QUICKSHEET – EVIDENCE

GENERAL PROVISIONS

1) Rulings on Evidence
a) Where a ruling admits evidence, must make timely and specific objection to preserve issue for appeal
i) If answer has already been heard, motion to strike is required
ii) A general objection (“I object”) is insufficient to preserve the issue for appeal
b) Where a ruling excludes evidence, an offer of proof is required unless the substance of the evidence
was apparent from the context
i) If the error is not prejudicial to the outcome, the harmless-error rule applies
(1) Harmless error = the jury would have reached the same verdict even if the error did not
occur; no substantial rights are affected
ii) If no objection was made and the evidence was admitted, reversal will occur only if plain error is found
(1) Plain error = an error that affects a substantial right of a party, or a serious mistake that
affects the verdict (i.e., prejudicial, reversible error)

2) Preliminary Facts
a) Judge determines admissibility; jury assigns the weight (preponderance of the evidence)
b) Conditional relevancy
i) Admissibility of one item of evidence conditioned upon relevancy other evidence (judge deter-
mines whether enough evidence exists to find that necessary fact)
c) Limited admissibility
i) If evidence is admitted for one purpose but inadmissible for another, the court must restrict
the evidence to its proper scope and instruct the jury accordingly (counsel must request the
instruction)
d) Testifying on a preliminary matter doesn’t waive 5th Amendment privilege against self-incrimination as
to other issues
i) Cross-examination is limited to the scope of the preliminary issue(s)

3) Remainder of Related Writings or Recorded Statements

a) Rule of completeness: Where one party introduces part of a writing/recording (doesn’t apply to conver-
sations), the adverse party may immediately introduce other writing that fairly ought to be considered
in conjunction with it

JUDICIAL NOTICE

1) Judicial notice is a substitute for proof where the court accepts facts as true without requiring formal presen-
tation of evidence

2) Two types:
a) Commonly known facts
i) Facts that are not subject to reasonable dispute; generally known within the jurisdiction of the
court
b) Facts that are capable of accurate and ready determination by resort to sources of unquestionable
accuracy
i) i.e., accuracy of radar; blood tests; DNA; historical records; prevailing interest/mortgage rates

3) Judicial notice is mandatory if: requested by a party; and supplied with the necessary information

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4) Effect of a jury instruction on judicial notice **HIGHLY TESTED**

a) Civil jury: must accept the fact as true
b) Criminal jury: may accept the fact as true

PRESUMPTIONS

1) Burden of production = who must produce evidence

a) Burden of going forward/producing evidence is on the plaintiff in a civil case; prosecution in a crim-
inal case

2) Burden of persuasion = how much evidence must be produced

a) Three levels of burden of persuasion:
i) Preponderance of the evidence
(1) Traditional civil standard; used in some aspects of criminal cases (motion to suppress;
voluntariness of confession)
ii) Clear and convincing
(1) Criminally related civil actions (fraud, validity of deed/will); to determine insanity in federal
court, burden on D
iii) Beyond a reasonable doubt
(1) Criminal standard in guilt phase of trail

3) Burden of proof
a) Two main ways to shift a burden of production:
i) Affirmative defenses (i.e., statute of limitations; Rule 12(b)(6); self-defense; laches)
ii) Presumptions (generally, not allowed in criminal cases)
(1) Presumption = conclusion made regarding the existence of a fact that may be drawn from
other evidence that is admitted and proven to be true
(2) Most presumptions are rebuttable, but some presumptons are made irrebutable by statute
or common law

RELEVANCY AND ITS LIMITS

1) “Relevant evidence” tends to make the existence of any fact more or less probable than it would be without
the evidence
a) Logical relevance = has some probative value, has some logical tendency to prove or disprove a fact
of consequence
b) Legal relevance = evidence must be “helpful” in deciding the case

2) Excluding Relevant Evidence (Rule 403 balancing test)

a) If the probative value of the evidence is substantially outweighed by: (1) the danger of unfair prejudice;
(2) confusion of the issues; (3) misleading the jury; (4) undue delay; (5) waste of time; or (6) needless
presentation of cumulative evidence

