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Evidence - Coggle Diagram

- - - - (2) Preserving Claim of Error (Appeal Courts):
        
        If Evidence is admitted: (1)Motion to strike or objection.
        (2)State specific ground for objection.
        If Evidence is excluded: (1)Losing party must proffer as to the value of evidence.
    - - If the court admits evidence that is admissible for one party but not the other; a timely request may be made and the court must restrict the evidence if, after review, it is not fully admissible.
    - - (1) Evidence is relevant if it has a tendency to make a fact more or less probable. (2)Evidence is relevant if constitutes a "fact of consequence" related to the cause of action.
  - - - (1)Statements made during deliberation. (2)Anything that affected the mental state of the juror. (3)Effects of decision.
        
        Exceptions to this rule include: (1)Prejudicial Information (2)Mistakes entering the verdict. (3)Outside Influences (Media).
  - - - Rule 401. Test for Relevant Evidence: Evidence is Relevant if: (1): It has tendency to make fact more or less probable. & (2)The fact is of consequence determining the action.
        
        Opening the Door Irrelevant evidence sometimes becomes relevant to rebut claims made by another party. Judges & Lawyers refer to this as Opening the Door.
  - - - The answer to these questions places each type of evidence into one of: 4 CATEGORIES OF CHARACTER EVIDENCE
        
        (1) Proof of a Witness' Propensity to Lie or Tell the Truth. (2)Proof of Conduct by Propensity. (3) Proof of Character or Reputation as Elements. (4)Proof of Other Acts for Non-Propensity Purposes
  - - - Rule 405 (a)By Reputation or Opinion.: On Cross-Examination of the Character Witness, the court may allow an inquiry into relevant specific instances of the person's conduct.
      - Rule 405 (b) By Specific Instances of Conduct. When a person's character / character trait is an essential element of a charge, claim or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.
        
        Rule 405(b) explicitly confirms that specific instances of conduct are admissible to prove character as an element of a crime, claim or defense.
      - In the courtroom. Attorneys: (1) Lay foundation. (2)Cross-examiner must have good faith belief that the incidents actually occurred. (3)May prove character with other types of evidence related to specific acts which prove the party committed a given crime. (4)Burden to prove that character is an element of the controversy.
        
        Relationship to Other Rules: Even through R404 & R405 do not bar character evidence used to prove an element, R405 must survive a R403 Analysis.
  - - - R104 asigns most preliminary questions to the judge. The judge resolves all legal issues admissibility. BUT R104 limits the judge's authority when resolving factual issues that affect whether evidence is relevant.
      - R104 recognizes the jury should resolve factual disputes of conditional relevance. Conditional Relevance refers to relevance that depends on a fact or "The evidence relevant only if the disputed fact is true."
      - If Relevant Evidence Depends on a fact:
        
        The trial judge will performs a screening function before admitting the evidence
        
        The judge will ask whether enough evidence exists that a reasonable jury could resolve the factual dispute in a manner that makes the evidence relevant.
        
        If the evidence passes that low threshold, the jury will decide the preliminary factual question.
        
        If the decision favors relevance, the jury will use that relevant evidence in deciding the case.
      - When factual issue does not affect Relevance:
        
        R104 Directes the judge to decide the factual issue without deferring to the jury.
        
        The judge will review the evidence presented by the parties, resolve any credibility issues, and decide the factual question.
        
        Based on that ruling, the judge will admit or exclude the evidence. (The jury plays no role)
      - R104(a): In General. Judge decides preliminary questions related to admissibility.
      - R104(b)Relevance that Depends on a fact. As long as some rational jury could resolve the issue, the judge will let the jury assess the credibility of the evidence.
      - R104(c) The court must conduct any hearing on a preliminary question so that the jury cannot hear it.
      - Rule104(d) By testifying on a preliminary question, a defendant in a criminal case doesn't become subject to cross-examination on other issues in the case.
      - R104(e) This rule doesnt limit a party's right to introduce evidence that is relevant to the credibility of other evidence to the jury.
  - - - The Court "MAY" exclude the evidence but the discretion to admit the evidence will still exist.
      - Prejudice must be unfair for evidence to be excluded. Unfair meaning it will tempt the jury to decide the case on grounds different from those the law demands. Evidence that supports one party over the other is not unfair, just persuasive.
      - The Unfair Prejudice, Confusion, or Delay must substantially outweigh its probative value in nature to be admissible.
      - The presence of a stipulation may affect the balance of unfair prejudice and probative value under R403
        
        Example: A district court abusing their discretion by declining a stipulation and admitting a prior conviction after a defendant offered to stipulate the conviction invoking R403 for unfair prejudice.
  - - - Principle of R404(a)(1) is that parties may not use character evidence to prove that because a person has a propensity to act a certain way, the person was more likely to act that way on a particular occassion.
      - If the evidence offered is meant to prove that the person acted in accordance with a character trait, it is propensity evidence and it will almost always be barred.
      - Prohibition of character evidence to prove propensity applies to good and bad character and it also applies to evidence offered about "any person" even nonparties and witnesses
      - Exceptions: R404(a)(1) allows propensity evidence (for witnesses) Re: truthfulness or lies under R608 &R609.
  - - - Mercy Rule- If Criminal Defendant believes that proof of his good character, or an alleged victim's bad one, would help defend his innocence, then the mercy rule weighs in favor of defendant presenting this evidence.
      - Remember: (1)Exceptions ONLY apply to Criminal Cases.
        (2)Exceptions allow only proof of pertinent character traits. (3)Subsections of R404(a)(2)* allow proof of both defendant's character and the allege victim's.
        (4)Know when defendant may introduce exception and when prosecutor can.
      - IF type of character evidence is:
        
        Pertinent to trait of Defendant, then:
        
        Defendant may offer evidence anytime and the prosecution may only offer this evidence to rebut character evidence of the same trait offered by the defendant OR to match character evidence that the defendant offered about the alleged victim.
        
        Trait of Peacefulness of alleged victim, then:
        
        The defendant would NOT be able to introduce this evidence and the prosecution may offer this evidence in a Homicide case: To rebut any evidence that alleged the victim was the first aggressor. & In other cases: To rebut character evidence that the victim was not peaceful.
        
        Other pertinent trait of alleged victim, then:
        
        The defendant would be able to offer this evidence Anytime unless barred by R412(Rape-shield law). The prosecution would be able to offer this evidence Only to rebut evidence of the same trait offered by the Defendant, & evidence must comply with R412.
      - How Can the Prosecutor Respond?
        
        If the Defendant introduces evidence of his own good character, then:
        
        The prosecutor can introduce evidence of the defendant's bad character for the same character trait.
        
        If the Defendant introduces evidence of the victim's bad character, then:
        
        The prosecutor can introduce evidence of the victim's good character for the same character trait AND evidence of the defendant's bad character for the same character trait.
        
        If the Defendant introduces evidence that the victim in a homicide case was the first aggressor, then:
        
        The prosecutor can introduce evidence of the victim's peaceful character.
  - - - R405 outlines methods of proving character traits at trial which includes the introduction of character evidence to show propensity.
      - R405 allow propensity evidence but only under narrow conditions and only by using the easiest/simplest method: Calling the witness to give opinion/reputation evidence.
      - The Defendants have a voluntary decision to introduce character evidence. However, this rule reduces the appeal of invoking R404(a)(2) because they risk devastating cross-examination.
      - Rules 405 (a) & (b) in an Example:* Criminal Defendant may attempt to show his peaceful character by presenting a witness who offers opinion/reputation testimony about his peacefulness.
        
        On Cross-Examination the prosecutor may then ask those witnesses about specific instances when the defendant was not peaceful.
        
