ONLY FRE Outline w Midterm & Final Rules

EssayTips
 Cannot replicate his model answers
 Sheet of all the rules
 Outline your headings
 Write short rule statements
 Use standard IRAC
Rule 1101: Rules Applied
 (a) FRE DO APPLY to:
 Federal Court/U.S. Court of Appeals
 Bankruptcy & Magistrates
 Civil, Criminal, Admiral, & Maritime
 Contempt, unless court acted summarily

Note: Privilege FRE apply to all stages

Rule 1101: Exceptions.

FRE Rules DO NOT apply to:
1) Preliminary Questions of Fact;
2) Grand jury proceedings
3) Preliminary Hearing;
4) Pre-and Post-trial Hearings;
5) Penalty Phase of Capital Trials;
6) Motion to Suppress Evidence;
7) Extradition Proceedings;
8) Arrest & Search Warrants;
9) Preliminary examination in criminal case;
10) Sentencing Hearings;
11) Granting/revoking probation;
12) Bail Hearings; AND
13) Nonjudicial Proceedings (Administrative or Arbitration)

Rule 103. Rulings of Evidence

1. Party MAY OBJECT to ERROR if SUBSTANTIAL RIGHT affected;
2. If ADMITTED,
3. Timely OR Motion to Strike
4. State Specific Ground, UNLESS apparent.

OR

1. Party MAY OBJECT to ERROR if SUBSTANTIAL RIGHT affected

2. If EXCLUDED
3. Party INFORMS COURT OF SUBSTANCE by PROOF OFFER, UNLESS
apparent.

(b) No Need to Renew Proof:

1. CT RULES DEFINITIVELY
2. PARTY NOT REQUIRED TO RENEW OBJECTION.

(d) Preventing jury from hearing inadmissible evidence:

1. Court MUST prevent JURY of INADMISSIBLE EVIDENCE.

(e) Plain Error:

1. Ct MAY take notice of PLAIN ERROR affecting SUBSTANTIAL RIGHT,
2. EVEN IF CLAIM NOT PROPERLY PRESERVED.

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 o Example: Mistake and instructing of the law
o Example: Prior Crime or bad act
Response by Judge:
i. What options does judge have in response to evidentiary challenge?
1. Sustain:
 Agrees w/ objection
2. Overrule:
 Rejection w/ objection
3. Redact:
 Black out part of evidence, but admit the rest
4. Curative Instruction:
 If jury hears inadmissible evidence, judge may issue “curative instruction”

Rule 105: Admission of Evidence for Limited Purposes:

1. ON TIMELY REQUEST OF PARTY,
2. MUST give JURY LIMITING INSTRUCTIONS & EXPLAIN to be used for SOME PURPOSES.

Appellate Review
Appellate Courts REVERSE decisions because:
1. Trial judge abuse discretion
2. Error affects a substantial right

Rule 106: RULE OF COMPLETENESS

1. PARTY OFFERS ALL OR PART WRITING OR RECORDED STATEMENT,
2. OTHER MAY offer other part AT THAT TIME,
3. CONSIDERED AT SAME TIME (Fairness Rule).

Rule 401: Test for Relevant Evidence

(Know definition verbatim)
 Evidence is relevant if it has
1) ANY TENDENCY to make a fact
2) MORE OR LESS PROBABLE than it would be without evidence; AND
3) the fact is OF CONSEQUENCE in determining action.

Rule 402: General Admissibility of Relevant Evidence

(Know Definition Verbatim)
 RELEVANT EVIDENCE ADMISSIBLE UNLESS any of following states otherwise:
1. US CONSTITUTION
2. FEDERAL STATUTE
3. THESE RULES; OR
4. OTHER RULES PRESCRIBED BY SUPREME COURT
Note:
 Even if party concedes (agrees that its true) a point, evidence is still relevant.

Rule 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
(Know definition verbatim)
1. COURT MAY (discretion) EXCLUDE RELEVANT EVIDENCE IF
2. PROBATIVE VALUE is
3. SUBSTANTIALLY OUTWEIGHED by DANGER of any of the following:
a) UNFAIR PREJUDICE,
b) CONFUSING ISSUES,
c) MISLEAD JURY,
d) UNDUE DELAY,
e) WASITING TIME, OR
f) NEEDLESS CUMULATIVE EVIDENCE (evidence repeats).

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Note
 If evidence is prejudicial, MUST use Balance between probative value & unfair prejudice.

Rule 404: Character Evidence in Criminal Case

(a)(1) General Rule
1. CRIMINAL CHARACTER EVIDENCE to PROVE
2. PERSON ACTED CONSISTENTLY w/ CHARACTER TRAIT on CERTAIN
OCCASSION
3. INADMISSIBLE
o Ex: In contract case, to prove D KNOWN for BREAKING Ks.

405(a): Proving CRIMINAL CHARACTER

DIRECT
1. CRIMINAL CASE
2. DIRECT
3. ONLY REPUTATION AND OPINION Testimony ADMISSIBLE
4. TO PROVE DEFENDANT’s or VICTIM’s PERTINENT TRAIT.
 EX: In criminal case, to prove peaceful nature of D.
CROSS
1. CRIMINAL
2. CROSS
3. PROSECUTION MAY ASK DEFENDANT OR VICTIM SPECIFIC ACTS
4. NO EXTRINSIC EVIDENCE
5. GOOD FAITH BELIEF ACT OCCURRED

(a)(2) D’s & V’s Criminal Character Evidence

1. When DEFENSE “OPENS DOOR” to PERTINENT TRAIT
2.  PROSECUTION CAN REBUT with SAME TRAIT.

1. When DEFENSE “OPENS DOOR” to VICTIM PERTINENT TRAIT

2.  PROSECUTION CAN REBUT with DEFDENDANT SAME TRAIT

1. HOMICIDE
2. DEFENDANT STATES VICTIM FIRST AGGRESSOR
3. PROSECUTOR CAN REBUT with VICTIM’S PEACEFUL TRAIT

(b) Proving Character Evid. for Other Purpose in CRIMINAL

1. EVIDENCE of OTHER CRIMES to show PERSON ACTED CONSISTENTLY with
CRIMINAL TRAIT INADMISSIBLE
2. BUT ADMISSIBLE CRIMINAL TRAIT to PROVE OTHER PURPOSE:
o MOTIVE
o OPPORTUNITY
o PREPARATION
o PLAN (guy kills wives in tub after wills - doctrine of chance)
o IDENTITY (dressed as tree to rob, did it again the same way, signature
crime)
o INTENT
o KNOWLEDGE
o ABSENCE OF MISTAKE; OR
o LACK OF ACCIDENT
Note: “MOPPIIKAL”
UPON REQUEST of EVIDENCE of OTHER CRIMES,
1. Prosecutor MUST
2. GIVE REASONABLE NOTICE of EVIDENE OF OTHER CRIMES AND

