Relevant evidence

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    1. FRE 401: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

    2. FRE 402: Relevant evidence (with some exceptions) admissible and irrelevant evidence is inadmissible.

    3. FRE 403: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

    4. Evidence Must Tend to Prove Material Issue - People v. Adamson:

      1. Rule: To be admissible, evidence must prove a material issue (related to the matter) in the light of human experience. Evidence that tends to throw light on a fact in dispute may be admitted. The weight to be given to such evidence will be determined by the jury.

      2. Evidence which by itself may not seem relevant, within totality/ chain of evidence may be probative.


    1. FRE 103: Error only when substantial right of a party is affected. Timely objection or motion to strike must be made on record stating specific grounds for objection if its not obvious.


      1. FRE 104: Court has discretion with regards to preliminary questions regarding qualifications of person to be a witness. Preliminary hearings on confessions done outside of jury’s hearing and does not subject defendant to cross-exam on other issues.

      2. FRE 104(b) Chain of custody with safeguarding if want to show changed condition or no distinctive marks.

      3. FRE 901: “Requirements for authentication or identification” admissible by sufficient evidence to support a finding that the matter in question is what its proponent claims.

        1. FRE 901(b)(4) “Ready Authentication” means distinguishing mark that witness has previously observed.

      4. Real Evidence is the original physical evidence from the incident.

      5. To Admit, generally need witness to identify, relevant object, substantially similar condition.


      1. Substantially Same Condition - Anderson v Berg:

        1. Rule: Real evidence may not be admitted over an objection when there’s no evidence that the item or condition hasn’t substantially changed since it became material to the case.

      2. Demonstrative Evidence illustrates or demonstrates the witness’ testimony (not actual things involved). Eg. Diagram or model.

        1. To admit, must testify that generally true, accurate, good or fair depiction of scene of object shown and witness is familiar with the actual thing being depicted.

      3. Test Must be Similar to actual Situation- Hall v General Motors

        1. Rule: Judge has discretion to admit a test only if test conditions are so nearly the same in substantial particulars as the actual occurrence that a fair comparison can be made. Judge decision only reviewable if clearly erroneous.

      4. Photos Should Aid/ Illustrate not stand on own - Knihal v State

        1. Rule: Photos are generally inadmissible as substantive or original evidence. They must be verified/ authenticated by some other evidence or testimony to explain and illustrate.

        2. Foundation: witness observed what is depicted, he is able to recollect observation, pictures correctly and accurately represent his independent competent knowledge.

        3. Prejudicial error here because photos were meant to be testimonial but no explanation and so opp for cross-exam.

        4. These pictures couldn’t operate on their own because they were taken an hour after shooting and may not reflect events at the time of occurance.

        5. But see US v Fadayini (p. 157): Because of advances in photography, even when one can't testify to the pictures, it may be admissible as a “silent witness.”

      5. Photos, Recordings and Videos are Mechanical Evidence

        1. FRE 104(b): Admit photos or videos through witness who testifies familiarity with the scene, basis for familiarity, recognizes scene, fair and accurate depiction. (some jurisdictions still require through photographer/ videographer, good working condition, qualified to operate, evidence is representative & not substantially altered).

      6. Day in the life of” Video - Bannister v Town of Noble, Okl.

        1. “Day in the life of” may be prejudicial and therefore, case-by-case determination based upon: fair representation of injuries’ impact on plaintiff’s day-to-day activities (limit video to ordinary activities), look to see if exaggerate injuries by virtue of being taped, court consider fact that jury will tend to give greater attention/ recollection to video than other evidence, can't cross-examine video (but if p available, takes care of that problem).

        2. Rule: When prejudicial effect (sympathy) outweighs probative value, not admissible (case by case analysis).

      7. Enhanced Tape Recording - United States v Carbone

        1. Proponent must lay foundation that tape recordings accurately reproduced conversations that took place. Then burden on opposing party to challenge accuracy.

        2. Tapes may be properly enhanced as long as authenticated.

        3. If portion of tapes inaudible, unless substantial, doesn’t invalidate its probative value.

        4. If use transcripts, explain tapes are evidence, transcripts just aid. Transcripts should be authenticated too. But judge may allow without authentication.

        5. Rule 9.01(6): If speaker identifies self, self-authenticated.

      8. Authenticating tapes: Because tapes may be tampered with, traditionally require operator’s qualifications, equipment’s working condition, custody of tape, identification of speakers, testimony of one who heard conversation to attest to tape’s accuracy as reprod.

      9. FRE 104(b): More lax approach as to whether proponent presented sufficient evid to support rational finding of authenticity.

    1. DOCUMENTS – Authentication, Best Evidence and Hearsay

      1. AUTHENTICITY (FRE Article 9, rule 901 and 902)

        1. FRE 901: A writing must be authenticated like other real evidence, unless its genuineness is admitted or no objection is raised to its admission.

        2. 901(b)(1) To authenticate, witness must have observed execution & testify to when, where, who was present, what happened, recognizes exhibit as doc and how recognize it. (can be admission by writer or witness who observed).

