PMBR CD #1

Most important area on the bar exam. It appears on both the MBE & essay portion of the bar exam. It is one of the highly tested areas on the bar exam along with Contracts & Evidence.

On the MBE:

a. For each call of the question, discuss relevancy.b. Then discuss the issue: opinion, etc.c. FRE & common law distinctions (where the common law differs from the

federal rules); don’t need to know any state law on the state essay portion. Multistate tests on the federal rules – certain areas where the federal rules are silent, however.

d. 70% of multistate: focus heavily on these areas: i. Character evidence

ii. Impeachmentiii. Hearsay

II. Generally FREs:a. Article I: General provisions: Rulings, Objections, and Admissibility or

Exclusion of Evidenceb. Article II: Judicial Noticec. Article III: Presumptionsd. Article IV: Relevancy

i. Logical relevancyii. Legal relevancy

iii. Character relevancee. Article V: Privilegesf. Article VI: Witnesses

i. Competencyii. Impeachment

g. Article VII: Opinioni. Lay opinion

ii. Expert opinionh. Article VIII: Hearsay and Hearsay Exceptionsi. Article IX: Authentication and Identificationj. Article X: Contents of Writings

III. Article I – Rulings on Evidence – Objectionsa. FRE 103: Where a trial court admits evidence, a timely and specific

objection to the admission of such evidence, must be made to preserve the issue for appeal, unless plain error (prejudicial error) is involved – not harmless error.

i. Timeliness of objections: Objection should be made before the witness answers.

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1. But where the need to object is not readily apparent, a motion to strike would be proper.

ii. Objections – admissions of evidence at trialiii. Offers of proof – exclusions of evidence

1. Where the trial court excludes evidence, no error on appeal may be established unless an offer of proof was made or the reason was apparent from the context.

iv. Method of offer of proof:1. Oral or written explanation2. Question and answer format

b. Preliminary questions of admissibility:i. Role of the judge and the jury

1. Preliminary questions of admissibility of evidence are to be determined by the trial judge as a matter of law, including such areas as: qualification of witnesses, existence of a privilege, or unavailability.

a. Both affidavits and hearsay are allowed at this point. Trial court is not bound by FRE in dealing with preliminary questions of admissibility.

c. Weight and credibility of evidence:i. Question of fact for the jury.

d. FRE 104 : Conditional relevancyi. Where the relevancy of proffered evidence depends on the

existence of another fact, such evidence is admissible subject to introduction of evidence sufficient to sustain a finding as to the additional conditioned facts.

1. Conditional relevancy covers situation where the relevancy of one fact is conditioned on the existence of another fact.

2. Example: Forgery case. The relevance of certain forged checks, purportedly written by D, would be conditioned upon evidence sufficient to sustain a finding as to the authentication of D’s handwriting.

e. Hearings on admissibility of evidence are done outside the presence of a jury.

i. In a criminal case, hearings on the admissibility of confessions must be conducted outside the hearing of the jury.

f. Testimony on a criminal D as to a preliminary issue does not constitute a waiver of the 5th amendment privilege as to other issues.

g. FRE 105: Limited admissibility: upon request, the court may restrict the admissibility of evidence for allowing it for one party or for one purpose, but excluding it for another party or another purpose.

i. Ex: Evidence that a retailer received a letter from a customer complaining about the sale of a defective sofa which caused injury may be used to show notice or knowledge on the part of the D, but it may not be used in proving negligence in a subsequent

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lawsuit by a customer that purchased a similar sofa and suffered similar injury.

h. FRE 106: Introduction of parts of a writing: Once a party introduces part of a writing or a recorded statement, the adverse party may immediately require the admission of any other part of that writing which in fairness ought to be considered.

i. The adverse party may also elect to wait until cross-examination to introduce parts of the writing.

ii. Or, the adverse party may wait until presentation of her own direct presentation to admit parts of writings.

i. Conversations not covered under the federal rules.i. Adverse party must wait until either cross examination or until her

own direct testimony to introduce other parts of a conversation.j. Multistate : There is no rule of evidence requiring that if part of a writing

is admitted, all other parts must be admitted.i. Inadmissible because of the rule that requires writings to be

admitted in their entirety. (Classic wrong answer on the multistate.)

IV. Article II: Judicial Noticea. Judicial notice is a substitute for proof whereby the court will accept

certain facts as true and thus dispense the need of formal presentation of evidence. Court will do this based on accuracy and certainty. It’s a shortcut.

b. 2 kinds of facts that come under judicial notice:i. Legislative facts

1. Those facts which have relevance to legal reasoning and the lawmaking process.

2. Ex: Whether a spouse is permitted to recover damages against another spouse.

3. Not recognized under the federal rules of evidence.ii. Adjudicative facts

1. Those underlying facts involved in a particular case which aid the factfinder in its adjudication (i.e., facts of the case itself).

2. FRE 201(b) – defining judicially noticed facts: A judicially noticed fact must be one that is not subject to reasonable dispute because either: 1) it is generally known within the territorial jurisdiction of the court; or, 2) it is capable of accurate and ready determination by resort to source that cannot be questioned.

3. Ex: A court in Los Angeles may take judicial notice of the fact that Wilshire Blvd. Runs east & west. But, a judge in Boston who has personal knowledge of this fact may not take judicial notice.

4. Ex: The fact that Christmas Day 1985 was on a Wednesday, or the time or sunset or sunrise on a certain

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day examples of facts capable of accurate and ready determination.

iii. Two types of judicial notice:1. Mandatory2. Discretionary

a. On its own motion, a state or federal court may take judicial notice of the following types of facts:

i. Laws of foreign countriesii. Laws of sister states

iii. Municipal ordinancesiv. Regulations of public and private agenciesv. Matters of local geography

b. Court is fairly lenient in finding judicial notice under this rule.

i. Ex: Economic data, such as insurance rates, interest rates, customary fees and salaries paid in different professions, current events, political events, trademarks and patents.

3. Mandatory judicial noticea. Court must take judicial notice for state and

federal law; andb. Indisputable scientific facts

i. Ex: A blood test to prove paternityii. Ex: Ballistics tests

iii. Ex: Radariv. But not a lie detector test (no judicial

notice taken of a polygraph).4. Court most likely to take judicial notice:

a. Ex: A said that that Main St. in the city in which the court is located runs North – South. B said cigarette smoking may be hazardous to your health.

i. Which one?1. A matter of local geography;

discretionary judicial notice.2. But note: B cigarette smoking has

been hazardous to one’s help, but look closely at the words cigarette smoking may be hazardous to your health not indisputable.

5. Judicial notice may also be taken where requested by a party.

a. For both generally known facts and facts capable of accurate and ready determination, the Court must take mandatory judicial notice if requested by a party and supplied with necessary information.

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b. Ex: Against building contractor. P asks the court to take judicial notice of the requirements necessary to obtain a state contractor license. P hands to the court an official printed statement of that particular state’s contractor license requirement. Will judicial notice be taken? Yes. This is a state regulation. Where the party requested it and supplied the information, the court would take judicial notice.

c. The party against whom judicial notice is taken has an opportunity to be heard.

i. Timing : Such a request may be made either before or after the judicial notice has been taken.

6. Judicial notice may be taken at any stage of the proceeding.7. Procedural effect of judicially noticed facts:

a. FRE 201(g) :i. In civil cases, judicially noticed facts are

indisputable.1. A civil jury must accept as

conclusive any fact judicially noticed.

ii. In criminal cases, based on the 6th amendment right to a jury trial, the jury is to be instructed that it may, but is not required, to accept as conclusive any fact as judicial notice.

c. Multistate :i. Is judicial notice mandatory or discretionary?

ii. Is it a civil case or criminal case – as to the effect of an instruction on judicial notice?

V. Article III: Presumptionsa. Burdens

i. Burden of production1. Burden of production / burden of going forward is placed

on a party to introduce initial evidence on a particular issue or risk a directed verdict against her.

2. The allocation of this burden is generally on the P.a. The P usually bears the burden of producing the

evidence as to all of the elements of the prima facie case.

b. But, for affirmative defenses, the burden may shift to the opposing party (the D).

c. In criminal cases, there may not be a directed verdict for the prosecution. This would be unconstitutional.

ii. Burden of persuasion

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1. Degree to which the party must convince the trier of fact with regard to a particular issue.

2. Civil case: Proof by the P to establish each element of the case by a preponderance of the evidence.

a. More probable than not standard.3. In a criminal case, the prosecution must prove its case

beyond a reasonable doubt for each element of the crime.4. Criminally related civil proceedings (such as fraud): clear

and convincing standard of proof: more than preponderance, but less than reasonable doubt.

iii. Affirmative defense1. Insanity

a. Insanity as a defense to murder.i. The prosecution must prove murder

beyond a reasonable doubt without any regard to the D’s sanity.

ii. Once this is done, the D may introduce some evidence of insanity.

1. If D fails to do so, the issue of insanity is deleted from the case and no jury instruction is given.

2. If D succeeds, there are two possibilities:

a. The prosecution would then have to prove sanity beyond a reasonable doubt. Or (in other jurisdictions where the burden is shifted):

b. The D would have to prove insanity by a preponderance of the evidence.

2. Self-Defense3. Duress4. Adequate provocation to reduce a charge of murder to

voluntary manslaughter.iv. 2 different ways in which affirmative defenses can operate

procedurally:1. The D may have the burden to prove his defense by a

preponderance of the evidence.2. The prosecution may have the burden of persuasion to

prove all issues beyond a reasonable doubt.b. Presumption is an inference the jury must draw which shifts the burden

of producing evidence to the opposing party.i. Two components to a presumption :

1. Basic facts

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a. Presumption will arise where a particular set of facts, basic facts, once established, gives rise to another set of facts, presumed facts.

2. Presumed factsii. Example:

a. Upon proof that a person has been absent from his home for 7 years, many jurisdictions presume that the person has died.

i. 7 years absent from the home: basic facts.ii. Death is the presumed fact.

iii. Once the presumption is established, the burden of production is shifted to the opposing party.

iv. Presumption vs. inference1. An inference does not shift the burden of production (but a

presumption does).v. Presumption vs. conclusive presumption (irrebuttable

presumption)1. Irrebuttable presumption:

a. Rule of law where the basic facts conclusively establish a presumed fact.

b. Ex: A child under a certain age is not capable of committing an intentional tort.

c. Ex: A child that is born during wedlock is presumed to be legitimate.

vi. Bursting bubble theory :1. Example of how the presumption actually shifts the burden

of production to the opposing party.2. Ex: If a wife (the P) has established that her husband’s

absence has been for 7-years – that her husband has been absent from the jurisdiction of 7-years – a presumption of death, the burden of production shifts to the D who can introduce witness testimony that says “I saw the husband in Canada 6-years ago” – rebutting the 7-years.

