Evidence

all the information given to the trier of fact during trial

Oral Testimony
Real Evidence
Documents
Demonstrative Evidence
Stipulations
Circumstantial Evidence

Fact Witnesses
Expert Witnesses
Character Witnesses

People who perceived facts related to the lawsuit and testify about those facts

One who uses specialized knowledge to interpret eviddence or explain it to a jury

Offer information about the good/ bad character of a party or witness

Expert and Character

Any physical evidence that a party claims played a direct role in the controversy
(must be authenticated)

Must offer some proof that the piece of physcial evidence is what they (party) claims to be

Any types of writing or recording of information
(examples: emails, text, notes on a paper)

Evidence parties create after the disputed event to illustrate concepts or facts to the jury
(example: charts, graphs, powerpoints)

Where both parties agree on a fact: can take the fact as true for purposes of litigations

Fact is indisputable true
(example: Boston is in the state of Massachusetts)

If the media shows facts of the case as they unfold = real evidence
If the media is created after the disputed event = demonstrative evidence

Any evidence that requires the jury to make an inference connecting the evidence with a disputed fact

To seek truth that matters in the particular case
To protect the jury from misleading information
Limiting pointless repetitive evidence (eliminates unnecessary delay and promote efficiency)

Pretrial Motions
Jury Selection
Opening Statemments
Case-in-Chief ( Plaintiff/Prosecutor then Defendant)
Closing Statements
Jury Instructions
Jury Deliberation
Verdict

Motion in Limine
Motion to Suppress

focuses on whether or not information is admissible under Rules of Evidence
(can argue to be excluded or to be introduced)

Used to exclude or introduce evidence
Knowing ahead of time can help plan out trail strategy
Can stop jurors from jumping to conclusions (if done in front of them)
Can allow for more lengthy and sophisticated arguments

Party is claiming that the opponent's evidence is not admissible because it was obtained illegally (violates the D's 4th Amendment)

Party presents all their evidence

put on enough evidence so that a reasonable jury could believe that they have established their burden of proof/ prima facia case

make objections
cross-examine (allows leading questions)

In a Civil Case the D will move for judgment as a matter of law
In a Criminal Case the D will move for judgment of acquittal

Bring in evidence that disputes the facts (Try to convince the jury that the P/P evidence is inconveniencing )
Attack the credibility of the P/P witnesses

P/P can introduce new witnesses or evidence to rebut D's evidence, but only can rebut topics that were brought up by D

The ruling admits evidence(s), a party, on the record:
a. timely objects or moves to strike; and
b. states the specific ground, unless it was apparent from the context (example, objection, hearsy, leading)

Occurs before the evidence emereges fully

Occurs after evidence has already entered the record

Must object to evidence as soon as the grounds for objection is known or reasonably should be known (at the time of occurrence)

Timely manner
State specific ground

a party informs the court of its substance by an offer or proff, unless the substance was apparent for the context
(the atty must demonstrate what the evidence would say or be)

Once a court rules definitively on the record, a party need not renew an objection or offer of proof to preserve a claim of error for appeal

A court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means

Curative Instruction or a Limiting Instruction

Tells the jury to disregard evidence

Tells the jury that the evidence can ONLY be considered for X purpose but NOT for Y purpose (example can be considered for D1 but not for D2)

1. Abuse of discretion standards
2. Error must have affected a substantial right of the party

means that is would likely have changed the outcome of the case

take notice of a plain error affecting a substantial right

(1) clear and obvious under current law...
(2) affects [a party's] substantial rights; and
(3) would seriously affect the fairness, integrity or public reputation of judicial proceddings if left uncorrected ( "seriously affect..." is only needed to be shown if you fail to object in a timely manner (very hard to do)

it is admissible unless some other rule of evidence that says its not

(a) it has any tendency to make a fact more or less probable than it would be wihout the evidence; and
(b) the fact is of consequence in determining the action

to move the indicator slightly in one direction or another is relevant

fact itself must be related to the cause of action; a fact that matters to someone who is trying to decide the case

- goes directly to a legal element(s) to which the claim is making
- relates to how the parties say the events in dispute happen (time, place, facts about possible motives, who)
- facts that go to impeaching witnesses (character evidence)

a fact someone actually puts into the record to try and show a fact of consequence
(evidence goes to a fact of consequence; does not have to prove a fact of consequence)

No, if one party does not want to stipulate they do not have to. Which means it is still relevent and they can present it

irrelevent evidence sometimes becomes relevant to rebut claims made by another party

its probative value is substantially outweighted by a danger of one or more of the following:
- unfair prejudice
- confusing issues, misleading the jury
- undue delay, wasting time, or needlessly presenting cumulative evidence

(balancing test; judge discretion)

evidence that temps the jury to decide the case on grounds different from those the law demands

• Will the evidence arouse emotions or irrational prejudices
• Is it likely the jury will overvalue the evidence
• How strong is the connection between the evidence and the elements of the case
• Is there a way to get the concept into the minds of the juror in a way that is less prejudicial or confusing means (if alternative routes are available, the judge is less likely to admit the evidence)
• Whether it is possible to reduce prejudice or other harm from introducing the evidence

Courts will routinely admit if the government offers "reasonable support" linking the defendant's conduct and the charged crime

that evidence of the subsequent measures is not admissible to prove:
• Negligence
• Culpable conduct
• A defect in a product or its design; or
• A need for a warning or instruction
(basically liability or fault)

Yes, not exhaustive but for reasons such as
• Impeachment or
• If disputed—proving ownership, control, or the feasibility of precautionary measures (was it possible at the time to have done this better)

ones that occurred AFTER injury or harm

Rule 407 does not bar admission of SRM made by non-parties to the litigation

a party will dispute feasibility when they say although it (object) is dangerous, there was no feasiable way to remedy the probelm anyways

