EVIDENCE ONE-SHEET

Approach to Evidence Questions: Is the cause of action civil or criminal? Next, situate the proceeding to figure out if it is direct or
redirect or a party or witness. Finally, evaluate whether evidence is for substantive or impeachment purposes. When evidence rules not
applicable- prelim hearings, grand jury, sentencing and probation, for warrants, OBJECTIONS-must be timely and specific to preserve
appeal. OR plain error rule (very rare) subst. right affected, serious error egregious. Motion in limine: It is the exclusive province of the
trial judge to rule on the admissibility of any given item of evidence, Usually done outside presence of jury. Once evidence has been
admitted, it is the function of the fact finder, for example, the jury, to determine the weight and credibility of the evidenc e. Can be admitted
for limited purposes, and jury instructed accordingly
200s- Effect of judicial notice 1) commonly known- ( science geog, dates etc) 2) capable of accurate determination- mortgage rates,
blood typing, mortality tables- JUDGE cannot take notice just because w/in their personal knowledge. Can be requested pre trial, during or
on appeal, Opposing party need no notice. Once on notice, no contradictory ev permitted. EFFECT: Civil jury must accept as conclusive;
criminal jury may accept as conclusive..300s- civil cases only- PRESUMPTIONS- most are rebuttable
400s - Relevant evidence is evidence tending to make any fact more probable or less probable. FRE 403, probative value substantially
outweighs risk of unfair prejudice, confusing the issues, wasting time, misleading the jury, cumulative ev. Direct and circumstantial ok.
FRE 404- CHARACTER- gen inadmissible to prove conformity therewith. EXCEPTIONS: when character an essential element in cause
of action or claim. 1) defamation 2) child custody 3) neg, entrustment 4) neg hiring 5) entrapment in crim case. Then can use reputation
(must establish aware of reputation) opinion (must est sufficient knowledge) or specific acts from 405. IN CRIM CASES- prosecution
cannot initially introduce char ev. Issue must be raised by def first, w/ ev of pertinent own good charac. Then prosec can rebut with
reputation or opinion ev. OR if def attacks nature of the victim, def opens door to ev on himself for THAT trait only, ie reputation and
character for violence. When D claims self defense, prosec CAN ONLY REHABILITATE VICTIMS CHARACTER MIMIC rulecharacter can be offered for other purposes: Motive, Intent, Mistake, absence of, Identity, Common Scheme or plan, AND knowledge,
opportunity or preparation OR IMPEACHMENT Specific acts usable on c-x. Note special rules for rape cases: 412, (rape shield
exception) Reputation or opinion evidence is generally inadmissible to show that victim engaged in other sexual behavior or had a sexual
predisposition. However, in criminal case, evidence of sexual behavior is allowed 1) to show consent in past with D 2) past acts with
other to show other source of semen 3) if exclusion would violate the const. rights of D, such as confrontation clause 413, 414-in criminal
cases of child molestation and sexual assault- prior specific acts admissible on any matter 415 civil cases of child molestation and sexual
assault- prior specific acts admissible on any matter. Preponderance of evidence applies, and acts need not have been tried.
FRE 406- Habit or routine-of indv or business- Regular response to a given situation that is done without a high degree of forethought is
admissible to show conduct in conformity. witness may testify on own habits FRE 407 Subsequent remedial conduct inadmissible to
prove negligence, design defect or need for warning. (may be admitted to prove ownership, control, feasibility of precautionary measures,
IF IN CONTROVERSY, and for impeachment) 408 - Settlement offers civil case- Note that a dispute must exist as to amount of fault.