3. Once the opposing party has introduced evidence sufficient to sustain a finding as to the nonoccurrence (i.e., nonexistence) of the presumed fact – in the above example, death, the presumption disappears or the bubble bursts. (majority bursting bubble theory).

vii. Where you have two different presumptions in conflict:1. Both presumptions will be eliminated from the case.

Both of the conflicting presumptions will be eliminated and the jury will deliberate as to the weight of the evidence.

viii. Presumptions in criminal cases1. Both mandatory and permissive presumptions are

permitted; they are constitutional.

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2. In most criminal cases, you’ll run into a permissive presumption: where the jury may, but need not, find the presumed fact from proof of the basic facts.

3. Because the federal rules are silent as to presumptions in criminal cases, (multistate question), you need to know FRE 103 – if the presumed fact establishes guilt or is an element of the offense, the court shall instruct the jury that its existence must be proved beyond a reasonable doubt.

a. Ex: D’s blood alcohol level measured at 1.4. Judge instructs the jury that a person with a blood alcohol level > 0.1, the presumed fact here is intoxication.

i. This instruction is proper only if a further instruction is given that the presumed fact, intoxication, must be proved beyond a reasonable doubt. (Without this instruction, the D’s subsequent conviction would be reversed.)

VI. Article IV: Relevancya. Logical relevancy :

i. Helpfulness or probativeness of evidence. Relevant evidence must have some logical tendency to prove or disprove a fact or consequence.

1. Compare this with materiality: whether the proffered evidence bears on a fact or consequence in regard to the particular matter before the court. ** (narrower concept than logical relevancy)

b. Federal Rules combine logical relevancy and materiality under the meaning of relevancy.

c. FRE 401 – definition of relevancy:i. Relevant evidence is that which has the tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

1. Relevancy stranda. Tendency to make the existence of any fact more

or less probable than it would be without such a fact.

2. Materiality stranda. The fact must be of consequence to the

determination of the action.d. Direct evidence vs. circumstantial evidence

i. Logical relevancy problems (come up a lot on essays) involve only circumstantial evidence, not direct evidence.

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ii. Direct evidence : That which does not depend upon any inference for its relevancy.

1. Ex : The testimony of an eyewitness to a shooting that she saw the accused shoot the victim.

iii. Circumstantial evidence : Evidence whose relevancy depends upon the drawing of an inference.

1. Ex: Witness said that she did not see the actual shooting, but she saw the accused running from the scene of the crime.

e. Specific problems of logical relevancy – essay:i. Similar accidents :

1. Evidence of other prior accidents may be admissible by a plaintiff (P) to prove a dangerous situation existed or to prove that the D was aware of a dangerous condition if and only if the P establishes a substantial identity of material circumstance.

a. This is what you need to argue on your essays. (memorize)

b. Ex: P is offering other evidence to show the dangerous nature of the railroad crossing.

i. Is this admissible? Depends on whether there’s a substantial identity of material circumstance: P would have to show similar types of weather, similar speed, similar types of circumstances (i.e., substantial identity of material circumstance).

ii. Absence of similar accidents ( tested a lot on the essays)1. The D, in this case, would be offering evidence of absence

of similar accidents to establish due care.a. For admissibility of this evidence:

i. There has to be substantial identity of material circumstances; and

ii. The D must show that if an accident had occurred, it would have been observed.

2. Ex: P is suing the city (city is the D) after an accident at an intersection. D offers to prove that over the last 14-years, the intersection has remained the same and there were no reported accidents. Admissible? Yes.

a. Intersection has remained the same for 14 years and no accidents reported (if there had been, it would have been observed).

3. Ex: P slips and falls on a freshly waxed tile floor on a hotel lobby. D offers evidence that over the last week, 1500 persons have used the floor and no one has gotten hurt. Is this evidence admissible to show due care?

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a. A: No. In the case of the P, the floor had been freshly waxed, but it could not have been when each of the 1500 persons walked across it.

b. No substantial identity here, this evidence would be inadmissible.

iii. Where circumstantial evidence may be used:1. The fact that the P has filed previous similar tort claims

may be sufficient to show a common claim or scheme or show that the P has brought for example 5 suits regarding whiplash where he was rearended in his car. This evidence would be admissible.

2. Prior contracts between the same parties may be admissible to interpret contracts between two parties.

3. But, prior contracts between one party and a third party may be admissible to show customary dealing and trade usage.

4. Prior sale of land may be used circumstantially to prove value of an existing piece of property if there is a substantial identity of material circumstance: similar size, condition, and proximity in time.

5. Unique piece of property, expert testimony is required.iv. Legal relevancy:

1. Public policy considerations to exclude otherwise relevant evidence.

a. Subsequent remedial repair, offers to settle, offers to pay medical bills; character evidence.

2. FRE 403a. 6 reasons given under FRE 403 why otherwise

relevant evidence may be excluded:i. Relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of:

1. Unfair prejudice2. Confusion of the issues3. Misleading the jury4. Undue delay5. Waste of time6. Needless presentation of cumulative

evidenceb. Exclusion of evidence – may be focused on appeal:

i. Unfair prejudiceii. Confusion of issues

iii. Misleading the juryc. Matters not likely to be heard on appeal:

i. Undue delayii. Waste of time

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iii. Needless presentation of cumulative evidence

d. FRE 403 used to determine whether the probative value of evidence outweighs the prejudicial effect.

v. Character evidence1. FRE 405 – character evidence of parties -- – where

character evidence is admissible, all three forms of character evidence may be used as proof of character: reputation, opinion, and specific acts.

a. Ex: Paul is suing Dan for defamation (civil case). Paul is claiming that Dan falsely called him a thief. Paul testified he’s not a thief. Dan introduces the testimony of Wilma that Paul committed 3 larcenies in the last year. Q: Is this admissible?

i. Committing 3 larcenies is a specific act.ii. Civil case.

iii. Specific acts do come in.iv. Testimony would be admissible under FRE

405(b).v. * Different from impeachment of witnesses.

2. General approach:a. Determine the form of the character evidence.

i. 3 forms:1. Reputation

a. Always community reputation

2. Opiniona. Personal opinion

3. Specific instances of conducta. Specific acts

b. Determine the type of case: civil case or criminal case.

c. Determine the purpose for which the evidence is being offered.

3. Civil casesa. FRE 404(a)(1). Character evidence is inadmissible

to prove conduct in conformity therewith on a particular occasion.

i. Ex: Negligence action; evidence that the D had a reputation as a careful person would be inadmissible character evidence.

1. Whenever you see reputation or opinion, should be a red flag they’re testing on character evidence.

b. Seller was an honest mani. Also character evidence inadmissible.

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c. Character evidence is admissible:i. Where character is an essential element of a

claim, defense, or cause of action, character evidence will be admitted.

1. Defamation cases 2. Child custody cases

ii. Where knowledge of the character of another is in issue.

1. Self-defense2. Negligent entrustment

a. Includes negligent hiring or negligent selection.

b. Ex: Paul is injured when Wanda collided with him while she was driving Dorris’ car. Paul is suing Doris, owner of the car, for negligent entrustment.

i. Paul is offering evidence that Doris knew that Wanda had 3 previous driving accidents earlier that year. Is this admissible testimony? Civil case negligent entrustment character is in issue dealing with a specific act (3 previous accidents) – this would be admissible (proper form of character evidence).

ii. The character of the entrustee is in issue in a negligent entrustment case; character of Wanda (entrustee) is in issue to prove that the entrustor Doris negligently loaned the car.

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c. Doris is offering the testimony of her husband that in his opinion, Doris always inquired about a person’s past driving record before loaning her car.

i. Opinion testimony character is in issue but such testimony is inadmissible b/c it’s not Doris’ character in issue, Wanda the entrustee’s character is in issue, so the testimony of the husband would be inadmissible as character evidence.

d. Things admissible:i. Area of prior tort claims:

1. The fact that a P has filed previous, similar tort claims may be admissible to show a common plan or scheme or to show that the same P has brought similar claims for similar injury that arose in the same manner.

a. Ex: A P has brought 5 suits regarding whiplash where he was rearended in his car.

ii. Prior contracts between two parties may be admissible to show intent of the parties for this contract.

iii. Prior contract between one party and a third party may only be admissible to show customary dealing and trade usage.

iv. Prior sale of land may be used circumstantially to prove value of an existing value of property if there is substantial identity of circumstance (i.e., similar location, size, condition, and proximity in time).

v. But, sale of unique property, such as the sale of a Picasso painting, then expert testimony would be needed to show similar of value.

4. Criminal cases

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a. The criminal D may use circumstantial character evidence in 3 ways:

i. Opening the door rule1. FRE 404(a)(1): A D may offer

evidence of his good character by reputation or opinion evidence, not specific acts to prove his innocence and the prosecution may still rebut.

2. Ex: D offers testimony by Wilma: I’ve been his neighbor for 14-years and he’s been an honest man. Proper way to open the door? A: No. Because the trait of being an honest man does not bear on innocence to a charge of murder.

3. Compare: Wilma says: I’ve been his neighbor for 14 years and he’s been a gentle person. This would bear on a charge of murder. This would be a proper way for the D to open the door.

4. Focus on the trait being offered it must go to proving innocence to that particular charge.

5. “The prosecution may so rebut ”a. Limited to reputation and

opinion evidence only .b. Example: The prosecution is

offering another neighbor’s testimony that she has known D for 14-years and that he (D) has a reputation for a violent temper. This would be proper rebuttal by the prosecution.

6. Ask: What is the purpose for which the evidence is being offered?

a. Robbery case. D’s witness testifies that D has been an honest man. Admissible b/c honesty goes to defense of charge of robbery.

b. Prosecution then asks the D witness: Did you know? Or Have you heard? Did you

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know that the D committed 3 burglaries in the last year?

i. This is a specific act, committing 3 burglaries, it’s not reputation or opinion.

ii. It’s a proper form of evidence / rebuttal because this question is being asked not to attack the D’s character, but rather it is being asked to challenge the credibility of the witness.

iii. If the witness does not know about the 3 burglaries, how well does she know the D?

iv. Or, if the witness does know about the 3 burglaries, how credible is the witness for the D? US v. Michelson.

ii. Bad character of the victim1. FRE 404(a)(2)2. D may introduce evidence any 3

forms of character evidence (reputation, opinion, bad acts) to prove the bad character of the victim and the prosecution may rebut.

