+n or a plea o( nolo contendere that +as later +ithdra+n1 or #5% any statement made in the course o( plea discussions +ith an attorney (or the prosecuting authority' in a civil case' that do not result in a plea o( guilty or that result in a plea o( guilty later +ithdra+n' or in a criminal case' that do not result in a plea o( guilty or a plea o( nolo contendere or that results in a plea' later +ithdra+n' o( guilty or nolo contendere) Ho+ever' such a statement is admissible in any proceeding +herein another statement made in the course o( the same plea or plea discussions has been introduced and the statement ought in (airness be considered contemporaneously +ith it) DIFFERENCE BE-WEEN FRE / -RE0 In CRE other+ise protected statements made by the de(endant under oath' on the record' and in the presence o( counsel are admissible against the de(endant in a criminal proceeding (or per$ury or (alse statement1 this is not allo+ed in ,RE) ,RE does not e.clude in criminal cases pleas o( nolo contendere that have !$1 been +ithdra+n) I( parties enter plea negotiations' but end up going to trial' +hat can be o((ered in the subse-uent trial that +as said in the plea bargain> Rationale% o Rule largely based on public policy1 +e don8t +ant to discourage plea bargains o Plea bargains almost al+ays relevant bJc party probably +on8t ta&e a plea i( not guilty Plea H,4$ Su44 QG - FRE o Civil suit against driver and driver8s employer +rong(ul death o *river also criminally prosecuted (or involuntary manslaughter -cenario B o #3% *river enters no0contestJnolo contendre plea to the involuntary manslaughter charge Ludge accepts the plea and he is convicted) I# 12 # ad5 ## (le ! 12e #u(#e<ue!1 & % l #u 1> Evidence is not admissible in a civil or criminal proceeding i( * plead6 o #3% "olo contendre ig reason to plea nolo contendre in a criminal trial is bJc it can8t be used against the * in a later civil trial o #D% Ruilty' but later the plea is +ithdra+n Rule 534 says that evidence is "O, admissible against * +ho made plea 9, Rule 534 does not bar using the evidence against *8s employer o HEARSAG> *8s plea o( ;nolo contendre< is out0o(0court statement argued (or its truth) It may (all +ithin the admission by party opponent e.ception OR as a statement against interest

o "O!' +e have a conviction (or involuntary manslaughter) Can it be used in a subse-uent civil trial> "othing in the rule says that conviction is not allo+ed 9, again HEARSAG) Conviction is the $ury8s out0o(0court #this court% statement that * rec&lessly &illed K and it is being o((ered to prove $ust that) Hearsay E.ception 0 Rule B4?#DD% Ludgment o( previous conviction) o Evidence o( a (inal $udgment a(ter a trial or upon a plea guilty #but =&4 upon a plea of nolo contendre" is admissible to prove any (act essential to sustain the conviction) *istinguishes bet+een convictions based on a plea o( nolo contender and a plea o( guilty) Rule also distinguishes bet+een convictions (or (elonies and convictions (or other o((enses) Rationale is that i( someone is convicted (or a minor o((ense there could be lots o( reasons +hy a person may not oppose a guilty conviction) -cenario C same (acts' but driver pleads guilty' driver is convicted o Is the ;guilty< plea admissible in the later civil suit> Ges) Rule 534 does "O, protect guilty pleas) HH0 I( the guilty plea is +ithdra+n) E.) I( * pleads guilty be(ore trial then changes his mind at trial and +ithdra+s his plea) Rule 534 says the (act that * pleaded guilty and then +ithdre+ it is I"A*MISSI :E) So P CA" o((er the de(endant8s "u l1, plea) Same hearsay argument) Admission by party opponent (or de(endant) Cor the employer' possible vicarious admission by party opponent o Is the conviction based upon plea o( guilty allo+ed in subse-uent criminal litigation> HEARSAG but Rule B4?#DD% allo+s conviction based on the guilty plea in) E.ception allo+s conviction to be used against * A"* his employer) Rationale# I( someone pleads guilty to a serious crime' there is a good chance that * committed the crime1 hearsay is reliable $ust as reliable against the driver as it is against the employer) -cenario @ o Plainti(( +ins against driver and employer o ,here +as also a passenger in P8s car) A(ter P +ins' passenger brings action against * and *8s employer) Passenger +ants to introduce evidence that in the (irst civil suit the $ury (ound the $ury (ound the de(endant guilty> o *river and driver8s employer say HEARSAG) Rule B4?#DD% applies +hen there has been a $udgment in a CE:O"G CRIMI"A: case1 no hearsay e.ception (or $udgments in civil cases) o Passenger CA""O, introduce evidence that P +on case against *s (or same accident) o 9, in case D' passenger does not have to prove liability bJc de(endants are collateral estopped (rom contesting liability)

*s already had a (air chance to litigate liability in Case 31 cannot re0litigate) HGPO6 P o((ers evidence that * paid a ID4 (ine +ithout protesting in response (or a speeding tic&et given to him at the scene o( the accident) o Admissible) ,he paying o( a (ine +ithout a trial is construed as a plea o( guilty) * can e.plain his motives (or the plea' but pleas o( guilty as admissible) FF Some $urisdictions have a statute o( rule that treats uncontested minor o((enses as e-uivalent to nolo contender and i( that +as the case this evidence +ould be inadmissible) I8PEACH8EN'ttempt to discredit a witness and prove that he ought not believed by the (ury

Ba# &# $* 1r al *istinguish bet+een cross0e.amination' impeachment' and leading -uestions o !itness is typically impeached during cross;examination +ith the use o( leading questions' 9, they are all analytically distinct things Cr$##-e.a5 !a1 $!0 stage o( the interrogation o S&$4e0 FRE narro+ scope o( cross e.amination1 limited to testing the +itness8s credibility and the sub$ect matter o( the direct e.amination E.) Car accident D issues #3% +ho is liable1 #D% e.tent o( P8s in$uries Prosecution calls ! +ho testi(ies ho+ the accident occurred ! may be cross0e.amined about capacity' bias' matters that go to ability) !hat i( the prosecution +ants to as& ! about ho+ in$ured P really is> o FRE not allo+ed bJc it does not relate to direct e.amination sub$ect matter +hich concerned ho+ the accident occurred o I( Pr +ants this other in(o' Pr must call his o+n +itness -RE broader rule 0 cross0e.amination &a! include AN9 ##ue rele%a!1 1$ 12e &a#e1 in ,e.as that +itness could be cross0e.amined about P8s in$uries Lead !" <ue#1 $!#0 -uestions that tend to suggest the ans+er o $xamples% ;Isn8t it true thatS< or ;*idn8t you thenS)< o #irect examination6 problem is that : ends up testi(ying rather than the !1 leading -uestions not allo+ed on direct e.amination UU6 I( on direct e.amination' ! is the de(endant in a civil case or someone associated +J the de(endant' : may as& leading -uestions bJc ! is hostile and it may be hard to get anything out o( ! other+ise ,heory that these are not +itnesses li&ely to (ollo+ :8s lead) o *ross;examination% *i((erent bJc a hostile +itness is not generally as responsive) In a cross0e.amination : is allo+ed to as& leading -uestions bJc he is trying to probe ! and +e don8t e.pect the ! to go along +ith +hat he says) I( +e don8t allo+ leading -uestions' it may be di((icult to get +itness to tal&) UU6 :eading -uestions "O, allo+ed on cross i( ! is (riendly) Con(rontation Clause Right6 I( Pr calls a ! to testi(y' * has the right to con(ront the ! o UU6 Some courts have tried untraditional things #e.) child abuse cases% E.) A child may not have to testi(y in the same courtroom as his abuser)

SC placed limits on the ability to do this to protect con(rontation clause Closed circuit televisions sometimes used i( Pr sho+s in this case (orcing the child to testi(y in the presence o( * +ould seriously traumatiHe the child) ,his is not a sho+ing that the child +as traumatiHed by the event' but that (orcing the child to testi(y in (ront o( * +ould traumatiHe him EHCLUSION OF WI-NESSES

Federal Rule L1K. E.&lu# $! $* W 1!e##e# At the re-uest o( a party the court shall order +itnesses e.cluded so that they cannot hear the testimony o( other +itnesses' and it may ma&e the order o( its o+n motion) ,his rule does not authoriHe e.clusion o( #3% a party +ho is a natural person' or #D% an o((icer or employee o( a party +hich is not a natural person designated as its representative by its attorney' or #?% a person +hose presence is sho+n by a party to be essential to the presentation o( the party/s cause' or #5% a person authoriHed by statute to be present) -e.a# Rule L1:. E.&lu# $! $* W 1!e##e#. At the re-uest o( a party the court shall order +itnesses e.cluded so that they cannot hear the testimony o( other +itnesses' and it may ma&e the order o( its o+n motion) ,his rule does not authoriHe e.clusion o(6 #3% a party +ho is a natural person or in civil cases the spouse o( such natural person1 #D% an o((icer or employee o( a party in a civil case or a de(endant in a criminal case that is not a natural person designated as its representative by its attorney1 #?% a person +hose presence is sho+n by a party to be essential to the presentation o( the party/s cause1 or #5% the victim in a criminal case' unless the victim is to testi(y and the court determines that the victim/s testimony +ould be materially a((ected i( the victim hears other testimony at the trial) DIFFERENCE BE-WEEN FRE / -RE0 ,RE adds the spouse o( the party in a civil case) CRE does not allo+ the spouse to be present) ,RE limits the e.emption in criminal cases does not allo+ a designated o((icer or employee or a party that is not natural person to de(endants) *enies the e.emption to state/s =case o((icer)= o CRE allo+s a designated o((icer or employee to be present) GR0 At re-uest o( a party' court shall invo&e the rule or court may invo&e the rule on its o+n o Rule is a procedural device that diminishes the li&elihood that +itnesses +ill tailor their stories to +hat the other +itnesses say) o ;,he rule< is both a evidence and a procedural rule ,he rule $ust provides that the +itnesses +ill be e.cluded) EHCEP-IONS0 !itnesses +ho can stay o #3% Party +ho is a natural person #,RE In ,U' the party8s spouse can stay as +ell% o #D% "on0natural person parties #ie corporation or entity% someone may be designated as representative o( the corporation and that person can sit in on the trial ,RE 0 in a criminal case one party is al+ays the State #a nonnatural person% 9, the State CA""O, have a personal representative sit in)

 CRE 0 someone CA" sit in (or the state1 o(ten the chie( case +or&er o #?% Person +hose presence is essential to the presentation o( the party8s cause E.) E.pert +ho has e.pertiseJ&no+ledge that may be use(ul to : in cross0e.amining another e.pert1 e.pert may base his testimony based on +hat another +itness says o #5% Person authoriHed by statute to be present ,RE' in a criminal case' a crime victim #not the party% is allo+ed #unless the K8s testimony +ould be a((ected by hearing other testimony% CRE ;person authoriHed by statute to be present< also re(ers to crime K Federal Rule L0N. W2$ 8a, I54ea&2 ,he credibility o( a +itness may be attac&ed by A"G party' including the party calling the +itness) -e.a# Rule L0N. W2$ 8a, I54ea&2 ,he credibility o( a +itness may be attac&ed by A"G party' including the party calling the +itness) DIFFERENCE BE-WEEN FRE / -RE0 N$!e GR0 the credibility o( a ! may be attac&ed by any party' including the party calling the +itness) o C: rule that you are not allo+ed to impeach your o+n +itness1 this has been criticiHed C: UU6 i( you +ere surprised and in$ured by your o+n +itness FF"ot al+ays true though1 you cannot al+ays attac& the credibility o( your o+n +itnessFF EHCEP-ION0 Hogan &a#e o Pr calls ! to testi(y against *s +ho previously gave statement against *s' but later recanted) Pr o((ers statements ;only< (or impeachment purposes but considering ! consistently re(used to implicate *s' Pr8s only reason to call him +as so $ury could hear his prior inconsistent statements and hope $ury ignores limiting instructions FIVE -ECHNI;UES OF I8PEACH8EN'1) C$!1rad &1 $! 'E) C2ara&1er *$r U!1ru12*ul!e## '3) Ca4a& 1, ':) Pr $r I!&$!# #1e!1 S1a1e5e!1# a!d Pr $r C$!# #1e!1 S1a1e5e!1# 'K) B a# '1) CON-RADIC-ION +swald * accused o( burglary in Seattle on Luly 351 alibi is that he +as in Portland at the time *8s alibi +itness testi(ies that * +as in his restaurant in Portland on Luly 35 A"* that * had been in his restaurant every day (or the last (e+ months Pr +ants to call PO to testi(y that * +as in Seattle a month be(ore to sho+ that ! +as +rong about * being in his restaurant every day (or past (e+ months o ,heory6 i( ! +as +rong about * being in his restaurant every day (or months be(ore' then he is +rong about * being in the restaurant on Luly 35 Court says prosecution is trying to impeach the ! on a &$lla1eral 5a11er

o *ollateral matter% only value o( evidence is that it contradicts !8s testimony about that one (act) o H9PO0 ! testi(ies that she heard insult A at ca(e on April 3? at a party thro+n by the CPA Association +ith the mayor and governor there) I( Pr could prove ca(Y +as closed in April A"* sho+ that CPA didn8t thro+ a party A"* prove that mayor and governor +ere out o( to+n on April 3?> ,HE" the evidence gets in7 I( all are true then evidence is probative enough) Courts allo+ evidence i( the probative value is strong enough1 no (ederal or ,e.as rule that prohibits e.trinsic evidence to contradict a +itness on a collateral matter o More a rule o( thumb that i( the contradiction is a minor one #such as being +rong about a date% then it doesn8t have much probative value) o E.) MenendeH rothers evidence that store didn8t sell guns +as probative enough)

