RELEVANCE
Preliminary Questions of Relevance (Judge)
FRE 104(a): Any preliminary questions resolved by court by apreponderance of the evidence:
  1. Hearsay (e.g. whether an utterance is excited, whether declarant is unavailable, etc.)
  2. Experts (e.g. whether a witness qualifies as an expert)
  3. Privilege (e.g. whether 2 people are married for purposes of privilege)

Conditional Relevance (Juror)
FRE 104(b): party must introduce proof sufficient to convince a reasonable juror that conditional fact exists:
  1. Authentication
  2. Personal Knowledge issues
  3. Other Acts issues (i.e. Huddlestonevidence of prior acts)

Probative and Material (low standard)
FRE 401: Evidence is relevant if:
  1. Any tendency to make a fact more or less probable than it would be without the evidence; AND
  2. Fact is of consequence in determining the legal elements of a claim or defense
/ Same as Federal Rules.
DISCRETIONARY EXCLUSIONS (403/352)
FRE 403: Trial judge has discretion to exclude evidence if probative value is substantially outweighed by the danger of :
  1. Unfair prejudice,
  2. could include photos, CGI, testimony, evidence of flight, etc.
  3. shocking graphic materials are most likely to be excluded
  4. Confusion of the issues,
  5. Misleading the jury,
  6. Undue delay or
  7. Waste of time.
/ CEC 352: Same as Federal Rule EXCEPT all evidence in criminal cases is admissible subject to 352 (see prop 8).
SPECIAL RELEVANCE EXCLUSIONS (public policy exclusions)
Subsequent Remedial Measures
Bars evidence of remedial measures to prove negligence, culpable conduct, or product defect /
  1. Subsequent?
  2. 3rd party remedial effort
  3. Unusual SRMs (e.g. firing a harasser)
  4. Allows for other purposes
  5. CA: Redesign allowed to show product defect

Offers of Settlement
Bars statements, promises, offers, or acceptance made in settlement negotiations to show:liability or invalidity of claim,OR to impeach. /
  1. Must be a dispute as to validity or amount
  2. Allows all claims stemming from primary right
  3. Allows for other purposes
  4. Allows Civil negotiation with govt in criminal case
  5. CA: Civil negotiation in subsequent criminal case
  6. CA: broader time scope

Offers to Pay Medical Expenses
Bars evidence of payments or offers to pay medical expenses to prove liability. /
  1. Allows accompanying admissions of fact
  2. CA:No accompanying admissions of fact

Plea Negotiations
Bars evidence of withdrawn pleas, offers to plea, and no-contest plea against D /
  1. Allows if crimen falsi proceeding / D sworn
  2. CA: allows for impeachment of D
  3. CA: allows felony nolo plea in subsequent case
  4. CA: allows all discussions,not just w/ prosecutor

Liability Insurance
Bars evidence of, or lack of, liability insurance to prove negligence or wrongfully /
  1. Allows for other purposes
  2. CA: no “lack of insurance” exclusion

Expression of Sympathy (CA ONLY!!!)
Expressions of sympathy relating to the pain, suffering, or death of accident victim are inadmissible in civil cases. BUT, accompanying statements of fault are admissible.
PROPENSITY
A party cannot introduce evidence of person’s character trait for purpose of showing conduct in conformity with that trait. EXCEPTIONS:Sex Cases, Habit, Non-Propensity Evidence (MIMIC), Character at Issue, Personal Knowledge, Impeachment, Pertinent Trait of Criminal D, Pertinent Trait of V in Criminal Case
CHARACTER EVIDENCE
Pertinent Trait of Criminal D
  1. D introduces RT/OT pertinent character trait of D
  2. Open Door for Prosecution
  3. “Notorious” SIC of D
  4. Offer own W to give RT/OT
/ CA: cannot inquire into SIC on cross.
Pertinent Trait of V in Criminal Case
  1. D introduces RT/OT pertinent character of V
  2. Open Door for Prosecution
  3. RT/OT evidence D shares that trait; OR
  4. RT/OT evidence about Vs good character
  5. Homicide Case: if D introduces evidence V was first aggressor, prosecution can offer RT/OT of Vs peaceful nature.
/ CA:
  1. Permits SIC by D
  2. Permits SIC by prosecution on rebuttal about V or D, BUT evidence about D must regard Ds violence.

