1.

Major Rule and Exceptions

2. Sub-rules
3. Tricky Issues
4. Examples
5. Related Rules

I. CORE CONCEPTS AND STRUCTURE OF A TRIAL

Stages of a Trial: Pre-trial motions in limine  jury selection (voir dire)  opening statements  case in
chief of party with burden  case in chief of defendant (rebuttal if permitted)  closing statements  jury
instructions  jury deliberations  verdict

II. RULES OF THE GAME: RAISING AND RESOLVING ARGUMENTS ABOUT EVIDENCE

[RULE 103]: Requirements for objections, motions in limine, offers of proof, standard of review
 Objections must be timely and specific
 Offer of proof & notice of plain error (rare)
[RULE 104]: Preliminary questions and burden of proof, weight vs. admissibility
 FRE: The court must decide any preliminary question about whether a witness is qualified, a privilege
exists, or evidence is admissible. In so deciding, the court is NOT BOUND BY evidence rules, except
those on privileges.
[RULE 105]: Limiting Instructions
 Limiting instructions are the solution for when evidence is relevant for one purpose but irrelevant for
another purpose

III. GENERAL RULE: RELEVANT EVIDENCE IS ADMISSIBLE

[RULE 401 and 402]: Admissibility of Relevant Evidence

 FRE: Evidence is relevant if: it has the tendency to make a fact more or less probably than it would be
without the evidence; and the fact is of consequence in determining the action AND irrelevant evidence
is NOT admissible.
 Notes:
o Evidence does not have to be disputed to be relevant
o Low bar standard for relevance; even low probative value evidence is still relevant
o The judge decides if the evidence has sufficient probative value to pass the low bar of relevance.
o Fact of Consequence:
 Depends on the legal theory of the case (substantive law)
 Credibility of witness is always a fact of consequence
 Can be expanded by introduction of new evidence
 Does not have to be disputed
 Not affected by availability of alternative proof for same point

IV. EXCEPTION #1: [RULE 403]

 FRE: The court MAY exclude relevant evidence if its probative value is SUBSTANTIALLY
OUTWEIGHED by unfair prejudice (or more: confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence).
 Judge’s considerations when making their 403 determination:
o 1) The potential effectiveness of limiting instructions or redaction

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 o 2) Whether there is other evidence available (evidentiary alternatives such as an offer to
stipulate) that would convey the same information with less danger of unfair prejudice; a court
should consider “evidentiary alternatives” (Old Chief)
 Clarifier: re: stipulations - BUT just because the judge should consider it doesn’t mean
that the court will necessarily allow the defendant to stipulate. The court will consider
evidentiary alternatives (like a stipulation), the probative value of the evidence, AND the
prosecution’s right to tell the story how it wishes versus the risk of unfair prejudice.
[Note: these things have equal weight in theory but not in reality/actuality]
o 3) Whether the evidence will inflame the jury’s passions or whether the jury might overvalue the
evidence – give it undue weight.
o Note: a judge’s decision under 403 distinct from the determination of relevance under Rule 401.
Under 403, the judge balances the probative value against the risk of unfair prejudice, taking into
consideration the availability of alternative forms of evidence and the potential effect of limiting
instructions.

V. EXCEPTION #2: EXCLUDE EVIDENCE TO PROTECT SOCIALLY VALULABLE ACTIVITIES

*We exclude evidence to protect socially valuable activities even if they might be relevant UNLESS they
fit an exception.

[RULE 407]: Subsequent Remedial Measures

 FRE: When measures are taken that would have made an earlier injury or harm less likely to occur, the
evidence of the subsequent measures is not admissible to prove: negligence, culpable conduct, a defect
in product or its design; or a need for a warning or instruction. BUT the court MAY admit this evidence
for another purpose, such as impeachment, OR IF DISPUTED, proving ownership, control, or the
feasibility of precautionary measures.
 Notes:
o (If disputed) feasibility, ownership, or control are the exceptions to the ban imposed by
subsequent remedial measures
o Timing matters: measures must have taken place after the injury or harm occurred in order to be
considered subsequent.
o Evidence is not admissible to show: fault, negligence, culpable conduct, defect in product or
design, need for warning or instruction BUT can be admitted to impeach with contradiction,
prior inconsistent statement, or with bias
o Only applies to parties to a lawsuit, not non-parties
 Example:
o Supervisor A fires Latina employee  EE sues for discrimination  1 week later, Company
demotes Supervisor A  evidence that Supervisor A was demoted = inadmissible because the
demotion is a subsequent remedial measure
o Instituting a new policy, changing a label, redesigning, recalls, firing/sanctioning an employee,
putting salt of sidewalk.
[RULE 408]: Civil Case Offers to Compromise
 FRE: 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: (1) furnishing, promising, or offering, or accepting, promising to accept, or offering to
accept – a valuable consideration in compromising or attempting to compromise the claim; AND
conduct or a statement made during compromise negotiations about the claim – except when offered in a
criminal case and when the negotiations related to a claim by a public office in the exercise of its
regulatory, investigative, or enforcement authority. BUT the court may admit this evidence for another