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 3. BEFORE OR DURING TRIAL

405(b): Proving Character Evidence in CIVIL

1. CIVIL
2. PROSECUTOR MAY offer SPECIFIC ACTS, REPUTATION, or OPINION
3. To PROVE TRAIT as ESSENTIAL ELEMENT in: (8)
a) Defamation
b) Child Custody
c) Entrapment
d) Negligent Entrustment
e) Loss of consortium (show wife and husband hated sex w/ spouse even before
injury)
f) Lost wages
g) Pain and Suffering
h) Wrongful death (loss of companionship)

4 Steps to Evidence Problems

(1) Civil or criminal case?
(2) Which party is offering the evidence?
(3) What evidence is being offered?
- Is it character evidence, for example?
(4) For what purpose is the evidence being offered?

Character Evidence Triggers:

 Prior convictions
 Evidence of lying
 Evidence of bad guy (violent, abusive to family/friends, sells drugs, sex misconduct, etc.)

Rule 406: Habit Evidence

1. PERSON’S SPECIFIC OR REGULAR HABIT
2. PROVE person ACTED CONSISTENT to HABIT on CERTAIN OCCASION
3. ADMISSIBLE
o EX: driver always fastens seatbelt before driving
1. ORGANIZATION’S ROUTINE PRACTICE
2. PROVE organization ACTED CONSISTENT with ROUTINE on CERTAIN
OCCASION (e.g. outgoing mail collected & mailed everyday)
3. ADMISSIBLE

EVEN IF HABIT NOT CORROBORATED, HABIT ADMISSIBLE

PPS
Two Policy reasons to allow Habit evidence
 Habit evidence tends to be morally neutral
 Habit evidence tends to have higher probative values

Three factors to determine if habit or character evid

1) More specific behavior, more likely habit
2) More regular behavior, more likely habit
3) More Distinctive behavior, more likely habit

Rule 407: Subsequent Remedial Measures

1. EVIDENCE of REPAIRS AFTER ACCIDENT
2. PROVE CULPABILITY, NEGLIGENCE, DEFECTIVE DESIGN, OR NEED FOR
WARNING INSTRUCTIONS
3. INADMISSIBLE

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 4. BUT EVIDENCE of AFTER ACCIDENT EVIDENCE ADMISSIBLE to PROVE
ANOTHER PURPOSE
a) IMPEACHMENT;
b) OWNER (if disputed)
c) CONTROL (if disputed); OR
d) REBUT REPAIRS WERE NOT FEASIBLE (if disputed)

NOTE: AFTER REPAIRS BY THIRD PARTIES ADMISSIBLE

NOTE: AFTER REPAIRS ONLY APPLIES WHEN YOUR PARTY

Rule 408: Compromise Offers & Negotiations

1. OFFERS to SETTLE CLAIM evidence (negotiations)
2. PROVE LIABILITY, AMOUNT, OR IMPEACH PRIOR INCONSISTENT
STATEMENT
3. INADMISSIBLE
4. BUT SETTLEMENT OFFER evidence ADMISSIBLE in
a) LATER CRIMINAL CASE AND
b) INITIATED NEGOTIATED with GOVERNMENT in EARLIER CIVIL

1. BUT SETTLEMENT OFFER evidence ADMISSIBLE for OTHER PURPOSE

a) WITNESS BIAS
b) NEGATE UNDUE DELAY
c) OBSTACLE IN CRIME INVESTIGATION
4 ELEMENTS:
1) CLAIM
2) DISPUTE
3) NEGOTIATION
4) USE TO PROVE LIABILITY, AMOUNT, OR IMPEACH PIS
PPS
 EX: “We can resolve it between us.” – NO NEGOTIATION; Unilateral Offer
 EX: “I owe you 10 but I’ll give you 5”-NO DISPUTE

Issue Spot Tip: Look for declarant to make settlement offer at accident scene before its clear there’s disputed claim.

Rule 409: Payment of Medical & Similar Expenses

1. PAYMENT OFFERS for MEDICAL, HOSPITAL, or SIMILAR EXPENSES
2. PROVE LIABILITY for injury
3. INADMISSIBLE
4. BUT PART of STATEMENT UNRELATED to MEDICAL
EXPENSESADMISSIBLE.
5. BUT WAGE REPLACEMENTS ADMISSIBLE.

Rule 410: Criminal Plea Bargaining (Trigger: D Negotiating Plea)

Offer to Plead Guilty
a. Evidence of following against D:
1. Withdrawn guilty plea – INADMISSIBLE
2. NO CONTEST plea – INADMISSIBLE
3. Statement made under FR Crim Pro 11 – INADMISSIBLE
4. statements in plea with prosecuting attny – INADMISSIBLE

b. BUT CRIMINAL PLEA ADMISSIBLE for:

1) PROSECUTION FAIRNESS (D gives statement but not others,
should be considered together) OR;
2) PERJURY 1) OATH, 2) RECORD, 3) LAWYER PRESENT

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 NOTE: FINALIZED CRIMINAL PLEAS – ADMISSIBLE
NOTE: PLEAS in CIVIL – ADMISSIBLE

2 ELEMENTS for PLEA

1. D’s SUBJECTIVE EXPECTATION; AND
2. EXPECTATION OBJECTIVELY REASONABLE given circumstances.

NOTE: CRIMINAL PLEA DO NOT APPLY at ARRESTS or CONFESSIONS.