WITNESS IMPEACHMENT
Bias, Perception, Prior inconsistent statements, Contradiction, AND UNTRUTHFULNESS!!! (608/609)
OT/RT Impeachment
  1. Direct:attack Ws truthfulness through OT/RT
  2. Cross:Can only introduce evidence of Ws truthfulness until AFTER W has been attacked by RT/OT (no bolster)
/
  1. Criminal: no limits on the introduction of RT/OT of truthfulness or untruthfulness
  2. Civil: Same as Federal Rule

SIC Impeachment(BUT no extrinsic evidence/mini-trials)
  1. Cross: parties can ask about SIC probative of dishonesty (or honesty).
  2. Redirect: questioner may inquire about SIC discussed in cross-examination
/
  1. Criminal: Allows SIC probative of Ws truthfulness or untruthfulness on direct, cross-examination, or to bolster Ws character, subject to 352
  2. Civil: No SIC

Criminal Conviction Impeachment
  1. Crimen Falsi crime (e.g. theft, perjury, etc.)
  2. Felony by W(non-D)prejudicial effect substantially outweighs probative value?
  3. Felony by W (criminal D): probative value outweighs prejudicial effect on D? (similarity of crimes, etc?)
  4. Conviction > 10 years: probative value substantially outweighs prejudicial effect?
/
  1. Criminal: moral turpitude (felony or misdemeanor)
  2. Civil:Any felony but NO misdemeanors.

HEARSAY
  1. Out-of-court statement: oral/written assertion OR nonverbal conduct intended as assertion, outside of trial
  2. Offered to prove truth of matter asserted, NOT INCLUDING
  3. Non-assertive words (“ouch”),
  4. Silence (absence of complaint is not assertion BUT silence in face of accusation is assertion)
  5. Statement offered to prove something other than what it asserts (e.g. knowledge, impeachment, reputation, effect on listener, etc.)
  6. Statements that qualify as exclusion or exception, even if multiple levels of hearsay.

Admissible Nonhearsay—Prior Statements By a Witness (ICI)
Prior Inconsistent Statements
  1. Sworn prior statement differs from current trial testimony
  2. Presently subject to cross-examination
/ CA: Allows unswornPIS IF:(1) W can address statement OR (2) unexcused.
Prior Consistent Statements
FRE 801(d)(1)(B):
  1. Prior statement consistent with trial testimony
  2. Prior statement made before motive to lie arose
  3. Offered to rebut attack of fabrication by W
  4. Presently subject to cross-examination
/ CA: Allows “rehabilitating” W with a PCS statement after impeached withPIS
Prior Statement of Identification
  1. Prior ID made shortly after perceiving individual
  2. Presently subject to cross-examination
/ CA:
  1. ID made while memory of event was fresh; AND
  2. W confirms prior ID reflected opinion at the time

Admissible Nonhearsay—Statements Against Party-Opponent (PAAC)
Party Statement
Statement made by party to the case whom it is offered against
Adoptive Admission
Party expressly or impliedly adopts/acquiesces to statement that was:
  1. Heard/received
  2. Circumstances called for response; AND
  3. Party failed to respond

Party Agent/Authorized Statement
  1. Authorized by party/employer to make statement
  2. Matter within scope of agency or employment,
  3. Made during the existence of the authorization/agency relationship
/ For agency, only statements by an agent whose misconduct provides a basis for a claim against/defense of the principal.
Co-Conspirator Statement
  1. Statement made during AND in furtherance of the conspiracy;
  2. Statement involved declarant and co-conspirator

General Hearsay Exceptions—Testimonial Exceptions
Present Sense Impression
  1. Play-by-play statement
  2. Made while declarant was witnessing, or immediately thereafter (e.g. 911 call)
/ Permits only statement by declarant explaining his conductmade while engaged in the conduct
Excited Utterance [Stress may last past event (e.g. hours)]
  1. Statement made while under stress or excitement of startling event
  2. Statement relates to event

Physical, Emotional, or Mental Condition
  1. Statement regarding physical, emotional, or mental condition admissible to show the condition or state of mind (e.g. fear)
  2. Statements of intent admissible to prove onlydeclarants future conduct (no Hilmon)
  3. Memory or belief ONLY if about declarant’s will
/
  1. Hilmon applies.
  2. No indicia of untrustworthiness allowed
  3. Statements of infliction/threat of physical injury IF
  4. Statement was made at or near the time of the infliction or threat; AND
  5. Writing, electronically recorded, or to Md.