3) Character Evidence
a) “Character evidence” refers to a person’s general propensity or disposition for honesty, peacefulness,
and violence
b) Civil cases
i) Rule: Character evidence is inadmissible to prove conduct in conformity therewith
(1) Exception: where character is an essential element of a cause of action (i.e., plaintiff in a
defamation case)
ii) Three forms of character:
(1) reputation (witness must establish he is aware of the reputation of the party in the relevant
community)

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(2) opinion (witness must establish that he has sufficient knowledge to form an opinion about
the particular trait)
(3) specific acts (when character is an essential element of the trait, specific instances of that
person’s conduct may be offered as well)
c) Criminal cases
i) D’s character
(1) Rule: The prosecution may not initially introduce evidence of D’s bad character
(a) Testimony about a pertinent good-character trait: must first be raised by D
(i) What is pertinent depends on what D is on trial for—i.e., peacefulness in a crime
of violence, honesty in a fraud case
(b) Once raised by D, the prosecution may rebut with reputation or opinion evidence
ii) Victim’s pertinent trait/character
(1) Rule: D may offer evidence of a victim’s violent character as circumstantial evidence that
the victim was the first aggressor
(a) The prosecution may rebut with good character of the victim, or bad character of the D
through reputation or opinion
(i) Special Rule in Homicide Cases: if D offers evidence that the victim was the
initial aggressor, the prosecution may offer evidence of the victim’s good char-
acter for peacefulness
iii) Evidence used for a purpose other than to show conduct in conformity with one’s character
(1) Circumstantial evidence of other crimes, wrongs, or acts may be offered to prove:
(a) Motive; Intent; absence of Mistake; Identity; Common scheme or plan (MIMIC)
(b) Other acceptable evidence: knowledge, opportunity, or preparation

4) Habit Evidence
a) Rule: Evidence of the habit of a person, or routine practice of an organization, is relevant to prove
conduct in conformity with the habit
i) Look for words such as: always, automatically, regularly
ii) Not words such as: usually, often, frequently

5) Legal Relevancy
a) Definition: Otherwise relevant evidence that is barred due to public policy
b) Subsequent remedial measures
i) Inadmissible to prove: negligence, culpable conduct, design defect, or the need for a warning
ii) Admissible to show: ownership or control, impeachment, feasibility of precautions if controverted
c) Compromise and offers to settle
i) Rule: Evidence of an offer to settle a claim that is disputed about either validity or amount, is inad-
missible to prove liability
(1) Exception: Admissible to show bias or prejudice, or to negate a contention of undue delay
d) Payment of medical and similar expenses
i) Rule: Evidence of offering to pay medical bills is inadmissible to prove liability for an injury
e) Pleas, plea discussions, and related statements
i) Rule: A plea and any statements made during plea negotiations by D to a prosecutor will be
indamissible against D in a later proceeding
(1) This does not apply to statements made to police; only to statements made to the
prosecutor
f) Liability insurance
i) Rule: Evidence that a person was/was not insured is inadmissible to prove negligence or fault
(1) Exception: Can be admitted for another purpose (i.e., proof of agency, ownership or control)
(a) The limits of insurance coverage are never admissible

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6) Sexual Conduct
a) Relevant of victim’s past sexual behavior or alleged sexual predisposition
i) Rape-shield law: In any civil or criminal proceeding involving alleged sexual misconduct, evidence
offered to show the alleged victim’s sexual behavior, sexual predisposition, and other sexual
history is excluded
(1) Exception (criminal case): Specific acts are admissible in the following situations:
(a) Consent (past acts with this D that tend to show consent)
(b) Source of semen, injury, or other physical evidence
(c) Evidence that is constitutionally required (Olden v. Kentucky)
(2) Exception (civil case): Evidence is admissible if the probative value substantially outweighs
the danger of harm to any victim and of unfair prejudice to any party. Evidence of victim’s
reputation is admissible when the victim placed it in controversy
b) Evidence of similar crimes in sexual assault and child molestation cases
i) In a criminal case for child molestation or sexual assault, specific acts by D are admissible and
my be considered, as they bear on any relevant matter
ii) In a civil case, when damages are predicated on sexual assault or child molestation, same rule as
above, so specific acts may be admitted

