Barbri Evidence

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1. The Funnel Course

Area
Rule
Exception

C.A.R.E.

2. Corporation Central agrees to sell Merchant (B) Permissible if asked on

Tile Company 10,000 tiles, to be delivered on cross-examination.
July 1. Corporation Central does not deliver
and Merchant Tile sues in court. Merchant Tile Prior Untruthful Acts
calls Eddie Expert to the stand and Eddie is No extrinsic evidence is al-
asked on cross examination, "Isn't it true, Mr. lowed
Expert, that you lied on your driver's license
examination 11 years ago?"
This question is:

(A) Permissible if offered as propensity char-

acter evidence.
(B) Permissible if asked on cross-examina-
tion.
(C) Impermissible since it does not concern
the substantive issues of the case.
(D) Impermissible as a violation of the best
evidence rule.

3. Is the evidence offered to prove an element of Yes, if:

a claim, cause of action, or defense? • Relevance
• Character
• Hearsay
• Privilege
• Witnesses
• Writings

4. Is the evidence offered to impeach a witness? Yes, if the evidence at-

tacks a witness's truthful-
ness or accuracy.
Stages:
• Intrinsic - cross examina-
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tion
• Extrinsic - new evidence
• Rehabilitation

5. Evidence offered to prove an element and im- EXAMPLES

peach a witness (two-way evidence). Some admissions, prior
witness statements, and
learned treatises.

6. 2 RELEVANCE Evidence that has any ten-

2.1 TYPES dency to make a fact more
Logical Relevance—The Gatekeeper or less probable than it
would be without the evi-
dence (FRE 401).
What does this really
mean?
Watch out: Evidence
might not be logically rel-
evant if it involves some
other time, event, or per-
son than the one directly
involved in the litigation.

7. Legal—Discretionary or Policy-Based—Rele- Even relevant evidence

vance may be excluded if its pro-
(Rule 403) bative value is substantial-
ly outweighed by a danger
of one or more of the fol-
lowing:
• Unfair prejudice
• Confusion of the issues
• Misleading the jury
• Undue delay
• Wasting time
• Needlessly presenting
cumulative evidence
Watch out:
(1) Uneven balancing test
in Rule 403 (prejudice,

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etc. must substantially out-
weigh probative value)
and
(2) no mention of "unfair
surprise."

8. 2.2 SIMILAR OCCURRENCES No because other acts are

General rule for other time, place, occurrence, dissimilar and misleading.
people:
exclude.

Joe slipped and fell on the way into the law

school. Joe sued the law school. Three other
people slipped on the way into the law school
that week. Joe offers these other slips in evi-
dence. Are the other slips admissible?

9. Exceptions to general rule: Some evidence Causation - To Prove

may be relevant/admissible even though it Cause and Effect
does involve some other time, some other Plaintiff's Prior Accidents
event, or some other person not directly in- or Claims
volved in litigation. Exceptions include: Intent or State of Mind
in Issue - to infer intent
from prior conduct. "intent"
means mental state at the
time of action
Rebuttal Evidence - to re-
but evidence of impossibil-
ity
Habit Evidence
Business Routine
Industrial Trade or Custom

10. Sally eats at Harry's restaurant and gets sick. Yes because of substan-
Sally offers evidence that others who ate "the tial similarity
same type of food" at same time at restaurant
also got sick. Admissible?

11. Pl. drives into bridge abutment and sues City No because we don't
that built and maintained bridge. Def. City know if it the Ps fault.
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seeks to show Pl. has on four other occasions
driven into different stationary objects and
sued. Admissible?

12. Admit: • To show common plan or

scheme of fraud.
• When relevant to the
question of damage to the
plaintiff.
• Notice or knowledge on
the part of the defendant
that the instrument was
defective (if same instru-
ment).
• That the instrumentality
was defective or danger-
ous (if same instrument).

13. Pl. seeks to show that in the last year six other No, unless there are sub-
drivers drove into the same bridge abutment stantially similar condi-
involved in this case. Admissible? tions

14. Pl. sues employer, claiming pattern of gender Yes to show discriminato-
discrimination in hiring. Def. employer denies ry intent of the D.
intent to discriminate and claims hiring was
based on qualifications only. Pl. offers to show
that other well-qualified women were denied
employment.
Admissible?

15. Pl. ingests moose while drinking Cola and Yes to rebut Ds claim of
sues Def. Bottler. Bottler defends on ground impossibility.
that it is impossible for a moose to get into
Cola. Pl. offers evidence of another recent in-
cident in which a moose was found in Cola.
Admissible?

16. Habit Evidence Evidence of a person's

habit is admissible to
prove that on a particular
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occasion the person act-
ed in accordance with the
habit.
What is habit?
• Specificity: the act must
be specific, not general-
ized like character/dispo-
sition evidence.
• Repetition: the act
must have occurred often
enough so that we can say
it was habitual.

The language of habit: "al-

ways," "instinctively," "in-
variably," "automatically."

17. Intersection accident: Did Def. stop for the Cautious driver not admit-
stop sign? Def. offers witness to testify: (1) ted.
that Def. is cautious driver; (2) that witness
has seen Def. stop at that stop sign on two 2 stops not enough for
other occasions; (3) that witness has seen habit.
Def. stop at that stop sign on 10 or 20 prior
occasions. Which of these is most likely to be 10-20 sufficient to estab-
admitted? lish habit.

18. Business Routine The routine practice of an

organization is admissible
just like habit. Evidence of
an organization's routine
practice is admissible to
prove that on a particular
occasion the organization
acted in accordance with
the routine practice.

19. Industrial or Trade Custom - Admissible as 1. permitted to show in-

non-conclusive evidence of standard of care. dustry custom

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Madge tries to get off the bus but Driver clos- 2. Yes
es the door on Madge's foot and drags her
for several blocks. Madge sues bus company 3. admissible but not dis-
alleging negligence in failing to install safety positive. It is up to jury.
device that would prevent their buses from
moving when passenger door is open.
(1) Bus Co. offers to show that no bus compa-
nies employ such a device. Admissible?
(2)(a) What if Madge is able to show that 98% of
the other bus companies do have the device.
Admissible?
(b) Conclusive on liability issue?

20. Which of the following is an example of admis- (a) "Marvin invariably

sible habit evidence? wears his seat belt when
(a) "Marvin invariably wears his seat belt when he drives."
he drives."
(b) "I know Marvin, and he is a habitually care-
ful person."
(c) "Marvin has caused several car acci-
dents."
(d) "Marvin has a reputation for careless dri-
ving."

21. 3 PUBLIC POLICY EXCLUSIONS When measures are taken

3.1 SUBSEQUENT REMEDIAL MEASURES that would have made an
earlier injury or harm less
likely to occur, evidence of
the subsequent measures
is not admissible to prove
negligence, culpable con-
duct, a defect in a product,
a defect in a product's de-
sign, or a need for a warn-
ing or instruction.

22. Exceptions • Ownership or control dis-

But the court may admit subsequent mea- puted
sures for some other purpose.

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• Feasibility of precaution-
ary measures, if disputed

23. Def. denies ownership of building where Pl. Yes to show owner-
was injured. Pl. offers to show that Def. made ship/control of the build-
repairs to the building. Admissible? ing.

24. Pl. walks into a glass door that was practi- Yes to show feasibility of
cally invisible. Def. contends there was and is precautionary measures
no way to avoid such an accident. Pl. offers that were previously dis-
to show that, after the accident, Def. put red puted.
stickers on the door to make them more visi-
ble. Admissible?

25. 3.2 SETTLEMENT OFFERS AND DISCUS- • Prove fault, liability,

SIONS amount of damage
Not admissible to: • Impeach a witness with
a prior inconsistent state-
ment or contradiction

26. Applies to Settlements, Offers, and Accompa- This is a broad rule of

nying Statements exclusion that covers ac-
tual compromises and of-
fers to compromise. Ad-
missions of fact, liability,
or damage made in the
course of the negotiations
are also inadmissible.

27. Disputed Claim Required For the rule of exclusion to

operate, there must be a
disputed claim.

The claim must be disput-

ed as to either (1) liability
or (2) amount.

28. Without prior contact, neighbor approaches Yes, when D admitted to

Pl.-tobe and says, "Are you the fellow who was dog bite there was no dis-
bitten by my dog? Let's settle." In later lawsuit, pute.
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Pl. offers to testify to neighbor's admission of
dog ownership. Admissible?

29. Def. says to Pl., "I admit that I owe you the full All Ds statements are ad-
amount of $10,000 on the promissory note, but missible in this case.
if you want your money you'll have to sue me
for it. On the other hand, if you want to settle
now, I'll pay you $5,000 for a full release."
Can Pl. show that Def. admitted liability on the
note?

30. Pl. threatens to file suit. Def. says, "Let's settle. No, admission of negli-
I will admit I was negligent. Let's agree on the gence was made as part
amount of damage." Admissible? of negotiations for resolv-
ing the claim.

31. 3.3 OFFERS TO PAY MEDICAL EXPENSES An offer to pay medical ex-
penses is not admissible,
even if it is not a settle-
ment offer. But if an admis-
sion of fact accompanies a
naked offer to pay medical
or hospital expenses, the
admission may be admit-
ted.

32. "It was all my fault. Let me pay your hospital Fault admissible, offer to
bill." Admissible? pay hospital bill excluded.

33. 3.4 PLEA BARGAINING • Offers to plead guilty in a

Generally inadmissible, including: criminal case
• Statements made during
plea bargaining
• Withdrawn pleas of guilty
• Pleas of nolo contendere
BUT, an actual plea of
guilty (not withdrawn) is
admissible in subsequent
litigation based on the
same facts under the rule
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of opposing party state-
ments (discussed in the
Hearsay module).

34. 3.5 LIABILITY INSURANCE Not admissible to show

person acted negligently
or wrongfully, or to show
ability to pay.

35. Exceptions • Ownership or control

Admissible when relevant to show: • Impeach credibility of wit-
ness by showing interest
or bias

36. Def. denies ownership of building where Pl. Yes, to show owner-
was injured. Pl. offers to show Def. carries ship/control of the build-
liability insurance on building. Admissible? ing.

37. Witness testifies for Def. to facts of acci- Yes, impeachment to

dent. Pl. offers to show that witness is claims show bias and/or interest
manager of Def.'s liability insurance compa- in cause of action (appear-
ny—the same company that will have to pay if ance of impropriety)
Def. is found liable. Admissible?

38. Which of the following statements is generally (b) The party's admission
admissible to show a party's liability in a civil of fact accompanying an
case? offer to pay medical ex-
(a) The party's offer to pay medical expenses. penses.
(b) The party's admission of fact accompany-
ing an offer to pay medical expenses.
(c) The party's settlement offer.
(d) The party's admission of fact made during
settlement negotiations.

39. CHARACTER EVIDENCE Character evidence is

4.2 GENERAL RULE—EXCLUDE not admissible when of-
fered as circumstantial ev-
idence to infer conduct at
the time of the litigated
event.
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40. Pl. sues Dan for personal injury damages al- No, is character evidence
leging negligence arising out of an automo- of recklessness, offered
bile accident. Pl. offers a witness to testify as propensity, and is gen-
that Dan has a reputation in the community for erally inadmissible
recklessness. Admissible?