        BUT neither party could try to prove or disprove those specific acts with additional evidence, nor could the prosecutor introduce evidence of the defendant's conviction unless the defendant took the stand as a witness.
      - R405(b) applies ONLY when character is an element of the criminal charge , civil claim, or defense. It allows proof of specific acts to show character but only when character is an element.
      - R405(a) Presents Methods of Proving Character by Reputation or Opinion. When evidence of a person's character or trait is admissible, it may be proved by testimony about reputation or testimony in the form of an opinion. On cross-examination, of character witness, court may allow an inquiry into relevant, specific instances of the person's conduct.
      - R608(a) vs. R405(a): R608(a) Controls proof of a witness' propensity to lie or tell the truth while, R405(a) governs situations in which R404(a)(2) allows parties to make propensity arguments in criminal trials.
  - - - R404(b) expands upon R404(a)(1)'s ban on character evidence used to show propensity by adding that a party may not evade this prohibition by introducing evidence of specific acts that prove character, which in turn is used to show propensity.
      - R404(b) also states that evidence of other acts may be admissible for other purposes. A judge may choose to exclude the evidence after a R403 analysis.
      - If a party can cite any purpose for character related evidence other than raising the forbidden propensity inference, Rule 404 supports admission of the evidence.
      - R404(b) applies to both criminal and civil cases.
      - R404(b) requires the prosecution to provide reasonable notice in criminal trials of its intent to introduce evidence of crimes or other acts in the manner sanctioned by this rule.
      - R404(b) lists examples of other purposes that grant admissibility: (1) Motive- Previous crime or bad act is admissible because it motivated the crime.
        (2)Plan -Common plan or scheme associated with bad act. (3)Identity- Participants of bad acts are able to identify defendants by introducing evidence of other crimes. (4)Opportunity- To prove that defendant had opportunity, prosecutor may offer evidence that defendant enjoyed access on another occasion.
        (5)Knowledge- Prior bad act shows defendant had access to safe.
        (6)Intent- Prior bad act can clarify intent for present bad act.
        (7) Any other non-propensity rule.
  - - - R406 Focuses on the distinction between Habit & Propensity.
      - R406 Defines Habit as a specific, repeated response to a particular situation; An individual who is placed in a particular situation will respond with the same specific behavior over and over again. R406 allows lawyers to present past examples of this "specific behavior" to prove that an individual behaved the same way during the incident that is the subject of litigation.
      - R406's language allows admission of habit evidence "regardless whether it is corroborated or whether there was an eye witness. So, a person can testify about her own habit even if no one else has seen her act that way.
      - R406 is silent about how to prove habit. Thus, courts allow attorneys to prove habit through both opinion testimony and specific instances of conduct.
    - - Habit is morally neutral so there is less chance of unfair prejudice. Jurors tend to act emotionally to propensity evidence.
      - Habit evidence has a higher probative value than propensity evidence.
      - To distinguish habit from propensity focus on 3 factors:
        (1)The specificity of the conduct.
        (2)Distinctiveness of the situation producing the conduct. (3)Regularity of the conduct.
        If it concerns very specific conduct that arises regularly, then it is Habit.
    - - R406 Characterizes the routine practice of an organization as habit. Corporations and institutions often have standard procedures for dealing with particular situations. These standard procedures are defined as habit by R406.
- - - - R407 applies to subsequent remedial measures. -
        It protects defendants and incentivizes them to fix dangerous conditions that are the subject of litigation without fear that the repair will constitute an admission of guilt. R407 prevents the jury from interpreting a remedial measure as an admission of fault.
        
        R407 precludes this evidence ONLY if the plaintiff uses repairs to show that the defendant was negligent or otherwise at fault. Plaintiffs may use evidence of subsequent remedial measures to prove other facts of consequence such as the feasibility of repairs. The admissibility of this evidence depends on the purpose for which a party offers the evidence.
        
        R407 holds that subsequent remedial measures are admissible if they are offered to prove any fact in consequence other than: (1)Negligence,(2)Culpable Conduct,(3)Defect,(4)Warning.
        
        R407 applies to any type of action regardless of the underlying theory of recovery.
        
        R407 does not apply to repairs made by nonparties to the litigation.
        
        Although R407 recognizes that parties may prove subsequent remedial measures to show ownership, control, or feasibility. Those exceptions have the limit that they arise ONLY if they are disputed by the opposing party.
        
        R407 allows introduction of subsequent remedial measures for impeachment purposes.
        
        If a judge admits evidence of subsequent remedial measure for a purpose other than proving liability, the defendant can request a limiting instruction under R105. The judge must give that instruction it is timely requested. Additionally, the evidence must survive a R403 analysis to become admissible in court.
      - R408 applies to settlement negotiations. It facilitates civil settlements and negotiations by protecting settlement offers & statements made during settlement discussions from admission at trial.
        
        If those offers and settlements were admissible, parties would be reluctant to discuss their claims candidly before trial and fewer settlements would occur successfully.
        
        R408 exists to prevent juries from interpreting settlement offers as conclusive evidence of liability by shielding most of the settlement process from admission at a trial.
        
        R408 applies to ALL parties which means that parties cannot introduce any settlement negotiation evidence, not even evidence of their own offers or statements during negotiations.
        
        R408 defines compromise offers and acceptances very broadly by encompassing offers to accept; promises to accept; and any consideration as a part of the settlement.
        
        R408 protects all conduct or statements made during compromise negotiations, not just the operative offers and acceptances.
        
        Limits to R408 include: (1)For R408 to apply, the disagreement between parties must have matured into a claim & parties must dispute some aspect of the claim. If both parties agree that liability exists and also agree on the extent of the damages, R408 won't shield their discussion.
        
        R408 excludes statements & conduct made during negotiations only when a party offers evidence for:
        (1)Proving validity of a claim.
        (2)Disproving validity of a claim.
        Or (3)To impeach witness testimony through prior inconsistent statement or contradiction.
        
        R408(b) -Underscores the fact that the rule prohibits introduction of evidence for some purposes but not others. Section (b) also confirms that parties may introduce evidence from settlement negotiations for any purpose other than the forbidden ones specified in Section (a).
        
        R408 must survive a R403 analysis for evidence to be admissible.
      - R409 applies to payment of medical expenses. The rule encourages parties to pay medical expenses for people who have been injured by excluding evidence of offers to pay medical expenses as well as payments of those expenses to prove liability.
        
        Introducing evidence of offers to pay medical bills may cause unfair prejudice that substantially outweighs the probative value of the evidence.
        
        R409 is broad because it applies in ANY situation in which a party pays for medical expenses.
        
        R409 is narrow because it ONLY excludes the offer to pay or the furnishing of medical expenses.
        
        R409 bars admission of covered evidence only when offered to prove liability. If a party offers evidence of Medical payments to prove some other fact of consequence, the evidence is admissible.
        
        R409 does not bar comments that DON'T relate to Medical Expenses.
        
        Similar expenses includes fees for all kinds of medical treatments. However, R409 doesn't include lost wages, Property Damage, or other types of economic loss that don't relate to medical expenses.
        
        R409 must survive R403 analysis.
      - R410 applies to plea bargaining. It protects defendants who participate in the plea bargaining process & prevents the jury from hearing unfairly prejudicial information by shielding some pleas as well as statements made during plea discussions from admission at trial.
        
        R410 does not exclude evidence of final guilty pleas as the result of a plea bargain. Final guilty pleas result in convictions which ultimately become public records.
        
        R410 excludes evidence from both civil and criminal trials.The evidence protected arises in Criminal prosecutions but the rule bars admission of this evidence in criminal and civil trials.
        
        R410 prohibits any party from introducing evidence against the defendant who participated in the plea bargaining but allows the defendant to introduce evidence from that process against others.
        
        R410(a) has prohibitions listed under 4 categories:
        Subsection(1):Protects guilty pleas that a defendant withdraws.
        Subsection(2):Shields an unusual type of plea known as plea of nolo contendere or "no contest" by assuring that civil litigants cannot use nolo pleas for a preclusive effect.
        Subsection(3): Protects statements made during a plea bargaining process if that process produced either a withdrawn guilty plea or a plea of nolo contendere.
        Subsection(4):Shields statements made during plea bargaining when no guilty plea results, including situations in
        which the defendant initially gives to plead guilty but later
        withdraws the plea.
        
        R410(b) Establishes Two Exceptions to the Preceding Rules: (1):If a party introduces one statement from a plea bargaining session, another party may introduce additional statements from the same session when fairness requires consideration of those additional statements.
        (2):The second exception recognized by R410 is for perjury prosecutions. For this exception to apply, the defendant must have made a statement under oath, on the record, and with counsel present.
        
        Majority's Two-Tiered Approach: Under this approach, a "plea discussion" occurs if: (a)The defendant displayed "an actual subjective expectation to negotiate a plea" and
        (b)That expectation was reasonable given the totality of the objective circumstances.
        
        Defendants should consider using R403 when R410 does not apply.
      - R411 applies to liability insurance. R411 Encourages individuals and organizations to obtain liability insurance by barring evidence of a party's liability insurance.
        
        Injured parties cannot introduce evidence of the defendant's liability insurance hoping to receive a larger award. Nor can defendants attempt to escape liability by arguing that they are uninsured and would go bankrupt if forced to compensate the plaintiff. R411 tries to remove discussion of liability insurance from the courtroom.
        
        In most lawsuits, the presence or absence of insurance has very low probative value that generates unfair prejudice which is why R411 compliments R403.
        
        R411 only bars evidence of insurance if it is offered to prove negligence or some other wrongful behavior. If the evidence is relevant for some other purpose, it is admissible for that reason and the judge will give an appropriate limiting instruction.
        
        R411 applies ONLY to liability insurance, not other forms of insurance.
        
        R411 allows evidence of insurance when used for purposes other than proving liability. Such as a witness' bias; a party's knowledge; or a party's ownership of relevant property.
        
        R411 contains exceptions that parties use to introduce evidence of an opponent's liability insurance.
        
        R411 must survive a R403 analysis.
  - - - R412 is necessary because it overpowers R4040(a)(2)'s exception for propensity. Under R412, the defendant cannot offer evidence of an alleged victim's sexual reputation to prove "propensity to consent."
        