PRIVILEGES

1) Attorney-Client
a) Rule: The client is the holder of the privilege and may refuse to disclose (and prevent others from
disclosing) confidential communications made for the purpose of seeking professional legal advice or
services
i) The lawyer may assert the privilege on behalf of the client (i.e., upon the client’s death)
b) “Confidential Communications”
i) Communications are protected, but observations are not
(1) “Communications” include oral and written statements and conduct intended to be
confidential
(2) Eavesdroppers—unknown eavesdroppers do not destroy the privilege; however, a known
or anticipated eavesdropper destroys the privilege
ii) Pre-existing documents (i.e., bank records, deeds) are not privileged
iii) Work product material prepared by the attorney in anticipation of litigation (i.e., documents, files,
notes) is privileged
(1) Exception: May be admissible if the party seeking admission can show a substantial hard-
ship and no other way of obtaining the evidence
c) Third Parties—the privilege extends to:
i) Essential third parties (i.e., one who is furthering some purpose of the relationship)
ii) Attorney representatives (i.e., persons hired by the attorney to assist in rendition of legal services)
d) “Client” = Any person/entity seeking professional legal services or consulting with the possibility of
obtaining legal services
e) “Lawyer” = Anyone authorized, or reasonably believed by the client to be authorized (i.e., disbarred
attorney), to practice law
f) Exceptions—Situations where there is no attorney-client privilege:
i) Future crime or fraud
ii) Suits between attorney and client (i.e., a dispute over paying the fee, or the client sues for
malpractice)
iii) “Joint client” exception (two clients hire the same attorney and are then involved in litigation
between each other)

2) Doctor-Patient
a) The Federal Rules never recognized a doctor-patient privilege

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3) Psychotherapist-Patient
a) Rule: Protects confidential communications between a licensed psychotherapist and a patient who is
seeking diagnosis or treatment for a medical condition (mental or emotional)
i) Extends to licensed social workers, psychologists, mental health specialists, psychiatrists,
marriage counselors
b) Exceptions:
i) Statements made regarding commitment proceedings;
ii) Statements dealing with court-ordered examinations;
iii) When the medical condition is part of the claim, such as personal injuries or malpractice suits
against the doctor;
iv) Future crime or fraud (same as attorney-client privilege)

4) Marital Privileges (Marital Communications and Spousal Immunity)

a) Marital Communications Privilege
i) This privilege can be asserted by either spouse (both are holders), and it applies in both civil and
criminal cases
ii) Rule: Protects confidential communications (i.e., those intended by the parties to be confidential)
between the spouses during marriage only
(1) Majority position: Observations are not protected (i.e., witness observes spouse using
drugs)
(2) Communications in the presence of older children, friends, and relatives are not privileged
iii) Exceptions:
(1) Crimes or intentional torts commited by one spouse against the other spouse or a child
(2) Divorce proceedings/adverse civil proceedings
(3) Joint participation in a crime (i.e., one spouse commits tax fraud with the help of the other
spouse. The other spouse may be compelled to testify about confidential communications/
observations between them)
b) Spousal Immunity (testimonial)
i) Rule: Protects all communications, regardless of confidentiality, both during and before marriage;
includes testimony, observations, and impressions
(1) The privilege is held by:
(a) Under common law: party spouse
(b) Under FRE: witness spouse—which means, although the witness spouse can’t be
compelled to testify, he can if so desired
(2) The privilege applies in criminal cases only, both before and during marriage (but the entire
privilege is lost upon divorce).
ii) Exceptions:
(1) Suits between the spouses;
(2) Suits involving a child of either spouse (i.e., one spouse is on trial for abuse of child; other
spouse may be compelled to testify)

5) Religious Privilege
a) Rule: Protects confidential communications made from penitent to clergyman in his professional
capacity as spiritual advisor
i) Either the clergyman or the penitent may assert the privilege

6) Fifth Amendment Privilege Against Self-Incrimination

a) Rule: Applies to evidence that is “testimonial” (i.e., taken on the stand)
i) Does not apply to: real and demonstrative forms of evidence (i.e., blood; hair; handwriting
samples; fingerprints; tattoos)
b) The prosecutor may not comment on D’s refusal to testify
c) Does not apply when the witnesses waives the privilege

