Exclusion of relevant evidence (Rule 403 exclusion)—if the probative value is substantially

outweighed by the danger of

unfair prejudice
confusing issues
misleading jury
undue delay
wasting time
needless presentation of cumulative evidence

This type of evidence is sometimes referred to as “MIMIC” evidence (Motive, Intent,

absence of Mistake, Identity, or Common plan)

MIMIC evidence (Motive, Intent, absence of Mistake, Identity or Common

plan)
• Admissible •
Subject to admissibility restrictions, may be introduced for any other purpose except to prove D
committed the charged crime because D had propensity to commit crimes • When criminal D
requests, prosecution must provide reasonable notice of the general nature of MIMIC evidence
the prosecution intends to offer at trial; must give no

Spousal immunity
 Married person cannot be compelled to testify against his spouse in any criminal
proceeding regardless of who D is
 Witness spouse holds privilege in federal court and majority of states;
 Applies to testimony about events before/during marriage; privilege expires upon
divorce or annulment

Confidential marital communications

 Spousal communication during marriage is privileged when made in reliance on sanctity
of marriage
 Majority view (and most federal courts)—both spouses hold the privilege in civil and
criminal cases; either spouse may assert the privilege and refuse to testify about the
communication or prevent the other spouse from testifying
 Privilege begins with marriage and continues indefinitely

Neither spousal privilege applies when one spouse sues another or spouse is charged with a
crime against the other or the children of either

Self-incrimination—Fifth Amendment protection allowing witness to refuse to give

testimony that may tend to incriminate him •
Covers only current statements •
Does not apply to physical characteristics or mannerisms •
Does not apply to corporations or other organizations

Non-hearsay
Prior statements—declarant must testify at present trial to be admissible; cannot apply if
witness is dead or otherwise unavailable to testify
 Prior inconsistent statements made under penalty of perjury admissible to impeach
declarant’s credibility and as substantive evidence
 Prior consistent statements admissible to rebut express/implied charge that declarant
recently fabricated it or acted with improper motive, but must be made before declarant
had reason to fabricate
 Prior statement of identification of a person after perceiving that person is admissible as
non-hearsay substantive evidence even if witness has no memory of identification

Opposing party’s statement—made by party to current litigation; admissible without personal

knowledge and can be in form of an opinion; need not have been against the party’s interest at
the time that it was made •
 Judicial admission—an admission made during pleading, discovery process or
proceeding is conclusive evidence
o Withdrawn guilty plea generally not admissible in subsequent proceedings
 Adoptive admission—statement of another person that party expressly/impliedly adopts
as his own
o Silence in response to a statement is considered an adoptive admission if:
 The person was present and heard and understood the statement;
 The person had the ability and opportunity to deny the statement; and
 A reasonable person similarly situated would have denied the statement.
 Vicarious statements—statement made by one person imputed to another based upon
relationship between them (employee/agent, authorized speaker, coconspirators)

VII. Hearsay Exceptions

1. Declarant unavailable as witness
a. Unavailable declarant unless unavailable due to procurement/wrongdoing of
proponent in order to prevent the declarant from testifying at or attending the
trial
b. Former testimony given as witness is not hearsay if party against whom
testimony is offered had an opportunity and similar motive to develop testimony
c. Dying declaration
i. Declarant believes her death is imminent and statement pertains to
cause/circumstances of her death (need not actually die)
ii. Applies only in homicide prosecutions and civil cases
 d. Statement against interest—was against declarant’s proprietary/pecuniary
interest at time made and reasonable person would not have made statement
unless it was true
e. Statement of personal/family history—birth, adoption, marriage, divorce or
other similar fact of personal or family history
f. Statement against party that caused declarant’s unavailability—statement
offered against party that wrongfully caused declarant’s unavailability is not
excluded
2. Declarant’s availability as a witness immaterial
a. Present sense impression—statement explaining or describing event/condition
made while or immediately after declarant perceived it
b. Excited utterance—statement about startling event/condition while declarant is
under stress of excitement that it caused
c. Statement of mental, emotional, or physical condition—statement of then-
existing state of mind (present intent, motive or plan) or emotional, sensory or
physical condition
d. Statement made for medical diagnosis/treatment—describing medical history
or past/present symptoms is not excluded as hearsay if it is made for purpose of
medical diagnosis or treatment; can be made to physicians, other medical
personnel or even family members; need not necessarily be made by the patient
e. Recorded recollection (witness no longer able to testify)—record not excluded if
on a matter that witness once knew, made when matter was fresh in witness’s
memory, accurately reflects witness’s knowledge, and witness states that he
cannot recall even after consulting record on the stand
f. Business records (extends to any organization, including nonprofit)—record
must be kept in course of regularly conducted business activity, making of record
was regular practice, and record was made at or near the time by someone with
knowledge
g. Public records—statement of public office/agency that sets out activities of
office, observation of person under duty to report (but not police in a criminal
case), or factual findings of a legal investigation
h. Learned treatises—statement in treatise, periodical or pamphlet not excluded if
expert witness relied on statement during direct/cross, and publication is reliable
authority
i. Judgment of previous conviction
i. Final judgment must be entered after trial or guilty plea
ii. Conviction was for crime punishable by death or imprisonment for > 1
year
iii. Evidence offered to prove any fact essential to sustain judgment
In a civil case, evidence of a person’s character trait is generally inadmissible to prove
that the person acted in accordance with that trait on a particular occasion.  However,
evidence of a person’s habit is admissible to prove that the person acted in accordance
with the habit on a particular occasion.  A habit is a person’s particular routine
reaction to a specific set of circumstances.  Because habit evidence can run afoul of
the bans on character evidence and prior bad acts evidence, courts generally limit
habit evidence to proof of relevant behaviors that are not just consistent but semi-
automatic.