'E) CHARAC-ER FOR UN-RU-HFULNESSFederal Rule L0G. E% de!&e $* C2ara&1er a!d C$!du&1 $* W 1!e## 'a) O4 ! $! a!d re4u1a1 $! e% de!&e $* &2ara&1er. ,he credibility o( a +itness may be attac&ed or supported by evidence in the (orm o( opinion or reputation' but sub$ect to these limitations6 #3% the evidence may re(er $!l, to character (or truth(ulness or untruth(ulness' AND #D% evidence o( truth(ul character is admissible only a(ter the character o( the +itness (or truth(ulness has been attac&ed by opinion or reputation evidence or other+ise) '() S4e& * & !#1a!&e# $* &$!du&1. Speci(ic instances o( the conduct o( a +itness' *$r 12e 4ur4$#e $* a11a&6 !" $r #u44$r1 !" 12e = 1!e##M &2ara&1er *$r 1ru12*ul!e##' other than conviction o( crime as provided in rule V4T ' 5a, !$1 (e 4r$%ed (, e.1r !# & e% de!&e) ,hey may' ho+ever' in the discretion o( the court' i( probative o( truth(ulness or untruth(ulness' be in-uired into on &r$##-e.a5 !a1 $! $* 12e = 1!e## '1) &$!&er! !" 12e = 1!e##M &2ara&1er *$r 1ru12*ul!e## $r u!1ru12*ul!e##3 $r 'E) &$!&er! !" 12e &2ara&1er *$r 1ru12*ul!e## $r u!1ru12*ul!e## $* a!$12er = 1!e## a# 1$ =2 &2 &2ara&1er 12e = 1!e## (e !" &r$##e.a5 !ed 2a# 1e#1 * ed) ,he giving o( testimony' +hether by an accused or by any other +itness' does not operate as a +aiver o( the accused/s or the +itness/ privilege against sel(0incrimination +hen e.amined +ith respect to matters that relate only to character (or truth(ulness) -e.a# Rule L0G. E% de!&e $* C2ara&1er a!d C$!du&1 $* a W 1!e##. 'a) O4 ! $! a!d Re4u1a1 $! E% de!&e $* C2ara&1er) ,he credibility o( a +itness may be attac&ed or supported by evidence in the (orm o( opinion or reputation' but sub$ect to these limitations6 #3% the evidence may re(er only to character (or truth(ulness or untruth(ulness1 and #D% evidence o( truth(ul character is admissible only a(ter the character o( the +itness (or truth(ulness has been attac&ed by opinion or reputation evidence or other+ise) '() S4e& * & I!#1a!&e# $* C$!du&1. Speci(ic instances o( the conduct o( a +itness' (or the purpose o( attac&ing or supporting the +itness/ credibility' other than conviction of crime as provided in Rule V4T' may NO- be in-uired into on cross0e.amination o( the +itness nor proved by e.trinsic evidence) DIFFERENCE BE-WEEN FRE / -RE0 CRE allo+s a +itness to be -uestioned about speci(ic acts o( conduct bearing on truth(ulness #although it does not permit the admission o( e.trinsic evidence%)

,RE does "O, allo+ a +itness to be -uestioned about speci(ic instances o( conduct that do not result in a conviction) CRE stipulates that by testi(ying a ! does not +aive his privilege against sel(0incrimination +ith respect to -uestions about speci(ic instances o( conduct that relate only to !/s credibility) ,RE does not permit such -uestions so ,RE omits this paragraph) &wens case O+en charged +ith murder' but claims it +as an accident Pr -uestions O+ns about previous criminal charges that he omitted on an application to prove that * intentionally omitted #lied% and thus has a character (or untruth(ulness and that * is acting in con(ormity +ith that character no+ +hen testi(ying o Similar to character evidence +here evidence o( a person8s character is "O, admissible i( o((ered to prove that a person acted in con(ormity +ith that character on a particular occasion 9,S Rule :0: e.&e41 $! - :0:'A)'3) C2ara&1er $* W 1!e## Evidence o( character may be o((ered to prove ! is acting in con(ormity +J character on a particular occasion1 +hen ! is testi(ying Rule L0G E% de!&e $* C2ara&1er a!d C$!du&1 $* W 1!e## o #a% Evidence o( a +itness8s reputation or opinion is admissible 9,S #3% It must be opinion or reputation o( the character o( truth(ulness or untruth(ulness #D% Character o( the +itness8s truth(ulness is O":G admissible AC,ER the +itness8s character (or untruth(ulness has been attac&ed o #b% Speci(ic instances o( the conduct o( a +itness 5a, !$1 (e 4r$%ed (, e.1r !# & e% de!&e i( o((ered (or the purpose o( sho+ing the !8s truth(ul or untruth(ul character 9, they MAG be admitted' at the court8s discretion 'IN FEDERAL COUR- NO- IN -EHAS) i( probative o( truth(ulness or untruth(ulness in cross0 e.amination o( ! concerning the !8s character (or truth(ulness or untruth(ulness I( ! ans+ers no to Pr8s -uestions' Pr bound by !8s ans+er) "o e.trinsic evidence) Again this is +hy P as&s -uestions +J detail so $ury +ill thin& that he did it) Court has discretion (or +hich -uestions are allo+ed) o E.) In +wens Pr as&ed -uestion about assault on second +i(e1 court didn8t allo+ bJc the probative value o( -uestion is substantially out+eighed by possibility that $uror +ill use it as evidence o( *8s violent character) !itness8s character may also be sho+n through opinion and reputation testimony) o Pr can bring in ! to testi(y that * is &no+n as an untruth(ul person in community Prosecution can "O, as& +hy the ! thin&s that O+en is not truth(ul) *e(ense can bring in o+n !s to testi(y (or *8s good character (or truth(ulness) o Again these !s can be cross0e.amined 00 ;have you heard * lied on his application>< B$l#1er !" 12e W !8s character (or truth(ulness can be brought up O":G O"CE it has been attac&ed o Sometimes :s get around this by as&ing -uestions li&e O*o you have good vision>< ;*o you &no+ anyone in this case or have any reason to be lying< o ut no evidence o( the !8s good character for truthfulness until it has been attac&ed

Rehabilitating a ! +hen !8s credibility HAS been attac&ed' : may try to rehabilitate ! by bringing !8s credibility bac& up Speci(ic Instances o( Conduct o CRE allo+s speci(ic instances o( !8s conduct (or the purpose o( attac&ing or supporting !8s credibility1 cannot be proved by e.trinsic evidence) o ,RE does !$1 allo+ speci(ic instances o( !8s conduct to prove credibility) Xuestions as&ed in +wens +ould not be permissible in ,e.as)

'3) CONVIC-IONS Federal Rule L0P. I54ea&25e!1 (, E% de!&e $* C$!% &1 $! $* Cr 5e 'a) Ge!eral rule. Cor the purpose o( attac&ing the credibility o( a +itness' #3% evidence that a +itness other than an accused has been convicted o( a crime shall be admitted' sub$ect to Rule 54? ' * 12e &r 5e =a# 4u! #2a(le (, dea12 $r 54r #$!5e!1 ! e.&e## $* $!e ,ear under the la+ under +hich the +itness +as convicted' and evidence that an accused has been convicted o( such a crime shall be admitted i( the court determines that the probative value o( admitting this evidence out+eighs its pre$udicial e((ect to the accused1 and #D% evidence that any +itness has been convicted o( a crime shall be admitted * 1 !%$l%ed d #2$!e#1, $r *al#e #1a1e5e!13 re"ardle## $* 12e 4u! #25e!1. '() - 5e l 5 1. Evidence o( a conviction under this rule is NO- admissible * a 4er $d $* 5$re 12a! 1e! ,ear# 2a# ela4#ed # !&e 12e da1e $* 12e &$!% &1 $! $r $* 12e relea#e $* 12e = 1!e## *r$5 12e &$!* !e5e!1 imposed (or that conviction' +hichever is the la1er da1e' unless the court determines' in the interests o( $ustice' that the probative value o( the conviction supported by speci(ic (acts and circumstances substantially out+eighs its pre$udicial e((ect) Ho+ever' evidence o( a conviction more than 34 years old as calculated herein' is not admissible unless the proponent gives to the adverse party su((icient advance +ritten notice o( intent to use such evidence to provide the adverse party +ith a (air opportunity to contest the use o( such evidence) '&) E**e&1 $* 4ard$!3 a!!ul5e!13 $r &er1 * &a1e $* re2a( l 1a1 $!. Evidence o( a conviction is !$1 ad5 ## (le under this rule i( #3% the conviction has been the sub$ect o( a pardon' annulment' certi(icate o( rehabilitation' or other e-uivalent procedure based on a (inding o( the rehabilitation o( the person convicted' and that person has not been convicted o( a subse-uent crime +hich +as punishable by death or imprisonment in e.cess o( one year' or #D% the conviction has been the sub$ect o( a pardon' annulment' or other e-uivalent procedure based on a (inding o( innocence) 'd) ?u%e! le ad+ud &a1 $!#. Evidence o( $uvenile ad$udications is generally not admissible under this rule) ,he court may' ho+ever' in a criminal case allo+ evidence o( a $uvenile ad$udication o( a +itness other than the accused i( conviction o( the o((ense +ould be admissible to attac& the credibility o( an adult and the court is satis(ied that admission in evidence is necessary (or a (air determination o( the issue o( guilt or innocence) 'e) Pe!de!&, $* a44eal. ,he pendency o( an appeal there(rom does !$1 render evidence o( a conviction inadmissible) Evidence o( the pendency o( an appeal is admissible)

-e.a# Rule L0P. I54ea&25e!1 B, E% de!&e $* C$!% &1 $! $* Cr 5e. 'a) Ge!eral Rule. Cor the purpose o( attac&ing the credibility o( a +itness' evidence that the +itness has been convicted o( a crime shall be admitted i( elicited (rom the +itness or established by public record but only * 12e &r 5e =a# a *el$!, OR !%$l%ed 5$ral 1ur4 1ude' re"ardle## $* 4u! #25e!1' and the court determines that the probative value o( admitting this evidence out+eighs its pre$udicial e((ect to a party) '() - 5e L 5 1. Evidence o( a conviction under this rule is NO- admissible i( a 4er $d $* 5$re 12a! 1e! ,ear# 2a# ela4#ed # !&e 12e da1e $* 12e &$!% &1 $! $r $* 12e relea#e $* 12e = 1!e## *r$5 12e &$!* !e5e!1 54$#ed *$r 12a1 &$!% &1 $!' +hichever is the la1er da1e' unless the court determines' in the interests o( $ustice' that the probative value o( the conviction supported by speci(ic (acts and circumstances substantially out+eighs its pre$udicial e((ect) '&) E**e&1 $* Pard$!3 A!!ul5e!13 $r Cer1 * &a1e $* Re2a( l 1a1 $!. Evidence o( a conviction is not admissible under this rule i(6 #3% based on the (inding o( the rehabilitation o( the person convicted' the conviction has been the sub$ect o( a pardon' annulment' certi(icate o( rehabilitation' or other e-uivalent procedure' and that person has not been convicted o( a subse-uent crime +hich +as classi(ied as a (elony or involved moral turpitude' regardless o( punishment1 #D% probation has been satis(actorily completed (or the crime (or +hich the person +as convicted' and that person has not been convicted o( a subse-uent crime +hich +as classi(ied as a (elony or involved moral turpitude' regardless o( punishment1 or #?% based on a (inding o( innocence' the conviction has been the sub$ect o( a pardon' annulment' or other e-uivalent procedure) 'd) ?u%e! le Ad+ud &a1 $!#. Evidence o( $uvenile ad$udications is not admissible' e.cept (or proceedings conducted pursuant to ,itle III' Camily Code' in +hich the +itness is a party' under this rule unless re-uired to be admitted by the Constitution o( the 9nited States or ,e.as) 'e) Pe!de!&, $* A44eal. Pendency o( an appeal renders evidence o( a conviction inadmissible) '*) N$1 &e. Evidence o( a conviction is not admissible i( a(ter timely +ritten re-uest by the adverse party speci(ying the +itness or +itnesses' the proponent (ails to give to the adverse party su((icient advance +ritten notice o( intent to use such evidence to provide the adverse party +ith a (air opportunity to contest the use o( such evidence) DIFFERENCE BE-WEEN FRE / -RE0 ,RE allo+s impeachment by crimes that +ere a (elony o CRE allo+s impeachment by crimes punishable by death or imprisonment over one year ,RE allo+s impeachment o( any crime involving =moral turpitude'= regardless o( punishment o CRE allo+s impeachment by crimes involving ;dishonesty or (alse statement< regardless o( the punishment ,RE re-uires a balancing o( probative value against un(air pre$udice (or A:: convictions o CRE does !$1 have a balancing test (or crimes involving dishonesty or (alse statement ,RE employs the same strict balancing test (or A:: types o( convictions A"* +hether the +itness is the accused o CRE re-uires the strict balancing test O":G +hen the +itness is an accused' other+ise the +ea&er Rule 54? test applies ,RE re-uires' upon +ritten re-uest' that notice be a((orded the adverse party +ith respect to all attempts to impeach by prior conviction

o CRE re-uires notice only (or convictions more than ten years old1 ,RE bars use o( a conviction i( probation +as received and satis(actorily completed o CRE *oes not ,RE provides that a conviction is !ad5 ## (le (or impeachment i( it is on appeal) o CRE says that i( a conviction is on appeal it IS admissible) H #1$r, C:6 (elons +ere incompetent to testi(y1 later court decided $ury should &no+ +hether a ! had prior (elony convictions Convictions are tangible1 i( someone +as convicted' no debate o( +hether speci(ic act occurred !hich convictions should be allo+ed (or impeachment purposes is controversial1 no uni(ormity among the states FF Be &are*ul0 I( a conviction has been the sub$ect o( a pardon' annulment or certi(ication o( rehabilitation or based on a (inding o( innocence it is not admissible) H9PO0 * on trial (or robbery) * testi(ied' and Pr +ants to impeach him +ith 2 # t+o prior convictions) Pr ! testi(ies' and de(ense +ants to impeach her +ith 2er t+o prior convictions) 9nder CRE V4T' +hich o( the (ollo+ing convictions may be used for impeachment purposes? WITNESS Defendant/Convicted of aggravated assault/Convicted years ago/Served ! years Defendant/Convicted of misdemeanor per"ury/Convicted ! years ago/Served # months $rosecution/Convicted of aggravated assault/Convicted %% years ago/Served ! years $rosecution/Convicted of felony per"ury/Convicted %! years ago/Served % year De*e!da!17# F r#1 C$!% &1 $! A""ra%a1ed A##aul1 Evidence o( his aggravated assault admissible 00 it is a (elony punishable by more than one year o BE CAREFUL0 evidence can only be o((ered to sho+ that he is an untruth(ul person' "O, that he is a violent person) o Evidence o( previous assault +ill be admissible i( the probative value o( evidence out+eighs its pre$udicial e((ect) Ludge must do a balancing test to determine +hether the probative value o( the evidence is out+eighed by the dangerJpre$udicial e((ect that a $uror +ill ta&e the evidence as proo( o( his violent character and in(er that he acted in con(ormity +ith this violent character and committed the crime) *i((erent balancing test (or the accused than (or everyone else #FRE% Accused8s balancing test is +hether the probative value o( the evidence $u1=e "2# its pre$udicial e((ect to the accused #!$1 substantially out+eighs% o ,he more similar the past crime is (or the crime that * is no+ on trial (or' the less li&ely the evidence +ill be let in bJc it is more li&ely that the $ury +ill ma&e an impermissible in(erence that i( * committed the last crime' he committed this crime)