        R412 allows evidence of reputation or prior sexual acts under certain circumstances.
        
        In Criminal Cases: (1)Evidence of specific instances of sexual behavior is admissible if offered to provide an alternate explanation for physical evidence such as injuries or semen.; (2)Evidence of prior sexual conduct between the defendant and the alleged victim is admissible when offered by the prosecution for any purpose or by the defendant to prove consent; and (3)Evidence of either sexual behavior or predisposition is admissible when necessary to protect the constitutional rights of the defendant.
        
        In civil Cases: R412 allows evidence of an alleged victim's sexual behavior or predisposition only if the offering party can pass a "reverse 403 test" by showing that the probative value of the evidence substantially outweighs its unfair prejudice to the parties and harm to the alleged victim.
  - - - R413 allows prosecutors to introduce evidence of other sexual assaults committed by the defendant and to use that evidence for any purpose, including to suggest that the defendant has a propensity to commit sexual assaults.
      - R414 achieves the same result in prosecutions for child molestation: The prosecutor may introduce evidence of other molestation and argue that the defendant has a propensity to molest children.
      - R415 allows the same evidence and propensity reasoning in civil cases involving sexual assault or child molestation.
      - The prior offense of sexual assault or child molestation need not produce a formal charge or conviction; any accusation of prior conduct meeting the elements of these crimes satisfies R413-415
      - These rules must survive a R403 analysis. When the courts apply R403, it looks to: (1)The amount of time that has passed since the prior incident; (2)The reliability of the evidence relating to that prior incident; (3)The similarity between the past incident and the charged crime; and (4)Wether the government could prove its point using less prejudicial evidence.
  - - - Sequence to Examining a Witness on a Trial:
        (1)Direct Examination by attorney who called witness.
        (2)Cross-Examination by attorney for other party.
        (3)Re-direct Examination by attorney who called witness
        (4)Re-Cross Examination by attorneys for other parties. (5)Additional Rounds of Re-Direct & Re-Cross Examination.
      - R611 Mode & Order of Examining Witness & Presenting Evidence. (1).Rule gives judge discretion on what to admit. (2)Rule ensures a witness uses his own words to tell their story. (3)Leading questions are not allowed on direct examination BUT, they are allowed on cross-examination.
      - How to Apply R611: (1)Attorney calls witness to stand. (2)Witness takes oath of affirmation per R603
        (3)If opponent objects to witness' competence, the judge will address the issue under R601.
        (4)Attorney representing witness will lay the foundation that establishes witness has "personal knowledge" of the matters they will describe.
        (5)R611(c) restricts the use of leading questions during direct examination.
      - 4 Contexts in which judges most often allow leading questions on Direct Examination:
        (1)To establish Pedigree Info. such as educational background. (2)To direct witness' attention to relevant place/time.
        (3)To help witness who is hesitant, confused, or has trouble recalling.
        (4)Hostile Witness.
      - R611(b) Cross-Examination.
        (1)Leading questions are allowed.
        (2)Cross-examiner can only ask questions about issues covered in direct examination.
        (3)Purpose of cross-examination is to discredit witness' story on direct examination.
        (4)Questions relating to impeachment are always fair game on cross-examination.
      - R614 Authorizes the judge to call her own witness & to interrogate witnesses called by parties.
      - R614: (1)Entitles ALL parties to cross-examine any witness called by the judge. (2)All parties may also object to any of the judge's questions, or the competency of the witness called.
      - R614(c) Objections. A party may object to the court's calling/examination of a witness either at that time or at the next opportunity when the jury is not present.
      - R615 Governs the exclusion of witnesses from the courtroom while other witnesses are testifying. If witnesses were allowed to hear what earlier witnesses said on the stand, they might change their testimony in response to what the earlier witness said.
      - R615 (1)can be invoked by either party or judge.
        (2)Gives judge no discretion once either party makes a request to exclude witnesses, the judge must exclude them from the courtroom.
        (3)Makes exceptions for several categories of witnesses.
  - - - Document to refresh recollection can be something the witness wrote herself. Any document can be used as long as the witness states it will help her remember necessary information.
      - The attorney can use document written by someone else other than the witness as long as she (1)Doesn't remember the answer to the question. & (2)Seeing the writing will refresh her recollection.
      - R612 Gives adverse parties the right to: (1)Inspect the writing used to refresh recollection (2)Cross-Examine the witness on the writing. & (3)Introduce relevant portions of the writing into evidence.
      - Adverse party may introduce a writing used for refreshment even if the evidence would not be otherwise admissible.R612 trumps other rules of Evidence when an adverse party invokes it. The rule gives the adverse party the right to introduce the evidence for the limited purpose of assessing the witness' credibility.
      - Refreshing party may also introduce the writing into evidence but ONLY if the writing is already admissible under the rules.
      - R612: (1)outlines procedures for determining which portions of a writing to admit when only part of document relates to a witness' testimony. (2)Discusses remedies if a party refuses to produce a writing used to refresh. (3)Makes it clear that it is subject to the Jencks Act which governs discovery in Federal Criminal Trials.
      - An important step is for the witness to give back the writing after memory has been refreshed because the answer should come from the mind and not the document.
      - VOIR DIRE- can be used to discredit witness and show witness doesn't independently recall the events on the document.
  - - - Trial Lawyers have at least 10 techniques to help them rebut damaging testimony that can be invoked by both the plaintiff & the defendant.
      - R607 allows a party to discredit its own witness whenever necessary. Even when a witness makes favorable testimony.
  - - - One of the most powerful impeachment tools in a trial lawyer's tool box is to show that a witness made inconsistent statements at different times.
      - Extrinsic Evidence-Refers to any evidence other than testimony from the witness currently on the stand. The evidentiary rules allow impeachment with extrinsic evidence under some circumstances but they place more restriction on that type of impeachment.
      - Colateral Damage-Matter is relevant if to the case solely because it impeaches a witness. If evidence is both non-collateral & collateral, it is considered non-collateral even if they prove at least one fact of consequence.
      - Judges use their R403 & R611 discretion to prohibit extrinsic evidence of a prior inconsistent statement on a purely collateral matter.
      - The rules allow parties to present extrinsic evidence of prior inconsistent statements related to non-collateral matters. R613 imposes procedural requirements for this process.
      - R613 abolishes the need to warn the witness by asking them without warning about prior inconsistent statements. The rule only requires that the lawyer disclose the statement to opposing counsel immediately before the lawyer brings up the statement on cross-examination.
      - If the judge permits extrinsic evidence of a prior inconsistent statement, the party offering that evidence must give (a)The affected witness an opportunity to explain or deny the statement, & (b)opposing counsel a chance to examine the witness about the statement.
      - To introduce a statement to prove the truth of the matter asserted, a party must also comply with the hearsay restrictions and other rules. When a party uses prior inconsistent statements solely for impeachment, the judge will give the jury an instruction limiting their use of the statement.
  - - - R404(a) would prevent litigants from suggesting that a witness is a generally untruthful person. Untruthfulness is a character trait so **R404(a)(1) prohibits a party from arguing that because the witness is generally untruthful, the witness probably lied on the stand.
      - R404(a) has several exceptions: "Evidence of a witness' character may be admitted under Rules 607,608, & 609
      - R608(b)(1) establishes 4 important points:
        (1)a party may ask a witness about "specific instances of conduct" on cross-examination to suggest that the witness has an untruthful character.
        (2)Attorneys must limit these questions to actions that are probative of character for truthfulness/untruthfulness.
        (3)The judge has discretion to prevent questions cross-examining a witness about specific acts that reveal untruthful character.
        (4) R608(b) bars proof of these specific instances by extrinsic evidence.