- when a witness makes a specific representation that conflicts with the subsequent remedial measure
- when a witness makes an absolute declaration like "the prodcut was perfectly safe"
- the witness making the statement was personally involved in implementing the remedial measure

either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement of 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
2. conduct or a statement made during compromise negotiations about the claim

• proving a witness’s bias or prejudice,
• negating a contention of undue delay, or
• proving an effort to obstruct a criminal investigation or prosecution

bars things that are said in settlement negotiations & is about protecting things in society that we want to protect (we want people to settle things)

neither party can admit any statement made AND you cannot admit things you even said during settlement negotiations

• be a disputed claim (one does not HAVE to file a claim to have a disputed claim)
• the statements or conduct must occur during “compromise negotiations” or while “compromising or attempting to compromise the claim

• to prove the validity or amount of a claim
• to disprove that validity or amount
• to impeach a witness’s testimony through a prior inconsistent statement or contradiction

• whether the state was unilateral or occurred during bilateral discussions
• whether either party made a concrete offer
• whether attorneys were involved in the discussions

is not admissible to prove liability for the injury

• A guilty plea that was later withdrawn;
• A nolo contendere "no contest" plea;
• A statement made during a proceeding if it led to a withdrawn guilty plea or nolo contendere (out of court and in court bargaining discussions)
• 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

• In any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
• In a criminal proceeding for perjury or false statement, if the defendant made the statement
o Under oath,
o On the record, and
o With counsel present

• The defendant displayed “an actual subjective expectation to negotiate a plea” and
• The expectation was “reasonable given the totality of the objective circumstances”

Yes, waiver is enforceable and this is because prosecutors have an incentive to end cases with plea deals

not admissible to prove whether the person acted negligently or otherwise wrongfully.
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

means you are ensured to pay damages to another person in certain ways

Courts are split some will allow the rule to apply to other types of insurance and some will only allow liability insurance

where A signs an agreement with B that says something like "hey if you're sued for a certain form of liability, we'll pay to reimburse you"

• Bias or prejudice
• Proving agency, ownership, or control
(Not exhaustive)

Every person is competent to be a witness unless these rules provide otherwise…

Compacity of Narration: being able to communicate to the jury
Understanding the importance of truth telling: really able distinguish between real and fantasy (young children or those with mental disability)
Compacity of memory: no recollection at all
Compacity of perception: if one does not see/ hear clearly or well does mean they are not competent

(one must completely lack one of the above to not be competent)

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue
• Presiding and being a factfinder is inconsistent with trying to prove facts

At the trial. A juror may not testify as a witness before the other jurors at the trial…
If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence

• When you suspect that a juror has had some improper contact with someone outside of the courtroom
Example: defendant put in restraints outside of courtroom but not in the courtroom (could place thoughts into juror’s mind)

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter…

things YOU heard, saw, felt, tasted, etc.
(speculation is NOT personal knowledge, example why do you think Chaffee punched you?)

you lack personal knowledge

laying the foundation, using questions like
o Where were you?
o Did you see anyone you know?
o How do you know them? How long have you known them?
o Do you know where X (place) is?
o Did you see A walking towards X (place)?

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience

(1) they are competent
(2) have personal knowledge
(3) take an oath or affirmation

1. Make those procedures effective for determining the truth;
2. Avoid wasting time; and
3. Protect witnesses from harassment or undue embarrassment

not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility

not be used on direct examination except as necessary to develop witness's testimony.
Ordinarily, the courts should allow leading questions:
1. On cross-examination; and
2. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party

any witness who is evading questions or is otherwise being uncooperative to such an extent that it is interfering with the eliciting of testimony

• to establish pedigree information (uncontested points; example you are the Chief Surgeon at St. Luke’s Hospital is that correct?)
• to help a witness who is hesitant, confused, or has trouble recalling (when witness is not getting what you are trying to get at)

1. Introduction of Witness
2. Laying the foundation (examples, establishing the witness knows who/ or where X and Y are)
3. Ask specific question in a non-leading way (example, did you see X that day?)

Another thing you can do on direct is try and anticipate what cross-examination will ask

• The factual description and topics that direct brought up
• Impeachment (your bias, your perception is bad, etc.)

• Elicit facts that you think may help your side (positive information out of witness)
• Show the limits of the testimony on direct (making clear what the limits are)
• Always can impeach in any way that the other rules allow you to

what, where, when, how, or who

isn't it true? (you are guiding the witness to the answer you want)

does the question (being asked) suggest a specific answer?

The attorney is drawing inferences or making conclusions that should be reserved for closing arguments

The attorney has already asked the question and the witness has already answered

These questions include a factual assertion that is imbedded into the question
(use this when a proper foundation has not been laid)

Cross-examination topic is beyond the scope of direct, OR redirect is beyond the scope of cross

The question is too broad; the witness will tell a story instead of answering a specific question

The question asks the witness what other people may have been thinking or what might have been happening beyond the realm of the witness’s perception

The question tries to elicit more than one fact at a time (confusing for the witness)

The lawyer is asking the same question repeatedly in different way, insulting the witness for no purpose, or arguing with the witness about their answer

The attorney is pretending to repeat testimony back to the witness as the basis for the next question, but is altering the testimony

The attorney is asking a question that suggest a specific answer

The attorney who asked the question can object to the witness’s answer as non-responsive, ask the judge to strike that answer, and force the witness to answer the question posed

The question does not give enough detail to allow the witness to respond properly OR a term in the question has an unclear meaning

Calling: Court may call a witness on its own or at a party's request (each party can CE)
Examining: Court may examine a witness regardless of who calls the witness
Objection: Party may object to the Courts calling or questions

Rule does not authorize excluding
a party who is a natural person
an officer or employee of a party that is not a natural person (a organization/ business)
a person whose presence a party shows to be essential to presenting the party's claims or defense (typically an expert)

- Must demonstrate that the witness's once knew but has now forgotten (witness must say I don't remember, not I don't know)
- After showing the document to the witness you must ask "did that help you remember" and the witness must say yes
(must also show document to opposing counsel)