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i) When a witness waives, cross-examination is limited to the subject matter about which the privi-
lege was waived
d) Immunity (two types)
i) Transactional—A witness with transactional immunity cannot be prosecuted for the underlying
offense
ii) Use—The witness’s statements cannot be used against him, but the prosecution does not agree
it will never prosecute

WITNESSES

1) Competency
a) Generally, everyone is competent to testify
b) Competency of Judge as Witness
i) Rule: The presiding judge may not testify in a trial (the objection is automatic and need not be
made)
c) Competency of Juror as Witness
i) Rule: A juror may not testify as a witness before the jury of which he is a member
(1) Exception—A juror may testify as to:
(a) Extraneous prejudicial information improperly brought to the juror’s attention;
(b) Whether any outside influence was improperly brought to bear on any juror; or
(c) Clerical/secretarial error (i.e., mistakes on the verdict form)

2) Impeachment
a) Collateral-Matter Rule
i) A collateral matter is evidence solely affecting the credibility of a witness. While questioned about
a collateral matter, the party cross-examining the witness is bound by the witness’s answer to
matters solely affecting credibility
(1) Extrinsic evidence on collateral matters is inadmissible to impeach
b) Methods of Impeachment
i) Bias or prejudice (i.e., personal hostility; business relationship; confidential arrangement)
(1) Rule: Bias or prejudice is always material; the collateral-matter rule does not apply, so this
can be used to impeach
ii) Sensory defects
(1) Rule: Inability to observe, communicate, or remember is always relevant, never collateral;
however, it is not allowed as to whether the witness is addicted to drugs or alcohol (unless
immediately connected to the witness’s credibility)
iii) Prior inconsistent statements (FRE 613, discussed infra)
iv) Character
(1) Reputation or opinion; bad acts; felony convictions; specific convictions of crimes involving
dishonesty
c) Evidence of Character and Conduct of Witness
i) Rule: A witness’s character for untruthfulness is always material and may be attacked by reputa-
tion or opinion evidence
(1) A witness’s character for truthfulness can be shown by reputation or opinion evidence only
if the witness’s credibility for truthfulness has first been attacked
(2) Cross-examination about specific acts that reflect on his truthfulness, such as perjury or
fraud, is acceptable
ii) Rule (bad-act impeachment): Specific instances of the conduct of any testifying witness that are
probative of the witness’s truthfulness are admissible to attack or support the witness’s credibility
(1) Elements: (1) A question; (2) on cross-examination; (3) inquiring into proper unconvicted
acts bearing on (un)truthfulness (or dishonesty)
(2) Limitations

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(a) Questions must be probative of truthfulness

(b) Questions must be asked in good faith
(c) The bad acts cannot be too remote in time (consider Rule 403)
(d) Only questions of fact are allowed; not rumors or arrests
d) Evidence of Conviction of Crime
i) Two categories:
(1) Felonies (“felonies” = crimes punishable by death or imprisonment of more than one year)
(a) Rule: If used to impeach a witness other than D, a felony conviction is subject to the
Rule 403 balancing test
(b) Rule: If used to impeach D, a felony conviction will be admitted if the prosecution
shows the probative value outweighs the prejudicial effect
(2) Crimes involving dishonesty or false statement (includes both felonies and misdemeanors)
(a) Rule: Evidence of such conviction is admissible as a matter of right (i.e., no
balancing), as long as the conviction is less than or equal to 10 years old
(i) Examples (admissible): perjury, forgery, tax evasion, fraud, embezzlement and all
other crimes involving some element of deceit, untruthfulness, or falsification
(ii) Examples (inadmissible): assault, battery, DUI, possession of drugs, theft in
general
ii) 10-year time limit
(1) Rule: Convictions more than 10 years old are inadmissible to impeach unless the probative
value substantially outweighs the prejudicial effect
iii) Arrest records, indictments, and other charges are inadmissible
iv) Guilty pleas and suppressed evidence are admissible to impeach