De*e!da!17# Se&$!d C$!% &1 $! 8 #de5ea!$r Per+ur, ,his IS allo+ed under Rule V4T#a%#D% because the crime involved *ISHO"ES,G or CA:SE S,A,EME",' regardless o( the punishment Pr$#e&u1 $! W 1!e## A""ra%a1ed A##aul1 *e(ense can use evidence o( the aggravated assault to impeach the +itness) Crime is a (elony that doesn8t involve dishonesty or a (alse statement so +e use the Rule 54? alancing ,est) o Rule 54? 0 pre$udicial e((ect must #u(#1a!1 all, out+eigh danger o( un(air pre$udice o A lot easier to impeach non0accused +itnesses !hy not loo& to Rule V4T#b% since this conviction +as 33 years ago> o ! +as convicted (or eleven years but only served t+o so he +as released nine years ago1 still +ithin the ten0year time limit) Pr$#e&u1 $! W 1!e## Fel$!, Per+ur, !hy not loo& to Rule V4T#b% o Old conviction #sentenced (or 3D years' but only served 3 been out (or 33 years% o alancing test (or remote convictions6 old conviction may be used to impeach a ! i( the court (inds that its probative value' supported by speci(ic (acts and circumstances #u(#1a!1 all, out+eighs its pre$udicial e((ect) FF Speci(ic (acts only allo+ed in CRE -RE L0P V4T#a% instead o( crimes involving dishonesty or (alse statements' ,U uses ;moral turpitude< o Cor EKERG conviction' +hether (elony or misdemeanor and +hether it involves moral turpitude or not' court M9S, do a balancing test !hat constitutes moral turpitude> o roader than dishonesty1 ,U says the(t' vagrancy' etc involves moral turpitude C$!#e<ue!&e# $* Rule L0P ig deal to put a criminal de(endant on the stand because o( use o( prior convictions o O(ten :s try to get ruling be(ore trial +hether impeachment evidence +ill be allo+ed I( $udge +on8t allo+ the conviction evidence' : puts ! on' but i( the $udge allo+s or can8t decide' then de(ense : may not put the ! on the stand) : might later +ant to argue that the $udge made the +rong decision on appeal) o I8POR-AN-0 SC ruled that i( * does "O, testi(y' he has no error to appeal1 * must testi(y A"* be impeached in order to appeal the $udge8s pretrial hearing decision '3) CAPACI-9 Attorney can -uestion a ! to sho+ de(ects in !8s eyesight' hearing' mental competency' etc o Physical or Mental *isabilities6 ;*on8t you have hallucinations>< ;Isn8t it true that you dran& T beers be(ore the event>< o Memory6 ;!hat time +as that>< ;Ho+ many people +ere there>< %y -ousin =innie clip E.trinsic evidence allo+ed to prove lac& o( capacity e.) Psychiatric testimony ':) INCONSIS-ENC9 Pr$&edural U#e $* Pr $r I!&$!# #1e!1 S1a1e5e!1 !8s prior statement con(licted +ith !8s in0court testimony

e(ore impeaching a ! +J his prior inconsistent statement' : (irst must lay a (oundation #in ,RE' "O, in CRE > although federal lawyers often do it anyways b?c it is effective%) o In(orm ! about the time' place +here previous statement +as made' +ho the statement +as made to' give ! chance to e.plainJdeny prior inconsistent statement o Rationale# !s ought to be given the conte.t in +hich the prior statement +as made so they can recall it' admit +hether the statement i( it +as made' e.plain +hy the contradiction doesn8t really e.ist be(ore +e ma&e the ! out to be a liar o 'n ,R@ > only re-uirement is that the statement be sho+n to opposing counsel ,RE applies to both +ritten and oral statements1 i( +ritten the +ritten statement doesn8t need to be sho+n to the ! be(orehand o C: re-uired ! see +ritten statement be(orehand1 Pr upset bJc eliminated surprise I( ! admits to ma&ing the prior inconsistent statement that is the end o E.trinsic evidence that ! made the prior inconsistent statement O":G allo+ed i( ! denies ma&ing the statement) Su(#1a!1 %e U#e $* Pr $r I!&$!# #1e!1 S1a1e5e!1 !8s o+n prior statement * $**ered *$r 1# 1ru12 is considered hearsay H9PO Q1 o *K case) ! tells PO H hit her) H is prosecuted) Pr calls ! +ho testi(ies that H never hit her) Pr +ants PO to testi(y about !8s prior statements) o Statement not allo+ed to prove H hit !' but IS allo+ed (or impeachment purposes) Cact that ! made an inconsistent statement sho+s she is a less credible +itness) o In this case there is no other evidence H hit !) !8s out0o(0court statement to PO is "O, substantive evidence H hit +i(e only evidence (or $ury not to believe ! as a credible +itness) o !hen $udge says' ;I admit this (or impeachment purposes' but not as substantive evidence< that is +hat is going on) H9PO QE o Pr +ants to o((er the PO8s report +hich records that ! told him that H hit her> D out0o(0court declarants) #3% PO +riting do+n out o( court that this is +hat ! told him and #D% !8s out0o(0court statement that H hit her I( o((ered to prove the truth o( the matter asserted' +e have double hearsay ut +hat i( it is only being o((ered (or impeachment purposes #!8s statement being o((ered to sho+ that she is not credible% then +e have one level o( hearsay PO8s out0o(0court statement +hich is being o((ered (or the truth o( +hat I, asserts #! 1$ld him that H hit her%) H9PO Q3 o ac& to *K hypo6 ,his time' there is some other evidence that H hit !) "eighbor testi(ies that he sa+ the (ight through the +indo+ and he sa+ H hit !) o H +ants to &eep the $ury (rom hearing that ! EKER said to the PO that H hit her bJc H (ears that i( $ury hears that ! made the statement $ury +ill thin& H hit her) SO8E Pr $r I!&$!# #1e!1 S1a1e5e!1# 8a, (e O**ered *$r 12e r -ru12 Federal Rule G01'd)'1)

,rior statement by witness. ,he declarant testi(ies at the trial or hearing a!d is sub$ect to cross0 e.amination concerning the statement' and the statement is #A% inconsistent +ith the declarant/s testimony' and +as given under oath sub$ect to the penalty o( per$ury at a trial' hearing' or other proceeding' or in a deposition' or # % consistent +ith the declarant/s testimony and is o((ered to rebut an e.press or implied charge against the declarant o( recent (abrication or improper in(luence or motive' or #C% one o( identi(ication o( a person made a(ter perceiving the person1 -e.a# Rule G01'd)'1) ,rior statement by witness. ,he declarant testi(ies at the trial or hearing and is sub$ect to cross0e.amination concerning the statement' and the statement is6 #A% inconsistent +ith the declarant/s testimony' and +as given under oath sub$ect to the penalty o( per$ury at a trial' hearing' or other proceeding e.&e41 a "ra!d +ur, 4r$&eed !" ! a &r 5 !al &a#e' or in a deposition1 # % consistent +ith the declarant/s testimony and is o((ered to rebut an e.press or implied charge against the declarant o( recent (abrication or improper in(luence or motive1 #C% one o( identi(ication o( a person made a(ter perceiving the person1 or #*% ta&en and o((ered in a criminal case in accordance +ith Code o( Criminal Procedure article ?B)4@3) DIFFERENCE BE-WEEN FRE / -RE0 ,RE 0 !8s prior inconsistent statements made in a "ra!d +ur, 4r$&eed !" in a &r 5 !al &a#e are "O, A*MISSI :E) E.) ! tells grand $ury H hit her Pr can only use statement to impeach !' "O, to prove H hit her) CRE statements made be(ore a grand $ury are admissible (or the truth o( the matter asserted !hen Rule B43 +as originally proposed' certain prior statements o( a ! +ho testi(ied at trial !O9:* be admissible *$r 12e r 1ru12 o Statements inconsistent +ith !8s testimony at trial and +hich ! made under oath' sub$ect to penalty o( per$ury' at a trial' hearing' or other proceeding or in deposition) E.) *K case ! tells ,& that H hit her) On stand !i(e says that H didn8t hit her) Prosecution +ants to use +i(e8s statement to PO "O, admissible (or the truth o( the matter asserted1 $!l, a%a la(le *$r 54ea&25e!1) E.) *K ! tells grand (ury that H hit her) Pr +ants to use prior inconsistent statement made to the grand $ury to prove that H hit !) A*MISSI :E (or truth o( matter asserted bJc statement to grand $ury +as made under oath' sub$ect to penalty o( per$ury' at a proceeding) *irect inconsistency not re-uired) o -e#1 # =2e12er 12ru#1 $* 1r al #1a1e5e!1 # !&$!# #1e!1 =@ 12ru#1 $* 4r $r #1a1e5e!1 o E.) ! testi(ies at trial about an event and : +ants to prove that ! said (our months be(ore' ;I don8t remember anything about the event< admissible o E.) I( ! (eigns lac& o( memory' courts sometimes allo+ a prior statement o( memory to impeach !1 not much to impeach though o E.) I( ! gives a bare0boned testimony at trial and prior had given a very (ull description is that inconsistent>

Possibly' especially i( the previous details +ere not (avorable to !8s side and no+ +hen they are giving the testimony they leave those details out) H9PO0 *8s lover says at trial that * didn8t commit the murder bJc she +o&e up in the middle o( the night and he +as there) Pr +ants to use the (act that +hen PO -uestioned her she didn8t mention +a&ing up) Is this a prior inconsistent statement> Ges) H9PO0 * says he shot K in sel(0de(ense) Pr o((ers evidence that * +as arrested t+o +ee&s a(ter shooting and never told anyone he shot K in sel( de(ense) Can Pr use *8s silence (or t+o +ee&s be(ore arrest to impeach> Ges) HGPO6 Can Pr impeach * by sho+ing that a*1er arrest * &ept silent> Once * has been given Miranda +arning #right to remain silent%' it is un(air as a constitutional matter to impeach him +ith the silence) o UU6 Post0arrest' but pre0Miranda +arning silence admissible) Gou only get to this constitutional issue i( court (inds that the silence is inconsistent +ith *8s later testimony) I( court (inds that silence doesn8t have any probative value as an inconsistent statement' +e never reach this constitutional issue)

'K) BIAS -e.a# Rule L13'() E.a5 ! !" W 1!e## C$!&er! !" B a# $r I!1ere#1. In impeaching a +itness by proo( o( circumstances or statements sho+ing bias or interest on the part o( such +itness' and be(ore (urther cross0e.amination concerning' or e.trinsic evidence o(' such bias or interest may be allo+ed' the circumstances supporting such claim or the details o( such statement' including the contents and +here' +hen and to +hom made' must be made &no+n to the +itness' and the +itness must be given an opportunity to e.plain or to deny such circumstances or statement) I( +ritten' the +riting need not be sho+n to the +itness at that time' but on re-uest the same shall be sho+n to opposing counsel) I( the +itness une-uivocally admits such bias or interest' e.trinsic evidence o( same shall not be admitted) A party shall be permitted to present evidence rebutting any evidence impeaching one o( said party/s +itnesses on grounds o( bias or interest) N$ *ederal rule $! ( a# "$%er!ed u!der Rule# :01-:03. B a#0 +hether ! has reason to (avor or dis(avor * (or some reason independent o( the case o Personal relationship' animosity against a party' (inancial interest' desire to curry (avor +ith the other side SC &$ur1 &a#e0 o ! on probation +J possibility o( having his probation revo&ed) *e(ense claimed ! +as blaming * bJc ! had done it) *e(ense +anted to use this to sho+ !8s bias to sho+ that ! had a reason to point the (inger at * (or reasons unrelated to this case) Alas&a8s la+s said $uvenile records are con(idential so sho+ing this bias to impeach ! +ould violate the la+s) SC said that this violated *8s right to con(ront the +itness and the evidence should be allo+ed to sho+ bias) -RE Rule L13'() o Re-uirements : 5u#1 a#6 ! about bias on cross0e.amination * r#1) I( ! admits to bias' that it is the end o( it "O e.trinsic evidence)