1. while testifying; or
2. before testifying if the court decides that justice requires the party to have those options

1. have the writing produced at hearing
2. to inspect it
3. to cross-examine the witness about it; and
4. to introduce into evidence any portion that relates to the witness's testimony

The Court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record

Courts are split on this some allow, some do not

Any party, including the party that called the witness, may attack the witness's credibility
(this person said X but then said the opposite of X outside of the courtroom)

1. A party need not show it or disclose its contexts to the witness
2. But the party must, on request, show it or disclose its contexts to an adverse party's atty

1. if the witness is given an opportunity to explain or deny the statment and an adverse party is given an opportunity to examine the witness about it; or
2. if justice so requires (this one not on exam; how would we know thats why)

generally only for statements that occured before an event that allegedly changed the witness's testimony

Any evidence other than testimony from the witness currently on the stand
Showing a document
Calling another witness to talk about X
(cannot use to show PIS on a collateral matter)

Any testimony from the witness on the stand

Relevant solely because it is used to impeach the witness
Does not really have anything to do with the facts of the case

Proves a fact in consequence other than impeachment
Extrinsic evidence is allowed
(ex: who assaulted who?)

Evidence of a person's character or character trait is not admissible to prove on a particular occasion the person acted in accordance with the character or trait
(You can't use character evidence to show propensity)

Evidence of a witness's character may be admitted under Rules 607, 608, and 609

- Just because you've done this before does not mean you have done the issue that is in question
- We think it is too prejudicial

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-examination, allow them to inquired into if they are probative of the character for truthfulness or untruthfulness of
1. the witness

- you can ask about specific instances of a witness being untruthful in the past and try to establish witness has untruthful chracter
- can only happen on cross
- cannot use extrinsic evidence
- to be admissible the question/ act must be "probative of the witness's character for truthfulness or untruthfulness
- remember judge discretion

Judge has discretion to exclude questions when they will create an unfair prejudice that substantially outweighs the probative value

- murder
- drug use
- sexual proclivities
- driving over speed limit

a good faith belief is one that rest on some evidence, even if the evidence would not be admissible in court

1. Felony Convictions
2. Crime involving a dishonest act or false statement (any witness)

For a crime that, in the convicting jursidiction, was punishable by death or by imprisonment for more than one year, 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
(b) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs, its prejudical effect to that defendant

For any crime regardless of the punishment (includes misdemeanors), the evidence must be admitted if the court can readily determine that establishing elements of the crime required proving-- or the witness's admitting--- a dishonest act or false statment
a. the elements of the crime itself must includr dishonest (fraud, perjury, embezzlement)
b. 403 does not apply to this the courts must admitt

1. its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

- party seeking to use this evidence must give written notice to adverse party
- 10 years are counted from the conviction or release whichever is the last to happen (convicted then relased = count starts at release)
• Hardest evidence to get admissible
• Only admissible if probative value outweighs prejudice effect

609(b) bars evidence is the prejudice value is equal or exceeds probative value
609 (b) is harder to get evidence in under

1. the conviction has been the subject 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
2. the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence

(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence

punishable by death or by imprisonment for more than one year
(the defendant does not have to get more than one year just needs to be able to receive it so must be subject to it)

• Does the crime relate to truth telling at all
o The more it does relate the more it probative value it has
• The amount of time that has passed since the conviction
o The less amount of time that has passed is probably more probative
• How similar is the crime charged to the prior crime
o The more similar the higher the risk of unfair prejudice it has
• The risk that the defendant will forego testifying
• How central is this witness’s credibility to the case

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 chracter for truthfulness has been attacked

1. Start with laying a foundation (establish personal knowledge)
2. You can ask what their opinion is or what the persons reputation is. You can do this in 2 ways
a. What is your opinion of Mr.Smith regarding honesty and truthfulness?
b. Are you aware that Mr. S has a reputation in the community regarding honesty? What type of reputation does Mr. S have?

First, is to have a witness say X has a general character of untruthfulness
Second, cross-examine asked about past instances of dishonestly
Third, evidence under 609 prior felony crimes (which involved dishonesty

Evidence of a witness's religious beliefs or opinion is not admissible to attack or support the witness's credibility

• Hate crime or any type of discrimination case
• Motive
• Bias of a witness
• Religious exemptions
• Damages

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at the time, of any other part-- or any other writing or recorded statement -- that in fairness ought to be considered at the same time

1. Some allow you to get information in quickly so no one is confused
2. Some all you only once the door has been open to get stuff in that otherwise would have been inadmissible

403 to apply to physical objects, oral testimony, or pictures (things other than just writing and recorded statements)
611(a) which gives trial judge power to control the presentation of the evidence

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-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(1. Must lay foundation that the witness testifying knows the person whose character is at issue or knows the persons reputation. )

When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances (extrinsic evidence) of the person’s conduct. (must lay foundation for witnesses same as under rule 608(a)).

• Defamation cases
• Child Custody cases (child’s best interest)
• Criminal cases when the D claims entrapment (this one will not be on the exam)
• Negligent entrustment claims

Evidence of a person’s character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait

A. A defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

B. Subject to the limitations in Rule 412 (Rape Shield Law), a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
i. offer evidence (on same character trait of victim) to rebut it; and
ii. offer evidence of the defendant’s same trait; and

C. in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence brought by Δ saying that the victim was the first aggressor.

1. Prohibited Uses. Evidence of any other crime, wrong, or act 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 [propensity].

