I. Admissibility of relevant evidence R401-403a. When evidence is relevant:

i. General rule: only “relevant evidence” can be admitted (R402)ii. Definition: “relevant evidence” is evidence that makes a fact more or less likely

to be true without the evidence (R401)b. Rule401- Definition of Relevant Evidence”

i. Rel ev is evidence that makes a key fact either more or less likely to be true than it would have been without the ev

c. Rule 402- Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissiblei. All relevane ev is admissible, unless otherwise provided by:

1. The US constitution OR2. Act act of congress OR 3. The FRE OR4. Other rules prescribed by the US SC pursuant to stty authority

ii. Evidence that is not relevant is inadmissibled. Rule 403- Exclusion of Relevant Ev on Grounds of Prejudice, Confusion, or Waste of Time

i. Relevant ev may be excluded if its value is substantially outweighed by either:1. The danger of:

a. Unfair prejudice ORb. Confusion of the issues ORc. Misleading the jury OR

2. OR Considerations of:a. Undue delay ORb. Waste of time ORc. Needless presentation of cumulative ev

II. Types of Evidencea. Overview

i. There are two general types of evidence:1. Direct- evidence relating directly to the question of fact (example: Al

testifies that he saw Abe kill Lee)2. Circumstantial- evidence that may indirectly shed light on a question of

fact (ex: Al testifies that Abe is very termperamental, hates Lee, and can get very violent at times)

ii. There are special rules dealing w/ certain types of circumstantial ev (w/out weighing the prejudice on a case by case basis); these include the following

1. Evidence describing a person’s character (R404)2. Ev of a person’s habits (R406)3. Ev regarding subsequent remedial measures (R408)4. Whether a person has offered to compromise or compromised (R408)5. Whether a person offers to pay medical expenses (R409)6. Ev regarding whether a person has liability insurance (R411)7. Ev regarding a person’s sexual behavior(R412-415)

b. Character Evidencei. Overview

1. Character ev is ev of a persons’ character or character traits2. Generally inadmissible-

a. Normally character ev is inadmissible if it is used to show that a person acted in a certain way (A lies. Therefore he lied this time)

3. The rules address 2 diff types of character eva. Character of the accused or alleged victim in a crim case:

i. Generally- character ev would be admissible if the accused offered character ev about himself, or if the accused offered ev and the Π wanted to rebut this ev w/ contrary character ev (R404(a)). The prosecution may also offer ev of a character trait where the accused offers the character trait of the alleged victim first

ii. Homicide case- if the accused initially brings character ev about the alleged victim, the Π may bring up character ev (of the victims peacefulness) to prove that the victim was not the aggressor

b. Character ev involving other acts, crimes, or wrongsi. This type of ev is inadmissible to show that the accused

acted in a certain wayii. But IS admissible for other purposes (conforming w/

general rule for character ev)iii. Rule404(b) requires that the party who wants to bring

in this info must give notice4. Acceptable methods of proving character (R405)

a. Reputation or opinion evi. Normally, admissible character ev may be proved only

by reputation or opinion ev (ex: dan accuses Shirley of fraud. Max ma introduce ev that Shirley has a reputation of defrauding her customers to prove that there is no mistake or accident)

b. Specific instances of conducti. If the character/character trait is an essential element

of a charge, claim, or defense, ev of specific instnces of conduct may be used as proof (ex: Shirley charged w/ murder. Max may introduce ev that she had done something malicious in the past, b/c malice is an essential element” of murder)

c. Rule 404- Character ev not admissible to prove conduct; exceptions; other crimesi. Character ev generally

1. Character ev is ev of a person’s character or a character trait that they possess

a. Admissibilityi. Character ev is NOT ADMISSIBLE to prove that a person

acted in keeping w/ that characterii. Exceptions (the following character ev MAY be

admitted):1. Character of accused (in crim case) if:

a. The ev is offered by the accused and is pertinent OR

b. The evidence is offered by the Π to rebut character ev offered by the accused, OR

c. The ev is offered by the Π to show the character trait of the accused, where the accused offers the character trait of the alleged victim (under R404(a)(2)), and the ev is admitted