      - To fit within R608(b)(1) acts must be: (1) "probative of the witness' character for truthfulness or untruthfulness." (2)Within good faith belief. (3)Subject to judicial discretion (4)Without the use of extrinsic evidence.
      - The cross examiner must accept whatever answer the witness gives. Opposing party cannot pursue the matter by introducing additional evidence to establish the witness' untruthful acts.
  - - - R609 applies only when a party a party uses a criminal conviction for a particular purpose: to suggest that a witness had an untruthful character.
      - R608(b) states that extrinsic evidence is admissible for a criminal conviction under R609.
      - Jury may consider conviction ONLY to asses the witness' character for truthfulness.
      - Judge retains the usual discretion under R403 to exclude a conviction if its unfair prejudice.
      - R609 Allows introduction of prior criminal convictions only against witnesses & only to impeach character for truthfulness.
      - R609(a)(1)(b) Is narrower than R403, which considers unfair prejudice to any person, because it weighs prejudicial effect ONLY on "that defendant & not on any other person.
      - R609(a)(1)(b) places the burden on the prosecutor to demonstrate that probative value outweighs prejudicial effect so that evidence of prior conviction should be admitted.
      - R609(a)(2) holds that judges have no discretion to exclude prior convictions for dishonesty when they are offered to impeach a witness.
      - R609 imposes requirement for admission of convictions that are more that 10 years old. Evidence of the conviction is only admissible if: (1)Its probative value, supported by facts & circumstances, substantially outweigh its prejudicial effect; and (2)The proponent gives reasonable written notice to adverse party of the intent to use it so that the party has a fair opportunity to contest its use.
      - A conviction that has been subject to pardons, annulments, & Certificates cannot be used for impeachment under R609.
      - Juvenile adjudication convictions are never admissible against the accused in a criminal case. but R609(d) recognizes 1 limited exception: Evidence of juvenile conviction is admissible in criminal cases when offered to impeach a witness other than the accused & when evidence is necessary to fairly determine defendant's guilt.
      - If a criminal defendant doesn't take the stand, the prosecutor wont be able to introduce evidence of defendant's prior convictions.
  - - - R608(a) Allows strategies to suggest witness' untruthful character: (1)Presenting a separate character witness to testify that the original witness has an untrustworthy character or to testify witness has good character.
      - R608(a) allows both strategies but with three important caveats: (1)Rule allows both of these strategies but ONLY allows general reputation/opinion & not specific instances of conduct for truthfulness or deceit. (2)Character witness may only offer reputation or opinion evidence about another witnesses' character for truthfulness. (3)Party may introduce evidence of witness' truthful character only after that character has been attacked.
      - Once a fact witness' character has been attacked, a party may rehabilitate that witness by offering evidence of the witness' character for truthfulness.
  - - - Cross-Examinations under R608(b)(2) consist of questions that test the basis of the character witness' knowledge or opinion.
      - If the character witness does not know about the conduct, that raises questions about the scope of his knowledge; If the witness does know about the conduct, that undercuts the contrary opinion or reputation he has expressed.
      - Cross-Examiners must have a good faith belief to support the questions they ask under R608(b)(2) & judges have the discretion to preclude these questions as unfairly prejudicial under R403.
      - The strategy supported by R608(b)(2) is difficult to use against witnesses who testify that a fact witness has an untruthful character. However, when a character witness claims that a fact witness has truthful character, this cross-examination technique can be devastating.
      - An attorney may not ask a witness on direct examination about specific instances of conduct nor may an attorney ask a character witness on direct examination about the fact witness' specific instances of conduct. However, on cross-examination the opposing counsel can ask the fact witness about his own specific instances of conduct, and on cross-examination she can also ask a character witness about the underlying fact witness' specific instances of conduct.
  - - - R610 Protects an important social interest in religious freedom. If evidence of religious beliefs is relevant to other matters, however, parties may offer the evidence for those purposes.
      - Bolstering a witness' credibility with evidence of particular religious beliefs would, by implication, discredit witnesses of other faiths.
      - R610 does not preclude evidence of religious beliefs when they are relevant to other matters such as bias, damages, or motive.
  - - - Lay witnesses are ordinary eyewitness, victims, or other participants in a controversy who may offer opinions under some circumstances. They can only testify about matters that they have directly perceived.
      - R701 outlines 3 requirements that lay witnesses must satisfy when offering an opinion: (1)The opinion must be "rationally based on the witness' perception. (2)The lay opinion must help the factfinder. (3)Lay opinions must be non-technical.
      - Non-technical as defined by R701 means that the opinion may not draw upon scientific, technical, or other specialized knowledge.
      - Examples of Lay Opinions include: qualitative description of distance, size, faces, etc...
      - Experts may have lay opinions and may testify as lay witnesses rather than qualifying as an expert. However, under those circumstances, the witness may not volunteer opinions based on their professional expertise.
  - - - An expert witness is a witness who offers: "scientific, technical, or other specialized knowledge."
      - If a judge rules that a witness' testimony invokes scientific, technical, or other specialized knowledge, then the requirements of R702 apply.
      - R702 requires that the expert testimony must help the trier of fact.
      - R702 requires that expert testimony must rest on "sufficient facts or data."
      - R702 imposes two reliability hurdles that all expert testimony must overcome: (1)The testimony must be "the product of reliable principles and methods." (2)The witness must have reliably applied the principles and methods to the facts of the case.
      - R702 is also subject to R403's balancing test.
      - R702 along with Daubert v. Merrel Dow Pharmaceuticals requires courts to serve as gatekeepers for all types of expert testimony.
      - When assessing reliability, the trial judge may apply some or all of the criteria articulate in Daubert:
        (1)Whether the theory has been tested.
        (2)Whether it has been subject to peer review and publication. & (3)Whether the technique has a recognized error rate and, if so, what that rate is.
        (4)Whether standards control use of technique.
        (5)Whether the theory or technique has been generally accepted in the relevant proffesional community.
  - - - R702 clarifies 2 points about experts: (1)A witness must be qualified before offering evidence about "scientific, technical, or other specialized knowledge." (2)The witness may establish her qualifications by pointing to a number of different factors including: knowledge, skill, experience, etc..
      - Many experts posses formal degrees in their field, but this is not a requirement of R702. There are other forms of training, experience, skill, or knowledge that can qualify someone as an expert.
      - The attorney can qualify a witness by eliciting testimony from the witness about the basis of her expertise. After the attorney offering the witness elicits her qualifications, the opposing party has a chance to voir dire the expert to test her expertise. When Voir Dire concludes, the judge decides whether to certify the witness or not.
  - - - Rules 703 & 705 codify the special relationship between an expert's opinion and the underlying data. R702 requires all experts to base their testimony on "sufficient acts or data." R703 supplements this rule by describing the kinds of data experts may use.
      - R703 holds that experts don't need to confine their testimony to matters he personally observed. Instead, experts may base opinions on facts they have been made aware of. R703 also acknowledges that an expert may offer an opinion based on inadmissible hearsay evidence, but only if experts in that field reasonably relied upon that type of information.
      - R705 compliments R703 by discussing the manner in which experts convey the data supporting their opinions. R705 allows the expert to offer an opinion without first recounting all of the underlying data.
      - R705 allows an expert to state a conclusion first, capturing and focusing the jury's attention. The witness may then explain the data that produced this conclusion.
      - R705 allows an expert to offer an opinion even if the evidence supporting that opinion is inadmissible. Since R703 allows experts to base their opinions on inadmissible evidence, it is essential to allow them to voice those opinions. Thus, R703 & R705 work together. -R703 allows experts to base their opinions on inadmissible evidence & R705 allows experts to testify about those opinions without having to state the basis for them.