This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

(a) provide reasonable notice of any such evidence that the prosecutor intends to offer at trail, so that the defendant has a fair opportunity to meet it;
(b) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(c) do so in writing before trail—or in any form during trail if the court, for good cause, excuses lack of pretrial notice

1. Identity must be at issue, and (identity in dispute)
2. There must be a strong similarities between the charged and other crimes

I'm showing to demonstrate that his defendant had special access that most people didn't have to certain things and this access was a key part in the crime (key passcode for example)

Showing to prove that a defendant possessed the intent necessary to commit a crime • Defendant denies intent
• Showing Intent to sell drugs
o The amount of drugs found helps the more there is the more likely it was to sell
o Previous acts of selling drugs (courts have allowed this but of course can vary (split))

Show that one had specialized knowledge or skill that made it more likely they were the one that committed the act

Evidence necessary to complete the story

Evidence of a person’s 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 (can testify about your own habit, but not a strong).

specific, repeated responses to a particular situation or stimulus (so automatic that a person is likely to forget the specifics of a specific incident)
examples: everytime you get into a car the first thing you do is put your seatbelt one; everytime the Dr is getting ready to perform surgery he washes his hands

Tends to be morally neutral so there is less chance of unfair prejudice resulting from its admissions
Habit evidence has higher probative value than propensity evidence

i. The specificity of the conduct (more specific, more likely to be habit)
ii. The distinctiveness of the situation producing the conduct (more general is likely propensity)
iii. The regularity of the conduct (more regular/predictable is likely habit)

You can introduce standard operating procedures of corporations
Standard practice done thousands of times overtime
A company has established practices and have shown they really have done that over a period of time admissible evidence

1. evidence offered to prove that a victim engaged in other sexual behavior; or
2. evidence offered to prove a victim’s sexual predisposition.

a. Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
b. Evidence of a specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, (between the D and the alleged victim)
i. If offered by the defendant to prove consent or
ii. If offered by the prosecutor; and
c. Evidence whose exclusion would violate the defendant’s constitutional rights

In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger
• Of harm to any victim and
• Of unfair prejudice to any party
The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy
• Reversed 403 Test

• Defendants have the right to confront their accuser (have a right to make a defense)
• False accusations for sexual behavior are not sexual behavior (most common use of 412(b)(1)(c)
•Also, used to argue that the complainant made up a rape claim to protect an existing intimate relationship (Show Motive)

The Court may admit evidence that the defendant committed any other child-molestation. The evidence may be considered on any matter to which it is relevant
(This rule does not limit the admission or consideration of evidence under any other rule (do not override hearsay or privilege, or Rule 403))

Sexual Assault = physical force
Child-Molestation = child that is 14 or under

May admit evidence that the party committed any other sexual assault or child molestation (This rule does not limit the admission or consideration of evidence under any other rule (do not override hearsay or privilege, or Rule 403))

Federal rules of evidence

The person who made the statement (out-of-court statement)
1. all witnesses are declarants (must have personal knowledge)

Means a person’s oral assertion, written assertion, or nonverbal conduct/actions (nodding/pointing) if the person intended it as an assertion

Is an out-of-court statment being used for the truth of the matter asserted

a. Personal Knowledge/ beliefs of the speaker
b. Prior inconsistent statements – impeach (To impeach, it does not matter if statement is true).
c. Notice to listener (ex- nurse testifies that she heard doc explain risks of surgery)
d. Effect on the Listener- (ex to show a person has a reasonable belief an assailant had a weapon).
e. Legally binding statement
f. Publication – in a defamation suit

The declarant is a testifying witness and is subject to cross-examination about a prior statement, and the statement:
a. Is inconsistent with the declarant’s testimony and was given under penalty of perjury at trail, hearing, or other proceeding or in a deposition…
b. Is consistent with the declarant’s testimony and is offered:
I. To rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying; or
II. To rehabilitate the declarant’s credibility as a witness when attacked on another ground…
c. Identifies a person as someone the declarant perceived earlier

1. it is inconsistent with current testimony and
2. show that it was given under penalty of perjury, at trial, hearing, or deposition
a. this is a narrow rule
b. this rule is to help insure reliability

1. Statement(s) are offered to rebut an express or implied change, or
2. to rehabilitate credibility of witness when attacked
a. rational here, onnly bring up prio consisten statements when there is something that has attacked the witnesses trial credibility

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

a. must be describing an event that is happening right now or soon after the thing you are describing happened
b. normally a few seconds but never more than a few minutes (rare expections; example person saw crash and spent 8 minutes trying to find the closest payphone, judge may extend time admit this still)
c. rationale is not enough time to create lie
(can only be a description)

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused
a. declarant must speak while excited by the startling event (subjective standard), ex: ouch you just cut me)
b. rationale is that you won't be able to create a lie

Some judges may consider writings as "excited utterances" but they usually weigh against admission

• Is that it admits any statement “relating to” an event
• Relies on the declarant’s excitement rather than on the declarant’s descriptive focus
• One can be excited for a longer period than present sense impression
• Test is to ask, “are you still excited by what happened to you?”

A statement of the declarant’s then-existing
o State of mind (such as motive, intent, or plan) or
o Emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)

declarant was plannning, feeling, etc, AT the time
- admissible to say now but not yesterday or 3 hours ago
- state of mind examples; motive, intent, plan, idea

I am going to take a trip around the world (current plan= admissible)

Ex: I tell Michelle, “I am afraid of Jesse because he is acting like he’s going to kill me” – A day later, I am found dead (obviously cant testify)
1. Michelle can testify that I told her “I am afraid of Jesse” (admissible) because it was my current state of mind. But not why I was scared, because it isn’t a state of mind.