 I( ! does not admit to bias' e.trinsic evidence is permitted) o Practically ho+ it is done in (ederal court as +ell) : as&s ! about bias (irst1 then sho+s e.trinsic evidence i( he doesn8t admit) In ,e.as you HAKE to do it this +ay) HEARSA9 DECLARAN !hat i( the ! is a hearsay declarant> o HGPO6 * charged +J murdering K) * +ants to o((er evidence that K hated * and said' ; e(ore I die' I am going to get * in trouble)< * +ants to sho+ that K is biased) Can * impeach the hearsay declarant> GES7 Federal Rule G0L. A11a&6 !" a!d Su44$r1 !" Cred ( l 1, $* De&lara!1 !hen a hearsay statement' or a statement de(ined in Rule B43#d%#D%#C%' #*%' or #E% ' has been admitted in evidence' the credibility o( the declarant may be attac&ed' and i( attac&ed may be supported' (, a!, e% de!&e =2 &2 =$uld (e ad5 ## (le *$r 12$#e 4ur4$#e# * de&lara!1 2ad 1e#1 * ed a# a = 1!e##) Evidence o( a statement or conduct by the declarant at any time' inconsistent +ith the declarant/s hearsay statement' is not sub$ect to any re-uirement that the declarant may have been a((orded an opportunity to deny or e.plain) I( the party against +hom a hearsay statement has been admitted calls the declarant as a +itness' the party is entitled to e.amine the declarant on the statement as i( under cross0e.amination) -e.a# Rule G0L. A11a&6 !" a!d Su44$r1 !" Cred ( l 1, $* De&lara!1. !hen a hearsay statement' or a statement de(ined in Rule B43#e%#D% #C%' #*%' or #E%' or in civil cases a statement de(ined in Rule B43#e%#?%' has been admitted in evidence' the credibility o( the declarant may be attac&ed' and i( attac&ed may be supported by any evidence +hich +ould be admissible (or those purposes i( declarant had testi(ied as a +itness) Evidence o( a statement or conduct by the declarant at any time' o((ered to impeach the declarant' is not sub$ect to any re-uirement that the declarant may have been a((orded an opportunity to deny or e.plain) I( the party against +hom a hearsay statement has been admitted calls the declarant as a +itness' the party is entitled to e.amine the declarant on the statement as i( under cross0e.amination) DIFFERENCE BE-WEEN FRE / -RE6 N$!e REHABILI-A-ION -2e re2a( l 1a1 $! 1e&2! <ue 5u#1 5a1&2 12e 54ea&25e!1 1e&2! <ue. o I( ! attac&ed (or having an untruth(ul character' sho+ ! has a truth(ul character) o I( ! +as attac&ed (or lac&ing capacity' rehabilitate by sho+ing that ! has capacity I( ! sho+n to have bad eye sight' sho+ ! +as +earing glasses o I( ! +as attac&ed (or being biased' sho+ that ! isn8t biased) E.) ! attac&ed (or ma&ing hate(ul statements (or numerous years1 sho+ that V months ago the ! become a Christian and (orgave K o Have ! e.plain a+ay the inconsistency on redirect On cross0e.amination ! said the opposite in a deposition o( +hat he said in trial) ! e.plains he +as being sarcastic in the deposition) !hat i( you +ant to sho+ that ! has made statements &$!# #1e!1 +ith the trial testimony> o Renerally this is "O, allo+ed)

Prior &$!# #1e!1 statements are not allo+ed to rehabilitate a ! +ho gave prior inconsistent statements o E.) Child abuse case : +ants to introduce statements that child said his step0(ather abused him) Previously child had said that his step0(ather had not abused him both consistent and inconsistent stories) o Rationale# i( you sho+ prior inconsistent statement' then you have sho+n that this is a person +ho tells di((erent stories on di((erent days) I( ! is sho+n to be someone +ho changes stories then o((ering prior consistent statements $ust sho+s that ! changes stories even more) o HH% Prior consistent statements are all$=ed *$r re2a( l 1a1 $! +hen u#ed 1$ re(u1 a &2ar"e a"a !#1 W 12a1 W 5ade u4 12e #1$r, $r 2a# a 5$1 %e 1$ l e. I( sho+n that ! told the same story before the motive to lie ever arose' that +ould rebut the theory o( the cross0e.amination) E.) I( * +ants to sho+ that ! has motive to lie bJc he is getting plea bargain and Pr can sho+ that ! told this story be(ore the plea bargain +as o((ered) Federal Rule L10. Rel " $u# Bel e*# $r O4 ! $!# Evidence o( the belie(s or opinions o( a +itness on matters o( religion is not admissible (or the purpose o( sho+ing that by reason o( their nature the +itness/ credibility is impaired or enhanced) -e.a# Rule L10. Rel " $u# Bel e*# $* O4 ! $!#. Evidence o( the belie(s or opinions o( a +itness on matters o( religion is not admissible (or the purpose o( sho+ing that by reason o( their nature the +itness/ credibility is impaired or enhanced) Evidence o( !8s religious belie( cannot be o((ered to prove !8s truth(ulness or untruth(ulness) It may be o((ered (or other purposes) o E.) I( * is the Catholic Church and ! is a staunch Catholic' : may o((er !8s religious belie(s to sho+ bias) CO8PE-ENC9 OF WI-NESS FRE Rule L01. Ge!eral Rule $* C$54e1e!&, Every person is competent to be a +itness e.cept as other+ise provided in these rules) Ho+ever' in civil actions and proceedings' +ith respect to an element o( a claim or de(ense as to +hich State la+ supplies the rule o( decision' the competency o( a +itness shall be determined in accordance +ith State la+) -RE Rule L01. C$54e1e!&, a!d I!&$54e1e!&, $* W 1!e##e# 'a) Ge!eral Rule. Every person is competent to be a +itness e.cept as other+ise provided in these rules) ,he (ollo+ing +itnesses shall be incompetent to testi(y in any proceeding sub$ect to these rules6 #3% 'nsane persons) Insane persons +ho' in the opinion o( the court' are in an insane condition o( mind at the time +hen they are o((ered as a +itness' or +ho' in the opinion o( the court' +ere in that condition +hen the events happened o( +hich they are called to testi(y)

#D% -hildren) Children or other persons +ho' a(ter being e.amined by the court' appear not to possess su((icient intellect to relate transactions +ith respect to +hich they are interrogated) DIFFERENCE BE-WEEN FRE / -RE0 -RE treats mentally incapable adults and young children as incompetent upon a (inding by the court) FRE treats every +itness as competent in cases governed by (ederal la+) FRE in CIVIL actions +here governed by state la+' a !8s competency +ill be determined according to State la+) C: a lot o( people deemed incompetent to testi(y atheists' (elons' children' etc 9nder CRE everyone is competent1 a !8s youth' mental illness' into.icated state' prison records' etc can be used to attac& the strength o( his testimony' but he is allo+ed to testi(y Federal Rule CRE V43 every person is competent to be a ! unless the rules other+ise provide) 9, i( the civil case or proceeding is governed by state la+' a !8s competency +ill be determined in accordance +ith state' not (ederal' la+ o I( you have a diversity case +here state la+ provides the substantive rule o( la+' then loo& to the state competency rules to determine +hether a ! is competent to testi(y Per#$!# !$1 &$54e1e!1 o Ludge is not competent to testi(y in a case in +hich the $udge is presiding o Lurors may not testi(y in cases in +hich the $uror is sitting as a (act0(inder) Everyone else is competent to be a !1 theory is $ury +ill be able to deem a !8s proper +eight) -e.a# Rule - Everyone is competent to be a ! #e.cept $udges and $urors% BU- ,e.as allo+s competency challenges to people who are insane1 A"* o Ludge decides +hether ! is competent to testi(y) o Even someone +ho is certi(ied insane may still be o&ay to testi(y as trial) !hether someone is insane and +hether someone lac&s the competency to testi(y is di((erent) *hildren who lac! sufficient intellect to relate the transactions they are testifying about. o "o age limit) Ludge decides +hether child has su((icient mental competency to testi(y) OPINION -ES-I8ON9 B9 LA9 WI-NESSES FRE Rule N01. O4 ! $! -e#1 5$!, (, La, W 1!e##e# I( the +itness is not testi(ying as an e.pert' the +itness/ testimony in the (orm o( opinions or in(erences is limited to those opinions or in(erences +hich are #a% rationally based on the perception o( the +itness' and #b% help(ul to a clear understanding o( the +itness/ testimony or the determination o( a (act in issue' and #c% not based on scienti(ic' technical' or other specialiHed &no+ledge +ithin the scope o( Rule @4D ) -RE Rule N01. O4 ! $! -e#1 5$!, (, La, W 1!e##e# I( the +itness is not testi(ying as an e.pert' the +itness/ testimony in the (orm o( opinions or in(erences is limited to those opinions or in(erences +hich are #a% rationally based on the perception o(

the +itness and #b% help(ul to a clear understanding o( the +itness/ testimony or the determination o( a (act in issue) DIFFERENCE BE-WEEN FRE / -RE0 FRE0 limits lay opinion testimony to opinions =not based on scienti(ic' technical' or other specialiHed &no+ledge +ithin the scope o( Rule @4D)= FF asically i( the ! is an e.pert under Rule @4D' then he should be treated li&e one and not be included under Rule @43 5ay witness6 a ! +ho is not testi(ying as an e.pert) o An ;e.pert< may testi(y as a lay ! +hen she testi(ies about something outside her (ield o( e.pertise) o Be Care*ul0 In essays i( you have an e.pert !' loo& to +hat part o( his statement is e.pert and +hat part o( his statement is lay) C: Rule6 lay !s not allo+ed to testi(y in the (orm o( an opinion1 only could testi(y about (acts) o Problem is dra+ing the distinction bet+een (acts and opinions ;Car +as going very (ast< (act or opinion> ;He loo&ed happy< (act or opinion> FRE N01 Opinion ,estimony by :ay !itnesses o :ay ! may testi(y in the (orm o( an opinion i( t+o re-uirements are met #3% ,he opinion must be rationally based on the !8s perception) ! must have personal &no+ledge o( the events #D% It must be help(ul to a clear understanding o( !8s testimony or determination o( a (act in issue) U v %illing6 H too& out li(e insurance on ! then poisoned her) He called T33 and (eigned grie() ! survived) ,o avoid suspicion' H planted poisoned Suda(ed on drugstore shelves) :ay ! testimony6 T33 operator and ambulance driver +ant to testi(y that * +as (eigning grie( o :ay ! testimony +as allo+ed bJc #3% it +as a rational perception based on !8s personal &no+ledge and #D% it +ould be help(ul (or the $ury to hear it "o hard and (ast rule) Centrality o( the issue is important +ant (ury to determine issues central to case' not a layperson ! W2e! =$uld La, W7# -e#1 5$!, NO- (e all$=ed> CRE #c% +as added #not in ,RE% that a ! may testi(y i( it is !$1 based on scienti(ic' technical or other specialiHed &no+ledge o asically i( ! is an e.pert under Rule @4D' then ! should be treated as an e.pert o Included bJc :s +ould put e.pert on the stand and say' ;!e $ust +ant to as& him -uestions as a layperson' not as an e.pert< to get around disclosure re-uirements Gou can8t do that no+7 o A lot o( litigation +here one side says ! is testi(ying as an e.pert and other side says ! is testi(ying as a layperson EHPER- -ES-I8ON9 FRE Rule N0E. -e#1 5$!, (, E.4er1#

I( scienti(ic' technical' or other specialiHed &no+ledge +ill assist the trier o( (act to understand the evidence or to determine a (act in issue' a +itness -uali(ied as an e.pert by &no+ledge' s&ill' e.perience' training' or education' may testi(y thereto in the (orm o( an opinion or other+ise' i( #3% the testimony is based upon su((icient (acts or data' #D% the testimony is the product o( reliable principles and methods' and #?% the +itness has applied the principles and methods reliably to the (acts o( the case) -RE Rule N0E. -e#1 5$!, B, E.4er1# I( scienti(ic' technical' or other specialiHed &no+ledge +ill assist the trier o( (act to understand the evidence or to determine a (act in issue' a +itness -uali(ied as an e.pert by &no+ledge' s&ill' e.perience' training' or education may testi(y thereto in the (orm o( an opinion or other+ise) DIFFERENCE BE-WEEN FRE / -RE0 FRE adds language re-uiring that =#3% the testimony is based upon su((icient (acts or data' #D% the testimony is the product o( reliable principles and methods' and #?% the +itness has applied the principles and methods reliably to the (acts o( the case)= FF ,o codi(y the .aubert line o( cases -RE does not) E.perts can testi(y in the (orm o( an opinion bJc +e thin& there are certain sub$ects that $urors lac& the e.pertise to understand ho+ to dra+ proper in(erences (rom the data) o E.) Medical malpractice $urors don8t have medical e.pertise so although they are told +hat doctors did' they don8t &no+ +hether that is malpractice or not) E.perts are the only !s that :s can choose :s hire e.pert !s o Sometimes court +ill appoint e.pert !s' but usually e.perts are chosen by parties) H$= d$ ,$u <ual *, a! e.4er1> -=$ Re<u re5e!1# o B" -ub(ect 9atter ! is -uali(ied by &no+ledge' s&ill' e.perience' training' education "O magic (ormula ma&es someone an e.pert E.) Cardiologist may be an e.pert in cardiology' but not in orthopedics you have to be an e.pert in the area you are going to testi(y E.) E.pert mechanic bJc you +or&ed in an auto garage (or t+enty years o C" Iualifications of the Witness W2a1 d$ =e all$= e.4er1# 1$ 1e#1 *, a($u1> Scienti(ic' technical' or other specialiHed &no+ledge) o E.) Medical malpractice e.pert testimony may not only be help(ul' but may be re-uired' to establish that malpractice occurred Ad5 ## ( l 1, $* e.4er1 1e#1 5$!, u!der B"a1e6ee4er *u!&1 $! OLD -ES- ; 8rye 4est proponent o( novel scienti(ic evidence must (irst demonstrate that the pro(erred test' theory' or principle has gained general acceptance in the scienti(ic community 8ODERN APPROACH - .aubert case #claims that children born to +omen +ho too& drug more li&ely to have birth de(ects) CC W2a1 are 12e *$ur Dau(er1 *a&1$r#> Ha# 12e 5e12$d (ee! 4eer re% e=edD =2a1 6 !d $* err$r-ra1e d$e# 1 2a%e3 2a# 12e 12e$r, $r 1e&2! <ue (ee! 1e#1edD 2a# 1 (ee! "e!erall, a&&e41ed>

