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Evidence 1 Relevance Logical Relevance (401) o =evidence that has a tendency to prove or disprove a material fact.

. o **evidence may not be logically relevant if it involves some other Time, Event, or Person. Exception: Similar Occurrences Where evidence is admissible even though it does not directly involve some time, event, or person involved in the litigation. (1) Causation: to prove cause and effect (2) Prior Accidents or Claims: s prior accidents & claims are NOT admissible by . o Exceptions: (1) to show common plan & scheme of fraud; (2) relevant on the issue of damages. (3) Intent or State of Mind in Issue: to infer intent from prior conduct. (4) Rebuttal Evidence: to rebut defense of impossibility (opponent opened the door saying it is impossible for this to happen) (5) Comparable Sales to Establish Value: sale price of other chattels or parcels of land is admissible if the other chattel or land is (1) of same general description; (2) valued at same time period; (3) same general geographic area. (6) Habit Evidence: habit of a person to act in a certain way is relevant to show that person acted in the same way on the occasion in question. o Habit= specific, detailed conduct o Recurrence*- acts in such a way often enough to show it is habitual o Language of Habit= always; instinctively; automatically o Character & Prior Act evidence is not admissible, but Habit is. (7) Business Routine: routine practice of an organization is admissible just like habit. (8) Industrial or Trade Custom: admissible as non-conclusive evidence of standard of care. Legal Relevance (403) o Relevant Evidence is excluded if its PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF (1) Unfair Prejudice; (2) Confusion of Issue; (3) Misleading Jury; (4) Undue Delay; (5) Waste of Time; (6) Cumulative Evidence o Specific Public Policy Exclusions Liability Insurance General Rule= Not admissible to show person acted negligently or wrongfully or to show ability to pay. Exceptions: (1) show ownership or control; (2) Impeach credibility of witness by showing interest, bias, or motive. Subsequent Remedial Measures General Rule= not admissible to show negligence, culpable conduct, a defect in a product a defect in a products design or a need for a warning or instruction. Exception: (1) show ownership or control; (2) Impeachment- feasibility of precautionary measures (if says there are no safety measure I could do)

Evidence 2 Settlements General Rule= not admissible to prove fault, liability, or amount of damage This BROAD rule covers: (1) actual compromises; (2) offers to compromise; (3) offers to plead guilty in a criminal case; (4) withdrawn pleas of guilty; (5) pleas of nolo contendere **admissions of fact, liability, or damage made in course of offer to compromise a claim disputed as to liability or as to amount are NOT admissible. o Must be (1) a claim; (2) claim is disputed as to either liability or amount (if no claim and admission accompanies an offer to pay medical bills, admission may be admitted).

Character Evidence Civil Cases o CE not admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event. o CE is admissible in a civil case when the character of a person is itself a material issue in the case. Criminal Cases o Rule 1: Bad character (opinion, reputation, or specific acts) is NOT admissible to show acted in conformity with that character. o Rule 2: Mercy Rule: is permitted to offer evidence of Good character (only reputation and opinion) to show disposition in order to infer evidence. If shows good character, Prosecution can call witnesses to testify to bad opinions or bad reputation (not specific acts) character evidence of . If s witnesses testify to good character (reputation & opinion), the prosecution, on cross examination, can inquire about Specific Acts. (Only on cross; cannot call new witnesses to testify as to the specific acts.) Prosecution can also attack witnesss credibility by showing witness own prior convictions for perjury or bad reputation for thruthfulness o Rule 3: Self-Defense Rule: accused may take the initiative in Homicide or Assault cases, as part of the self-defense plea, to show the reputation or opinion character evidence of the VICTIM. If attacks character of victim, prosecution can (1) show good reputation or opinion evidence of the victim, OR (2) show bad reputation or character evidence of the . o Rule 4: Sexual Misconduct Cases In a case alleging sexual misconduct, cannot show evidence of victims reputation or opinion. Exception: can show specific acts of sexual behavior to (1) prove 3rd party was source of semen, injury; (2) prove prior acts of consensual sex between victim and ; (3) if exclusion would violate constitutional rights of . **(in civil cases, evidence of sexual disposition is admissible if probative value substantially outweighs prejudicial effect o Rule 5: s other crimes & misconduct for Non-Character Purpose (M I M I C) Prior bad acts are admissible by the prosecution when it is relevant to prove a material fact other than character or disposition (403 still applies)