3) Examination of Witnesses
a) Leading Questions
i) Generally, not permitted on direct examination but is permitted on cross-examination
ii) Circumstances in which leading questions may be used on direct examination:
(1) Hostile witness; adverse witness; child witness; preliminary background information; to
refresh recollection
b) Writing Used to Refresh Memory
i) On direct, the examiner may refresh the witness’s memory
ii) Key points
(1) The proponent may not introduce the writing into evidence (don’t confuse with past recol-
lection recorded)
(2) Authentication of the writing is not required
(3) Any writing, photograph, further questioning, or other form of evidence will suffice
iii) Rights of the adverse party:
(1) May inspect it and use it on cross-examination
(2) Show writing to the jury for comparison with witness’s testimony
(3) Introduce relevant portions into evidence
c) Prior Statement of Witness
i) Under this rule (FRE 613), a prior inconsistent statement (PINS) is not “sworn” and is admissible
only to impeach
(1) Differs from FRE 801, where PINS comes in for its truth
ii) The statement may be oral or written
iii) Foundation Requirement—Extrinsic evidence of a PINS by a witness may be admissible if:
(1) The witness is afforded an opportunity to explain or deny the evidence at some point during
the trial; and
(2) Opposing counsel is afforded an opportunity to interrogate the sponsering witness, unless
the interests of justice require otherwise

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iv) If the witness denies making the PINS, extrinsic evidence is generally admissible to impeach
v) If the witness admits making the PINS, the witness has the right to explain his answer
d) Calling and Interrogation of Witness by Court
i) The court on its own motion may call witnesses, and all parties may examine any witness called
by the court
ii) The court may interrogate/question any witness called by a party

OPINIONS AND EXPERT TESTIMONY

1) Opinion Testimony by Lay Witnesses

a) Any testimony that a lay witness gives that is an opinion or an inference must be:
i) Rationally based on the perception of the witness; and
ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue
b) Proper scope of non-expert opinion includes (VEMPSS):
i) V: Value of one’s own land
ii) E: Emotional state of other
iii) M: Measurements (i.e., speed of a vehicle, height, weight, distance)
iv) P: Physical states (i.e., intoxicated, tall/short; fat/skinny; healthy/sick; happy/sad)
v) S: Sensoy descriptions (i.e., smell, sound, tase, color)
vi) S: Sanity of a testator
c) Improper scope: Opinions stated in conclusory terms

2) Testimony by Experts
a) Requirements:
i) Expert is qualified (i.e., an expert must have special skills, knowledge, education, experience, or
training)
ii) Testimony is relevant (i.e., subject matter must be appropriate, and the opinion must be helpful/
relevant to assist the jury)
b) The MBE follows Daubert. The factors include (mnemonic: TAPES):
i) T: has the theory been Tested? (If so, how extensively?)
ii) A: general Acceptance in the relevant community
iii) P: Peer review of the scientific theory
iv) E: degree or rate of Error
v) S: Standards
c) The Frye test, which requires general acceptance in the scientific community, is a minority position on
the MBE; trap answer
d) Rule 702 formula: Qualifications + (Relevance + Reliability) = Admissibility

3) Basis of Opinion Testimony by Experts

a) Three bases for opinion testimony:
i) Personal knowledge at or before trial
ii) Facts presented to the expert at trial (i.e., hypothetical questions)
iii) Facts presented to the expert outside of court (i.e., reports from others, including inadmissible
evidence)
(1) These out-of-court facts must be of the type “reasonably relied upon” by other experts in
the particular field

4) Opinion on Ultimate Issue

a) Rule: Generally, an expert may give an opinion or inference that embraces an ultimate issue
i) Examples (permissible): cause of accident, illness, death; whether a product is unreasonably
dangerous/defective; whether a document is forged/genuine; whether the D was insane/mentally ill
ii) Examples (impermissible): legal conclusion that the plaintiff was contributorily negligent; legal
conclusion regarding the content of law (i.e., the D intended to kill the victim)

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b) Rule: Limitation in criminal cases: an expert may not give an opinion as to whether the D did or did not
possess the mental state or condition that constitutes an element (or defense) of the crime charged, as
such issues are determined by the jury