Court acts as gate0&eeper to decide +hether an e.pert8s scienti(ic opinion amounts to scienti(ic &no+ledge o #3% ,estimony6 validity o( the relevant scienti(ic test' theory' or principle #and its general acceptance% may be proved through e.pert testimony o #D% Ludicial notice6 Once a test' theory' or principle has become su((iciently +ell established' a court may ta&e $udicial notice o( its validity) E.) Courts do not re-uire proo( o( principles underlying use o( (ingerprinting o #?% Proper Application6 Even +here underlying principles have been +idely accepted and no need to present evidence as to their validity' proo( may still be presented to sho+ that they +ere properly applied in this particular instance) .aubert (actors not al+ays help(ul particularly +hen dealing +J ;so(ter sciences< 0 psychology o !ith a psychologist testi(ying about battered +omen8s syndrome the *aubert (actors may not be very help(ul Courts started using additional (actors including o !hether there are non0$udicial uses o( the theory or techni-ue the e.pert has used !as this techni-ue only invented (or the courtroom> o E.tent to +hich the opinion in generated as sub$ective interpretation o( the data o E.tent to +hich the e.pert has per(ormed research independent o( the litigation ,he more research independent o( the litigation' the more reliable the e.pert is D$e# 12e &$ur1 "a1e-6ee4 !" *u!&1 $! a44l, $!l, 1$ #& e!1 * & e.4er1# $r all e.4er1#> SC decides that this gate0&eeping (unction applies to A:: e.perts Court (ocuses on e.pert8s methodology "O, the conclusion as long as the method is o&ay' evidence should be admitted) o Ho+ever conclusions and methodology are not entirely distinct (rom one another o Court may conclude there is simply too much o( an analytic gap bet+een the data and the conclusion so the testimony is inadmissible "o+ typical cases involves *aubert hearings o e(ore trial there +ill be a challenge to the admissibility o( a party8s e.pert +itness #usually de(ense challenging the plainti((8s +itness% o O(ten done at summary $udgment stage bJc i( plainti((8s case re-uires e.pert testimony and * can &eep e.pert8s testimony out then SL granted (or * +Jo trial BASES OF OPINION -ES-I8ON9 B9 EHPER-S FRE Rule N03. Ba#e# $* O4 ! $! -e#1 5$!, (, E.4er1# ,he (acts or data in the particular case upon +hich an e.pert bases an opinion or in(erence may be those perceived by or made &no+n to the e.pert at or before the hearing) I( o( a type reasonably relied upon by e.perts in the particular (ield in (orming opinions or in(erences upon the sub$ect' the (acts or data need not be admissible in evidence in order (or the opinion or in(erence to be admitted) Cacts or data that are other+ise inadmissible shall not be disclosed to the $ury by the proponent o( the opinion or in(erence unless the court determines that their probative value in assisting the $ury to evaluate the e.pert/s opinion substantially out+eighs their pre$udicial e((ect) -RE Rule N03. Ba#e# $* O4 ! $! -e#1 5$!, (, E.4er1#

,he (acts or data in the particular case upon +hich an e.pert bases an opinion or in(erence may be those perceived by' revie+ed by' or made &no+n to the e.pert at or before the hearing) I( o( a type reasonably relied upon by e.perts in the particular (ield in (orming opinions or in(erences upon the sub$ect' the (acts or data need not be admissible in evidence) DIFFERENCE BE-WEEN FRE / -RE0 FRE adds the (ollo+ing sentence6 Cacts or data that are other+ise inadmissible shall not be disclosed to the $ury by the proponent o( the opinion or in(erence unless the court determines that their probative value in assisting the $ury to evaluate the e.pert/s opinion substantially out+eighs their pre$udicial e((ect) ,his language states a some+hat stricter balancing test than -RE. Pre#e!1a1 $! $* E.4er1 -e#1 5$!, Ho+ does e.pert ! gain &no+ledge o( litigated (acts> Cacts or data are those perceived by e.pert or that he has personal &no+ledge o( o E.) ,reating doctor &no+s (acts based on personal &no+ledge bJc he has treated patient) ,raditionally e.perts could testi(y even i( they did not have personal &no+ledge o( the litigated (acts through the hypothetical -uestion) o ;IC you assume these things are true do you have an opinion>< and the e.pert +ould then give the opinion) :ots o( criticism o( the hypothetical -uestions o Rave :s chance to give a summation o( their case midstream1 no one listened Rule N03 Allo+s an e.pert to base his opinion on (act ;perceived by or made &no+n to the e.pert at or be(ore the hearing)< o Includes hypothetical -uestions 9, A:SO allo+s litigated (acts to be made &no+n to e.pert ! (e*$re the trial or hearing) E.) *octor may base an opinion on medical records he has revie+ed' conversations +ith other medical personnel about patient' and intervie+s +ith patient8s (amily' even i( none o( these has been introduced into evidence' so long as court decides that these are the types o( things that other doctors in the (ield reasonably rely on in ma&ing diagnoses e%e! 12$u"2 2ear#a, as long as it is +hat others reasonably use in ma&ing conclusions) o Controversy6 Cine (or doctors' but +hat about accidentologists> ,hey listen to bystanders so then you have accidentologists +ho testi(y that plainti(( is responsible based on the s&id mar&s A"* +hat bystanders said) He relies upon it in his everyday li(e' but this creates hearsay problems) OPINION ON UL-I8A-E ISSUE FRE Rule N0:. O4 ! $! $! Ul1 5a1e I##ue #a% E.cept as provided in subdivision #b%' testimony in the (orm o( an opinion or in(erence other+ise admissible is not ob$ectionable because it embraces an ultimate issue to be decided by the trier o( (act) #b% "o e.pert +itness testi(ying +ith respect to the mental state or condition o( a de(endant in a criminal case may state an opinion or in(erence as to +hether the de(endant did or did not have the

mental state or condition constituting an element o( the crime charged or o( a de(ense thereto) Such ultimate issues are matters (or the trier o( (act alone) -RE Rule N0:. O4 ! $! $! Ul1 5a1e I##ue. ,estimony in the (orm o( an opinion or in(erence other+ise admissible is not ob$ectionable because it embraces an ultimate issue to be decided by the trier o( (act) DIFFERENCE BE-WEEN FRE / -RE0 FRE added #b% +hich restricts e.pert testimony concerning an accused8s mental state o( condition) #in response to the ac-uittal o( Lohn Hin&ley' by reason o( insanity' (or attempted assassination o( Reagan% -RE does not have this provision) CL0 courts said that !s' both lay and e.pert' could "O, testi(y as to an ultimate case issue o Court +anted !s to testi(y to a point' but not tell the $ury ho+ to decide) o 9nen(orceable rule) 9ltimate issue !$1 an ob$ection in CRE or ,RE any more #UU6 CRE @45#b%% o BU- testimony must still ;other+ise admissible< under Rule @4D o E.) Products de(ect case) Engineer can testi(y as to technical +ays product could be sa(er' design (la+s' etc 9, P8s la+yer cannot as&' ;!as the product de(ective>< bJc +hat ma&es a product de(ective is larger than $ust its de(ects and includes a $udgment about the costs and bene(its or ma&ing it sa(er) I( product could be sa(er' but it +ould cost I34'444 a unit it may not be de(ective to not implement that sa(ety mechanism) o Engineer is not -uali(ied to testi(y about the costJbene(it analysis o BE CAREFUL0 !hen you have an e.pert +itness testi(ying as to an ultimate issue' loo& to +hat the e.pert is being as&ed about and ho+ (ar his e.pertise goes) FRE N0:'() Hin&ley Pr had OP to prove beyond a reasonable doubt that he +as not insane o A(ter this Congress changed the de(inition o( insane to put OP on * to prove by a preponderance o( the evidence that he +as insane o Rule @45#b% provides that an e.pert' in a criminal case' may "O, testi(y that * had or lac&ed a particular mental state that constitutes either an element o( the crime charged OR constitutes an element o( the de(ense) E.pert cannot come into (ederal court and say' OIn my opinion' Hin&ley +as insane)< One area +here an ob$ection that opinion goes to the ultimate issue is valid) o O(ten in drug cases) Pr calls ;e.pert< #o(ten PO +ho +or&ed +J a lot o( drug cases% to give testimony as to ho+ drug deals are arranged' ho+ much a dealer carries' etc ! +ill come as close as possible to testi(ying that * possessed drugs +J intent to distribute' but i( ! actually testi(ies that * had the drug +J intent to distribute' there is an ob$ection) DISCLOSURE OF FAC-S OR DA-A UNDERL9ING EHPER- OPINION FRE Rule N0K. D #&l$#ure $* Fa&1# $r Da1a U!derl, !" E.4er1 O4 ! $!

,he e.pert may testi(y in terms o( opinion or in(erence and give reasons there(or = 12$u1 (irst testi(ying to the underlying (acts or data' unless the court re-uires other+ise) ,he e.pert may in any event be re-uired to disclose the underlying (acts or data on cross0e.amination) -RE Rule N0K. D #&l$#ure $* Fa&1# $* Da1a U!derl, !" E.4er1 O4 ! $! 'a) D #&l$#ure $* Fa&1# $r Da1a) ,he e.pert may testi(y in terms o( opinion or in(erence and give the e.pert/s reasons there(or = 12$u1 prior disclosure o( the underlying (acts or data' unless the court re-uires other+ise) ,he e.pert may in any event disclose on direct e.amination' or be re-uired to disclose on cross0e.amination' the underlying (acts or data) '() V$ r d re. Prior to the e.pert giving the e.pert/s opinion or disclosing the underlying (acts or data' a party against +hom the opinion is o((ered upon re-uest in a criminal case shall' or in a civil case may' be permitted to conduct a voir dire e.amination directed to the underlying (acts or data upon +hich the opinion is based) ,his e.amination shall be conducted out o( the hearing o( the $ury) '&) Ad5 ## ( l 1, $* $4 ! $!) I( the court determines that the underlying (acts or data do not provide a su((icient basis (or the e.pert/s opinion under Rule @4D or @4?' the opinion is inadmissible) 'd) Bala!& !" 1e#1D l 5 1 !" !#1ru&1 $!#. !hen the underlying (acts or data +ould be inadmissible in evidence' the court shall e.clude the underlying (acts or data i( the danger that they +ill be used (or a purpose other than as e.planation or support (or the e.pert/s opinion out+eighs their value as e.planation or support or are un(airly pre$udicial) I( other+ise inadmissible (acts or data are disclosed be(ore the $ury' a limiting instruction by the court shall be given upon re-uest) DIFFERENCE BE-WEEN FRE / -RE0 -RE includes #b%' #c%' #d% +hile FRE includes only the language in paragraph #a% and does not state that the e.pert may disclose the underlying (acts or data on direct) H #1$r, asic idea o( Rule @4E +as to eliminate need (or hypothetical -uestions 9, +hen Rule @4E +as passed there +asn8t much discovery (or e.perts so cross0e.aminers didn8t &no+ +hat they +ere going to get no+ this is some+hat eliminated by CRCP that allo+ (or more discovery +ith e.perts -RE N0K'() provides (or in court discovery procedure +hen an e.pert testi(ies o e(ore e.pert gives his opinion in a criminal case' opposing party has 12e r "21 to -uestion e.pert on voir dire outside $ury about underlying (acts or data upon +hich the e.pert is basing his opinion o Cor civil cases' it is in discretion o( the $udge) In civil cases there is a greater opportunity (or discovery) -RE N0K'd) addresses +hen underlying in(ormation that (orms the e.pert8s opinion +ould be inadmissible o E.) E.pert relates data' but it is based on inadmissible hearsay #bystander opinion (or accidentologists' etc% o FRE N03 says the opinion is admissible but other+ise underlying (acts are not unless the court determines that the probative value o( having the $ury hear that substantially out+eighs the danger o( the $ury hearing it and using it (or its truth o -RE N0K'd) 9SES A *ICCERE", A:A"CI"R ,ES,

!hen underlying (acts are inadmissible court shall not admit them unless the danger that $ury +ill use them (or their truth instead o( (or evaluating e.pert8s opinion simply out+eighs #"O, substantially out+eighs% their probative value Harder in CRE to get the underlying (act or data in be(ore the $ury i( it is other+ise inadmissible BES- EVIDENCE RULE

FRE Rule 100E. Re<u re5e!1 $* Or " !al ,o prove the content o( a +riting' recording' or photograph' the original +riting' recording' or photograph is re-uired' e.cept as other+ise provided in these rules or by Act o( Congress) -RE 100E. Re<u re5e!1 $* Or " !al# ,o prove the content o( a +riting' recording' or photograph' the original +riting' recording' or photograph is re-uired e.cept as other+ise provided in these rules or by la+) DIFFERENCE BE-WEEN FRE / -RE0 N$!e Be#1 E% de!&e Rule6 re-uires that +hen a party see&s to prove the &$!1e!1# o( a +riting' recording' or photograph' the party must use the original +riting' recording' or photograph) Rationale# More relevant +hen there +as hand transcribing1 possibility o( mistranslation E.) Cire destroys a Persian rug) Pl testi(ies he paid ID4'444 (or rug) Insurance &no+s there is a receipt that says rug only cost I34'444) Insurance company ob$ects to Pl8s testimony that rug cost ID4'444 0 ob$ection being that receipt' not Pl8s testimony is best evidence o( the rug8s cost est evidence rule applies only +hen trying to 4r$%e 12e CON-EN-S o( a +riting' recording' or photograph I( ! has &no+ledge about the issue independent o( the +riting' he can testi(y to it and the ER does not apply o E.) ,enant testi(ies he had his (ridge repaired (or I344 and :: didn8t reimburse him o Admissible bJc even though bill may be most accurate evidence o( the cost dispute' tenant is testi(ying as to something he has &no+ledge o( independent o( the +riting ;!riting and records< is de(ined very broadly in Rule 3443 o Any outputJprintout is an original #i( you print out a letter D4 times all originals%