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 purpose such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving
an effort to obstruct a criminal investigation or prosecution.
 Notes:
o Even relevant statements are excluded if they were made during a settlement conference
o Evidence IS NOT admissible to prove/disprove validity of a claim OR to impeach with prior
inconsistent statement or contradiction.
o Evidence IS admissible to prove witness’s bias, negating a contention of undue delay, and to
prove an effort to obstruct a criminal investigation or prosecution.
o The “claim” has to have matured into a claim meaning, after a lawsuit is filed or after hiring an
attorney and threatening to sue – anything less than that is less clear whether or not it’s a
settlement conference
o “Compromise negotiations” factors – unilateral statement vs. dialogue; concrete offer; terms like
“without prejudice”
[RULE 409]: Offer to Pay Medical Expenses
 FRE: Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the injury.
 Notes:
o Doesn’t matter if speaker didn’t follow up on promise
o Doesn’t apply to offers to pay other kinds of expenses (like clean up)
o ONLY excludes portion of statement with offer to pay expenses
[RULE 410]: Criminal Case Offers to Compromise (Pleas and Plea Discussions)
 FRE: In a civil or criminal case, evidence of the following is not admissible against the defendant who
made the plea or participated in the plea discussions: (1) a guilty plea that is later withdrawn; (2) a nolo
contendere plea; (3) [a statement made during a proceeding on either of those pleas under Fed. Rules of
Crim Pro 11 or a comparable state procedure]; OR (4) a statement made during plea discussions with an
attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in
a later withdrawn guilty plea.
 Notes:
o “During plea discussions” means: (1) accused had actual subjective expectation to negotiate plea
AND (2) expectation was reasonable given totality of objective circumstances OR the totality of
the circumstances test (factors include: was there an arrest? Were charges brought? Was an
attorney present? Was it just a questioning session? Was there an offer from the prosecution to
reduce the sentence?)
o Social values: confessions are admitted because there’s no social value in excluding them, they
were willing to give that information up; BUT we want to exclude plea bargains in order to
encourage pleas. Not every discussion between an accused and agents for the government is a
plea negotiation.
[RULE 411]: Liability Insurance
 FRE: Evidence that a person was or was not insured against liability is not admissible to prove whether
the person acted negligently or otherwise wrongfully (basically, to prove fault). BUT the court MAY
admit this evidence for another purpose such as proving a witness’s bias or prejudice or proving agency,
ownership, or control.
 Notes:
o The insurance has to be that of the person who is being sued (not a non-party to the suit)

VI. EXCEPTION #3: EXCLUDE EVIDENCE TO PROTECT SOCIALLY VALUABLE RELATIONS

[RULE 501]:
 1) Attorney-client Privilege and Work Product Doctrine

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 o RULE: Attorney-client privilege means the protection that applicable law provides for
confidential attorney-client communications; and work-product protection means the protection
that applicable law provides for tangible material (or its intangible equivalent) prepared in
anticipation of litigation or for trial. The privilege protects confidential communications
between a client and an attorney made for the purpose of obtaining legal advice – this is an
absolute privilege
o Work Product Protection:
 Protects all work that either the attorney or the client does independently to prepare for
trial; this protection is held by the attorney
 Only protects document or objects that are prepared in anticipation of litigation
 When work product consists solely of facts about the dispute, the privilege is qualified.
Litigants may gain access to more factual work product by showing a substantial need for
the information and an inability to obtain the info in any other way without undue
hardship
 When work product consists of mental impressions, conclusions, opinions, or legal
theories of an attorney or representative, the privilege is nearly absolute.
o Notes:
 Although the client holds the privilege, the attorney can assert the privilege on behalf of
the client (and usually does).
 Applies all the time – at every stage of litigation, even when there’ no litigation, and even
after client’s death
 Waiver: only client can waive (a) intentionally or (b) accidentally if they didn’t take
reasonable steps to prevent disclosure (ie: can’t tell someone else about your
communications with your lawyer)
 Doesn’t matter if it’s only an initial consultation; and this includes attorney’s reps
o Crime-fraud exception: the privilege does not protect communications that are evidence of
furthering a future crime – if the client intends to commit crime or fraud; if communication with
lawyer is in furtherance of that intended crime or fraud. The exception applies even when the
attorney doesn’t know about the intent to commit crime or fraud or actively discourages it.
 2) Psychotherapist-Client Privilege
o Re: confidential communication between a patient and a psychotherapist, psychiatrist, social
workers, rape crisis counselor to obtain mental health care.
o Exception: patient poses a serious risk of harm that can be avoided only if the therapist discloses
confidential information
 3) Spousal Testimonial Privilege
o Goal: protect a marriage from the damage done by forcing one spouse to testify against the other
in a criminal case (no privilege in a civil case); allows a spouse to refuse to testify against the
other in a criminal proceeding or grand jury investigation.
o Harm: forcing one spouse to testify in a criminal case
o Doesn’t apply when: not forced so you can if you want, not married anymore so ex-spouses
can’t invoke this privilege and once the marriage ends, you can be compelled to testify, and in
civil proceedings
o Notes: it can be about anything – a communication, an observation, something that they learned
about their spouse that relates to something before the marriage.
 4) Marital Communications Privilege
o Goal: provide a zone of privacy for everything that married people communicate to one another
o Harm: breaking into zone of privacy created by marriage and revealing a communication
o Doesn’t apply when: it’s not a communication or it wasn’t communicated during the marriage.
o Covers confidential communications during the marriage and the privilege is held by both
spouses
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 o Applies to all stages of litigation – in both civil and criminal cases
o Presence of a third party almost always defeats the privilege because otherwise it’s not
confidential.
o Example: If Partner A and Partner B marry then divorce, and post-divorce, Partner A is called to
court to testify about a marital communication, Partner B must waive the privilege in order for
Partner A to testify about confidential marital communication (protection here even after the
marriage ends)
 General Notes:
o Privileges apply at all stages of litigation.
o Note: the intra-family crime and child abuse exceptions for spousal testimony and marital
communications.