= NOT a state of mind and are not generally admissible because being used for the truth of the matter asserted

A statement that:
a. Is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
b. Describes
Medical history;
Past or present symptoms or sensations
Their inception; or their general cause

i. Statements made by family members, friends, stranger helping a patient obtain medical care are admissible if they meet the other criteria
ii. Statements by doctors to patients are not admissible under this rule
iii. Statements made by a patient to a family member or other nonprofessional in order to obtain care are admissible.
1. Ex: Telling your wife “I have a headache and I’m vomiting; I need to go to the doctor” is admissible because it was made for the purpose of securing medical care.
2. Note: A lawyer could argue that the statements of a family member (in certain cases, maybe domestic abuse) would be of low probative value and highly prejudicial.
iv. Statements made to a doctor to obtain a diagnosis for litigation are admissible, even if the patient has already been diagnosed and cured.

are admissible and relevant, but the doctor does not need to know who caused the illness or injury. But generally saying “I was hurt at work” is admissible.

are generally not admissible under this rule.
Exceptions -
1. Split JX- child abuse cases
a. Some Courts say that the identify of perpetrators in child abuse cases (fault) is relevant to medical treatment/diagnosis and is admissible.
b. Some courts will redact statement assigning blame
2. Split JX – domestic abuse
a. Some courts say that the identify of perpetrators in domestic abuse is relevant to medical treatment/diagnosis and is admissible.
b. Some courts will redact statement assigning blame

A record (writing, videotape, other media) that:
a. Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (must lay foundation that witness doesn't remeber)
b. Was made or adopted by the witness when the matter was fresh in the witness’s memory; and
c. Accurately reflects the witness’s knowledge
If admitted, the record may read into evidence but may be received as an exhibit only if offered by an adverse party

• The offering party cannot introduce this document into evidence
• Because we (rules) want to make it clear that the witness does not remember
• Why would the other party want it into evidence?
o Its sketchy. Example the numbers he wrote down are smudge so like weird.

The information is fresh in their memory. No time requirement just have to show that when you recorded information it was fresh

a. The record was made at or near the time by—or from information transmitted by—someone with knowledge;
b. the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit
c. making the record was a regular practice of that activity;
d. all these conditions are shown by the testimony of the custodian or another qualified witness, or by a … (he is not testing us about certification)
e. the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

A person with personal knowledge of the data
Or
A person who received the data from someone else in the organization who had personal knowledge

rule applies to any business, organization, occupation, or calling whether or not for profit (even individuals)

1. the record was kept in the course of a regularly conducted business activity
2. the record was made as part of a regular practice; and
3. the record was made by someone with personal knowledge of the recorded information or from information transmitted by a person with that personal knowledge

The other side (the one not introducing the record) has the opportunity to say that the document is not trustworthy
example: records that are kept in preparation for litigation, OR
even records that keep record of injuries that happen at their property (even if this is normally done after every injury it still is normally not allowed because it doesn’t have the same reliability other records have) Not as trustworthy

a. it sets out:
I. the office’s activities
II. a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or
III. in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
b. the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness
(Does not matter whether the declarant is available or not)

Excludes information that a 3rd parties observe and report to agencies
Excluding a matter observed by law enforcement used against a defendant in a criminal trial (This only excludes subjective matters observed (analyzing a crime scene), not objective “ministerial” matters)(deportation warrant) or
1.Split JX
a. Maj- courts allow Defendants to use introduce police reports but not prosecutors
b. Min - neither party to use them

i. Results of government investigations are not admissible against a defendant in a criminal case. (Ex- social worker report of family home after father is arrested for child abuse)
ii. Courts have interpreted “factual findings” to all statements in a report -including opinions, conclusions and underlying fact used or made by the investigator.
1. An investigatory can rely on 3rd party witness statements to make conclusions and not cause a hearsay within hearsay problem
a. Ex “I relied on data and testimony of witnesses to make this conclusion”.
2. But if the investigator simply restates the statements of third parties, a hearsay within hearsay issue arises, and those statements can only be admitted if they meet another exception.
iii. Investigator must have been legally authorized to conduct investigation

1. The timeliness of the investigation
2. The special skill or experience of the official conducting the investigation
3. Whether a hearing was held by the public agency prior to the report being made; and
4. Whether the motivation of the public agency is suspect
1. Ex - whether the report was made in anticipation of litigation by a public agency that has a stake in the litigation
2. Courts might allow internal investigations (not necessarily biased), if they are timely, or conducted by qualified officials, or where there is a hearing.
a. Good advocacy comes into play here!

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule
1. Make sure that each statement is being used to prove the truth of the Matter Asserted (Hearsay).
2. If so, make sure that each statement has a hearsay exception

Ex: 1. Harry says to Dale – “Call an ambulance, I was stabbed in the stomach!” 2. Dale, in an excited state calls 911 – “My friend said he was stabbed in the stomach and needs an ambulance.” 3. The 911 operator is called to testify about dales statement (likely because he does not want to testify). This is admissible because:
a. Harry’s statement is admissible as a Statements Made for Medical Diagnosis or Treatment under rule 803(4).
b. An Dales statement is admissible as an excited utterance under rule 803.

A declarant is unavailable as a witness if the declarant:
1. is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
2. refuses to testify about the subject matter despite a court order to do so;
3. testifies to not remembering the subject matter;
4. cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
5. is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure
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

1. privilege applies
2. declarant refuses to testify
a. witness’s sometimes just refuse to testify why do they do that?
i.sometimes the witness thinks a privilege applies (even though it does not) or maybe they think there should be a privilege not to testify
3. testifies to not remember the subject matter
a. if you say you do not have any memory at all they you are unavailable to testify
b. This is when you refresh memory, and they still say no then unavailable
c. THEY REALLY have to say that they don’t remember this issue AT ALL
4. cannot be present at the trail because of death / physical or mental illness
a. how bad does the physical or mental illness have to be to be
b. if and only if you have physical or mental illness that is so disabling that you cannot come to court to testify and that the declarant will not recover within a reasonable time
5. absent from trial/ hearing and cannot be reached
a. can’t find declarant or outside of the jurisdiction
i. can make unavailable
b. you have to try and use means to try and get the declarant to testify that is beyond the means of just asking can you come to court?
i. example flying out to get the declarants deposition
ii. or offering to pay for everything of them so they can come

The one who is trying to get the statement in

NOT, will NOT apply if the declarant is wrongfully unavailable (aka the person wanting to use the statement told them to not come or did something for them to do show)

• can call them to the stand and they invoke the privilege on the stand
• sometimes in some criminal cases, self-incriminating privilege is very obvious so the judge just says they are unavailable