3. In a murder case where the D claims self-defense, she may introduce evidence as to the bad character of the victim as an aggressor (show a violent nature, etc.). Then the victim may rebut this by showing peacefulness of his character.

iii. Rape cases1. FRE 4122. In rape cases, reputation and opinion

evidence is inadmissible (unlike the common law rule), but specific acts

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of sexual behavior by the victim are admissible in 2 instances:

a. Behavior with other persons which would explain signs of rape.

i. Ex: Instances of sexual intercourse with other men than the D if it is used to show that the D was not the source of sperm found on the victim after the alleged rape.

b. Past behavior with the D, not other men, which tend to show consent.

iv. Mimic rule – 404(b)1. Generally:

a. Circumstantial evidence may be offered in a criminal case by the prosecution (not by the D) and it is offered in rebuttal, not in the prosecution’s case in chief.

b. The specific trait being offered which is to be proved must be in issue.

c. FRE 404 – Evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person to show that he acted in conformity therewith. However, it may be admissible for other purposes such as proof of MIMIC

i. Motiveii. Intent

iii. M – Absence of Mistake

iv. Identityv. Common plan or

schemed. Burglary case:

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i. Prosecution offers testimony to show that D needed money because of these other charges against him. Is this admissible? No, it’s highly prejudicial. Jury would look at this and would think that this guy did all of these other robberies, he probably did this too.

e. MIMIC evidence:i. Balance probative

value vs. prejudicial effect.

ii. Never admissible to prove criminal disposition or propensity to commit a crime.

f. Multistate:i. Admissible b/c of

MIMICii. Inadmissible b/c

probative value is outweighed by prejudicial effect.

g. Ex: Criminal murder case. D says that victim was his friend and he had no reason to kill victim. Prosecution may introduce evidence saying that D and victim took part in robbery and that victim hid all of the bank robbery money . This would be admissible to prove motive.

b. 3 forms of circumstantial character evidence which may be used by a D.

5. FRE 406 – Habita. Character : Generalized description of a person’s

disposition.

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b. Habit : Circumstantial evidence of a person’s repeated response to a repeated, specific situation.

c. FRE 406 : Evidence of habit of a person for the routine practice of the organization, whether corroborated or not, and regardless of the presence of eyewitnesses is relevant to prove conduct in conformity with the habit or routine practice.

d. Multistate:i. Always, automatically, invariably, without

fail look for these words; these words are tip-offs that they are testing on character evidence.

ii. If you see the words “frequently” or “often” this is not enough.

e. Ex: Example of the routine by which a company answers phone orders, encloses certain order forms in an envelope and then mails them out using FedEx would be admissible as a routine business practice of the corporation, such as PMBR.

f. Ex: Passenger sues driver for car accident. Driver’s eyewitness testifies that passenger was not wearing her seatbelt. Passenger calls Wilma as a witness to testify that she drives to work everyday with passenger and has done so for the past 3 years and invariably, passenger wears her seatbelt. Q: Is this admissible evidence? Yes b/c it’s regardless of corroborating evidence.

f. Legal relevancy i. FRE 407 – 411.

ii. FRE 407 – subsequent remedial measures:1. Evidence of subsequent remedial measures is

inadmissible to prove negligence or culpable conduct in connection with the event.

a. Exceptions – subsequent remedial measures are admissible:

i. To prove ownership or controlii. To show feasibility of precautions if

controvertediii. For impeachment

b. ex: Evidence that D put new break linings in his truck after an accident which was caused by faulty brakes would be inadmissible as evidence b/c it’s a subsequent remedial repair under FRE 407.

c. Ex: Evidence that D cut down a rotted tree after it fell down on P and injured him. Relevant to show

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ownership or cut-down if P can show that D cut down the tree a week later. (b/c shows ownership)

d. Ex: Products liability action against products manufacturer; evidence that the D corporation changed tractor design 3 months after P was injured, is this admissible under the Federal Rules? A: No. This would be inadmissible under the general prohibition of FRE 407.

i. But, in many state courts, evidence of changing designs are admissible.

ii. But, on multistate, follow federal rule.e. Public policy:

i. Encourage persons to make products safe without fear that such evidence will be later used against them in court. **

iii. FRE 408 – Offers to settle – offer to settle a claim which is disputed is inadmissible to prove liability for its claim for its amount.

1. Public policy: encourage out of court settlements.2. Ex: P is suing D after a car accident. D comes to P and

says I’ll offer you $1,000 to settle this matter. Is this admissible? No, it’s an offer to settle and under the general rule, it’s inadmissible for an offer to settle.

3. An offer to settle a claim which is disputed is inadmissible to prove liability for the claim or the amount.

a. Public policy : encourage out-of-court settlements.b. Ex: P is suing D after a car accident. D comes over

to P and says, “I’ll offer you $1,000 to settle this matter.”

i. Is this admissible? No. It’s an offer to settle. And it’s inadmissible as an offer to settle.

4. Exceptions where offer to settle may be admissible:a. To prove bias or prejudice of a witness.

i. Evidence by the P that D’s expert witness received payments to testify against P as a way to compromise or settle the expert witness’ own claim may be admissible to show bias or prejudice.

b. To controvert a contention of undue delay by one of the parties.

c. To prove that a party attempted to obstruct a criminal investigation.

5. Multistate : Statements made in connection with offers to settle are inadmissible.

a. Ex : Car accident. P comes over to D and says, “Gee I’m sorry it’s my fault. In any case, I want to

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settle this for you.” Can the first sentence be an admission & severed from the offer to settle itself? A: No. There is no severance under FRE 408 for offers to settle.

iv. FRE 409 – Offers to pay medical bills1. An offer to pay medical bills is inadmissible to prove

liability for an injury.2. Statements made in connection with offers to pay medical

bills, there is severance.3. Ex: Car accident. D walks over to P. D says, “I’m sorry

it’s my fault. Is there any way I could pay for your medical bills?”

a. Can the first sentence – D saying he was at fault for the accident – be admitted into evidence?

b. Yes, there is severance under FRE 409.v. FRE 410 – Offers to plead guilty

1. Offers to plead guilty, withdrawn guilty pleas, and pleas of nolo contendre are inadmissible against the individual who made the plea. **

a. Public policy: Encourage persons to make such pleas.

2. Exceptions:a. Offers to plead guilty may be admitted:

i. Prosecution for perjuryii. Purposes of impeachment

3. An actual guilty plea which is not withdrawn would be admissible in subsequent action.

a. Evidence of a final judgment after a plea of guilty following any felony conviction is admissible under a hearsay exception.

b. (Different from offer to plead guilty).vi. FRE 411 – Liability insurance

1. Evidence that a person was or was not insured at the time of the accident is inadmissible to prove negligence.

2. Such evidence is admissible to show (exceptions to FRE 411):

a. Agencyb. Ownership or controlc. Bias or prejudice

3. Ex: Where a D claimed that a truck driver involved in an accident was an independent contractor, not one of his employees, evidence that D took a liability policy on that truck would be admissible under the exception to show ownership or control. **

4. Statements made in connection with ownership of liability insurance are inadmissible.

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a. There is no severance.b. Ex: D goes over to P and says, “I ran the red light,

but don’t worry, my insurance will pay for it.” Is “I ran the red light” – the admission – admissible? No. There is no severance here. Statements made in connection with ownership of liability insurance is inadmissible.

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PMBR CD #2

PMBR CD #2

I. Article V – Privilegea. FRE 501: Except as otherwise required, the privilege of a witness shall be

governed by the principles of the common law as they may be interpreted by the courts of the United States.

i. How this rule applies:1. In diversity cases and cases arising under state law, the

privilege of a witness is determined by state law. **2. In criminal cases and federal question cases and cases

arising under federal law , the privilege of a witness shall be determined by modern common law. (not state law)

3. Ex: the NAACP is suing the City of Chicago alleging racial discrimination. The city attorney is called as a witness; she objects to testifying claiming that the testimony would violate the attorney-client privilege.

a. Q: Would the objection be sustained? Yes, provided that the court recognizes the privilege as part of the modern common law.

i. Analysis: What type of case is it?1. This case is a federal question case

b/c the P is alleging racial discrimination. Therefore, we apply the second rule and apply modern common law. (not state law)

ii. Multistate : Wrong answer – objection overruled b/c there is no such explicit privilege under the federal rules; (but what you have to do is apply FRE 501).

iii. 4 kinds of privileges:1. Confidential communication privileges2. Incompetency privileges (common law privileges)

a. Dead Man’s Statute.i. Have been largely abolished today.

ii. FRE 601 has abandoned any Dead Man’s Statute. There is no federal Dead Man’s Statute.

iii. Typical : In an action commenced or defended on behalf of the deceased, testimony regarding any transaction with the deceased is inadmissible.

iv. FRE 601: Requires that federal rules follow the state’s Dead Man’s Act if any exists in

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any case controlled by state law (i.e., diversity case – where state law controls; if the state has a Dead Man’s statute, the federal court will follow it).

3. Constitutional privileges (privileges in defamation or against self-incrimination)

4. Public policy privilegesa. Areas of legal relevancy where certain types of

information such as subsequent remedial measures are inadmissible.

iv. Essays:1. Relationship

a. Does a protected relationship exist?i. Attorney-client or doctor-patient

relationship.ii. Test : A protected relationship exists if the

client is seeking professional advice or consultation.

1. No compensation need be paid nor must the attorney or the doctor take the case.

2. Communicationa. The actual communication itself is protected, but

not the information.i. Ex: Client tells attorney he was driving too

fast at the time of the accident. That communication from lawyer to client is protected. But, if the D reveals that same information to a friend saying this same thing, the friend may testify.

3. Confidentialitya. As a general rule, only confidential communications

are protected.b. Essay :

i. Presence of third parties.1. As a general rule, nonessential third

parties destroy confidentiality.a. Whether a third party is

essential or nonessential:i. If the third party is

furthering some purpose of the relationship, that third party is essential and confidentiality will not be destroyed

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(i.e., secretary, stenographer, lab technician, nurse, etc.).

2. Eavesdroppers are nonessential third parties whose presence does destroy confidentiality.

a. At common law, eavesdroppers could testify.

b. The federal rules does not take a clear-cut stand as to whether eavesdroppers can testify.

c. Modern view : Known or reasonably anticipated (i.e., should have known) eavesdroppers destroy confidentiality. (majority view)

d. At a racetrack, while standing in line to place a bet, husband was overheard by an eavesdropper saying to his wife that he just robbed a bank. Is the eavesdropper’s testimony admissible? Yes, communications made in public are never confidential.

4. Holdera. The person in whose favor the privilege updates is

the holder.b. A privilege may only be asserted or waived by the

holder, or by someone authorized as the holder’s representative.

c. A waiver of a privilege operates not as a total or blanket waiver, but merely permits questioning by the opposing party to the extent reasonably necessary to scrutinize the disclosed information.

5. Exceptionsa. Generally based on strong public policy where

certain types of communications are not privileged and disclosure is permitted and sometimes required.

b. 5 areas of privilege:i. Attorney-client

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1. Protects confidential communications both from attorney to client and from client to attorney made during the existence of a protected relationship.

2. An attorney is defined as one who is actually licensed or one who is reasonably believed to be licensed by the client.

3. Holder of the attorney-client privilege is the client, but the attorney may assert this privilege on behalf of the client.

4. Situations in which there would be no such privilege:

a. Suits between attorney and client

b. Suits between joint clientsc. Disputes regarding a client’s

will after the client’s death.d. Communications made in

furtherance of a future crime or fraud.