VII. INTRODUCING AND ATTACKING EVIDENCE FROM A WITNESS

A. Basic Requirements for a Witness

 [RULE 601]: Competence
o Tricky Issues:
 Don’t confuse competence with bias – they are different things!
 [RULE 602]: Personal Knowledge
 [RULE 603]: Oath
 [RULE 701]: Opinion based on personal knowledge; helpful and not based on specialized knowledge

B. Judge’s Role in the Process of Eliciting Testimony from a Witness

 Control
o [RULE 611(a)]: Controls method of examining witnesses: FRE: the court should exercise
reasonable control over the mode and order of examining witnesses and presenting evidence so
as to: (1) make the process effective for determining truth; (2) avoid wasting time; (3) protect
witnesses from harassment or undue embarrassment
o [RULE 611(b)]: Controls scope of cross: FRE: cross-exam should not go beyond the subject
matter of the direct examination and matters affecting the witness’s credibility. The court may
allow inquiry into additional matters as if on direct-exam
o [RULE 614]: Can call witnesses (rarely occurs) or examine witnesses (often occurs) – scope and
type of questions
o [RULE 615]: Can exclude witnesses (or must exclude on request) except: parties, representative
of a corporate or organizational party, witness essential for preparation, person authorized by
statute to be present
 Limit
o [RULE 605]: Limit – Judges cannot serve as Witnesses at a trial

C. Lawyer’s Role in the Process of Eliciting Testimony from a Witness

 Examining a Witness
o [RULE 611(b)]: Cross-exam is limited to the scope of direct-exam and credibility. FRE: Cross-
exam should not go beyond the subject matter of the direct examination and matters affecting the
witness’s credibility. The court may allow inquiry into additional matters as if on direct
examination.
 NOTE: efforts to impeach are always within the scope of direct.
o [RULE 611(c)]: Leading questions: no on direct and yes on cross
 Not allowed on direct-exam except as necessary to develop witness’s testimony
 Allowed on cross
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  Allowed with adverse/hostile witnesses
o [RULE 612]: Using writing to refresh witness’s recollection: FRE: This rule gives an adverse
party certain options when a witness uses a writing to refresh memory: while testifying or before
testifying, if the court decides that justice requires the party to have those options.
 You can refresh a witness’s recollection if: the witness does not recall some of the facts;
and the witness says that seeing the refresher would refresh their recollection. At that
point the lawyer can show the witness the refresher  After looking at the refresher the
attorney will take the letter away and ask the witness is their memory is refreshed  and
if the witness says yes, the attorney will ask the original question again and the witness
will testify from their (now refreshed) memory (NOTE: their testimony is the evidence,
not the “memory jogger”).
 Summary of Steps:
o Witness says they can’t recall
o Identify “memory jogger” and ask witness if that might refresh
o Show memory jogger to opposing counsel
o Show memory jogger to witness
o Take memory jogger away
o Ask witness: “did that refresh your memory?”
o Ask witness to testify from memory
 Tricky Issues:
 If the evidence that is reaching the jury is the live, in-person testimony of the
witness –it is just that live, in-person testimony that has been refreshed so there’s
no hearsay issue.
 Special Rules for Objections/Requests
o [RULE 605]: Do not have to object to judge as witness to preserve a claim of error
o [RULE 614(c)]: Can wait to object to judge’s questioning of witness until out of the presence of
the jury
o [RULE 615]: Can request exclusion of witness from judge (unless it’s a witness that the judge is
not authorized to exclude)