41. Pl. seeks to testify that he has been driving for No, is character evidence
40 years without ever having been involved in of propensity for good dri-
an accident. Admissible? ving and is generally inad-
missible.

42. 4.3 EXCEPTION #1: CHARACTER IS AN ELE- Character evidence is ad-

MENT missible when the charac-
ter of a party or other per-
son is a material element
in the case—character is
directly in issue.

43. Grutz calls Yuckl "a crook." Pl. Yuckl sues Yes, character of Grutz is
Def. Grutz for defamation seeking $1,000,000 a material issue in the
for damages to Yuckl's reputation. Def. Grutz case.
seeks to show that Pl. Yuckl has on three prior
occasions stolen money from his employer.
Def. Grutz also seeks to show that, even be-
fore the alleged defamation, Pl. Yuckl had a
reputation for being dishonest. Admissible?

44. Types of cases/defenses: Character is rarely a direct

issue in a case. Gener-
ally limited to defamation,
negligent entrustment/hir-
ing, entrapment, and child
custody cases.

45. Form of proof: If character is directly in is-

sue and therefore admis-
sible, it may be proved
by any of the specif-
ic forms—"ROSA" (rep-
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utation, opinion, specific
acts).

Checklist: (1) Type of

case? (2) Form of proof?

46. 4.4 EXCEPTION #2: CRIMINAL DEFENSE OF- The accused is permitted
FERS CHARACTER EVIDENCE ABOUT DE- to offer evidence of her
FENDANT own good character for the
pertinent trait in the form
of reputation and opin-
ion to show disposition in
order to infer innocence.
Only then may the pros-
ecution respond by show-
ing the bad character of
the accused.

47. Spano is on trial for assault of an elderly 1. No. Inadmissible Char-

woman. In court, he looks like a clean, up- acter.
standing young man. The prosecutor, howev-
er, has his rap sheet, which shows six prior 2. No.
arrests for robbery, three prior convictions for a. No
assault, and two prior convictions for perjury. b. Impeachment does al-
low character trait for
(1) May the prosecution as part of its truthfulness
case-in-chief show Spano's criminal back-
ground? 3. Yes, exception to gen-
eral exclusion to character
(2) May the prosecution show Spano's crimi- evidence
nal background or any part of it if Spano does
not try to show his good character but only 4. Peacefulness since
takes the stand and denies his involvement in charge is assault
the crime?
(a) To show Spano's disposition to be violent? 5. Only reputation or opin-
(b) To impeach Spano's credibility (i.e., to ion evidence. Not specific
show lack of truthfulness)? acts

(3) May Spano take the initiative to show his 6. Prosecution can rebut

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good character?

(4) For what trait may Spano show his good

character?

(5) How does Spano show his good character

(what method or technique is permissible)?
Specific acts of good conduct? Opinion? Rep-
utation?

(6) Assume Spano calls a witness to testify

that Spano has a good reputation for peace-
fulness and that in the opinion of the witness
Spano is peaceful. Now, what may prosecutor
do?

48. Prosecution Rebuttal: 2 Ways: • Prosecution rebuttal

method #1: cross with
specific acts:
• Prosecution rebuttal
method #2: New prosecu-
tion witness

49. • Prosecution rebuttal method #1: cross with After the accused offers
specific evidence of good charac-
acts: ter, the prosecution may
respond by inquiry on
cross-examination of the
accused's good character
witness about any spe-
cific acts that would tar-
nish the accused's repu-
tation or that would af-
fect the opinion of the wit-
ness. (Of course, as point-
ed out later, the credibil-
ity of any witness may
be impeached in specific
ways. So, the prosecutor

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could, for example, attack
the credibility of the char-
acter witness by show-
ing the witness's own pri-
or conviction for perjury or
bad reputation for truthful-
ness.)

50. Same case as 4D (character witness has tes- 1. Yes accused has of-
tified as to Spano's good character for peace- fered character W so pros-
fulness). ecution can rebut.
(1) Can the prosecutor ask the witness on 2. No cannot use this, only
crossexamination, have you heard (or do you use facts to show W is un-
know) that Spano was arrested six times for aware of Ds character.
robbery?
(2) Can the prosecutor call a witness to testify
that Spano was in fact arrested six times for
robbery?

51. • Prosecution rebuttal method #2: New prose- After the accused offers
cution evidence of good charac-
witness ter the prosecution can
also respond by calling
prosecution witnesses to
testify to bad opinions or
bad reputation in regard
to the character of the ac-
cused.

52. Same case as 4D (character witness has testi- Yes for both types (reputa-
fied as to Spano's good character for peace- tion and opinion)
fulness). May the prosecutor call a witness
to testify that Spano has a bad reputation for
violence and that in the opinion of the witness
Spano is a violent person?

53. 4.5 EXCEPTION #3: VICTIM'S CHARACTER IN The accused may also
SELF-DEFENSE CASE take the initiative in homi-
cide or assault cases,
as part of a self-defense
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claim, to show the charac-
ter of the victim as circum-
stantial evidence to infer
that on the occasion in
question the alleged vic-
tim was the first aggres-
sor. Again, the permissible
method of showing char-
acter would be by reputa-
tion or opinion. The pros-
ecutor could then respond
(1) by showing good repu-
tation or opinion concern-
ing the victim or (2) by
showing the bad reputa-
tion or a bad opinion re-
garding the accused him-
self.

54. Harvey shot and killed Victor during a tavern 1. Yes to rebut Ds claim
brawl. Harvey is charged with murder but re- 2. Yes permitted
sponds with a plea of self-defense. Harvey 3. Yes
offers evidence that Victor attacked him with 4. Yes
a broken beer bottle and that he, Harvey, was 5. No although rele-
in fear for his life, and therefore had to shoot vant only reputation/opin-
Victor. ion can be used. No spe-
(1) In this homicide case, may the prosecution cific acts of conduct
now offer evidence of Victor's trait of peace- 6. (a) Not admissible as
fulness to rebut evidence that Victor was the propensity evidence, but
first aggressor? shows notice and how a
(2) May Harvey call a witness to testify that person responded later.
Victor had a bad reputation for violence and (b) No, not admissible for
that in the opinion of the witness, Victor was a this purpose
violent person? (c) Yes, specific acts are
(3) If Harvey so attacks the character of Victor, not being used to show
may the prosecution now respond by calling a propensity for violence but
witness to testify that Victor had a good repu- rather his fear was reason-
tation for peacefulness and that, in the opinion able.
of the witness, Victor is a peaceful person?
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(4) If Harvey so attacks the character of Vic-
tor, can the prosecutor now call a witness to
testify that Harvey has a bad reputation for
violence and that in the opinion of the witness
Harvey is a violent person?
(5) Harvey calls witness to testify that witness
had seen Victor use a broken beer bottle to
grievously wound and almost kill three bar
patrons in fights Victor started last year. Ad-
missible?
(6) What if the witness testifies that witness
told Harvey about Victor's other acts of brutal-
ity some weeks before Harvey shot Victor?
(a) Admissible?
(b) Relevant to Victor's violent disposition in
order to suggest that Victor was the aggres-
sor?
(c) Relevant to show Harvey's state of mind
(his reasonable fear of grievous harm) during
the fight with Victor?

55. 4.6 EXCEPTION #4: SPECIFIC ACTS OF MIS- Note: Other crimes or pri-
CONDUCT OFFERED FOR NONCHARACTER or acts of misconduct by
PURPOSE the defendant are general-
ly not admissible to prove
criminal disposition (e.g.,
"once a thief, always a
thief").
However, prior crimes or
prior acts of misconduct
may be admitted in civ-
il or criminal cases when
the misconduct is relevant
to prove a material fact
other than character or
disposition (i.e., to prove
some relevant issue sepa-
rate from bad character).
Other acts would be ad-
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missible if relevant to
show, for example, motive,
opportunity, intent, prepa-
ration, plan, knowledge,
identity, absence of mis-
take or lack of accident, or
guilty conscience.
Only specific acts are al-
lowed.

56. Rutz, Bank VP, embezzles from his employer Yes under character ex-
to cover $500,000 of illegal gambling losses. ception for other acts.
When Rutz discovers that auditors are com-
ing to check books Rutz falsified to cover
up, he burns the bank down to destroy the
books. Rutz is charged only with the crime
of arson. Can the prosecution, as part of its
case-in-chief, show the illegal gambling, the
embezzlement, the falsification of books, and
the theft of the key? For what purpose? (As-
sume no evidence from the defense.)

57. Examples of issues on which prior miscon- Motive

duct of Intent
the defendant may be relevant independent of Mistake (absence of)
character or disposition Identity or modus operan-
Other crimes or past misconduct may be di
shown to Common Scheme or Plan
prove the following: Guilty Conscience

Note: This is not an exclu-

sive list. One could add,
for example, "opportuni-
ty" or "preparation" or any
other relevant purpose ex-
cept showing "character
for the purpose of proving
action in conformity there-
with."

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The MIMIC rule is subject
to FRE 403 (i.e., evidence
relevant to one of these
purposes may be exclud-
ed if the trial judge be-
lieves that probative val-
ue is substantially out-
weighed by the danger of
unfair prejudice).

58. HYPO 4I No. is propensity charac-

Def. is charged with murder of Detective. Pros- ter evidence
ecution offers evidence that Def. killed Def.'s
wife three years ago. Admissible? Yes, to show motivation for
killing the detective
HYPO 4J
What if Detective, the victim of the murder
charged, was killed because Detective was
about to arrest Def. for the murder of wife?

59. Def., who is charged with intentionally re- Yes to show mental state,
ceiving stolen goods, claims he was unaware D had knowledge/intent
the goods were stolen. Prosecutor offers ev- for crime.
idence that Def. has received stolen goods
on five prior occasions from the same thief
involved in this case. Admissible?

60. Brides of the Shower. Def.'s first two wives Yes prior deaths show ab-
died mysteriously in their first year of mar- sence of a mistake and is
riage by purportedly falling while taking a permitted.
shower. Def.'s third wife did the same and he
is charged with murder. Def. claims it was an
accidental fall. Can the prosecutor offer the
deaths of the two prior wives in the shower?

61. Def. is charged with forging Dr. House's signa- Yes, is a distinctive feature
ture on a prescription to illegally obtain drugs to show identity.
from a pharmacy. Def. denies he did it. Can the
Prosecution show that Def. forged a prescrip-

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tion three years ago with the same name to
illegally obtain drugs?

62. Def. is charged with bank robbery. May the Yes admissible if it was
Prosecution show that Def. stole a truck the used and stolen for the
day before the bank robbery? What if the truck robbery.
was used in the bank robbery?

63. 4.7 EXCEPTION #5: SIMILAR ACTS IN CHILD Although the general rule
MOLESTATION AND SEXUAL ASSAULT CAS- is that character evi-
ES dence may not be offered
to prove propensity, the
FRE carve out exceptions
for sexual assault and
child molestation cases.
In criminal OR civil cases
based on acts of sexual
assault or child molesta-
tion, a defendant's other
similar acts are admissi-
ble against him for any rel-
evant purpose, including
propensity. The defendant
need not have been con-
victed of the other acts.

64. 4.8 EXCEPTION #6: HABIT EVIDENCE As stated previously, evi-

dence of a person's habit
is admissible to prove that
on a particular occasion
the person acted in accor-
dance with the habit. (See
Relevance module for full
coverage.) On the exam,
you will need to be able to
distinguish habit evidence
from evidence of a per-
son's general character.

