Evidence Law Outline

EVIDENCE OUTLINEPROF.
BLINKA
BACKGROUND/INTRODUCTION
I.
Background/Overview of Evidence Law:

a. Purpose of evidence law:
i. Regulate proof, control behavior by lawyers.
1. (1) Shapes, funnels, and controls proof at trial
2. (2) Controls lawyers conduct at trial.
a. Unless objection is timely, objection is waived.
ii. Places the burden on the parties to investigate, gather evidence, and present
evidence
1. Judges role is passive. FRE are only in play to the extent counsel asserts
them.
b. Two Basic Sources of Evidence Law:
i. (1) Testimony
1. Requirement of (a) under oath, (b) in the presence of trier of fact; and (c)
subject to examination by counsel (warm body rule).
2. Apply the FRE to every question and every answer asked in testimonial
phase. Object in a timely fashion.
ii. (2) Exhibits (stuff).
c. The Adversarial System:
i. Uses FREs as weapons/tools to further your clients chance of winning.
ii. Uses lay jurors. Mostly lay witnesses.
iii. Judge acts as an umpire
II. Evidence at Trials:
a. Broken into 2 concepts:
i. (1) Admissibility
1. What does the jury get to hear?
ii. (2) Sufficiency
1. When is there enough evidence to prove a claim/defense?
b. **Most of the class focuses on admissibility.
III. Types, Sources, and Substitutes for Evidence:
a. What is evidence:
i. It is either (1) testimony or (2) exhibits that have been (3) admitted into the
record.
1. Gets admitted either because no objection was made, or because the
objection was overruled. Objections are use it or lose it.
a. Judges decision to overrule objections is nearly entirely
discretionary and will not be reversed on appeal without a
showing of abuse of discretion.
b. Laying the Foundation
i. See discussion later in outline. Basic premise: If you need PK, you need to lay
the foundation for the PK, so the witness would need to testify that she actually
saw it.
c. Sources of Evidence Law:
i. (1) Constitutional Considerations:
1. Very few4th, 5th, and 6th Amendments, generally.
ii. (2) Court Rules:
1. Appellate courts have the power and capacity to create rules of
court/procedure, including specific rules of evidence.
2. Federal Rules of Evidence: approved in 1970 by SCOTUS. In 1974,

SCOWIS approved its version.
iii. (3) Statutes and Statutory:
1. Legislatures try to weigh in and create evidence code.
2. Advisory Committee notes are helpful for learning to work with these
rules.
iv. (4) The Common Law:
d. Substitutes for Evidence:
i. (1) Judicial Notice (FRE 201); (2) Stipulation; (3) Judicial Admission; (4)
Preclusion
1. Judicial Notice (FRE 201):
a. In theory, applicable to both civil and criminalbut really only
used in civil. Cant take judicial notice to the detriment of a
criminal defendant.
i. If judge takes judicial notice of an adjudicative fact
(who, what, when, where, how), there can be no further
dispute and it binds the trier of fact.
b. The Rule:
i. Judge can take judicial notice of:
1. (1) Something that is common knowledge; or
2. (2) A source of verifiable certainty.
ii. Judge needs to be, and generally is, very cautious.
Rarely takes notice, instead asks parties to stipulate.
c. Problems 2-1 through 2-3.
2. Stipulations:
a. Agreements b/t the parties as to the existence of a fact. Can be
virtually anything, and are extremely difficult to contradict.
IV. The Chronology of Trial
a. (a) Voir Dire/Jury Selection:
i. Good attys. use jury selection to indoctrinate jurors on points of law, foreshadow
strengths and weaknesses.
b. (b) Opening Statements:
i. Previewing admissible evidence. Cross your fingers and guess what is going to
be admissiblejudges give latitude. Opening statements NOT evidence.
Evidence starts in case-in-chief.
c. (c) Plaintiff/Prosecutor Case-In-Chief
i. Start of the presentation of evidence. Parties call witnesses in the order they
want. Eventually P rests
d. (d) Defense Motion to Dismiss/Directed Verdict
i. Must ALWAYS make this motion and say that the Ps evidence, standing alone,
is not enough to win the case.
1. 99% of the time it is not granted, but malpractice to not ask.
e. (e) Ds Case-In-Chief
i. Same deal as Ps. Eventually defense rests, but still may raise another motion to
dismiss.
f. (f) Rebuttal Cases
g. (g) Closing Argument:
i. **For our purposes, the only part that FREs apply to are from Ps Case-In-Chief
to end of Ds Case-In-Chief
h. (h) Judges Instructions to the Jury:
i. Instructions as to Admissibility:
1. Judge decides whether evidence is admissible, and typically the jurys

only job is to decide how much weight to attach to that piece of
evidence.
ii. Cautionary Instructions:
1. Tells the jury to be wary on evaluating the weight of a particular piece of
evidenceused for testimony by accomplices, drug addicts, etc.).
iii. Limiting Instructions:
1. Judge believes they may have chunk of evidence that is relevant for
inference 1 and inference 2, but under the law of evidence it would be an
improper inference for inference 2.
a. So, we remind jury that they must only use that piece of
evidence for the proper inference. The assumption is that the
jury listens to these, but it is just pure fantasy.
iv. Curative Instructions:
1. Directs the jury to disregard something theyve already heard. Happens
with testimony that has been stricken from the record. Jurors tend to
remember this stuff even more vividly.
i. (i) Jury Deliberation/Verdict: (Allen Instruction deals with hung jury)
i. Allen Instruction: Judge tells jury they need to go figure it out or we will retry
whole case.
THE EXAMINATION OF WITNESSES
I.
The Rules and Procedure of the Examination:

a. FRE 615: Sequestration of Witness
i. Kicked out of courtroom, cant hear testimony.
1. Lawyer under obligation to ensure witnesses know of order and dont
violate by discussing with other witnesses.
ii. ***Party to the case who is a natural person CANNOT be sequestered***
1. There is no absolute right to have someone at the table with you (unless
it is the party), it is within the discretion of the court.
iii. Exceptions to FRE 615:
1. Cannot sequester:
a. (1) Party who is a natural person;
b. (2) Officer or EE of a party that is not a natural person, after
being designated as the partys representative by its atty.;
c. (3) Person whose presence a party shows to be essential to
presenting the partys claim or defense; OR
d. (4) Person authorized by statute to be present.
2. Problem 4-2
b. Direct, Cross, Redirect, Re-cross:
i. The Order:
1. DirectCrossRe-DirectRe-Cross
a. Re-Direct:
i. Should be responsive to the scope of the cross-exam
questions. Think of the order as broad in Direct and
funneling more narrow as it goes.
c. Questions by Jurors and Judges: (not on exam)
i. Most good judges wont ask their own questions.
ii. Jury questions are not favored.
1. In WI, the jurors write them down, then the attys. and judges go into the
chambers and decide whether to answer them.
d. Excusing the Witnesses:

i. FRE 611:
1. Gives trial judge control over the mode and order of interrogation. Once
the lawyer says no further Qs, that is generally the end of it. This can be
used strategically used to ensure that the other atty. cant get re-cross.
a. When excused, judge is actually releasing subpoena.
b. But, you can hold someone over for re-call if you ask the judge.
II. The Scope of Examination of a Witness:
a. Scope of Direct Examination:
i. Question the witness about
1. (1) All that is relevant under FRE 401; and
2. (2) Credibility of the witness.
b. Scope of Cross Examination:
i. FRE 611(b): Majority (Federal) Approach:
1. Cross-examination should not go beyond the subject matter of the direct
examination.
a. Except that it may go to Credibility.
2. Example:
a. Direct discusses Facts A and B only. Cross is limited to Facts A
and B, plus Credibility.
i. If atty. wants to ask about Facts C and D, he would need
to wait and call that witness during his case-in-chief.
3. Problem 4-5
ii. Minority (WI) Approach
1. Wide open approach. Cross-examination can ask about all that is
relevant, plus Credibilityeven if the facts werent asked on Direct.
c. Scope of Re-Direct Examination:
i. Re-direct must be related to the scope of the cross-examination, and should not
be an attempt at another brand new Direct.
1. Problem 4-7
d. Miscellaneous Examination Scope Rule:
i. FRE 106: The Rule of Completeness
1. If one party introduces an item of evidence (deposition) during one state
of a witnesss exam, the opponent has the right to introduce other parts
relevant to the same subject matter during the next stage of that witnesss
exam.
a. Prevents half-truths.
2. FRE 106, on its face, is inapplicable to oral statements. But, courts have
interpreted it as encompassing oral statements.
III. Form of Examinations:
a. Overview:
i. The rules/customs/conventions that lawyers follow while asking questions. Not
found in the FREs, just exist through custom.
1. The problem is always with how the opposing counsel phrases the
question, but you dont just say objection, form. Have to be able to
pinpoint what was wrong.
a. Sustaining these objections is in judges discretion. The penalty
is just that the question has to be rephrased. Dont always want
to object b/c you dont necessarily want your opponent to hone

his/her question.
i. If there is an objection to the answer not being
responsive to the question, only the lawyer asking the
question gets to object.
ii. Always want to think of opposing counsels questions in two ways:
1. (a) is this in proper form; and (b) does it comply with evidence law
(admissibility, unduly prejudice, etc.)?
iii. List of Form Problems (not all inclusive)
1. (1) Misleading and assumes a fact not in evidence
2. (2) Misquotes a prior witnesss testimony
3. (3) Ambiguous, vague, and unintelligible
4. (4) Counsel making a statement, not asking question.
5. (5) Impermissibly Leading Qs
6. (6) Narrative Qs
iv. Problems 4-9 thru 4-15:
b. Some Form Problems:
i. Impermissibly Leading Questions:
1. A question is leading when it suggests the answer that the examining
party desires.
a. BUT:
i. Cross-examiners can always lead. See FRE 611.
2. You can lead on direct as well, just not as much.
a. Leading questions permitted on direct to lay evidentiary
foundations (date, time, place, etc. of an event).
ii. Narrative Questions:
1. Cant ask a question that would lead to the witness rambling.
a. Even if the narrative would be sincere, accurate, and coherent, it
is still a sing under evidence law. We want bite-size pieces of
testimony.
i. Examples: Tell us how the accident happened.
THE ROLES OF JUDGE, JURY, AND ATTORNEY (Ch. 5)