Statement for Medical Diagnosis or Treatment
  1. Made for, and pertinent to medical diagnosis or treatment; AND
  2. Describes medical history, symptoms; cause
/ CA: Admissible only if made by child-abuse or child-neglect victim under age of 12 to medical personnel.
General Hearsay Exceptions—Documentary Exceptions
Recorded Recollections
  1. Statement in the form of memo or record
  2. Matter must have been recorded fresh (i.e. hours/days)
  3. Declarant-witness lacks sufficient recollection at trial or hearing; BUT
  4. Declarant testifies statement accurately reflects observations at earlier time (transcriber too, if applicable)

Business Records
  1. Record or statement
  2. Made by person with personal knowledge in regular course of business
  3. Made at/near the time of relevant matter
  4. May need to overcome attack on trustworthiness
/
  1. Indicia of trustworthiness
  2. No need to show record was “regular practice”

Public Records(prison files, IRS records of a business, govt investigation of navy plane crash)
  1. Agency’s own activities (govt can offer records of own activities to show activities occurred)
  2. Matter observed while under legal duty to report
  3. Investigative Reports: facts/conclusions resulting from investigations EXCEPT when used against non-governmental criminal D.
/
  1. Indicia of trustworthiness
  2. Record was made by public employee within their duties (e.g. police reports subject to CC)
  3. Record was made at or near time of event

Other General Exceptions
Ancient Document, Learned Treatise, Judgment of Past Conviction, and Reputation Regarding Character
Hearsay Exceptions—Declarant unavailable
Privilege, Contempt, Can’t Remember, Dead/Ill, In the Wind
Prior Testimony by Unavailable Declarant(must be overlap of issues)
  1. Given under oath in same or different proceeding
  2. Party against whom the statement is now offered had an opportunity/motive to develop testimony
/ Depositions in same proceeding are NOT “prior testimony.”
Dying Declaration by Unavailable Declarant [Only if no hope of recovery (e.g. NOT a slow death from poison)]
  1. Declarant believed death was imminent
  2. Statement concerns belief of cause of death
  3. In civil and homicide cases ONLY
/
  1. Available in any case, NOT just civil and homicide
  2. Declarant must actually have died

Statement Against Interest by Unavailable Declarant
  1. Statement must be contrary to declarant’s interest, exposing to liability
  2. Criminal case: indicia of trustworthiness
/ Includes exception for statements against social interest that would make declarant object of “hatred, ridicule, or social disgrace in the community.”
Family History Statement by Unavailable Declarant
Declarant unavailable AND statement regards birth, adoption, marriage, etc.
Forfeiture by Wrongdoing by Unavailable Declarant
  1. Statement by unavailable declarant against party who engaged/acquiesced in wrongdoing
  2. Party intended to, and did, procure the unavailability of declarant as W.
/
  1. Only applies to serious felonies
  2. Must be clear and convincing evidence that D secured the unavailability of W
  3. Digitally or tape-record or in a signed-statement

Hearsay—Residual Exception
Hearsay statement not covered by specific exception can be admissible if:
  1. It is offered on material fact and is probative
  2. It is more probative on a point for which it is offered than any other evidence, reasonably available;
  3. In the interest of justice; AND
  4. Advanced notice to the opposition

Confrontation Clause
Even if evidence fits within a hearsay exception, it may still be excluded because criminal D has a right to confront and cross-examine those who “bear testimony” against them. Confrontation Clause is only available:
  1. In a criminal case;
  2. When “testimonial” hearsay evidence is proffered against D;
  3. Testimony: statement whose “primarily purpose” is use in trial (Crawford) (p.675)
  4. Testimony: statements made to police after emergency and pertinent to trial preparation; statements by drug lab technicians
  5. NOT Testimony: statements to police during emergency; coroner report or DNA analysis
  6. AND NOT available when:
  7. Civil Case
  8. Trial Statements: Hearsay declarant testifies at trial and responds to questions regarding the statement
  9. Statements Under Oath: Hearsay declarant testifies under oath subject to cross-examination, and is now unavailable
  10. Statement by D
  11. Adoptive Admissions by D
  12. Co-conspirator Statements
  13. Forfeiture by wrongdoing
  14. Dying declaration (MIN)