Offers of compromise can be used against a witness to show bias, negate contention of undue delay, obstruction of justice). If no dispute as
to liability or amount, offer can come in. 409 - Payment or offer to pay medical expenses-offers inadmissible to determine liability 410
Offer to plea guilty, withdrawn pleas, nolo contendere made to prosecutor- inadmissible against D in later proceedings. NOT
APPLY TO STMTS TO POLICE applies to guilty pleas w/d, no contest, offers to plead guilty. Guilty plea(waiver of jury trial) may be
admitted in subsequent civil and criminal cases or as impeachment 411 - Liability insurance not admitted to prove liability(may be
admitted to prove agency, ownership or control). Or bias of a witness. Stments serverable from other admissions. 500s-Privilege
Communication is protected but not the information. Only confidential communications are privileged. KNOWN eavesdroppers destroy
confidentiality. Is the holder asserting? GENERALLY- ATTY- client is holder, communications and conduct intended to be confidentialNOT bloody clothing, not pre-existing docs, atty work product, but confession would be privileged. Privilege survives clients death, and
can be asserted by lawyer or executor. Waiver-failure to assert timely, total waiver only if waiver was intentional. Not waiver, if not
intended, or client took reasonable and timely steps to protect. EXCEPTION- future crime or fraud, and when client sues attorneyIdentity
not gen covered , fee arrangement, or billing records, not covered DOC/PATIENT statutory-extends to social workers, marriage
counselors, to protect conf. communications, for diagnosis and treatment EXCEPTIONS- commitment hearings, when exam by court
order, med condition part of claim, (ie pers inj) future crime or fraud. SPOUSAL-1) testimonial- witness spouse cannot be forced to
testify re communications, observ and impression, witness spouse hold priv in fed law. Covers time during and before marriage, must be in
criminal case, lost upon divorce EXCEPTION- suit between spouses, or suit involv child 2) marital comm priv- asserted by either spouse,
civil and criminal, protects only intended confidential communications, (not observ) only during marriage . divorce has no effect. Survive
death of spouse. EXCEPTIONS- crimes of one spouse against other or against kids, or when suit between spouses. JOINT
PARTICIPATION- excludes communications made in furtherance of a crime CLERGY- confid communic. in capacity as spiritual adv.
can be asserted by either, no exceptions. VOTING, TRADE SECRETS, STATE SECRETS, GOVR CAN ASSERT PRIV OF
INFORMANTS, EXECUTIVE PRIV- to president, applies although pres has absolute priv to refuse matters of nat security. FIFTH
AMENDMENT-applies to testimonial ev. Pros may not comment on def refusal to testify. Testimony at prelim not waive fifth amend priv
at trial. WITNESSES- 600s-601- every person competent. Dead man statute only applied via Erie Doctrine (no federal DM statute) 602;
lay witn must have pers knowl. . 603- must declare intention to testify truthfully If witn refuses to take oath, SHALL not testify. 604translators are expert witnesses take oath to translate faithfully 605- judge incompetent 606- juror cannot testify. Impeachment 607anyone can impeach Credibility of a witness can be attacked by any party by intrinsic,(CX, pressing) but not extrinsic evidence(other
witnesses, records or exhibits) (collateral matter rule) -BIAS or prejudice not subject to collateral matter rule. can attack sensory defects.
608a-credibility may be attacked by reputation, or opinion. Ev of truthfulness ok after its been attacked. 608b- cts permit specific
instances of misconduct to be inquired into in CX to attack credibility, if probative and not too remote in time. Can be of the witness
himself, or another witness about the first witness 609 MISDEMEANORS NOT ADMISSIBLE INLESS INV DISHONESTY supersedes
collateral fact rule for felonies and crimes inv dishonesty- civil and criminal- all witnesses 1) felonies- > 1 year or death, other than
accused, needs to be balanced with 403. If against D, prob value must o/w prejudice 2) dishonesty or false stmt-felony and misd. Can come
in, as long as equal to or less than 10 years old. Perjury, counterfeiting, larceny by trick, forgery, tax evasion, false pretenses, crim fraud,
embezzlement CRIMES INVOLVING DUF- Deceit, untruthfulness or falsification MORE THAN 10 YR inadmissible unless prod o/w

EVIDENCE ONE-SHEET
prejudice. Notice must be given and judge does balancing test. 10 years Based on date of conv or date of release , whichever more
recent. Pardoned- not usable arrest records or indictments not admissible. FRE 610 Religious beliefs are not admissible.to impair or
advance credibility. 611- examination of witnesses-Court controls. Leading questions are permissible on cross-x but not on direct
examination. CX is limited to subject matter of direct. Leading may be permissible on direct for hostile witness, child witness, to refresh
witnesses recollection, expert testimony preliminary questions 612 writing to refresh recollection- writing cannot be introduced into ev.