2. Character of the alleged victim in a crim case and subject to rule 412 (sex offense cases)) if:

a. The ev is offered by the accused and is pertinent, OR

b. The ev is offered by the prosecution to rebut character ev offered by the accused, OR

c. The ev is offered in a homicide case and is

i. Offered by the Π ANDii. Offered to show the

peacefulness of the alleged victim of the homicide, AND

iii. Used to rebut ev that the alleged victim was was the aggressor

3. Character of the Witness (see rules 607, 608, and 609)

b. Admissibility of ev of other crimes, wrongs, or actsi. Ev of a person’s other crimes, wrongs, or acts is NOT

admissible to prove that the person acted in keeping with that character (i.e. in conformity therewith)

ii. Exceptions

1. Such ev may be admissible for other purposes, such as proof of

a. Motiveb. Opportunityc. Intent d. Preparatione. Planf. Knowledgeg. Identityh. Absence of mistake or accident

2. Requirement (in a crim case): upon request of the accused, the prosecution must provide reasonable notice of the general nature of the ev, either

a. Before trl b. During trial , if the crt excuses pretrial

notice on good cause shownd. R405- Methods of Proving Character

i. Reputation or opinion1. In cases where character ev is admissible, proof may be made by:

a. Testimony as to reputation ORb. Testimony in the form of an opinon

2. Specific instances of conduct may be explored as proof on cross examii. Specific Instance of conduct

1. Specific instances of conduct may also be used as proof where a person’s character/trait is an essential element of a charge, claim, or defense

e. Habits and routine practicei. Overview

1. Ev regarding a person’s habit or an organization’s routine practice IS admissible to prove conduct on a particular occasion

2. Business practices are usually enough to prove that an organization acted in accordance w/ those practice on a particular occasion

ii. R406- Habit, Routine Practice1. Ev that’s admissible:

a. A person’s habit (day after day after day after day) ORb. The routine practice of an organization

2. Relevance: the ev is relevant to prove that certain conduct was in keeping with that habit or routine

3. The ev is admissible regardless of:a. Whether the ev has been corroborated ORb. The presence of eyewitnesses to prove it

f. Subsequent Remedial Measuresi. Overview

1. Evidence of a measure that a person takes after an event (that would have made the event less likely to occur had it been taken beforehand) is admissible only to prove

a. Ownershipb. Controlc. Feasibility of precautionary measures (i.e. if they say it was

impossible to do so)d. Impeachment

2. Ex: carl may prove that he owns blackacre by showing that he paid taxes and maintained blackacre after the dispute arose

3. It is NOT admissible to provea. Negligenceb. Culpable conduct

i. Ex: ralph may not prove that Charles was neg merely by the fact that after ralph fell on the sidewalk, Charles had it repaired

ii. Policy- we want people to fix things. No one would fix anything if they later could get hauled into crt just for that

ii. R407- Subsequent Remedial Measures1. This rule was amended to include product liability actions in the

exclusionary principle. It was also amended to clarify that the rule applies only to remedial measure made AFTER the occurrence that caused the damages

2. A “subsequent remedial measure” is:a. A measure that is taken after injury or harm caused by an event,

ANDb. A measure that would have made the injury or harm less likely

to occur had it been taken earlier3. Evidence of subsequent remedial measures taken is

a. Inadmissible to provei. Negligence, OR

ii. Culpable conduct, ORiii. A defect In a product, ORiv. A defect in a product’s design, ORv. a need for a warning or instruction

b. Admissible for other purposes, like proving:i. Ownership, OR

ii. Control, ORiii. Feasibility of precautionary measures (if disputed), OR

iv. Impeachmentg. Compromises

i. Overview1. Ev of a settlement of settlement negotiation is inadmissible to prove:

a. Liability of a claimb. Invalidity of a claim or its amount

2. It is admissible to show :a. Bias or prejudice of a witnessb. An absence of a contention of undue delayc. Obstruction of a criminal investigation/prosecution

ii. R408- Compromise and Offers to Compromise1. This rule applies to ev of

a. (a)(1) giving or receiving (or offering or promising to give or receive) valuable consideration in a compromise/attempt to compromise a claim, OR

b. (a)(2) conduct @ compromise negotiations (regarding the claim) or a stmnt made in compromise negotiations (regarding claim)