What constitutes plea bargains

o Prosecutor / Defense attorney involved
o Charges already filed
o Specific terms discussed
o Government expressed interest in D’s offer
o Absence of Caveat statements

Rule 411: Liability Insurance

1. LIABILITY INSURANCE
2. Prove DEFENDANT ACTED NEGLIGENTLY or WRONGFULLY
3. INADMISSIBLE
4. BUT ADMISSIBLE for OTHER PURPOSE to show:
a) WITNESS BIAS
b) OWNERSHIP
c) CONTROL OF INSTRUMENTALITY
d) AGENCY
Note:
 Rule 411 does not apply to Health/Medical Insurance
(UPDATED ABOVE: YES / WROTE: REWRITE / CONDENSED: YES) ----------

Rule 412: Sex-Offense Cases: The Victim [Rape Shield]

1. CIVIL or CRIMINAL
2. VICTIM’S SEX HISTORY with OTHERS OR
3. VICTIM’S SEX PREDISPOSITION
4. INADMISSIBLE
5. BUT IF:
a) CRIMINAL
b) SPECIFIC ACT OF VICTIM’S SEX TO SHOW ANOTHER
PERSON is linked to SEMEN, INJURY, or OTHER PHYSICAL
STUFF
c) ADMISSIBLE; OR

a) CRIMINAL
b) SPECIFC ACT OF VICTIM SEX with DEFENDANT when
OFFERED by DEFENDANT to PROVE CONSENT OR
OFFERED BY PROSECUTOR
c) ADMISSIBLE; OR

a) EXCLUSION of VICTIM SEX VIOLATES D’s CON LAW rights.

b) ADMISSIBLE

6. BUT if
a) CIVIL
b) PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS
DANGER OF VICTIM HARM AND

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 c) UNFAIR PREJUDICE
d)  VICTIM’S SEX OR PREDISPOSITION
e) ADMISSIBLE

Rule 413: CRIMINAL Sexual Assault

1. CRIMINAL
2. SEX ASSAULT or CHILD MOLESTED
3. D’s OTHER SEX ASSAULTS or CHILD MOLESTS
4. MAY BE ADMISSIBLE

Rule 414: CRIMINAL Child Molest

a) 414 no LIMIT on evidence of CHILD MOLEST in OTHER RULES.
Rule 415: CIVIL Sex Assault or Child Molest.
1. CIVIL
2. SEX ASSAULT or CHILD MOLESTED
3. D’s OTHER SEX ASSAULTS or CHILD MOLESTS
4. MAY BE ADMISSIBLE

(UPDATED ABOVE: YES / WROTE: REWRITE / CONDENSED: NO) -------------------------------------------

Rule 501. Privilege in General
U.S. common law governs claim of privilege, UNLESS
 the United States Constitution;
 a federal statute; or
 rules prescribed by the Supreme Court  SAY OTHERWISE
In CIVIL, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

Rule 601: Competence

1. EVERY PERSON is COMPETENT WITNESS UNLESS rules say otherwise
2. In CIVIL, state law gives rule of decision.

Rule 602 : Personal Knowledge

1. WITNESS MUST GIVE SUFFICIENT EVIDENCE to PROVE PERSONAL
KNOWLEDGE AND
2. MAY have WITNESS’S OWN TESTIMONY
3. BUT PERSONAL KNOWLEDGE NOT apply to Witness Experts under Rule 703.
o EX: Medical examiner may give opinion
PPS
o YOUNG CHILDREN or THOSE LACKING MENTAL COMPETENCE MUST
1. personal knowledge AND
2. understand oath
o Word on the Street does not show personal knowledge

Rule 603: Oaths or Affirmation to Testify Truthfully

o WITNESS MUST testify TRUTHFULLY by OATH OR AFFIRMATION.

Rule 604: Interpreter

o INTERPRETER MUST be
1. QUALIFIED AND
2. GIVE OATH OR AFFIRMATION for TRUE TRANSLATION.

Rule 605: Judge’s Competence as a Witness

o PRESIDING JUDGE CANNOT TESTIFY AND PARTY NOT REQUIRED TO OBJECT
preserve issue
Rule 606: Juror’s Competency as Witness

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 1. JUROR MUST TESTIFY WITHOUT OTHER JURORS AND
2. PARTY MUST HAVE CHANCE to OBJECT WITHOUT OTHER
JURORS.

Rule 607: Who May Impeach a Witness

 Hostile Witness, Witness changing story, or Draw String MAY be IMPEACHED by ANY party
and PARTY CALLING WITNESS.

608: Impeaching Witness’s Character for Truthfulness

NOTE: Merely asking of incident – NOT EXTRINSIC EVIDENCE

a) Reputation/Opinion of W’s Truthfulness on DIRECT

1. DIRECT
2. OPINION or REPUTATION ALLOWED
3. To ATTACK or SUPPORT
4. Witness’s TRUTH or UNTRUTHFULNESS

5. BUT ONLY AFTER WITNESS’S TRUTHFUL TRAIT ATTACKED 

ADMISSIBLE

Specific Acts on DIRECT

1. DIRECT
2. EXTRINSIC EVIDENCE of TRUTH or UNTRUTHFUL TRAIT
3. INADMISSIBLE

NOTE: WITNESS not on stand  CHARACTER EVIDENCE INADMISSIBLE

b)
Specific Instances on CROSS
1. CROSS
2. SPECIFIC ACT MUST BE PROBATIVE
3. CHARACTER WITNESS’S TRUTH or UNTRUTHFUL TRAIT
 Didn’t say to know W’s character – Not Character W
4. GOOD FAITH ACT OCCURRED
5. NO EXTRINSIC EVIDENCE

Rule 609: Impeachment of Witnesses with Prior Convictions

Type of conviction Types of Witnesses Outcome

Misdemeanor that DID NOT involve dishonest Any Automatically exclude all of
act or false statement these convictions.
No balancing test applies.
Crimes pardoned or annulled based on the Any Automatically exclude all of
finding of innocence these convictions.
No balancing test applies.
Crimes for which witness obtained pardon, Any Automatically exclude all of
annulment, or certificate of rehabilitation W/O these convictions.
finding of innocence but had no subsequent No balancing test applies.
felony convictions

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Crime committed as a juvenile Defendant in criminal case Automatically exclude all of
these convictions.
No balancing test applies.

Anyone other than the Admit criminal case IF

Defendant in a criminal conviction would be admissible
case against am adult AND the
evidence is necessary to fairly
determine guilt or innocence

Crime for which witness was released from Any Exclude unless probative value
confinement (or convicted, if not confinement) SUBSTANTIALLY outweighs
more than 10 years ago the prejudicial effect
Super Reverse 403
Felony that DID NOT involve dishonest act or Defendant in a Criminal Admit if probative value
false statement Case outweighs prejudicial effect to
that D .
Reverse 403
Anyone other than the Admit unless Rule 403 (unfair
Defendant in a criminal prejudice substantially
case outweighs probative value)
dictates exclusion.