        3. 901(b)(2) If can't find one who witnessed execution, get witness sufficiently familiar with author’s handwriting (but lay person can't compare with other writing)

        4. 901(b)(3) Comparison by expert witness with specimens which have been authenticated. Exemplars must also be authenticated. (Trier of fact can also compare)

        5. Reply Letter Doctrine 901(b)(4): Because mail is deemed to be sufficiently reliable, if witness receives letter in response to their letter in due course of mail, letter is signed & refers to 1st letter, sufficient circ. inference of reliability.

        6. Conventional Business Writing 901(b)(4): Proper custody is sufficient authentication or if witness is familiar with business filing system, took record from right file and recognizes doc as record they took from file.

        7. Computer Records 901(b)(9): Witness testifies that business has successfully used the computer system in question and witness recognizes record as output from the computer. More strict judge may require procedure that business has developed for inserting data with safeguard to ensure accuracy, keeps computer in good working order, was in good working order when witness obtained readout.

        8. FRE 902: Self-authentication” – when risk of forgery is minimal, don’t need extrinsic authentication. Includes docs; government sealed, signed by public (or foreign) official, certified copy of public record, official publication, newspaper or periodical, tags in course of business indicating ownership, control or origin, docs with certificate of acknowledgment executed by notary or officer, commercial papers, Congressionally declared presumptive docs, docs kept in course of regular business (see 803(6))

      2. Corp. Labels not self-authenticating: Keegan v Green Giant:

        1. Can label was not self-authenticating just because had name of company. Need extrinsic evidence under 901 (such as authorship) to prove can was defendant’s.

        2. FRE 902(7)- Trade Inscriptions: Case was in 1954, but today, under this rule, it could be self-authenticating because companies rely on trademark to market product.

      1. BEST EVIDENCE (FRE Article 10)

        1. 1002: Requirement of Original - To prove the content of writing, recording, photo or other record, need the original.

        2. 1003: Duplicate (defined in 101 as exact replica by mechanical means) is admissible to the same extent as original unless genuine question of authenticity arises.

        3. 1004: Next best when originals are lost or destroyed without proponent’s bad faith, impossible to obtain original, opposing party has original and notified but didn’t produce or if record isn’t a controlling issue in case.

        4. 1005: Public Record can be certified copy or copy testified as to authenticity by comparison.

        5. 1006: Summaries are allowed if too much documentation as long as other parties have another opp to review original.

        6. 1007: Testimony or admission in record of party can be used to prove contents since against their interest.

        7. Note: All these requirements are just when proving content of writing, can use other things to prove existence because suspicion of tampering with terms. If using doc to refresh witness’ recollection, don’t need best evidence.

        8. Artwork & Best Evidence - Seiler v Lucasfilm, Ltd

          1. Best evidence rule also applies to drawings because purpose is to review objective manifestation of the intent of the parties. Since issue here was substantial similarity between p’s creation and star wars characters, want to see what he drew prior to star wars characters publicizes.

          2. Policy: We rely heavily on writings since oral testimony can alter with time and motive, so high standard for admission to prevent fraud/ inaccuracy.


    1. COMPETENCY (FRE 601, 602)

      1. 602: Must introduce evidence (can be testimony) to support that witness has personal knowledge of the matter.

      2. Eye Witness Testimony (Loftus): Exposure time, salience of event, witness’s prior expectations will affect the accuracy of his perception and memory of an event. Memory slippage, post-event occurrences, misleading information in questioning.

      3. Mentally defected Witness - Schneiderman v Interstate Transit

        1. When witness has the capacity to observe, recollect, and communicate events, even if can't remember all facts and may not comprehend all question, may be competent to testify and jury decides how much weigh to grant it.

      4. Inability to Communicate - People v White

        1. When inability to communicate so that direct is leading testimony and no opp for cross-exam, not admissible.

        2. Also, beware of possible bias of translator.

      5. Testimony of Children: State v. Michaels

        1. Kid’s testimony can be less reliable but prima facie competent. Note motive and methods (repetitive & leading questions) of coaches (kids more suggestible). May merit vior dire that child is able to observe, recollect and communicate events.

        2. May use pre-trial hearing re: investigation and exclude testimony if overly coercive or suggestive & so unreliable.

        3. Best if tape interview, open ended questions.

      6. Experts re: Unreliability of Testimony – Can testify generally to unreliability but not as to particular witness’ unreliability.

    1. OPINION AND EXPERT TESTIMONY (FRE Article 7, 803(18))

      1. 701: For lay person’s testimony, limit to rationally based inferences or opinions based upon perception & relevance.

      2. 702: For expert, give opinion based upon scientific, technical or specialized knowledge if assist trier of fact to understand issues or evidence. Expert must be qualified by knowledge, training, skill, experience, education in field. Testimony based upon reliable principals (accepted by field’s community) and facts.

      3. 703: Expert gives opinion on facts of case (data doesn’t need to be admissible evidence).

      4. 704: Can't object to expert’s opinion (jury to decide).

      5. 705: Doesn’t need to divulge facts on direct used for opin.

      6. 803(18): Hearsay exception – expert may rely upon accepted published statement, may read into evidence.