Evidence 3 (1) Motive; (2) Intent; (3) Opportunity; (4); Preparation; (5) Plan or Scheme; (6) Knowledge, (7) Identity & Modus Operandi (i.e. trademark, signature); (8) Absence of Mistake; (9) Prior Acts of Sexual Assault or Child Molestation Only to show propensity In civil or criminal cases where is charged with sexual assault or child molestation, s prior bad acts of sexual assault or child molestation may be shown by prosecution. (403 still applies) Only times you can show prior specific acts o Character is an issue (for damages or material element of the case) o On cross-examination of a s witness who testifies as to s good reputation or opinion o In sexual misconduct cases, and only under limited circumstances o Non-character purposes (MIMIC- motive, intent, absence of mistake, identity, common plan or scheme)

Writings Authentication: A writing is not admissible until it has been authenticated. A foundation must be laid showing that the writing is what it purports to be; i.e. that it is genuine. o Methods of Authentication Direct Evidence: (1) admission, (2) eye witness, (3) handwriting proof Circumstantial Evidence: Ancient Document Rule: (1) 20 or more years, (2) regular on its face, (3) found in a place of natural custody. authenticated. Solicited Reply Doctrine: proof that disputed document came in response to prior communication Proof: need only show sufficient evidence. Self-Authenticating Documents General Rule: documents are not self-authenticating. But certain writings without a foundation or testimonial sponsorship are allowed: o (1) Certified copies of public or business records (i.e. certified copy of mortgage); (2) Official publications (i.e a pamphlet of the State Motor Vehicle Dept. which reflects on its face that it is from the Dept.) (3) Newspapers and periodicals (i.e. a copy of the National Inquirer offered by in a defamation action to prove publication of the defamatory article.) (4) Trade Inscriptions or Labels (i.e. offers label on can of peas to show that deleterious substances ingested by came from Green Giant Company); (5) Acknowledged Documents; (6) Signatures on Certain Commercial Documents as provided by the UCC Authentication of Photographs: to authenticate a photograph, all you need is for a witness to state that it is a fair and accurate description Best Evidence Rule: a party seeking to prove the contents of a writing must either (1) produce the original document; or (2) account for the absence of the original. If the explanation for the absence is reasonable, then a foundation has been laid for secondary evidence. Then, either a copy or oral testimony may be admitted to prove the content of the original. o BER applies to: Legally Operative Documents: documents that by their existence create or destroy a legal relationship that is in dispute. (i.e. deed, will, contract) Witness sole knowledge comes from a document: witness wants to recite orally what he read.

Evidence 4 o BER does NOT apply to: Facts independent of the writing: witness has personal knowledge of a fact that just happens to be described in a writing. No need to produce the writing or explain its absence. (i.e. can prove birth without birth certificate. Can prove payment without the receipt) Collateral Documents: BER does not apply to writing of minor importance (i.e. divorced witness testifies in personal injury case- doesnt have to produce divorce decree). o Modifications to BER Public Records: certified copies admissible in place of the originals Voluminous Documents: of originals are to voluminous to be produced in court, summaries, charts, or calculations are admissible if (1) originals would be admissible and (2) opposing party gets originals DUPLICATES: a duplicate is admissible to the same extent as the original (i.e. no need to explain absence of the original) UNLESS: A genuine question is raised about authenticity of the original OR It would be unfair to admit the duplicate in lieu of the original. Witness & Testimonial Evidence Competency o Requirements: (1) PERSONAL KNOWLEDGE & (2) OATH Personal Knowledge= perception & memory (& witness must be able to communicate) o Common law disqualifications abandoned: (lack of religious belief, infancy, mental incompetence, prior convictions, interest [1 exception- dead mans acts] Dead Man Acts (usually a wrong answer on the MBE) o Typically Statute: an interested survivor cannot testify for his interest against a decedent or decedents representative about communications or transactions with the decedent in a civil case unless there is a waiver. Objectionable Questions o Narrative: lawyer must ask questions o Leading: question which suggests the answer Exception: leading questions permitted in certain situations: (1) crossexamination; (2) direct- as to preliminary matters; (3) hostile witness o Compound: double question. o Misleading & Argumentative: kind of question which assumes is true something in issue Witness Use of Writing to Aid of Testimony o General Rule: Witnesses cannot read testimony from previously prepared document; But may use a writing in aid of oral testimony in two situations. Refreshing Recollection: when witness memory fails, anything can be used to job their memory. ANYTHING CAN BE USED TO REFRESH (someone else statement, a candy bar, attorneys own notes)opposing counsel and the jury are entitled to see it, however. You do not need to authenticate, apply the BER, or satisfy hearsay. Recorded Recollection: if a witness is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing may be admitted in place of her testimony, as long as it is reliable. Recorded recollection is an exception to Hearsay.