65.
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In a fraud trial, the prosecution alleges that the (D) Yes, because it is ev-
defendant invited the victims to become local idence of the defendant's
investors/distributors for a supposed cosmet- state of mind.
ics manufacturer. The defendant claims she
was brought into the scheme by the purport-
ed head of the manufacturer's sales depart-
ment and was just following instructions with
no knowledge of the fraud. The prosecution
intends to call a witness to testify that the
defendant convinced him to invest in a simi-
lar scheme involving household products five
years ago.

Should the trial court admit this evidence over

the defendant's objection?
(A) No, because evidence of other acts or
wrongs is not admissible to prove character
and action in conformity therewith.
(B) No, because it is irrelevant.
(C) Yes, because it is evidence of the defen-
dant's character for dishonesty.
(D) Yes, because it is evidence of the defen-
dant's state of mind.

66. 5.1 DEFINITION OF HEARSAY Rationale

Basic Definition Hearsay is unreliable, not
• Out-of-court able to be properly as-
• Statement sessed by the trier of fact,
• Declarant and thus excluded. No op-
• Offered for its truth portunity for cross-exami-
nation, oath, or view of de-
meanor.
How Hearsay Works
• Declarant (makes, acts,
or writes the out-of-court
statement)
• Witness (reports the
statement in court)
Three Ways Declarant Ut-
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terances Are Not Exclud-
ed Under Hearsay Rule:
#1: Not hearsay, element
is missing.
#2: Nonhearsay under
FRE, because special pri-
or statements of witness-
es or parties.
#3: Reliable hearsay, falls
within exception.

67. 5.2 NOT HEARSAY, TYPE #1: ELEMENT IS Where the words spo-
MISSING ken or written have rel-
Any of the four elements can be missing: evant legal significance
• Not out-of-court in the case by virtue of
• No statement being spoken or written.
• No declarant (Words of offer, accep-
• Not offered for the truth of the matter assert- tance, defamation, con-
ed Operative Facts or Verbal Acts spiracy, bribery, cancel-
lation, misrepresentation,
waiver, permission.)

68. HYPO 5A No. Words constitute legal

Witness seeks to testify that Demi (the de- acceptance and fall under
clarant) said "I accept your offer to sell your independent legal signifi-
bicycle." Evidence is offered to prove an oral cance.
contract. Hearsay?
No. Verbal acts. Words de-
HYPO 5B scribe legal limits Demi
Witness seeks to testify that Demi said "Take was giving.
my car, go with it to Miami" in order to
prove Demi gave permission to use her car.
Hearsay?

69. Effect on Listener or Reader Statements offered to

show their effect on the
person who heard or read
the statement. (E.g., to
show notice to, or the

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good faith of, or reason
for action or inaction by
the person who heard
or read the out-of-court
statement.)

70. Pl. sues for injuries caused by fall on stairs Not hearsay, not offered to
of store. Pl. calls witness who testifies that show stairs are defective.
two days before Pl.'s fall, witness heard Miley Its offered to show notice
tell store manager, "Your stairs are defective, by manager.
someone is bound to fall there." Offered to
show notice to store. Hearsay?

71. Declarant's State of Mind No. Not being admitted for

Statements offered not for their truth but as truth of the matter, but is
circumstantial evidence of declarant's rele- being offered to show de-
vant state of mind. clarant's state of mind.

HYPO 5D
Brad is charged with murder. Defense is insan-
ity. Defense witness testifies that on the day
before the killing, he heard Brad say, "I am the
Pope." Hearsay?

72. 5.3 NOT HEARSAY, TYPE #2: SPECIAL PRIOR Yes. Out of court state-
STATEMENTS OF A WITNESS OR PARTY ment by declarant being
Can a witness's own prior statement be offered for truth of the mat-
hearsay? ter asserted.

HYPO 5E
Def. in a criminal case takes the stand to tes-
tify. Def.'s lawyer asks on direct examination,
"When you were arrested, what did you tell
the police?" Def. answered, "I told them the
truth; that I was innocent." Hearsay? Is it an
admission?

73. Prior Statements of a Testifying Witness That These statements are in

Are Not Hearsay fact being offered for
their truth and would be
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hearsay under the com-
mon law. But the Federal
Rules exclude them from
the definition of hearsay
by express rule provisions.
Therefore they are ad-
missible nonhearsay. For
these hearsay exclusions
to apply, the declarant
must testify at trial and be
subject to cross-examina-
tion about the prior state-
ment.
• A. Prior inconsistent
statements given under
oath at a trial, hearing,
other proceeding, or de-
position.
• B. Prior consistent state-
ments that (1) rebut
charge of recent fabri-
cation or improper influ-
ence or motive (consis-
tent statement must have
been made before motive
arose), or (2) rehabilitate
witness who has been im-
peached on some other
ground (e.g., a prior incon-
sistent statement or mem-
ory defect).
• C. Prior statement of
identification.

74. Opposing Party Statements—Not Hearsay De- Rationale: The adversary

finition: Statement by or attributable to a party, process. No special relia-
offered against that party have traditionally bility because:
been called "admissions" by a party-oppo- • Need not be against in-
nent; under restyled FRE they are called op- terest at time of making
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posing party "statements." These statements statement.
are considered nonhearsay under the Federal EXAMPLE
Rules of Evidence. Def. brags to neighbor that
he made $2 million in
2012. Admissible in tax
fraud prosecution.

• Need not be based on

personal knowledge.
EXAMPLE
When informed that
neighbor was bitten by a
dog, Def. states, "It must
have been my wild dog
that did it."

• Can be in form of legal

conclusion.
EXAMPLE
"I was negligent."

75. There Are Five Types: • Statement by a celebri-

Two personal: Made or adopted by the party. ty's authorized spokesper-
Three vicarious: Authorized, agent, conspira- son.
tor. Statement is made by someone else but is • Statement by the party's
attributable to the party because of the rela- agent or employee con-
tionship between them. cerning a matter within the
Common examples: scope of the agency or
employment, made during
the existence of the rela-
tionship.
• Co-conspirator state-
ment made during and in
furtherance of the conspir-
acy.

76. Arlen is playing cards with friends and asked If a reasonable person
if he was cheating on his wife when he was would be expected to
deny the question then si-

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seen at a bar late at night with an unfamiliar lence could be a tacid
woman. Arlen said nothing. Admission? agreement/admission and
can be used.

77. HYPO 5G Yes, made by employee

Negligence action against Trucking Co. Truck who is likely an agent and
Driver crashed through Pl.'s living room win- statement is about their
dow, and states: "My brakes failed again; they course and scope of em-
failed three times last week. I told my boss ployment.
about it but he does nothing. Now I am go-
ing to miss my last delivery for my employ- It is hearsay, and is not
er." Does this statement come in against the a co-conspirator (during or
Trucking Co.? in furtherance) statement.

HYPO 5H
Eeny told the police when he was nabbed, "I
can't believe you caught us; we 'wet bandits'
had such a good way of robbing houses." Can
this statement be used against Eeeny's part-
ner, Meeney, at trial?

78. Is it hearsay? (Don't worry about whether it 1. Yes, non-verbal

falls within a hearsay exception.) hearsay.
(1) On the issue of whether Oliver was the
murderer, a police officer testifies that when 2. No, offered to prove no-
he asked the victim whether Oliver was the tice, not that the stair was
one who hurt him, the dying victim nodded his broken.
head.
3. No, legally operative
(2) On the issue of whether landlord knew fact
about a defective stair, a witness testifies that
he heard the property manager say to the land- 4. Yes, offered to prove ex-
lord, "The stair is broken." istence of pain.

(3) In a breach of contract action, the written, 5. No, clock is not making
executed contract is offered into evidence. a hearsay statement

(4) During her case-in-chief, on the issue of 6. Yes if to prove light was
her pain and suffering, a plaintiff testifies, "Af- green, but no if for incon-

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ter the accident, I told the emergency room sistent statement purpos-
doctor that my pain level was a 10 out of 10." es

(5) On the issue of when the victim was

murdered, a neighbor testifies that when she
heard the victim stabbed outside her window,
she looked at her clock and it read "5:04 pm."

(6) An eyewitness testifies that the defendant

ran a red light and caused the accident. To
prove the light was green at the time of the ac-
cident, the defense wants to call an insurance
investigator to testify that the eyewitness told
him that the defendant had a green light and
couldn't avoid the plaintiff.

79. 5.4 TYPE #3, RELIABLE HEARSAY WHERE • Spontaneous state-

THE DECLARANT'S AVAILABILITY TO TESTI- ments
FY IS IRRELEVANT (RULE 803) A group of exceptions for
Listing of major exceptions that do NOT re- which unavailability is not
quire the declarant to be unavailable: required because the law
regards prior statement as
being at least as reliable
as present incourt testi-
mony.
• Excited utterance
• Present sense impres-
sion
• Present state of mind

• Statement for medical di-

agnosis or treatment
• Recorded recollection
• Business records
(records of regularly con-
ducted activity)
• Public records
• Learned treatises

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80. Excited Utterances Requirements:
Definition: A statement relating to a startling • Statement related to a
event or condition is admissible if made while startling event: Look for
declarant was still under the stress of excite- nature of event and time
ment caused by the event or condition. lapse.
Requirements: • Made under stress of ex-
citement; language mat-
ters.

Exam Tip
Look for words of excite-
ment ("My God," "Good
heavens") and for verbs
suggesting excitement
("shouted," "screamed").

• Concerns the startling

event.

81. Present Sense Impressions (Outward-Look- • Unnecessary to have

ing Statements) startling event or excite-
Definition: A statement describing or explain- ment.
ing an event or condition, made while declar- • But must describe (not
ant was perceiving the event or condition or just relate) and have al-
immediately thereafter. most precise contempora-
neousness; no apprecia-
Distinguish from excited utterance: ble time lapse.

82. Victor is killed in his apartment on Sunday Yes, as a present sense

night. Spar is charged with his murder. Prose- impression.
cution witness testifies that on Sunday night
Witness called Victor and Victor said "Spar
is here." Offered to show that Spar was pre-
sent at about the time of the killing. Admis-
sible? Excited utterance? Present sense im-
pression?

83. Declarant's State of Mind (Inward-Looking Includes declarations of

Statements) intent: A declaration of ex-

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isting intent to do some-
thing in the future offered
to infer that the intended
future act was done.

Includes declarations of
present mental or physi-
cal condition: A declara-
tion of then-existing men-
tal or physical condition
is admissible to show the
condition. ("It hurts!")

84. Decla announces "On Monday of next week Yes, as declarant's state of
I am going to meet with Spanky," offered to mind
prove that Decla did meet Spano on Monday.
Admissible?

85. Statements Made for Purposes of Getting • Made for purpose of di-
Medical Diagnosis or Treatment agnosis or treatment (usu-
ally to medical personnel).
Definition: Statement made for medical diag- • Pertinent to either diag-
nosis or treatment and describing medical nosis or treatment (even if
history or past symptoms or sensations, their diagnosis or only for the
inception or their general cause insofar as purpose of giving testimo-
reasonably pertinent to diagnosis or treat- ny); but note that state-
ment. ments that only assign
fault are generally not per-
Unlike the exception for present physical con- tinent (e.g., "the other dri-
dition above, this exception covers state- ver ran a stop sign").
ments of past physical condition, and state-
ments made about someone else's condition
in order to seek medical help for that person.