5. Compare : work-product:a. Work prepared by attorney

by the attorney herself for her own use (i.e., notes, files). Such material is not protected under the attorney-client privilege, but it may be protected from unjustified disclosure or discovery under the work-product rule. (Hickman v. Taylor work-product rule).

b. Multistate: i. Act of simply handing

over pre-existing documents to an attorney does not, by itself, make this privilege (i.e., bank records, contracts, etc.).

ii. Basic facts, such as name, address,

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occupation, etc., are never privileged.

6. A corporation may claim an attorney-client privilege as a client.

a. For federal courts, the attorney-client privilege applies to statements given by even ordinary federal employees (very broad) to attorneys investigating relevant issues. Upjohn v. United States

b. Extent of the attorney-client privilege in state courts is much more restrictive; the control group test is used. Under this, the attorney-client privilege applies only to a few high up officials – those persons having authority to decide corporate policy.

ii. Doctor-patient1. Protects confidential

communications made between the doctor and patient for the purpose of obtaining medical diagnosis or treatment.

2. Holder of the privilege is the patient.3. Communications under this privilege

include verbal communications and observations as well. (i.e., x-ray, scar, gunshot wound, etc.).

4. Exceptions (largely overshadow the rule itself):

a. No privilege where physical condition is at issue

b. No privilege in criminal proceedings

c. No privilege in malpractice actions

d. No privilege in competency or commitment proceedings.

iii. Psychotherapist-patient1. Exists in some jurisdictions.2. Scope os broader than the doctor-

patient privilege.

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3. There are many types of nonmedical professionals that may be included: medical doctors such as psychiatrists, psychologists, psychotherapists.

4. No privilege where mental condition is at issue.

5. State law: a duty imposed to warn on the psychotherapist’s part, as to any immediate threats of harm by the patient. Tarasoff.

iv. Priest-penitent1. Adopted in majority of jurisdictions2. Both the clergymember and the

penitent are holders. Both have separate privileges to refuse to disclose confidential communications.

v. Husband-wife1. Martial communications privilege

a. Common law rule.b. Protects confidential, verbal

communications made during marriage (but not before marriage, not after marriage) in both civil and criminal cases.

c. Effect of divorce : Upon divorce, confidential communications made during marriage remain privilege.

d. Modern trend : Both observations and impressions as well as communications are protected communications.

i. Ex : Husband comes home; sees his wife, and rolls up his arms showing needle tracks on his arms. This would be a protected communication on the modern end, but common law would

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not protect this b/c it’s not

e. Both spouses are holders of this privilege.

i. Each spouse may prevent the other from disclosure.

ii. This privilege: incapacity of one spouse to testify against the other spouse in a criminal case.

f. Exceptions:i. Crimes against the

other spouse or children

ii. Statements made in furtherance of a future crime or fraud.

2. Spousal privilege a. Privilege of incapacity in a

criminal case.b. Protects all communications,

not just verbal – protects observations and impressions as well – regardless of confidentiality, both prior to marriage and during marriage.

c. Marry a person and seal his or her lips.

d. But, upon divorce, the entire privilege is lost .

e. Multistate:i. Common law, the

party spouse was the holder.

ii. Federal courts (not federal rules), following the holder of Trammel v. United States, the witness spouse is the holder (not the party spouse, such as common law).

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f. Exceptions for the spousal privilege:

i. Crimes against the other spouse or crimes against the children of either spouse.

3. Ex: D is being prosecuted for larceny. We have a criminal case and the prosecution is being taken place in federal court.

a. 2 scenarios: 1) if D’s wife saw him commit the larceny, as a witness she may either choose to testify or refuse to testify because she is the holder of the spousal privilege.

4. Ex: The wife here did not see her husband commit the larceny, but he confided to her afterwards that he committed the crime.

a. Even though under the spousal privilege, the wife may choose to testify (option under Trammel), despite that the husband under the other privilege (marital communication privilege) may prevent her from testifying if he chooses not to waive his privilege. **

b. Confides to her confidential communications.

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PMBR CD #3 PMBR CD #3 : Evidence

I. Article VI -- Witnessesa. Competency

i. Competency Capacity to understand the obligation to tell the truth and you would have to have personal knowledge.

ii. Federal rules minimum competency test: (minimum credibility) requires 1) personal knowledge (FRE 603) and, 2) a declaration to testify truthfully (FRE 602).

iii. Judge cannot be, jury member cannot be, but one of the attorneys may be called as a witness.

iv. Common law requirements:1. Witness must take an oath to testify truthfully.2. Witness must show mental capacity sufficient to

understand the obligation to tell the truth.3. Witness must have personal knowledge – must be based on

the witness’ own present perceptions.v. Common law – grounds for disqualification:

1. These persons were incompetent to testify:a. Felonsb. Atheistsc. Childrend. Spouses

i. Each spouse could prevent the other from testifying in a state civil case.

e. Mental incompetentsf. Financially interested parties

vi. FRE 601:1. Every person is competent to be a witness except where

state law supplies the rule of decision.a. Ex: In a diversity case, where state law supplies the

rule of decision, a child witness to be rendered competent would have to satisfy the 3 common law requirements:

i. Swear to tell the truth (the oath)ii. Have the capacity to understand the

obligation to tell the truthiii. Have to have personal knowledge

b. Test under the federal rules – minimum competency test requires:

i. Personal knowledgeii. Declaration to testify truthfully.

2. FRE 601 – an oath or affirmation administered in a form calculated to awaken one’s conscience.

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a. Federal Rules do not inquire as to one’s conscience is actually awakened.

b. Basic policy under federal rules – dispense against strict competency requirements, and let the jury determine the weight / credibility of the witness.

c. Personal knowledge + declaration to testify truthfully – all that’s required.

vii. Use of interpreters1. It is permitted provided:

a. The interpreter takes an oath to testify truthfully.b. The interpreter qualifies as an expert witness.

2. The court may appoint interpreters in both civil and criminal cases and may fix reasonable compensation for such interpreters.

viii. Competency of the judge and members of the jury1. FRE 605 and 606:

a. Neither the presiding judge nor any jury member may testify in the trial in which she is sitting.

b. But, one of the attorneys may be called as a witness.b. Impeachment

i. Discrediting of the credibility of a witness1. FRE 607: The credibility of a witness may be attacked by

any party, including the party calling him.2. Compare :

a. At common law, a party could not impeach his own witness.

3. Situations where a party may want to impeach his own witness:

a. Party may be surprised by the witness’ hostile testimony.

b. Where the witness’ testimony is positively harmful to the calling party’s case.

c. Where one party calls the opposing party as a witness.

i. I.e., case of an adverse witness, where one party calls another party.

ii. In this case, the normal rules of impeachment are reversed .

1. The opposing party witness may be immediately impeached by the calling party.

2. The witness may then be subject to a direct examination by his own counsel (i.e., opposing party’s counsel).

ii. Intrinsic impeachment

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1. Evidence brought out from the mouth of the witness herself.

a. I.e., from the actual testimony of that witness.iii. Extrinsic impeachment

1. Refers to all other evidence , not from the mouth of the witness.

2. I.e., contradictory evidence from other witnesses discrediting the testifying witness.

iv. Collateral matter rule1. Deals with contradictory evidence on collateral matters.2. Collateral is the opposite of material.3. Collateral issue is an issue which is not material to the issue

being litigated.4. Collateral evidence offered to attack the credibility of a

witness may be inquired into on cross-examination intrinsically, subject to the court’s discretion.

a. Most common way to this is by way of a prior inconsistent statement.

b. Ex: Witness testifies on direct examination that the D is an honest man. The witness may be asked: did you know that the D committed 3 burglaries in the past year?

i. This question is asked intrinsically to discredit the witness from her own mouth.

ii. If she says yes, or no, either way, it’s an attempt to attack her credibility.

5. But , extrinsic evidence (such as testimony of other witnesses) on the same question with regard to collateral matters may not be introduced.

a. Ex: P’s witness testifies that D drove through a light at the intersection and was wearing a green sweater at the time.

i. D may not call another witness saying that the sweatshirt he was wearing was blue. This extrinsic evidence is inadmissible; collateral matter.

v. 4 methods of impeachment:1. Sensory defects

a. Go to the credibility of a witness.b. The manner of impeachment by sensory defects

may be either questioning intrinsically the witness or extrinsic evidence regarding the inability of the witness to perceive, observe or remember – poor eyesight, poor memory….

c. Foundation requirements :

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i. Prior questioning as to the sensory deficiency

1. Ex: Ask: Do you normally wear glasses?

ii. A person’s religious beliefs are inadmissible to attack credibility. FRE 610.

2. Bias a. Forms in which bias may be shown:

i. Interest in the outcomeii. Economic or marital relationship

iii. Hostility or favoritismiv. The fee paid to an expert witness

b. Manner of impeachment as to bias may be intrinsic questioning or extrinsic testimony.

c. Foundation requirements:i. The court is very lenient.

ii. Ask the witness about the facts which form the foundation of the bias.

d. Bias is always material, never collateral.3. Character evidence

a. 4 ways:i. Reputation and opinion evidence for the

witness’ character of untruthfulness is covered by FRE 608(a)

1. At common law, reputation was only allowed.

2. Under the federal rules, reputation and opinion are allowed.

3. The proof of reputation or opinion is limited to the character of untruthfulness. **

ii. Bad act impeachment1. Prior, unconvicted acts. FRE 608(b)

a. Questions on cross-examinations may inquire into prior unconvicted acts relating to untruthfulness.

b. Ex: On cross-examination, the witness is asked: did you embezzle money from your employer?

i. Embezzlement is an unconvicted act (b/c no conviction method).

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ii. Embezzlement relates to truthfulness.

c. Ex: Same questioning as above.

i. The witness responses: no, I don’t.

ii. At this point, no other witnesses may be called to contradict her answer b/c this would extrinsic evidence on a collateral matter and would be excluded under the collateral matter rule.

2. Must be done in good faithiii. Felony convictions

1. FRE 609(a)2. Felony convictions are crimes

punishable by death or imprisonment in excess of one year.

3. Such crimes may be admissible to impeach provided that the court determines that the probative value of such evidence outweighs the prejudicial effect. (A balancing the court does; similar to FRE 403).

4. Felony convictions are permissible to impeach provided that this balancing test is met.

iv. Crimes bearing on untruthfulness1. FRE 609(a) – conviction of crimes

involving dishonesty or false statement

a. This can be a felony or a misdemeanor, just as long it involves untruthfulness.

2. The judge has no discretion to exclude such proof.

3. This comes in without any discretion.

v. FRE 609(b) – 10-year rule / limitation1. A discretionary rule2. Under FRE 609(b), conviction of a

crime under this rule (felony

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convictions and crimes involving dishonesty) is inadmissible to impeach if more than 10 years have elapsed after the conviction, unless the court determines that the probative value outweighs the prejudicial effect.