Evidence 5 Foundation for recorded recollection requires a showing that: (1) at one time, witness had personal knowledge; (2) writing was made by the witness or under supervision of witness or adopted by the witness.; (3) writing is timely made, it was fresh; (4) writing is reliable;*; (5) Necessity- witness unable to remember. Writing is admitted by being read into evidence.

Opinion Testimony o Lay Opinion: Admissible if (1) rationally based on the perception of the witness & (2) helpful to the trier of fact. o Expert Opinion: 4 Basic Requirements (1) Subject Matter must be appropriate: opinion assist trier of fact (a) Methodology must be reliable (b) Opinion must be relevant o Reliability and relevance must be proven by a preponderance of the evidence (2) Witness must be qualified as an expert Need not be formal or academic; witness may be qualified based solely on experience. (3) Expert must possess reasonable certainty or probability regarding the opinion.: must be more than mere guesswork. (4) Expert opinion must be supported by a proper factual basis Facts supporting the opinion must be either o (1) proper facts within personal knowledge of the expert o (2) facts supplied in court-through evidence o (3) facts not in evidence or personal knowledge as long as the facts are the type that an expert in the field would reasonably rely on in their work outside the field. Learned Treatise Can be offered to show that authorities are no all in agreement. Can use to impeach, discredit, etc. A learned treaties CAN BE READ TO THE JURY if it is established as authoritative. (1) Opponents expert relied on it; (2) elicit an admission from expert on cross; (3) call you own expert in rebuttal; (4) Judicial Notice- it is so well known. Exception to the Hearsay Rule- must be reliable. Limitations o Expert must testify (at trial or deposition) unless judge takes judicial notice. o Treatise is admitted by being read to the jury- but jury does not receive text as evidence. Credibility & Impeachment o Cross Examination Party has an absolute right to cross-examine a witness who testifies live (witness refuses to answer any cross direct must be stricken) Cross-examination should not exceed the scope of the direct. (can only cross on issues that were expressly or impliedly raised on direct).

Evidence 6 Collateral Matters Doctrine: impeachment by contradiction of witness is limited. No extrinsic evidence is allowed to contradict a witness on a collateral matter Extrinsic Evidence= documents, rebuttal witnesses Collateral Matter= relevant only because of the contradiction o Accrediting your own witness No bolstering your own witness unless there has been an appropriate impeachment** Prior consistent statement would be admissible if the statement is one of identification. Typically, you cant bolster with a prior statement. However, if it is an identification, you can. (Excluded from Hearsay) o Impeaching your own witness: you can freely impeach your own witness. No conditions. o Impeaching your Adversarys Witness: 5 Techniques Prior Inconsistent Statements Not admissible for its truth, only to impeach, UNLESS prior inconsistent statement was given under oath AND at trial, hearing, or other proceeding or in a deposition than it is admissible for its truth. Extrinsic Evidence is admissible to prove prior inconsistent statement Foundation: federal rules say that the witness has an opportunity to explain or deny making the statement but doesnt say when. As a result, No Foundation Is Required in Federal Rules. Show Interest, Bias, or Motive to lie or exaggerate Bias, interest & motive may be shown by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target witness Includes- settlements, pleas, etc Prior Convictions (Character Evidence) Prior Convictions are usable to impeach if the conviction is for the proper kind of crime: o (1) Any crime (felony or misdemeanor) if it involves dishonesty or false statement. o (2) A felony (crime punishable by more than 1 year) NOT involving dishonesty or false statement is admissible to impeach in the discretion of the Court. (legal relevance) o (3) Convictions cannot be too remote. General Guideline is 10 YEARS. If more than 10 years have elapsed from date of conviction or date of release- the conviction is generally inadmissible- even if it is a crime of dishonesty or false statement. Specific Acts of Deceit or Lying (Character Evidence) Non-convictions may be asked on cross-examination as long as there is a Good Faith Belief that the act was done by the witness. Act MUST involve deceit or lying. NO EXTRINSIC EVIDENCE PERMITTED (limited to crossexamination)this is the only impeachment where extrinsic evidence is not allowed. Bad Reputation or Opinion for Truth & Veracity (Character Evidence) If opens the door with good reputation evidence or attacks victims character, prosecution can attack with bad reputation or opinion evidence.