2. INADMISSIBLEa. If used to prove liability for or invalidity of a disputed claim or

its amount, ORb. If used to impeach a prior inconsistent stmnt (or contradictions)

3. ADMISSIBLE for other purposes, like:a. Proving bias of a witnessb. Negating a contention of undue delayc. Proving an effort to obstruct a criminal investigation or

prosecutionh. Offers to pay medical expenses

i. Overview1. Offers to pay medical expenses are inadmissible to prove liability and

admissible for any other relevant purposeii. R409- Payment of Medical and similar expenses

1. Ev of an offer or promise to pay medical, hospital, or other expenses, or actually paying such expenses, that arose as a result of an injury is inadmissible to prove liability for the injury

i. Please, Discussions, and related stmntsi. Overview

1. Ev of a plea or stmnts connected w/ a plea in a proceeding for perjury are admissible against a criminal Δ, if the stmnt was made:

a. Under oathb. On the recordc. In front of counsel

2. Such ev is also admissible if another stmnt made in the plea discussions was introduced in the proceedings, and it is only fair if this stmnt is considered together w/ the other stmnt(s)

3. The following is INADMISSIBLEa. Guilty pleas that was later withdrawnb. Nolo contendere pleac. Stmnt regarding one of these

i. So always go for nolo contendere!ii. R410- Inadmissibility of Pleas, plea discussions, and related stmnts

1. Scope: this rule applies to BOTH CRIM and CIVIL proceedings2. Except as otherwise provided, the following is inadmissible against a Δ

who either made a plea or participated in plea discussions:a. Ev that a guilty plea was later withdrawnb. Ev of a nolo contendere pleac. Any stmnt made in the course of the proceeding under FRCP11

(signing motions, pleadings, etc)(or comparable st rule) regarding the above

d. Ev of plea stmntsi. Any stmnt made in the course of plea discussions w/ a

prosecutor that either1. Did not result in a guilty plea, OR2. Resulted in a guilty plea that was later

withdrawnii. Exceptions:

1. Stmnts ARE admissible if eithera. Another stmnt made in the plea

discussions has been introduced (and it is only fair if this stmnt is considered together with it), OR

b. In a criminal proceeding for perjury of false stmnt, where

i. The Δ was under oath, ANDii. The stmnt was on the record,

ANDiii. The stmnt was made in front of

counselj. Liability Insurance

i. Overview1. Ev to show that a person has insurance is ADMISSIBLE

a. To show agency, ownership, or controlb. To show bias or prejudice

2. It is INADMISSIBLE to show negligence or other wrongful act

ii. R411- Liability Insurance1. Ev concerning whether or not someone is insured or liability is:

a. Inadmissible to prove negligence or other wrongful actb. Admissible for other purposes, like:

i. Proof of agency, ownership, or control (paying insurance on a car to prove it’s his)

ii. Proof of bias or prejudice of a witness (huh?)k. Rules on Sexual Behavior

i. Overview1. Changes to rule 412 in 1995

a. Ev concerning victim’s past sexual behavior and sexual predisposition is generally INADMISSIBLE

b. The 1995 rule determining admissibilityi. For CRIMINAL cases, the rule is mostly the same except

that the new rule has provided a 3rd circumstance for admitting ev.

1. Ev of specific instances may be admitted to show past sexual behavior WITH THE ACCUSED to prove consent (but you need a 412(c) motion)

ii. In CIVIL cases, the new rule provides for the admissibility of:

1. Sexual predisposition - if the value of the evidence outweighs any danger or prejudice to any party (Need 412(c) motion)

2. Reputation - only if the alleged victim placed it in controversy (need a 412(c) motion…but not if they do it IN trial)

2. Added rules 413, 414, and 415a. Evidence that the Δ committed similar crimes of sexual assault

and child molestation is admissiblei. In a criminal case in which the Δ is accused of that

crimeii. In a civil case in which a claim relies on a party’s

alleged commission of conduct that constitutes an offense of sexual assault or child molestation (think mock trial case…wrongful death, where it needs to be proved that he was molesting her and that’s why she committed suicide)

ii. R412- Sex Offense Cases; Relevance of VICTIM’S past behavior or alleged sexual predisposition