3. Impeachment using a conviction more than 10 years old requires that advance written notice be given to the opposing party.

4. Multistate question – which conviction would be most likely be allowed for impeachment?

a. 12 -year old conviction for forgery

i. More than 10 -years old, weak choice b/c of this.

b. 3 -year old conviction for assault and battery

i. This is a 3-year old conviction, less than 10-years; but, assault and battery – misdemeanors at common law – do not bear on truthfulness.

c. 10 -year old conviction for petty theft

i. Correct answer.ii. Better answer than d

b/c it’s not more than 10-years old, but it is 10-years old.

iii. Petty theft is a crime involving untruthfulness.

iv. (Murder, on the other hand, is not.)

v. Petty theft comes in without any balancing – character of untruthfulness, without any discretion.

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d. 8 -year old conviction for murder

i. Less than 10-years old conviction, but it does not bear on truthfulness, but that’s ok, it will probably come in, but the probative value has to outweigh the prejudicial effect.

vi. Impeaching a person with conviction1. Procedurally :

a. Asking the witness (intrinsically)

b. Offering a certified copy of the conviction (extrinsically)

4. Prior inconsistent statements a. Most common form of impeachment. FRE 613.b. Foundation requirements :

i. A witness need only be given an opportunity to explain or deny the statement.

1. This does not need to be done on cross examination, but may be done after cross examination.

a. Difference from the common law. At common law, extrinsic evidence at common law of a prior inconsistent statement of a witness was inadmissible unless the witness was first asked on cross-examination whether he made the statement.

c. Scope:i. Any inquiry is permitted regardless of the

relevancy, but the witness’ response is limited to the collateral rule.

ii. Ex: witness says that the sweater is green. Witness is asked on cross-examination: did you tell XX that the sweater was blue? If the witness denies this, another witness may not be called to refute the answer.

vi. Pardons

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1. Conviction subject to a pardon under FRE 609 was inadmissible to impeach.

a. At common law, it was admissible.vii. Juvenile adjudications being used to impeach

1. Such juvenile adjudications are inadmissible against the D.2. However, when offered against a witness, use of such

juvenile adjudication is subject to the discretion of the court.

viii. Impeachment by using conviction under appeal1. This is admissible to impeach.2. Pendency of appeal is also admissible (by the D).

c. Presentation of evidence – Article VI (Witnesses)i. FRE 611 deals with the scope of cross-examination. Cross-

examination is limited under this rule of subject matter of the direct examination and matters affecting the credibility of the witness.

ii. 3 areas for cross-examination:1. Questions or issues addressing the scope of direct

examination.2. Leading questions3. Impeachment

iii. Ex: P testified that he was bitten without provocation by a large brown German Shepard with a white brown paw.

1. Defense attorney then asks D, don’t you own a large brown German Shepard with a white brown paw? D says yes.

2. Defense attorney then asks D, isn’t it true that your dog is gentle and doesn’t bite unless provoked?

a. P objects.b. Upon objection, the D’s attorney’s question should

be ruled:i. Choice A Admissible to impeach P’s

testimony that the dog bit without provocation. Wrong answer.

ii. Correct choice Inadmissible subject to the court’s discretion b/c D’s answer goes beyond the scope of cross-examination.

3. Where one party calls another as an adverse witness and then asks only one question, what is happening is that the scope of examination is being limited to that one question – ownership.

a. By calling the adverse party as an adverse witness, leading questions is allowed on direct.

b. Isn’t it true that you own a large brown German Shepard with a front white paw? This is admissible.

c. But when the D’s attorney’s questions D: isn’t it true your dog is gentle? Collateral and doesn’t deal

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with ownership (it goes beyond ownership and deals with temperament).

iv. Leading questions1. Generally not allowed on direct examination except:

a. Preliminary background informationb. Examination of expert witnessesc. Child witnessesd. Hostile or adverse witnessese. Refresh recollection

v. Refresh recollection:1. FRE 612 – witness’ memory may be refreshed by means of

either a leading question or a writing, either while testifying or before testifying, subject to the discretion of the court.

a. Limitations:i. The witness must testify without looking at

the writing. Examining counsel gives the writing to the witness, gives the witness a moment to refresh memory and then gives the writing back and then gives testimony based on his refreshed memory.

ii. The opposing counsel has certain rights – an absolute right – to inspect the document, to cross-examine using the document, and the opposing counsel may also introduce relevant portions of the writing.

iii. The witness need not have prepared the writing herself, nor must the writing have been preparing at or near the time of the event. **

iv. The writing itself need not be admissible in evidence – it can be the attorney’s notes or something that could be otherwise inadmissible as hearsay.

b. Even if the witness had not been shown the writing while testifying, but had reviewed the statement prior to coming into court, the trial court could order production of the writing for the opposing counsel if it’s necessary to meet the interests of justice.

II. Article IV on Relevancy, Article VI on witnesses, & Article VIII on Hearsay are most tested on multistate & Essays.

III. Article 7 – Opiniona. Lay opinion

i. FRE 701ii. A nonexpert or a lay witness may testify in the form of

opinions or inferences if these opinions or inferences are:

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1. Rationally based on the perception of the witness2. If these opinions are helpful to a clear understanding of the

testimony to the factfinder.a. If it’s helpful, probative, it’s going to be relevant.

**iii. Lay witness must have personal knowledge – must have

actually perceived or observed the events about which the opinion is given.

iv. Scope:1. A lay witness may testify as to speed (the car was going

55mph) and other things such as height, weight, color, etc.2. Lay witness opinions would not be proper to say that the

car was driving recklessly, carefully, etc., or that the bridge was properly constructed. These are improper forms of lay opinion. They are legal conclusions.

3. A lay witness may not testify as to a legal conclusion.4. Lay witness may testify as to the identity of a person.5. Lay witness may testify as to sensory description:

sound, smell, taste, etc.6. Lay opinion as to the value of property is permissible.7. Familiarity with one’s handwriting – this is permissible.8. Lay opinion was to sanity is proper, but not that a person

is mentally incompetent – this would be a legal conclusion.9. Physical condition:

a. Proper lay opinion:i. He appeared drunk. She was intoxicated.

This is ok.ii. If the lay witness says: he’s an alcohol or

she’s a schizophrenic, these are legal opinions and would require expert opinions. Improper forms of lay opinion testimony.

b. Expert witnessesi. FRE 702 – qualifications of expert witnesses

1. An expert must have special knowledge, skill, training, education or experience.

a. Court has broad discretion to determine what constitutes what type of skill.

2. Opinion must be helpful or assist the trier of fact in understanding the evidence.

a. Relevancy.3. Expert opinion must be within the expert’s field of

expertise.a. Ex: An expert truck mechanic may not give an

opinion as to the speed of 2 vehicles at the point of impact. This type of opinion is beyond the scope of the expert mechanic’s field of expertise.

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i. To require an opinion on speeding would be by an expert in accident reconstruction, not an expert truck mechanic.

b. Special knowledge, training, education, experience; opinion helpful to the factfinder; opinion within the expert’s field of expertise.

ii. FRE 703 – Basis for the expert’s opinion.1. Expert may base her opinion on:

a. Facts perceived by her or made known to her at or before the trial.

b. Ex: Testimony by a coroner, who would be qualified by an expert witness, as to the findings of an autopsy. Facts perceived before trial.

c. Ex: Facts about a fatal accident made known to the expert at trial, despite her lack of personal knowledge.

d. Facts reasonably relied upon by experts in the particular field.

i. Expert opinion may be based on facts not in evidence or inadmissible hearsay.

2. An expert need not have personal knowledge, but a lay witness giving a lay opinion must have personal knowledge.

iii. FRE 705 – Cross-examination of experts1. An expert need not give the reasons for her opinion on

direct examination.2. However, the expert may be required to disclose such facts

on cross-examination.iv. FRE 704 – Opinions on ultimate issues (multistate – tested

heavily)1. FRE 704(a)

a. Unlike at common law, an expert witness may give an ultimate opinion as to an ultimate issue. Contra to the common law rule.

i. Ex: Testimony as to whether a testator had sufficient mental capacity to know the nature and extent of the property and the natural objects of his bounty.

1. Permissible area for expert opinion.2. If the expert is asked: Did the testator have the legal

opinion to make the will?a. This is taking the question away from the jury and

is not a proper opinion.b. But there may be testimony as to whether the

testator knew the nature and extent of his property.3. FRE 704(b) – Opinions on ultimate issues in criminal cases

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a. Severe limitations on expert’s opinionb. Applies only to criminal cases c. An expert may not give an opinion as to whether a

criminal D did or did not have a particular mental state constituting an element of the crime charged or defense thereto.

d. Ex: We have a murder case and the D pleads: not guilty by reason of insanity.

i. An expert witness may not be asked if, in her opinion, she thought that D was insane at the time of the killing.

1. This would violate FRE 704(b).IV. Article VIII – Hearsay and Hearsay Exceptions

a. Most heavily tested of the Federal Rules.b. FRE 801(a) – definition of a statement:

i. A statement is defined as either an oral or written assertion orii. A statement is nonverbal conduct intended by a person as an

assertion.iii. Ex: D is charged with driving while intoxicated. At his booking, a

videotape is made showing him to be behaving in an abusive manner and with slurred speech.

1. D moves to suppress the evidence; will this motion be granted or denied?

a. One choice – motion denied b/c the videotape is an admission

b. Another choice – motion granted b/c the videotape is inadmissible as hearsay

c. Both of these answer choices are wrong. You can eliminate both by realizing:

i. A videotape is not a statement: not an oral or written assertion nor was it intended by D intended as being assertive (he wasn’t trying to prove that he was drunk with his slurred speech).

d. Correct answer – motion denied b/c the videotape was relevant evidence.

iv. Ex: The P was injured in a windsurfing accident – a windsurfing collision with a power boat. P is suing the owner of the powerboat. At issue was the wind speed at the time in question. The P is offering into evidence a computer printout measuring the windspeed. This computer printout was given to him by another boatowner who was another eyewitness and this boatowner has a sophisticated weather monitoring device that tracks windspeed. D wants to admit this:

1. The printout would be admissible as a business record.a. A computer printout is not a statement.

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b. A statement must be a human statement, not one made by animal or machine. In this case, it was made by machine.

2. Inadmissible as hearsay.3. Correct answer said – inadmissible unless there is

foundation testimony as to the accuracy and proper working condition of the weathering device (i.e., dealt with authentication).

v. Declarant makes the statement.1. Is the declarant the same person as the in-court witness?2. Did someone else make the statement that the witness is

offering?c. Hearsay : An out-of-court statement made by the declarant while

testifying in court offered to prove the truth of the matter asserted.i. Write this out on the essay. (Almost always going to be there).

ii. Steps to dealing with hearsay problems:1. Analyze the statement

a. Determine if there is a statement.b. Be able to isolate the statement and focus on that

statement or assertion.2. Determine who is the declarant

a. Determine who made the statement (person in court testifying, some other else; is it a party or some other witness).