I.
Role of Attorneys
a. Pretrial motions to include/exclude evidence:
i. Motions in limine
1. Anticipate evidentiary problems and obtain an advance ruling.
a. BUT, even where the courts motion ruling is definitive, nothing
in evidence law prohibits the court from revisiting its decision if
the evidence is offered at trial.
b. Offering Evidence at Trial:
i. Exhibits:
1. Formal, dance-like quality to offering an exhibit into evidence.
a. Ask judge to markAsk permission to show opposing
counselAsk judge if you can approach the witnessMake the
record by handing to witness and asking questions to lay
foundation/authentication. (P. 7880)
2. Foundational Questions:
a. Anticipating possible objections as you ask the questions.
3. Offer of Proof:
a. If court decides to sustain an objection and not admit your
exhibit, you give your offer or proof for purposes of record on
appeal.
i. (a) Summarize the evidence you thought you could get
in;
ii. (b) Present the theory of admissibility that responds to
the objection.
c. Objections to Evidence at Trial:
i. The Mechanics:
1. (1) Need the word object; (2) must be timelybefore answer is given;
(3) cite grounds for objectionmake sure you get it right first time or
you waive.
2. Can move to strike if your witness gives an answer you dont like.
II. Role of Trial Judge:
a. Overview:
i. Judges role is on all questions of lawevidentiary and substantive.
1. Implicates either FRE 104(a) or FRE 104(b).
a. FRE 104(a):
i. Judge decides all issues of fact and law. Determined by
a preponderance of the evidence.
b. FRE 104(b):
i. Judge decides whether there is sufficient evidence such
that a reasonable jury could find the conditional facts
(conditional admissibility). If so, it goes to the jury.
ii. 95% of trial issues are 104(b)but only 10% of the
evidence course are these.
1. Examples: PK (FRE 602); Credibility;
Authentication (FRE 901).
ii. Bourjilay Case:
1. Adds to FRE 104(a):
a. Yes, the judge decides all issues of fact and law by a
preponderance of evidence. BUT, in making that call, the judge
is NOT bound by the rules of evidence.
i. Conversely, if the judge decides something under FRE
104(b), he is bound by FRE and only admissible
evidence may be considered.
iii. Problems re: 104(a) and 104(b):
1. 5-1 through 5-3.
WITNESS COMPETENCY (Ch. 7)
I.
Overview:
a. Deals with FRE 601, FRE 602, and FRE 603:
i. FRE 602: Personal Knowledge:
1. For any witness to testify there must be a showing that the witness has
sufficient personal knowledge (PK) to testify to the matter.
2. PK is a FRE 104(b) issue.
a. If there is an objection that a witness lacked PK under 602, that

falls under 104(b) and the judge only gets to determine whether a
reasonable jury could conclude that PK exists before allowing
testimony. Whether or not to give any weight to that testimony is
left to the jury.
3. Objection for Lack of Personal Knowledge:
a. Funnels into FRE 602/701 and FRE 104(b): judge decides
whether a reasonable juror could find PK. Jury gives testimony
weight.
i. If a witness claims to have PK, and it isnt so
unbelievable that a reasonable jury couldnt possibly
believe it, then it will survive objection.
1. Credibility of the witness is a different story.
And you can attack the credibility to try and get
a jury to not believe the witness.
4. Problems 8-16 and 8-18
5.
ii. FRE 601: Competence:
1. The eligibility to testify. Everyone is presumed to be a competent
witness.
a. Competent = four testimonial capacities:
i. (1) Capacity to be Sincere (honest)
ii. (2) Capacity to Observe Accurately (the 5 senses)
iii. (3) Capacity to Remember
iv. (4) Capacity to Narrate.
v. On the stand you (4) narrate what you (3) remember (2)
observing in an (1) honest fashion.
2. The Four Capacities Defined:
a. (1) Capacity for Sincerity:
i. Measured through FRE 603. Determined entirely by
oath or affirmation.
ii. In terms of impeachment, there is wide latitude to attach
sincerity (showing untruthful character)
b. (2) Capacity to Observe
i. The five senses
c. (3) Capacity to Remember
i. Dont use this very much. Law of evidence has shut the
door on modern psychology and neuroscience
d. (4) Capacity to Narrate
i. Oral communication in English. If not, bring in
translator.
3. Attacking the Capacities/Credibility:
a. Wide leeway given for attacking credibility by attacking the
witnesss capacitiesFREs 608/609
4. Side notes on Competence/Capacities:
a. Hypnosis is per se in admissible
i. UNLESS it is a criminal defendant having memory
hypnotically refreshed. Criminal defendants have right
to testify.
b. Credibility v. Competency
i. Credibility is the believability of a witness. Are they

right or wrong in what they are saying?
ii. Credibility is dumped in the lap of the trier of fact.
c. Competency is determined at the time of testimony in court, not
at the time of the occurrence.
i. Our reservations about observational accuracy b/c it is so
distant in time goes to Credibility, not Competency.
d. FRE 601 Competence is decided by the trial judge under FRE
104(a).
i. The judge may bar a witnesss testimony if no one could
reasonably believed the witness observed, remembered,
communicated what they say. This is an EXTREMELY
low bar.
ii. Contrast with FRE 602: Personal Knowledge, where it is
a 104(b) question. If there is an objection that a witness
lacked PK under 602, that falls under 104(b) and the
judge need only determine whether a reasonable jury
could conclude that PK exists before allowing testimony.
The jury gets to hear it and determine whether to give it
any weight.
5. Problems 7-1 thru 7-5
iii. Side note on FRE 901: Authentication
1. Objections for Lack of Authentication funnel into FRE 901 and FRE
104(b): judge must decide whether a reasonably jury could think
authentication was provided.
a. Authentication turns on the theory of admissibilitywhat are
you saying this evidence is?
i. 901(a): Proponent must produce evidence sufficient to
support a finding that the item is what the proponent
claims it is.
II. Specialized Aspects of Competency: The Dead Mans Statutes:
a. Overview:
i. When there is a witness on the stand relating what a dead person said. But, we
arent taking up the hearsay problemthat hearsay objection will always
accompany a Dead Man Statute competency objection as well.
b. How to Analyze (Rutter v. Copper (Wis. Ct. App. 2012)):
i. (1) Person dead?; (2) Does the witness testifying have an interest in the lawsuit
related to what the dead person said?; (3) Is the testimony about something that
qualifies as a transaction or communication?; (4) Was there waiver?
1. As to interested person: Does NOT need to be a party to the suit to be an
interested person.
2. As to transaction or communication: WI takes a narrow approach.
3. As to waiver: WI requires that you say precisely this: Objection, the
witness is incompetent under the dead mans statute, 885.16.
a. Otherwise, a court will not apply the dead man statute.
ii. Problem 7-6
III. Competence as related to Judges and Juries:
a. FRE 605: Judge Incompetence
i. Judges are not competent witnesses, period.
1. This usually only comes up when a judge take judicial notice under FRE
201, but that runs amuck. Believes himself to be acting within scope of
judicial notice/common knowledge, but isnt.
ii. Problem 7-7
b. FRE 606: Juror Incompetence
i. 606(a): During Trial:
1. May not testify as witness in the trial in which they are sitting.
ii. 606(b): Post-Trial:
1. Default rule is that it is not allowed. We want to protect finality of
verdicts:
a. But, allowed in some circumstances to testify a/b what happened
in jury room
b. Two exceptions:
i. (1) Extraneous prejudicial information brought to bear
on the jury during deliberation; or
ii. (2) An outside influence was considered in reaching
verdict.
2. The only people that are incompetent under 606 are jurorsif Bailiff
saw some misconduct, he is allowed to testify.
3. Problem 7-8: LOOK AT THIS
LOGICAL RELEVANCE: PROBATIVE VALUE (Ch. 8)
I.
Logical Relevance Overview:

a. Overview:
i. Two key rules: FRE 402 and FRE 401:
1. FRE 402:
a. All relevant evidence is admissible UNLESS it is is excluded by
some other FRE.
i. Green light until opposing counsel makes proper
objection.
2. FRE 401:
a. Defines relevance for the purposes of FRE 402
i. Defines it as evidence having any tendency to make a
consequential proposition more or less likely.
b. The Analysis:
i. Identify the item of evidence and the factual proposition
we want it to establish:
1. Then, we ask whether the that item would have
any tendency to make our factual proposition
more or less likely. (see diagram on p. 148)
2. The any tendency bar is pretty low. And it can
be tendency to make it more or less likely.
c. **Credibility of a witness is ALWAYS considered relevant
evidence under FRE 401 and 402.
d. **FRE 401 issues are ALWAYS for the trial judge under 104(a).
i. But, FRE 602 (personal knowledge, and FRE 901
(authentication) are ALWAYS 104(b) questions for the
jury.
II. Three Basic/Helpful Distinctions:
a. (1) Logical Relevancy:
i. Logical in the way that it is based on common sense and life experienceNOT
logical syllogisms.
1. All a function of life experience.
ii. Problems 8-1 thru 8-8
b. (2) Consequential Factual Proposition (materiality in book)
i. What you are trying to prove. The factual consequence you are proposing with
your evidence.
1. In defining the scope of what you need to prove, you consider both
substantive law and the pleadings.
c. (3) Curative Admissibility
i. If someone gets something admitted that is improper, can we allow more
improper evidence in to cure the original one?
1. If the juris. allows curative admissibility, then yes.
III. Distinction between Direct and Circumstantial Logical Relevance:
a. Direct Evidence:
i. Example:
1. Witness testimony that she was in pain Consequential factual
proposition that the witness was in pain.
a. The ONLY thing left for the jury to determine is whether they
believe the witness.
b. Circumstantial Evidence:
i. Example:
1. Witness testimony that he saw Ms. Hill clutching her head Inference
drawn that someone experiencing head pain would be clutching their
head Consequential factual proposition that Ms. Hill was in pain.
a. The jury has to make the middle inference before arriving at the
consequential factual proposition.
c. Problem 8-14
AUTHENTICATION: PHYSICAL EVIDENCE (Ch. 10)
I.
Overview:
a. FRE 901: Authentication
i. Objections for Lack of Authentication funnel into FRE 901 and FRE 104(b):
judge must decide whether a reasonably jury could think authentication was
provided.
1. Authentication turns on the theory of admissibilitywhat are you saying
this evidence is?
a. 901(a): Proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.
b. The Steps:
i. Put an exhibit sticker on it Ask court reporter to mark Show to opposing
counsel Ask permission to approach and present to witness Give to witness
and let the record reflect Ask questions to lay foundation that the witness
has PK that the item is what we are claiming it to be.
II. Chain of Custody Authentication:
a. Need to show chain of custody to satisfy authentication requirements in 2 instances:
i. (1) When dealing with a fungible item (one that can be easily interchanged with
other similar items); or
10
ii. (2) When needing to show that there has been no alteration to the condition of the
piece of evidence from the time of acquisition until either (a) testing or (b) trial.
b. You dont need every link. Dont need to prove that someone didnt alter it and call
every person that may have had access, only those people that for sure had access.
i. Problems 10-2 thru 10-4
AUTHENTICATION: SPEAKERS AND PHOTOS (Ch. 11)
I.
Identifying and Authenticating Voices/Speakers (FRE 901(b)):