      7. Non-expert Opinion: Gladden v. State

        1. Lay person may testify to opinion as long as he observed. Need not explain on direct, but may be questioned on cross.

      8. Expert Opinion Need not be Hypothetical: Rabata v Dohner

        1. An expert may testify about ultimate facts in issue without, on direct, being posed with a hypothetical. Based upon perception of issue or evidence seen or heard and analyzed through knowledge, skill, experience or training. Expert uses facts, theory, and application to reach opinion.

        2. Reasoning: Hypos are boring and may confuse jury.

      9. Scientific, technic. or specialized knowledge: Daubert v Merrell

        1. 702 overrules Frye test, and no longer need “general acceptance” as an absolute prereq for admissibility. As long as expert has scientific knowledge which will assist jury to understand/ determine facts. Reliable and relevant.

        2. Factors to consider: Once qualify expert, then look into the following non-exclusive factors: Can theory be tested by other experts? Peer review? Acceptable rate of error? Established standards? General acceptance?

      10. IM Winkel: Frye required theory accepted by community. FRE made judge ensure only that “scientific knowledge” is the product of sound scientific methodology (some jurisdictions still Frye).


    1. 611: a. Court controls mode and order of interrogating witness and presenting evidence guided by effectiveness as ascertaining truth, sensitivity to time and protect witness from harassment. b. Cross-examination limited to scope of direct and witness’ credibility. c. Direct exam shouldn’t lead witness, cross leads (may lead hostile witness, kids).

      1. Reason- want to get idea of witness knowledge and not suggest.

    2. Loftus: Misleading (factual assumption questions never allowed).

    3. Leading Questions may prejudice trial: Straub v Reading Co

      1. Leading questions may make testimony prejudicial and no opportunity for trier to establish credibility of witness.

      2. Leading questions when they suggest desired answer (or yes/no).


      1. 612: If witness uses writing to refresh memory, opposing counsel may inspect it or judge may strike testimony from the record. Present recollection refreshed.

      2. Record used only to refresh and give present memory.

      3. If looks at record and still doesn’t remember, not admiss? This is only for present recollection, right? If doesn’t remember, go to past recorded and offer into evidence for truth of matter, subject to best evidence rule (prob 8)? Read 803(5) – allowed to refresh because adopted but not admit list for

      4. Can it be written by someone other than witness? (problem 8)? I think for present recollection, ok. For past recorded, if “adopted, then should be okay too, right?

      5. 803(5): Hearsay Exception – Past recollection recorded If helps refresh witnessrecollection, can be used & read into evidence. Only received as exhibit if offered by adverse party – why? Because using as hearsay for truth of content to refute testimony?

      6. 613: Prior Statements – If requested, must show opposition. Extrinsic evidence of prior inconsistent statement not admissible unless witness has opp to explain or deny and be cross-exam.

      7. Writings to Refresh Present Memory - United States v Riccardi

        1. Doesn’t matter timing of writing as long as written when facts clear in memory. Also, document can't present evidence, only use is to refresh present memory.


      1. May lead on cross, but no misleading, argumentative, assuming facts not in evidence and conclusionary questions.

      2. Cross limited to scope of direct - Fincher v Weiner

        1. Cross may delve into credibility of witness and test his memory, perception, and ability to describe events, but cannot use for own purposes if not testified to on direct. If you want for own purpose, need to call him as own witness.

      3. Exhibits and Scope of Cross - US v Segal

        1. Scope measured by the subject matter of the direct exam and not by specific exhibits which are introduced

        2. If tape of conversation admitted to evidence and on cross only plays portion, within scope to cross on other parts of conversation. Court could refuse to play back entire recording on direct for time purposes.


      1. 607: Credibility of witness can be attacked by any party.

      2. May show inability to observe/ perceive, weakness in memory, difficulty in communicating, motive, bias, interest, subjugation to influence… anything that may effect his testimony, revealing witness’s bad character (likely to lie), self- contradiction.

    1. BIAS – Reveal compensation, personal relationship, direct bias. Can use extrinsic evidence if witness not forthcoming about relationship (403).

      1. Membership in Organization - United States v Abel

        1. Because tenets of org are to lie, steal or kill to protect one another, admissible to show bias.

        2. Judge balanced probative relevance v. prejudicial value.

    1. PRIOR CRIMES (FRE 609, cf 404)

      1. 609: Can admit extrinsic evidence of prior crimes of witness ( not defendant) if imprisonment over 1 year if probative value of credibility outweighs prejudice. If crime deals with dishonesty or false statement, regardless of jail time, admissible even for defendant (up to 10 years after release unless court determines otherwise & written notice to adverse party with time to contest). Not admissible if pardoned, annulled or rehab. Generally, not admiss. evidence of juvenile adjudication (unless necessary to prove guilt/ innocence). Appeal pendency allow conviction.

      2. Failure to File Tax Return – Cree v Hatcher

      3. When plaintiff’s expert witness’ crime didn’t show willful dishonesty, shouldn’t be admitted. 609(a)(2), not 609(a)(1) because not felony.