Death (show death certificate)
Illness get live testimony from caretaker/ dr or get documents
How to show they won’t get better in a reasonable time
- have to show evidence that they won’t get better soon

Show documents that you tried
o Write them letter
o offered to take deposition
o hire private investigator to try and find them
Must use reasonable means to procure declarant and show good faith/ genuine effort

a. was given as a witness at a trail, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
b. 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 redirect examination

1. must have been given at trial hearing and deposition
2. rule does not require it be used for the same lawsuit
a. testimony from other lawsuits can be introduced but will be harder to get in
3. the opposing party must have had an opportunity to cross-examine/ question the witness
a. in civil cases, just has to be a predecessor in interest of the party
b. criminal cases must literally be the SAME party

just needs to be someone who would have had the same motive/ interest

MUST be the same party
• criminal defendants have heightened rights
• it would be improper for a criminal defendant to rely on anyone else’s cross-exam

• you are going to be asking on cross the same kind of questions that were asked in during cross in the previous case
• Ask how similar were the legal issues and what was the purpose of the testimony

• all you need to prove is that you had the opportunity to cross
• If a party didn’t do cross even though they had the opportunity that normally doesn’t show that one is a predecessor in interest
o would be hard to say someone is a predecessor in interest when they did no cross

Statement Under the Belief of Imminent Death. In a prosecution for homicide or civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause of circumstances
a. The declarant MUST be unavailable (declarant doesn’t actually have to die, so statements can be admissible still after “miraculous recoveries,” but they must be otherwise unavailable)

Party introducing must prove by a preponderance of the evidence- Courts look to:
a. Statements by declarant (“please save me, I’m dying”)
b. Statements made by medical personnel and others to the declarant (“you’re going to die son”)
c. The nature and extent of the wounds or illness
d. The length of time between the statement and the declarant’s death
e. The opinion of medical personnel who treated the declarant about the declarant’s health

Admits statements when (1) declarant is unavailable and that
A. The statement (2) when made (3) is so contrary to the declarants’ interests (4) that a reasonable person in declarants’ position (objective standard) would have made it only if the statement were true. And, if offered in a (4) criminal case (5) as one that tends to expose the declarant to criminal liability, the (6) statements AND (7) declarant’s (8) trustworthiness (9) MUST be supported by corroborating circumstances that clearly indicate its trustworthiness.

i. Against the declarants proprietary (ownership) or pecuniary (monetary) interest
1. These interests include statements that subject the speaker to criminal or civil liability, or extinguish a legal claim held by the declarant
ii. Rendered invalid a claim against another person
iii. Exposed the declarant to civil or criminal liability (inculpatory statements)

i. Whether the declarant had pled guilty before making the statement or was still exposed to prosecution (that is, how far against the declarants interest the statement was at the time it was made);
ii. The declarant’s motive in making the statement and whether there was a reason for the declarant to lie
iii. Whether the declarant repeated the statement and did so consistently
iv. The party or parties to whom the statements were made
v. The relationship of the declarant with the accused; and
vi. The nature and strength of independent evidence relevant to the conduct in question

i. Statements admitting some wrongdoing but minimizing guilt (accused of intentional act but saying it was an “accident”) is not “so contrary” to declarants’ interest because it would actually help them.
ii. Statements made admitting guilt and implicating another, while made in custody may be motivated by a desire to curry favor with authorities and may fail to satisfy the “against their own interest” prong
1. But if a person admits guilt but shifts blame to another, courts can redact the latter half of the statement.
a. But this may be hard to do when a statement an minimizing statement are too intertwined. Ex: “Bonnie and I robbed a bank together”

(1) when declarant is unavailable, out of court statements are available when (2) the statement is offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarants unavailability as a witness, and (3) the opposing party did so intend for the witness to be unavailable. (Intent)

Wrongdoing does not have to be a criminal act, but must be improper in some way: This includes –
i. Coercion, undue influence, or pressure to silence testimony and impede the truth-finding functions of trial.
ii. Intimidating a “potential witness” qualifies as well, as long as there was intent.
Ex: Threatening witness to not testify, intimidating a witness

Key is here that courts read acquiesced broadly
• But mostly brought up in conspiracy cases
• If one member does something to make declarant unavailable then can be used against everyone in the conspiracy
• The other members do not even have to know about the wrongdoing conduct just because they are a member of the conspiracy
• Also, if you know about it and don’t say anything or inform officers then you acquiesce in the wrongful conduct

Courts have interpreted this broadly – A party only needs to show that the opposing party “was motivated in part by a desire to silence the witness.” Can have multiple motivations.
Also can intimate someone before a case has been filed

NOT hearsay
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 part’s agent or employee on a matter within the scope of that relationship and while it existed

If you sign a document that says you agree to what the document says is true, then it counts as your statement which means it can be introduced in a suit through hearsay exceptions

1. Individual’s silence can constitute an adoptive admission, but the circumstances must be such that a reasonable person would speak up rather than remain silent
2. If you are in a public place and someone says something/ ask you and you don’t say something the court says that when one is in a public place and remains silence most of the time it is not an adoption

• Agent is someone authorized to act for a party on a particular matter;
• Anything that the agent said (who you authorized to speak for you) then their statement becomes yours
Example: attorneys are agents of their clients

People can be authorized to speak on your behalf for maybe just one topic/ purpose
ex: you ask someone to provide a reference for you, you are authorizing them to speak for you so what they say could come in through this exception

Statement made by D1 can only be used against D1 assuming the defendents are not coconspirators)
Prosecutor can
a. try the D's seperate
b. redact the information
c. not use the statement at all

was made by the party's conconspirator during and in furtherance of the conspiracy

“declarant and defendant must have agreed to use their joint efforts in some way to reach a common goal”
(conspiracy is veiwed broadly here)

Cannot use stmts from BEFORE conspiracy begins or AFTER conspiracy ends MUST be made during the course of conspiracy
1. Look for when detained by police and questioning – cant happen, conspiracy has ended
2. BUT IF: the conspiracy is still ongoing by someone, and another is detained – conspiracy is STILL ONGOING and okay!