a. Ways to Authenticate:
i. (1) FRE 901(b)(6): Telephone Directory Doctrine:
ii. (2) Identification based on Content of Oral Statements:
1. The content either (a) is self-identifying, (b) is in response to a unique
question the witness asked the writer/speaker, or (c) generally confirms
the identification of the speaker/writer.
a. **Works for writings.
iii. (3) Lay Observer Testimony:
1. Recognizing the voice. FRE 901(b).
a. Allows opinions about a voice . . . heard at any time under
circumstances that connect it with the alleged speaker.
b. Can also testify as to your opinion about a voice even if it is over
the phone/recording/etc.
II. Identifying and Authenticating Photographs:
a. Overview:
i. Photographs have two distinct uses:
1. First, as demonstrative/illustrative evidence. Second, as silent witness
evidence where the photo speaks as testimony.
b. Laying the Foundation for Photos as Demonstrative Evidence:
i. Very lax standard. Pretty much just one persons testimony and it is a fair and
accurate representation.
1. Dont need the photographer, just anyone with PK that the photo fairly
and accurately depicts whatever you are introducing it into evidence for.
FRE 403s BALANCING TEST (Ch. 13)
I.
Overview:
a. FRE 403 is a FRE 104(a) decisionup to the judge.
i. Judge has the ability under 403 to exclude any evidence that passes the any
tendency requirement imposed by 104(a).
b. FRE 403 isnt an automatically applied rule.
i. Opposing counsel should object that probative value is substantially outweighed
by the risk of unfair prejudice.
II. The Test/Standard:
a. (1): Assess the probate value of the evidence; then
b. (2): Weigh the probative value against (a) unfair prejudice, (b) confusion of the issue, and
(c) waste of time; then
c. (3): Determine whether the risks substantially outweigh the probative value of the
evidence.
III. The Steps Further Explained:
11
a. Step (1): Probative Value Considerations:

i. Four factors to consider:
1. (a) Flaws in testimony such as facial vagueness or uncertainty;
2. (b) The number of intermediate propositions b/t the item of evidence and
the ultimate consequential fact the item is offered to prove;
3. (c) Logical strength of the inferences; and
4. (d) Availability of other means of proofincluding stipulations.
ii. **Most judges assume maximum probative value.
b. Step (2): Identifying Countervailing Probative Dangers:
i. Look to three things:
1. (a) Unfair Prejudice
a. Crossing past the adversarial threshold into unfair. Usually
means that the likelihood that the jury will use it for an improper
purpose is high.
2. (b) Confusion of the Issue
3. (c) Waste of Time
c. Step (3): Determining whether risks Substantially Outweigh
i. Err on the side of letting stuff in on close calls.
IV. Some Recurring Issues:
a. Gruesome Photos:
i. Admissible. When one of the consequential issues being proved is damages, jury
needs to see extent of injury. (Problem 13-4)
b. Experiments and Tests:
i. Difficult. How similar to the actual incident are they? This will go to confusion
of the issue. If not that similar, then not that probative.
c. Jury Views:
i. Not used any longer.
d. Display of Persons or Body Parts
i. No using the jury in the demonstration. Under any circumstances. Show, but
dont touch. (Problems 13-5 thru 13-6)
CHARACTER, HABIT, AND OTHER ACTS EVIDENCE (Ch. 14)

I.
Character Evidence
a. Overview:
i. Remember: Character evidence will always trigger a 403 objection as well.
ii. There is no definition of Character.
1. Important to handle the difference between Character and Habit.
iii. Starting point for rules:
1. No Character Evidence for proof. Period.
2. But, background information is allowed in (age, job, location, etc.)
a. See Problems 14-1 thru 14-2.
3. The Proponent of the piece of evidence has the burden of establishing
that something is admissible evidence.
iv. Blinkas View on Character Evidence:
1. Lay Construct. Focuses on popular culture and stereotypes. Putting
people in boxes and generalize their behavior (thief, criminal, career
criminal).
12
II. The Basic Rules:

a. Background Information:
i. Relevant to Credibility and is admissible through FRE 401 & 602.
b. Character Evidence:
i. The Proof Paths when using Character Evidence:
1. (1) Character is At Issue
a. Green light in civil cases (tort, contract, etc).
b. Character is embedded a verdict question that the jury is going to
have to answer. It is an element of the tort (think defamation
claim)
c. What forms of Character Evidence can be used:
i. (a) Witness testify to their PK (602/901) that the person
is question was or wasnt a good person
ii. (b) Witness testify to persons reputation in a
particular community.
iii. (c) Witness testify to specific instances of the other
persons good or bad character.
2. (2) Character To Prove Conduct in Conformity
a. Red light and starting presumption under FRE 404(a) that you
cannot use.
i. Character is always going to be relevant under FRE 401,
but will be cut off by FRE 404(a).
b. How it works:
i. Item of Evidence (Testimony that D was peaceful)
Desired inference (D has non-violent trait) Desired
Conclusion (D acted in conformity with this trait and
didnt assault anyone).
c. In Civil Cases:
i. Red light. NEVER use it.
d. In Criminal Cases:
i. Presumption of Red Light. BUT, there are exceptions
where Green Light is given:
1. (1) FRE 405:
a. If D opens the door and elects to use
good character evidence.
i. If Character has been opened by
D, he is limited to using
character witness testimony
about opinion and reputation
(will always be positive).
ii. Once D opens the door,
prosecutors may cross-examine
the Ds witness about specific
instances of Ds character (juicy
details).
b. Problems14-3 thru 14-6
2. (2) FRE 413415:
a. Federal sexual assault cases.
3. (3) FRE 608/609:
a. To prove witnesss truthful/untruthful
character. He is a liar
13
ii. State v. Jackson (Wis.)

1. Self-defense case. Defendant attempting to prove that when he shot and
killed person he was acting in self-defense. Dead guy has prior violent
criminal historyDefendant wants to get this evidence in.
2. How can the D get this in?
a. Other Act Evidence? No
i. Called McMorris Evidence.
1. If the shooter believes or has reason to believe
the dead person is a violent person, then that can
be relevant to establish shooters feelings/fear.
BUT, must have knowledge at the time of the
shooting.
a. Didnt have that knowledge here.
b. Character Evidence? YESif he can find someone to testify to
Reputation or Opinion.
i. A criminal defendant can not only offer evidence of his
own character, but also can elect to prove the victims
character (see Character of Non-Party)
1. BUT, Defendant limited to reputation and
opinion (less than a minute of testimony
usually).
a. No specific instances of character.
2. On cross, the Prosecutor can bring up specific
instances.
c. Habit Evidence:
i. FRE 406: Green lights habit to show propensity to behave in some way. Use this
to lay foundation for business records to get around hearsay. Prove that it is habit
to fill them out a certain way.
1. In proving habit under FRE 406:
a. Can use opinion and specific instances.
ii. If judge agrees something is evidence of habit, we can bring it in to prove
Conduct in Conformity.
1. Personal to an individualspecific, repeated behavior.
a. Whether someone wears a watch everyday = habit.
b. Whether someone is punctual = character trait.
2. Habits arent often relevant and we generally dont care about them.
But, if you think it is relevant, you can get it in.
d. Other Act Evidence:
i. Three-Step Analysis in WI (State v. Sullivan and FRE 404)
1. (1) Is the evidence being used for a purpose other than conduct in
conformity?
a. Intent (like for fraudintentional misrepresentation), modus
operandi, design, proof of business plan/modus operandi, mens
rea such as knowledge, consciousness of guilt, identity, etc.
i. See 404(b) for examples.
b. When it is being used to show Fraud/intentional
misrepresentation, courts become more receptive to Other Acts
evidence.
2. (2) Is the evidence relevant for a consequential fact of that proof?
14
a. If you are using it to prove intent, design, etc., it must be relevant

to that purpose.
3. (3) Does the probative value outweigh any unfair prejudice that the jury
might draw an impermissible character inference (pass FRE 403)?
ii. Basic Idea:
1. You are using other acts to prove something other than Conduct in
Conformity.
a. If you can convince the judge that you are using it for a different
purpose, and that the evidence is relevant for that purpose, and
403s unfair prejudice wont exclude it, then youre fine.
iii. Problems 14-1 and 14-2
iv. Problems 14-11 thru 14-16
e. Character Evidence of Non-Party:
i. Victims of Violent Crime:
1. D is permitted to go into the victims characteronly thru reputation and
opinionto prove conduct in conformity.
a. BUT, if D elects to do this, the prosecution can attack Ds own
similar character trait.
ii. Victims of Sex Crime:
1. Not on final.
CREDIBILITY EVIDENCE: BOLSTERING AND IMPEACHING (Ch. 15 and 16)
I.
Overview:
a. What does Credibility involve?
i. Involves whether the jury believes the witnesss answer is correct or incorrect:
1. Can be incorrect b/c it is either
a. (1) A lie, or
b. (2) A mistake (honestly believed).
ii. Credibility involves the presence of the 4 Testimonial Capacities:
1. (1) The testimony is Sincere;
2. (2) The witness Accurately Perceived the event;
3. (3) The witness Accurately Remembers the event (critical time is when
the witness is testifying); and
4. (4) The witnesss testimony Accurately Reflects his memory.
II. Basics on Bolstering and Impeaching:
a. Subset of Character Evidence.
i. Bolstering:
1. All good lawyers try to do this. You are trying to support the credibility
of your witness so that the jury infers their answer is correct.
a. Happens through Background Information most of the time.
ii. Impeaching:
1. Attacking the credibility of a witness. Asserting they are either mistaken
or lyinggo after the 4 Testimonial Capacities.
a. A party can anticipate impeachment of its own witness and bring
out the bad fact themselvesrather from your mouth than the
opposing party.
i. Inoculation. Comports with FRE 607 which says
any witness may be impeached.
iii. Problems 15-2, 15-3, and 15-6
III. Impeachment Techniques:
15
a. The 5 Avenues of Impeachment:

i. (1) Defects in Testimonial Capacity
ii. (2) Prior Inconsistent Statements (that conflict w/ testimony @ trial)
1. FRE 613partially governs this.
iii. (3) Contradiction (one witness conflicts with another)
iv. (4) Bias or Interest
v. (5) A Witnesss Truthful or Untruthful Character (determining whether they are a
liar)
1. FREs 608 and 609 control this.
b. Blinkas take on the 5 Avenues:
i. These are largely arbitrary and applied on ad hoc basis. No real overarching
theory.
ii. Avenues (1) and (4) give you the most latitude.
iii. Two Key Inquiries before moving forward:
1. Atty. must be asking self:
a. (a) What can he do and what must he do on cross-exam; and
b. (b) Can he use extrinsic evidence to prove-up the impeaching
fact, or must he take the answer from the witness.
2. The answers to these inquiries vary depending on which avenue is taken.
c. Avenue (1): Defects in Testimonial Capacity:
i. Focus on the Four Testimonial Capacities. This is most fundamental form of
attack.
1. Need to separate out Perception, Remember, and Narration from the
capacity to be Sincere.
2. **No witness, lay or expert, may testify as to whether someone is
lying.**
a. Zambrano Case/Haseltine Case
i. Exception: In child abuse cases, though, we allow
experts to testify about how a typical victim may react to
a particular offense.
ii. Attacking Capacity for Sincerity (FRE 610):
1. You simply take the oath or affirm that you will tell the truth. Thats it.
a. FRE 610 controls.
b. Cant argue that someone isnt religious so they dont have
Sincerity.
2. Cant measure someones Capacity to be Sincere thru science:
a. No polygraphs for impeachment. No MRI for impeachment.
iii. Attacking Capacity to Perceive/Remember/Narrate:
1. See section 3 on p. 354
2. Important to distinguish Ordinary Defects from Extraordinary Defects:
a. (a) Ordinary Defects:
i. Things like vision defects.
1. Someone says they were standing 500 yds. away
at nightwe can say the typical human being
has an ordinary defect that doesnt allow them to
see that.
ii. Allow wide latitude and ALWAYS permit extrinsic
evidence.
1. Extrinsic = anything outside of witness whose
credibility is being attacked.
b. (b) Extraordinary Defects:
16
i. Things like mental illness, or drug or alcohol use at time