      4. 404: Don’t allow character proof to show propensity. Accused may offer character, and prosecution allowed to rebut. We want to allow defendant to testify is he wants and therefore, limit cross-exam on prior crimes. Can't use prior crimes to show propensity to commit crimes, only admit to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity (must give notice if prosecution plans on raising prior crimes).

      5. For witness to get prior conviction in, any felony within past 10 years. For accused, only convictions dealing with truthfulness or under 403 to intent, motive….

    1. BAD ACTS without Convictions (FRE 608, 412-415, cf FRE 404)

      1. 608: Character of witness may be attacked by reputation or opinion to show (un)truthfulness and, once attacked, can bring evidence to refute it. But, can't bring extrinsic evidence of specific instances of (un)truthfulness when witness denies (collateral).

      2. 412: Rape shield law- can't question victim’s sexual behavior except if trying to prove someone other than e caused sexual/ physical harm, prior sexual behavior with accused to show consent, if probative value outweighs harm, and if reputation is raised, may bring in evidence to counter the claim.

      3. 413: In sexual assault case, evidence of defendant’s other sexual assault crimes admiss. Require notice to defendant (despite 404(b)

        1. Allowed to admit commission of sex crime, doesn’t need to be conviction

      4. 414: In child molestation case, evid. of prior molestation admiss.

      5. 415: In civil sexual assault cases, allowed as in 413 & 414, notice.

      6. Cross Allowed Even when Accused Denies Act – People v Sorge

        1. A defendant, like any other witness, may be interrogated upon cross-x in regard to any vicious or criminal act of his life that has a bearing on his credibility as a witness.

        2. Prosecutor can't call other witness on collateral matters or bring extrinsic evidence, but even if defendant denies on direct, can ask because maybe change testimony.

        3. Defendant can pleas 5th amendment on cross

    1. REPUTATION FOR VERACITY – Use char. Witness (FRE 608, 405)

      1. 608: Character of defendant may be attacked by reputation or opinion to show (un)truthfulness and, once attacked, can bring evidence to refute it. But, can't bring extrinsic evidence of specific instances of (un)truthfulness when witness denies (collateral).

      2. 405: Use opinion/ reputation (extrinsic evidence, usually character witness) to prove character. On cross-x, can inquire into relevant specific instances of conduct. When character is an element of crime, can make proof of instances of opinion.

      3. Crim Defnt’s character at issue when testifies – State v Ternan

        1. When criminally accused takes stand on his own behalf, he is subject to putting his reputation at issue (prosecution may call character witness to testify as to his rep or his opinion of defendant). Jury must be instructed that this goes only to truthfulness & not propensity to commit crime.

    1. PRIOR STATEMENTS (FRE 613, 801(d))

      1. 613: When questioning witness about prior statements, don’t have to show it or disclose to them, but yes to opposing counsel. Use extrinsic evidence of prior inconsistent statement only if witness has opp to explain or deny & opp. party has chance to interrogate.

      2. 801(d): Prior inconsistent statement under oath or prior consistent statement made to rebut charge of lying is not hearsay. May be admitted for truth. Also not hearsay if admission made by or adopted by party or agent and is offered against the party.

      3. Application of Prior Incon.Denver City Tramway v Lomotov

        1. A witness’ denial that he made a statement justifies extrinsic evidence that he did make statement when its inconsistent with his testimony. Note that the extrinsic evidence is just to discredit witness but its hearsay and thus isn’t allowed to prove fact (here that driver was negligent). If witness made statement under oath, could be substantive.



      1. 801(c): Hearsay is an out of court statement/ assertion offered into evidence to prove the truth of the matter. Prima facie not admiss.

      2. Exceptions:

        1. Mental output: Statement as circ. evid. on state of mind

        2. Operative fact: Legal consequences flow from verbal act,

        3. Mental Input: Statemt had effect on hearer’s state of mind.

      3. Unavailability of a Witness no Exception- Leake v Hagert

        1. Absence does not excuse a hearsay statement, avoid prob by taking deposition in advance (sworn & cross-x).

        2. Policy: Want declarant there to test his ability to perceive, remember & relate. Check for bias or unreliability.

        3. Note that if defendant says it himself, its an admission. If witness says it in the defendant’s present, silent admission = adoption.

      4. Determining Operative Fact – Centl of Georgia Railwy v Reeves

        1. P testified that what dr told him gave him mental anguish. Court said its hearsay. Prof said since not to prove truth of matter but rather effect on p it should be admissible.

      5. Reporter’s Videotaped Statement – Hickey v Settlemier

        1. Words that result in things are performative. Here, words are defamatory and therefore not hearsay (can admit tape)

        2. For reporter to testify to what defendant said, that would be hearsay, offered to prove that defendant said it (questions about recollection and reliability).

        3. Declaration that asserts or reflects a state of mind is admiss. as statement uttered (not legally operative for truth).

        4. Prof skeptical about this ruling

      6. Implied Assertion/ Inferences not hearsay– Headley v Tilghman

        1. Cop testified as expert that when she picked up defendant’s phone and person said “Are you ready” it meant to sell drugs. Allowed because it was expert interpretation (reflects declarant’s belief) but doesn’t assert it.