Felony or misdemeanor involving a dishonest Any Automatically ADMIT.

act or false statement that (a) was committed as No balancing test, not even Rule
an adult (b) for which confinement or conviction 403 applies.
ended 10 years ago or less

Rule 610: Religious Beliefs or Opinions

1. RELIGION for WITNESS’S TRUTH or UNTRUTHFULNESS  INADMISSIBLE

Rule 611: Examining Witnesses & Presenting Evidence

a) Court REASONABLY CONTROLS INTERROGATING WITNESSES and PRESENTING
EVIDENCE to:
1) MAKE PROCEDURE EFFECTIVE for TRUTH,
2) NOT WASTING TIME; AND
3) PREVENT HARASSMENT OR EMBARRASSMENT

1) DIRECT
2) LEAD QUESTIONS NOT ALLOWED, UNLESS NECESSARY TO DEVELOP WITNESS’S
TESTIMONY

1) CROSS
2) NOT BEYOND SUBJECT of DIRECT or matters affecting the WITNESS’S CREDIBILITY.

DIRECT EXAMINATION
 On Direct, lawyer asks leading question that suggests a desired answer (lawyer tells story)

CROSS EXAMINATION
 On Cross, Leading questions must be about issues on Direct.

Leading Questions Example:

 Defendant hit you on the shoulder, didn’t he?
Non Leading Question Example:

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  Did the Defendant hit you on the shoulder?
 Only Requires yes or no, but not suggestive.

Rule 612: Refreshing Recollection (NOT HEARSAY)

a) Witness may use writing (or anything else)
b) Refresh memory
c) WHILE OR BEFORE TESTIFYING.

Adverse Party Options; Deleting Unrelated Matter

d) – ONLY IF W uses evid to Refresh  Adverse party has right to Have writing produced at
hearing, Inspect it, Cross Examine AND Introduce pertinent portions into evidence.

- If writing has unrelated matter, Court must examine writing in camera, delete unrelated parts,
and give the rest to adverse party AND deleted portion must be preserved

e) - If writing not delivered, Court may issue proper order, BUT if prosecution doesn’t comply in
criminal case, Court must strike W’s testimony OR if justice requires (mistrial).
f) Item for Refresh ONLY for Assessing Credibility.
g) Lawyer may refresh recollection during testimony IF JUDGE ALLOWS IT

4 Steps to Refresh Recollection (Foundation)

1. Establish Witness doesn’t remember (A: I don’t recall)
2. Ask witness if writing helps refresh recollection
3. Show writing to Witness
4. Give copy of document to opposing side.

Rule 613: IMPEACHING WITNESS PRIOR INCONSISTENT STATEMENTS

a) Party NOT REQUIRED TO DISCLOSE Prior Inconsistent Statement, UNLESS Requested

b) EXTRINSIC EVIDENCE MAY BE USED to PROVE Prior Inconsistent Statements if

1) NON-COLLATERAL (Relevant to Case)
2) WITNESS had CHANCE to EXPLAIN or DENY
3) OPPOSING ATTY had CHANCE to EXAMINE THE WITNESS’S STATEMENT
4) GOOD FAITH BELIEF that statement exists & can be evidence
PPS
 Extrinsic Evidence
o Examples of Extrinsic Evidence:
 Testimony from another witness or medical records
 Page of deposition testimony
o Anything outside of testimony is extrinsic evidence
 To impeach a witness with a prior statement, Statement is not required to be written, notarized,
videotaped/audiotaped, etc.
o Statement not required to be in specific form (EX: Could call Friend to testify)
 Prosecution CAN impeach with previous silence as long as question refers to period before Miranda
warning.

Rule 614: Court’s Calling or Examining a Witness

a) Judge may call witnesses:
1) ON ITS OWN or
2) PARTY’S REQUEST
b) ANYONE has RIGHT to CROSS WITNESS
c) Lawyers may object to Court’s Calling as soon as jury is not present.

Rule 615: Excluding Witnesses

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 AT PARTY’S REQUEST or its own, COURT MUST EXCLUDE WITNESSES (to
avoid hearing other W’s testimony)
BUT COURT CANNOT EXCLUDE
1. PARTY,
2. PARTY’S REPRESENTATIVE,
3. ESSENTIAL WITNESS FOR PREPARATION, OR
4. AUTHORIZED PERSON.

MIDTERM MATERIALS ENDS HERE!

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 POST MIDTERM MATERIALS BEGIN HERE!

Rule 801: Defining Hearsay

(a) Statement. “Statement” can be oral, written, or nonverbal conduct, if intended as an assertion to others
o EX: A spends every night at library – A not intending to assert he’s at library each day
o EX: Silence- Seller says “no one else complained about product” – No one intended to assert they
complained
o EX: Alarm went off – Robber not intending to assert he robbed.
o EX: Bank teller hits alarm – Yes intending to assert
o EX: Sign “Rides the bus” – Sign intended to assert to others
More examples
 Captain inspecting ship – Not intending to assert
 Silence in Wedding – Yes intending to assert
 Media (audiotapes, web pages w/ words , emails, faxes) contain statements, BUT CANNOT be offered
to prove truth.
(b) Declarant: Makes statement based on personal knowledge (e.g. “I was there…and saw” – Non-Hearsay)
(c) Hearsay. “Hearsay” is an Out of Court statement:
(1) made by declarant in context Other than at trial; AND
(2) offered to prove TRUTH OF MATTER ASSERTED

HEARSAY EXEMPTIONS: W PRIOR STATEMENTS

(d)(1) Statements under Hearsay Exemptions
A) Declarant-Witness Prior Inconsistent Statement (PIS)
1. Witness (declarant) testifies
AND
2. Subject to cross-examination on PIS, unless claim 5th Amen right(blanket privilege)
o fake or really cant recall (“I DONT RECALL)  STILL CROSS
o W claims Selective Privilege – STILL CROSS
Note: 1 & 2 met, following 3 elements must be met too.
3. Prior Statement Inconsistent w/ W’s testimony (e.g. “I DON’T RECALL” or A’s prior
statements contradicted his court testimony)
4. Given under oath (perjury)
5. Given at trial, hearing, deposition, or other proceeding. (e.g. grand jury)