• Typically, courts have held that an arrest almost always end a conspiracy
• Post-arrest statements are, therefore, usually not admissible against coconspirators under this rule

If you are working together to conceal (cover up) the crime
a. Then the conspiracy is still active, and statements made by one conspirator during the cover-up are admissible against all members of the conspiracy

A. Statements made IN conspiracy not enough – must be in FURTHERANCE of conspiracy
1. Attempt to further – statement does not have to have to further
2. Confessions and boasts to people outside of the conspiracy

Split
Maj: courts allow introduction of statements made by parties on the same side of litigation (Plaintiff against co-plaintiff or defendant against co-defendant)
Min: courts only allow introduction of statements against the opposing party (plaintiff against defendant vice versa).

The confrontation clause of the 6th amendment restricts admission of (1) hearsay when (2) declarant is not available to testify; and, the statement is offered against a (3) criminal defendant, and the statement is (4) testimonial

Statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” or statements have “a primary purpose of creating an out-of-court substitute for trial testimony”
Ex: Victim giving a sworn stmt describing a crime (similar to what a witness was testify ab)

6th amendment in civil case IS NOT A THING, only for criminal cases
• Is there hearsay?
• If the hearsay admissible then is the statement testimonial?
• If it is testimonial is the declarant unavailable?
• If yes and the former testimony exception does not apply, then
• 6th amendment bars the evidence

each criminal defendant the right to be confronted with the witnesses against him

i. The defendant had a chance to cross-examine the declarant at trial, or
ii. The defendant had a prior opportunity to cross-examine the declarant on the statement.
1. To satisfy 6th Amendment, defendant must have had similar motives to cross-examine at prior proceeding. (diff motives in q’ing in a suppression hearing than in a full trial on entire issue)
Examples Where no Cross is available - Defense has no right to cross examine statements made to a grand jury or when statements are made to police officers.

1. All formal statements made during litigation
2. All statements made to law enforcement personnel
3. All statements made to law enforcement agents in emergency situations; however, not testimonial if made for purpose of aiding the victim, securing agents safety, or otherwise ending the emergency.

1. The prosecutor may introduce nontestimonial hearsay as long as those statements comply with the hearsay rules. The 6th Amdmt does not limit the admission of nontestimonial hearsay.
2. The prosecutor may introduce testimonial hearsay if the statements comply with the hearsay rules, and the declarant is available as a witness. Under those circumstances, the defendant has a chance to cross-examine the declarant about the prior testimonial statement.
3. If the hearsay is testimonial and the declarant is unavailable at trial, the prosecutor may offer the stmt only if the declarant had prior opportunity to cross examine the declarant

1. Out of court statements offered for a purpose other than the truth of the matter asserted
2. Statements that satisfy party opponent exemption
3. Most statements made among private parties

a. PSI/EU (when said to law enforcement, not private parties)
b. Then-Existing Mental, Emotional, or Physical Condition (when said to law enforcement, not private parties)
c. Public Records (Rue 803(16) already restricts use against crim defendants)
d. Statements Against Interests (when said to government agents, not private parties)

Allows a court to take judicial notice on adjudicative facts that are not subject to “reasonable dispute.”
The Fact must be one that is:
1. Adjudicative = helps prove the elements of a specifically happened in a specific case; and, (Ex: How fast was a car going? What injury does the party have?)
2. Indisputable = Not subject to “reasonable dispute” because it is either
a. generally known in the court’s territorial jurisdiction; or,
b. can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

a. facts that are known by members of a particular religion, occupation, or other group do not qualify as generally known
b. Known in courts JX- facts about hurricanes may be known in Florida but not Ohio
Ex: that Canada is a country is generally known in most JX.

i. A judge can take JN of the holding of a judgement under this provision (but not the facts underlying the judgement).
Ex: The lyrics to Canadas national anthem can be accurately and readily verified from an accurate source.
Ex: Prices, interest rates, distances between cities are not generally known, but can be quickly proven.
ii. Here, parties can prove facts that are only well known in a particular occupation, religion, or other subgroup.

1. may take judicial notice on its own; or
2. must take judicial notice if any party requests it and the court is supplied with the necessary information
(can happen at ANY time during a proceeding (even on appeal)

i. The fact is subject to reasonable dispute; or
ii. The fact is not generally known in the court’s territorial jurisdiction; or, Cannot be accurately and readily determined from a reliable source that cannot be reasonably questioned (this source does not have to be admissible)

On timey request, a party is entitled to be heard on the propriety of taking JN and the nature of the fact to be noticed, even if the court has already taken JN, the party is still entitled to be heard if they want to challenge the JN

1. In a civil case, the court MUST instruct the jury to accept the noticed fact as conclusive.
2. In a criminal trial, the court MUST instruct the jury that it may or may not accept the noticed fact as conclusive.

Yes, Judges may always take JN on legislative facts

Policy underlying the law in general

1. In a civil case, the court MUST instruct the jury to accept the stipulated fact as conclusive.
2. In a criminal trial, the court MUST instruct the jury that it may or may not accept the stipulated fact as conclusive.

Ask the Judge to take judical notice

1. Is the evidence reliable, both in its underlying principles and its appllication to the case? (is this a reliable field)
2. Does the evidence "fit" the case and help the trier of fact understand the evidence to determine a fact in issue? (harder to establish fit than relevance)
3. Even if the evidence satisfies the above requirements, does the danger of unfair prejudice, confusion, or misleading the jury substantially outweigh the probative value?

a. Whether the theory or technique has been tested
b. Whether it has been subject to peer review and publication
c. The techniques error rate
d. The existence of standards controlling the techniques application
e. Whether the theory or technique has been generally accepted in the relevant scientific community
f. Another factor a judge may use: whether the expert used an approach specifically created for litigation (was this method used outside of litigation or not?)