of incident/trial.
1. These get the same latitude as ordinary defects
and can be proven up in the same way (extrinsic
evidence).
3. Problem 16-2
a. Witness took white capsules before observing event and had
slurred speech/dazed appearance:
i. This is relevant to credibility and can be impeaching
evidence. You can cross the witness, OR you can put on
extrinsic evidence to testify to the drug use (i.e., you
arent limited to take the answer)
d. Avenue (2): Prior Inconsistent Statements and Acts:
i. Rule:
1. Any prior statement in any form that is inconsistent with their trial
statement is going to be admissible.
2. Needs to be inconsistent enough to raise issues of (1) whether lying, and
(2) whether you really accurately remember what you perceived.
a. Courts allow enormous latitude on cross-examination on Prior
Inconsistent Statement:
i. Prior statement may be:
1. (a) Flatly inconsistent with trial testimony; or
2. (b) Inconsistent by prior omission to tell those
facts; or
3. (c) Inconsistent by failure of memory.
a. Either by:
i. (1) Witness testifies fully at trial
about facts he did not mention
when initially interviewed; or
ii. (2) Witness gave full pretrial
statement but now claims at trial
that he cant remember events.
b. Problem 16-2:
i. Opposing counsel cant object that your Cross goes
beyond scope of direct. You always get to discuss
credibility on Cross.
ii. Using Extrinsic Evidence in Prior Inconsistent Statements:
1. 3 Conditions must be satisfied:
a. (1) Must be an opportunity for the target witness to explain or
deny the prior statement
i. Normally will occur during Cross-Exam, but can be later
in trial so long as opportunity is still given.
b. (2) The witnesss answer must ordinarily be a denial or
evasion.
c. (3) The subject must be non-collateral.
i. i.e., material to the issue in the case.
e. Avenue (3): Contradiction (one witness conflicts with another)
i. Rule:
1. We only permit contradiction on NON-collateral matters issues that
we really care about/substantive issues in the dispute (like the battery in
Devitt).
17
a. Collateral Fact Rule:

i. Bias and defective testimonial capacity are considered
NON-collateral matters.
f. Avenue (4): Bias and Interest
i. Rule:
1. Sort of like Defective Testimonial Capacity (Avenue #1) where there is
no specific rule. Recognized by common law of Evidence.
a. You can do whatever you want on Cross-Exam in terms of bias.
i. Dont need to take the answer.
b. But, dont need to do it on Cross-Exam, you can use extrinsic
evidence rather than asking on cross.
2. Bias can be any number of things: Family, emotional, financial,
probation.
g. Avenue (5): Witnesss Truthful or Untruthful Character:
i. Overview on Untruthful Character:
1. Can prove someones Untruthful Character through:
a. (1) Reputation/Gossip (direct exam and cross-exam);
b. (2) Opinionfrom a character witness saying thats their opinion
of the person (direct exam and cross-exam); or
c. (3) Specific instances of Untruthful Character on Cross-Exam of
any witness (ONLY can use in cross-exam).
2. Any person who takes the witness stand is putting their Character for
Truthfulness/Untruthfulness in play.
a. Other people can be called to provide gossip on other witness or
their opinion of other witness.
b. Any person can be cross-examined on specific instances of
Untruthfulness. See FRE 608(b) below.
i. If that person is aware of a prior act of deceit by a
particular other witness, regardless of what the witness is
testifying to, you can ask the person about it (fraud,
deceit, untruth).
1. BUT, you must take the answer
c. Courts generally require a good faith basis of specific instances.
Fishing expeditions not allowed.
i. If found in discoveryfair game for cross-exam.
d. P. 387-388 good study tool.
a. REVIEW THESE
ii. FRE 608: Impeachment By Attack on Truthful Character
1. You can put character witnesses to testify on direct as to (1) opinion and
(2) reputation.
a. Under FRE 608(b): you can cross-exam ANY witness in any
civil or criminal case as to any prior instance of untruthful
behavior (lying on job app).
i. BUT, cross examiner has to take the answer
1. Do not allow extrinsic evidence/other witnesses
to come in and prove-up the untruthful instance.
iii. FRE 609: Using Proof of Prior Conviction to show Untruthful Character:
1. Soliciting impeachment testimony on Prior Conviction:
a. (1) If individual has a prior conviction, it may be offered under
FRE 609; OR
18
i. Careful here. The prior conviction is relevant to

credibility, but you could fall trap to the conduct in
conformity prohibition of 404(a). Maybe bias is better
play.
b. (2) It could be offered under a bias theory if person is on
probation/parole.
i. Bias theory is a friendly place to be b/c it allows
extrinsic evidence. It also will keep you out of the
404(a) conduct in conformity prohibition.
2. Cross-Exam on Prior Conviction:
a. Majority (FRE) Approach:
i. Allow the nature of the offense, the date of the crime and
conviction, and the sentence given for the crime.
1. Can always use extrinsic evidencejust rarely
happens.
2. Need to alert judge prior to soliciting this
testimony so that the judge can decide if hes
okay with it outside of the jurys presence.
ii. What type of prior convictions come in?
1. If crime = dishonesty/false statement
AUTOMATICALLY admissible.
2. If crime = felony not involving dishonest
Admissible if passes 403 balancing test.
Probative value vs. unfair prejudice.
iii. Applies to ALL witnesses in Civil and Criminal cases.
1. In case of criminal defendant who decides to
take the stand, the FRE 403 analysis is reversed
and we start with presumption that testimony of
prior conviction is unfair prejudice and
Prosecutor has burden to show probative value.
iv. In federal, if you lost motion in limine to exclude Prior
Conviction and decide that you want to inoculate the
jury yourself about your clients prior conviction, then
you WAIVE your right to appeal the motion decision
(BUT, not waiver in WI)
b. WI Approach:
i. Just allow the bare, naked fact of a criminal record and
the # of convictions. Nothing else.
c. Problems 16-25 and 16-28.
CREDIBILITY AND REHABILITATION (Ch. 17)
I.
Proof of the Truthful Character Trait of a Witness:

a. Rule:
i. Witnesss truthfulness must first have been attacked before we allow
rehabilitation by a showing of character for truthfulness:
1. If someone impeaches your witness through bias, that does NOT count as
an attack on truthful/untruthfulness.
b. Problem 17-3
HEARSAY (Ch. 18)
19
I.
II.
III.
Overview:
a. Relevant Rules:
i. FRE 802:
1. Hearsay is inadmissible.
a. BUT, there are a total of 50+ exceptions and exemptions.
ii. FRE 801(d):
1. Certain exemptions for prior statements by witnesses relating to:
a. (1) Prior inconsistent statements;
b. (2) Prior consistent statements; and
c. (3) Statements of identification.
iii. FRE 803/805/807/703
1. Location of exceptions/exemptions/residual/expert ways to get in.
b. EVERY HEARSAY QUESTION IS A 104(a) QUESTION:
i. THE JUDGE DECIDES ALL ISSUES OF FACT AND LAW
Definition of Hearsay:
a. FRE 801(c):
i. Hearsay means a (1) statement that (2) the [human] declarant does not make
while testifying at the current trial or hearing; and (3) a party offers in evidence
to prove the TMA.
ii. FRE 801(a): Statement means:
1. A persons oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.
b. Blinkas Definition:
i. A statement made by a declarant other than while testifying used to prove the
truth of the matter being asserted.
ii. Elements broken down:
1. (1) An assertion
a. A declarative sentence/nonverbal conduct that the declarant
intended to communicate a fact, event, or condition.
2. (2) Used to prove the TMA;
a. It is not being used to prove TMA if used to show:
i. (a) Verbal act doctrinethe assertion created legal rights
ii. (b) Effect on the listener/reader
iii. (c) State of mind of declarant.
3. (3) Made by an out-of-court human declarant.
iii. Problems 18-1 thru 18-4. AND LOOK AT TAKE HOME PROBLEMS
Breaking Down Elements of Definition:
a. (1) Assertion/Statement:
i. An assertion/statement is:
1. A description of acts, events, or conditions whether oral, written, or
nonverbal.
ii. When can nonverbal conduct be an assertion?
1. If the declarant intended the nonverbal conduct to communicate a fact,
event, or condition.
a. E.g., pointing at a defendant in a criminal lineup.
i. Contrast with someone wearing a winter jacket (not
intended to communicate that its cold).
iii. If we determine something is NOT an assertion:
1. Then, no hearsay problem. Dont need to find an exception b/c it is not
hearsay.
20
b. (2) To Prove the TMA:

i. Need to ask how proponent is using the assertion:
1. (1) To Prove TMA:
a. If so, then you will need an exception to the hearsay rule. If you
fit it into an exception, you can use the assertion/statement to
prove TMA, and also for the other three uses.
2. (2) Verbal Act Doctrine:
a. Creating legal rights.
i. Dow v. PHH Mortgage (SCOWIS 2013).
1. Mortgage note is example of this. The words
(oral or written) have independent legal
significance (bind parties to K) and are no
longer hearsay.
b. If for this, no need to resort to hearsay exception because
assertion does not equal hearsay.
3. (3) Assertions Effect on Listener/Reader:
a. Example:
i. Use statement of other doctors not on the stand to show
how our Expert was shaped by the opinions of others.
That is Effect on Listener.
b. If for this, no need to resort to hearsay exception b/c assertion is
not hearsay.
4. (4) Declarants State of Mind (knowledge or belief)
a. Example:
i. A false exculpatory statement.
ii. A prior inconsistent statement
1. If we offer this to show that someone once had a
very different state of mind than they presently
do on the stand.
b. If for this, no need to resort to hearsay exception b/c assertion is
not hearsay.
ii. How do you determine how Opposing Counsel is using assertion?
1. You object. Plain and simple. Then, burden shifts to the opposing
counsel to say how he is using it. If it is to prove TMA, then opposing
counsel needs exception.
a. If he cites Verbal Act Doctrine/Effect on Listener/Declarant State
of Mind He avoids hearsay problem.
iii. Problems 18-5 thru 18-10. AND CALI LESSONS
c. (3) By a Human Declarant:
i. Look to the source of the statement. Is it something directly traceable to a human
being.
ii. Example:
1. Is a grocery store receipt a statement by a Human Declarant:
a. Yes. Someone scanned those groceries in to tell the computer
what the things were.
b. Distinction between computer stored (created by human: e.g.,
text messages), and computer generated (not created by human:
e.g., the time on your phone).
d. (4) Other Than While Testifying:
i. Overview:
1. A statement made not on the stand. There are varieties of these.
21
e. The Rules Approach to the Exceptions/Exemptions