-2ree # 1ua1 $!# ! =2 &2 4ar1 e# are 1r, !" 1$ 4r$%e 12e &$!1e!1#O B" When the writing itself if the thing to be proved o ,ypically applies +hen litigation involves a +riting such as a contract' lease' +ill' +ritten libel' photograph or boo& *oes "O, apply +here the +riting is only evidence o( a (act #ie receipt' minutes' transcripts% o E.) ,o prove terms o( a +ritten N' la+ through the parol evidence rule' re-uires that you loo& at the +ritten N1 parties can8t $ust testi(y about +hat the N says o E.) :ibel case argue that *aily ,e.an libeled you' you have to bring in *aily ,e.an1 you can8t $ust testi(y about it)

o E.) Claim that boo& is obscene must sho+ the boo&1 ! cannot $ust testi(y as to the contents o( the boo& C" Where the writing is offered into evidence o I( the party physically o((ers a +riting in evidence' she thereby puts the terms o( the +riting in issue by as&ing the trier o( (act to (ly on it) ER applies) o "o problem +ith ! testi(ying ho+ much Persian rug cost he has personal &no+ledge so that is o&ay) He isn8t testi(ying as to the content o( a +riting7 4he fact that it happens to be memorialiJed in a receipt doesn0t matter 7 no +$R problem/ o BU- i( ! tried to use the receipt to prove the rug8s cost then it is a +riting being used to prove its contents so ER applies and the original must be produced @" 4estimony relying on the writing o ER applies +hen a ! gives testimony that totally relies upon a +riting o E.) ! testi(ies ;here is +hat !D said be(ore the Senate counsel committee< ;ho+ do you &no+< ;I read the transcript< then the best evidence rule applies o E.) ;Ho+ do you &no+ ho+ much rug cost>< ;I read the receipt< ER applies7 o !itness testi(ying as to +hat the +riting said Also applies to photographs and recordings o ,ypically photos are used (or illustrative purposes so best evidence rule doesn8t apply ! describes scene and is sho+n a photo o( scene and as&ed i( this is +hat scene loo&ed li&e not a problem o Occasionally photo used (or a di((erent purpose O((er surveillance tape to prove ho+ the ban& loo&ed during the robbery photo is used to prove the contents o( the movie O((er U0rays being o((ered (or its content1 not illustrating the doctors opinion but rather telling the doctor +hat is happening inside the body O((er testimony that a photoJmovie +as obscene E.) * charged +J do+nloading child pornography) ! comes in and says ;I loo&ed on the computer and this is +hat I sa+< ER problem and you +ould have to bring the photos in bJc ! is testi(ying as to depiction he sa+ BE.&e41 a# $12er= #e 4r$% dedA Re*er# 1$ Rule 1003-100L '#ee (el$=) FRE Rule 1003. Ad5 ## ( l 1, $* Du4l &a1e# A duplicate is admissible to the same e.tent as an original unless #3% a genuine -uestion is raised as to the authenticity o( the original or #D% in the circumstances it +ould be un(air to admit the duplicate in lieu o( the original) -RE 1003. Ad5 ## ( l 1, $* Du4l &a1e# A duplicate is admissible to the same e.tent as an original unless #3% a -uestion is raised as to the authenticity o( the original or #D% in the circumstances it +ould be un(air to admit the duplicate in lieu o( the original) DIFFERENCE BE-WEEN FRE / -RE0 "one

 *uplicates are admissible in place o( the original unless there is doubt about the authenticity o( the original #ie the Uero. copy is $ust as good as the original% *uplicate is de(ined in Rule 3443 as +ell *uplicate is a counterpart produced by the same impression as the original #eg carbon copy%' (rom the same matri.' by means o( photography' or other e-uivalent techni-ue a copy that is produced by a techni-ue that accurately reproduces the original FRE Rule 100:. Ad5 ## ( l 1, $* O12er E% de!&e $* C$!1e!1# ,he original is not re-uired' and other evidence o( the contents o( a +riting' recording' or photograph is admissible i(00 '1) Or " !al# l$#1 $r de#1r$,ed. All originals are lost or have been destroyed' unless the proponent lost or destroyed them in bad (aith1 or 'E) Or " !al !$1 $(1a !a(le. "o original can be obtained by any available $udicial process or procedure1 or '3) Or " !al ! 4$##e## $! $* $44$!e!1. At a time +hen an original +as under the control o( the party against +hom o((ered' that party +as put on notice' by the pleadings or other+ise' that the contents +ould be a sub$ect o( proo( at the hearing' and that party does not produce the original at the hearing1 or ':) C$lla1eral 5a11er#. !riting' recording' or photograph is not closely related to a controlling issue) -RE 100:. Ad5 ## ( l 1, $* O12er E% de!&e $* C$!1e!1# ,he original is not re-uired' and other evidence o( the contents o( a +riting' recording' or photograph is admissible i(6 'a) Or " !al# L$#1 $r De#1r$,ed. All originals are lost or have been destroyed' unless the proponent lost or destroyed them in bad (aith1 '() Or " !al N$1 O(1a !a(le) "o original can be obtained by any available $udicial process or procedure1 '&) Or " !al Ou1# de 12e S1a1e. "o original is located in ,e.as1 'd) Or " !al ! P$##e## $! $* O44$!e!1. At a time +hen an original +as under the control o( the party against +hom o((ered' that party +as put on notice' by the pleadings or other+ise' that the content +ould be a sub$ect o( proo( at the hearing' and that party does not produce the original at the hearing1 or 'e) C$lla1eral 8a11er#. ,he +riting' recording or photograph is not closely related to a controlling issue) DIFFERENCE BE-WEEN FRE / -RE0 -RE e.cuses nonproduction o( the original i( it is located outside ,e.as) In some situations anything can be used in place o( the original #basically (orget about ER% o I( the original is lost or destroyed' not through the part o( the proponent Original is an old document that +as routinely destroyed o I( the original is not obtainable ,he original is in Russia and you can8t get a hold o( it) Even i( you have a copy' you can use oral testimony $ust don8t care about ER o I( the original is in possession o( your opponent o Collateral matters

I( it is deals +J something not really important to litigation 0 (orget about ER

FRE 100K. Pu(l & Re&$rd# ,he contents o( an o((icial record' or o( a document authoriHed to be recorded or (iled and actually recorded or (iled' including data compilations in any (orm' i( other+ise admissible' may be proved by copy' certi(ied as correct in accordance +ith rule T4D or testi(ied to be correct by a +itness +ho has compared it +ith the original) I( a copy +hich complies +ith the (oregoing cannot be obtained by the e.ercise o( reasonable diligence' then other evidence o( the contents may be given) -RE 100K. Pu(l & Re&$rd# ,he contents o( an o((icial record or o( a document authoriHed to be recorded or (iled and actually recorded or (iled' including data compilations in any (orm' i( other+ise admissible' may be proved by copy' certi(ied as correct in accordance +ith Rule T4D or testi(ied to be correct by a +itness +ho has compared it +ith the original) I( a copy +hich complies +ith the (oregoing cannot be obtained by the e.ercise o( reasonable diligence' then other evidence o( the contents may be given) DIFFERENCE0 N$!e A certi(ied copy o( a public record may be used in lieu o( the original) Copies o( PR are o&ay bJc +e don8t +ant to re-uire parties to get the original PR and remove them (rom their property place at the ris& that they +ill be lost or damaged FRE 100L. Su55ar e# ,he contents o( voluminous +ritings' recordings' or photographs +hich cannot conveniently be e.amined in court may be presented in the (orm o( a chart' summary' or calculation) ,he originals' or duplicates' shall be made available (or e.amination or copying' or both' by other parties at reasonable time and place) ,he court may order that they be produced in court) -RE 100L. Su55ar e# ,he contents o( voluminous +ritings' recordings' or photographs' other+ise admissible' +hich cannot conveniently be e.amined in court may be presented in the (orm o( a chart' summary' or calculation) ,he originals' or duplicates' shall be made available (or e.amination or copying' or both' by other parties at a reasonable time and place) ,he court may order that they be produced in court) DIFFERENCE0 N$!e I( original is voluminous' its contents may be presented as a chart' summary' or calculation o E.) Original is (or sales (or all regions (or all times) Gou only +ant to sho+ a certain part o( sales (or a certain region at a certain time e.tract a summary and use in place o( original Opposing party must be given a reasonably opportunity to inspect and copy the original) FRE 100N. -e#1 5$!, $r Wr 11e! Ad5 ## $! $* Par1, Contents o( +ritings' recordings' or photographs may be proved by the testimony or deposition o( the party against +hom o((ered or by that party/s +ritten admission' +ithout accounting (or the nonproduction o( the original) -RE 100N. -e#1 5$!, $* Wr 11e! Ad5 ## $! $* Par1,

Contents o( +ritings' recordings' or photographs may be proved by the testimony or deposition o( the party against +hom o((ered or by that party/s +ritten admission' +ithout accounting (or the nonproduction o( the original) AU-HEN-ICA-ION FRE P01. Re<u re5e!1 $* Au12e!1 &a1 $! $r Ide!1 * &a1 $! 'a) Ge!eral 4r$% # $!0 ,he re-uirement o( authentication or identi(ication as a condition precedent to admissibility is satis(ied by evidence su((icient to support a (inding that the matter in -uestion is +hat its proponent claims) '() Illu#1ra1 $!#0 y +ay o( illustration only' and not by +ay o( limitation' the (ollo+ing are e.amples o( authentication or identi(ication con(orming +ith the re-uirements o( this rule6 #3% Aestimony of witness with !nowledge) ,estimony that a matter is +hat it is claimed to be) #D% 0onexpert opinion on handwriting) "one.pert opinion as to the genuineness o( hand+riting' based upon (amiliarity not ac-uired (or purposes o( the litigation) #?% -omparison by trier or expert witness) Comparison by the trier o( (act or by e.pert +itnesses +ith specimens +hich have been authenticated) #5% .istinctive characteristics and the li!e) Appearance' contents' substance' internal patterns' or other distinctive characteristics' ta&en in con$unction +ith circumstances) #E% =oice identification) Identi(ication o( a voice' +hether heard (irsthand or through mechanical or electronic transmission or recording' by opinion based upon hearing the voice at any time under circumstances connecting it +ith the alleged spea&er) #V% Aelephone conversations) ,elephone conversations' by evidence that a call +as made to the number assigned at the time by the telephone company to a particular person or business' i( #A% in the case o( a person' circumstances' including sel(0identi(ication' sho+ the person ans+ering to be the one called' or # % in the case o( a business' the call +as made to a place o( business and the conversation related to business reasonably transacted over the telephone) #@% Public records or reports) Evidence that a +riting authoriHed by la+ to be recorded or (iled and in (act recorded or (iled in a public o((ice' or a purported public record' report' statement' or data compilation' in any (orm' is (rom the public o((ice +here items o( this nature are &ept) #B% Ancient documents or data compilation) Evidence that a document or data compilation' in any (orm' #A% is in such condition as to create no suspicion concerning its authenticity' # % +as in a place +here it' i( authentic' +ould li&ely be' and #C% has been in e.istence D4 years or more at the time it is o((ered) #T% Process or system) Evidence describing a process or system used to produce a result and sho+ing that the process or system produces an accurate result) #34% %ethods provided by statute or rule) Any method o( authentication or identi(ication provided by Act o( Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority) -RE P01. Re<u re5e!1 $* Au12e!1 &a1 $! $r Ide!1 * &a1 $! 'a) Ge!eral Pr$% # $!) ,he re-uirement o( authentication or identi(ication as a condition precedent to admissibility is satis(ied by evidence su((icient to support a (inding that the matter in -uestion is +hat its proponent claims) '() Illu#1ra1 $!#. y +ay o( illustration only' and not by +ay o( limitation' the (ollo+ing are e.amples o( authentication or identi(ication con(orming +ith the re-uirements o( this rule6 #3% Aestimony of witness with !nowledge) ,estimony that a matter is +hat it is claimed to be)

#D% 0onexpert opinion on handwriting) "one.pert opinion as to the genuineness o( hand+riting' based upon (amiliarity not ac-uired (or purposes o( the litigation) #?% -omparison by trier or expert witness) Comparison by the trier o( (act or by e.pert +itness +ith specimens +hich have been (ound by the court to be genuine) #5% .istinctive characteristics and the li!e) Appearance' contents' substance' internal patterns' or other distinctive characteristics' ta&en in con$unction +ith circumstances) #E% =oice identification) Identi(ication o( a voice' +hether heard (irsthand or through mechanical or electronic transmission or recording' by opinion based upon hearing the voice at anytime under circumstances connecting it +ith the alleged spea&er) #V% Aelephone conversations) ,elephone conversations' by evidence that a call +as made to the number assigned at the time by the telephone company to a particular person or business' i(6 #A% in the case o( a person' circumstances' including sel(0identi(ication' sho+ the person ans+ering to be the one called1 or # % in the case o( a business' the call +as made to a place o( business and the conversation related to business reasonably transacted over the telephone) #@% Public records or reports) Evidence that a +riting authoriHed by la+ to be recorded or (iled and in (act recorded or (iled in a public o((ice' or a purported public record' report' statement' or data compilation' in any (orm' is (rom the public o((ice +here items o( this nature are &ept) #B% Ancient documents or data compilation) Evidence that a document or data compilation' in any (orm' #A% is in such condition as to create no suspicion concerning its authenticity' # % +as in a place +here it' i( authentic' +ould li&ely be' and #C% has been in e.istence t+enty years or more at the time it is o((ered) #T% Process or system) Evidence describing a process or system used to produce a result and sho+ing that the process or system produces an accurate result) #34% %ethods provided by statute or rule) Any method o( authentication or identi(ication provided by statute or by other rule prescribed pursuant to statutory authority) DIFFERENCE BE-WEEN FRE / -RE0 -RE T43#b%#?% re-uires that the court (ind the specimen to be genuine) FRE only re-uires that the specimen be authenticated #i)e)' supported by evidence su((icient to support a (inding that it is genuine' does not re-uire the court to (ind the specimen to be genuine)% Authentication6 establishing that an item is +hat it purports to be RE8E8BER0 Lust bJc something is authenticated does not mean that it cannot be challenged Conditional relevancy standard proponent o( the evidence need only introduce enough evidence (or a reasonable $uror to (ind that the item is +hat it purports to be) o I( $uror decides that it is not +hat it purports to be' idea is $uror +ill $ust disregard it) o Even i( the court does not itsel( believe that the document is +hat it purports to be) T43#b% gives e.amples (or ho+ you can authenticate something' but not an e.clusive list o Personal &no+ledge6 +riting may be authenticated by a person +ho has personal &no+ledge that the +riting is +hat it is claimed to be) E.) Plainti(( argues * improperly installed electrical e-uipment and +ants to produce a letter she got (rom *) *8s secretary testi(ies she typed letter and * signed it 0 personal &no+ledge o Circumstantial Evidence