3. Determine the purpose for which the evidence is being offered.

a. If the evidence is being offered for its truth, then it is hearsay.

i. Then and only then, you apply the hearsay exceptions. **

b. If the evidence is not being offered for its truth, then it is nonhearsay.

i. Nonhearsay is very important and highly tested.

d. Nonhearsay:i. FRE 801(d)

1. 4 types of statements which, by definition under the Federal Rules, are nonhearsay (i.e., hearsay exceptions).

a. Prior inconsistent statementsb. Prior consistent statementsc. Prior identificationsd. Admissions

2. As to all but admissions, the declarant must be available and subject to cross-examination regarding the statement.

ii. Verbal acts iii. Nonassertive conduct

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iv. State of mind

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PMBR CD #4:

PMBR CD #4

I. FRE 801(d): Prior Inconsistent statementsa. Prior sworn inconsistent statements are admissible both substantively and

to impeach. (memorize)b. Prior inconsistent statements that are not sworn are only admissible to

impeach.c. Sworn Subject to penalty of perjury at a trial, hearing, or other

proceeding.d. Ex:

i. Witness testifies that the traffic light was red on direct examination. On Cross examination, he is asked about a statement made in a deposition where he stated that the light was green.

1. Prior statement was made in a deposition.2. Deposition is sworn, a proceeding.3. Therefore, the prior inconsistent statement that the light

was green is admissible both substantively and to impeach b/c it’s a prior sworn inconsistent statement.

ii. If the witness made a statement to that friend that the light was green. This statement would not be sworn. Here, the prior inconsistent statement would come in to impeach.

iii. Witness testifies that he saw D kill victim. On cross-examination, witness is asked about a statement he made in an affidavit saying that he was not sure who killed the victim.

1. Affidavit is sworn, but it is not sworn at a proceeding.2. This is therefore admissible for purposes of impeachment,

but not as substantive evidence.II. FRE 801(d): Prior consistent statements are nonhearsay where offered to

rebut a charge of recent fabrication or improper influence.a. Such prior consistent statements are admitted substantively.b. Ex: Witness testifies favorably for the P on direct examination. On cross-

examination, the D attorney asks the witness if he is the P’s former husband. He answers yes. Now, we have an inference of bias / favoritism.

i. On redirect, the witness may properly testify that he and P have not spoken to each other since their bitter divorce 3 years ago.

III. FRE 801(d): Prior identifications.a. A prior identification is a prior statement of identification of a person

made after perceiving him.b. Prior identification is admissible substantively and is a form of

nonhearsay; offered substantively for its truth.

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c. Ex: Witnesses testify that the bank robbery was committed by a large man with red hair. D shows up at trial with a shaven head. Jailer is called to testify that when the D was first brought to jail, he had red hair.

i. Jailer’s testimony will be: (choices)1. Admissible as a prior identification.

a. This is incorrect.2. Admissible to explain the discrepancy with the witness’

testimony.a. This is correct b/c it’s relevant, but it won’t come in

as a prior identification.i. Definition requires a prior statement of

identification.ii. Jailer at a prior time did not make

identification of the D.iii. All that the jailer did was that he testified at

trial now that when D was first brought to jail, he had red hair.

IV. FRE 801(d)(2) Admissions (one area of nonhearsay)a. Direct admission / general admission

i. Defined as a statement of a party offered against him by his opponent.

b. General by conduct or silencec. An authorized admissiond. A vicarious admissione. A coconspirator’s admission.f. An admission is admissible as substantive evidence (as are all 801(d)

exceptions) as nonhearsay. **g. Compare : At common law, admissions were viewed as hearsay

exceptions.h. Multistate : Focus on federal rules, common law, and uniform rules (for

privilege).i. Essay : Federal rules & common lawj. Admissions are based on gamesmanship, not trustworthiness: you made

the statement, you stand by that statement. It can be used against you in court.

k. D comes over to P after a car accident and says, “It was my fault.”i. Statement of a party (the D) offered against him, by the P.

1. Admission of party-opponent ii. Compare : What would happen if a bystander / nonparty said “It

was the D’s fault.”1. Is this an admission?

a. No, this would be inadmissible hearsay.l. Focus on who is the declarant

i. If the declarant is the D (a party), then you’d have an admission.ii. But if the bystander is the declarant, then this would e viewed as

inadmissible hearsay.

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m. Admissions by conduct or silence (adoptive admissions)i. Evidence of conduct of a party which reasonably supports an

inference inconsistent with the party’s position is admissible as an admission.

ii. The circumstances must be such that a reasonable person would have denied the statement.

iii. Ex: P is suing his former employer, the corporation, after long-term exposure to a harmful chemical that caused leukemia. In the suit, D is denying both that the chemical was unsafe and that it knew that there was any special danger caused by the chemical. P seeks to bring into evidence a report which was compiled by D to a federal agency, detailing the harmful effects of the chemical.

1. Upon objection, the report will be admissible as an adoptive admission by the D.

2. A situation where a party (the D) conducts itself inconsistently with its trial contentions is a basis for an admission by conduct.

3. One of the incorrect answers said: admissible to prove notice.

a. Not as good of an answer as an adoptive admission because it comes in substantively; doesn’t just come in to show state of mind – to show notice.

i. It comes in as proof.ii. It comes in to show that D knew and to

show that the chemical was unsafe.iv. Ex: In a post-arrest situation, the silence of an accused may not be

used against him.1. The silence of an accused may not be used against him.2. At this point, the accused is relying on his Miranda right to

silence.3. A reasonable accused / person would remain silent, relying

on Miranda.4. If one of the accused says, “I didn’t do it, the other guy did

it” and the other guy says nothing. Is this an adoptive admission? No.

n. Representative admissions i. Authorized admission : A statement of any person, not necessarily

an employee, specifically authorized by a party to speak, which may be offered against the party, as an authorized admission.

ii. Authority to speak here is required.o. Vicarious admission

i. Statement of an agent or employee made during the existence of the relationship and concerning a matter within the scope of employment.

ii. At common law, the statement made had to relate within the employment duties as well.

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iii. Ex: A truck driver has an accident while making a routine business delivery. At the scene of the accident, he states to the police officer, “I guess I made too many beers at lunch.” This is made by a party’s employee. It’s within the scope of employment b/c he was carrying on business at the time. But at common law, this would not be admissible b/c “I had too many beers at lunch” did not have anything to do with his job (truck driving). However, under the broad expansion of vicarious admissions, such a statement would be proper as a statement made within the scope of employment.

p. Coconpsirator’s admission i. A statement of a coconspirator of a party made during the course

and in furtherance of the conspiracy is admissible against the party.

ii. Rationale behind this: each conspirator is viewed as an agent of all of the other conspirators.

iii. Requirement as to proof of the existence of conspiracy 1. Must be established by a preponderance of independent

evidence.V. Verbal acts / operative facts (nonhearsay)

a. Statement whose relevance is independently significant of their truth.b. 2 types of such verbal acts:

i. Transactional words 1. The actual words of a contract, a will, or a deed.2. These transactional words by themselves have independent

significance and are nonhearsay.ii. Tortious words

1. The actual words of libel or slander in a defamation action.2. These actual words have independent significance.

c. Ex: In a defamation action, P is offering witness’ testimony that D told a group of friends that P regularly turns in his employee’s work as his own because he is so incompetent.

i. This is the defamatory statement.ii. “told a group of friends” publication

iii. This statement will be admissible as nonhearsay beause it is being offered as a verbal act.

1. It’s being offered to prove that the D made the statement.2. It’s not offered for the truth, but is admissible as

nonhearsay in the form of a verbal act.VI. Nonassertive conduct

a. Not an area highly tested on the bar exam / the multistate.b. Nonassertive conduct under the federal rules is nonhearsay.c. Behavior which the actor does not intend to operate as a communicative

statement, but which may in fact be so interpreted and, as such, such a nonassertive statement may be admissible as nonhearsay.

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i. Ex: The ship captain who prepares and inspects his vessel. After he is done doing this, he takes his family, brings them on board, and sails away.

1. The captain is not putting his family on board to prove the vessel is safe, but he is doing so so that they could sail away.

2. He did not bring the family on board as an assertive statement.

ii. Ex: Persons opening the umbrellas in NYC. They aren’t opening their umbrellas to show the persons in the office it’s raining. It’s nonassertive.

1. This conduct is not intended as an assertion.2. Under the federal rules, nonassertive conduct is defined as

nonhearsay.d. Assertive conduct is hearsay:

i. Pointing finger to give directionsii. Nodding one’s head to say no.

iii. A referee signaling a touchdown by raising hands over his head.VII. State of mind (tested heavily on the multistate)

a. Independently relevant circumstantial evidence may be used as nonhearsay to prove of either the declarant or the listener :

i. Knowledgeii. Intent

iii. Attitudeiv. Belief

b. Caveat :i. Always look for the purpose for which the evidence is offered.

ii. Sometimes, the evidence is being offered to show knowledge, belief, etc. ** (state of mind)

iii. Ex: P is suing D for negligence after a car accident where D’s brakes fail.

1. D denies any knowledge of any existing problem.2. P calls D’s brother-in-law and says that he drove the car for

a week, and told the brother-in-law that the brakes were faulty.

a. This evidence is coming in to show knowledge or notice (state of mind); coming in to show knowledge of the listener (the D, the one who heard the declarant’s statement).

VIII. Hearsay exceptionsa. May lie under:

i. FRE 803 – if unavailability is not requiredii. FRE 804 – If unavailability is required

b. 24 exceptions under FRE 803c. FRE 803 – Hearsay exceptions where unavailability is not required.

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i. FRE 803(1): Present sense impression is a statement describing or explaining an event or condition made while the declarant is perceiving the event or condition or immediately thereafter.

1. Present sense impression did not exist at common law – it’s only under the federal rules.

2. The event or condition itself need not be starting. A present sense impression is an unexcited utterance.

3. Most highly tested aspect;a. Strict time frame elementb. Time frame is while perceiving or immediately

thereafter.i. 10 minutes would be too long; could be

minutes or moments.c. Ex: Weather conditions are at issue. Victim, who

was sleeping at his home, said that just after the robber fled, the teenager return and said, “What a clear night. It’s so clear that you can see a million stars.”

i. It was made just after the prowler fled.d. Present sense impression and excited utterances:

i. The declarant of the excited utterance or present sense impression need not be available or even known.

ii. Ex: P is suing D after an automobile accident which occurred near Times Square. At the trial, the P’s witness testifies that when it happened, while or immediately thereafter, someone in the crowd yelled, “That red car did it.”