Requirements:

86. Pl. in personal injury case hires doctor to di- Yes is statement was
agnose solely for the purpose of giving testi- for general diagnosis and
mony. Doctor testifies and gives his opinion. treatment

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Part of the basis of his opinion is the medical
history given to him by Pl. May Doctor recite
the medical history given him by Pl.? Is it
admissible for its truth?

87. Statements Recorded by the Declarant that See Witnesses module for
Count as Recorded Recollection coverage. The document
can only be read into ev-
idence, not introduced as
an exhibit (unless the ad-
verse party chooses to of-
fer it).

88. Private Business Records Elements:

Definition: • P: Person w/ knowledge
Records of a regularly conducted activity • A: Accurate (at or near
made at or near the time by, or from informa- time info obtained)
tion transmitted by, a person with knowledge • R: Regular business ac-
are admissible if kept in the regular course of tivity
the business and if it was the regular course • R: Regularly made
of that business to make the record, unless • T: Trustworthy (burden
the opponent establishes that the source of on opponent)
information or circumstances of preparation Rationale for reliability:
indicate a lack of trustworthiness. Employees are under a
business duty to be accu-
rate in observing, report-
ing and recording busi-
ness facts.
Function of the exception:
Allows the record to sub-
stitute for the in-court tes-
timony of the employees.
Authentication methods:
(1) Call records custodian
or other qualified person
to testify that the elements
of the business records
exception have been met;
or

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(2) written certification un-
der oath attesting to ele-
ments of business records
hearsay exception (with
advance notice to oppos-
ing party).

89. Typical problem areas: • Does the exception ap-

ply? Usually turns on
whether entry is germane
to the business.
• Multiple hearsay prob-
lem: Assume the entry
is germane to the busi-
ness so that the business
records exception ordinar-
ily applies. But suppose
the record contains with-
in it a statement made by
someone outside the busi-
ness. Reconsider the ra-
tionale and purpose of the
exception.

Absence of private busi-

ness record: The absence
of a business record is
admissible to prove that
a matter did not occur,
if the business regularly
kept records of such mat-
ters.

90. Dominic is involved in an automobile accident Yes, party opponent state-

and is taken to the hospital emergency room ment
where he tells Nurse "This accident was all my
fault. I was grossly negligent." Nurse records No, this is not within busi-
Dom's words in the hospital record. Plaintiff, ness records exception or
who was also injured, sues Dom for negli- for diagnosis or treatment.

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gence.
(1) At trial, can Nurse testify to Dom's state-
ments if called to the stand by Plaintiff?
(2) May the hospital record be admitted if of-
fered by Plaintiff to prove Dom's statement?

91. Snowsen, an outsider, not under a business No, Snowsen is not part of
duty to observe or report, perceives an event the business, and no other
and reports it to the ABC Company. Compa- exception applies.
ny realizes that Snowsen's statement is ger-
mane to its business and includes Snowsen's
statement in its record. Is the entry admissible
under the business record exception to prove
the truth of Snowsen's statement?

92. Accident at a traffic light controlled intersec- 1. Yes because they are of
tion. The investigating officer arrives at the personal knowledge
scene 30 minutes later. He measures the skid-
marks leading to Dom's car. He speaks to 2. No, statement is not
Lenny, an eyewitness, and also talks to Dom. covered by any exception
He promptly prepares a police report which
contains three entries as follows: 3. Yes, party opponent
(1) "Observation: 150' of skidmarks leading to statement
Dom's car."
(2) "Statement of witness: Lenny, an eyewit-
ness, reports that Dom had the red light."
(3) "Statement of Driver: Dom states that he,
Dom, ran the red light."

Plaintiff sues Dom for personal injuries result-

ing from the accident. At trial, Plaintiff offers
the three entries as business records. Admis-
sible?

93. Absence of private business record: The absence of a busi-

ness record is admissible
to prove that a matter did
not occur, if the business

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regularly kept records of
such matters.

94. Public Records (1) The activities of the

Records of a government agency that concern agency:
any of the following: EXAMPLE
Records of the Treasury
Department (receipts and
disbursements).

(2) Any matter observed

by a public official with a
duty to observe and report
(but NOT law enforcement
reports against a defen-
dant in a criminal case).
EXAMPLE
Observations by officer in
an accident report de-
scribing the scene and
damage.

(3) Investigative reports in

civil cases, and against
the government in crimi-
nal cases, including factu-
al findings" and opinions
and conclusions (again,
NOT admissible against a
criminal defendant).

Like business records,

public records can be ex-
cluded if the opponent
shows that the sources of
information or other cir-
cumstances appear un-
trustworthy.

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No police reports against
criminal defendant: De-
spite the business records
and public records ex-
ceptions, reports by law
enforcement are general-
ly not admissible against
the accused in a criminal
case.

95. Absence of public record: The absence of a pub-

lic record is admissible to
prove that a matter did
not occur or exist, if the
agency regularly recorded
such matters.

96. Learned Treatises Prerequisite: Treatise

must be authoritative.
How to show that a trea-
tise is authoritative:
• Testifying expert says so
• Another testifying expert
• Judicial notice
How the treatise is in-
troduced: Read into evi-
dence only; like recorded
recollections, not received
by the jury as an exhibit.

97. Black's Law Dictionary. At trial in a breach of 1. Yes

contract action, a key issue was the meaning 2. Treatise is authoritative
of a particular word used in the contract. An
expert witness called by the plaintiff stated
the word commonly meant a particular thing
in dealings between attorneys.
(1) Can the expert be cross-examined on
Black's Law Dictionary?

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(2) What must be established for such cross
examination to occur?

98. The Merck Manual of Medication. In a medical Yes both to impeach the
malpractice action, the expert testified that a W and for the truth under
medication had certain side effects. On cros- learned treatise.
sexamination, the expert was asked about the
Merck Manual of Medication, commonly re-
ferred to by health care providers and relied
upon for listing accurate side effects of med-
ications. The expert acknowledged that it was
widely used in the field, and recognized that
there were differences between what the man-
ual said and what the expert had stated on
direct examination. Is the manual admissible?
How?

99. Other Exceptions (including Market Reports Market reports: These in-
and Ancient Documents) clude compilations or lists
generally relied on in the
marketplace by the public
or those in financial occu-
pations.

Ancient documents: Au-

thenticated statements
that were made before
January 1, 1998.

100. 5.5 RELIABLE HEARSAY WHERE THE DE- (1) Former testimony
CLARANT MUST BE UNAVAILABLE TO TES- (2) Statements against in-
TIFY AS A PREREQUISITE TO ADMISSIBILITY terest
(RULE 804) (3) Dying declarations
Three major exceptions that require unavail-
ability:

101. What Does "Unavailable" Mean? Unavailable for all three.

HYPO 5Q Its about testimony avail-
Declan takes the witness stand, but has am- ability and not physically
nesia of the events at issue. Is Declan unavail- unavailable
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able for hearsay purposes? If Declan claims
privilege? If Declan has simply forgotten the
events?

102. Declarant is unavailable if: her testimony is unavail-

able (e.g., privilege, mem-
ory fails, can't procure at-
tendance by reasonable
process).

103. Former Testimony Requirements:

Definition: Testimony given in earlier proceed- • Meaningful opportunity
ing by person now unavailable is admissible to develop or cross-exam-
if the testimony is now offered against a party ine in the prior proceeding
who had (or, in a civil case, whose predeces- when the witness
sor in interest had) an opportunity and simi- gave the live testimony.
lar motive to develop the testimony by direct, • Similar issue and motive.
cross-, or redirect examination. • Identity of parties: par-
ty against whom the testi-
mony is now offered must
have been a party in the
first proceeding (or, in a
civil case, at least in some
form or privity with party in
the first proceeding).
Watch Out: The grand jury
testimony of an unavail-
able declarant that is of-
fered against the accused
in a criminal case would
not qualify because the
accused does not have an
opportunity to cross-ex-
amine grand jury witness-
es.
• Unavailability of declar-
ant.

104.

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In a one vehicle accident, a bus leaves the 1. Yes
highway and crashes injuring passengers A 2. No because passenger
and B. In Action 1, A sues the Bus Co. and W B was not in first proceed-
testifies live. In Action 2, B sues the Bus. Co. ing and didn't have oppor-
but W is no longer available. tunity to cross examine.
(1) May passenger B use W's former testimony
against Bus Co.?
(2) May Bus Co. use W's former testimony
against passenger B?

105. Dying Declarations (Statement Made Under Requirements:

the Belief of Imminent Death) • State of mind: Made un-
Definition: In a prosecution for homicide or in der a belief of imminent
a civil case, a statement made by a declarant death.
while believing that the declarant's death was • Unavailability: Declarant
imminent, concerning the cause or circum- need not die, but must be
stances of the impending death. unavailable at time of trial.
• Kind of case in which ad-
missible: Homicide or civil
case only.
• Content limitation: Must
concern cause or circum-
stances of apparently im-
pending death.

106. Justin is stabbed and is lying in a gutter. No evidence of impending

Justin looks up at police officer and says "Tom death. Not a dying decla-
did it." Justin promptly dies. A dying declara- ration.
tion?

107. (1) Bobby is found holding his small intestine 1. Yes facts support belief
and examining it carefully. He says, "Jimmy of impending death
did it," and promptly dies. Dying declaration?
(2) What if he had said, "Jimmy did it, call Dr. 2. No, because he had no
Feelgood to fix me up," and then promptly belief of impending death.
dies. Dying declaration?
(3) Now Bobby recovers and Jimmy is charged 3. No because he lived
with attempted murder. Dying declaration? and is available

108.
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Statements Against Interest When Made Def- Limitation: A statement
inition: Declaration of a person, now unavail- that
able as a witness, against that person's pecu- (1) tends to expose declar-
niary, proprietary, or penal interest (or state- ant to criminal liability and
ment which would expose declarant to civil (2) is offered in a criminal
liability or which would tend to defeat a civil case, must be supported
claim by declarant) at the time the statement by "corroborating circum-
was made. stances that clearly indi-
cate its trustworthiness."

109. State v. Spangler for murder of Victor Victim. W No, unless evidence
testifies for the defense that W heard Garibaldi of corroborating circum-
say "I, not Spangler, killed Victor." Is Garibal- stances.
di's out-of-court statement admissible as a
statement against penal interest?

110. Distinguish statement against interest from • Statement against inter-

party opposing statement: est must be against in-
terest at time statement
made.
• Statement against inter-
est may be made by any
person, not necessarily by
a party.
• Statement against in-
terest requires personal
knowledge.
• Statement against inter-
est requires unavailability.

111. Harvey and Dan collide. Harvey confides to Not as party opponent
Neighbor that "It was all my fault." Harvey dies statement.
as a result of his injuries. Harvey's next of
kin bring a wrongful death action against Dan. Admitted as statement
Dan calls Neighbor to testify that Harvey said, against interest.
"All my fault." Admissible? As a party-oppo-
nent statement? As a statement against inter-
est?