      - R703 holds that an expert may not disclose inadmissible information to the jury. The court may allow the expert to disclose the otherwise inadmissible evidence if the probative value of that evidence would substantially outweigh its prejudicial effect.
      - R705 recognizes that an opposing party may want to reveal otherwise inadmissible evidence supporting an expert's testimony. The opposing party may be able to force the expert to reveal the data.
  - - - R704 abolished the rigid approach that came from the common law prohibiting witnesses from testifying about the ultimate issues in a case.
      - However, courts continue to protect provinces of the judge and the jury. Under R701 & 702, courts may exclude testimony that expresses a legal question as unhelpful. Alternatively, judges may exclude this evidence as unduly prejudicial under R403.
      - R704(b) appears to impose a more substantial limit on experts who testify about a criminal defendant's mental state.
  - - - R706 Explains the process for appointing and using a court appointed expert: (1)One of the parties petition the judge to appoint an expert, or the judge may decide to appoint one herself. (2)Having decided to appoint an expert, the judge may ask each of the parties for nominations, urge the parties to agree on an expert, or simply find her own expert. (3)Once appointed the expert must report his findings to all parties. (4)Each of the parties may also depose the expert and call the expert to testify at trial. (5)If none of the parties call the expert at trial, the judgee may call the expert herself. (6)Regardless of who called the expert, each party may cross examine the witness during trial.
      - R706(c) reflects that the trial judge decides what compensation is reasonable for the expert In criminal cases and eminent domain proceedings, the judge may use public funds to pay the expert. In all other civil cases, the parties pay the expert's cost in whatever proportion the judge deems to be fair.
      - R706(d) allows the trial judge to decide whether to tell the jury that the expert was court appointed.
      - R706(e) Clarifies that even when a court does call its own expert witness, parties may still call their own experts.
- - - - Hearsay relies on the principle that we prefer firsthand testimony to secondhand reporting because of reliability and credibility purposes.
      - The basic prohibition against hearsay is found in R802 which states that hearsay is inadmissible unless a statute, rule, or other Supreme Court rule says otherwise.
      - R801 provides the definition for hearsay which states that hearsay means a statement that: (1)The declarant does not make while testifying at the current trial or hearing; and (2)a party offers in evidence to prove the truth of the matter asserted.
      - There are 3 important parts to R801's definition: (1)Hearsay requires a statement. (2)The statement must be made by a declarant in a context other than testimony at the current trial or hearing (3)A party must offer the statement to prove the truth of the matter asserted.
      - R801 defines a declarant as the person who made the statement based on firsthand knowledge.
      - A witness is a person who testifies in the current proceeding.
      - The hearsay bar applies to any statement made by any declarant unless that declarant offers the statement while testifying in the current proceeding. Even if the witness and the declarant are the same person, any prior statements by the witness are potentially hearsay because they were not made under oath during the current proceeding.
  - - - The hearsay rules only bar out of court statements if they are offered for the truth of the matter asserted. If the proponent is trying to prove that the content of the out of court statement is true, then the statement is hearsay because secondhand reports are inherently unreliable and we have no way of testing the accuracy and truth of the out of court statement.
  - - - An Assertion is any acton undertaken by the declarant that is intended to communicate a fact. Any time a person asserts a fact, she makes a statement.
      - The key to determining whether conduct is a statement is to ask whether the actor intended to communicate information through that conduct.
  - - - The hearsay exceptions rest primarily on two principles: (1)Some secondhand statements are more reliable than others. (2)Some hearsay statements are more needed than others; without the declarant's out of court statement the fact finder would lack needed evidence.
      - Federal rules divide the hearsay exceptions into 4 categories: (1)Tow exceptions that R801(d) defines as "not hearsay" or exemptions from the rule; (2)Five R804 exceptions that apply whether a declarant is available or unavailable.& (4)a residual exception offered by R807.
      - The proponent of a hearsay statement bears the burden of proving by a preponderance of the evidence that the statement meets one of the exceptions. The trial judge determines whether the proponent has met this burden, resolving any factual issues under R104(a).
      - In criminal cases, some hearsay exceptions violate the defendant's 6th amendment right to confront the witness against him. All of the exceptions remain viable in civil cases, and the 6th Amendment affects only some exceptions in criminal trials.
  - - - R801(d)(1) first establishes two conditions that must be met to admit any statement under that subsection: (1)The declarant must testify at the trial, and (2) the declarant must be subject to cross-examination on the statement. These requirements are meant to enhance reliability.
      - If the conditions by R801(d)(1) are met, the rule recognizes three types of prior witness statements that are admissible: (1)Statements that are inconsistent with the witness' courtroom testimony, (2)Statements that are consistent with that testimony; and (3)Pretrial identifications of a person.
      - R801(d)(1)(A) exempts a witness' prior statement if the statement satisfies three conditions: (1)Is is inconsistent with the witness' current testimony; (2)It was made under penalty of perjury and (3)It occurred at a deposition or during a trial, hearing, or other proceeding.
      - **R801(d)(1)(B) contains the second type of hearsay exemption for a witness' prior statements. This exemption does not require that the witness' prior statement occurred under oath. If the prior statement is consistent with the witness' courtroom testimony, those guarantees of liability are less important.
      - R801(d)(1(B) makes clear that the jury may also consider the prior consistent statement for the truth of the matter asserted.
      - R801(d)(1(C) Allows introduction of any identification of a person, as long as the person who made the identification testifies at trial and is subject to cross-examination on the identification.
      - The witness' presence at trial does not negate the hearsay character of those prior statements. The witness' courtroom presence and availability for cross-examination, however, make these statements somewhat reliable than other forms of hearsay. **R801(d)(!) exempts some prior statements by witnesses from the hearsay ban.
  - - - R801(d)(2) includes any "statement" offered against a party. The statements may be inculpatory, exculpatory, or neutral; the tule imposes no restrictions on the content of these statements. ANY statement by a party is exempt from the hearsay rule when offered against that party.
      - R801(d)(2) allows a party to introduce any out of court statement made by an opposing party.
      - R801(d)(2) imposes only one significant limit: To qualify for this exemption, a party's statement must be offered against that party. A party cannot introduce his own out of court statement under this hearsay exemption.
      - R801(d)(2) is very broad. The rule admits every statement made directly by an opposing party, but it also does more: Subsection (B) admits any statement that the party has adopted as her own; Subsection (C) admits any statement by a person that the party has authorized to speak on that subject & Subsection (D) admits most statements made by the party's agents or employees.
      - R801(d)(2) must survive a R403 analysis.
  - - - One party may attempt to introduce the out of court statement of a party on the same side of the lawsuit. Even greater difficulties arise when one party makes an out of court statement that affects the interest of other parties on the same side of the litigation. An opponent may offer this statement against the party who made it, but the statement is not admissible against other parties. The judge will attempt to avoid this spillover effect by instructing the jury to consider this statement only with respect to the party who made it.
      - In Criminal prosecutions, introduction of one defendant's out of court statement to officers may violate 6th Amendment rights of a co-defendant. If the statement expressly implicates the codefendant, or if the redaction laves obvious blanks referring to another person, then the statement is admissible at a joint trial only if the defendant testifies in court.
      - If the declarant invokes the privilege against self discrimination, or is unavailable for other reasons, the prosecutor cannot introduce this type of extrajudicial statement. Instead, the prosecutor must sever the trials or rely upon other evidence.
      - Admitting a Defendant's Out of Court Statement in the Presence of Codefendants
        