D. Lay Testimony (RULE 601, RULE 602, RULE 603 & RULE 701) v. Expert Testimony (RULE 601,
RULE 603, RULE 702, RULE 703).
 [RULE 701]: FRE - Opinion Testimony by Lay Witnesses: testimony in the form of an opinion is
limited to one that is: (a) rationally based on the witness’s perception; 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.
o Tricky Issues: No requirement that a lay witness’s testimony be reasonable or rational (other
than general relevance requirement); there’s no overarching requirement that a witness’s
testimony be rationale – just when a witness gives an opinion, rather than a description of his/her
observations, that opinion has to be rationally based on the things the witness has perceived.
o Examples:
 Don’t be fooled by a lay witness testifying that someone was “sick” (different from
testifying about a particular disease) – this is based on life experience and one doesn’t
need specialized medical training to state this opinion.
 [RULE 702]: Qualifications of Expert Testimony
o FRE: 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:
 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 (helpful to trier of fact)
 the testimony is based on sufficient facts or data;
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  the testimony is the product of reliable principles and methods; AND
 the expert has reliably applied the principles and methods to the facts of the case.
 [RULE 702 & Daubert]: Reliability of Principles and Methods
o Rule 702 requires the subject of the expert’s testimony to be the “product of reliable principles
and methods.”
o The judge determines whether the testimony is reliable by applying the Daubert standard. The
ultimate question is: IS THIS METHOD RELIABLE? And the Daubert factors are factors for
consideration – not required elements (no one Daubert factor is dispositive)
 Whether the method has been tested
 Whether there is a known error rate (and what it is)
 Whether the method has been subject to peer-review and publication)
 Whether there are standards for the method; AND
 Whether the method is generally accepted in the relevant scientific community.

E. Impeaching (and Rehabilitating) a Witness

 Impeachment
o [RULE 607]: Any party can impeach a witness
o Notes:
 Only applies to testifying witnesses
 Rehabilitation has to match the attack, it happens only after an attack, and it’s done on re-
direct exam by the attorney who put the witness on the stand in the first place
 7 Tools of Impeachment
o 1) Ability to observe/perceive; ability to recall/remember; ability to communicate/narrate
(this is about accuracy)
 Tricky Issues:
 Extrinsic evidence can be admitted to prove defects in perception, memory,
capacity if it’s not collateral
o 2) Bias (this is about honesty)
 A party may always show that a witness (including an out-of-court declarant whose
statement is serving as testimony) was biased and can show bias by specific instances;
this is always a CORE issue, it’s never collateral.
 Tricky Issues:
 Extrinsic evidence can be admitted to prove bias so long as it’s not collateral
o 3) Contradictory evidence (this is about accuracy)
o 4) [RULE 613]: Witness’s Prior Statements
 Notes:
 Extrinsic evidence of a prior inconsistent statement is admissible for impeachment
purposes under RULE 613 if it relates to a core (not collateral because we don’t
want a mini-trial!) issue but if you use extrinsic evidence of a prior statement, the
witness must have an opportunity to explain or deny and an opponent must have
an opportunity to examine.
 May ask witness about prior statement without showing it to the witness but must
show statement to opposing counsel on request (but no need to do it in advance)
o 5) [RULE 608(b)]: Specific Instances of Truthfulness
 FRE Language: A witness’s character for truthfulness or untruthfulness: specific
instances of conduct – Except for a criminal conviction under Rule 609, extrinsic
evidence is not admissible to prove specific instances of a witness’s conduct in order to
attack or support the witness’s character for truthfulness. BUT the court may, on cross-
exam, allows them to be inquired into if they are probative of the character for

