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PMBR Evidence Lecture


undefined, object
copy deck
Admission – statement by a party offered against him by his opponent.
Best Evidence Rule
Best Evidence Rule: generally, BER is usually a wrong answer. To prove contents of a writing, the original must be produced or shown to be unavailable. Rule applies whenever contents of a writing are in issue. When in issue?
Where testimony is reliant on the writing and not on personal knowledge.
FRE 104: preliminary qs of admissibility.
3. FRE 104: preliminary qs of admissibility. Determined by the Judge, not the Jury. Judge’s standard is POE. 3 areas
Witness qualifications
If lay w, judge must determine if w had 1st hand knowledge and is her opinion helpful? Or Expert – specialized knowledge, skill, training, or experience…
Existence of a priv – does it apply? Doc-patient, h-w, att-client
Technical evidentiary rules – does a hearsay exception apply? Was declarant under belief that death was imminent?
Question – judge should admit if there was suff. Evid. For jury to conclude that W has 1st hand knowledge.
Habit evidence
Habit evidence: 406: evidence of the habit of a person or the routine practice of an organization whether corroborated or not an regardless of the presence of eyewitnesses, is admissible to prove conduct. Opinion or specific acts. Not reputation.
“always” automatically invariably, customarily, habitually
Legal Relevancy
Legal Relevancy. 407-411. Inadmissible b/c of public policy reasons.
Settlement offers – offer to settle a claim which is disputed is inadmissible. There must be dispute to trigger rule. Dispute as to validity or amount of the claim.What if admission and settlement offer? Q will ask can admission be severed? Answer is no. No severance under FRE 408. Statements made in conjunctions w/ offers to settle are not admissible.
offer to pay med bills
There is severance under 409. Statements made in connection w/ offers to pay med bills can be admitted. offer to pay med bills inadmissible to prove liability for injury.
subsequent remedial measures
evidence of SRM is inadmissible to prove negligence, design defect, or the need for a warning. Exception: to show ownership or control. Then SRM is admitted.
Public a-c communications
public communications are not privileged.
Character evidence in criminal case: “opening the door"
Character evidence in criminal case: “opening the door”: a D may open the door with reputation or opinion evidence of his good character to prove his innocence and the prosecution may so rebut. No specific acts. Trait being offered must go to prove innocence on that particular charge. Good neighbor – no, peaceful man, yes – for a charge of murder. Rebuttal by prosec is also ltd. To reputation or opinion only. No specific acts. If D witness opens the door, xex and ask – did you know D committed 3 robberies in the past year? Attorney can do this to challenge the credibility of D’s w.
Character Evidence in a civil case
12-14. Character Evidence in a civil case. FRE 404(A): inadmissible to prove conduct. BIG Exception.
Comes in where character is in issue. All 3 forms of character evidence may be admitted. Reputation, Opinion, and Specific Acts.
Defamation – plaintiff’s character
Child custody - parents
Negligent entrustment - entrustee
Self-defense - victim
*Fraud, deceit, misrepresentation – defendant’s character for honesty
Crim law cross-over: perjury
Collateral Matter Rule
Collateral Matter Rule: extrinsic evidence on collateral matters is inadmissible to impeach. Applies to
1. prior inconsistent statements and 2. bad act impeachment: a q on xex inquiring in to prior unconvicted bad acts relating to truthfulness
. Impeachment – 4 different methods
A showing of bias or prejudice – this is always material and never collateral
Sensory defects – inability to observe, remember, hear
Prior Inconsistent Statements
Reputation or opinion evidence for truthfulness or untruthfulness
Bad acts impeachment
Felony convictions
These are discretionarily admitted – subject to probative/prejudicial balancing
Convictions of crimes involving dishonesty or false statement
These crimes can be either felony or misdemeanors No discretion. Admissible as a matter of right UNLESS the crime is more than 10 years old. 10 yr. rule: convictions more than 10 years old are inadmissible to impeach unless probative value substantially outweighs prejudicial effect.
MIMIC: FRE 404(b).
18. MIMIC: FRE 404(b). *Criminal, evidence is offered by Prosecution, and MIMIC evidence is almost always offered during rebuttal. Not in the case in chief. This is how to spot it on MBE. Evidence of other crimes, wrongs, or acts may be admitted to prove MIMIC
Mistake, absence of / knowledge
Common plan or scheme
Prior Inconsistent Statements
19. Prior Inconsistent Statements: FRE 613: admissible only to impeach. Police report as business records? Under the FRE – police reports are inadmissible in criminal cases and are used as discretionary in civil cases. They are inadmissible in criminal because they are inherently untrustworthy. So when police at scene, he’s incorporating into it out of court statements so it’s all hearsay. SO that’s why they are untrustworthy. Having said that, let’s look at prior inconsistent statements. We’ve talked about 613 variety, but what about FRE 801(D).
801(d): prior inconsistent statement admissible substantively AND to impeach. Here, the inconsistent statement is sworn. Sworn means subject to penalty of perjury at trial, deposition, or other proceeding. Here’s the approach. 1. ask who made it. Because if a party makes an inconsistent statement it’s an admission and that gets in, both substantively and to impeach. Now, if a non-party makes the inconsistent statement, pick b/w 613 and 801(d) and look to see if the statement was sworn. 5 examples of prior inconsistent statements:
Statement made to a friend – not sworn – comes in under 613 only to impeach.