1. Who is the declarant? Someone.2. Witness is testifying as to what someone said.3. We don’t know who that person is; that person need not be

available and is not available.4. Such a statement would come in as a present sense

impression or be an excited utterance.e. Excited utterances:

i. Statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

1. The statement need only relate to the startling event.2. Res gestae (common law term):

a. On the multistate, it is an incorrect answer.b. At common law, this was a term that dealt with

spontaneous declarations / excited utterances.3. The statement must be made “while the declarant was

under the stress.”4. It’s more lenient in time than the present sense impression.5. But, at the police station after the declarant is saying

something, this is too long - -not spontaneous.

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6. Statement has to be spontaneous.f. Statement of present mental or physical condition:

i. Statements of intentii. Statements of pain

iii. Statements of bodily healthiv. Hillman : P said, “I’m going to Colorado.”

1. This is a statement of present mental intent.2. This statement would be admissible to prove as truth for the

substantive evidence.3. Multistate : Examiners oftentimes use the word “going.”4. Present state must be a then -existing state of condition.5. Look for the present tense :

a. If the declarant says my leg is broken – statement of present physical condition, would come in.

b. If declarant says my leg was broken yesterday – not admissible.

6. Statements of condition may be made to any person, not just medical person.

7. Past mental state regarding a declarant’s will is permitted.a. Ex: The statement, “I revoked my will last week” is

admissible. **b. Exception.

g. Statements of past, physical conditioni. Statements of past physical condition are statements describing

either medical history or past or present symptoms.ii. These statements may be admissible if they are made for the

purpose of medical diagnosis or treatment.iii. The statement may be made to any person, not necessarily a

physician.iv. The declarant need not be the person seeking treatment herself.

1. Ex: A family member can make a statement about the patient’s physical condition and this would be permitted. (ex: a parent may make a statement about the child’s physical condition).

v. Issue of severance :1. Severance oftentimes comes up when dealing with past

physical condition.2. Ex: Declarant says, “That speeding car hit me and broke

my leg.”a. Can you server the speeding aspect from the

statement of physical condition?i. A: Yes.

ii. In this situation, the statement that the car hit declarant and broke her leg, would be admissible, but the fact that the car was speeding is not admissible.

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h. Past recollection recorded (highly tested on multistate)i. Where a witness’ memory has failed to have been refreshed (i.e.,

refreshing recollection has failed), the witness may read into evidence statements from a writing provided:

1. The witness once had knowledge about the matter.2. The memorandum or the writing itself must have been

either made by the witness or adopted by him at a time when it was fresh in his memory.

ii. The writing may be used for refreshing recollection. Then, the witness testifies (if possible) after the recollection has been refreshed. If this fails, the witness gets the writing again and reads the writing into evidence.

iii. The adverse party has the right to offer the writing into evidence.iv. The relevant passages are entered into evidence – read by the

witness.v. The writing itself isn’t in evidence until the adverse party moves

for this.vi. Any portions which are admitted by the adverse party will come in

substantively, not just to impeach.vii. The writing itself must be properly authenticated. It can be

authenticated by the witness who is testifying or any other qualified person. It must be properly authenticated so that it satisfies the best evidence rule.

1. Best evidence rule does apply to past recollection recorded.2. Best evidence rule does not apply to refreshing

recollection.i. FRE 803(6) – business records exception

i. Record or report of acts or events kept in the ordinary course of a regularly conducted business may be admissible as a hearsay exception, subject to certain limitations:

1. The circumstances must be such that there is no indication of untrustworthiness.

a. Ex: If these records, which are being offered by business records, are prepared in anticipation of litigation, they will be inadmissible for lack of trustworthiness. Palmer v. Hoffman.

2. The business record itself must have been prepared by either the custodian or a qualified person with knowledge.

a. At common law, it had to be the custodian who prepared the record. It could not have been anyone else who is given testimony of the record.

b. The record must have been prepared at or near the time of the event.

3. The record must have been prepared by someone with a business duty to record.

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a. Ex : An accident report is not going to be admissible as a business record for a slip and fall injury if the accident report was made by a checkout clerk in a supermarket.

i. This was not made by someone’s business duty to report; checkout clerk’s duty is to check out people’s groceries.

ii. Absence of a business entry may be used to prove the nonoccurrence of an event or the nonexistence of a record.

1. Ex: A DMV (Department of Motor Vehicles) check to prove that D had no driver’s license.

a. The absence of an entry could be admissible under the hearsay exception.

j. Public recordsi. Records of public, office, or agency activity.

ii. Records of matters observed pursuant to a legal duty.1. Caveat: Police reports in criminal cases are not included as

official records: public records or business records.a. Police reports are inadmissible as hearsay b/c of

their inherent lack of trustworthiness.iii. Factual findings of official investigation

1. These findings may be used in either civil proceedings or they may be used in criminal cases against the government.

iv. The reporter of the official record must be under an official duty to record (similar to business records – custodian of the record must have a business duty to record with the business record).

v. The court has the discretion to exclude the evidence due to a lack of trustworthiness.

vi. Absence of a public record is also admissible as a hearsay exception.

k. Hearsay exceptions dealing with records:i. Vital statistics form hearsay exceptions: birth, death, marriage

ii. Records of religious organizations: marriage certificates, baptismal certificates, etc.

iii. Multistate family records1. Including statements made in family bibles come in the

hearsay exception.2. Engravings on tombstones, urns, etc. also come in under

the family record exception.3. Genealogy are also included. 4. Inscriptions on family portraits.

l. Hearsay exception – statements made in ancient documents:i. An ancient document is a document older than twenty years (at

common law, this was third years).1. This is admissible if it is found in a place where it ought to

be and if there is some sort of authentication (this is lax).

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a. Ex: To show that a certain road was in existence, there can be a map. A map can be an ancient document to show that a certain road was in existence across a person’s property 20 years ago. If this is authenticated more than 20 years ago, it can come to prove this.

m. Hearsay exception – learned treatise exception (also called the expert exception)

i. This exception is not a common law exception, but only exists under the federal rules.

ii. Statements contained in published treatises and periodicals are admissible as hearsay exceptions if:

1. They are found to be authoritative.a. Can establish this by showing:

i. Expert testimony (expert on the witness stand or you can bring any other expert); or

ii. Judicial notice (often the case here).2. The learned treatise must be called to the expert witness’

attention on cross or relied upon by the witness on direct examination.

3. The statements in the learned treatise are read into evidence and are admissible as substantive evidence.

a. The writing itself is not admitted unless offered by the adverse party.

b. The rights of the adverse party are that the adverse party may admit portions of the treatise and once admitted, those portions are admissible not just to impeach, but also are admissible substantively to prove their truth.

n. Hearsay exception – final judgment (tested on the multistate):i. Evidence of a final judgment entered after a trial or upon a plea of

guilty to a felony is admissible as a hearsay exception.ii. Ex: After a car accident, D is charged with driving while

intoxicated. In the facts, it tells you that this is a crime punishable for up to 2 years in prison (i.e., a felony). D pleads guilty. D then serves 6 months in jail..

iii. Subsequently, P is suing D from civil damages for injuries resulted from the car accident. P is offering into evidence a certified copy of D’s conviction. This record of the conviction will be:

1. A) Admissible as proof of the D’s charactera. Why A is wrong :

i. If this conviction is proof of D’s character, it would come in as proof of D’s character (i.e., driving while intoxicated).

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ii. But, it’s not coming in as impeachment evidence; it’s coming in substantively (i.e., to prove it true).

2. B) Admissible as proof of the D’s intoxicationa. B is the correct answer.b. Trying to get this in to prove intoxication .

o. Hearsay itself – evidence to prove truthp. Hearsay exception – evidence is used to prove truth always come in

substantively – not to impeach.q. Catch-all exception (also called the equivalency exception):

i. This exception did not exist at common law; exists only under the federal rules.

ii. Multistate : Usually wrong on the multistate. **1. Very difficult to use.2. A lot of restrictions.

iii. In order for the catch-all exception to work, these must be satisfied:

1. The evidence being offered must be more probative than any other evidence on point.

a. Hard to satisfy.2. The court must find “circumstantial guarantees of

trustworthiness” equivalent to other hearsay exceptions (why it’s called the hearsay exceptions).

3. Admission of the statement must best serve the interests of justice.

4. Advance written notice must be given to the opposing party.

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PMBR CD #5:

PMBR - Evidence

I. Hearsay Exceptionsa. Rule 804: Hearsay exceptions under FRE 804 do require unavailability.

i. Unavailability as defined under FRE 804 (broad expansion of common law):

1. Assertion of a privilege 2. Refusal to testify 3. Lack of memory 4. Absence due to death, illness, or injury 5. Absence from the court’s jurisdiction

ii. Hearsay exceptions under FRE 804: 1. Former testimony

a. Testimony given at an earlier proceeding by a now unavailable witness is admissible if the party against whom the testimony is being offered or his predecessor in interest had an opportunity to examine the person at the earlier proceeding and had a motive to examine similar to the reasons already presented.

b. Identity of the parties is not required under FRE 804.

i. Common law : identity of the parties is required.

c. The opportunity for prior examination may be either direct examination, cross examination, or redirect examination.

d. The party against whom the evidence is being offered against must have been a party at the earlier proceeding.

e. Ex: In a suit for negligence, P is offering against D a deposition which was taken by D’s attorney of a now deceased eyewitness. This eyewitness observed a skiing accident in which P was injured.

i. Is this admissible?1. A: Yes, admissible as former

testimony.2. Similar motive: same cause of action

so that the D at the time of deposition is the same D at the time of trial.

3. Opportunity for direct examination by the defense attorney at the

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deposition; b/c of this, the deposition is admissible as former testimony. **

2. Dying declarationa. A declaration made by an unavailable declarant

made while under an imminent belief of death concerning the cause or circumstances of the purportedly imminent death in a criminal homicide prosecution or any civil action.

b. Compare: At common law, dying declarations were admissible only in criminal homicide cases.

i. Federal Rules have expanded this to include all civil actions.

c. Compare: Under common law, declarant had to have died. Modern rule: declarant need not have actually died, just an imminent belief that declarant would die at the time of statement.

d. A dying declaration does not apply to theft crimes, assault and battery, etc. – it must be a criminal homicide case or a civil action.

e. A dying declaration does not apply in a charge for attempted murder. (multistate)

f. Multistate :i. D gets shot and says, “I know I’m dying. X

shot me.” But, way up at the fact pattern, the declarant is there, sitting at trial. Have to look to unavailability.

1. Dying declarations declarant must be unavailable.

3. Declarations against interesta. A statement of an unavailable nonparty which is

against interest when made.b. It must be made against a pecuniary or financial

interest or a penal interest or a proprietary / property interest.

c. If you have a declaration against a penal interest if it is offered to exculpate the accused requires that there be corroborating circumstances must be shown to clearly indicate the trustworthiness of the statement.