1. Ev generally inadmissible: the following is not admissible in ANY civil or criminal proceeding involving alleged sexual misconduct (see exceptions in B and C)

a. Ev offered to prove that any alleged victim engaged in other sexual behavior

b. Evidence offered to prove any alleged victim’s sexual predisposition

2. Exceptionsa. Criminal Case: the following is admissible in a criminal case (if

otherwise admissible):i. Ev of specific instances of sexual behavior by the alleged

victim AND that is offered to prove that someone other than the accused was the source of semen, injury, or other physical ev (i.e. it’s prob going to be that same day/night/party/whatever)

ii. Ev of specific instances of sexual behavior by the alleged victim (w/ respect to the person accused) AND that is offered by:

1. The accused to prove consent2. The prosecution

b. In a Civil Case: the following is admissible in a civil casei. Evidence offered to prove sexual

behavior/predisposition of any alleged victim is admissible if

1. Otherwise admissible under FRE, AND2. It’s probative value substantially outweighs the

danger of harm to any victim and of unfair prejudice to any party (i.e. going to do a backwards 403 determination here)

3. Procedure to determine admissibilitya. Requirements of the proponent: someone who wishes to offer

ev under one of the 412(b) exceptions MUSTi. File a motion

1. In writing, AND2. At least 14 days b4 trl (unless for good cause crt

says shorter time ok)3. And specifically desvribe the ev, AND4. Stating the purpose for which it is offered, AND

ii. Serve the motion on all parties and notify the alleged victim (or alleged victim’s rep or guardian)

b. Requirements of the court:

i. The crt must conduct a hearing in camera and give the alleged victim and parties a rt to be heard b4 trl

ii. The crt must seal the motion, related papers, and the record of the hearing (

iii. R413- Evidence of Similar Crimes in Sexual Assault Cases1. Admissibility of ev of similar crimes

a. Type of ev admissible : ev that the Δ committed another offense of sexual assault (the ev is admissible, and may be considered on any relevant matter)

b. when admissible: in a criminal case in which the Δ is accused of an offense of sexual assault

2. Requirements for the government when it intends to offer ev under this rule

a. The attorney for the gov must disclose the ev to the Δm including stmnts of witnesses or a summary of any testimony that is expected to be offered

i. At least 15 days before t he scheduled date of trl, ORii. At such later time as the crt may allow for good cause

3. This rule shall not affect any other rule4. “offense of sexual assault”- for purposes of this rule and R415, ”offense

of sexual assault” means a crime under fed law or the law of a stiv. R414- Evidence of Similar crimes in Child Molestation Cases

1. Admissibility of ev of similar child molestation crimesa. Ev that the Δ committed another offense of child molestation

(the ev is admissible and may be considered on any relevant matter)

b. when admissible: in a criminal case in which the Δ is accused of an offense of child molestation

2. Requirements for the government when it intends to offer ev under this rule

a. The attorney for the gov must disclose the ev to the Δm including stmnts of witnesses or a summary of any testimony that is expected to be offered

i. At least 15 days before t he scheduled date of trl, ORii. At such later time as the crt may allow for good cause

3. This rule shall not affect any other rulev. R415- evidence of similar acts in Civil cases

1. Admissibility of ev of similar crimes in civil casesa. Type of ev admissible : ev of a party’s commission of another

offense of sexual assault or child molestation (the ev is admissible and may be considered on any relevant matter)

b. When admissible:

i. In a civil case, ANDii. In which a claim for damages (or other relief) relies on a

party’s alleged commission of conduct, ANDiii. That conduct constitutes an offense of sexual assault or

child molestation2. Requirements for a party who intends to offer ev under this rule

a. The party must disclose the ev to the Δ, including:i. stmnts of witnesses, OR

ii. a summary of any testimony that is expected to be offered

b. Disclosure must be madei. At least 15 days before the scheduled date of trl, OR

ii. At such later time as the court allows for good causeIII. Privilege

a. General rule- priv governed by CL (unless otherwise set forth in formal legislation). i. State law, however, governs civil actions and proceedings if st law governs an

element of a claim or defense1. Only covers communications, not observations2. Unclear when it’s a “stmnt” that is not strictly communicative (i.e.