        Is the statement independently admissible against other co-defendants?
        
        YES
        
        Statement is admissible against all defendants. No redaction or special instructions are necessary.
        
        NO
        
        Criminal Case
        
        Declarant Takes The Stand.
        
        Statement is admissible against defendant who made it. Judge will instruct jurors to ignore statement with respect to codefendants, and will redact the statement if necessary.
        
        Declarant Doesn't Take The Stand.
        
        For statements to Law Enforcement Agents, 6th Amendment requires redaction, separate trials, or exclusion of statement.
        
        Civil Case
        
        Statement is admissible against defendant who made it. Judge will instruct jurors to ignore statement with respect to codefendants, and will redact the statement if necessary.
  - - - R801(d)(2)(E) Allows a litigant to introduce the statement of one coconspirator against any other member of the conspiracy, as long as the statement was made during the course of the conspiracy and to further the joint enterprise.
      - R801(d)(2)(E) holds coconspirators accountable for statements made by any member of the conspiracy; one coconspirator cannot claim that another coconspirator's statement is unreliable.
      - The conspirator who made the statement need not be present at trial.
      - R801(d)(2)(E)Identifies 3 elements that a proponent must establish to introduce a statement under that section: (1) The statement must be made by a coconspirator. 2)The statement must occur "in furtherance of the conspiracy." & (3)The statement must also occur during the conspiracy.
      - If a statement does not satisfy the three conditions of R801(d)(2)(E), the prosecutor may be able to admit the statements under other exceptions to the hearsay rule, including the opposing party provisions in R8019d)(2).
      - R801(d)(2) establishes a standard governing the judge's preliminary determination of whether a conspiracy exists. Although the judge must consider the out of court statement when making that determination, the statement alone is not enough to establish a conspiracy. Some other evidence suggesting conspiracy must support the determination.
      - The same limit applies to determinations of authority or agency under R801(d)(2)(C) and 801(d0(2)(D). To admit statements under these exemptions, some evidence of the authorization or agency must exist other than the out of court statement.
  - - - The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
        (1)Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. (2) Excited Utterances. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
      - R803(1) imposes two conditions the define present tense impressions: (1)Exception applies only to descriptions or explanations of an event, not to more complex analyses or interpretations. (2)For a statement to qualify as a present tense impression, the declarant must make it while perceiving the event or immediately after the event. It usually provides no more than a few seconds of leeway. The time lapse must be short enough that the speaker has no time to create a lie.
      - R803(2)contains a different set of pre-requisites: (1) Declarant must speak while excited by a startling event. (subjective standard). Subjectivity of this standard relates to the rule’s underlying rationale: The excitement must be great enough that the particular declarant would have had difficulty formulating a lie while speaking. (2)An utterance must relate to the startling event. Unrelated comments are not admissible under this exception even if the declarant makes them while still excited.
      - Some statements fall within both R803(1) & R803(2), some fall in one category, and some fall in neither category.
      - "State of Mind" includes only the declarant's subjective feeling, not references to external facts that prompted those feelings. & Parties may use a declarant's state of mind as circumstantial evidence of the declarant's prior or subsequent actions.
  - - - Expressions of a current state of mind run few risks of misperception. No one else can perceive feelings more accurately than ourselves. A declarant’s statement of feeling is the most accurate perception we have of individual feelings at that moment.
      - Hearsay exceptions for state of mind appears in R803 which governs exceptions that apply regardless of the declarant’s availability.
      - The exception only covers statements about the declarant’s “then-existing” state of mind. Comments like I was miserable “last night” are not admissible under this exception.
      - The rule then lists 4 types of internal states that a declarant might describe: an emotional, sensory, or physical condition and the catch all “state of mind.” The rule seems to embrace every type of mental, emotional, or physical feeling that a declarant might describe about herself.
      - R803(3) drives this point home by offering 2 parentheticals that note specific examples of these categories ( motive, intent, plan, mental feeling, pain, and bodily health. These examples signal the rule’s application.
      - Statements of memory or belief are not admissible under this exception when they are offered to prove the fact remembered or believed.
      - Rule 803(3) adds an exception to the caveat relating to statements of memory or belief: An out of court statement of memory or belief is admissible to prove that the fact remembered or believed if that fact relates to the validity of the declarant’s will. The unavailability of the testator, combined with a desire to further that person’s intent, supports admission of these statements. In practice, this almost never arises.
      - The text of Rule 803(3) doesn’t expressly address the question of using one person’s state of mind to prove the actions of another. However, Rule 803(3) preserves Hillmon’s narrow ruling- that a declarant’s expressed intention is admissible to prove the declarant’s subsequent acts- while overturning the case’s broader holding that a declarant’s expressed intent is admissible to prove another person’s actions.
  - - - Under 803(4), a party may introduce statements like: “My stomach hurts and I feel like I am going to throw up” for the truth of the matter asserted. If the declarant made these statements to obtain medical diagnosis or treatment, in other words, a party may offer them to prove that the declarant’s stomach really did hurt.
      - This exception applies whether the declarant is available or not. The exception itself relies on 3 requirements: (1):The statement must be made for a medical diagnosis or treatment. This requirement is subjective; the patient must actually be seeking medical care. (2)The statements must be reasonably pertinent to diagnosis or treatment. This is an objective counterpart to the 1st requirement. Courts construe this condition quite broadly, assuming that medical professionals guide consultations toward pertinent facts. (3)Statements must fit within one of the three categories listed by the rule: medical history, Past or present symptoms/sensations, and reports about the inception of the condition or its general cause.
      - This exception doesn’t limit the declarant’s statements to contemporaneous expressions.
      - The rule does not include statements that assign fault or blame; courts redact those references from otherwise admissible statements.
  - - - Rule 803(5) acknowledges that these recorded collections are particularly reliable because: (1) they were made when the declarant’s memory was fresh. And (2) the declarant is available to testify in a courtroom, under oath, and subject to cross-examination about the circumstances under which she recorded the statement.
      - The exception for recorded recollection applies only when witness can no longer recall the information that was recorded. The only way to get those facts before a jury is to allow the jury to hear the out of court statement. Which justifies R803(5).
      - Unlike other Rule 803 exceptions, Rule 803(5) requires that the declarant actually be available, because the rule applies only when the declarant testifies as a witness.
      - R803(5) includes 2 parts: Part 1 specifies when a recorded collection is admissible in 3 subsections. & Part 2 explains the manner of introducing the evidence.
      - There are 6 requirements for admissibility within R803(5): (1)The rule requires the out of court statement appear in a record. Rule 101(b)(4) makes clear that records include memos, reports, or data compilation.(2)The witness testifying in court must either be the declarant who made the record or a person who saw the record and agreed that it was true. (3)The declarant must testify that she once knew about the information contained in the record, and that she made or adopted the record when she had that knowledge. (this satisfies R602’s requirement that a witness have personal knowledge of an event). (4)The witness must have made or adopted the record at a time when her knowledge was “fresh.” (5)The witness must testify that at the time she made or adopted the record, she knew that it accurately reflected the knowledge that she had. & (6)The witness must no longer recall the information contained in the record “well enough to testify fully and accurately.”
      - Because this type of statement is written, a jury may give it more weight than if the witness recalled the evidence and testified about it orally. For that reason, the second part of Rule 803(5) prevents the party offering a recorded collection from introducing the document directly into evidence as an exhibit. Instead, the party presenting the evidence must ask the witness to read the document into the record.
      - An adverse party may choose to introduce the document as an exhibit if the document revealed some unreliability in its content.
  - - - Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
      - The rule covers double hearsay , and even multiple levels of hearsay like triple hearsay, as long as each out of court statement is admissible under some hearsay exception.
      - With multiple hearsay, the courtroom witness usually lacks information about early declarants in the communication chain. Without that information it can be challenging to establish the foundation needed to admit those initial statements.
      - . A statement offered for some other purpose, such as to show the existence of a warning, is not hearsay. One out of court statement may include another statement that is offered to prove something other than the truth of its contents. The embedded statement then is, NOT hearsay. A party can introduce testimony like this by identifying an exception just for the layer that is hearsay.
      - It may be difficult to lay the foundation for the original out of court statement, because the witness testifying on the stand may not know much about the context of the original declarant's statement.
  - - - In addition to the indicia of reliability in organizational records, information in these documents is more needed than information contained in many other kinds of hearsay.
      - Rule 803(6) admits nearly every document that an organization generates in the ordinary course of “business.” The rule defines business to include any type of organization or association, whether or not conducted for profit.
      - R803(6) has 6 key elements: (1)The exception applies to any record Rule 101(b)(4) defines record expansively to include any “memorandum, report, or data compilation. (2)The exception builds upon R692’s personal knowledge requirement. Information admitted under R803(6) must have been recorded by a person with personal knowledge of the data or a person that received that information from someone else in the organization with personal knowledge. (3)The organization must have made the record in the course of a regularly conducted business activity, and the organization must have regular practice of keeping such records. (4)A qualified witness must introduce the record into evidence. (5) There is a caveat that business record is NOT admissible if the source of information for the record or the method it was acquired by indicate a lack of trustworthiness. (6)The rule defines business broadly.
      - The personal knowledge provision requires that information be recorded at or near the time the data arose. Timing is not as strict, Information contained in organizational records simply needs to be recorded within a reasonable time, as guided by the needs of the organization.
      - A Qualified Witness is the document’s custodian which is the person who maintains the record for the organization. Courts interpret this provision very broadly. Any person with the necessary knowledge to lay a proper foundation for admission of a document is qualified to introduce the document.
      - The opponent of the evidence offered bears the burden of showing the record lacks trustworthiness. Otherwise, the court will accept the records.
      - Watch out for double hearsay in connection with business records. Statements by customers & 3rd Parties are admissible only if they fall within another hearsay exception; They do not qualify under R803(6) even when they appear as a business record.
  - - - Subsection (A)(I) admits the activities of any public office. Ex: record of $ spent.
      - Subsection (A)(ii) admits records of a “matter observed” by any public agency. This subsection applies only to matters that the agency has a duty to report. Reports that exceed an agency’s authority do not fall within the exception. This language excludes information that 3rd parties provided observe and report to agencies. This subsection also excludes all records of observations made by law enforcement personnel when offered in a criminal case.
      - Subsection (A)(iii) admits factual findings from a legally authorized investigation. This is the most complex provision of Rule 803(8); there are three significant aspects to this subsection: (1)results of government investigation are not admissible against a defendant in a criminal case. (2)Courts interpret the phrase “actual findings” broadly to include the opinions and conclusions of the investigator, as well as the underlying facts. (3)The investigation must have been legally authorized to ensure reliability.
      - Rule 803(8)(B) allows an opponent to attack the admissibility of any public record on the ground that the record lacks trustworthiness.
      - This rule must survive Rule 805 when there is multiple hearsay in the documents.
      - Conclusions, inferences, & opinions are admissible when contained in the report of a public investigation. These conclusions may rest on the statements of 3rd parties without affecting admissibility under R803(8). But if a report simply repeats the statement to a 3rd party, the 3rd party statement is hearsay within hearsay, it must satisfy another hearsay exception when admissible.
  - - - The absence of a record is not hearsay because silence rarely constitutes a statement. But Rules 803(7) & 803(10) eliminate any confusion over this issue by allowing parties to show the absence of a business or public record. The requirements of these rules assure the reliability of a record's absence.
    - - The exception, however, does not encompass hearsay contained within documents; separate exceptions must support the admission of any hearsay within hearsay.
    - - Usually, an expert witness certifies the text as reliable, although the judge sometimes takes judicial notice of that fact. A party cannot introduce the text itself into evidence. Instead, the party must use the treatise while examining an expert witness.
  - - - Rule 804 establishes five exceptions that apply only if the declarant is unavailable as a witness.The judge must find that the declarant cannot or will not testify before admitting a statement under one of these exceptions.
      - Rule 804(a) outline 5 circumstances under which a declarant is considered unavailable to testify in court. A declarant is considered to be unavailable as a witness if the declarant:
        
        (1)Is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies; (2)refuses to testify about the subject matter despite a court oder to do so; (3)testifies to not remembering the subject matter;(4)Cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5)is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: (A)) the declarant’s attendance, in the case of hearsay exception under Rule 804(b)(1) or (6); or (B)the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
        
        But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
      - If a witness invokes privileges and the court agrees that the privilege shields the witness’ testimony, then subsection 804(a)(1) declares the witness unavailable.
      - If a witness invokes one of these privileges and the court agrees that the privilege shields the witness’ testimony, then subsection 804(a)(1) declares the witness unavailable. R804(a)(2) deems witnesses who refuse to testify despite a court order unavailable for purposes of that rule.
      - A witness who claims that he lacks memory about the subject matter of a previous statement is unavailable under Rule 804(a)(3).
      - A declarant is unavailable if she is dead or so physically or mentally ill that she cannot testify at the proceeding.
      - A declarant is unavailable if under subsection 804(a)(5) if a party shows that she tried to find the declarant and bring him to the hearing, but was unable to do so.
        