i. Three clusters of exceptions (801(d); 803, and 804)
1. 801 = Admission by Party Opponent/Prior Statement by Witness
Exemptions:
a. You must have the declarant on the witness stand for these.
b. It is fundamentally fair to allow the opposing party to use any
and all statements made in a public setting by the party
opponent.
2. 803 = Exceptions.
a. The availability of the witness has no bearingexcept for
803(5).
b. These exceptions are reliable so we justify them.
3. 804 = Exemptions.
a. Justified by being reliable enough.
THE FRE 801 HEARSAY EXEMPTIONS:
I.
Prior Statements by Witnesses (FRE 801(d)(1)):

a. Overview:
i. Where you have a witness testifying in court, but that witness is also the out of
court human declarant of the potential hearsay. FRE 801 MAKES THE
STATEMENT NOT HEARSAYits an exemption from the rule.
b. Three Types:
i. (1) Prior Identification;
ii. (2) Prior Inconsistent Statements; and
iii. (3) Prior Consistent Statements.
iv. ***You can also use admission by party opponent, excited utterance, etc. to get
this type of stuff in***
c. FRE 801(d)(1)(C): Prior Statements of Identification:
i. Overview:
1. Basically allows prosecutors to put in line-up identification/statements of
physical description that occurred before trial.
2. **NO REQUIREMENT that opponent launched attack on witnesss
credibility prior to using this rule.
ii. The Rule:
1. A statement is not hearsay when:
a. The declarant testifies and is subject to cross-exam about a prior
statement (doesnt need to happen immediately after direct); and
i. The statement identifies a person as someone the
declarant perceived earlier.
2. Problem 18-11
d. FRE 801(d)(1)(B): Prior Consistent Statements:
i. Overview:
1. Instances where we are trying to bolster credibility. Shoe that the
witness has, at some other point, said the exact same thing.
2. Because we are going to be using these to prove the TMA, there are
some limitations.
a. (1) We can only use Prior Consistent Statements if someone else
has attacked the witnesss credibility; and
b. (2) Timing aspect.
22
i. Tome says the Prior Consistent Statements are used to

rebut an attack on credibility only if they were stated
before the improper motive/fabrication that is being
alleged by opponent.
ii. The Rule:
statement (need not be immediately after direct); and
i. The statement is consistent with the declarants in-court
testimony and is offered to rebut an express or implied
charge that the declarant recently fabricated it or acted
from a recent improper motive in so testifying.
iii. Side note:
1. Recognize that you dont need to use this rule to get these types of
statements in. Just dont offer it to prove TMA:
a. Offer it to prove the declarants STATE OF MIND, BELIEF, OR
KNOWLEDGE that, at some point in the past, the declarant
believed the same thing.
i. Then, you can circumvent the requirement that the
opponent attacked witnesss credibility
e. FRE 801(d)(1)(A): Prior Inconsistent Statements:
i. The Federal Rule:
i. The statement is
1. (1) Inconsistent with the witnesss trial
testimony; AND
a. Enough to raise a question of cred.
2. (2) Was made under oath, subject to the
penalties for perjury, at a trial, hearing, or
deposition.
ii. The Wisconsin Approach:
i. The statement is inconsistent with the witnesss trial
testimony.
ii. **NO second prong that it was made under oath.
II. Admissions by Party Opponent:
a. Basics:
i. Potentially covers any statement that a party has made. Criminal and civil.
1. In Civil Case:
a. Two-way street. Any statement made by either party can be used
against the party that made the statement.
2. In Criminal Case:
a. One-way street. The State can use statements by the D against
the D. But, the D cant use statements made by State against the
State.
ii. Statements by the opposing party are NOT barred because they are (a) opinions
or (b) not based on personal knowledge.
23
1. Do not need to be based on PK to fall into the rule.

iii. Problems 19-1 and 19-2
b. Adopted Admissions by Party Opponent:
i. When a party opponent affirmatively and voluntarily adopts a third partys
written or oral statement Court will deem that an admission by the party
opponent.
1. Two keys are (1) affirmatively and (2) voluntarily:
a. If it was mandated that the party opponent adopt the statement
(like a doctors eval that they had no choice but to undergo), then
its not a voluntary adoption.
2. Problem 19-3
c. Tacit Admissions by Party Opponent:
i. Certain statements made to the Party Opponent by a Third Party that are of such
a nature that you would expect the Party Opponent to have immediately
responded/denied rather than sitting idly by.
1. If they do sit idly by We assume it as a tacit admission by party
opponent.
ii. Need to ask (a) whether the person had capacity to understand what the Third
Party said, and (b) whether a reasonable person in their shoes would have
responded.
d. Vicarious Admission by Party Opponent (FRE 801(d)(2)(C)(D)):
i. An Opposing Party Statement can be used against the party if:
1. (C) It was made by a person whom the party authorized to make a
statement on the subject (attorneys); or
2. (D) It was made by the partys agent or EE on a matter within the scope
of that relationship while it existed.
ii. Problem 19-9
THE FRE 803 EXCEPTIONS (Ch. 20)
I.
Overview:
a. These exceptions DO NOT require proof of witness unavailability.
b. How to analyze:
i. (1) What is the statement/assertion?
1. IF we dont have a statement/assertion then there is no hearsay problem.
ii. (2) What proposition are we using the statement/assertion to prove?
iii. (3) Does the rule we are trying to use permit that use?
c. If it is hearsay, but you can fit it into one of the exceptions, then you can use it to prove
TMA (or any other relevant purpose).
i. Always a 104(a) issue for the judge.
d. IF A STATEMENT THAT WOULD OTHERWISE BE HEARSAY FITS INTO ONE OF
THESE EXCEPTIONS, IT IS ADMISSIBLE.
i. It can then be used to prove the TMA or any other relevant purpose.
II. The FRE 803 Exceptions:
a. FRE 803(2): Excited Utterance:
i. Side note:
1. Excited utterance falls under category of Res Gestae:
a. The idea that there are certain things made or said near the time
of an incident that we like to think are good evidenceso we
allow it to prove TMA.
24
b. NOT ON EXAM.
ii. The Rule/Elements:
1. (1) A statement relating to the;
2. (2) Presence of a startling event; and
3. (3) The declarant made the statement while under stress or
excitement.
a. No need to identify exactly who the declarant was. Thats a
credibility issue, not an admissibility issue.
iii. Overview:
1. Really need to zero in on (a) whether we have a startling event; and (b)
whether the declarant was actually excited (for purposes of exam just
look for exclamation mark).
a. Napier Case:
i. A startling event CAN be the victim being shown a
picture of the assailant.
1. Could also get this type of thing in with Prior
Statement of Identification (801(d)(1)(C)).
b. FRE 803(1): Present Sense Impression:
i. The Rule/Elements:
1. (1) A statement;
2. (2) Describing/explaining an event or condition;
3. (3) Made while perceiving or immediately thereafter (measured in
seconds, not minutesunder a minute).
4. **The play-by-play exception.
ii. Overview:
1. Not concerned with accuracy/perception/memory with any of this. It
happened basically contemporaneously
a. The longer the gap b/t a statement and an event the more we are
concerned with the declarant having time to consider
misrepresenting.
2. Problems 20-6 thru 20-8:
c. FRE 803(3) & (4): Declarations of Bodily Condition:
i. 803(3): Then-existing Mental, Emotional, or Physical Condition:
1. The Rule:
a. (1) A statement;
b. (2) Of the Declarants then-existing
i. (a) State of mind (e.g., motive, intent, plan), or
ii. (b) Emotional, sensory, or physical condition (e.g.,
mental feeling, pain, or bodily health)
c. (3) But not including a statement of memory or belief to prove
the fact remembered or believed; UNLESS
i. (a) It relates to the validity of the terms of the
Declarants will.
d. ***There is nothing admissible under this rule that wouldnt
already be admissible under FRE 803(1): Present Sense
Impressions.
2. Examples:
a. Declarations of Present Bodily Conditions
i. My right knee feels good.
b. Declarations of Past Bodily Conditions?
25
i. Not going to work under 803(3) or (1). It is not a

present tense statement. IF IT IS PAST TENSE IT
WONT WORK FOR 803(3) or (1).
c. Declarations of State of Mind:
i. In most cases, yes. Need to look to the type of use
though.
ii. Types of Uses/Propositions for Declarations of State of
Mind:
1. (1) Used to prove that same State of Mind:
a. See p. 493second paragraph.
b. Remember Continuity of State of
Mind. It can linger, and we can offer
evidence of Declaration of a State of
Mind so the jury can infer that it was the
same state of mind before or after an
incident.
i. Problems 20-16 and 20-17
2. (2) Used to prove Subsequent Conduct:
a. Where the statement demonstrates a
plan, intention, or motive to do
something (different from continuity of
mind).
b. You use present state of mind, a
plan/intent, to infer later conduct in
conformity with that plan.
i. Can use this as an inference that
the person carried through on
their plan/intention/motive
(Hillmon)
c. Problem 20-18
3. (3) Use to prove Past, Remembered Events:
a. Not allowed under 803(3) because they
are of a past state of mind.
i. If you need to get them in, you
will have to not use them to
prove TMA but instead say you
are using them to prove
Declarants State of Mind.
4. (4) Used to prove Past State of Mind:
a. Not allowed to use 803(3) for these
either.
i. If its in past tense, you cant
use 803(3).
ii. Must think of a different route.
b. Problem 20-19
ii. 803(4): Statement Made for Medical Diagnosis or Treatment:
1. The Rule:
a. (1) A statement that:
i. (a) Is made forand is reasonably pertinent tomedical
diagnosis or treatment; and
26
ii. (b) Describes medical history, past or present symptoms