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 truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character
the witness being cross-examined has testified about.
 Tricky Issues
 Once a lawyer has completed cross-examination of a witness, he must be satisfied
with whatever he could bring out on cross-exam tending to show that the witness
lied on a collateral matter (ie: a matter not pertaining to the substantive issues in
the case). The lawyer may not introduce extrinsic evidence, another witness or
document to show that the first witness lied.
 One impeachment tool where extrinsic evidence is NOT allowed (even though
generally it can come in if it’s about a core issue)
 A WITNESS’S CHARACTER FOR TRUTHFULNESS CANNOT BE
IMPEACHED WITH EXTRINSIC EVIDENCE OF A PRIOR DISHONEST
ACT!!
o 6) [RULE 608(a)]: Reputation or Opinion Evidence about Truthful Character
 FRE: A witness’s credibility may be attacked or supported by testimony about the
witness’s reputation for having a character for truthfulness or untruthfulness, or by
testimony in the form of an opinion about that character. But evidence of truthful
character is admissible ONLY AFTER the witness’s character for truthfulness has been
attacked.
 Tricky Issues:
 Extrinsic evidence can be admitted to prove bad character for truthfulness through
reputation or opinion evidence (but not through specific instances of conduct)
 Can cross-exam on specifics but no extrinsic evidence of specifics
 Theoretical Note: When you introduce character evidence to support the
credibility propensity inference, you are limited to reputation and opinion, which
has a weak effect BUT when you introduce character evidence to support the
credibility propensity inference, your opponent can ask your witnesses about
specific instances that undermine their testimony, which has a powerful effect.
o 7) [RULE 609]: Propensity to Lie: Prior Convictions
 [RULE 609(a)(1)]: FRE: The following rules apply to attacking a witness’s character for
truthfulness by evidence of a criminal conviction for a crime that was punishable by
death or by imprisonment for more than one year (these are felony convictions), the
evidence: (A) must be admitted, subject to [RULE 403] in a civil case or in a criminal
case in which the witness is not a defendant (lower threshold here for evidence to come
in); AND (B) must be admitted in a criminal case in which the witness is a defendant, if
the probative value of the evidence outweighs (*not substantially, just regular outweighs
so higher threshold here) its prejudicial effect to that defendant.
 [RULE 609(a)(2)]: For any crime regardless of the punishment, the evidence must be
admitted if the court can readily determine that establishing the elements of the crime
required proving, or the witness’s admitting, a DISHONEST ACT or FALSE
STATEMENT (ie: forgery, counterfeiting, perjury, fraud, embezzlement – doesn’t matter
if it’s a misdemeanor or felony here)
 [RULE 609(b)]: Limit on Using Conviction Evidence after 10 years: If more than 10
years have passed since the witness’s conviction OR release from confinement for it
(whichever is later – *look at facts to see if math is required*), evidence of the conviction
is admissible ONLY if: its probative value, supported by specific facts and
circumstances, SUBSTANTIALLY OUTWEIGHS (*note: not just regular outweighs*)
its prejudicial effect AND the proponent gives an adverse party reasonable written notice
of the intent to use it so that the party has a fair opportunity to contest it.
 [RULE 609(c)]: Effect of a Pardon, Annulment, or Certificate of Rehabilitation
(FRE): Evidence of a conviction is not admissible if: the conviction has been the subject
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 of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based
on a finding that the person has been rehabilitated, and the person has not been convicted
of a later crime punishable by death, or by imprisonment for more than one year; OR the
conviction has been the subject of a pardon, annulment, or other equivalent procedures
based on a finding of innocence.
 [RULE 609(d)]: Juvenile Adjudications (FRE): Evidence of a juvenile adjudication is
admissible under this rule ONLY IF: it is offered in a criminal case, the adjudication was
of a witness other than the defendant; an adult’s conviction for that offense would be
admissible to attack the adult’s credibility; AND admitting the evidence in necessary to
fairly determine guilt or innocence.
 [RULE 609(e)]: Pendency of an Appeal (FRE): A conviction that satisfies this rule is
admissible even if an appeal is pending. Evidence of the pendency is also admissible.
 Tricky Issues:
 Extrinsic evidence can be used for Rule 609 so long as it complies with Rule 609
 Rehabilitation
 Intrinsic Evidence vs. Extrinsic Evidence

VIII. EXCEPTION #4: EXCLUDE PROPENSITY EVIDENCE

A. General Rule: Character Evidence to Show Propensity is Excluded

 [RULE 404(a)(1)] FRE: Evidence of a person’s character or character trait is not admissible to prove
that on a particular occasion the person acted in accordance with the character or trait (GENERAL BAN
ON CHARACTER EVIDENCE/PROPENSITY EVIDENCE)

B. Exceptions to the General Rule Excluding Character Evidence to Show Propensity

 Impeachment Rules: [RULE 607], [RULE 608], [RULE 609],
o [RULE 404(a)(3)]: FRE: Evidence of a witness’s character may be admitted under RULE 607,
RULE 608, and RULE 609.
o Note: Impeachment is another exception to the propensity ban.
 [RULE 404(a)(2)]: Mercy Rule and Prosecution’s right of response in CRIMINAL CASE
o [RULE 404(a)(2)(A)] – (FRE) MERCY RULE: Exception for a Defendant in a CRIMINAL
case – a defendant may offer evidence of the defendant’s pertinent trait (here’s the normally,
defendant’s have to “open the door” rule), and if the evidence is admitted, the prosecutor may
offer evidence to rebut it (with 405(a) reputation evidence and with 405(b) specific instances
evidence).
 [RULE 405(a)]: (FRE) Methods of Proving Character: When evidence of a person’s
character or character trait is admissible, it may be proved by testimony about the
person’s reputation or by testimony in the form of an opinion. On cross-exam of the
character witness, the court may allow an inquiry into specific instances of the person’s
conduct.
o [RULE 404(a)(2)(B)]: (FRE): A defendant may offer evidence of an alleged victim’s pertinent
trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; AND (ii)
offer evidence of the defendant’s same trait (the traits have the match)
 [RULE 405(a)]: (FRE) Methods of Proving Character: When evidence of a person’s
character or character trait is admissible, it may be proved by testimony about the
person’s reputation or by testimony in the form of an opinion. On cross-exam of the
character witness, the court may allow an inquiry into specific instances of the person’s
conduct.
o [RULE 404(a)(2)(C)]: In a HOMICIDE CASE, the prosecutor may offer evidence of the
alleged victim’s trait of peacefulness to rebut [ANY] evidence that the victim was the first