Evidence 7 o Rehabilitation After Impeachment Good Reputation and Opinion for Truth may be shown if impeachment involved a character attack (prior conviction; act of deceit or lying; bad reputation/opinion for truth). Prior Consistent Statement to rebut an express or implied charge of recent fabrication or improper influence or motive (must be a pre-motive statement)

Privileges Attorney-Client Privilege o Confidential communications made between attorney and client during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client. (Privilege survives death of client). o Exceptions: (1) Future Crime or Fraud; (2) At Issue ( says, I just followed the advice of my attorney); (3) Disputes between the parties to the professional relationship (actions for malpractice); (4) Joint Client Exception (2 or more parties communicate with attorney about a matter of common interest, then fall outthere is no privilege between them, but if sued by 3rd party, privilege stands.) Physician/Psychiatrist-Patient Privilege o Patient has a privilege against disclosure of confidential information acquired by the physician/psychiatrist in a professional relationship entered into for the purposes of obtaining treatment. (information acquired must be confidential and necessary to facilitate professional treatment) o Waiver: privilege is waived if patient sues or defends by putting physical or mental condition at issue. o IN FEDERAL PRIVILEGES, WE DONT KNOW IF THERE IS A DOCTOR-PATIENT PRIVILEGE (therefore, it is a wrong answer on the mbe) Husband-Wife Spousal Privileges- 2 privileges o Spousal Immunity Privilege One spouse cant be forced to give adverse testimony against another in a CRIMINAL Case. Holder of privilege is witness spouse- not party spouse- so spouse can testify if they want. Must be criminal case. o Confidential Marital Communications Privilege Spouse cannot, without consent, disclose confidential communication made by one to the other, during the marriage. ONLY COMMUNICATIONS during the marriage Civil & Criminal. o Neither privilege will apply in an Intra-Family injury case Applicability of State Law in Federal Court o General Rule: Federal Court will apply its own evidence laws. o Exceptions: if state substantive law in a CIVIL case in Federal Court, state law will apply to: (1) presumptions & burden of proof; (2) rules regarding the competency of witnesses (i.e Dead Mans Statutes); (3) Privileges***

Evidence 8 Hearsay Hearsay = an out-of-court statement offered for the truth of the matter asserted. Non-Hearsay Situations o Verbal Acts or Legally Operative Facts Where the words spoken or written have relevant legal significance in the case by virtue of being spoken or written (words of offer, acceptance, defamation, conspiracy, cancellation misrepresentation, waiver permission) The real issue is if he said the words, not if the words are true. Examples (I accept your offer Cancel my insurance Take my car, go with it to Miami) o Out of Court Statement Not offered for truth, but to show its effect on the person who heard it or read it. To show notice to, or the good faith of, or reason for action or inaction by the person who heard or read the out of court statement. o Out of Court Statement Not offered for its truth, but as circumstantial evidence of the Declarants state of mind. I am the pope If defense is insanity, witness can testify to words that said that makes him sound crazy. o Prior Statements of Witness General rule= a witnesss own private statement if it is being offered for its truth is hearsay and is therefore excluded unless it fits some exception Exceptions: where prior statements of witness are NOT hearsay. (1) Prior Inconsistent Statements: admissible for truth if given under oath at a trial, hearing, other proceeding or deposition. Admissible for impeachment purposes even if not under oat at a trial, etc. (2) Prior Consistent Statements: allowed to rebut a charge of recent fabrication or improper influence or motive. (3) Prior Statement of Identification made by a witness: a prior identification is not hearsay and is always allowed. o PARTY ADMISSIONS =declaration of a party offered against the party. Party admission is considered NON-HEARSAY under federal rules of evidence.* Vicarious Admission: statement made by the partys agent or servant concerning a matter within the scope of the agency or employment made during existence of the relationship. Must be made (1) within scope of employment; (2) during employment relationship. Hearsay Exceptions o FORMER TESITIMONY UNAVAILABILITY REQUIRED =Testimony given in earlier proceeding by a person now unavailable. Requirements (1) Meaningful Opportunity to Cross** o Same issue and motive, and party who crossed must have been a party in the first proceeding or is at least in privity. (2) Unavailability of the declarant.*** o STATEMENT AGAINST INTEREST UNAVAILABILITY REQUIRED =declaration of a person, now available as a witness, against that persons pecuniary, proprietary, or penal interest, or statement would expose declarant to