B) Prior Consistent Statement (PCS)

1. Witness (declarant) testifies
AND
2. Subject to cross-examination on PCS unless claim 5th Amen right.
Note: 1 & 2 met, following 3 elements must be met too.
3. Prior Statement Consistent w/ W’s testimony
4. Used ONLY to rebut allegation that W lied or W’s improper motive (E.g. Attny finds inconsistent W
testimony)
5. Prior statement must have arose BEFORE motive to lie
o E.g. (Motive to lie in 1989, but PCS in 1990 – Inadmissible PCS)

C) Prior Identification (PI)

1. Witness (declarant) testifies
AND

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 2. Subject to cross-examination on PCS unless claim 5th Amen right.
Note: 1 & 2 met, following element must be met too.
3. Identifies Person the W (declarant) saw before
4. 1- 3 met – Admissible Hearsay Exemption
 Prior identification – OKAY even if W can’t recall

(d)(2) Statements by Opposing Party:

1. 1. The statement is offered against an opposing party AND
2. made by party in individual OR representative capacity (representative of another);
o Ex: D’s diary detailed the escape & PROS used against her – YES INIDIVIDUAL CAPACITY
o Ex: You ruined my life – YES INDIVIDUAL CAPACITY
o Ex: “I think it was my fault” – YES INDIVIDUAL CAPACITY
OR
2. 1. The statement is offered against an opposing party AND
2. Party manifested that it adopted or believed to be true;
 Cops can’t use silence after arrest as an adoptive admission!
 Proponent of the evidence (prosecution) needs to prove that:
o D likely heard the statement.
o D could have denied statement but didn’t.
o D would have denied the statement if D didn’t think it was true.
Ex: At lunch, D asked if laid off but didn’t answer – NOT SILENCE ADOPT
OR
3. 1. The statement is offered against an opposing party AND
2. Made by person authorized by party to make a statement RE subject;
o Ex: Terrell Owens authorizing his agent to speak
OR
4. 1. The statement is offered against an opposing party AND
2. Made by the party’s agent OR employee
3. within scope of relation and while it existed
o Ex: Emails sent by S’s employees that mentioned S’s business plans w/in scope of work – MADE
BY EE’s W/in SCOPE of RELATION W/ Company.
 Party’s availability is irrelevant
 Party-Opponent: 2 Limits
o Declarant must be a party
o NO SELF-SERVING STATEMENTS (Ex: D offering their own statement – not okay)
 Multiple Parties: Same Side Statements
o Minority: 1 P may offer another P’s out of court statement if against Co-Plaintiff OR 1 D may
offer another D’s out of court statement if against Co -Def
o Majority:
 Civil: P can only offer Def’s statements & vice versa
 Criminal: PROS can admit any Def’s statements (NOT co-Def’s statement of another co-
Def)
 Multiple Parties: Spillover Effect
o CIVIL (3 STEP)
1) Can we use D1’s statement against D2, who didn’t say shit?
 Ex: Nurse statement (Oh no! Wrong Drug!) could be used against her as
Doctor’s agent.
2) Does some other hearsay exception apply?
3) Admit D1’s statement, but only against D1 (with 3 caveats):
 Redact any reference to D2.
 Give limit instructions to jury (Only consider D1)
 D2 CAN ARGUE 403 (All statements may be excluded)

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BRUTON DOCTRINE: Confrontation clause violated if we admit Co-Def’s statement that facially incriminates
another Def, unless Co-Def testifies.
Elements
1) Criminal Case.
2) At least 2 defendants (“D”).
3) One D1 uses statement against the other D2.
4) D making the statement must not testify at trial.

o CRIMINAL (4 STEP)
1) Can we use D1’s statement against D2, who didn’t say shit?
 Ex: Dopey’s statement (Sleepy & I grabbed all gnomes) can be used against
Dopey.
2) Do some other hearsay exceptions apply?
3) Is D1 subject to cross?
 If Yes, ADMIT ENTIRE STATEMENT against D1 w/ instructions.
 If D1 claims privilege, REDACT any reference to D2 w/ instruction AND
EXCLUDE ENTIRE STATEMENT or SEVER trial
OR

5. 1. Statement made against opposing party AND

2. Def’s Co-Conspirators (i.e. Criminal joint venture) made statement
 PROS use a coconspirator's past statements as trial evidence if the judge agrees that person has
been properly designated as a co-conspirator.
3. Def conspired w/ speaker
4. DURING and in FURTHERANCE of conspiracy
 Statements made before or after a conspiracy do not fit the exemption.
 However, statements made by conspirators BEFORE a defendant (D2) joined are usually
admissible against him (D2)---on the theory that he adopted whatever was said or done
before
4:
Statement must be considered but does not by itself prove Declarant’s authority under (C); OR
Existence or scope of relation under (D); OR
Existence of conspiracy or participation in it under (E).
 When Arrested No Conspiracy

Trigger Words: Co-conspirator’s statements: Look for when the conspiracy begins and ends!

Note: rule of completeness” will allow self-serving parts of a D’s statement when prosecution/or civil party
offers incriminating parts.

801 NON-HEARSAY: TO PROVE OTHER PURPOSE; NOT TRUTH OF MATTER

- Knowledge of speaker
• Notice to listener (Med Mal – Nurse heard surgery risks)
• Effect on the listener; (D’s word made others fear harm)
Ex: D shouts “Killer bees!” & people run out of bldg.
Ex: lawyer asks why took umbrella, D says “Heard someone say it would rain”
• Legally Binding Statement (K: “I accept” relevant to prove K, “I allow to come to property”-
Relevant for consent)
- Legally Operative Facts
- Impeachment of witness
- Motive (letter reads he sexually assaulted me)

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 - Publication in Defamation;

Issue Spotting Tip: if statement not offered for truth, but for purpose of proving one of the exceptions, use
Relevance Balance Test.

Hearsay 4
The Hearsay “Four”
1. Is it a statement?
2. Did the statement occur outside the courtroom (off the stand)?
3. Is a party offering the statement to prove the truth of the matter asserted?
4. Does an exception/exemption/non-hearsay basis apply?

Inconsistent Statement Rules - 801(d) vs. 613

•Prior Inconsistent Statements under 801(d) are admissible for the truth of the matters asserted.
•613: Can be any prior inconsistent statement BUT ONLY admissible to impeach W’s credibility, not to prove the
truth of the matter asserted.