        The fact that a declarant is outside of a court’s jurisdiction is not enough to declare the declarant unavailable. Rule 804(a)(5) imposes two additional obligations on a party attempting to introduce the declarant’s statement: (1)The party must use and “reasonable means” in addition to serving a subpoena, to persuade the declarant to attend trial. (2)For three of the hearsay exceptions contained in Rule 804, the proponent must use reasonable means to take the declarant’s deposition if the declarant will not attend the trial.
      - Wrongdoing Caveat: After reciting these 5 types of unavailability Rule 804(a) ends with a provision meant to prevent improper behaviors by parties. A party cannot obtain a favorable out of court statement from a witness, kill the witness to prevent the recantation, and then introduce the favorable statement in court.
  - - - The party offering the former testimony must show that the declarant is unavailable.
      - R804(b)(1) Outlines four additional requirements for admitting former testimony.:(1)The testimony must have been given at a trial, hearing, or deposition. (2)The opposing party must have had an opportunity to question the declarant in the prior trial or other proceeding. (3)The opposing party’s motive in questioning the declarant in the prior hearing must have been similar to the motive the opposing party would have in cross-examining the declarant in the current trial. (4)Finally, in a criminal case, the party with the opportunity to question the declarant in the prior hearing must have been the same party as the opposing party in the current case.
      - In civil cases Rule 804(b)(1) allows a party to introduce evidence as long as the opposing party or his predecessor in interest had an opportunity and similar motive to cross-examine the witness.
      - The opposing party doesn't need to have actually conducted an examination; the opportunity suffices.
  - - - Rule804(b)(2) limits the exception in several ways: (1)The rule admits dying declarations only in civil cases and homicide prosecutions. (2)Dying declaration are only admissible if they concern the cause or circumstances of the declarant’s death.(3)The declarant must believe that death is imminent.(4)The declarant must be unavailable to testify.
      - The dying declaration exception applies to any declarant, regardless of religious beliefs.
      - This rule applies only if the declarant is unavailable.
      - This exception applies only in homicide prosecutions and civil proceedings; it does not apply to most criminal prosecutions.
      - The declarant must believe that death is imminent when he makes a statement.
      - The content of the statement must concern the cause or circumstances of the declarant’s death.
  - - - Allows the judge to admit out of court statements that were against the declarant’s interest at the time they were made. But this admission is only allowed by R804(b)(3) if the declarant is unavailable at trial.
      - To prevent abuses by either the prosecution or the defense, Rule 804(b)(3) requires corroboration in criminal trials for statements offered under that section. The party offering the statement must point to corroborating circumstances that demonstrate the trustworthiness of the third party’s alleged confession.
      - The declarant must be unavailable for the exception to apply.
      - The statement must be against the declarant’s interest “when made.” If the declarant believes a statement is against his interest at the time he makes it, the statement qualifies for the exception even if it ends up doing the declarant no harm. Conversely, if the declarant makes a statement that seems innocuous when made, the statement falls outside the exception even if the later circumstances render the statement incriminating.
      - The rule lists 3 ways that a statement can be against a declarant’s interest: It could (a)be contrary to her proprietary or pecuniary interest; (b)render invalid a claim she has against another person; or (c)expose the declarant to civil or criminal liability.
      - An objective standard govern the court’s determination of whether a statement was sufficiently against the declarant’s interest. The trial judge will ask whether a reasonable person in the declarant’s position would have falsely made the incriminating statement. The judge will take the declarant’s general circumstances into consideration, but not her personal idiosyncrasies.
      - Any statement that exposes the declarant to criminal liability is admissible in criminal case only when corroborating circumstances clearly indicate the statement’s trustworthiness.
  - - - The declarant must be unavailable.
      - The opposing party must have “wrongfully caused” or “Acquiesced” in the declarant’s unavailability.
      - The opposing party must have intended to make the declarant unavailable. If the declarant’s unavailability was an unintended consequence of the party’s wrongdoing, the exception doesn’t apply. If the party didn’t intend to prevent a witness from testifying, there is no reason to invoke the exception.
  - - - Rule 807 gives judges the flexibility by allowing them to admit hearsay that falls outside the standing exceptions, as long as the evidence has sufficient guarantees of trustworthiness and is the best available way to prove a needed fact.
      - Judges are reluctant to second-guess the existing exceptions by finding that other statements are sufficiently reliable to give to a jury.
      - The rule comes from a combination of Rule 803(24) and 804(b)(5). Judges still consult cases by these rules when considering Rule 807 because it translates the same.
      - The statement must not be specifically covered by a hearsay exception in Rule 803 or 804.
      - A statement admitted under Rule 807 must have circumstantial guarantees of trustworthiness that are equivalent to those found in the enumerated exceptions of Rule 803 and 804.
      - A statement must offer evidence of a material fact.
      - If the declarant is available, the judge will force the party to call that declarant rather than rely on R807. If the party can reasonably obtain other, equally probative evidence of the information contained in the hearsay, the judge will require the party to present that other evidence.
      - The trial judge must find that admitting the statement “will best serve the purpose of these rules and the interests of justice.”
      - Notice requirement.
  - - - Rule 806 gives parties a way to attack a declarant’s credibility, whether or not the declarant appears as a witness.
      - The rule allows parties to impeach declarants in the same manner that they impeach witnesses, using any of the tools recognized by Article IV of the rules. The attacker, in other words, may show the declarant’s bias or incapacity, offer character witness to prove the declarant’s reputation for dishonesty, or show that the declarant has been convicted of crimes admissible under Rule 609.
      - Without Rule 806, a party could not invoke any of the Article IV impeachment rules against a declarant, because those rules apply only to witnesses. But Rule 806 allows parties to impeach declarants as if they were witnesses. Once the declarant’s credibility has been attacked, a party may rehabilitate the declarant using Article VI’s tools.
      - It applies to all hearsay statements admitted under an exception, as well as statements governed by Rule 801(d)(2) (C), (D), or (E). The rules define these statements as not hearsay but they are out of court statements offered for the truth of the matter asserted, so Rule 806 includes them.
      - Rule 806 allows a party to attack a declarant’s credibility by introducing any evidence that would be admissible if the declarant had testified as a witness.
      - Once a declarant’s credibility has been attacked, the other party may rehabilitate the declarant in any way that is allowed with witnesses.
      - Rule 806 allows a party to present a declarant’s inconsistent statements without giving the declarant an opportunity to explain or deny those inconsistencies. Rule 613 imposes the latter requirement when a party impeaches a witness with prior inconsistent statements.
      - Rule 806 allows any party to impeach a hearsay declarant.
      - Rule 806 recognizes that parties sometimes use hearsay exception to avoid cross-examination of a witness. If a declarant’s out of court statement is admissible than a party can introduce that statement without subjecting the declarant to cross-examination. Under these circumstances, the opposing party should be allowed to call the declarant as a witness and cross-examine the declarant about the statement. Rule 806 allows the opposing party to do this, overriding Rule 611’s provision that the party who calls the witness usually must ask non-leading questions on direct examination.
- - - - When: (1)The statement is offered against a criminal defendant & (2)That statement is testimonial.
      - Testimonial statements are "made under circumstances which would lead an objective witness reasonably to believe the statement would be available for use at a later trial.
      - Testimonial Statements include all formal statements made during litigation & statements made to law enforcement personnel. However, statements made to law enforcement agents are not testimonial in emergency situations. if they are made for the primary purpose of aiding the victim, securing the agent's safety, or otherwise ending the emergency.
      - Prosecutors may admit out of court statements offered for a purpose other than to prove the truth of the matter asserted; these uses are not testimonial.
      - Prosecutors may also admit statements that satisfy the party-opponent exemption to the hearsay rule; defendants do not have a right to confront themselves or others who spoke for them.
      - Even if a statement is testimonial, it is still admissible if the defendant: (a)has a chance to cross-examine the declarant at trial. & (b) the declarant is unavailable but the defendant had a prior opportunity to cross-examine the declarant on the statement.
      - Statements that satisfy the dying declaration or forfeiture exceptions, are admissible as founding-era exceptions to the defendant's right to confront the witness.
      - The 6th Amendment guarantees each criminal defendant the right to be “confronted with the witness against him.”
      - Crawford v. Washington governs the 6th Amendment’s current stance on hearsay. Under Crawford a criminal defendant has the right to cross-examine any person who makes a testimonial statement against him.
      - The first point to remember about Crawford is that out of court statements must satisfy both the hearsay rule and the confrontation clause.
      - Before worrying about the constitutional analysis, check whether the out of court statement is admissible under one of the hearsay rules. Is the statement doesn’t satisfy the Federal rules, then there is no need to conduct a confrontation clause analysis.
      - • Confrontation = cross-examination
      - Prosecutor’s 6th Amendment Obligations
        