HEARSAY

1) In General
a) “Hearsay” = an out-of-court statement by the declarant offered to prove the truth of the matter asserted
i) “Declarant” = the person making the statement
b) A statement is either:
i) An oral or written assertion that is intended as a communication; or
ii) Assertive conduct (i.e., conduct intended as an assertion)
(1) Assertive conduct = conduct intended to communicate as a substitute for words
(a) Examples: pointing a figer to give directions; shaking one’s head yes or no; a sketch
by a police artist
(2) Non-assertive conduct = conduct not intended as a statement, not intended to communi-
cate (thus, it is not hearsay)
(a) Example: videotape showing D’s demeanor, drunk or stumbling
c) A statement must be a human statement, not one made by an animal or machine
i) Examples: alarm clock; radar measuring speed of car; time/temperature display; talking parrot

2) Evidence Not Offered for its Truth (Not Hearsay)

a) Effect on the Listener (notice, motive, etc.)
i) We are not concerned with the declarant
b) Verbal Acts
i) The words themselves can give rise to a cause of action (i.e., words that have independent legal
significance or legally operative facts)
ii) The truth of the statement is irrelevant; the fact that they were uttered is what we are proving
iii) Examples
(1) Transactional words: the words of a contract, deed, will, judgment
(2) Tortious words: actual defamatory words themselves in a libel/slander action

3) Hearsay Exemptions
a) Statement by a Party Opponent
i) Direct statement by a party
(1) A statement of a party offered against him by his opponent
(a) Can be a statement of fact or opinion
(b) Does not have to be against interest when made
(c) Personal knowledge not required; just required to be said BY the declarant and used
AGAINST the declarant
(2) Examples
(a) Civil: a witness testifies, “After an accident, the D said, ‘I was speeding,’” used at
plaintiff’s personal injury trial
(b) Criminal: a witness testifies that while awaiting arraignment, the D was asked what he
was in for, to which D stated, “I shot my neighbor for asking too many questions”
ii) Admission by silence
(1) An admission by silence requires that a reasonable person would have denied the
statement
(a) Not applicable where D has been given Miranda warnings; can’t comment on post-Mi-
randa warning silence
iii) Adoptive admission

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(1)
There must be evidence sufficient to show that the party heard and understood the state-
ment and adopted it as her own
iv) Authorized admission
(1) A statement by a party’s agent or representative (agency can be express or implied)
v) Vicarious admission
(1) A statement of a party’s employee offered against the party
(2) Rule—The statement must:
(a) be made during the existence of the employment relationship; and
(b) concern a matter within the scope of employment
b) Co-conspirator’s Statements
i) Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all
other co-conspirators, even if they are not aware that a conspiracy exists
ii) Requirements:
(1) Existence of a conspiracy is a preliminary fact that must be proven to the court by a prepon-
derance of the evidence;
(2) The declarant was a member of the conspiracy;
(3) The statement was made “in furtherance of” the conspiracy (i.e., moved the criminal combi-
nation forward);
(4) The statement was made “during the existence of” the conspiracy
c) Prior Statements (in civil and criminal cases)
i) There are three types of prior statements, and each requires:
(1) The declarant to testify at the trial or hearing;
(2) The declarant to be subject to cross-examination concerning the statement; and
(3) The statement must be either:
(a) prior inconsistent statement (offered for its truth)
(b) prior consistent statement
(c) prior statement of identification
ii) Prior Inconsistent Statement (PIS)
(1) A PIS is permitted to be offered for its truth if it is “sworn” (i.e., subject to penalty of perjury
(under oath) at a trial, deposition, or “other proceeding”)
iii) Prior Consistent Statement (PCS)
(1) A PCS is used to rehabilitate:
(a) the witness after an inference of recent fabrication has been raised; or
(i) Limited use, as the statement must predate the motive to lie
(b) the declarant’s credibility as a witness when attacked on another ground
iv) Prior Statement of Identification
(1) A prior statement of identification of a person made after perceiving him can be admissible
(a) Purpose is to buttress the reliability of in-court identifications as compared with those
made at an earlier time under less suggestive conditions