112.
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5.6 MIXING HEARSAY AND WRITINGS Yes
HYPO 5W Yes, made now in present
John is found shot dead in his business office Tape is inadmissible un-
with a dictaphone in his hand. Officer plays less authenticated under
the tape and hears John say "Chapman, what best evidence rule.
are you doing here?" There is then the sound
of a shot and the tape is silent. At Chapman's
trial, Officer is called by the prosecution. Of-
ficer seeks to testify to what he heard on the
dictaphone tape.
Is it hearsay?
Is it admissible because it qualifies as a pre-
sent sense impression?
Are there any other problems beyond
hearsay?

113. 5.7 THE SIXTH AMENDMENT RIGHT OF CON- Even though an

FRONTATION out-of-court statement
Why associate the Sixth Amendment with qualifies as an excep-
hearsay? tion to the rule against
The rule: hearsay, the accused's
Sixth Amendment right
of confrontation may ren-
der the statement inad-
missible when it is of-
fered against the accused
in a criminal case. The
Supreme Court in Craw-
ford v. Washington held
that out-of-court state-
ments, even if they fit a
hearsay exception, will not
be admitted if:
• The out-of court-state-
ment is offered by the
prosecution against the
accused in a criminal
case, and
• The declarant is unavail-
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able at the trial, and
• The out-of-court state-
ment was "testimonial,"
and
• The accused had no
previous opportunity to
cross-examine the declar-
ant's testimonial state-
ment,
UNLESS
• The prosecution demon-
strates that the defen-
dant has forfeited his Con-
frontation Clause objec-
tion by wrongdoing that
prevented the declarant
from testifying at trial.

114. Definition of "Testimonial" Testimonial statements

are those a declarant rea-
sonably knows will be
used in the prosecution or
investigation of a crime.
Such statements include
witness statements made
to police or other law en-
forcement officials in re-
sponse to police ques-
tioning; any testimony giv-
en at a formal proceed-
ing, preliminary hearing,
grand jury, or motion to
suppress; guilty plea allo-
cutions of co-conspirators
to prove that a conspir-
acy existed; forensic lab
reports revealing drugs,
fingerprints, firearms evi-
dence, blood, DNA, etc.
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115. Steven and Brendan are charged with the mur- No under the confronta-
der of Teresa. Brendan tells the police "Steven tion clause because W
and I did the murder." Brendan later pleads was not given opportunity
guilty but refuses to testify against Steven. to be cross examined by
In the prosecution of Steven, Cop seeks to Ds counsel.
testify that Brendan, the declarant, told Cop
that "Steven and I did it." Brendan's state-
ment is offered under the statement against
interest exception. The trial judge finds that
the statement fits the exception and that it is
reliable and has special guarantees of trust-
worthiness. Is it admissible?

116. Wife Whitney makes a 911 call and tells the Not a testimonial because
police responder that husband Bob is jumping it was to resolve ongoing
on her, threatening her and that Bob is now emergency.
driving off. In this call Whitney identified Bob
as her attacker in response to questions from Admissible under excited
the responder. Whitney did not show up and utterance and/or present
did not testify at Bob's trial at which he was sense impression.
charged with domestic abuse and assault. Is
the 911 call admissible?

117. Same facts, but instead of Bob leaving, he Testimonial statement,

stayed and the police took a statement from and statement is not ad-
Whitney, saying Bob beat her. Can the officer missible.
testify to what Whitney told him?

118. The difference was explained by the Supreme "Statements taken by po-
Court in these words: lice officers in the course
of an investigation are
"non-testimonial" and not
subject to the Confronta-
tion Clause when they
are made under circum-
stances objectively indi-
cating that the primary
purpose of the interroga-
tion is to enable police as-
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sistance to meet an on-
going emergency" [Davis
v. Washington, 547 U.S.
813 (2006)] (i.e., to secure
the scene, to preserve the
safety of the declarant, to
answer the question "what
is happening").

Statements taken by po-

lice officers in the course
of interrogation are tes-
timonial and subject to
the Confrontation Clause
when the circumstances
objectively indicate that
there is no ongoing emer-
gency and that the pri-
mary purpose of the in-
terrogation is to establish
or prove events potential-
ly relevant to later crimi-
nal prosecution (i.e., the
emergency is over; the
scene is secured; now we
gather evidence; now we
find out "what happened").

119. Considerations in Determining Whether State- • Likely motivation and

ments are Testimonial intent of the declarant
making the statement (to
The issue is very case specific but factors get help or provide evi-
frequently considered are: dence?).
• Likely motivation and
intent of interrogator (to
safeguard the victim or se-
cure the scene or to get
evidence?).
• The temporal ele-
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ment (ongoing emergency
or description of past
events?).
• Identity of person elic-
iting the statement (law
enforcement connected or
acquaintance/relative of
the declarant?).
• Degree, amount, circum-
stances and location of
police interrogation (pre-
liminary on-scene ques-
tions or sustained, struc-
tured questioning?).

120. Lab Analyst Certificates Records prepared by lab-

oratory technicians show-
ing the results of blood, al-
cohol, DNA or drug tests.
Analyst reports have of-
ten in the past been ad-
mitted as business or pub-
lic records against the ac-
cused without the pres-
ence in court of the lab
technician who prepared
it. Is this practice viola-
tive of the Confrontation
Clause?

121. The accused is charged with possession of Yes these certificates are
cocaine with intent to distribute. The prosecu- testimonial, and the lab
tion offers in evidence an affidavit reporting representative must testi-
the results of the forensic analysis, showing fy.
the substance seized from the defendant was
cocaine. The technician who tested the sub-
stance and who signed the certificate did not
testify.

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Is the certificate testimonial? Would the state-
ments lead an objective witness reasonably to
believe that the statement would be available
for use at a later criminal trial?

122. The "Forfeiture by Wrongdoing" Exception to Applies: This exception

the Confrontation Requirement applies only when the de-
Even if an out-of-court statement would vi- fendant procured the un-
olate the Confrontation Clause, the state- availability of the declarant
ment can be admitted if the prosecution can by wrongdoing with the
show that defendant forfeited his Confronta- motive of keeping the wit-
tion Clause objection by wrongdoing— pre- ness from testifying.
venting the declarant from testifying at trial.

123. In a fit of anger, Ryan killed his wife, Blake. Excluded under the con-
Three weeks before the killing, Blake gave frontation clause. Excep-
a statement to the police, stating, "Ryan ac- tion only applies to Ds
cused me of having an affair and threatened conduct in preventing tes-
to kill me if he ever found me cheating on timony.
him." At his trial for murder, Ryan claimed
self-defense. In rebuttal, the police officer
seeks to testify about what Blake told the of-
ficer three weeks before she was killed. The
out-of-court statement by Blake is testimonial.
Is the statement admissible under the forfei-
ture by wrongdoing exception?

124. For each statement, write down the appropri- 1. Admitted as excited ut-
ate hearsay exception or exclusion. terance but not dying dec-
(1) Prosecution of Dean for the attempted mur- laration
der of Vince. An emergency responder will
testify that when he arrived at the scene 20 2. Admitted under seeking
minutes after Vince was shot, Vince cried out: medical treatment
"I'm not going to make it! Dean was the one
who did this to me!" Vince is currently in a 3. Admitted under present
coma. sense impression
(2) Battery lawsuit. The plaintiff's doctor will
testify that while questioning the plaintiff 4. Admitted as statement
about his headache symptoms, the plaintiff against interest

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said, "I was punched in the eye one month
ago." 5. Admitted as agency
(3) Burglary prosecution. A friend of the vic- party opponent statement
tim's nextdoor neighbor will testify that while
talking on the phone with the neighbor on
the day of the burglary, the neighbor said, "A
short man in a red T-shirt is walking out of the
house next door and he's holding three laptop
computers. It must be a repairman."
(4) Pauline, Tom, and Dave were involved in a
minor three-car accident. Tom died of unrelat-
ed causes a month later. Pauline sues Dave
for her injuries. Dave calls an eyewitness to
testify that 30 minutes after the accident, while
they were all waiting for the police, Tom said,
"Sorry, all. I guess I should have kept my eyes
on the road."
(5) While on his delivery route, a truck driver
for a furniture company hits and kills a pedes-
trian. The pedestrian's estate files a wrongful
death lawsuit against the furniture company.
The pedestrian's estate calls the truck driver
as a witness. The truck driver testifies that he
had a green light and the pedestrian suddenly
darted into the intersection. To prove that the
light was red, the pedestrian's estate calls a
police officer to testify that the truck driver
told her, "I was in a rush to make my delivery
and ran the red light."

125. 6.1 ATTORNEY-CLIENT • The right parties (attor-

Definition: Confidential communications be- ney or representative of
tween attorney and client made during profes- attorney, and client or rep-
sional legal consultation are privileged from resentative of client).
disclosure unless waived by the client or the • "Confidential communi-
representative of the deceased client. (Privi- cation" (not physical evi-
lege survives death of client.) dence or pre-existing doc-
Elements: uments).
• "Professional legal re-
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lationship," which means:
Intent by client to establish
a professional legal rela-
tionship (retainer negoti-
ations are covered). Pre-
dominantly legal advice
must be sought.

126. Exceptions (situations where privilege does • Future crime or fraud.

not apply): • At issue exception:
Where client or patient af-
firmatively puts the com-
munication at issue as
part of a claim or defense.
• Disputes between the
parties to the profession-
al relationship (actions for
fee or malpractice). Watch
out: The above 3 excep-
tions negate almost all
professional privileges.
• Joint client exception:
Where 2 or more parties
communicate with an at-
torney about a matter of
common interest, no privi-
lege between them.

127. 6.2 PSYCHOTHERAPIST-PATIENT Key elements:

Definition: The patient has a privilege against • Patient must be seeking
disclosure of confidential information ac- treatment.
quired by the psychotherapist (or social work- • Information acquired
er) in a professional relationship entered into must be confidential and
for the purpose of obtaining treatment. necessary to facilitate pro-
fessional treatment.
Watch out: Most federal courts recognize only
a psychotherapist-patient privilege and de-
cline to recognize an ordinary doctor-patient
privilege when applying federal law. Instead,

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there is a less protective rule of confidentiali-
ty. (Waiver of physician-patient confidentiality
is common especially because of the Patient
Litigant Exception.)

128. 6.3 SPOUSAL PRIVILEGES • Spousal immunity privi-

Dual privileges: There are two spousal privi- lege: Protects one spouse
leges with different rationales. They are: from being forced to testi-
fy against the other about
anything in a criminal
case.
• Confidential marital com-
munications privilege:
Protects against the
disclosure of confiden-
tial communications made
during the marriage and
applies in all cases (civil
as well as criminal).

Neither privilege applies

to intra-family injury case
(assault of spouse or
child, incest, child abuse).

129. Spousal Immunity Privilege Requirements:

Definition: • Valid marriage at time of
One spouse can't be forced to give adverse trial.
testimony against the other in a criminal case. • Protects against any and
all testimony.
• Holder of privilege is wit-
ness-spouse, not party.
• Applies only in a criminal
case.

130. Brad kills Jan in public in front of hundreds. No, classic spousal immu-
Included among eyewitnesses is wife Astrid. nity privilege
Can Astrid be forced to testify against Brad at
a murder trial?

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131. Tony Montana, a notorious gangster, is indict- No because of existence
ed by the grand jury. His moll, Elvira, knows all of marriage. Spousal im-
about his nefarious activities. Tony and Elvira munity privilege applies.
get married before the criminal trial. Elvira is
called to testify against Tony. Can Elvira be
forced to testify to premarriage facts?