        1. 801(d)(1)(A): Not hearsay if confront declarant with prior inconsistent statement made under oath & cross-xed.

        2. Prior Inconsistent statements as Substantive Evidence – Rowe v Farmers Insurance Co go over this case

          1. Allow PIS as substantive evidence as it may be more reliable than testimony since memory clearer & no time to contemplate consequences of statemt.

          2. FRE says only when under oath, then more reliable. But under FRE, Rowe would not be able to use PIS.

          3. Also, if under oath and subject to cross in court, can take PIS for substantive evidence.

          4. See Imwinkelreid section 5.9 for clarification

          5. 613(b) – extrinsic evidence of PIS by witness not admissible unless witness has opp to explain, but not to admission of party opponent

          6. 801(d)(2) party’s PIS offered against him,


        1. Govt Can't impeach own Witness with Non-admissible Hearsay (subterfuge) – US v Ince

          1. 607 says allowed to impeach own witness (used to not be able to since vouched for credibility).

          2. Suspicious because could just be trick to get in otherwise non-admissible hearsay (here witness told cop defendant said he shot, but when she couldn’t remember what she told cop, they couldn’t impeach her to get her statement out). She didn’t say anything against govt’s case, so no value to impeach her other than subterfuge.

          3. If own witness becomes hostile, admissible.

        2. NYCPLR 4514- If impeach with PIS, not substantive evid.

        3. Crim. Pro 60.35 and Calif vid. Code 1235 - Prior inconsistent statement only admiss against own witness if witness damages calling party and not substantive evid.

      1. PRIOR CONSISTENT STATEMENTS- FRE 801(d)(1)(B)(C): B. Admissible to rebut charge against declarant of recent fabrication or improper influence or motive or C. if identified a person after perceiving them (allowed as substantive evidence)

        1. Pre & Post Motive Prior Consistent Statmt – Tome v US

          1. Prior consistent out of court admissible if made prior to when motive arose. When state got many testimonies of allegedly abused girl speaking of abuse, it was after she had motive to lie (wanted to be in custody of mom when she made statements). Reason is then it just bolsters her statement, doesn’t refute implication of changed motive.

        2. Prior Identification Admissible Even if Witness can't identify at trial – US v Owens: Witness went into coma and couldn’t identify at trial, but pre-trial identific admiss.


      1. FRE 801(d)(2): Party’s own or adopted out of court statement or conduct inconsistent with statement in court and relevant. An authorizes, agent’s or coconspirator’s in the course of work or conspiracy are circumstantial evidence. (cf Cal Evid. 1220-1223)

      2. Assertive Conduct - Bill v Farm Bureau Life Insurance Co

        1. Evidence of a party’s assertive conduct may be admitted when the assertion was contrary to the party’s current position., is useful at trial and relevant to adversary

        2. P testified in court that knew of no reason son would kill himself, so allowed to bring in admission that when physician asked p if he had any doubt that his son committed suicide, p shook his head.

        3. P can clarify on cross-x and jury can interpret what p meant by shaking his head, not up to physician to interpret.

      3. Silence: May be admission if party was present and capable of hearing and understanding, physically and mentally capable of denying, opp and motive to deny where reasonable person would.

      4. Nonassertive Conduct: A party’s nonassertive conduct may be a basis for inferring an admission. Can be concealing evidence, resisting arrest, fleeing crime scene. But plea bargains or corrective measures cannot be admitted as admissions.

      5. Agency Doesn’t Require Personal Knowledge - Mahlandt v Wild Canid Survival & Research Center, Inc

        1. Must prove agency by other evidence, admission must be relevant and made with in scope of agency.

        2. Vicarious statement neednt even be adopted by employer.

        3. Declarant didn’t actually see wolf attack plaintiff.

        4. Party doesn’t have to have personal knowledge for statement to be admission. Theory is that party wont make statements against interest unless satisfied with its truth.

      6. Use of Coconspirator’s Statement to Prove Conspiracy- Bourjaily v US

        1. 801(d)(2)(E)Must prove conspiracy existed, statement must be made during and in furtherance of conspiracy.

        2. Held court can accept statements themselves to prove conspiracy existed. FRE and cali law require independent corroborating evidence (Glasser case and Cal 1223).

      7. Inati – Admissions are verbal act in furtherance of conspiracy.


      1. Confrontation Clause, in criminal case, defendant is entitled to confront testimony against him to test competence and cross-x.

      2. Art. VIII “Confrontation and Due Process in Supp: Public policy considerations and necessity recognize exceptions of dying declarations and testimonial evidence of unavailable witness.

      3. Rule: If declarant is unavailable and defendant had opp to cross examine, exception to hearsay and its admissible.


      1. 804(a): Unavailable means privileged from testifying, refuses, lack of memory, dead, mentally ill…, can find him.


      1. FRE 804(b)(3): Admissible if, when made, so contrary to declarant’s interest that a reasonable person would only say such a thing if it were true. If it makes declarant liable and exculpates accused, need corroborating evidence to make it trustworthy.