4) Hearsay Exceptions
a) Availability of Declarant Immaterial
i) Present Sense Impression
(1) A statement describing or explaining an event/condition made while or immediately after
perceiving it
(a) Characteristics and requirements:
(i) Spontaneity (timing)
(ii) Declarant need not be known or available
(iii) An unexcited utterance (boring subject matter)
(iv) Can be oral or in writing (911 tape)

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ii) Excited Utterance

(1) A statement relating to a startling event made while the declarant was under the stress of
excitement caused by the event or condition
(a) Characteristics and requirements:
(i) A startling event;
(ii) Personal knowledge required;
(iii) Statement need not be immediate (unlike present sense impression)
iii) Then-Existing Mental, Emotional, or Physical Condition
(1) A statement of declarant’s then-existing physical, emotional, or mental condition is admis-
sible if relevant to show declarant’s state of mind
(a) Statement need not be made to a medical person
(b) Look for prospective statements of intent (forward-looking)
(2) This exception does NOT include:
(a) Past sensations
(b) Statements of memory or belief, generally
iv) Statements for Purposes of Medical Diagnosis or Treatment
(1) Includes statements made for purposes of medical diagnosis or treatment describing
medical history or past or present symptoms, pain or sensation, or the cause
(a) Statement can be made to any medical personnel or family member
(b) Statement must be one that is useful for diagnosis and treatment
(2) NOT included: statement admitting or assessing fault (i.e., “I was hit from behind” = admis-
sible; “I was hit from behind by a person in a blue car” = inadmissible)
v) Past Recollection Recorded
(1) Used where the witness lacks current memory of the event
(a) Prerequisite: must have attempted (and failed) to refresh the witness by a leading
question or writing (Rule 612)
(2) Requirements:
(a) Writing/record is read into evidence
(i) The writing itself is NOT received as an exhibit unless offered by the adverse
party
(b) The memorandum must have been made “while the matter was fresh” in the witness’s
mind
(c) Authentication—the witness must testify that the writing accurately reflects the
witness’s prior knowledge (i.e., witness made or adopted the statement)
(3) Rights of the adverse party:
(a) Inspect the writing;
(b) Cross-examine with it;
(c) Show it to the jury for comparison;
(d) Introduce relevant portions into evidence
vi) Records of Regularly Conducted Activity (Business Records Exception)
(1) A record/report of acts or events made at or near the time by a person with knowledge, if
kept in the course of a regularly conducted business activity, and if it was the regular prac-
tice of that business to make such a record or report
vii) Public Records and Reports
(1) Similar foundation as business records, except the proponent need not show that the
record was routinely made at or near the time of the event (i.e., FAA report issued years
after plane crash)
(2) Key: The report must be prepared pursuant to a duty imposed by law, which includes
records/reports of public offices or agencies, setting forth:

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(a) the activities of a public office or agency;

(b) matters observed pursuant to a duty imposed by law as to which there was a duty to
report
(i) Does NOT include matters observed by police if offered by the prosecution (D
can offer the report, and it will be admitted)
viii) Statements in Ancient Documents
(1) Admissible if found in a place where these items are typically found (i.e., archives, library,
possibly a shoebox)
(a) Includes statements in a document that are in existence for 20 years or more and its
authenticity is established
ix) Learned Treatises
(1) Foundation authoritativeness established by: judicial notice; expert testimony; or stipulation
(a) Subject area: MASH (Medicine, Art, Science, History)
(2) The treatise is read to the jury, not physically given to the jury
b) Availability of Declarant Material
i) “Unavailable” triggering events—PRISM
(1) Privilege: asserting a privilege
(2) Refusal: refusing to testify despite a court order
(3) Incapability: incapacity due to death or then-existing physical or mental illness
(4) Subpoena: absence of a witness despite a good-faith attempt to procure witness’s atten-
dance (i.e., subpoena)
(5) Memory: witnesss testifies as to a lack of memory
(a) Bruden to prove unavailability is on the proponent of the testimony
ii) Former Testimony
(1) May be admitted for its truth if:
(a) Declarant made the statement under oath;
(b) Given by a witness in the same or a different but related proceeding, or in a deposi-
tion; and
(i) The former action must involve the same subject matter, but not necessarily the
same cause of action or plaintiff
(c) The party against whom the evidence is being offered must have has an opportu-
nity and similar motive to examine the witness and develop the testimony on direct,
cross-examination, or redirect
iii) Dying Declaration
(1) Cause of death; unavailable declarant; belief of death; admissible in any civil case or a
criminal case if charge is homicide
(2) Judge determines whether the declarant subjectively believed death was imminent
(a) The declarant need not have died from the incident, but the declarant must be unavail-
able to testify
iv) Statements Against Interest
(1) Requirements
(a) Personal knowledge
(b) Unavailable witness
(c) Non-party (generally)
(d) Statement was against interest when made (i.e., pecuniary (money), proprietary (prop-
erty), penal (jail))
c) Confrontation Clause
i) Rule: In a criminal case where the declarant is unavailable, “testimonial” hearsay statement will
be inadmissible unless D is given an opportunity to cross-examine the declarant