132. Elvira, wife of Tony, wants to testify against Testifying spouse holds
Tony. the privilege, and spouse
Can she? witness can choose to tes-
tify.

133. Confidential Marital Communications Privi- • Married not necessarily

lege Definition: A spouse shall not be required at time of trial but at time
to or, without the consent of the other, shall of protected communica-
not be allowed to disclose a confidential com- tion (this privilege outlasts
munication made by one to the other during the marriage).
the marriage. • Protects only confiden-
Requirements (and differences from spousal tial communications, not
immunity): all testimony.
• Holder of privilege is ei-
ther spouse (not just wit-
ness-spouse).
• Privilege applies to all
cases, civil as well as
criminal.

134. Wife Elvira wants to testify against husband 1. No, only spousal immu-
Tony in his murder trial. nity can keep her off the
(1) Can he keep her off the stand? stand.
(2) Can he keep her from revealing confi-
dences made during their marriage? 2. Yes, confidential com-
(3) Can he make her reveal during marriage munications privilege can
confidences if she objects? be asserted by either
spouse.

3. No because both
spouses hold confiden-
tial communication priv-

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ilege so both spouses
must agree to waive it.

135. 6.4 APPLICABILITY OF STATE LAW IN FEDER- In civil actions or proceed-

AL COURT ings with respect to an ele-
Three situations in which state evidence law ment of a claim or defense
will apply in federal court IF state substantive as to which state law ap-
law applies (as in the typical diversity jurisdic- plies the rule of decision
tion case). (i.e., state substantive law
applies), state law will ap-
ply regarding:
• Presumptions and bur-
dens of proof
• Competency of witness-
es
• Privileges

Federal privilege law in

federal question or in fed-
eral criminal cases shall
be governed by the prin-
ciples of the common law
as they may be interpreted
by the courts of the United
States in the light of rea-
son and experience.

136. HYPO 6E State law provides the rule

Pl. sues Def. in Federal Court for breach of of decision.
a contract made and to be performed in New
York. Federal subject matter jurisdiction is Federal law applies, and
founded on diversity. Pl. raises a presumption for privileges it is federal
or a rule of competency (like the state Dead common law.
Man Statute) or one of the privileges. As to the
presumption, rule of competency, or privilege,
what law applies?
Traditional common law?
Federal common law?
Federal statutory law?

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State law?

HYPO 6F
What if the action in federal court is a suit
under the federal social security act?

137. A defendant is being sued by his insurance (C) No, because the com-
company for filing a false claim. The insurance munication was made in
company seeks recovery of payment made to confidence and took place
the defendant for the alleged theft of his car. during the marriage.
At trial, the insurance company seeks to have
the defendant's ex-wife testify that, while they
were married, the defendant told her that he
had really given the car to a friend, and cau-
tioned her not to tell anyone else about it. The
defendant objects on the ground of privilege.

Is the ex-wife's testimony admissible over the

defendant's objection?

(A) Yes, because the defendant and the ex-wife

are no longer married.
(B) Yes, because the privilege applies only in
criminal cases.
(C) No, because the communication was made
in confidence and took place during the mar-
riage.
(D) No, because a spouse may not be called as
a witness to testify against her spouse.

138. 7.1 COMPETENCY Common law disqualifi-

Personal knowledge and oath: cations abandoned: Lack
• Perception of religious belief, infancy,
• Memory mental incompetency, pri-
• Narration or convictions, or bias/in-
• Sincerity (oath or affirmation) terest are NOT a basis for
disqualifying a witness.

139.

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7.2 FORM OF EXAMINATION OF • Narrative, argumenta-
WITNESSES tive, compound, asked
Objectionable Questions and answered, assuming
facts not in evidence
EXAMPLE
Q: "Tell us everything rel-
evant that happened on
that day."

• Leading.
EXAMPLE
Q: "Isn't it true that the
sound you heard was like
a pistol shot or was it oth-
erwise?"

• Leading permitted in cer-

tain situations:
• Cross-examination.
• Preliminary questions.
• Witness needs help (W
is old, feeble, immature,
mentally weak, forgetful).
• Adverse party or under
control of adverse party or
hostile witness.

140. Witness Use of Writings to Aid Testimony Basic rule: Witness usual-
ly cannot read testimony
from previously prepared
document.

Exceptions: (1) refresh-

ing recollection and (2)
recorded recollection.

141. Refreshing Recollection When witness testimony

fails, anything can be used

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to jog the memory of the
witness.

142. Mrs. Garibaldi's house was burglarized. Def. 1. Use article to refresh
is charged. Prosecutor calls Mrs. Garibaldi to Ws recollection.
testify to the things that were taken from her
house by the burglar. She cannot remember 2. Overruled because writ-
some of the items. The prosecutor has a copy ing is not being offered
of a tabloid newspaper that reports details of into evidence, just being
the burglary, including what the burglar was used to refresh W memo-
wearing. ry.
(1) What can the prosecution do to get Mrs.
Garibaldi to remember? 3. No, inadmissible
(2) What ruling if Def. objects to use of the arti- hearsay, lack of authenti-
cle to refresh on grounds of improper authen- cation, and best evidence
tication? Not the best evidence? Hearsay? rule.
(3) Is the article admissible in evidence at the
request of the prosecution? 4. Yes, opposing counsel
(4) If the tabloid article is used to refresh, may can do all of the above.
defense counsel see it? Use it in cross-exam-
ination? Introduce the article into evidence?

143. Recorded Recollection Foundation for recorded

If witness is unable to remember all or part of recollection:
the details of a transaction about which she • Witness at one time had
once had personal knowledge, her own docu- personal knowledge and
ment shown to be reliable may be admitted in now can't remember.
place of her testimony. • Document was made by
the witness or made under
witness's direction or was
adopted by the witness.
• Document was made in
a timely manner.
• Content of document is
accurate (witness vouch-
es for it).

How it is admitted: the

document is admitted by

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being read into evidence.
It is NOT received by the
jury as an exhibit unless
the adverse party chooses
to offer it.

Hearsay: The record-

ed recollection is an
out-of-court statement be-
ing offered into evidence
for its truth, and is there-
fore hearsay. However, a
recorded recollection is an
exception to the hearsay
rule.

144. 7.3 OPINIONS Two major types: lay and

expert.

145. Lay Opinions • Rationally based on the

Lay witnesses can give opinions, so long as perception of the witness,
the opinions are: • Helpful to the trier of fact,
and
• Not based on scientif-
ic or otherwise specialized
knowledge.

EXAMPLE
"I saw the automobile and
it was going about 25
m.p.h." (Admissible.)

"In my opinion, the driver

was grossly negligent."
(Not admissible even if ra-
tionally based on percep-
tion.)

146.

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HYPO 7B May not be w/in rational
An eyewitness to a high-speed police chase perception of the lay per-
testified that "the cars were traveling at least son and thus inadmissi-
95 miles per hour." Is this opinion admissible? ble.

HYPO 7C If W can rationally per-

In a sexual harassment action, the plaintiff ceive a wink, yes, so ad-
testified, "And my employer, after telling me missible.
what a good job I was doing, winked at me and
said, 'See you later.'" If the defense objects Rationally based opinion
to the testimony about the wink, what ruling? based on perception and
Why? will be allowed.

HYPO 7D
Suppose in the same case the witness testi-
fied, "And one day my employer showed up
drunk, and was speaking in an extremely loud
voice." Is the testimony about being drunk
permissible?

147. Skilled Lay Witnesses: Yes because of prior

knowledge about a per-
HYPO 7E son's handwriting. Testi-
Handwriting. Charles's partner, Sharon, testi- mony is allowed.
fied about a contract between Charles and an-
other individual, stating: "I'm far from a hand-
writing expert, but I sure know Charles's hand-
writing when I see it, and that was Charles's
handwriting on the contract." Admissible?

148. In a money laundering case, the prosecution No. This requires qualifica-
offers an undercover police officer who has tion as an expert witness
extensive experience, over several decades,
with observing, arresting, and investigating
money laundering schemes. The witness is of-
fered as a skilled lay witness with specialized
knowledge, to provide a rationally based and
helpful opinion to the jury. Will he be allowed

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to testify without laying the necessary founda-
tion as an expert witness?

149. Expert Opinions • Personal knowledge

Experts are routinely offered as witnesses to (e.g., the treating physi-
help the trier of fact understand evidence and cian).
testimony. In a society of experts, they often • Facts presented at the
leave a significant imprint on the trial. Permit- trial (posed to expert by
ted sources of expert's knowledge at trial: hypothetical question, or
expert can attend trial and
listen to the evidence).
• Facts or data not in evi-
dence, but reasonably re-
lied upon by other experts
in the field.

150. Basic requirements for expert testimony: • Reliable theory

• Reliable application
• Reasonable certainty or
opinion
• Helpful to trier of fact
• Qualified expert
• Proper factual basis

Reliable Basis for the Tes-

timony
The real question is
whether the theory un-
derlying the testimony is
based on reliable princi-
ples or methods.

151. Madame Cleo is acknowledged to be the best No, not reliable as a basis
astrologer in the country. Can she be called as for expert testimony
an expert witness?

152. Reliability factors: The Supreme Court • Is the technique or theo-

Daubert factors of reliability in assessing the ry subject to testing?
threshold admissibility of novel scientific evi- • Is it subject to peer re-
dence: view?
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• What is the known or
potential error rate of the
technique or theory?
• Do standards and con-
trols exist?
• Has the technique or
theory been generally ac-
cepted in the scientific
community?

Reliable Application of the

Principles and Methods
E.g., what kind of tests did
the laboratory perform?
How did it perform those
tests?

Reasonable Certainty
There must be reason-
able certainty or probabil-
ity as to the expert's con-
clusions.

Assists the Trier of Fact

Helps the fact finder un-
derstand the evidence or a
fact in issue.

Qualified Witness
By education, knowledge,
skill, experience, or train-
ing.

153. The laboratory testing the DNA of the alleged No. This was not a reliably
blood of the Defendant happened to leave it handled test.
out of refrigerated storage the entire day prior
to its testing. The laboratory researcher called
this "Ummmm, an oversight." Should the tes-

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timony about the results of such tests be ad-
mitted?

154. Uncertain Uma. Dr. Uma, a radiologist, testi- No, not certain enough.
fies in a medical malpractice case about why Must be to a reasonable
a radiologist did not catch a tumor present certainty a conclusion.
on an X-Ray. When asked about whether a
competent radiologist would have caught the
tumor, Dr. Uma said, "Well, er, it is, well, I think
I or a reasonably competent radiologist, might
have possibly caught the problem, although
maybe not, depending on lots of intangibles."
Admissible?

155. The Unabomber, Ted Kazckinski, wrote numer- Yes, translators are ex-
ous missives in code while secreted away in perts and must be quali-
his shed in Montana. Can a translator testify fied then can testify
about what that code meant? Why?

156. Bob the Car Thief. Bob has stolen approxi- Yes because of a lot
mately 1,000 cars in his decade-long car theft of specialized experience
career. After finally getting caught, and serv- that qualifies him as an ex-
ing time in prison, he decides to go straight. pert.
In a car theft prosecution regarding the modus
operandi of the defendant, can Bob be called
as an expert witness on car theft?