Rule 802: The Rule Against Hearsay

1. Hearsay is not admissible unless any of the following provides otherwise:
Federal statute, FRE, or Supreme Court Rules.

803: HEARSAY EXCEPTIONS

Hearsay ADMISSIBLE, REGARDLESS if Declarant is Available or Not Available as Witness:
(1) Present Sense Impressions (PSI)
1. Statement
2. Describing or explaining event (e.g. “he’s practicing juggling knives”- Yes PSI)
3. While or Immediately after perceiving event
 Ex: (“I warned you”- NO PSI b/c not presently perceiving)
 Ex: (911 call 8 min after accident – Yes PSI)
1-3 met, Admissible Hearsay
Note: PSI does not require In-Person Statement
 (Ex: A hears B’s statement over phone)
(2) Excited Utterance!!!!!
1. Statement
2. About Startling event
3. While still under excitement
Ex: (“Ive found wastebasket I been waiting for long time” – YES EU)
Ex: (40 min elapsed from shooting – YES EU b/c still bleeding from gun wounds)
Ex: (2 hours later, patient was now calm – NO EU)
*1-4 met, Admissible Hearsay

(3) State of Mind. (Only applies to Declarant)

1. Statement of PRESENT (then-exist statement) Mental, Emotion, or Physical condition to show condition
(pain or health) or state of mind (Motive, Intent, Plan)
AND
2. RELEVANT to trial
Ex: “afraid of him” – YES SOM
Ex: “I know” – YES SOM
EX: “I want to see if I can get it”
* 1-2 met, ADMISSIBLE HEARSAY
 Statements of memory (“I remember) or belief (“I believe”) - INADMISSIBLE
 EXCEPT statement of memory/belief about DECLARANT WILL – ADMISSIBLE
 Statements of external stuff (“I just got a promotion at work”) – INADMISSIBLE

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(4) Statement made for Medical Diagnosis or Treatment.
1. Statement made for
 Can be to any person
2. Reasonably related
o Ex: (“Patient says truck smashed her car” – NOT RELATED to Med treat/diag.)
3. Medical diagnosis or treatment (e.g. “Evidence midterm gave me anxiety”-Statement related to Med Treat)
4. Describes medical history or past/present symptoms or cause of it
 1-3 met, Admissible Hearsay
Statements of BLAMING for CAUSING INJURY – INADMISSIBLE
 EXCEPT: Statements of child abuse – ADMISSIBLE
 Ex: (child’s statement that dad abused her – OKAY)
Third person CAN make statement for med treatment.
o Ex: (Doctor descriptive statement of patient’s symptoms – OKAY)

(5) Past Recorded Recollection.

1. W reads record
 Anything in writing or audio/video taped)
Examples
 Witnesses didn’t claim they lacked memory – Inadmissible
2. NOW CANNOT RECALL to testify fully accurately

3. W Make or Adopt that event was fresh in memory when record made (i.e. W must testify that she had a
good memory of what was on the record); AND
Examples
 W couldn’t remember & Even if agent wrote P’s statement – Admissible
 W refused to sign report (didn’t adopt) & couldn’t remember – Inadmissible
 P claims entries were correct at the time, but doesn’t recall much – Admissible
4. W’s Accurate Knowledge shown by record
5. ONLY allows Witness to READ INTO EVIDENCE; NOT ADMIT into EVIDENCE

* 1-5 met, Admissible Hearsay

Trigger Past Recollect Record Words: W reads from record

Refreshing Memory VERSUS Recorded Recollection

 Refresh Memory 612:
o Looks at evidence to jog memory & testifies w/o help of additional evidence
o Events DO NOT have to be fresh in memory
o Doesn’t matter what they use to refresh
o Doesn’t have relation to hearsay
 Recorded Recollection 803(5):
o Reads into record info
o Events were fresh in memory when record made
o Record must show ACCURATE KNOWLEDGE

(6) Business Records.

1. Any Record (Memo, Report, Data)
 Of diagnosis, opinion, event, act, event
2. At or near time info arose
3. By knowledgeable person of info or transmitted by other knowledgeable business person
4. Record kept as part of Regular Business practice, regardless of profit
o E.g. Letter protesting College’s hiring process – Not Business Regular Practice
5. Shown by custodian of records or another qualified witness,
o Ex: Narc Agent spoke w/ EE of how ledgers kept – Admissible
6. No Opponent Untrustworthiness

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 o Records created in anticipation of litigation – Inadmissible
 Ex: Insurance Consultant hired to make investigative report of accident
– Inadmissible
o ALTERED BUSINESS RECORD – INADMISSIBLE
 Ex: (Co altered check stubs showed untrustworthiness- NOT OKAY)
o UNABLE to lay foundation – INADMISSIBLE
o INFO of BUSINESS INSIDERS – ADMISSIBLE
 Many Layers of Hearsay by Business Insiders – OKAY
o THIRD PARTY INFO OF BUSINESS OUTSIDERS – INADMISSIBLE
 Ex: (Dell Computers: Customer offering Dell’s tech support notes (Outsider)–
Inadmissible)
 Many Hearsay Layers for Business Outsiders – NOT OKAY
* 1-6 met, Admissible Hearsay.

(7) Absence of Business Record.

Evidence not in record in (6) Admissible if:
(A) Proponent shows record that would’ve existed would’ve been kept according to (6);
(B) Missing info business regularly kept records of, AND
(C) No Opponent Untrustworthiness.

(8) Public Records Exception. (Cannot be Private Agency)

Public records and reports are ADMISSIBLE if shows:
A. Agency’s activities AND no untrustworthiness by opponent
OR
B. Matters observed during duty to report AND no untrustworthiness by opponent
OR
C. Investigative reports of factual findings by Gov’t may be prove in CIVIL OR in CRIMINAL against
Government AND NO Opponent Untrustworthiness
o Criminal Case Limit: CRIMINAL PROS CANNOT USE PUBLIC RECORDS to PROVE
POLICE IVESTIGATIVE FACTS in POLICE REPORT against Criminal D.
o Except: Ministerial Objective observations (WARRANTS) – Admissible
 Ex: (To keep records of movement of aliens – OKAY)
Conclusions, inferences, & opinions in Public Rec. - Admissible.
o E.g. Beech Aircraft offered report w/ findings & opinion (most probable cause of accident was
pilots failure to maintain proper interval) – Admissible
Public Rec w/ 3rd party statements are Inadmissible.
o E.g. Reporting of local resident statements – Inadmissible under Public Record Exception

Public Record of Investigation:” Trustworthiness Factors

1) Timely Investigation
2) Special skills of officer conducting;
3) Hearing held by public agency before report made; AND
4) Whether the motivation of the public agency is suspect – for example, whether the report was made in
anticipation of litigation.
o E.g. Police dept created a Shooting Review Board to investigate shooting & killing of P & issued
report – Admissible b/c not only was report “not untrustworthy,” prepped 5 weeks after shooting
(timely), conducted by 5 qualified members (special skills of officials), & took place at hearing
(hearing held before report). Weighed in favor of admissibility.