showing someone a wound)ii. Must intend for the communication to be confidential to invoke priv

1. Extends to other law firm members, experts retained by attorneya. BUT, it is the LAWYER who chooses what intermediaries/experts

are necc, so if a client invites a 3rd party, the priv does not apply to them and they can testify

b. Inadvertent disclosure and Waiver of Privi. Inadvertent disclosure is not necessarily a waiver of priv

ii. Priv can only be waived if1. It’s intentional2. Both the disclosed and undisclosed communications or information

concern the same submat3. The disclosed and undisclosed info should in fairness be considered

togetheriii. Any waiver will apply only to the particular communication or information

disclosediv. An inadvertent disclosure will NOT waive priv or work product protection as

long as the producing party took “reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error”

c. The consequences of disclosures in st and fed proceedings:i. Where the initial disclosure is in fed proceeding, the rule is binding on state crts

and fed crt-mandated arbitration proceedings

ii. Where the initial disclosure is in st crt, and the waiver issue is being decided in a subsequent fed proceeding, the decision is governed by either R502 or st law, whichever is most protective against waiver

iii. The rule has no effect where the initial disclosure is in st crt and the waiver issue is being decided in a sub st proceeding

d. Agreements btwn parties will be recognized and could bind third parties and later litigation

IV. Hearsaya. Overview

i. Rules 803, 804 and 805 provide exceptions to the hearsay rule. R803 gives exceptions that DO NOT DEPEND ON THE AVAILABILITY OF THE DECLARANT whereas R804 exceptions are conditioned on THE DECLARANT’S UNAVAILABILITY. R805 gives the exception for hearsay w/In hearsay

b. R801- Hearsay, generallyi. Definition:

1. Basically, hearsay is a stmnt made outside of court2. To prove the truth of the matter asserted3. Not otherwise excluded by 801(d)

ii. Statements which are NOT hearsay1. Prior statements by witness -

a. A prior stmnt is not hearsay if the declarant testifies and is subject to cross, AND

b. The stmnt is eitheri. Inconsistent w/ the testimony and was given under

oath (@ trl, hearing, other proceeding…think impeaching in mock off of signed depos) OR

ii. Consistent w/ prior testimony and is offered to dispute a charge (express or implied) that the declarant

1. lied2. was subject to improper influence3. had an improper motive

iii. identifies a person who was seen (or heard)2. Admissions by party-opponent

a. A stmnt that is offered against a party is NOT hearsay if:i. The stmnt is the party’s own stmnt (as an individual or

as a rep)ii. The party seems to have adopted or believed the stmnt

to be trueiii. The person making the stmnt was authorized by the

person to speakiv. the stmnt was

1. made by an agent or servant, AND

2. made during the existence of the relationship, AND

3. concerning an issue w/in the scope of the relationship, OR

v. the stmnt was made by a co-conspirator DURING the pendency of of the conspiracy, and in order to advance the conspiracy

b. the contents of the stmnt will be considered, but that is NOT enough in itself to prove

i. the declarant’s authority under Cii. the agency or employment relationship and its scope

(under d)iii. the existence of a conspiracy and the declarant’s

participation w/ the party against whom the stmnt is offered.

c. R802- The hearsay rulei. Hearsay is INADMISSIBLE

1. Exceptions:a. Where the FRE says it’s okb. Other rules prescribed by the US SC pursuant to stty authority

d. R803- Hearsay Exceptions immaterial of availability of declaranti. THE HEARSAY RULE DOES NOT APPLY TO THE FOLLOWING (EVEN THOUGH THE

DECLARANT IS AVAILABLE AS A WITNESS)ii. Present sense impression

1. Describing or explaining an event/condition, AND2. Made while or immediately after the declarant was experiencing the

event/conditiona. Immediacy is key- declarant talks w/out speaking, not enough

time has passed to lie/forget and attention focused (indicia or reliability)

iii. Excited utterance1. This is a stmnt:

a. About a startling event/condition, ANDb. Made while the declarant was under the stress of excitement

cause by the event/conditioni. Immediacy/excitedment is key. Ditto w/ aboce

ii. Nuttal v. Reading Co 1. Train accident, widow suing, wants to put into

ev of her husbands phone convo w/ boss telling him he was sick and to prove he felt pressured to go in.