157. Cross-Examining Experts Voir dire: On the witness's

qualifications only.
General impeachment:
May use learned treatises.

158. While driving east on a two-lane road, a truck (A) Yes, because the
collided with a westbound minivan. The acci- notes may be used to re-
dent was observed by an ambulance driver. fresh
Because the ambulance driver had a patient recollection.
on board, she did not stay at the scene of the
accident but made some notes shortly there-
after. She made her statement to the police the
next day, in which she stated that just before
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the accident, the truck swerved into the west-
bound lane, hitting the minivan. At the trial
of the minivan driver's personal injury action
against the truck driver, the ambulance driver
was having difficulty remembering some of
the facts. The minivan driver's attorney sought
to let her review the notes she had made.
Should the court permit the ambulance driver
to review her notes?

(A) Yes, because the notes may be used to

refresh recollection.
(B) Yes, because the notes are a recorded rec-
ollection.
(C) No, because the notes are inadmissible
hearsay.
(D) No, because the notes have not been au-
thenticated.

159. WRITINGS A writing is not admissi-

Two big objections: ble until it has been au-
8.1 OBJECTION #1: AUTHENTICATION thenticated. A foundation
must be laid showing that
the writing is what it pur-
ports to be, i.e., that it is
genuine. Writings are not
self-authenticating. A tes-
timonial foundation is re-
quired.

160. Pl. sues Def. for breach of a written contract. Yes

Def. denies he ever executed the contract. Pl.
offers the original contract in evidence argu-
ing that Def.'s signature on it is plainly visible
to the court. Admissible?

161. Methods of Authentication • Admission

Direct evidence in the form of: EXAMPLE
Schmerd admits he

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signed.

• Eyewitness testimony
EXAMPLE
Witness saw Schmerd
sign.

• Handwriting proof

• Expert witness may give

expert opinion by com-
paring disputed signature
with a genuine specimen
signature in evidence.

• Jury may compare spec-

imen with disputed signa-
ture.

162. • Lay witness may give opinion regarding gen- • Cannot give opinion
uineness of signature if lay witness is familiar based on in-court compar-
with signature. ison of disputed signature
Impermissible techniques by lay witnesses: with specimen;
only expert or jury can do
that.
• Must be familiar with sig-
nature but cannot become
familiar solely for purpos-
es of testifying (contrast
with voice identification:
a witness identifying a
speaker's voice may have
become familiar with the
voice at any time and un-
der any circumstances).

163. Circumstantial evidence in the form of: • Ancient document rule:

(1) 20 or more years, (2)
regular on its face, (3)

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found in a place of natural
custody.
• Solicited reply doctrine:
Proof that disputed docu-
ment came in response to
prior communication.

164. Tony mails offer to Steve and receives back Yes, strong circumstantial
by return mail what purports to be an accep- evidence Steve's signa-
tance signed by Steve. Sufficient authentica- ture is on it.
tion if Benson does not recognize Steve's sig-
nature?

165. Quantum of Proof Sufficient evidence to jus-

How much evidence is necessary to lay a tify a jury finding of gen-
proper foundation? uineness.

166. Pl. Schmerd testifies he saw Def. Bird sign the K is admissible because a
contract. Def. testifies that he did not sign. Is reasonable jury could be-
contract admissible if evidence is contradic- lieve the testimony.
tory? Must the judge be convinced by a pre-
ponderance of the evidence that Bird signed Level of proof is sufficien-
before the contract is admitted into evidence? cy not preponderance to
get evidence in.

167. Self-Authenticating Documents • Certified copies of public

The general rule is that documents are not or business records
self-authenticating, without a foundation. Ex- EXAMPLE
ceptions include: Certified copy of mort-
gage.

• Official publications
EXAMPLE
A pamphlet from the State
Motor Vehicle Dept. that
reflects on its face that it is
from the Dept.

• Newspapers and period-

icals
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EXAMPLE
A copy of the National In-
quirer offered by Pl. in a
defamation action to prove
publication of the defama-
tory article.

• Trade inscriptions or la-

bels
EXAMPLE
Pl. offers label on can of
peas to show that delete-
rious substances ingested
by Pl. came from A Green
Giant Company.

• Acknowledged docu-
ments
EXAMPLE
Shark signs twice. He
signs the contract. Then
he attaches a certificate of
acknowledgement where
he swears under oath that
he signed and executed
the contract.

• Signatures on certain ac-

knowledged documents
as provided by U.C.C.

168. Authentication of Photographs Mrs. Smith can testify that

How do you authenticate a photo? Must you the picture is a fair and
call the accurate representation of
photographer? the area at the time and
place of the incident.
HYPO 8D
Mrs. Smith witnesses an accident at the in-
tersection of Main and State on January 2nd.
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Litigation ensued. Pl.'s attorney wanted to get
into evidence a photograph of the intersec-
tion. Pl.'s attorney has no idea who took the
photograph or when it was taken. How can the
photograph be authenticated?

169. Harvey breaks into a grocery store after hours Prosecution must show
and steals money and goods. No one saw Har- CCTV operating properly,
vey do it. But the store surveillance camera the time it was operating,
provides a clear picture of Harvey burglarizing and handling of the data
the store. At Harvey's trial, the prosecution of- and by whom.
fers the picture. How can it be authenticated?

170. 8.2 OBJECTION #2: BEST EVIDENCE Requires that a party

(ORIGINAL WRITINGS) RULE seeking to prove the con-
Often the wrong answer on the bar exam. tent of a writing (includes
films, photos, X-rays and
recordings) must either
(1) produce the original
document or
(2) account for the ab-
sence of the original.

If the explanation for ab-

sence of the original is
reasonable, then a foun-
dation has been laid
for secondary evidence.
Then, either a copy or oral
testimony may be admit-
ted to prove the content of
the original.

171. The best evidence rule applies to: • Legally operative docu-
ments: Documents that by
their existence create or
destroy a legal relation-
ship that is in dispute (e.g.,
will, deed, divorce decree,

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written contract).

• Witness's sole source of

knowledge comes from a
document: Witness wants
to recite orally what he has
read.

172. Harvey is charged with murder of wife, Madge. 1. Overruled - officer prop-
At the time of his arrest, officer found in Har- erly authenticated
vey's possession an anonymous letter. It said 2. Overruled - letter not be-
"Dear Harvey, Your wife Madge has been hav- ing offered for truth of the
ing relations with Mr. Gigilo." To prove that matter asserted.
Harvey had a motive for killing Madge, the 3. Sustained - officer's
prosecution wants to offer the contents of the sole knowledge came
letter. Officer takes the stand, states he has from reading the letter;
read the letter and seeks to testify orally about best evidence rule ap-
what it said. What ruling on the following de- plies.
fense objections?
(1) Improper authentication.
(2) Hearsay.
(3) Best evidence rule.

173. The best evidence rule does NOT apply to: • Facts independent of
the writing (i.e., witness
has personal independent
knowledge of a fact that
just happens to be de-
scribed in a writing). No
need to produce the writ-
ing or explain its absence.
• Collateral documents
(writings of minor impor-
tance).
EXAMPLE
Madge happens to testi-
fy that she is divorced in
a personal injury damage
claim. Her treating physi-

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cian testifies he is licensed
to practice medicine pre-
liminary to giving his opin-
ion. No need to produce
divorce decree or license.

174. HYPO 8G No, not trying to prove

Issue is whether Scar made payment. Witness content of the receipt. Best
testifies that Witness saw Scar pay $10,000 evidence rule doesn't ap-
and get back a receipt. Does the receipt have ply to facts independent of
to be produced? the writing.

HYPO 8H Yes, because W sole

What if Witness says "I know Scar paid be- knowledge comes from
cause I read it in the receipt"? Does the receipt the receipt.
have to be produced?

175. Alternatives to Best Evidence Public records: Certified

copies admissible in place
of originals.

Voluminous documents: If
originals are too volumi-
nous to be produced in
court, summaries, charts,
or calculations are admis-
sible in place of originals
as long as (1) originals
would be admissible if of-
fered and (2) originals are
made accessible to op-
posing party.

Duplicates: In place of
originals. Carbons, photo-
graphic copies, xeroxes,
faxes are all duplicates.
A duplicate is admissible
to the same extent as

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an original (i.e., no need
to explain absence of the
original) unless:
• A genuine question is
raised about the authen-
ticity of the original, or
• The circumstances make
it unfair to admit the dupli-
cate in lieu of the original.

176. Age discrimination suit. Pl. reviews 10 years of Yes, original would have
personnel records of Def. company and finds been admissible if offered
that every employee over 50 has been fired as business records or op-
for "insufficient initiative." Through a person- posing party statement.
nel expert, plaintiff offers a summary of these
findings. Admissible?

177. An actor has denied his purported signature (D) Yes, because the as-
on a letter that has become critical in a breach sistant is familiar with the
of contract suit between him and a movie pro- actor's handwriting.
ducer. At trial, the movie producer's counsel
calls a former assistant of the actor who testi-
fies that she worked for the actor 15 years ago,
knows his signature, and proposes to testify
that the signature to the letter is that of the
actor. The actor's counsel objects.
Is the assistant's testimony admissible?

(A) No, because identification of handwriting

requires expert testimony and the assistant
does not qualify as an expert.
(B) No, because the best evidence of the
actor's handwriting would be testimony by
someone who had examined his writing more
recently than 15 years ago.
(C) Yes, because the assistant qualifies as an
expert witness for the purpose of identifying
handwriting.

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(D) Yes, because the assistant is familiar with
the actor's handwriting.

178. 9.1 QUESTION #1: WHAT TYPE OF IMPEACH- Can Impeach Own Wit-
MENT IS IT? ness
Intrinsic Impeachment Impeachment can be
Is a witness testifying? done on direct as well as
cross.

Credibility Always Rele-

vant
Cross-examination is
chained to the issues
raised on direct exami-
nation (that means the
proponent controls the is-
sues covered), but im-
peachment of credibility is
always permitted.

179. The Preemptive Strike. In a defamation action No, no preemptive strikes

in which the plaintiff was called a violent an- allowed. Have to wait until
imal by the defendant, the plaintiff offers a W takes stand before im-
witness in her case-in-chief to testify that the peachment can occur.
defendant is, in her opinion, untruthful as an
upcoming witness. The defendant has indicat-
ed she will indeed take the witness stand. Is
this impeachment testimony permissible?

180. 9.2 QUESTION #2: TYPES OF PERMISSIBLE • Contradiction

INTRINSIC IMPEACHMENT • Bias
• Convictions
• Bad untruthful acts
• Testimonial capacities
• Statements (prior incon-
sistent)
Acronym: CBC BATS

181. Contradiction Yes, proper contradiction

Correcting factual errors by a witness. impeachment
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HYPO 9B
An eyewitness to a fatal auto accident was
asked what she had done immediately prior to
the accident, and the witness stated she was
in Torts class. On cross-examination, she was
asked, "Weren't you in Contracts class prior
to observing the accident?" Is this question
permissible?

182. Bias (Interest, Motive, Corruption) Yes, shows W may have

Non-neutral testimony. motive to favor the D, and
thus there might be bias.
HYPO 9C
IOU. Cassandra testified for the defendant in a
mayhem prosecution. On cross-examination,
the prosecutor asks Cassandra whether she
previously borrowed $20,000 from the defen-
dant, and whether that amount is still out-
standing. Are these questions permissible?