(10) Absence of a Public Record.

Testimony or Certificate saying didn’t disclose public record or statement Admissible if:
(i) W says Search made but no record found
OR

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(ii) Missing in record that public agency regularly kept
OR
(iii) Criminal Case: PROS that wants to use Certified Doc MUST give
1. WRITTEN NOTICE
2. At least 14 days before trial; AND
3. No object in writing 7 days from notice

Common Example:
o Certified DOJ Letters showing that a defendant is not the registered owner of a firearm.

(16) Statements in an Ancient Document.

A statement in a document that was prepared
1. before January 1, 1998 AND
2. authenticity proven
* 1- 2 met, Admissible
o ONLY 1 Hearsay Layer in Ancient Docs
o Additional layers need its own exception.

Example:
 1995 mom’s letter about burned chair says, “The gorgeous antique chair was perfectly
preserved without a scratch on it. My uncle tells me that the chair was once owned by
President Lincoln”
 Answer: Mom’s opinions, and conclusions are admissible under Ancient Documents
BUT NOT WHAT UNCLE TOLD MOM.

(17) Market Reports. Market quotations, lists, or directories relied on by public or person – Admissible
 Example: Table of stock prices Admissible , BUT NOT HIS OPINIONS

(18) Statements in Learned Treatises, Periodicals, or Pamphlets.

A statement in treatise, periodical, or pamphlet Admissible if:
1. Statement questioned by expert W on CROSS
OR
Relied on by expert on DIRECT;
AND
2. PUBLICATION shown to be reliable authority by
o Expert’s admission or testimony
OR
o Another expert’s testimony
OR
o judicial notice.
3. Statement in Treatises may ONLY be read into evidence; Cannot Admit Evid.

Hearsay Exception: 804: UNAVAILABLE WITNESS EXCEPTIONS

NOTE: Remember to raise and discuss the unavailability point before applying the exception.
804 (a) Criteria for Being Unavailable.
Declarant (W) is UNAVAILABLE if
1) Exempted from testifying of subject because Declarant claims privilege (5th) that judge accepts;
OR
2) Declarant refuses to testify even after despite court orders
OR
3) Testifies doesn’t remember subject matter;
OR

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 4) Cannot testify at trial due to death, or then-existing infirmity, physical illness, or mental illness;
OR
5) Absent from the trial and the statement’s proponent has not been able, by reasonable means, to obtain:
a) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6);
OR
b) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2),
(3), or (4).

*But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying

804(b) The Exceptions.

1. Former Testimony.
(A) Declarant Unavailable as W
AND
(B) Testimony given at trial, hearing, or deposition, whether current or different proceeding;
AND
(C) Current Opponent AGAINST WHOM testimony is now offered - OR whose predecessor in
CIVIL – had CHANCE
AND
(D) Similar Motive to CROSS (P & D trying to prove same thing) to develop testimony.
o 4 factors – whether a prior opposing party had similar motives as current opposing party:
(1) type of proceeding in which the testimony was given;
(2) trial strategy
(3) potential penalties or financial stakes; AND
(4) the number of issues and parties.
(A) – (D) – Admissible Hearsay

 In CRIMINAL D MUST have chance to ask questions

 In CRIMINAL, D’s Actual Questions in prior proceeding NOT REQUIRED
 In CIVIL, same party NOT required, but MOTIVES MUST be SAME for PRIOR & CURRENT
PARTY.

PIS by W (801)(d)(1)(A) v Former Testimony 804 (b)(1)

PIS:
 Testify
 Subject to Cross
 PIS
 Under oath
Former Testimony
 Unavailable
 Any content
 During trial, where current opponent or - predecessor in Civil- had opportunity & similar motive

2. Dying Declaration.
I. Declarant UNAVAILABLE
II. HOMICIDE OR CIVIL,
III. Declarant’s (W) statement made , WHILE BELIEVING IMMINENT DEATH
IV. RELATED to CAUSE OR CIRCUMSTANCES.
 Dec’s Subjective Belief: Did they [declarant] really believe they were going to die when
making the statement?
V. Analyze objective factors to determine subjective intent:
 Dec’s statement

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  Medical personnel or others statement to Dec
 Nature & extent of wounds or illness
 Length of time between statement & death
 Medical personnel’s opinion re Dec’s treatment
 Actual Death is NOT required.
 And EXEMPTED FROM CRAWFORD ANALYSIS (Confrontation Clause)

3. Statement Against Declarant’s Interest.

I. Declarant Unavailable as Witness
II. Reasonable person for Declarant would’ve made statement if he believed it to be true since
statement was:
 Against property/ pecuniary interest
OR
 Great tendency to invalidate DEC’s claim against someone else
OR
 Exposed DEC to CIVIL or CRIMINAL liability;
 Ex: “I’m sorry I stole your belts” & no Reas. Person would’ve confessed unless
believed it true – Admissible
AND
III. If CRIMINAL liability CIRCUMSTANCES MUST CORROBORATE
TRUSTWORTHINESS of statement
 Courts consider 6 factors to determine whether type of statement is sufficiently
trustworthy to admit:
• Motive, reason to lie?
• Declarant repeat the statement consistently?
- Declarant pled guilty or liable criminally?
• Who was the statement made to?
• Relationship of declarant with accused?
• Nature and strength of independent evidence relevant to conduct in question.