      2. Declarant Deceased – Cole v Cole

        1. Decedent’s declaration against his pecuniary interest is admissible (even though offered by widow with incentive).

      3. Penal Interest – People v Brown

        1. Admissions against one’s penal interest are sufficiently trustworthy (here, declarant said took gun used against defendant to rob a bank. Cop allowed to testify to statemnt.

      4. Exclude Testimonial Evid w/o cross x: Crawford v Washington

        1. Testimonial statements of witnesses absent from trial admissible only where the declarant is unavailable and only where the defendant has had prior opportunity to cross-x.

        2. Statements made by a declarant that are testimonial (with an eye towards litigation) and are not subject to cross-x violate defendant’s right to confront witness against him (6th Amendment). Statements excluded bc untrustworthy.

        3. Note – only for criminal cases!!!


      1. FRE 804(b)(1): Testimony offered at hearing or proceeding with opportunity for party against whose interest to impeach is admiss.

      2. Reported Testimony of Deceased Witness – Gaines v Thomas

        1. Reported testimony is transcript of testimony from former deposition, hearing or trial.

        2. Rule: If opposing party has adequate opp to cross-x, prior reported testimony admissible.

        3. Defendant in this case was p in another one in which Byars testifies and then dies. Now use his testimony against defendant (who was p when Byars originally testified).

      3. Similar Motive Test – US v DiNapoli

        1. Test: Whether party takes the same side on the issue and whether they had a substantially similar degree of interest in prevailing on the issue in the prior proceeding.

        2. Here, prosecution had lesser interest at grand jury to show witness’ statemt to be false (less probing cross) than at trial.


      1. FRE 804(b)(2): Statement made by declarant while believing his death was imminent, concerning the cause or circumstances of his believed impending death admiss in civil or homicide case.

      2. Agnostic Declarant’s Dying Dec Admiss – Wilson v State

        1. Declarants lack of belief in god goes not to admissibility of his dying declaration but to weight by trier of fact.



      1. FRE 803:(1) Present Sense impression - Even if declarant is available, a statement describing or explaining an event or condition while declarant is perceiving it or immediately after. (2) Excited Utterance – A statement related to a startling event or condition made while declarant was under stress of the excitement.

      2. Rationale: In both, no time for declarant to reflect so we assume reliable. No question of sincerity/memory, perceptn questionable.

      3. Present Sense Impression/ Excited Utterance – Coleman

        1. Because declaration was contemporaneous with the observation (that life in danger) and because of corroborating evidence (blood), statement admissible.


      1. FRE 803: (3) Declarant’s statement of then existing mental, emotional or physical condition (intent, plan, motive, design, feeling, pain, health) but not memory of belief to prove fact unless it relates to execution, revocation, identification or will. (4) Statements for purposes of medical diagnosis and describing medical history, past or present symptoms, pain or sensation or inception or general character of cause or source as long as reasonably pertinent to diagnosis or treatment.

      2. Accused’s Prior Statement of his Belief – US v DiMaria

        1. Statement of an accused to police relating to what he believed at the time is admissible (jury can decide whether to give it weight and if its credible).

      3. Patient’s Statement to Physician – US v Tome

        1. When a victim of domestic sexual abuse identifies her assailant to her physician when its reasonably pertinent to victim’s treatment or diagnosis, admissible. Statement to case worker not admiss because not for treatment or diag.

        2. what if someone goes to dr for assault case for purpose of getting dr to testify at court – testimonial prob?

      4. Evid of Intent Admiss to Prove Act – Mutual Life Ins v Hillmon

        1. Out of court evidence of declarant’s intent admissible to prove declarant did what was intended.

        2. When a person’s intention is a distinct material fact in a chain of circumstances, it is provable by contemporaneous oral or written statement.

        3. Prof said problematic because only proves intent, not act.

      5. Declaration about Another Person’s Past Conduct Are inadmissible – Shepard v US

        1. Declarations about your intentions can be used to circumstantially prove you acted on them, but declarations about your beliefs on the past aren’t reliable so inadmiss.

        2. Govt wanted to use statement decedent made to nurse that husband had poisoned her. Could have used to counter defendant’s claim that she was suicidal but not to prove husband killed her.

        3. Could this have been for purpose of medical treatment?


      1. FRE 803: (6) Records of regularly conducted activity (memo, report, record, data comp) of acts, events, conditions, opinions, diagnoses, made at or near time from person with knowledge or trasmitee, if kept in regular course of business admissible unless other reason to lack trustworthiness. (7) Evidence that matter not included in records admissible to prove nonexistence or nonoccurance if matter was of kind that would have been recorded in regular course of business unless reason for untrustworthiness. (8) Public records and reports of agency which set forth activities of office or matter observed (but not police or social work records in criminal matters), admissible for civil actions or against government in criminal matters unless untrustworthy.

      2. Note: Absence of routine raises question of accuracy

      3. Attorney Fees found in Business Records - Kennedy v LAPD

        1. Because recorded in regular course of business and nothing indicated lack of trustworthiness, admissible.

      4. Computer Loan Histories – US v Moore

        1. For computer records, doesn’t have to be programmer admitting into evidence, just someone familiar with it to say its in regular course of business.