or sensations, their inception, or their general cause.
2. Examples:
a. Declarations of Past bodily Conditions?
i. Maybe, but it has to be made for purposes of medical
diagnosis or treatment.
b. Statements Describing the Cause of the Declarants Physical
Condition:
i. If describing the cause in the context of a medical
diagnosis or treatment, then this works.
1. However, describing WHO is at fault does not
fall under 803(4).
c. Does not matter why the doctor was hired. This exception even
covers doctors that were hired solely for litigation preparation.
3. Problems:
a. 20-11, 20-13, 20-14, and 20-15
d. Exceptions for Written Statements/Assertions:
i. FRE 803(6): Records of Regularly Conducted Activity:
1. The Rule:
a. A record of an act, event, condition, or diagnosis if:
i. (1) The record was made at or near the time byor from
information transmitted bysomeone with knowledge;
ii. (2) The record was kept in the course of regularly
conducted activity of a business, organization, or
occupation (whether for profit or not);
iii. (3) Making the record was a regular practice of that
activity;
iv. (4) All the above conditions are shown by the testimony
of the custodian/qualified witness or by a self-serving
authentication in compliance with 902(11) or (12); AND
v. (5) Neither the source of the info nor the method or
circumstances indicate lack of trustworthiness.
b. Problems 20-20, 20-21, and 20-23 thru 20-25
i. DO THESE PROBLEMS
2. Rule Explained:
a. Must show that the Declarant/Entrant had PK.
i. Use FRE 406 to infer that PK has been satisfied.
b. Record itself was made at or near the time of the event or
condition.
c. No requirement to explain how the opinion in the business
record was arrived at.
i. No proof of expertise required if there is sufficient proof
that it was a regular business activity
d. Report prepared by a corporate subsidiary is okay.
e. If document was prepared in anticipation of litigation, we do not
admit it as a business record under 803(6). (Palmer v. Hoffman)
i. Worry about trustworthiness.
f.
g. **JOHNSON v. LUTZ** BUSINESS DUTY RULE** (ON
EXAM)
27
i. Situation where there is bus. record but more than one

declarant was involved in making the record.
1. For 803(6): all of the declarants in the business
record MUST BE employees of the entity in
order to get it in under 803(6).
a. If one speaker captured in bus. record is
not employee, then you must look
somewhere else for the hearsay
exception with their statement..
ii. Remember, you can still use the non-employee statement
for a purpose other than proving the TMA.
1. Includes nurse reports including patient
statements.
iii. Problems re: Lutz
1. 20-22. DO THIS PROBLEM
3. Side note:
a. If you are dealing with a party in the litigation, you dont need to
use 803(6)you can introduce everything through Admission by
Party Opponent.
ii. FRE 803(8)(15): Public Records/Official Records/Other Records:
1. The General 803(8): Business Records Rule:
a. A record or statement of a public office if:
i. It sets out:
1. (1) The offices activities;
2. (2) A matter observed while under a legal duty
to report, but not including, in a criminal case, a
matter observed by police; or
3. (3) In a civil case or against the govt in a
criminal case, factual finding from a legally
authorized investigation; and
4. (4) Neither the source of the info nor other
circumstances indicate lack of trustworthiness.
b. Understanding the Rule:
i. Discern what type report it is. Is it a record created under
a legal duty to report?
1. Going to have to look at the admin. regs to
determine.
ii. You can use this rule to get in police accident reports IN
CIVIL CASES. BUT, this does not work in Wisconsin.
1. WI law provides that a traffic accident report
cannot be used as evidence in WI court.
iii. It would be very obvious on exam that he is giving us an
803(8) question b/c he would give us the jurisdiction and
reports.
2. FRE 803(8)(A)(iii): Investigative/Evaluative Reports:
a. Beech Aircraft v. Rainey (p. 523)
i. 803(8)(A)(iii) extends not only to FACTS in
investigative/evaluative reports, but also to all of the
OPINIONS and CONCLUSIONS in the report.
b. See FN 11 p. 526 for 4 factors to consider when determining
whether report lacks trustworthiness.
28
iii. FRE 803(18): Statements in Learned Treatises, Periodicals, or Pamphlets:

1. Overview:
a. Note the connection b/t this and Expert Testimony.
i. As soon as the expert on the stand says According to
Gordon Woods bookthat triggers the hearsay and we
need a hearsay exception.
1. If the expert just speaks to what HE knows, then
you are all good. No hearsay.
b. Question is always what constitutes a learned treatise.
2. The Rule:
a. A statement contained in a treatise periodical, or pamphlet if:
i. (1) The statement is called to the attention of an expert
witness on cross-exam or relied on by the expert in
direct exam; and
ii. (2) The publication is established as reliable authority (a)
by the experts admission or testimony, (b) by another
experts testimony, or (c) by judicial notice.
b. ***If admitted:
i. The statement may be read into evidence in oral form
like testimony, BUT may not be received as exhibit.
1. In WI you can put in hard copies of learned
treatises w/o an expert chaperone.
HEARSAY EXCEPTIONS THAT REQUIRE PROOF OF UNAVAILABILITY
I.
Overview:
a. These are the situations where you cannot put in the testimony without first proving that
your witness is unavailable under FRE 804(a).
b. FRE 804(a): Criteria for Being Unavailable:
i. A Declarant is considered to be unavailable as a witness if the Declarant:
1. (1) Is exempted from testifying about the subject matter of the
declarants statement because the court rules that a privilege applies;
2. (2) Refuses to testify about the subject matter despite a court order to do
so;
3. (3) Testifies to not remembering the subject matter;
4. (4) Cannot be present or testify at the trial or hearing because of death or
a then-existing infirmity, physical illness, or mental illness; or
5. (5) Is absent from the trial or hearing and the statements proponent has
not been able, by process or other reasonable means, to procure:
a. (a) The declarants attendance, in the case of hearsay exception
under 804(b)(1) or (5); or
b. (b) The declarants attendance or testimony in the case of a
hearsay exception under 804(b)(2), (3), or (4).
ii. **This rule does not apply if the statements proponent procured or wrongfully
caused the declarants unavailability in order to prevent the declarant from
attending or testifying.
II. The Exceptions Requiring Proof of Unavailability:
a. FRE 804(b)(1): Former Testimony:
i. Testimony that:
1. (a) Was given as a witness at a trial, hearing, or lawful deposition,
whether given during the current proceeding or a different one; and
29
2. (b) Is now offered against a partyor in a civil case, someone whose

predecessor in interestwho had an opportunity and similar motive to
develop the testimony by direct, cross-, or redirect examination.
ii. Understanding the Rule:
1. The Elements broken down:
a. (1) The witness/declarant gave the prior testimony at a fair
adversarial hearing/trial/depo;
b. (2) Identity of Parties:
i. Look at the case caption. Need privity.
c. (3) Similar Motive and Interest/Opportunity to Develop:
i. Particularly with respect to the party against whom the
former testimony is being offered:
1. Key to look at the type of claims (issues) being
offered now and in the past to determine
whether the party already had an opportunity to
cross exam the declarant.
d. Problems 21-4 and 21-5
iii. What happens when the judge receives the 804(b)(1) Former Testimony
transcript?
1. Read the transcript out loud.
2. WI Rules of Civ Pro give doctors a veto on a subpoena to testify in favor
of recording a depo so the doctor doesnt have to come in and you dont
have to show the unavailability of a doctor.
iv. **If you are trying to get something in with 804(b)(1), DO NOT forget these
other options:
1. FRCP 32(a): Depositions Otherwise Admissible under FRCP
a. May introduce deposition transcript where the witness is at a
greater distance than 100 miles from the place of trial or hearing.
2. FRE 803(5): Past Recollection Recorded
3. FRE 612: Refreshed Recollection
b. FRE 804(b)(3): Declarations Against Interest
i. A statement that:
1. (a) A reasonable person in the declarants position would have made only
if the person believe it to be true because, when made, it was so contrary
to the declarants proprietary or pecuniary interest or had so great a
tendency to invalidate the declarants claim against someone or expose
the declarant to criminal or civil liability; AND
2. (b) Is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
1. This rule deals with NON-PARTIES. Otherwise we would use
Admission by Party Opponent.
a. This rule all comes down to whether a reasonable person would
say it.
2. What type of Interest are we talking about?
a. Pecuniary, proprietary, property, or expose to liability.
i. Used to be also social interest.
b. **Must be against interest when it was made.
3. We need clear, corroborating evidence in criminal case using this rule.
4. Mixed-Motive Statements:
30
a. Williamson v. United States

i. If you admit your involvement in a crime, thats against
your interest.
ii. If you point the finger at someone else, that is not
against your own interest and doesnt fall under this rule.
5. Problem 21-8
c. FRE 804(b)(2): Dying Declarations:
i. In a prosecution for homicide, or in a civil case, a statement:
1. (a) That the declarant made;
2. (b) While believing the declarants death to be imminent;
3. (c) That was made about the cause or circumstances of the imminent
death.
1. You can also use Excited Utterance for all of these.
2. Do not require the person to actually die. Do not require the person to
express that they think their death is imminent.
3. The Crawford Rule on Hearsay and Confrontation in Criminal Cases:
a. NOT ON EXAM. On TWEN webpage.
d. Side note on Using Depositions:
i. What if you want to get in a particular piece of info that was given in a
deposition?
1. Typically you put the person on the stand and ask the same Q hoping for
the same A. But, what if they give a different answer than the one we
wanted?
2. Our options are:
a. (1) Prior Inconsistent Statement;
b. (2) FRCP 32(a);
c. (3) Former Testimony (804(b)(1))
d. (4) FRE 612: Refresh Recollection;
e. (5) FRE 803(5): Past Recollection Recorded
e. FRE 612: Refreshing Recollection:
i. Overview:
1. Memory reboot. Rebooting FRE 602 personal knowledge. The source
of the testimony is the PK, not the document you are using to refresh the
memory.
a. No hearsay issue b/c you are not using the document to prove
TMA.
2. Can use anything to refresh recollection, does not matter if someone else
created the document.
3. Can be done before or during testimony.
a. But, be careful that anything used to refresh recollection, before
or after trial, must be produced by demand of other party.
i. That disclosure waives any privilege that document may
have.
ii. Logistics:
1. The opposing party gets to:
a. (1) Inspect the document;
b. (2) Cross-examine on the document; and
c. (3) Introduce any other part of the document relevant to
refreshing recollection.
31
2. The unavailability is that the witness forgot what the used to know.
They are on the stand, but still considered unavailable.
f. FRE 803(5): Past Recollection Recorded:
i. A record that:
1. (1) Is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately;
2. (2) Was made or adopted by the witness when the matter was fresh in the
witnesss memory; and
3. (3) Accurately reflects the witnesss knowledge.
4. **If admitted, the record may be read into evidence but may only be
received as an exhibit if offered by an adverse party.
1. Witness needs to be on the stand, and their unavailability must be their
memory.
2. Foundation must be laid:
a. (1) The person once had knowledge;
b. (2) The person no longer has knowledge; but
c. (3) When the record was made the witness had PK.
i. FRE 406 Habit/Practice is commonly used to satisfy the
third prong of the foundation being laid
3. If another person is the one that wrote/recorded the document, then the
witness must have adopted it.
iii. Problem 21-12
1. DO THIS PROBLEM
THE RESIDUAL HEARSAY EXCEPTION
I.
The Residual Exception:

a. FRE 807:
i. Transferred from what used to be FRE 803(24) and 804(b)(5).
ii. Under the following circumstances, a hearsay statement is NOT excluded by the
rule against hearsay, even if the statement is not specifically covered by another
exception:
1. (1) The statement has equivalent circumstantial guarantees of
trustworthiness;
2. (2) It is offered as evidence of a material fact;
3. (3) It is more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts; AND
4. (4) Admitting it will best serve the purposes of these rules and interests
of justice.
b. Rule is seldom used. So many ways to get hearsay in you dont need to resort to this.
LAY OPINION & EXPERT OPINION TESTIMONY (Ch. 12 & 23)