* I – IV: Statement Admissible

6. Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability (Forfeit.)
1) Declarant Unavailable
AND
2) A statement against a party that wrongfully caused Declarant’s Unavailability
AND
3) Intended result
 Ex: “S told someone that he wanted to make sure D doesn’t testify if he knows whats
good for him” & D was scared to testify – Admissible
OR
4) Acquiesced in wrongfully causing Dec’s (W) unavailability AND Intended result.
 Wrongful Triggers:
 “Coercion, undue influence, or pressure to silence testimony and prevent truth-finding
 Non-Wrongful Triggers:
 Defense attny tries to get DV witness to claim marital privilege.
 Attny informs court that witness might incriminate themselves. (5th)
 Prosecution must prove the elements of forfeiture by a preponderance of the evidence.
 Judge can consider otherwise inadmissible evidence FRE 104.

NOTE: EXEMPTED FROM CRAWFORD ANALYSIS (Confrontation Clause)

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Rule 805: Hearsay within Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms
with an exception of the rule.
STEPS TO FOLLOW:
Look at each layer: BEGIN BACKWARDS
First: Begin w/ Tyler’s statement
Second: Look at Xavier’s statement
Xavier  Tyler  Officer F
I have a gun HELP! My brother
& will shoot Xavier says he has a gun
wife. & will shoot his wife.”

Xavier’s NOT okay Only Tyler’s

b/c Not to prove truth Excited Utterance: Admissible Hearsay
b/c don’t know if for truth of matter.
Really had gun / intend
to kill wife; instead to
prove he CLAIMS its Non-Hearsay.

Rule 806: Attacking & Supporting Declarant’s Credibility - (NOT ON EXAM)

Rule 807: Catchall (Residual) Exception

Note: For an exam, you should address this exception.
1)ONLY after discussing categorical exceptions, and
2)ONLY if you feel no other exceptions legally apply.
(a) In General.
Hearsay NOT EXCLUDED, EVEN IF NOT COVERED BY EXCEPTION 803 or 804:
(1) Statement has trustworthiness or circumstantial guarantees of trustworthiness;
AND
(2) Evidence of a material fact;
AND
(3) Must be more probative than Other evidence that Proponent can obtain;
AND
(4) Serves interest of justice
AND
(5)(b) Pretrial Notice: Proponent gives Adverse Reasonable Notice In Advance of the intent to offer the statement
and details (address & name) so Adverse has fair opportunity.
*1-5 met, Admissible statement.

 Catchall ADMIT statements of CHILD ABUSE (e.g. sexual) cases

 Proponent must prove trustworthiness in Child Abuse cases

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 6th Amendment – Confrontation Clause – Crawford
Crawford v. Washington
 Crawford and his wife confronted Lee who wife said raped her.
 Crawford stabbed Lee in the torso.
 Lee said: “I didn’t provoke him!”
 Crawford said: “I was defending myself bc Lee picked up a knife!”
 Interrogation at station
 Crawford said he thought Lee had a knife. Wife said she didn’t see attack. But then said, “actually I did see
the attack, Lee had no knife.”

Testimonial Defined
 It’s a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.”
(Primary Purpose Test)
 Made under circumstances which would lead an objective W reasonably to believe that the statement
would be available for use at a later trial.
 Primary purpose of creating an out of court substitute for trial testimony…. To establish or prove past
events potentially relevant to later criminal prosecution.

Testimonial St Statements
•Definition sometimes hard to apply. #1 source of disagreement in SCOTUS & state courts. But here are some
examples.
•Sworn statements (affidavits)
•Any actual testimony or formal statements during litigation. Any statement that “bears testimony.”
•Most police interrogations/interviews (look for calm collected fact gathering and structured questioning by cops)

Non-Testimonial Statements
Business Records / Official Records “Created for the administration of an entities’ affairs and not for the
purpose of establishing or proving some fact at trial.”

Co-conspirator statements Purpose to further a criminal endeavor, not said with an eye toward gathering
facts for trial.

D’s Admissions (if used only against D)

Statements not offered to prove the truth of the matter asserted. Effect on the listener (recall People v.
Andres and tips re: Narco activity)

To statement is Testimonial or Non-Testimonial

1. Whether interrogator was law enforcement official
2. Presence or absence of an ongoing emergency
3. Informality of situation
4. Whether similar evidence was regularly admitted at the time of the founding
5. age of declarant
6. absence of other indications that primary purpose of conversation was to gather evidence for prosecution

6th Amendment Rules

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  Prosecutor can introduce NON-TESTIMONIAL HEARSAY, as long as a hearsay exception applies. (state
or federal)
 Prosecutor can introduce TESTIMONIAL HEARSAY as long as declarant is available. (and a hearsay
exception applies)
 If hearsay statement is testimonial, and declarant unavailable, prosecutor can only offer the out-of-court
statement if there was a prior opportunity to cross-examine the declarant. (similar motive/opportunity &
hearsay exception applies)

Exception to 6th Amendment Confrontation Rules

FOUNDING ERA-PRACTICES

•Forfeiture

–Extinguishes confrontation claims on equitable grounds.

•Dying Declarations

–Calm testimonial deathbed statements can still avoid confrontation clause scrutiny. But this is rare. (Ex: “Officer,
Sarah gave me an injection 10 years ago, and bc of it, now I am dying.”)

Crime case where prosecution wants to introduce evidence Approach

Issue

Relevance (rule)

Hearsay? (define hearsay…analyze application of 801/803/804)

[Statement Against Interest]

Confrontation [Testimonial vs. Non-testimonial]

Analyze all factors.

[If Testimonial, and Decl available, no problems with confrontation. If

Testimonial and Decl unavailable, then D needed prior opp to cross].

If Non-Testimonial, no confrontation issues!

403 (rule)

Conclusion

Judicial Notice

Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope. This rule governs judicial notice of an adjudicative fact only,
not a legislative fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may
judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.

(c) Taking Notice. The court:

23
 (1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is
supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stage of the
proceeding.

(e) Opportunity to Be Heard. On timely request, a party is entitled to be

heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial
notice before notifying a party, the party, on request, is still entitled to be heard.

(f) Instructing the Jury. In a civil case, the court must instruct the jury
to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not
accept the noticed fact as conclusive.

Opinion & Expert Testimony

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Examples of Allowable Lay Opinions

Describing the speed of a car or similar moving object;

Distances;

Size, color, shape, texture or odor of things;

May give physical descriptions of a person (i.e., tall or short, strong or

weak, intoxicated, etc.);

Can describe the apparent emotional or psychological state of another,

such as whether they are frightened, angry, upset or sad.

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

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Rule 703. Bases of an Expert

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally
observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would
otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in
helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

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