      5. Factual Findings Include Conclusions Based upon Reported Perception – Beech Aircraft Corp v Rainey

        1. Portions of investigatory reports otherwise admissible under 803(8)(c) (regular course of business) not inadmissible because they state conclusion.

        2. Also, reporter doesn’t need to have personal knowledge.

        3. Prof said maybe not so trustworthy because state could be interested party in the outcome.


      1. FRE 803: (16) Statements in authenticated docs over 20 years old admissible (reliable- not made for trial), (20) Reputation in community before controversy as to boundaries affecting lands in comm.. or general history of significance in geographic location.

      2. Military Dictionary – Bowers v Fibreboards Corp

        1. Dictionary showing defendant’s ship docked at a certain time was admissible. Dictionary is self-authenticating as it was issued by public authority and title page announces it. It was over 20 years old and thus reliable (and would be hard to find person to testify to ship’s location back then).

      3. Question 24 is good review


      1. Constitutional Constraints – White v Illinois

        1. Don’t need to show unavailability of witness to allow hearsay especially when hearsay exceptions which allow it in ensure reliability (here excited utterances and medical treatment).

        2. Crawford would say these statements weren’t testimonial and therefore, confrontation issue doesn’t arise.

      2. Examining Pediatricians – Idaho v Wright

        1. According to Inadi and Bourjaily, hearsay against criminal defendant only allowed if declarant unavailable and its sufficiently reliable unless hearsay exception is sufficiently reliable one.

        2. Here dr sites interview with child victim (should have used medical treatment exception, instead used 807) – appeal for confrontation purposes.

        3. Crawford would say not testimonial so admissible.

      3. If time, go over q 25



      1. Math Probabilities Need Additional Supporting Proof to Meet the Preponderance Requirement – Smith v Rapid Transit, Inc.

        1. Not enough that mathematical chances somewhat favor a proposition to be proven. Need preponderance of evidence.

        2. Statistics must be supported by other evidence to meet burden of proof to establish liability.

      2. Blood Tests – State v Rolls

        1. Evidence of probabilities of physical characteristics in society as a whole is admissible to show one party’s version of the facts is correct. Here, other factors connecting defendant to crime, evidence as a whole ok.

        2. Blood on defendant’s clothes matched victim’s blood and only 5% of population shares that match.

    1. OTHER CRIMES OR BAD ACTS(cf impeachment)

      1. FRE 404: a. Evidence of a person’s character or trait isn’t admissible to prove action in conformity except: 1 offered by accused (positive) or prosecution to rebut the same or trait of victim offered by accused, evidence of the same trait of accused, 2 evidence of character of victim or of prosecution to rebut the same or in homicide cases, character of peacefulness of victim to rebut evidence that victim was aggressor, 3 evidence of character of witness only to impeach. b evidence of other crimes, wrongs, or acts is not admissible to prove character to show conformity. BUT can be admissible to show proof of motive, opportunity, intent, preparation, plan (conspiracy), knowledge, identity (same mo as other crimes), absence of mistake (to rebut entrapment claim) or accident (when accused requests, prosecution must give notice).

        1. Bad character allowed to impeach, not to show propensity

        2. This applies to criminal and some torts cases.

      2. Improper Use of Other Crimes to Show Character – Zackowitz

        1. Character isn’t an issue in criminal prosecution unless defendant raises it (prejudice outweigh probative value).

      3. Other Acts as Circumstantial Evidence of a Material Element of a Claim for Defense – Huddleston v US

        1. Proof of prior crimes, wrongs, or acts may be admitted in evidence when circumstantially relevant to a material proposition of claim or defense actually at issue.

        2. When evidence shows element (here knowledge that goods were stolen), evidence of prior act admissible if trial court finds sufficient evidence to support finding by jury by preponderance of evid that def committed the prior act.


      1. 404: See above character generally or other crimes and bad acts. Bad character generally inadmissible. Good character to refute.

      2. 405: a. When character is admiss, proof made through testimony of reputation or opinion. On cross can question specifics of conduct. b. When character is essential element of charge, claim or defense, (probative) proof of specific instances of conduct admiss.

      3. 608: Opinion or reputation of witness only admissible to show untruthfulness (impeachment) or once credibility attacked, to show truthfulness. Can't bring in extrinsic (collateral) evidence of specific conduct except on cross.

      4. Cross Character Witness on D’s Prior Arrest: Michelson v US

        1. A defendant’s character witnesses may be cross-x to test adequacy of their knowledge of defendant’s reputation. Cross-x of arrest, even if false arrest relevant to reputation.

        2. Test for admissibility of prior arrest is relevance to reputation, not crime.

      5. Accused’s Ignorance of Victim’s Past – Burgeon v State

        1. When an accused claims self-defense, it is necessary to show his state of mind when he committed the offense. Specific acts that tend to show the victim was a violent and dangerous person may be admitted only if they were known to accused when incident occurred.

        2. However, evidence of victim’s reputation may be admitted regardless of accused’s knowledge because it may tend to prove that victim was the likely aggressor.