I.
Overview of both Lay and Expert Opinions:

a. If you look at all testimony uttered at trial:
i. It either fits into Lay Opinion (701) or Expert Opinion (702).
b. If falls under FRE 701: Lay Opinion:
i. Must comply with PK requirement of FRE 602; or
ii. Comply with Opinion requirements of FRE 701
1. Rationally based on PK; and
2. Helpful to jury/judge.
32
iii. ***Lay Opinion cannot be based on specialized knowledge. If it is, it must fit
under Expert rules and comply with Daubert.
c. If it falls under FRE 702: Expert Opinion:
i. It must comply with FRE 702/703/705 and other expert rules.
d. No speculation or guessing allowed.
II. Lay Opinion Overview (FRE 701)
a. FRE 701: Lay Opinion Testimony:
i. If the witness is not testifying as an expert, the form of an opinion is limited to
one that is:
1. (1) Rationally based on the witnesss perception;
a. PK under FRE 602
b. 104(b) question
2. (2) Helpful to clearly understanding the witnesss testimony or to
determining a fact in issue; and
3. (3) Not based on scientific, technical, or other specialized knowledge
under FRE 702.
b. Cases re: FRE 701:
i. Govt of the Virgin Island v. Knight:
1. Lay opinions must always be based on the PK of the witness.
2. If you dont have PK, then you are ineligible to testify as to lay opinion.
3. Here, the eye witness saw the shooting and could based his opinion that
it was an accident on this PK.
a. The cop could not give opinion b/c he did not have PK of the
shooting.
c. Types of Lay Testimony covered by FRE 701:
i. (1) Collective Fact, Composite Fact, or Shorthand Rendition:
1. This lay opinion involves:
a. (a) The witnesss opinion based on personally observed facts;
and
b. (b) The opinion is the type of inference that lay people
commonly and reasonably draw.
2. Understanding this type of Opinion:
a. What falls under Personally Observed Facts?
1. REVIEW THESE PROBLEMS
ii. Can personally observe facts you see on a video
recording.
1. 901(b)(3) also allows a jury to compare the
video with the defendant in court to determine
whether it is the same person.
iii. Can testify that your shoulder was injured.
1. Different question whether you can testify that it
was dislocated. Argument that this is expert.
iv. Can testify that the doctor told me it was dislocated.
b. What is the Type of Inference a Lay Person
Commonly/Reasonably Draws?
1. REVIEW THESE PROBLEMS
ii. Can you say someone is acting recklessly?
1. No. Legal term of art.
33
2. **If you hear a lay witness using a legal term,

your ears should perk up.
3. Dont want mindreading.
a. **No witness, lay or expert, may testify
about whether some other witness it
lying.
ii. (2) Skilled Lay Observer Testimony:
1. Lay observers with peculiar experiences:
a. Not necessarily strange, just unique to you for some reason or
another.
iii. (3) Other Lay Opinion Testimony:
1. Always allow owners of property to testify as to the value of their real or
personal property.
a. Saves $$ on having to bring in expert to prove value. Just have
your own party testify to it. Jury can give just as much weight to
owners opinion as to an expert.
III. Expert Opinion Overview (FRE 702)
a. Expert Opinion Testimony admissibility is a 104(a) question:
i. Judge decides all issues of fact and law. Gate keeper on expert testimony.
b. FRE 702: Expert Opinion Testimony:
i. Key to distinguishing from Lay Opinion is whether we have specialized
knowledge.
ii. How to determine what constitutes Specialized Knowledge and therefore Expert
Opinion. Three Approaches:
1. (1) Relevancy Rule:
a. Qualified Witness + Relevant Testimony + Helpful to the jury.
i. Helpful to the jury is where it often gets kicked out.
2. (2) General Acceptance Standard (Frye Rule):
a. Very conservative standard.
b. (a) Ask what our potential community of experts in this area is;
and
c. (b) Whether they accept this type of expert analysis.
d. Two Problems:
i. (1) How do we determine the community;
ii. (2) What headcount suffices for general acceptance.
3. (3) Daubert Standard (The Relevancy + Reliability Standard):
a. Need Reliability to show specialized knowledge.
b. How to determine Reliability:
i. (1) Has it been tested?
ii. (2) Was it peer reviewed?
iii. (3) What is the rate of error?
iv. (4) Was it accepted generally?
v. (5) Was it prepared outside of litigation?
vi. (6) Was it an unjustified conclusion based on the
premise?
vii. (7) Were obvious alternate explanation accounted for?
c. WI uses Daubert.
d. Kumho Tire extends this test to all expert testimony under FRE
702, not just scientific studies
i. When you are going to present FRE 702 evidence, you
MUST demonstrate Reliability under Daubert.
34
c. Cases re: FRE 702: Expert Testimony:

i. The Daubert Case:
1. SCOTUS determines that we dont follow the Frye rule as General
Acceptance being the sole standard of admissibility.
2. Facts:
a. Ps relied on different studies, but were studies that the lower
court found were not generally accepted. So, excluded.
3. Hold:
a. Frye/General Acceptance isnt the only way.
b. Creates Daubert Standard:
i. Relevancy + Reliability:
1. To show reliability you need to show
specialized knowledge. See above factors.
ii. The Kumho Tire Case
1. See above.
d. Descriptive Expertise v. Inferential Expertise:
i. Descriptive:
1. Testimony to the existence of a custom or a norm.
a. Foundation consists of proof of the experts involvement in
numerous, similar transactions.
ii. Inferential:
1. Testimony goes further and attempts to draw an inference from the
Descriptive evidence.
a. Foundation must demonstrate that the results of prior use of the
technique or theory show that the expert can accurately draw the
inference.
IV. Laying the Foundation for FRE 702 Expert Opinion
a. Overview:
i. Witness must be shown to be qualified = specialized knowledge, skill, training,
education, etc.
ii. Foundation:
1. (1) Helpful/assist the trier of fact;
2. (2) Based on sufficient facts/data;
3. (3) Product of reliable principles and methods;
4. (4) Methods are reliably applied to the facts.
a. Daubert deals with figuring out if (3) and (4) exist.
iii. Side note:
1. Evidentiary decisions made leading up to the granting of SJ are reviewed
under an abuse of discretion standard. Smart judges know this and use it
to make sure their evidentiary decisions dont get overturned.
b. The Facets of Expert Testimony:
i. (1) The Educating Function/Testimony:
1. All comes down to whether we have reliable methods that are reliably
applied (FRE 702)
a. Witness must be qualified = specialized knowledge, skill,
training, education.
ii. (2) The Reporting Function:
1. p. 590-91
iii. (3) The Interpreting Function:
1. Where the expert explains the significance of whatever the test revealed.
c. The Bases for Expert Testimony:
35
i. Syllogistic:
1. Major Premise:
a. The reliable principles and methods and how they are applied to
a particular case (FRE 702(c) and (d) = Daubert)
2. Minor Premise:
a. Case specific info/data/facts
3. Conclusion:
a. The conclusion made by applying the reliable principles and
methods to the case specific facts.
4. Problem 23-16
a. The only time we care about hearsay with experts is when they
are quoting or paraphrasing directly from the source:
i. When that happens, just use Learned Treatise Hearsay
exception.
d. The Factual Basis/Data Experts Theories Apply to:
i. FRE 703: (WILL BE ON EXAM)
1. An expert may base an opinion on facts or data in the case that the expert
has:
a. (1) Been made aware of; or
b. (2) Personally observed.
ii. Three Permissible Sources for Data in Expert Conclusions (WILL BE ON
EXAM)
1. (1) Facts the expert personally observed (PK);
2. (2) Facts the opponent asks the expert to assume hypothetically;
a. The hypo must be based on the admissible evidence. Need to
prove up the facts that you use in the hypo.
3. (3) Hearsay reports of third parties.
a. Depositions/investigative reports/etc.
i. For admissible hearsay, we let expert rely on it.
ii. For inadmissible hearsay, if the experts in the particular
field reasonably rely on those kinds of facts/data in
forming an opinion, then it is admissible.
1. Though, the proponent can disclose the
inadmissible evidence to the jury only if the
probative value in helping the jury substantially
outweighs its prejudicial effect.
4. Problem 23-17
a. Expert can talk about the contents of the record. If you get an
objection, say the expert is not using it to prove the TMA, but
rather to show the effect on the reader and how the expert came
to the opinion.
BEST EVIDENCE RULE: THE ADMISSIBILITY OF COPIES, SUMMARIES, ETC. (Ch. 24)
I.
The Best Evidence Rule Overview:

a. Doesnt come into play all that often. Bigger deal in Civil than in Criminal.
b. FRE 1002: Requirement of Original:
i. Language:
1. An original writing, recording, or photograph is required in order to
prove its content, unless these rules or a federal statute provide
otherwise.
36
ii. Restated by Blinka:

1. When the terms of a document are in issue, the proponent must either:
a. (1) Produce an original or duplicate; OR
b. (2) Both:
i. (a) Establish an excuse for the nonproduction of the
document; and
ii. (b) Offer a satisfactory type of second evidence.
c. Understanding the Rule:
i. What is a Document under the rule?
1. (1) Conventional Writings; (2) Tape Recordings; (3) Photographs; (4)
Inscribed Chattels.
ii. When is a Document In Issue?
1. Only if someones testimony is describing the content of the document is
FRE 1002 triggered.
a. There may be situations where you have a writing that evidences
something (like a receipt proving you bought gas), but it is not
necessarily need b/c you dont need the CONTENT of the
receipt to prove that you bought gas.
i. You have PERSONAL KNOWLEDGE that you bought
it. Thats enough.
b. Problems 24-3 thru 24-5:
i. REVIEW PROBLEM 24-3. COULD BE ON EXAM.
iii. Distinguishing Original and Duplicate:
1. FRE 1002 requires use of Original; BUT
a. FRE 1003 says Duplicates may be used to the same extent as
original; UNLESS
i. The opposing party can show some problem with the
authenticity of the Duplicate.
2. Original means:
a. The writing/recording itself, or any counterpart intended to have
the same effect as original
3. Problem 24-6:
a. Carbon copy = duplicate
b. Carbon Copy could even qualify as original if intended to have
same effect.
d. Excuses for Nonproduction of Original:
i. FRE 1004:
1. No need to memorize
ii. FRE 1006: Summaries to Prove Content:
1. Can use summaries of lengthy documents.
a. Remember that the underlying documents you are summarizing
must be admissible. Unlike FRE 703 where you can rely on
inadmissible.
BURDENS AND PRESUMPTIONS (Bonstore Case)
I.
Overview/Introduction:
a. Presumptions:
i. Involve the relationship b/t two types of facts:
1. (1) The Basic Fact; and
2. (2) The Presumed Fact.
37
ii. It is an If-Then relationship.