2. Allowed, comments made on the phone and immediately after are an exception b/c used to prove his present sense impression of pressure

iii. US v. Arnold 1. Arnold called 911. Crt said admissible as excited

utterance. Stress of situation led to stmnta. There must be startling event/nervous

excitementb. the stmnt must be made b4 there is

time to contrive or misrepresentc. the stmnt must be made while the

person is under the stress of the excitement caused by the event

iv. cases do not demand a precise showing of lapse of time btwn startling event and the stmnt

c. crts tend not to require additional ev of an exciting eventiv. Then Existing mental, emotional, or physical condition

1. These are stmnts of the declarant’s then existing (at the time the stmnts are made(

a. State of mindb. Emotionc. Sensationd. Physical conditione. Examples: intent, plan, motive, design, mental feeling, pain,

bodily health2. Hillmon Doctrine- does not req st of mind to be @ issue; instead st of

mind of the declarant is used inferentially to prove other matters @ issue. When a particular act by an individ is an issue in a case, his intention to perf that act may be shown

a. Can only be used to show future conduct of the declarant, not future conduct of another person (ACN notes/US v. Pheaster)

3. This does NOT include stmnts of memory (to prove the fact remembered) or belief (to prove the fact believed) unless the stmnts is about the declarant’s will.

a. Mental state is paramount in "wills" casesb. b/c he is likely to be well informed on the subject, ANDc. Likely to be dead when the matter is litigated, suggesting a

strong need for ev of what he has said, ANDd. His own views on the subject may be as trustworthy as live

testimony by interested parties disputing the disposition of the estate

4. It DOES allow for th mental state of nonparties in issue, ex: suits alleging loss of business good will

v. Stmnts for purposes of medical diagnosis or treatment1. These are stmnts:

a. Made for purposes of medical diagnosis or treatment, ANDb. Describing any of the following (as long as they are reasonably

related to the diagnosis or treatment):i. Proper foundation necessary for R803(4)

ii. The Renville test requires that1. The declarant’s motice in making the stmnt is

consistent w/ the purpose of promoting treatment or diagnosis, and

2. That the content of the stmnt is reasonably relied on by a physician in treatment or diagnosis

iii. The ACN says that stmnts as to fault do not ordinarily qualify as medical stmnt

1. Thus, saying “I was struck by a car” is ok2. NOT OK to say “the car was driven through a

red light”vi. Recorded Recollection (aka Past recollection recorded)

1. This is a memorandum or record thata. Concerns an issue tha the witness had knowledge about but to

which he can no longer remember enough to testify fully and accurately, AND

b. Was made or recorded when the issue was fresh in the mind of the witness, AND

c. Correctly represents the witness’s knowledge2. If admitted, the memo or record may be read into evidence but may not

be submitted as an exhibit (unless offered by an adverse party)3. Requires:

a. Proper foundation, ANDb. The declarant witness to testify

i. Can be a stmnt that was made or adoptedvii. Records of regularly conducted Activity

1. Records include the following things:a. Memorandab. Reportsc. Recordsd. Data compilations (in any form), AND

2. They record:a. Acts, or

b. Events, orc. Conditions, ord. Opinions, ore. Diagnosises

3. Four elementsa. Regular business AND regularly kept record

i. Exception covers only records of a regularly conducted business activity

ii. And they REGULARLY keep records of this activityb. Contemporaneity

i. Made AT or NEAR the time of the act or eventc. Personal knowledge of source

i. The source of info must be someone w/ personal knowledge (custodian of records or some other qualified witness)

ii. Does NOT need to be the person who made the record (watch here for hearsay w/in hearsay)

d. Foundation testimonyi. Every hearsay reqs foundation, but this one expressly

contemplates either testimony by the custodian of records or other qualified witness OR

ii. Certification by such a person,