      6. Character Evidence & Prior Acts for Sex Crimes

        1. 412: a. Rape shield laws – exclude victim’s sexual behavior. b Can offer evidence of sexual behavior of victim if proving someone else did it, of prior consensual sex between victim and proving consent, or in civil case is probative outweighs prejudice

        2. 413: Evidence of defendant’s similar commissions of sexual assault admissible (notice to defendant).

        3. 414: Evidence of defendant’s similar child molestation commissions admissible with notice to defendant.

        4. 415: In civil sexual assault cases where damages or other relief depend upon part’s commission of sex crime, prior commissions admissible with notice.

        5. Policy: To prevent lawyers from shifting focus onto victims, to protect victims from harassment and to encourage victims to report sex crimes.


      1. 406: Evidence of the habit of a person or routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witness, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity.

      2. Habit Directed at Relevant Behavior – State v Radziwil

        1. Evidence that defendant became intoxicated every weekend at a particular bar was admissible as evidence of habit to prove that defendant was intoxicated at the time of the auto collision which resulted in his conviction for manslaughter (which requires reckless disregard, drunk driving).

    1. REPAIRS

      1. 407: Can't use subsequent remedial measure as proof of negligence, culpable conduct, a defect in product or design, or need for warning or instructions. However, subsequent remedial measures are admissible to prove ownership, control or feasibility of precautionary measures if converted or to impeach.

        1. Policy: Its not an admission and want to encourage people to remedy (and not be afraid it would be admission).

      2. cf 408-411: Not admissible: Any sort of settlement agreements, paying medical expenses, pleas (unless under oath and on the record), insured or not for liability (can't be used to show negligence or wrongful action, can be used to prove agency, ownership, control, bias or prejudice).


    1. Cal Code 550: Plaintiff starts out with burden of producing evidence, once produced enough, burden shifts to defendant and so on and so forth.

    2. Policy: place burden on party trying to change status quo.

    3. Shifting Burdens – Texas Dept of Comm Affiars v Burdine

      1. P in a discrimination suit has the initial burden of proving a prima facie case of discrimination. Once established prima facie, then presumption of unlawful discrim and burden of production on defense to prove legitimate actions (would be too hard to p to prove disriminatory state of mind of defendant so burden must shift). Then burden shifts back to p to prove defendant ‘s reason not true.

      2. Policy: Presumption of legality, burden to change status quo otherwise too burdensome on defendant.

    4. Burden of Production v persuasion: Burden of persuasion must prove each element of crime. Burden of production is to produce enough evidence so that trier of fact may find for one side.

    5. Defamation (prob 29): Truth is affirmative defense to defamation, p just have to prove defamation and then defendant must prove it to be true for defense. In public official, p has burden to prove defendant knew or recklessly disregarded falsity of statement.


    1. Burden of proof is always on party bringing complaint. In different instances, burden of production or burden of persuasion may shift. Burden of proof includes burden of production and burden of persuasion. (read p. 1093-6).

    2. Due Process & the Reasonable Doubt Standard -In Re Winship

      1. Although state law requires preponderance of evidence standard for juveniles, court said since his crime would have required beyond a reasonable doubt if he were tried as adult, that is the correct standard. Crim cases always BRD.

      2. According to Patterson case, once prosecution had proven all elements BRD, for defendant to claim affirmative defense, he may have burden of persuasion as to his defense.

    3. D’s Burden of Proof for Affirmative Defense – Martin v Ohio

      1. Due Process Clause requires proof BRD of every element for conviction. Then, for defendant to assert affirmative defense, she has burden of persuasion (preponderance of evidence) for defense.

  1. PRESUMPTIONS (FRE 301, 302, Cal Code 600-670)

      1. Consider: Policy, likelihood, control of fact, convenience

    1. CIVIL CASES (FRE 301, Cal Code 630-647; 600-669)

      1. Presumption may withstand Rebuttal – O’Dea v Amodeo

        1. Statute provided presumption that when car use by a family member raises presumption that it was operated as a family car (inference of permission from dad to son to drive).

        2. When father testified that he didn’t permit son to use car, presumption disappears but inference remains (up to triers of fact to determine whether to believe father or not). If defendant would have met burden of presumption, then triers couldn’t have found him guilty.

        3. Burdine revisited: When employer offers affirmative defense, no presumption of innocence, rather may make inference of innocence or discrimination (up to trier).


      1. Generally, prosecution has burden of proof beyond a reasonable doubt as to each element of the crime. Defendant may have burden to prove an affirmative defense, issues of Due Process here.

      2. Francis v Franklin

        1. Court instructed jury that the acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.

          1. So fact that defendant pulled trigger gives presumption to intent (which’s a required element)

        2. Court found that the state may not use evidentiary presumptions that have the effect of relieving the prosecution of its burden to prove every element beyond a reasonable doubt. Inferences are ok, but presumptions violate Due Process in criminal cases.

      3. Kasozi v Uganda

        1. Court had presumed that someone in possession of stolen cattle just after stolen, presume either you stole or received stolen goods knowing they’re stolen. This court said presumption of knowledge that goods were stolen is not right, circumstantial evidence may give way to inference but not presumption.

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