1. IF the Basic Facts can be shown, THEN the presumed fact can be
assumed.
a. It is different than an inference b/c it is a rule of law that we
conclude it truth.
b. Burdens on the Proponent of the Presumption:
i. As to Basic Facts:
1. Proponent has both (a) Production, and (b) Persuasion burdens.
a. Example:
i. For Death = Absent, without word, for 7 years. So, you
would need to satisfy production and persuasion burdens
on these three things in order to get your Presumed Fact
of death.
ii. As to Presumed Fact:
1. Two Different Approaches:
a. (1) Bursting Bubble Approach:
i. FRE 301: If the Basic Facts are established, then the
Presumed Fact follows; UNLESS
1. The opponent negates (raises an issue of fact)
that the Presumed Fact is false.
b. (2) Wisconsin Approach (Wis. Stat. 903.01)
i. The Opponent of the Presumed Fact has both the (a)
Production and (b) Persuasion burdens to negate the
Presumed Fact.
1. Not just enough to raise issue of fact, you must
prove it false.
c. Bonstores v. Wauwatosa
i. If an assessor follows certain steps in assessing the value, then Basic Facts have
been satisfies. We then allow the Presumed Fact that the value is what the
assessor says.
SETTLEMENTS, NEGOTIATIONS, AND COMPROMISES (Ch. 27)
I.
Overview:
a. FRE 408: Compromise Offers, Negotiations, and Offers to Compromise:
i. The Rule:
1. (a) Prohibited Uses:
a. Evidence of the following is not admissible on
behalf of any party, either to prove or disprove the
validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a
contradiction.
i. If you are trying to impeach with Prior
Inconsistent Statement or Contradiction
YOU CANT USE NEGOTIATIONS
2. (b) Exceptions:
a. The court may admit evidence for another purpose:
i. Such as:
1. Bias or Interest;
a. See first full on p. 723
2. See rule for more.
38
3. We want to encourage settlements.

a. This exclusionary rule extends to not only
settlements, but also offers to settle.
b. Quasi-privilege.
1. Any party can invoke the rule and it can be extended to all parties.
2. No unilateral waiver allowed of the FRE 408 exclusion.
3. When negotiations relate to the same general transaction, FRE 408
applies even if the negotiations were with a third party.
4. What constitutes Compromise Negotiations?
a. Must be a dispute as to (a) the validity of the claim; or (b) the
amount of the claim.
i. Dont need to file or threaten a lawsuit, just need a bona
fide dispute.
ii. If you concede something like liability in the
negotiations, though, you give up the opportunity to
object to that under 408.
5. What statements are covered?
a. Distinguish Statements from Information/Insights
i. 408 excludes statements b/t parties and lawyers
attempting to work out dispute on validity/amount.
Written and oral.
ii. The only thing excluded is the statement. The
info/insights contained in the statement can be use at
trial.
1. If party mentions something opposing party
didnt know about opposing party can file
discovery demand.
a. **Any discoverable info you learn about
during negotiations is available.
iii. Be sure you make clear that a letter/email/statement is
for negotiation purposes so it doesnt come in as
Admission by Party Opponent.
SUBSEQUENT REMEDIAL MEASURES (FRE 407)
I.
The Rule:
a. FRE 407:
i. When measures are taken that would have made an earlier injury or harm less
likely to occurevidence of the subsequent measures is not admissible to prove:
1. (1) Negligence;
2. (2) Culpable conduct;
3. (3) Product defect; or
4. (4) A need for warning or instruction.
b. Wis. Stat. 904.07:
i. Precludes evidence of subsequent remedial measures to prove negligence and
culpable conduct, but not product defect (Wis. Stat. 895.047 covers product
defects).
II. Understanding the Rule:
a. What is subsequent and subsequent to what?
i. FRE Approach:
39
1. Subsequent to the date of the injury. Things fixed after the injury
happened. More consumer friendly.
ii. Wisconsin Approach:
1. Subsequent to the date of sale. Things fixed after the product was sold.
This is more manufacturer friendly.
b. What are remedial measures?
i. Anything that would have made the injury less likely to occur.
1. Nature of the measure was such that both:
a. (1) Its earlier implantation would have reduced the probability of
the accident occurring; and
b. (2) Its implementation would logically support an inference of
antecedent fault.
c. When is evidence of subsequent remedial measure NOT excluded?
i. Establishing/Proving:
1. (a) Notice of prior defect;
2. (b) The cause of the accident;
3. (c) The condition at the time of the accident;
4. (d) Control of the premises in question;
5. (e) Defendants duty to repair;
6. (f) Feasibility of avoiding the accident; and
7. (g) Impeachment of the witness.
ii. Problem 28-3.
GENERAL PRIVILIGES & THE LAWYER-CLIENT PRIVILEGE
I.
Overview:
a. Whats the source?
i. Some judge made (Humanistic or Utilitarian)
ii. Some legislative
1. Made by legislature or high court in rule-making capacity.
b. Appreciate that:
i. In federal court, FRE 501 has decreed that privileges will be in accord with
common law development and reason and experience. Federal courts have
latitude.
ii. In Wisconsin. We follow the original draft of the evidentiary privileges which
were rejected by Congress.
1. Wis. Stat. 905.01
a. All of our evidentiary privileges will be found in the statutes or
constitution.
i. WI does not have accountant-client privilege.
2. One exception:
a. SCOWIS created privilege for medical experts that protect
doctors from being subpoenaed to testify. Blinka worries the
courts language actually applies this to all experts.
II. Analytical Steps to Privilege:
a. (1) To what types of proceedings do Privileges apply?
i. Adversarial. Litigation, hearing, trial, depo.
ii. They are testimonial privileges
b. (2) Who is the holder?
i. In Wisconsin, the Holder = The Client/Ex-Client.
1. Only Holder can waive privilege. If the Client wants to waive, they get
to do that and there is nothing atty. can do.
40
c.
d.
e.
f.
g.
h.
2. Atty. has professional obligation to always assert the lawyer-client

privilege when it is available to our clients.
(3) Nature of the Privileges?
i. Right to personally refuse to disclose privilege info.
1. FRCP 26(b) protects it in discovery
ii. Right to prevent third party from disclosing privileged communication
1. Client can mandate that another person (including atty. or EE of
corporation) does not disclose info.
iii. Right to prevent trial comment on the Clients invocation of the privilege
1. In Criminal Trials:
a. Judge and prosecutors cannot comment on Ds invocation of
privilege. 5th Amendment
2. In Civil Trial:
a. Wisconsin allows the opposing party to try and use the assertion
of privilege against self-incrimination to infer guilt.
(4) What type of info is privilege?
i. Lawyer-Client Privilege protects only communications
1. Oral, written, or electronic communication b/t lawyer and client.
ii. Kovel Doctrine:
1. When you retain third party experts to help in lawyer-client meetings
(doctors, accountants, translators), the doctrine allows us to take
reasonable steps to bring them within the privilege.
a. BUT, if you use them as an expert at trial, all the
communications with that person become discoverable.
iii. Communication must be Incident to the Relationship
1. Communication made in the context of legal representation. Distinguish
this from business advice.
(5) When is privilege waived?
i. Voluntary disclosure by the client.
1. Need not be informed, smart, or knowing.
ii. In Wis., by the client means not the lawyer
1. The lawyer cannot waive privilege inadvertently.
(6) Is Identity of Client privileged?
i. Normally the identity of the client and the fee agreement are not privileged
information.
1. BUT, the last-link doctrine protects identity if it would be incriminating.
(7) Lawyer-Client Communication in the Corporate Context (On Exam):
i. Upjohn:
1. When a lawyer represents a corp., privileged communication occurs
when the lawyer speaks with agents, officers, and EEs:
a. (1) In the scope of the EEs duties to the corp.;
b. (2) About information/facts the lawyer needs to represent the
corp.; and
c. (3) That the corporate EE knows is in furtherance of the
corporations legal advice.
2. Give the EE Upjohn warnings.
ii. REMEMBER:
1. Privilege only protects communications, not underlying info.
(8) Are there exceptions to privilege?
i. Crime-Fraud exception (Zolin):
41
i.
1. If a client uses the lawyer for the purpose of furthering a crime or fraud,
then the L-C privilege does not apply. It isnt waiver, it just doesnt
apply.
(9) How long does it last?
i. Swidler:
1. L-C privilege survives clients death.
42

Evidence Law Outline

Uploaded by

Copyright:

Available Formats

Evidence Law Outline

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Evidence Law Outline

Uploaded by

Copyright:

Available Formats

EVIDENCE OUTLINEPROF.

Background/Overview of Evidence Law:

2. Federal Rules of Evidence: approved in 1970 by SCOTUS. In 1974,

1. Judge decides whether evidence is admissible, and typically the jurys

The Rules and Procedure of the Examination:

d. Excusing the Witnesses:

to object b/c you dont necessarily want your opponent to hone

THE ROLES OF JUDGE, JURY, AND ATTORNEY (Ch. 5)

a. If there is an objection that a witness lacked PK under 602, that

i. Credibility is the believability of a witness. Are they

Logical Relevance Overview:

Identifying and Authenticating Voices/Speakers (FRE 901(b)):

a. Step (1): Probative Value Considerations:

CHARACTER, HABIT, AND OTHER ACTS EVIDENCE (Ch. 14)

II. The Basic Rules:

ii. State v. Jackson (Wis.)

a. If you are using it to prove intent, design, etc., it must be relevant

a. The 5 Avenues of Impeachment:

i. Things like mental illness, or drug or alcohol use at time

a. Collateral Fact Rule:

i. Careful here. The prior conviction is relevant to

Proof of the Truthful Character Trait of a Witness:

HEARSAY (Ch. 18)

b. (2) To Prove the TMA:

e. The Rules Approach to the Exceptions/Exemptions

Prior Statements by Witnesses (FRE 801(d)(1)):

i. Tome says the Prior Consistent Statements are used to

1. Do not need to be based on PK to fall into the rule.

i. Not going to work under 803(3) or (1). It is not a

ii. (b) Describes medical history, past or present symptoms

i. Situation where there is bus. record but more than one

iii. FRE 803(18): Statements in Learned Treatises, Periodicals, or Pamphlets:

2. (b) Is now offered against a partyor in a civil case, someone whose

a. Williamson v. United States

The Residual Exception:

LAY OPINION & EXPERT OPINION TESTIMONY (Ch. 12 & 23)

Overview of both Lay and Expert Opinions:

2. **If you hear a lay witness using a legal term,

c. Cases re: FRE 702: Expert Testimony:

The Best Evidence Rule Overview:

ii. Restated by Blinka:

ii. It is an If-Then relationship.

3. We want to encourage settlements.

2. Atty. has professional obligation to always assert the lawyer-client

You might also like