Not authentication needed. Opp counsel may inspect, use on CX, and introduce portions into evidence to impeach NOT THE SAME AS
PAST RECORDED RECOLLECTION hearsay rule. 613- prior incost. Stmt- oral or written, need not be shown to witn, but must show
opp counsel. Witn must be allowed to explain at some time, and opposing counsel gets time. If not under oath, may only be used for
impeachment. 614- ct on own motion can call lay witn, and then all parties get a chance. Ct may also question any witness called by a
party. 615- At req of party, witnesses SHALL be excluded until they testify. Party cannot be excluded. Experts can remain, statutorily
exempt- crime victims. ERROR to fail to exclude. Remedy is mistrial.
700s- 701- lay witn op must be from pers knowledge and helpful, incl measurements, emotions, tall, intoxicated, smelled, NOT legal
conclusions 702-experts must be qualified in area with special skill, knowledge, educ, training. Can be based on reliable, other witness
testimony, or scientific writings, Daubert rule TAPES- been tested, gen acceptance, peer reviewed, error rates, standards 703 experts can
rely on personal knowledge, or reasonable reliance on items in the field even if inadmissible 704 Experts may touch on untimate issues,
but not give strictly legal conclusions, like contrib, negligent, etc. if mental state meets legal insanity standard, intent. 705 experts can rely
on information without disclosing, but must do so if asked, and can be used on CX, 706 ct may on own appoint expert witn,, must advise
findings and allow for deposition, and CX at trial.
800- HEARSAY-oral or written, or assertive conduct. Non assertive=non hearsay NON HEARSAY PURPOSES- proof of notice, motive,
knowledge, intent . NOT HEARSAY- words of Independent legal significance (words of contract, will, or deed, tortious words, defamatory
words) stmtn for state of mind, or impeachment. 801- federal NOT hearsay, FOR USE AGAINST DECLARANT OR OPPOSING
PARTY 1) declarant/witness prior stmtn- A. inconsistent- was given under perjury at a hearing B. consistent- to rebut and to
rehabilitate 2) opposing party stmt (direct- -personal know not required), party adopted, stmt as own, authorized,-by partys agentvicarious,-by partys employee, during empl and w/in scope of emply and by co-conspirator - )
FRE 803 (23 EXCEPTIONS-unavailability immaterial) PRESENT SENS IMP- describing event while or imm after declarant perceived
it (can be 911 tape) EXCITED UTTERANCE- stment made while declarant was under stress of startling event THEN EXISITING
MENTAL EMO OR PHY CONDITION- stmt regarding declarants state of mind or other condition , NOT STMENT OF MEMORY OR
BELIEF, unless regarding validity or terms of will by testator STMT FOR MEDICAL DIAG OR TX- records, RECORDED
RECOLLECTION- a record that witness once knew about but cannot not now recall, was made by witness when matter was fresh,
accurately reflects their knowledge. (only admitted by party not offering) RECORDS OF REG ACTIVITY-made in regular course of
business, at or near time, element of trustworthiness police records not admissible under this rule ABSENCE OF RECORDS-private of
public- if offered to prove that records normally kept, and lack of it means non-occurrence. After diligent search. PUBLIC RECORDS
AND REPORTS-prepared pursuant to legal duty, weather bureau, birth and death records, IN CRIM CASES, POLICE REPORTS
INADMISSIBLE AGAINST ACCUSED, BUT OK AGAINST PROSECUTION RELIGEOUS RECORDS-baptism, ancestry, etc.