Hand+riting :ay ! non0e.pert testimony as to the genuineness o( hand+riting based on (amiliarity and ! gained (amiliarity not (or litigation) E.pert ! may compare purported author8s hand+riting +J +riting in -uestion Luror Lury can loo& at +riting samples and decide o Re4l,-8e##a"e D$&1r !e0 I( contents o( +riting indicate it is in reply to a previous communication addressed to purposed author #;re(erring to your letter o( May BS<% o *istinctive characteristics a certain +ay o( +riting' etc Same (or phone call' phone call in responseJemail' email in response o Ancient *ocuments I( +riting is #a% in such a condition as to create no suspicion as to its authenticity1 #b% +as (ound +here it +ould have li&ely been &ept1 and #c% is at least D4 years old) o Public Records or Reports o Content I( +riting includes in(ormation &no+n only by purported author Au12e!1 &a1 $! $* O(+e&1# all tangible items must be authenticated be(ore admitted into evidence) It may be done numerous +ay o Personal &no+ledge o Circumstantial Evidence *istinctive characteristics E. (ingerprinting Chain o( custody ob$ect may be authenticated by proving an unbro&en chain o( custody (rom time it came into proponent8s possession until admission into evidence' Au12e!1 &a1 $! $* V$ &e# o I( someone calls and says ;,his is Loe< usually not enough to authenticate call is (rom Loe o Personal &no+ledge6 personal recogniHes the voice o Authentication (rom circumstantial evidence I( ! loo&ed up Loe8s number in phone boo&' called that number' and voice ans+ered ;,his is Loe< that is enough) I( she called a number +hich had Loe8s caller I* and he ans+ers ;,his is Loe< that is enough7 )Internet o Some courts are hostile to authenticating internet evidence' but really +e $ust need to go through the same steps ,o prove the HertH8s policy sho+ you +ent to HertH +ebsite' +ent to policy section' printed it' it is an accurate copy it is +hat it purports to be7

Rule P0E0 Sel*-Au12e!1 &a1 $! DIFFERENCE BE-WEEN FRE / -RE6 "one

Rule T4D lists a bunch o( things that are sel(0authenticating proponent o( such an item is not re-uired to present any evidence to establish that the item is +hat it purports to be o Commercial paper o O((icial publications o "e+spapers and periodicals o Certain public records HH0 BSel*-au12e!1 &a1 $!A $* Bu# !e## Re&$rd# RCRE T4D#33% and ,RE T4D#34%Q o Gou need an a((idavit (rom someone +ho can lay the (oundation that document -uali(ies as a R o In e((ect' allo+ing an a((idavit rather than a live0+itness to lay the (oundation o "ot really sel(0authentication since you still need a sponsoring +itness o ,his also -uali(ies the document as meeting the e.ceptions o( the hearsay e.ception PRIVILEGES

FRE K01. Ge!eral Rule E.cept as other+ise re-uired by the Constitution o( the 9nited States or provided by Act o( Congress or in rules prescribed by the Supreme Court pursuant to statutory authority' the privilege o( a +itness' person' government' State' or political subdivision thereo( shall be governed by the principles o( the common la+ as they may be interpreted by the courts of the Knited -tates in the light of reason and experience) Ho+ever' in civil actions and proceedings' +ith respect to an element o( a claim or de(ense as to +hich State la+ supplies the rule o( decision' the privilege o( a +itness' person' government' State' or political subdivision thereo( shall be determined in accordance +ith State la+) -RE K03. La=,er-Cl e!1 Pr % le"e 'a) De* ! 1 $!#. As used in this rule6 #3% A =client= is a person' public o((icer' or corporation' association' or other organiHation or entity' either public or private' +ho is rendered pro(essional legal services by a la+yer' or +ho consults a la+yer +ith a vie+ to obtaining pro(essional legal services (rom that la+yer) #D% A =representative o( the client= is6 #A% a person having authority to obtain pro(essional legal services' or to act on advice thereby rendered' on behal( o( the client' or # % any other person +ho' for the purpose of effectuating legal representation (or the client' ma&es or receives a con(idential communication +hile acting in the scope o( employment (or the client) #?% A =la+yer= is a person authoriHed' or reasonably believed by the client to be authoriHed' to engage in the practice o( la+ in any state or nation) #5% A =representative o( the la+yer= is6 #A% one employed by the la+yer to assist the la+yer in the rendition o( pro(essional legal services1 or # % an accountant +ho is reasonably necessary (or the la+yer/s rendition o( pro(essional legal services) #E% A communication is =con(idential= i( not intended to be disclosed to third persons $12er 12a! those to +hom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary (or the transmission o( the communication) '() Rule# $* Pr % le"e.

#3% Beneral rule of privilege) A client has a privilege to re(use to disclose a!d to prevent any other person (rom disclosing con(idential communications made for the purpose of facilitating the rendition of professional legal services to the client6 #A% bet+een the client or a representative o( the client and the client/s la+yer or a representative o( the la+yer1 # % bet+een the la+yer and the la+yer/s representative1 #C% by the client or a representative o( the client' or the client/s la+yer or a representative o( the la+yer' to a la+yer or a representative o( a la+yer representing another party in a pending action and concerning a matter o( common interest therein1 #*% bet+een representatives o( the client or bet+een the client and a representative o( the client1 or #E% among la+yers and their representatives representing the same client) #D% pecial rule of privilege in criminal cases) In criminal cases' a client has a privilege to prevent the la+yer or la+yer/s representative (rom disclosing any other (act +hich came to the &no+ledge o( the la+yer or the la+yer/s representative by reason o( the attorney0client relationship) '&) W2$ 8a, Cla 5 12e Pr % le"e. ,he privilege may be claimed by the client' the client/s guardian or conservator' the personal representative o( a deceased client' or the successor' trustee' or similar representative o( a corporation' association' or other organiHation' +hether or not in e.istence) ,he person +ho +as the la+yer or the la+yer/s representative at the time o( the communication is presumed to have authority to claim the privilege but only on behal( o( the client) 'd) E.&e41 $!#. ,here is no privilege under this rule6 #3% ,urtherance of crime or fraud) I( the services o( the la+yer +ere sought or obtained to enable or aid anyone to commit or plan to commit +hat the client &ne+ or reasonably should have &no+n to be a crime or (raud1 #D% -laimants through same deceased client) As to a communication relevant to an issue bet+een parties +ho claim through the same deceased client' regardless o( +hether the claims are by testate or intestate succession or by inter vivos transactions1 #?% "reach of duty by a lawyer or client) As to a communication relevant to an issue o( breach o( duty by a la+yer to the client or by a client to the la+yer1 #5% .ocument attested by a lawyer) As to a communication relevant to an issue concerning an attested document to +hich the la+yer is an attesting +itness1 or #E% 7oint clients) As to a communication relevant to a matter o( common interest bet+een or among t+o or more clients i( the communication +as made by any o( them to a la+yer retained or consulted in common' +hen o((ered in an action bet+een or among any o( the clients) FRE K01 leaves privileges to be governed by the principles o( C: as interpreted by the (ederal courts in light o( reason and e.perience) BU- FRE provides that state la+ should govern +hen state la+ supplies the substantive rule o( decision +ith respect to an element o( a claim or de(ense) !ith respect to the attorney0client privilege' (ederal common la+ is consistent +J ,RE E4?) Evidence e.cluded by privileges is never e.cluded on the grounds that it is not relevant privileges usually result in the e.clusion o( highly relevant evidence) Lusti(ications (or privileges t+o rationales o #3% Certain relationships +e +ant to (oster +hich re-uires a guarantee that communications +ill not be revealed in a courtroom1 only applies to communication0based privileges)

o #D% ased on the idea o( privacy and the right to be le(t alone) ,+o di((erent &inds o( privileges o #3% Communications privileges privileges that protect communications bet+een certain parties and certain privileges #e.) *octorJpatient' attorneyJclient% o #D% "on0communication privileges E.) Privileges against sel(0incrimination #not based on a communication%' one o( spousal privileges is non0communication based Controversy +ith (ederal rules1 Congress could not decide on privilege rules so CRE E43 $ust said privileges +ill be governed by C: as interpreted by court in light o( reason and e.perience) FRE 0 In diversity cases' the (ederal rules de(er to state la+) o I( you have a diversity case and ,U la+ is governing' ,U privilege la+ +ill govern -RE K030 :a+yer0Client Privilege 0 client has privilege to re(use to disclose and to prevent anyone else (rom disclosing con(idential communication made (or purposes o( (urthering the rendition o( pro(essional legal services Privilege applies to clients' client8s representatives' la+yer and la+yer8s representative may tal& o Common de(ense privilegeJLoint de(ense privilege i( you have t+o de(endants in criminalJcivil case +ho each have their o+n la+yer and they +ant to put (orth a common de(ense those shared communications are privileged as long as they concern a matter o( common interest to their clients concerning a pending actions Privilege depends on +hether purpose o( communication is (or rendition o( pro(essional :ERA: services o I( : is also an accountant and communication involves ta.es' not privileged1 communications giving business advice as distinct (rom legal advice not privileged) *e(inition o( ;communications< 0 privilege only protects con(idential communications o C goes to : and admits to committing crime communication o C goes to :) : as&s ;*id you do it>< and C reveals gun6 nonverbal' assertive communication o C goes to : and is covered in blood "O, a communication' unless C sho+ed up covered in blood to communicate to : that he &illed the guy ,hin& about this in the same conte.t as +hether +hen considering +hether a statement is intended as a communication or not (or hearsay then that +or&s (or AJC privilege as +ell A@C 4r % le"e ONL9 4r$1e&1# &$55u! &a1 $!3 NO- 4r$1e&1 12e u!derl, !" !*$r5a1 $!. o : represents * in tort case) * tells : he +as drun& and ran red light) C is deposed and opposing : as&s *' ;!hat did you tell : +hat happened>< O LEC,IO" 0 privileged) o Bu1 i( opposing la+yer as&s * ;!ere you drun&>< 0 * 2a# to ans+er) Cannot say ;AJC privilege< bJc C is not as&ed +hat he communicated to :1 he is as&ed +hat happened Cact that a C tells : does not insulate that in(ormation (rom discovery critical distinction o ;!hat did you tell your la+yer>< privileged o ;!hat happened>< not privileged DEFINI-IONS BLa=,erA o -RE'a)'3) person authoriHed or reasonably believed to be authoriHed to practice la+ o Communications to a ;$ailhouse la+yer< #ie guy in the ne.t cell% usually not privilege bJc no reasonable basis to believe this

o Communications bet+een C and :8s representative o( a la+yer #paralegal' secretary% are privileged bJc they are con(idential and made (or purpose o( (urthering legal services o I( : sends C to psychiatrist are those communications privileged> C not going to treatment' $ust going (or a consultation) Representative o( : is someone employed by : to assist the la+yer in rendition o( pro(essional legal services1 i( : employed psychiatrist (or rendition o( legal service then communications to psychiatrist +ill be privileged I( C never becomes a client o( the la+yer' communications still privileged) : representing an entity o Privilege covers communications bet+een C' C8s reps' : and :8s representatives o Corp can only spea& through its agent so +hich o( the corp agentsJemployees can spea& (or the C and have those communications be covered by AJC privilege> Control Rroup ,est "arro+ ban o( people considered representative o( corporate client those +ho had authority to hire : or to act on :8s advice1 usually $ust communications bet+een high0ran&ing members o( corp1 communications bet+een lo+er0level employee and : not privileged *iversi(ied industries test #Upjohn% 0 ,EUAS Communication made by employee to corp : +here employee is tal&ing bJc told to do it by a superior so : can provide legal services to the corp' then communication +ill be privileged ,RE includes ;any other person< in # % communication (rom lo+0 level employees i( made (or purpose o( obtaining legal representative (or the client is covered Problems +ith representing entity o I( the lo+ level employee tells the : that he did bad stu(( C is the corporation and the employee8s in(ormation helps the corporation you have to reveal that o : has to be care(ul not to promise A"G individuals $anitor or CEO con(identiality bJc the client is the corporation BC$!* de!1 al 1,A privilege only protects con(idential communications) o Communication is con(idential i( it is not intended to be disclosed to third persons e.cept those to +hom the disclosure is necessary (or (urtherance o( legal services E.) ,ranslator reasonably necessary E.) Child is client' but parent may be there or a brother or sister to help the transmission o( the in(ormation does "O, destroy con(identiality ut u!!e&e##ar, third persons into the room d$e# destroy con(identiality o Measured by intention I( there is an eavesdropper that does not per se destroy con(identiality ut i( : and C tal& loudly on plane +here others could easily hear their conduct could reveal intention not to &eep other people (rom hearing More careless and didn8t care +hether communication +as overheard' more li&ely court +ill (ind intention +as not to &eep communication con(idential D #1 !&1 $! (e1=ee! A@C3 =$r6-4r$du&1 4r % le"e a!d Pr$* Rule# $* Re#4$!# ( l 1,