4. Admission vs. declaration against interesta. Admission is by the party making it; declaration

against interest is offered by the adverse party.b. Admission doesn’t require unavailability;

declaration against interest does.c. An admission need not be against interest when

made; a declaration against interest must be against

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pecuniary, proprietary interest, etc., at the time it was made.

d. For an admission, the declarant need not have personal knowledge of the facts stated. ** But, for a declaration against interest, personal interest is required.

e. You cannot have both a declaration against interest and admission:

i. Admission: statement by partyii. Declaration against interest: statement

against party.iii. But multistate exam, it was both:

1. Vicarious admissions. Ex: Delivery truck driver had an accident and said, “Gee, I had too many beers at lunch.” That statement can be used as a vicarious admission. Statement by a party’s employee made during the scope of employment may be offered against the party. Here, the employee’s statement was offered against his employer.

a. This can also be offered as a declaration against interest. The fact pattern also says that the employee died in a car accident 2 months after the accident. He’s now dead. He was not a party to the action. P was suing the employer. So, the employee now deceased is a nonparty; the statement was against his interest (“Gee, I had too many beers at lunch.” – truck driver driving into victim and killing him) – b/c had he lived, this could have been used against him (his estate could be sued).

f. Multiple hearsayi. 2 or more layers of hearsay in the

declarant’s testimony.ii. Ex: P is in the hospital. Mother is the

witness testifying as to 1) what the nurse

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said (nurse’s statement) about what the doctor told her about the P’s condition.

iii. You must deal with each layer of hearsay separately.

1. First statement made: statement from the doctor to the nurse.

2. For multiple hearsay to be admissible, each layer must be separately admissible either under a hearsay exception or as some form of nonhearsay (prior inconsistent statement, state of mind, or a verbal act).

3. What the doctor said may be a business record if what he said was made in the ordinary course of business and he was reading to the nurse from some chart which he had the business duty to record.

4. Nurse’s statement you deal with that second. This might be hearsay; it most likely is. And the whole thing is inadmissible. But, possibly, the doctor made the statement to the nurse and you can argue that the nurse’s statement is to show notice / knowledge. This might be a way to get multiple hearsay admitted.

II. Article 9: Authentication (very highly tested area on the essay)a. For all real evidence and demonstrative evidence, a foundation must be

laid to authenticate by a showing of evidence “sufficient to sustain a finding that the matter in question is what its proponent claims.” **

b. Real evidence : documentary evidence (writings, handwriting samples, etc.) and physical evidence (murder weapon, etc.).

c. Demonstrative evidence : That which is used for purposes of explanation (not evidence of the actual case or crime itself) (i.e., visual aids, charts, maps, scale models, etc.).

d. Forms of authentication :i. Testimony based on personal knowledge

ii. Authenticate by distinctive markings (i.e., it was a pearl-handled gun and there aren’t too many of them).

iii. Tested often on the essay exam chain of custody an accounting of an item’s whereabouts, from the time in issue to the time of trial. **

1. Past essay example of how chain of custody was tested:

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a. A witness took a photograph of a hit and run automobile leaving the scene of the crime. The only way that the police tracked down the D and determined his identity was by obtaining the film from the person who took the photograph; they then had to enlarge the photograph so that the picture showed them the car and the license plate of the car leaving the scene. They saw the license plate number and then tracked down the identity of the D who is now being charged with vehicular manslaughter.

i. D is convicted and seeks to overturn the conviction based on the use of the photograph.

1. No other witnesses; no other personal witnesses to authenticate the license place number.

2. Chain of custody analyze whereabouts of photograph from the time they took the picture to the time of trial.

a. You couldn’t do it . The photographer went to a photo lab and then went to the police.

b. You couldn’t account for where they handled it, who handle it, was there an opportunity to tamper at all with the photograph. **

3. Hearsay problem:a. License and license plate #

offered for the truth. Had to discuss also the problem of hearsay.

iv. Authentication of scientific evidence or scientific tests.1. Ballistic tests, radar, blood tests.2. 3 requirements:

a. The device in question must be in proper working condition.

b. The device must be operated by a qualified individual.

c. The techniques must be generally accepted in the scientific field /scientific community.

3. Ex: Weathering device; in order for weathering device that measures windspeed as far as the computer printout, the

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device itself would need to be authenticated by a showing of these 3 things (above).

v. Certain types of evidence covered specifically:1. How you authenticate handwriting, telephone

conversations, photographs. (essay question)2. Handwriting

a. 3 ways to authenticate a person’s handwriting:i. #1: A layperson with familiarity may

authenticate a person’s handwriting, as long as not acquired for purposes of litigation.

ii. Note : There is no time limit as to how long ago the person was familiar with the handwriting. Ex: Someone’s 3rd grade teacher could authenticate it if she’s familiar with it, she could authenticate it some 20 years later.

iii. The familiarity cannot have been acquired for purposes of litigation. It’s improper for a layperson to authenticate if that person’s familiarity has been acquired for purposes of authentication.

iv. #2 : Comparison by an expert witnessv. #3 : Comparison by the trier of fact

3. Telephone conversations:a. Made to a residence

i. 2 requirements:1. There must be a showing that the call

was made to the number assigned by the telephone company.

a. Based on usual accuracy of telephone directory and telephone system.

2. Self-identification:a. The caller must call the

person. The person who picks up the phone would say, “Yes, this is Jones speaking.”

b. Made to a businessi. 2 requirements:

1. Show that the call was made to the number assigned by the telephone company.

2. Show that the conversation related to business reasonably transacted over the telephone.

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4. Photographsa. Proper authentication of the photograph requires

that the photograph be an accurate portrayal of what it depicts.

b. The photographer herself need not testify as to the authenticity of the photograph itself.

c. The age of the photograph is irrelevant.e. FRE 902 – self-authentication:

i. Certain situations where no extrinsic evidence of authentication is required as to a condition precedent of admissibility.

1. Domestic public documents under seal2. Certified foreign public documents3. Certified copies of public records

a. Ex: A driver’s registration form (registration certificate, license, etc.).

4. Official publicationsa. Publications of an official / public agency (ex: FAA

pamphlet on air safety).5. Newspapers and periodicals

a. Copy of Time magazine6. Trade inscriptions

a. Label on a can of Green Giant Peas.b. At common law, this trade inscription would not be

self-authenticating, but it is under the federal rules.7. Notarized documents

a. Commercial paper III. Article 10 – Best Evidence Rule – Content of writings, recordings, and

photographs.a. Best Evidence Rule regularly tested on the multistate.b. FRE 1002 (best evidence rule): To prove the content of a writing,

recording or photograph, the original is required.c. Situations where the best evidence rule does not apply:

i. Does not apply merely to prove that a writing existed.ii. Does not apply merely to prove that a statement was made .

iii. Does not apply where the contents of the writing are collateral to the issues being litigated (FRE 1004).

1. Ex: P is suing D over a contract dispute. The date of the party’s first conversation is at issue. P says that the date was January 20th, I know because I remember reading a story about your daughter’s engagemenet in the newspaper that day. D moves to strike. The motion should be:

a. Granted because the best evidence rule would require production of the newspaper. (wrong answer)

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b. Denied because the contents of the newspaper were collateral to the issue being litigated. (correct answer)

c. * You had to see that the P’s testimony was being offered to show why he remembers, not to prove that D’s daughter got engaged.

d. Situations where the Best Evidence Rule does apply:i. #1: Where the writing itself has independent legal significance.

ii. Words of a contractiii. Words of a deediv. Words of a willv. Representations in a breach of warranty action

1. Actual representations have independent legal significance.a. Best evidence rule would require production of

actual warranty itself.vi. Photograph in pornography action.

1. Photograph would have independent legal significance.2. Party offering it into evidence would have to produce a

photograph.vii. #2: Where the writing is offered into evidence to prove an event.

1. Ex: An x-ray to prove injury or a receipt, if it were being offered to prove payment.

viii. #3: Where the testimony is reliant on the writing itself, not relying on mere personal knowledge. (most highly tested on multistate)

1. Ex: P is seeking to testify as to what he remembers as to the amount of pipe used, amount of workers employed, amount of hours spent in the breach of a construction contract.

2. P also has recorded this information in a notebook.3. The P’s testimony will be: (multistate)

a. Admissible based on first-hand knowledge.b. Inadmissible because it violates the best evidence

rule.c. P seeks to testify as to what he knows here. The

correct answer is admissible based on first-hand knowledge. **

d. Q: What if the P did not remember and he had to look in his notebook to determine the hours spent, etc.?

i. If he had to look in the notebook, his testimony would be reliant on the writing and the best evidence rule applies.

ii. Caveat: If B.E.R. applies, you have a second problem, a hearsay problem – you have to figure out how the notebook can be entered into evidence – you have to use the business records exception (one

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possibility) or past recollection recorded (i.e., the P was trying to remember what he wrote in the book, he couldn’t, so his recollection was failed – so he could read into evidence the words in the notebook and this could be substantively admitted).

e. Best evidence:i. Best evidence rule

ii. Hearsayf. Ex:

i. Witness is listening to a policeband radio and hears the following broadcast: a red car was hit by a speeding blue car at the intersection of Maple and Cedar Streets. Witness, who lives at this intersection, rushes over to her window, looks outside, and sees the red car at the scene with the blue car.

ii. At the trial which follows, witness is called as a witness for the P and is asked as to what he heard about the policeband broadcast:

1. Admissible as based on firsthand knowledge

2. Inadmissible because of the best evidence rule

3. Inadmissible as hearsaya. Correct answer .b. Her testimony as to what she

heard on the policeband broadcast is an out of court statement (she didn’t see the blue car speeding; she just saw the two cars at the scene)—inadmissible as hearsay.

c. Best evidence rule : It does not apply b/c best evidence rule is to prove contents of a writing, the original writing is required. We don’t have a writing here. Policeband broadcast are words which emanate from the radio and vanish into the air – not in a tangible or reproducible form, so there’s no writing, no best evidence issue.

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Therefore, this is inadmissible as hearsay.

4. Inadmissible under both the best evidence rule and hearsay.

e. Duplicates and photocopies under the best evidence rule are admissible and treated the same way as originals unless there was a general question of authenticity.

f. FRE 1006 : Summaries of voluminous records.i. Situations in which the records themselves are so voluminous that

they cannot conveniently be brought into court.ii. FRE allows summaries of these records to be used and admitted

into evidence.iii. Summaries of such records are admissible either in the form of

charts, summaries, or calculations, provided that both the original and the summary are separately authenticated.

1. To authenticate the original records, this can usually be done by self-authentication (ex :dealing with a public record), or if you’re doing a regulation of a public or private agency, judicial notice is a way to authenticate the original.

2. To authenticate the summary, this is done by personal knowledge; the person who drafted the summary or calculation (the custodian), that person will testify as to how he prepared the summary, what conditions that were involved, and as to his own qualifications.

a. Authentication provides reliability so that there is no hearsay problem.

iv. Summaries of voluminous records once admitted for truth and are admitted as substantive evidence.

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