Evidence 9 civil liability, or which would tend to defeat a claim by declarant, at the time the statement was made. Limitation: statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (i.e. you cant get on the witness stand and say u did it just to get your buddy off the hook, must be corroborating evidence.) Requirements Must be against interest at time statement was made May be made by any person, not necessarily by a party Requires personal knowledge. Declarant must know what he is talking about. Statement against interest requires Unavailability. o DYING DECLARATION UNAVAILABILITY REQUIRED =in a prosecution for homicide or in a civil action, a statement made by a declarant while believing that the declarants death was imminent, concerning the cause or circumstances of the impending death. Declarant does not have to actually die Requirements *State-of mind- made under a sense of impending death. Declarant need not die but must be Unavailable Homicide case or Civil case. Content Limitation: must concern cause or circumstances of impending death. o SPONTANEOUS DECLARATION State of Mind Spano is on trial for murder. Defense is insanity. Defense witness testifies that on the eve of the killing, witness heard Spano say I believe I am the pope Statement of Existing Intent to Prove Intended Act Decla announces On Monday of next week I am going to meet with Spano- can be offered to prove that Decla did meet with Spano on Monday. Excited Utterance Statement relating to startling event or condition is admissible when made while declarant was under stress of excitement caused by event or condition. Requirements o Startling event o Made under stress of excitement o Concerns the fact of the startling event Consider the nature of the event and the time lapse and what is going on during the time lapse. Present Sense Impression (i.e Contemporaneous Statement) =a statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.

Evidence 10 Distinguish from excited utterance- do not need a startling event or excitement; But must have almost precise contemporaneousness- no appreciable time lapse Declaration of Present Physical Condition =declaration of then existing physical (or mental) condition is admissible to show the condition. (It hurts) Declaration of Past Physical Condition =statement made to medical personnel for purposes of diagnosis or treatment, describing history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment. Requirements o Made to medical personnel o Pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony. o BUSINESS RECORDS =records made at or near time by a person with knowledge are admissible if kept in the regular course of business to make the record unless the source of information or circumstances of preparation indicate a lack of trustworthiness. Rationale for reliability: employees are under a business duty to be accurate in observing, reporting, and recording business facts. Business records exception applies if it is germane to the business Even if the entry is germane to the bsueinss record, if the record contains within it a statement made by someone outside the business, then it must fall under some other exception to hearsay. o FEDERAL RULES OF EVIDENCE CATCH-ALL EXCEPTION Judge can admit the statement even if it doesnt fall under one of the exceptions if the statement is (1) trustworthy, (2) necessary, (3) adequate notice given. 6th Amendment Right of Confrontation Even though an out-of-court statement qualifies as an exception to the rule against hearsay, the accuseds 6th Amendment. Out-of-Court Statement, even if fall under hearsay exception, not admitted IF: o Out-of-court statement is offered against the accused in a CRIMINAL CASE o Declarant is UNAVAILABLE o Out-of-court statement was TESTIMONIAL (statement is testimonial if declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of a crime); UNLESS o Accused had an opportunity to cross-examine OR lost his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial. Recurring Test Issues Preliminary questions, such as what is the dying declarants state of mind and is the declarant really unavailable are questions for the judge, and the judge is not bound by the rules of evidence in deciding them. When a hearsay statement is admitted into evidence, the credibility of the declarant may be attacked by evidence which would be admissible if the declarant was in court testifying. (for unavailable declarants)