        (1)The prosecutor may introduce nontestimonial hearsay as long as those statements comply with the hearsay rules. The 6th Amendment does not limit the admission of nontestimonial hearsay. (2)The prosecutor may introduce testimonial hearsay if the statements comply with the hearsay rules, and the declarant is available as a witness. Under those circumstances, the defendant has a chance to cross-examine the declarant about the prior testimonial statement. (3)If the hearsay statement is testimonial and the declarant is unavailable at trial, the prosecutor may offer the statement only if the declarant had a prior opportunity to cross-examine the declarant.
      - Hearsay Exceptions that NEVER raise confrontation clause issues: R801(d)(1), R801(d)(2), R803(5), R803(6), R803(10), R804(b)(1), R804(b)(2),& R804(b)(3).
      - Hearsay Exceptions that USUALLY do not raise confrontation clause issues but occasionally do: R803(4), R803(7), R803(17), R803(18),
      - Hearsay Exceptions that DO raise confrontation clause issues: R803(1), R803(2), R803(3), R803(8), R803(16), R804(b)(3), R807.
      - CONFRONTATION CLAUSE ANALYSIS
        
        Is the out of court statement offered against a criminal defendant?
        
        NO-Civil cases or statement offered against the government.
        
        ADMISSIBLE under the Confrontation Clause, but double check admissibility under the hearsay rule.
        
        YES
        
        Did the defendant have a prior opportunity to cross examine the declarant about the statement?
        
        1 more item...
        
        YES
        
        Is the statement offered for the truth of the matter asserted?
        
        YES
        
        Is the statement admissible under the opposing party, dying declarations, or forfeiture exception?
        
        1 more item...
        
        NO
        
        Is the statement testimonial?
        
        2 more items...
  - - - R302 declares that when state law governs a civil claim or defense, state law also determines the effect of any presumption on that issue.
    - - R301 offers an important compliment to R302's federalism provision. R301 establishes a default principle governing presumptions in cil cases that are not governed by state law or other Federal laws.
      - The rule applies only to civil proceedings.
      - The rule creates a default principle that applies only when some other provision does not.
      - When R301 applies, most courts agree that it creates a presumption that shifts the burden of producing evidence but not the burden of proof.
      - R301 presumptions are bursting bubble presumptions.
      - The Federal rules contain no provision governing presumptions in criminal cases. Constitutional doctrine shapes the burden of proof and operation of presumption in those cases.
  - - - Some facts are so well accepted that it is not necessary to prove them in court.
      - This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
      - An adjudicative fact is one that helps prove the elements of a specific case
      - Legislative facts inform the court’s decision on a legal principle.
      - Judge applies the rule at his discretion as long as they follow the guidelines of the rule.
      - R201(b) Kinds of Facts that May be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) Is generally known within the trial court’s territorial jurisdiction; or (2)Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
      - Two-part test that adjudicative facts must pass to secure judicial notice: (1)A fact must satisfy section (b)’s general standard. (The fact must not be subject to reasonable dispute). (2)The fact must also fall within one of section (b)’s two specific categories. The fact must either be generally known within the court’s jurisdiction or it must be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.
      - R201(c) clarifies that a court may take judicial notice on its motion or at a party’s request.
      - Although R201(C) uses the word must, it does not force a court to take notice of every fact offered by a party. The party must specifically request judicial notice and proffer information supporting that request. The judge will examine the information and decide whether the facts fit the requirements of Section 201(b). If the fact satisfies the requirements, the judge must take judicial notice of the fact. Failing to do so, is an abuse of discretion that an appellate court may reverse.
      - The judge will refuse to take judicial notice if: (1)o The fact is subject to reasonable dispute OR (2)The fact is neither generally known within the territorial jurisdiction of the court, nor readily verifiable from reliable sources.
      - R201(d) states that the court may take judicial notice at any stage of the proceeding.
      - R201(e) Opportunity to be heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
      - R201(f) States that in a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
      - The opportunity to be heard is limited. The judge doesn’t have to conduct a formal hearing on the propriety of taking judicial notice; he only has to offer some opportunity to be heard. The judge has discretion to take judicial notice without giving any prior notice to the parties. If a party contests judicial notice of that fact, the judge will then hear the party’s argument. If the party persuades the judge that the judicial notice was inappropriate, the judge will withdraw his judicial notice of that fact.
      - Section (f) declares that judicially notice facts bind the jury in civil cases, but not in criminal cases. & that to protect the rights of a criminal defendant, the jury is the final arbiter of all facts in criminal cases. The jury in a criminal case has the right to reject even indisputable facts.
      - In addition to seeking judicial notice, parties may use stipulations to present undisputed facts to the jury. A stipulation doesn't need to satisfy the requirements of R201, the parties only need to agree that because of the lawsuit, they will accept a particular fact as true.
      - Stipulation bind the jury in a civil trial. In a criminal trial, a jury is free to disregard stipulated facts.
  - - - R901(a) states that the threshold for establishing authenticity is very low. It also provides a common sense definition for authenticity: The rule requires a party to show that an object or document "is what the proponent claims it is."
      - Article IX divides evidence into 2 categories: (1)Evidence that requires some kind of extrinsic information to be authenticated & *(2) Evidence that is self authenticating, so it needs no extrinsic information to establish its authenticity.
      - Parties may authenticate evidence in any manner that satisfies the general principle of R901(a)
      - All of the methods listed in R901(b) require some kind extrinsic information to authenticate the proffered evidence.
    - - The second category of evidence consists of documents that display their identity in an obvious and trustworthy manner; these documents don't need extrinsic proof of identity. R902 describes these documents as "self authenticating."
      - A document that does not fall within R902's categories is not self authenticating. Instead, it must be authenticated in a manner that satisfies R901.
    - - At common law, subscribing witnesses had to appear in court to confirm the identity of the documents they signed. R903 eliminates this cumbersome requirement in Federal trials unless the law of another jurisdiction governs a dispute and the jurisdiction requires testimony from subscribing witnesses.
  - - - The Federal rules of evidence do not codify privileges, they leave privileges to common law development in the courts.
      - R501 recognizes the constitution, federal statutes, and other federal rules create some privileges.
      - The second part of R501 directs courts to apply state law privileges whenever a claim or defense rests on state law. This language includes almost all issues in diversity actions.
      - In the essence of preserving human dignity and protecting valuable relationships, courts preclude information protected by privileges even when that information is probative, reliable, and nonprejudicial.
      - For every privilege you should know: (1) who holds the privilege and has the power to waive it. (2)When the privilege applies. (3)What information the privilege covers. & (4)Whether the privilege is absolute or qualified.
  - - - Although the client holds the privilege, his attorney often assets the privilege on his behalf. R503 outlines this process.
      - The attorney client privilege has 5 components: client, attorney, communication, confidentiality, and a purpose of facilitating professional legal advice.
      - The privilege only protects the communication itself, not the underlying facts communicated. Clients cannot use the privilege to hide documents or other items that exist independently of the attorney-client relationship.
      - The client controls the privilege and decides whether to waive it.
      - Disclosing the confidential communication to a third party waives the privilege, revealing part of the communication may waive the privilege with respect to related portions.
      - Corporate employees who satisfy the Upjohn test count as clients whose communications with counsel may qualify for the attorney client privilege. The corporation itself, however, controls the privilege; its corporate officers decide whether to waive the privilege.
      - IF a client seeks legal assistance to commit a crime or fraud, the privilege does not protect any communications.
      - A work product privilege compliments the attorney client privilege by protecting documents and other materials prepared in anticipation of litigation.
      - R502 prevents inadvertent waiver of both the attorney client privilege and work product doctrine, as long as an attorney takes reasonable steps to avoid and rectify any inadvertent disclosures.
  - - - According to R1002When litigants attempt to prove the content of a writing, recording, or photograph, the best evidence rule requires introduction of an original.
      - R1001(d) define "original" broadly and allow liberal substitution of duplicates according to R1001(e) & R1003.
      - A party may also avoid the requirement of an original by proving one of four exceptions to the best evidence rule described in R1004 or by showing the opponent has admitted the content of the writing, recording, or photograph as provided in R1007
      - If a party wants to prove the content of a public record, R1005 offers special guidance.
      - If the documents are voluminous, R1006 allows the party to introduce a summary, while giving the opponent and opportunity to examine or copy the originals or duplicates.
      - R1008 governs preliminary determinations of factual questions underlying application of the best evidence rule.
      - The rule reserves a few questions for the jury, but the judge decides most of these issues under the general standards of R104(a)
      - Compliance with the best evidence rule does not relieve a party's obligation to comply with other rules of evidence. Documents must also satisfy the rules governing authentication, hearsay or other matters.