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 EVIDENCE

(1) “Testimonial evidence” = primary purpose of the police interrogation is to prove past events
relevant to later criminal prosecution
(2) “Non-testimonial evidence” = primary purpose of the statement is to aid police during an
ongoing emergency
d) Hearsay Within Hearsay (Multiple Hearsay)
i) Each statement must have a separate basis for admissibility; otherwise, the entire statement is
inadmissible

AUTHENTICATION AND IDENTIFICATION

1) Requirement of Authentication or Identification

a) Real Evidence
i) May be authenticated by:
(1) Testimony from personal knowledge that shows familiarity with the object;
(2) Distinctive characteristics (i.e., a gun with initials carved on the handle);
(3) Chain of custody for fungible items: accounting for an item’s whereabouts from the time of
issue until trial;
(4) Test for photograph or x-ray: must be a fair and accurate portrayal of what it depicts
b) Documents
i) Documents may be authenticated or identified by someone who had first-hand knowledge of the
document, such as:
(1) Custodian (witness must be substantially familiar with the items);
(2) The person who prepared the document/report;
(3) An eyewitness to the signing of the document;
(4) Opinion by expert witness (i.e., handwriting, fingerprints, shoe prints, tire tread marks,
ballistics, etc.);
(5) The jury (comparing samples)
c) Handwriting
i) Three ways to authenticate:
(1) Layperson with familiarity
(a) Faimilarity is a weight-of-the-evidence issue, and it cannot be acquired for purposes of
litigation;
(2) Comparison by an expert;
(3) Comparison by the trier of fact
d) Voice Identification
i) All voices must be identified when a phone conversation or recording is offered into evidence
ii) Generally, direct evidence is offered by testimony of a witness who recognizes the voice
e) Telephone Calls
i) A showing that a call was made to the number assigned: the call is assumed to have gone to that person
ii) A showing that a call was made from an assigned number: the call is assumed to have come from
the person assigned that number
iii) In the case of a business: the call was made to the business and the conversation related to the
business

2) Self-Authentication
a) Extrinsic evidence of authenticity is not required for (Mnemonic: CONTAC):
i) C: Certified documents
ii) O: Official publications
iii) N: Newspapers and periodicals
iv) T: Trade inscriptions
v) A: Acknowledged documents
vi) C: Commercial paper

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QUICKSHEET

CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

1) Best Evidence Rule

a) Rule: To prove the contents of a writing, recording, or photograph, the original is required except as
provided in the FRE
b) Independent-source rule
i) Where a fact to be proved has a source independent from the writing (i.e., the fact occurred
regardless of whether the writing exists), then the contents are NOT in issue and the Best
Evidence Rule does not apply

2) Admissibility of Other Evidence of Contents

a) Rule: The original is not required, and other evidence of the document is admissible if LOCS applies:
i) Lost (all the originals have been lost or destroyed, unless the proponent lost or destroyed them in
bad faith)
ii) Opponent (the opponent has possession of the original and has refused to deliver it)
iii) Collateral (document is not closely related to a controlling issue)
iv) Subpoena (the original cannot be obtained by any judicial procedure)

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