CERTIFICATES OF MARRIAGE AND OTHER CEREMONIES- by person authorized to make cert, issued at time FAMILY RECORDStombstones inscriptions, urn, family records in bibles DOCS AFFECTING INT IN PROP- ,if matter stated relevant to docs purpose
ANCIENT DOCS- in docs 20 yrs old whose authenticity established MARKET REPORTS- phone books, credit reports retai sales
catalogs, Kelley Blue books, WSJ LEARNED TREATISE- textbooks , learned journals , can be read into evidence through judicial notice,
or through expert testimony, or stipulate- REPUTATION OF FAM HX- reputation among family or persons association concerning birth
adoption, ancestry marriage etc REPUTATION CONERN BOUNDRIES- reputation in comm re boundaries REPUTATION OF
CHARACTER- among persons associates in community JUDGMENT OF PREVIOUS CONVICTION- must be certified copy- if entered
by trial of guilty plea for felony, when offered by prosecutor for purpose other than impeachment JUDGMENTS INV FAMILY
PERSONAL HX OR BOUNDARIES- FRE 804- DECLARANT MUST BE UNAVAILABLE- PRISM- to be avail, the declarant must
be unavailable due to PRIVILEGE, REFUSAL (despite ct order) INCAPACITY, SUBPOENA ( WITN STILL NOT ATTEND) MEMORY
( witn lack present memory) Proponent of evidence bars burden to prove unavailability 1) former testimony, under oath, same subject
matter, but not necces the same cause of action, w/ cx or functional equiv 2) STMT under belief of imminent death- homicide or civil
cases only 3)not same as 801 - STMT against interest when made- personal knowledge req- reas person would only make such stmtn if
true, b/c so contrary to their (pecuniart, penal or proprietary) interest, sup by corroborating info indicating truthfulness 4) STMT of
personal Hx- (PEDIGREE EXCEPTION) stmt of unavailable decalrant or other person, declaring about declarants birth, marriage or
family HX, even if no personal knowledge 5) Forfeiture by wrong doing- statement against person will be admissible if that party is
responsible for the unavailability of the declarant 805- hearsay w/in hearsay hearsay within hearsay must pass its own test for
admissibility- either exclusion or exception, ie statements inside medical records) 806- impeachment of hearsay declaranrt accomplished
same as present witness, though other witnesses, inconsistent stmts etc. 807- not otherwise excluded, but material and probative.
CONFRONTATION CLAUSE- 6th amend guarantees right of accused to confront accusers. intentional testimonial stmnt(intending to
accuse) to police not admissible unless declarant unavil AND D had opp to CX dying dec not apply, and D waives confrontation if they
are cause of witness unavailability 900s- Authenticated For real and demonstrative evidence, sufficient foundation must be laid to
show that item is what proponent claims. Condition precedent to admissibility of evidence. Can be authenticated through testimony of
personal knowledge, distinction markings or chain of custody. Self-authenticating documents: CONTAC (Certified copies of public
documents, official publications, newspapers and periodicals, trade inscriptions, acknowledged documents, commercial paper)
ASSESSING WRITINGS- OPRAH- is itOriginal? Privileged? Relevant? Authenticated? Hearsay? 1000s- Best evidence rule: where
at issue-original is required , except as otherwise provided. Applies to 1) legally operative docs (contracts, wills, deeds, movie at issue in
obscenity case, xrays in malpractice) 2) testimony reliant on writing ie. police officer testifying about stmt in diary, need diary. Doc
testifies about x-ray he saw, needs xray 3) BER not apply to where facts in writing can be proved by other independent means ( if cannot,

EVIDENCE ONE-SHEET
needs writing) Exceptions for original: 1003- xerox or duplicate unless question of authenticity) certified copy of public record(1005), or
summary of voluminous records(1006)
1004- other evidence of contents can be admitted when LOCS LOST, Opponent holds original, Collateral ( if not at issue, not need
original) Subpoena ( original cannot be retrieved by subpoena)
1006-orig must be admissible hearsay exception, opponent has reasonable pre-trial access, authenticated by preparer
1008- judge determines if BER applies, relevancy, good cause need for writing ( preliminary matters) OR if conspiracy exists. JURY
determines issues of fact, did original exist, is it accurate, how much weight to give