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 aggressor (MEANING in homicide cases, the defendant can “open the door” with any kind of
evidence but they still have to “open the door.”)
 BUT the prosecutor is still bound by RULE 405(a).
o NOTES:
 [RULE 404(a)(2)(A)] and [RULE 404(a)(2)(B)]: are alike but [RULE 404(a)(2)(C)]: is
something different only for homicide cases.
 The traits have to match and they must be pertinent (similar to the relevance standard)

C. Method of Introducing Character Evidence When an Exception to the General Rule Excluding
Character Evidence to Show Propensity Applies
 [RULE 405]:
o FRE: Methods of Proving Character: By Reputation or Opinion: When evidence of a person’s
character or character trait is admissible, it may be proved by testimony about the person’s
reputation or by testimony in the form of an opinion. On cross-exam of the character witness,
the court may allow an inquiry into relevant specific instances of the person’s conduct.
o Note: RULE 405 only limits RULE 404(a)(2) because RULE 404(a)(2) is a method of proving
CHARACTER/PROPENSITY EVIDENCE; RULE 405 does not limit RULE 404(b) because
these are NON-PROPENSITY reasons.

D. General Rule Excluding Character Evidence to Show Propensity Does Not Apply to these Non-
Propensity Uses (“look-alikes but it’s NOT character evidence”)
 [RULE 406]: Habit (FRE): Evidence of a persons habit or an organization’s routine practice may be
admitted to prove that on a particular occasion the person or organization acted in accordance with the
habit or routine practice. The court MAY admit this evidence regardless of whether it is corroborated or
whether there was an eyewitness.
o Habit is specific conduct in distinctive situations on a regular basis that lack moral overtones;
almost like automatic beahvior.
 [RULE 404(b)(2)]: To Support Conclusion other than Propensity – NON-PROPENSITY USES
o FRE: Evidence of a crime, wrong, or other act (these are specific instances not
character/propensity evidence) is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character (Exception
ahead!) BUT, this evidence MAY be admissible for another purpose SUCH AS (not exhaustive
list) proving: MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE,
IDENTITY, ABSENCE OF MISTAKE, OR LACK OF ACCIDENT. (MOPPIIKAA).
o 4 Steps in Consideration of 404(b) Evidence:
 Is the evidence relevant for a purpose other than the forbidden propensity inference?
 Is there “sufficient evidence to support a finding by the jury that the defendant
committed” the other act? [RULE 104(b)]
 Does the evidence survive 403 balancing?
 Limiting instruction

IX. EXCEPTION #5: EXCLUDE HEARSAY EVIDENCE

Steps for Potential Hearsay Questions:

 What is the statement? (What are the words inside the quotation marks?)
 Who made that statement? (Who is the declarant?)
 Is the declarant on the witness stand and subject to cross-examination? Is that person “unavailable”
within the meaning of RULE 804?
 Does the party introducing the statement need the statement to be true to make his/her point? Or is the
fact that statement was made enough to make her/his point?

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A. General Rule: Hearsay is Excluded

 [RULE 801] and [RULE 802]

o RULE: HEARSAY is an out of court statement that is offered to prove the truth of the matter
asserted.
o FRE: “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the
person INTENDED it as an assertion
 Assertion: something someone says or does in order to communicate a fact or opinion in
the hopes tor expectations that it will be accepted as true or accurate.w
 Directives and Questions are NOT assertions; a FACT that could be true or false needs to
be asserted in the statement.
 Mechanisms: Statements can come directly from a mechanism (ie: blowing a horn or
pushing a silent bank alarm button during a robbery) if the mechanism is operated by a
human and making a statement but a fully automatic process is not a statement (ie:
printout of receipt after payment).
 [RULE 805]: Applies to Hearsay within Hearsay

B. Exemptions from the General Rule Excluding Hearsay

[RULE 801(d)(1)]: Statements that are NOT Hearsay - Prior Statements by Declarant-Witness
o FRE Language:
 Statements that are not hearsay – a statement that meets the following conditions is not
hearsay: (1) a declarant witness’s prior statement – the declarant testifies and is subject to
cross-examination about the prior statement, and the statement: (A) is inconsistent with
the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition; (B) is consistent with the declarant’s testimony and
is offered to rebut an express or implied charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in so testifying; OR (C) identifies a
person as someone the declarant perceived earlier
 This rule covers:
 (A) PRIOR INCONSISTENT STATEMENT
 (B) PRIOR CONSISTENT STATEMENT; AND
 (C) PRIOR IDENTIFICATION
 [RULE 801(d)(1)(A)]: Prior Inconsistent Statement Requirements
 the declarant-witness is testifying and is subject to cross-exam about the prior
statement
 the statement is inconsistent with the declarant’s testimony
 and the statement was given under penalty of perjury
 statement was given “at a trial, hearing, or other proceeding or in a deposition.”
 [RULE 801(d)(1)(B)]: Prior Consistent Statement Requirements
 the declarant-witness is testifying and is subject to cross-exam about the prior
statement
 the prior statement is consistent with courtroom testimony
 offered to rebut charge of fabrication
 prior statement was made before motive to lie arose
 [RULE 801(d)(1)(C)]: Prior Identification Requirements
 the declarant-witness is testifying at trial and is subject to cross-exam
 prior statement was identification of person
o Tricky Issues:

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  Presently testifying witness requirement: “The declarant witness testifies and is subject to
cross-examination about a prior statement”: REMEMBER, the declarant must be
currently testifying for prior inconsistent statements, identifications, and prior consistent
statements  eliminate distractor answer choices by checking to see if the declarant is
currently testifying; if not, if the witness is unavailable for legit reasons, then this option
isn’t available!
 Prior Inconsistent Statement Notes:
 Even if a prior inconsistent statement doesn’t meet all the hearsay exemption
requirements, it will always be available, as a non-hearsay, for its non-substantive
purpose (ie: hair is red, then hair is brown) to impeach or to rehabilitate a witness
 Extrinsic evidence of a prior inconsistent statement is admissible as substantive
evidence if it satisfies the NOT-HEARSAY requirements of RULE 801(d)(1)(A).
 These statements are not being offered for the truth of the matter asserted; they are being
offered to impeach the witness which is why it’s not hearsay –it’s just offered to show
that the witness has said different things at different times.
 [RULE 801(d)(2)]: Statements by Opposing Parties
o FRE: The statement is offered against an opposing party and: (A) was made by the party in an
individual or representative capacity; (B) is one the party manifested that it adopted or believed
to be true; (C) was made by a person whom the party authorized to make a statement on the
subject; (D) was made by the party’s agent or employee on a matter within the scope of that
relationships and while it existed; OR (E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.
o Notes:
 WHO: made by a party
 WHEN: whenever
 WHAT: about whatever
 OFFERED BY: the other side
 Availability doesn’t matter
 Takeaway: super broad exception here – relatively easy to get the evidence in and the
content of the statement doesn’t matter (meaning it doesn’t have to be “bad or damaging”
evidence, it’s just being offered for the truth of the matter asserted.
 Applies to any statement by a party
 Statement does not have to be an admission
 Party’s availability is immaterial
 Does not have to be based on personal knowledge
 To “make a statement” means: adopted statements, silence as adoption (but look at
circumstances), statements of agents or employees, statements by authorized speakers
 Co-conspirators
 WHO: made by a coconspirator
 WHEN: during the course of a the conspiracy
 WHAT: and in furtherance of the conspiracy

C. NON-HEARSAY USES – ADMISSIBLE but not for the truth of the matter asserted
 Not offered to prove the truth of the matter asserted in the statement RATHER, offered to prove a non-
hearsay purpose (not exhaustive list but the common examples are:)
o Verbal acts or words with independent legal significance (ie: defamation)
o Effect of out of court statement on listener’s state of mind (ie: notice, motive, reason for acting a
certain way, etc.); circumstantial evidence of listener’s state of mind
o Evidence of declarant’s state of mind; circumstantial evidence of declarant’s state of mind
o Knowledge of speaker

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 o Prior Inconsistent Statement used to Impeach (RULE 613)
 NOTE: These are admissible so long as 401 and 403
 Not a statement
o There is no assertion if it’s a question, command, or directive
o If it’s not a declarant – not a human, purely machine-generated or mechanical; usually not photos
or videotapes