Aranda-Bruton
Where an accomplice tried jointly with D, has made an out-of-court confession implicating co-D, the confessing accomplice’s words are inadmissible against co-D if accomplice doesn’t testify.
Ways to avoid Confrontation Clause when trying multiple Ds
  1. Severed Trials
  2. Separate Juries
  3. Testimony by the Confessing Accomplice
  4. Still need a limiting instruction
  5. Redaction
  6. cannot use “blanks,” but rather must alter the statements (Gray)
  7. Bench Trial (Ds usually want jury trial)
  8. Statement falls underspecial hearsay exception (e.g. co-conspirator statements, adopted admissions)

TESTIMONIAL EVIDENCE
Competency
FRE 601:
  1. W must have capacity to observe, recollect, communicate, and swear/affirm to tell the truth
  2. Presiding judge and jurors are incompetent to testify (CA: may testify if no objection)

Lay Opinion
FRE 701: non-scientific opinion admissible IF:
  1. Opinions based on personal knowledge (advisory note allows lay testimony on narcotics)
  2. Cannot speak to complicated issues; leave to the experts
  3. Cannot rely on hearsay
  4. Opinions helpful to jury in understanding W testimony or fact in issue
  5. Inferences that cannot be stated in the form of sensory perception alone (e.g. going fast)
  6. Opinions that benefit from inference (e.g. drunk because bloodshot eyes and wobbly)

Expert Opinion(PQRS 403)
FRE 702: Under 104a, Scientific, technical, or specialized knowledge admissible IF:
  1. Proper Topic: Subject matter is appropriate for expert testimony and opinion is helpful to the jury;
  2. Cannot speak to obvious matters (e.g. macho v. match)
  3. Cannot offer opinion on whether Ds state of mind/condition qualified for element of charge/claim.
  4. e.g. expert cannot say W is lying, BUT in CA, can say why W would be lying.
  5. Qualified: Witness is qualified as expert by knowledge, skill, experience, training, or education
  6. Low standard but must be specific to the case and testimony
  7. Relevant and Reliable Methods (preponderance of the evidence)
  8. Daubert (Fed): Expert testimony inadmissible UNLESS:
  9. Theory or technique has been tested
  10. Rate of Error
  11. Acceptance (reasonable) among scientist
  12. Publication/peer review;
  13. Standards govern operation of technique
  14. Kelley-Frye (CA): Expert testimony of NEW scientific techniques inadmissible UNLESS:
  15. Reliable scientific principles
  16. Principles are generally accepted in the field, consensus from cross-section of relevant, qualified, scientific community
  17. NOTE: Kelly-Frye has higher bar for new scientific techniques, and Daubert is harder for other scientific techniques.
  18. Sufficient Basis: Opinion is reliable and supported by proper factual basis.
  19. Facts that expert personally observed; OR
  20. Facts based on hearsay ONLY IF experts in that field would reasonably rely on such facts EXCEPT for learned treatises and medical statements exceptions.
  21. Survive 403 Challenge

DOCUMENTARY EVIDENCE
Authentication
FRE 901
Unless opponent stipulates to evidence, party must produce evidence sufficient to support a finding that item is what the proponent claims it is, INCLUDING:
  1. Evidence: Testimony by W with personal knowledge, Opinion about a voice, lay testimony regarding handwriting, evidence about public record, ancient record, or data compilation, ETC.
  2. Chain of Custody: party must also show chain of custody sufficient to support a finding
/ CEC
Same as Federal Rule EXCEPT:
  1. Ancient documents must be 30 years old or more to be deemed authentic.
  2. Categories of self-authenticating documents do not include trade inscription and business records

FRE 902 – Self-Authenticating Evidence
Document is self-authenticating if
practical considerations reduce the possibility of unauthenticity to a very small dimension INCLUDING: certified domestic public documents, certified business records, newspapers, etc / Same as Federal Rule.
Best Evidence
FRE 1002
The ORIGINAL document, photo, or recording is necessary IF a party wants to prove the contents of the same destroyed.
  1. Evidence must pertinent to relevant issue

FRE 1003: Duplicate admissible as originals unless question of authenticity of unfairness:
  1. Includes: copy made by machine or by same impression that made the original, also tractor serial number and tombstone inscription is allowed if quality duplicate
  2. Excludes: Handwritten copies, or other human influenced reproduction, risking human error

FRE 1004/1007: Secondary evidence is allowed to prove contents of original writing, photograph, or record IF:
  1. Lost or destroyed
  2. Cannot be obtained
  3. In the party-opponent’s exclusive possession
  4. Through testimony of party-opponent