Sufficient facts or data

The expert has to reliably apply their principles and methods to the facts of the case

Can give an opinion if:
1. Based on their own perceptions
2. Helpful to clearly understand the witness’s testimony
3. Not based on scientific, technical, or other specialized knowledge

First – Attorney must show witness is an expert by demonstrating that the witness has specialized knowledge, skill, experience, training, or education in the specific area determined to be acceptable and that it will be a good fit (laying foundation)
Second – Opposing party has a chance to “voir dire” the expert, to ask questions that can test/diminish their expertise in the eyes of the jury (show limits of experts (witness) qualifications)
Last – Judge decides whether to certify the witness as an expert (very lenient standard) (experts (witness's qualifications can limit extent of testimony)
(Parties can stipulate that a person is an expert)

if experts in that field reasonably rely upon that type of information.
a. A judge may reject expert testimony that relies on unreasonable (untrustworthy, flaws in studies, etc.) data that other experts do not use.

1. This is done by eliciting testimony from the witness regarding the basis of the witnesses experience.
2. Formal education is not required – some develop specialized knowledge in other ways (artist, mechanic, photographer, etc.)
3. This is flexible

Experts can testify
a. About facts they heard from other testimony
b. Facts obtained by 3rd parties – lab results etc.
c. Evidence provided by lay people – witness, family, etc.
d. In response to hypothetical questions (usually with an opinion)
i. Hypothetical questions cannot assume facts that are not in evidence.
ii. Hypotheticals cannot be super long or confusing – a judge may find these argumentative, confusing to the jury, or failing to elicit testimony “helping the trier of fact”

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. (Can give opinion based on inadmissible facts or data)

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. Or Rule 705 – opponent can ask on cross examination.

recounting all the underlying facts or data supporting the opinion.
1. Attorneys rarely just elicit an opinion without support, but allowing a bare conclusion first captures the jury’s attention when they solicit the supporting facts and data.

an expert cannot disclose inadmissible evidence as a basis for an opinion.

One - (Rule 703) Can disclose to jury if the evidence’s probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. (Argue that fact is necessary for jury to understand).
1. Reverse 403 Balancing Test- Requires a strong showing on probative value or in other terms a minimal effect of prejudice.
2. This allows the jury to use the inadmissible hearsay to evaluate whether the expert’s opinion is correct or reasonable, not to prove the truth of the matter asserted in the inadmissible. (Judge will give limiting instruction)
Two – Opposing party asks the witness to divulge the inadmissible basis on cross-examination.

and give reasons for it – without first testifying to the underlying facts or data.
But, the expert may be forced to provide the facts and data on cross-examination. (even if inadmissible)

First, if the expert’s testimony requires knowledge of other trial testimony, the expert may remain in the courtroom even if the judge excludes other witnesses under Rule 615.
Second, experts can give more than opinions: They can give conclusions based on their specialized training or experience.
Third, Experts – unlike lay witnesses – do not have to base their opinions exclusively on personal observations.
1. They can rely on data, hearsay evidence, and other evidence that is not admissible in court.
2. In some circumstances, an expert can even reveal inadmissible evidence to the jury.

in all steps, including discovery, pre-trial, and grand jury, even though rules of evidence do not

any of the following provides otherwise:
1. The United States Constitution
2. A federal statute; or
3. Rules prescribed by the Supreme Court

a claim or defense for which state law supplies the rule of decision (Diversity cases).
1. Privileges are not codified, but left to CL development in courts. Why? Too ControversIal for Congress.
2. This rule parallels 601 which directs courts to determine a witness’s competence under state law whenever witness testifies with respect to a matter based on that law.

1. guaranteed by 5th Amend.
2. Applies in civil and criminal cases
3. Protects individual against coercive investigation
4. Shields privilege holder during pretrial discovery and trial
a. Applies only to testimony that might subject person to criminal liability
i. If it potentially exposes you to civil liability, 5th amendment doesn’t apply (testifying that you negligently hurt someone (civil liability))

Spousal Testimonial Privilege
Confidential Communications

allows one spouse to refuse to testify against the other in a criminal proceeding or grand jury investigation
i. Shields almost any info spouse might offer, not restricted to confidential communications
ii. Only during life of marriage, not divorces

1. Applies in civil and criminal cases
i. Survives the end of the marriage, broader
ii. Only protects confidential communications spouses share during the marriage, not discussions before the marriage, non-confidential statements during marriage, conduct the spouse observed during marriage
2. But there are exceptions for cases involving intra-family disputes like child abuse, domestic violence, tort claims against spouse

a. Inc. communications between -ologist, -chiatrist, social worker as long as they were made to obtain psych treatment.
b. Most courts hold narrow exception for cases when patient poses serious risk of harm avoided only by therapist disclosing the info.

Protects certain advice given to high-level govt decision makers

Father Tom/ Paster cannot saying anything

1. Who holds the privilege? Who can assert/waive it?
2. When does the privilege apply? All proceedings or just under certain circumstances?
3. What does the privilege cover? Only certain communication/info between certain people? (Scope, baby, the scope)
4. How strong is the privilege? Some are absolute (opponent can’t overcome), some are qualified (opponent can pierce by making a specific showing). Even if absolute, does an exception apply?

does not hear it, He determines whether the privilege exists by looking at facts of asserted relationship, claims of waiver, similar matters

1. Narrow - only when spouse is a criminal defendant or target of grand jury investigation
2. Spouse may refuse to testify against D/target spouse
3. Does not apply in civil proceedings
4. Promotes marriage, privacy
5. Only applies during the life of the marriage.
a. After divorce privilege no longer exists
6. Applies to info obtained before the marriage
7. Shields any info that one spouse might offer against the other.

witness spouse controls the privilege. May waive it and choose to testify against their spouse

no privilege if govt suspects spouse of committing crime against other spouse or child, or joint crime (husband and wife crime)