183. Convictions Staleness: Generally, 10

Two types: years from date of convic-
• Crime of dishonesty or false statement tion or release from prison
(felony or misdemeanor) (whichever is later).
• Any other felony
Balancing test:
• For crimes involving dis-
honesty or false state-
ment, court has NO DIS-
CRETION TO EXCLUDE.

• For felonies not involving

dishonesty or false state-
ment, see Rule 403 (but
there is a special balanc-
ing test when the witness
is the defendant in a crim-

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inal case: probative value
must outweigh prejudice).

184. HYPO 9D Yes, crime of dishonesty

In a conversion action, the star witness for the or false statement
plaintiff testifies. On cross-examination, she is
asked, "Isn't it true that you have been convict- Yes, must use 403 balanc-
ed of fraud, a misdemeanor?" Admissible? ing test.

HYPO 9E
The same witness is then asked, "Isn't it true
that you've been convicted of aggravated bat-
tery, which is a felony?" Admissible?

185. A defendant is on trial for aggravated kidnap- (A) Yes, if the court deter-
ping. At trial, the defendant takes the stand mines that the probative
and testifies that he did not commit the crime. value of the conviction out-
On crossexamination, the prosecutor seeks to weighs the prejudicial ef-
ask the defendant whether he had been con- fect to the defendant.
victed of armed robbery, a felony, five years
ago. Is the prosecutor's question proper?

(A) Yes, if the court determines that the pro-

bative value of the conviction outweighs the
prejudicial effect to the defendant.
(B) Yes, unless the court determines that the
probative value of the conviction is substan-
tially outweighed by the prejudicial effect to
the defendant.
(C) No, because robbery does not involve dis-
honesty or false statement.
(D) No, because a prior conviction must be
proved by the record of conviction.

186. Bad Untruthful Acts A witness may be im-

peached with acts proba-
tive of untruthfulness. The
examining attorney must
accept the witness's an-

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swer; extrinsic evidence is
never allowed.

187. A bartender sued a customer for battery af- (A) Yes, because the
ter the parties had a physical altercation at manager's misconduct in-
the nightclub where the bartender worked. The volved untruthfulness.
bartender called the manager of the nightclub
as a witness, and the manager testified that
she saw the customer make an unprovoked
attack on the bartender. On cross-examina-
tion, the customer's attorney asks the manag-
er, "Didn't you cheat on your taxes four years
ago?"
Is the question by the customer's attorney
proper?

(A) Yes, because the manager's misconduct

involved untruthfulness.
(B) Yes, provided that the manager's miscon-
duct resulted in a conviction.
(C) No, because a witness cannot be im-
peached with a specific instance of miscon-
duct.
(D) No, because the tax return in question
would be the best evidence.

188. Testimonial Capacities Yes, tests testimonial ca-

Attacking the perception, memory, or narra- pacities of the W
tion of a witness.

HYPO 9H
In the film, "My Cousin Vinny," a prosecution
witness admittedly wore glasses. Vinnie, the
defense counsel, used a tape measure to ap-
proximate the estimated distance from which
the witness observed the events. Vinnie then
asked the witness to tell him how many fingers
he was holding up. After the judge answered
correctly, Vinnie tried again. Allowed?

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189. Statements, Prior Inconsistent Ones by the Yes because it's a prior
Same Witness inconsistent statement in
addition to being an im-
HYPO 9I peachment statement
In a robbery trial, the witness, Bowie, is asked
how long the robbery took. He testified that
it took less than two minutes. On cross-ex-
amination can the witness be asked, "Didn't
you say in your deposition last month that the
robbery took 'a real long and agonizing ten
minutes?'"

Note: Extrinsic evidence of a witness's prior

inconsistent statement may only be used if
the witness is given an opportunity to explain
or deny at some point during the trial; can
be before or after the extrinsic evidence is
introduced. (This requirement does not apply
to opposing party statements.)

190. 9.3 QUESTION #3: EXTRINSIC IMPEACHMENT When is extrinsic im-

AND THE COLLATERAL ISSUE DOCTRINE peachment important?
Only non-collateral (i.e., important) impeach- • Bias
ment issues. • At issue
• Testimonial capacities
• Convictions
• Reputation or opinion ev-
idence

191. Bias Yes, bias is not collateral.

HYPO 9J
On cross-examination, the primary defendant
witness is asked whether he had received a
$100,000 loan from the defendant. The witness
said, "No way; that's preposterous." Can the
plaintiff offer a new witness to testify about
the loan's existence?

192.
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At Issue Yes, it is at issue in this
HYPO 9K case and important to re-
Auto accident; negligence action. The plain- solving the issue.
tiff's star witness, Shirelle, testified "I saw the
defendant's green car run the red light." On
cross, Shirelle denied she had told a friend,
Teddy, that "The car that ran the red light was
light yellow in color." Can the defense call
Shirelle's friend to testify about Shirelle's con-
tradictory statement?

193. Testimonial Capacities Yes, shows testimonial ca-

HYPO 9L pacity
If a witness claimed she had perfect 20/20
eyesight, can opposing counsel Vinnie call the
witness's ophthalmologist to testify that the
witness had 20/200 eyesight?

194. Convictions Yes, it is non collateral.

HYPO 9M
Suppose a witness at trial denied being con-
victed of attempted murder. Can counsel of-
fer the certified copy of the conviction in evi-
dence?

195. Reputation or Opinion Evidence of Untruthful- Yes, reputation and opin-

ness ion, no specific acts al-
HYPO 9N lowed.
Witness Wilma testifies against Barney in a di-
vorce proceeding. After Wilma leaves the wit-
ness stand, Barney calls Fred to testify that
Wilma has a reputation in the community for
being untruthful. Permitted?

196. 9.4 QUESTION #4: IS THE IMPEACHED PER- Rule: When a hearsay
SON A HEARSAY DECLARANT? statement has been ad-
mitted in evidence, the
credibility of the declar-
ant may be attacked by
any evidence which would
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be admissible for that pur-
pose if declarant had tes-
tified as a live witness.

197. Snow is stabbed, goes to hospital and tells po- Yes because he would
lice officer "I am dying, Ollie did it." Two days have been impeached this
later, Snow is feeling much better and he tells way if he lived to testify.
Nurse "Hardy stabbed me. Now it looks like Nurse statement was not
I will survive." Alas, Snow dies a week later. dying declaration, but ad-
Ollie is prosecuted for the murder of Snow. missible as prior inconsis-
Officer is allowed to testify to Snow's dying tent statement.
declaration which implicates Ollie. In rebuttal,
the defense calls Nurse. May she testify to Foundation requirements
Snow's statement to her that "Hardy stabbed are not required.
me?" Why or why not?

If your answer is yes, what happens to the

foundation requirement? Isn't the declarant,
Snow, supposed to be given an opportunity to
deny or explain the inconsistent statement?

198. 9.5 REHABILITATION • To rebut claim of re-

When: After impeachment. cent motive or influence to
Prior Consistent Statements fabricate (prior consistent
When? statement must have been
made before motive or in-
fluence arose).

• To rehabilitate witness
who has been impeached
on some other ground
(e.g., prior inconsistent
statement or faulty memo-
ry).

199. Good Reputation or Opinion Evidence Attack on witness's gen-

Prerequisite: eral bad character for
truthfulness (e.g., prior
bad acts, prior convic-

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tions, reputation or opin-
ion evidence of untruthful-
ness). Something specific
like bias, sensory deficien-
cy, etc., does NOT count
as an attack on the wit-
ness's general character
for truthfulness.

200. At the defendant's trial for burglary, he calls a (D) "Didn't your most re-
witness who testifies that she was in her back- cent employer fire you for
yard sunbathing at the time of the charged embezzlement?"
burglary and saw the assailant run from the
victim's house. She further testifies that the
person who ran from the victim's house was
not the defendant.

On cross-examination by the prosecutor, to

which of the following questions would a de-
fense objection most likely be sustained?
(A) "Weren't you convicted of misdemeanor
forgery eight years ago?"
(B) "Weren't you under the influence of hal-
lucinogenic drugs at the time you were sun-
bathing?"
(C) "Wasn't the defendant your college room-
mate?"
(D) "Didn't your most recent employer fire you
for embezzlement?"

201. 10.1 PRELIMINARY QUESTIONS OF Preliminary questions

ADMISSIBILITY concerning the qualifica-
Who decides evidence issues? tion of a person to be a
Preliminary Questions of Fact Upon Which witness, the existence of
Admissibility Depends a privilege, or the admissi-
Rule: bility of evidence shall be
determined by the court.
In making its determina-
tion, it is not bound by the

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rules of evidence (except
privilege).

202. You offer the declarant's transcript into evi- Judge decides questions
dence as former testimony. Unavailability of of admissibility and can
the declarant is a fact question upon which take into account hearsay
admissibility depends. There is a dispute be- letter even if it is hearsay.
tween you and your opponent over this fact
question. You hand the judge a signed unau-
thenticated letter purporting to be from the de-
clarant, which states "I am unavailable." Who
decides the question of unavailability, judge
or jury? May whoever decides take account of
the hearsay letter?

203. In a homicide case, officer attempts to tes- Affidavit may be hearsay

tify to Victim's dying declaration. At issue is but can be used by judge
the Victim declarant's state of mind. Was he to make determination re-
speaking under a sense of impending death? garding Vs state of mind.
The prosecutor offers a doctor's hearsay affi-
davit which states that, given Victim's medical
condition, he must have known he was dying.
Can the affidavit be used to determine Victim's
state of mind? Used by whom? Judge or jury?

204. 10.2 JUDICIAL NOTICE OF FACT Facts That Can Be Judi-

Judicial notice by a judge occurs with facts cially Noticed
when the fact is beyond dispute and can be • Facts that are general-
readily proven. It is a proof substitute used ly known in the court's
when too much evidence of an issue exists. territorial jurisdiction (e.g.,
New York City is in the
state of New York).
• Facts that can be ac-
curately and readily de-
termined by consulting
sources whose accura-
cy cannot reasonably be
questioned (e.g., the al-
manac).

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Conclusiveness
• Civil cases: The court
must instruct the jury to
accept the judicially no-
ticed fact as conclusive.
• Criminal cases: The
court must instruct the jury
that it may or may not ac-
cept the judicially noticed
fact as conclusive.

205. 10.3 PRESUMPTIONS AND INFERENCES Destroying Presumptions

Presumptions present the opposite is- in Civil Cases
sue—there is too little evidence on an issue A presumption is de-
to let the case go forward to the jury. For stroyed when the adver-
example, a party can prove that a letter has sary produces evidence to
been properly mailed, but not that it has been rebut the presumption.
received. Presumptions change the facts to be
proved to smoke out evidence and promote Criminal Cases
policy. A defendant in a crimi-
nal case does not need to
produce evidence to rebut
a presumption (i.e., there
are no mandatory pre-
sumptions against crimi-
nal defendants).

206. 10.4 LIMITED ADMISSIBILITY Some evidence is admis-

sible for some purposes
and not others (e.g., char-
acter or impeachment evi-
dence) and against some
parties and not others.
Judges can be asked to
give limiting instructions if
evidence has been admit-
ted for a limited purpose or

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against some but not all of
the parties.

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