D. Exceptions to the General Rule Excluding Hearsay – THESE ARE HEARSAY BUT THEY COME IN

 Exceptions that apply whether the declarant is available OR unavailable

o [RULE 803(1)]: Present Sense Impression
 FRE: A statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it.
 Notes:
 Reliability justification of RULE 803(1) must be satisfied – statement should be
made “while or immediately thereafter” a declarant “perceived” something; ie:
even ten minutes gives people enough time to lie
 It’s a description and explanation of the event made while perceiving event or
immediately thereafter; limited to descriptions (no analysis)
 Timing matters and needs to be tighter for present sense impression in comparison
to excited utterance.
o [RULE 803(2)]: Excited Utterance
 FRE: A statement relating to a startling event or condition, made while the declarant was
under the stress of excitement that it caused.
 Notes:
 Timing matters
 Declarant spoke while excited by an event and the statement is related to the
startling event; includes anything that relates to the event (may include analysis)
o [RULE 803(3)]: Then-existing mental, emotional, or physical condition (State of Mind)
 FRE: A statement of the declarant’s then-existing state of mind (such as motive, intent,
or future plan) or emotional, sensory, or physical condition (such as mental feeling, pain,
or bodily health) BUT not including a statement of memory or belief to prove the fact
remembered or believed [unless it relates to the validity or terms of the declarant’s will].
 Notes:
 Includes statements about declarant’s own future plans: ie: “I’m going to Mexico”
 There’s debate about whether the state of mind exception admits statements about
declarant’s own future plans and future plans with others: ie: “I’m going to
Mexico with Bryan.”
 This exception allows in state of mind but not why – you can put in what you’re
feeling but not the explanation.
 Examples:
 “I am so happy living with you, mom. I love you very much” = then-existing
emotional condition.
o [RULE 803(4)]: Statement made for medical diagnosis or treatment (FRE):
 FRE: A statement that is made for, and is reasonably pertinent to, medical diagnosis or
treatment; AND describes medical history; past or present symptoms or sensations; their
inception; or their general cause.
 Summary Notes:
 Can be made to any person as long as was made to obtain medical diagnosis or
treatment; the purpose matters not the listener’s qualifications
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  Seeking actual medical help matters; calls to hotlines may not qualify
 Can be made by family/spouse of patient or someone with shared interest but a
stranger won’t qualify (but see 403)
 Does NOT cover statements by doctor (no special privileges for doctors)
 Can refer to events that are pat
 Excludes fault and claim (but includes cause – thin line)
 Includes statements made for psychiatric diagnoses or treatment
 Includes statements made for medical diagnosis or treatment for litigation (non-
sensical rule)
o [RULE 803(5)]: Recorded Recollection
 FRE: A record that: (a) is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately; (b) was made or adopted by the witness when
the matter was fresh in the witness’s memory; AND (c) the record must accurately
reflects the witness’s knowledge. IF admitted, the record may be read into evidence but
may be received as an exhibit only if offered by an adverse party.
 Summary of Steps:
 There has to be a record
 Witness once had personal knowledge
 Witness has forgotten
 Witness made or adopted that record
 Witness made or adopted the record when that matter was fresh
 Witness testifies that info accurately reflect knowledge at the time (when fresh)
 Tricky Issue: Don’t jump the gun - applying the doctrine of past recollection recorded
should only be used as a last resort if the refreshing document doesn’t, in fact, jog the
witness’s memory. 1st choice: un-refreshed memory of a witness  2nd choice: refreshed
memory of a witness  3rd choice: recorded recollection.
 Note: If admitted, the record may be read into evidence but may be received as an exhibit
ONLY is offered by an adverse party.
o [RULE 803(6)]: Records of a Regularly Conducted Activity (Business Records)
 Requirements
 A record of an act, event, condition, opinion, or diagnosis IF:
 The record was made at or near the time of the event
 The record was filled out by – or from information transmitted by – someone with
knowledge
 The record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit
 Making the record was a regular practice of that activity
 All these conditions are shown by the testimony of the custodian or another
qualified witness; AND
 Neither the source of information nor the method or circumstances of preparation
indicate a lack of trustworthiness
 Notes:
 Business records that look like they’re made only in anticipation of litigation then
they will be excluded for being un-trustworthy.
 Exceptions that ONLY APPLY when the declarant is UNAVAILABLE
o [RULE 804] UNAVAILABILITY
 Not testifying because asserted a privilege
 Not testifying because refuses to testify (despite court order)
 Not testifying because has absolutely no memory or key details (real or feigned)
 Not testifying because deceased or so ill (mentally or physically) that can’t testify

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  Not testifying because absent (and proponent has made reasonable efforts to secure
attendant or testimony)
 NOTE: If you are the reason the person is “unavailable” then you don’t get to use one of
the 804 exceptions to introduce hearsay that you want admitted.
o [RULE 804(b)(1)]: Former Testimony
 FRE: Testimony that was given as a witness at a trial, hearing, or lawful deposition,
whether given during the current proceeding or a different one; AND is now offered
against a party who had – or in a civil case, whose predecessor in interest had – an
opportunity and similar motive to develop it by direct, cross, or re-direct examination.
 Requirements:
 The declarant must be unavailable under RULE 804(a)(4)
 The declarant gave the testimony as a witness at a trial, hearing, or deposition
 The testimony is being offered against a party who had an opportunity and similar
motive to develop it by direct, cross, or re-direct.
o [RULE 804(b)(2)]: Dying Declarations:
 FRE: In a prosecution for homicide or in a civil case, a statement that the declarant,
while believing the declarant’s death to be imminent, made about is cause or
circumstances.
 Requirements:
 Declarant is unavailable under 804(a)(4)
 Exception can be used in a “prosecution for homicide or in a civil case”
 Declarant made the statement while believing that their death was imminent
 Must be statement about the cause or circumstances of the declarant’s death.
o [RULE 804(b)(3)]: Statements Against Interest
 Rules:
 Declarant is unavailable
 Statement was against interest
o 3 types:
 pecuniary or proprietary interest
 civil or criminal liability
 render a claim invalid
 *no reasonable person would have made the statement unless it
was true.
 At the time it was made
 Corroboration for statements against penal interested when offered in criminal
cases
o NOTE: judge decides whether corroboration suffices, wide range of
factors (look at book), reluctant to admit these statements.
o Tricky Issues for [RULE 804]:
 These hearsay exceptions DO require unavailability even though for the majority of
hearsay exceptions, unavailability is not required.

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