AJC only covers communications bet+een :' C and representative (or litigation and non0 litigation based matters) !P includes communications and material prepared in preparation (or litigation o "ot limited to AJC communications1 includes statements made by third parties to :) I( : tal&s to a ! in preparation (or trial it is covered by !P' but not by AJC) o !P only arises in anticipation o( litigation or in preparation (or trial1 device to say that other side can8t use your +or& and your preparation (or trial (or his case) *istinguishes bet+een core +or& product protected (rom discovery and non0 core !P +hich may have to be disclosed to your opponent i( there is substantial need and undue hardship) :8s pro(essional obligation to maintain con(identiality under rules o( pro(essional conduct includes both privileged and unprivileged client in(ormation o 9nprivileged anything else that relates to C that : learned in the course o( or by reason o( representing the client1 e.tremely broad o Rule that &eeps :s (rom disclosing stu(( about C in the loc&er room AJC privilege does not apply in the loc&er room bJc you aren8t being compelled to tell :a+yer M9S, reveal con(idential in(ormation o I( : &no+ C is to commit a criminal or (raudulent act li&ely to result in death or substantial bodily harm o : must reveal in(o involving candor to court and in truth(ulness in statements to others E.&e41 $!# 1$ 12e A@C Pr % le"e #D% Claimants through same deceased client o E.) I( you have an ambiguous +ill and siblings (ighting over it' , may have told : something that could determine the proper devisee) Sis 3 calls : to stand to testi(y as to +hat , told him about diamonds : can tal& even though this is privileged AJC7 #?% reach o( duty by a la+yer or client o Client sues : (or malpractice and in order to de(end himsel( : needs to reveal con(idential in(o bet+een : and C) #E% Loint clients o ,+o or more people coming to : to start a business' clients have a (alling out and are in litigation) One o( them calls : to testi(y about communications bet+een $oint clients) Loint clients do not have a privilege bet+een the t+o o( them and :1 9, i( third party sues one or both o( the $oint clients' AJC privilege applies) #3% Curtherance o( crime o( (raud o -lar! case) "osy telephone operator +ho eavesdropped on phone call) Conversation not protected by AJC privilege bJc o( crimeJ(raud e.ception the part o( the communication that is a crimeJ(raud e.ception is getting rid o( the gun' a (uture crime obstruction o( $ustice7 Part about the murder is a past event and that is privileged) o Rationale# !e don8t +ant people to come to :s to get advice ho+ to commit crimes or (rauds so +e +on8t have a privilege that encourages clients to do that) -RE K0P. P2,# & a!-Pa1 e!1 Pr % le"e 'a) De* ! 1 $!#. A# u#ed ! 12 # rule0

#3% A =patient= means any person +ho consults or is seen by a physician to receive medical care) #D% A =physician= means a person licensed to practice medicine in any state or nation' or reasonably believed by the patient so to be) #?% A communication is =con(idential= i( not intended to be disclosed to third persons other than those present to (urther the interest o( the patient in the consultation' e.amination' or intervie+' or those reasonably necessary (or the transmission o( the communication' or those +ho are participating in the diagnosis and treatment under the direction o( the physician' including members o( the patient/s (amily) '() L 5 1ed Pr % le"e ! Cr 5 !al Pr$&eed !"#. ,here is !$ 42,# & a!-4a1 e!1 4r % le"e ! &r 5 !al 4r$&eed !"#) Ho+ever' a communication to any person involved in the treatment or e.amination o( alcohol or drug abuse by a person being treated voluntarily or being e.amined (or admission to treatment (or alcohol or drug abuse is not admissible in a criminal proceeding) '&) Ge!eral Rule $* Pr % le"e ! C % l Pr$&eed !"#. I! a & % l 4r$&eed !"0 #3% Con(idential communications bet+een a physician and a patient' relative to or in connection +ith any pro(essional services rendered by a physician to the patient are privileged and may not be disclosed) #D% Records o( the identity' diagnosis' evaluation' or treatment o( a patient by a physician that are created or maintained by a physician are con(idential and privileged and may not be disclosed) #?% ,he provisions o( this rule apply even i( the patient received the services o( a physician prior to the enactment o( the Medical :iability and Insurance Improvement Act' ,EU) REK) CIK) S,A,) art) 5ET4i) 'd) W2$ 8a, Cla 5 12e Pr % le"e ! a C % l Pr$&eed !". I! a & % l 4r$&eed !"0 #3% ,he privilege o( con(identiality may be claimed by the patient or by a representative o( the patient acting on the patient/s behal() #D% ,he physician may claim the privilege o( con(identiality' but only on behal( o( the patient) ,he authority to do so is presumed in the absence o( evidence to the contrary) D$&1$r-Pa1 e!1 Pr % le"e Rationale# #3% +e +ant patients to con(ide in their doctors #D% Privacy rationale6 people have privacy concerns (or their medical records -RE K0P'() o In a CIKI: proceeding' con(idential in(o bet+een doctor and patient is privileged o *RJPatient and PsychJPatient 0 d$e#!71 a44l, ! &r 5 !al &a#e#I Patient0:itigant E.ception o Pl argues * caused his bac& in$ury) * +ants P8s medical records to prove P is (a&ing it1 by bringing the la+suit' P +aives the right to his medical privilege) !hat about de(endant8s privilege> o Since * didn8t bring suit' privilege applies and P cannot get *8s medical records) UU6 In ,RE' the rule states that the privileged doesn8t apply ;+hen any party relies upon the condition as part o( the claim or de(ense)< o road e.ception +hich applies to P' *' and third persons o Ramire* negligent hiring case against hospital that a physician +as a substance abuser1 P +anted doctor8s medical records (rom his substance abuse treatment) Privilege +as claimed' but SC said P CO9:* get doctor8s records bJc the doctor8s

#not a party% condition +as an element o( P8s claim) P had to prove that this is not the &ind o( person that the hospital should have hired) o Similar to the idea +hen character is an essential part o( the claim or de(ense) :i&e +hen truth is a de(ense to the slander case or there is a negligent entrustment case and you have to prove that the person +ho the car +as entrusted to +as negligent) o -RE0 Pr % le"e d$e# !$1 a44l, * 12e 4r % le"ed &$55u! &a1 $! # 4ar1 $* 12e e##e!1 al ele5e!1 $* a &a#e $r de*e!#e. D$&1$r-Pa1 e!1 Pr % le"e a# I!1er4re1ed ! FRE CRE E43 says privileges are interpreted in light o( reason and e.perience SC loo&ed at o 1) H$= 12e #1a1e# =ere 2a!dl !" 12 # # 1ua1 $!D conventional +isdom1 SC realiHed that almost every state had some (orm o( psychotherapist0patient privilege o E) W2a1 # 12e +u#1 * &a1 $! $* #u&2 a 4r % le"e> ,hey +ant to encourage therapy and in order to do that they need to prove con(identiality1 not based on a privacy rationale Rationale may a((ect ho+ you approach e.ceptions1 I( rationale is to encourage communication' allo+ing the privilege to be +aived in some instances +ill not encourage communication I( rationale is a privacy' based on notion that on the +hole people8s private lives ought to le(t private but there are times +hen it become important enough to invade that privacy -RE K0:. Hu#(a!d W *e Pr % le"e# 'a) C$!* de!1 al C$55u! &a1 $! Pr % le"e. #3% .efinition) A communication is con(idential i( it is made privately by any person to the person/s spouse and it is not intended (or disclosure to any other person) #D% Rule of privilege) A person' +hether or not a party' or the guardian or representative o( an incompetent or deceased person' has a privilege during marriage and a(ter+ards to re(use to disclose and to prevent another (rom disclosing a con(idential communication made to the person/s spouse +hile they +ere married) #?% (ho may claim the privilege) ,he con(idential communication privilege may be claimed by the person or the person/s guardian or representative' or by the spouse on the person/s behal() ,he authority o( the spouse to do so is presumed) #5% @xceptions) ,here is no con(idential communication privilege6 #A% ,urtherance of crime or fraud) I( the communication +as made' in +hole or in part' to enable or aid anyone to commit or plan to commit a crime or (raud) # % Proceeding between spouses in civil cases) In #A% a proceeding brought by or on behal( o( one spouse against the other spouse' or # % a proceeding bet+een a surviving spouse and a person +ho claims through the deceased spouse' regardless o( +hether the claim is by testate or intestate succession or by inter vivos transaction) #C% -rime against spouse or minor child) In a proceeding in +hich the party is accused o( conduct +hich' i( proved' is a crime against the person o( the spouse' any minor child' or any member o( the household o( either spouse)

#*% -ommitment or similar proceeding) In a proceeding to commit either spouse or other+ise to place that person or that person/s property' or both' under the control o( another because o( an alleged mental or physical condition) #E% Proceeding to establish competence) In a proceeding brought by or on behal( o( either spouse to establish competence) '() Pr % le"e !$1 1$ -e#1 *, ! Cr 5 !al Ca#e. #3% Rule of privilege) In a criminal case' the spouse o( the accused has a privilege not to be called as a +itness (or the state) ,his rule does not prohibit the spouse (rom testi(ying voluntarily (or the state' even over ob$ection by the accused) A spouse +ho testi(ies on behal( o( an accused is sub$ect to cross0e.amination as provided in rule V33#b%) #D% ,ailure to call as witness) Cailure by an accused to call the accused/s spouse as a +itness' +here other evidence indicates that the spouse could testi(y to relevant matters' is a proper sub$ect o( comment by counsel) #?% (ho may claim the privilege) ,he privilege not to testi(y may be claimed by the person or the person/s guardian or representative but not by that person/s spouse) #5% @xceptions) ,he privilege o( a person/s spouse not to be called as a +itness (or the state does not apply6 #A% -ertain criminal proceedings. In proceeding in +hich person is charged +ith a crime against the person/s spouse' a member o( the household o( either spouse' or any minor) # % %atters occurring prior to marriage) As to matters occurring prior to the marriage) 8ar 1al Pr % le"eS -=$ d **ere!1 5ar 1al 4r % le"e# o #3% ,estimonial privilege6 !e +ill not compel ! to testi(y again H in a criminal case Rationale# it is not proper to ma&e ! give testimony that +ould send her H to $ail1 i( she +ants to do it then (ine but +e +on8t (orce her to BU- +e are o&ay +ith (orcing ! to testi(y against H in civil trial) Once H and ! are divorced' this privilege no longer applies) I( ! !A",S to testi(y' she can under the testimonial privilege o #D% Spousal communications Rationale# +e +ant to encourage spouses to communicate to each other Only applies to communications made during marriage' but applies in all cases civil and criminal and continues AC,ER marriage is over H can assert this privilege as +ell as ! E.&e41 $!# a"a !#1 &$55u! &a1 $!# 4r % le"e o #3% I( H and ! are discussing ho+ to commit a crime or (raud o #D% et+een spouses in civil cases i( in a divorce' it can all come out7 o #?% Crime against spouse or minor child i( one o( the spouses is charged +ith child molestation' no privilege (or spousal communications E.&e41 $!# a"a !#1 1e#1 5$! al 4r % le"e !#1a!&e# =2ere W &a! (e *$r&ed 1$ 1e#1 *, a"a !#1 H ! a &r 5 !al &a#e o "o spousal testimonial privilege +hen the * is charged +J crime against spouse H charged +ith *K against !' ! can be (orced to testi(y) o Matter occurs prior to marriage shortly be(ore rule +as dra(ted there +as a case +here a guy shoot someone' married the eye +itness' and asserted privilege1 no longer allo+ed

H9PO0 ! sees H +ipe o(( car bumper and (inds rag +ith dried blood) H tells ! that he may have been involved in hit0and0run and &illed someone) Pr calls ! to testi(y against H) o Can ! testi(y> ,raditional rule 0 ! +as incompetent to testi(y against H) #H also incompetent to testi(y against !% ! could not be (orced to testi(y) o CRE end up +J a rule that says ! may re(use to testi(y against H in a criminal case 9, i( ! +ants to testi(y' she can) o As soon as she starts revealing marital communications though' H can assert the privilege and &eep them out7

Pr$&edural I##ue# = 12 Pr % le"e# Privileges must be asserted in a timely matter or the privilege is +aived Client is responsible (or asserting the privilege it is the client8s privilege' not the attorney8s Attorney may assert it on behal( o( the client' but the attorney cannot assert it on his o+n behal( Same (or *octorJpatient 0 privilege is (or patient1 doctor may assert it on patient8s behal(' but cannot assert (or himsel( -RE K11 Wa %er $* Pr % le"e I( person voluntarily +aives or consents to its +aiver or consent to disclosure o( a signi(icant part I( you disclose part o( conversation' ho+ do you &no+ i( that part is signi(icant part or not> o Courts decide on a case0by0case privilege Holder o( the privilege must be the one to +aive it or to consent to its disclosure o I( : tal&s #+hether against MR or +ith MR i( to prevent a death or substantial bodily in$ury% 0 that is !$1 a +aiver o( privilege (or purposes o( evidentiary rule bJc client didn8t voluntarily +aive it or consent to its disclosure o Although : may tell cops about in(o to stop a crime but at trial C can assert privilege -RE K1E Pr % le"e 8a11er D #&l$#ed U!der C$54ul# $! $r W 12$u1 O44$r1u! 1, 1$ Cla 5 ,he privilege is not +aived' even though the in(ormation is out there Even though : tells cops +hat C said' C did not have opportunity to claim privilege' no +aiver Lurors should learn as little about assertions o( privilege as possible1 privilege assertion should be made outside o( the presence o( the $ury as much as possible o GR0 "o in(erence should be dra+n against a party based on the (act that the party asserted a privilege1 la+yers can8t comment on it' $udge can8t comment on it