Deposition. 801(d) sworn so for substance and to impeach
Grand Jury proceeding. 801(d) again
Made at a coroner’s inquest: a proceeding. 801(d) again
Affidavit – 613. Not a trial, deposition or a proceeding. So it comes in only to impeach.
Multiple hearsay
20. Multiple hearsay. 2 or more out of court statements. This is a fav essay area. Each layer must be separately admissible in order for it to come in.
OSHA record. This is a public record. A segment of the report quotes someone as to the cause of the accident at issue. Vicarious admission – a statement of a party’s employee offered against the party (his employer) by his opponent.
admission v. hearsay exception
22. Admission is a stronger grounds for admissibility than a hearsay exception. Look for the present-tense of the verb. That’s a present physical condition. If it’s past tense you can eliminate present-sense.
Present physical or mental state
Present physical or mental state. Hillman – I’m going to Colorado. That’s a statement of present intent. Let it in. Shows victim’s intent. If this was an essay, tell the examiners that the rest of the statement dealing with the threat is not going to come in and the judge would have to give a limiting instruction.
State of mind
State of mind. A form of non-hearsay. Circumstantial evidence offered to show knowledge, intent, attitude, or belief of the declarant or of the listener. This is a good argument for essay as long as it’s relevant to the declarant or the listener. I.e. a warning to show knowledge of the listener.
diary that police officer sees
diary that police officer sees. Officer testifies as to what the Person who wrote the passage said. That’s hearsay. No exceptions, inadmissible.
Hearsay hierarchy
Is the evidence competent at all to be admitted?
Relevancy? Is it probative?
Reliability and trustworthiness.
Hearsay approach
Isolate the statement
Determine who is the declarant
Purpose for which the evidence is being offered – for its truth? If yes, hearsay. If not for its truth, nonhearsay
Main areas of nonhearsay
801(d) – 4 types of statements that are non hearsay.
Prior sworn inconsistent statements
Prior consistent statements – statements offered on redirect to rebut a charge of fabrication
Prior ids.
State of mind
Verbal acts: statements that have independent legal significance.
Tortuous words – these are the actual words of libel or slander in a defamation action.
Transactional words – the actual words of a contract, deed or will. Words of offer and acceptance.
Apply the hearsay exceptions
Statements to docs
Statements to docs- ones admitting fault are not included when you say something to a doctor. i.e. he ran a red light (and hit me in the leg – this is ok for diagnosis)
Contents are in issue
Contents are in issue where the testimony relies on the writing. Here, the BER applies so we have to produce the writing into evidence.
Dying declaration
Dying declaration – POE b/c it’s a preliminary q of admissibility. Rule 104 and dying declaration.
Statement must concern the cause or circumstances of death
Unavailable declarant
Criminal homicide case or any civil case
Declarant’s belief of imminent death
Excited utterance
statement relating to a startling event made while declarant was under the stress of excitement.
Pres. Sense imp
a statement describing an event made while or immediately after perceiving it. Writing – an assertion. It’s hearsay but it gets in.
Confrontation clause
6th am. D must have an opp. To confront witnesses. It’s more. D needs to have the opp. To XEX the declarant. Her availability isn’t an issue b/c the evidence being offered isn’t testimonial. Crawford applies in criminal case and it deals with TESTIMONY being offered.
Declaration against interest
Against interest when made

also you need corroboration
Former testimony:
Same or diff case or depo
Unav. Declarant
Opp or similar motive
Family records exception
Statements made in family bibles
Inscriptions on family portraits
Engravings on tombstones
Records of vital statistics
Birth Certificate – copy. Records of vital statistics. Photocopies and duplicates are generally treated as originals.
Learned Treatise Exception
Learned Treatise Exception: statements made in treatises may be read into evidence once authoritativeness has been established.
Authoritativeness – foundational requirement
Court can take judicial notice or
Expert testimony can get it in. You can even call in another expert to testify.
Then it’s ok for substantive evidence and to impeach.
The writing itself may NOT be admitted. Testimony comes in, the writing does not.
FRE 612 – refreshing recollection
FRE 612 – refreshing recollection. Not a hearsay exception. You can use a leading question or a writing. Even an attorney’s handwritten notes. What are the rights of opposing counsel?
Can ask to inspect the document
Can cross examine with it
Can show it to the jury for comparison purposes
She can introduce relevant portions into evidence to impeach
label on can of sardines w/ a dead mouse in it. She wants to introduce into evidence of can w/ label. Court will overrule objection b/c label is self-authenticating. Trade labels are prima facie evidence of ownership and authenticity. Comes in as self-authenticating to prove ownership. How do we know it’s same label? Proponent doesn’t have to show genuineness for admissibility. If it’s a question, trademark law provides adequate safeguards
Jury Instructions
presumption v. inference: presumption shifts the burden of production to the opposing party, and it must be accepted as true unless it is rebutted. An inference does not shift the burden of production, it permits but does not require the jury to find the inferred fact. If the facts say “could” infer, then the jury instruction is proper as a permissible inference. Presumptions are disfavored in criminal cases because a JAMOL is never permitted against the accused
Spousal priv
46. Spousal priv protects all communications both during and before marriage. Upon divorce the entire privilege is lost. Protects in criminal cases only. Who is the holder? CL says party spouse. However, in federal courts, it is the witness spouse. That is the majority position today.
Marital priv
protects confidential communications during marriage. However, upon divorce, the communications remain protected. Applies in civil and criminal cases. Both spouses are holders. Either one can render the other incompetent to testify. This and spousal priv. can overlap.
Attorney representative
a person hired by the attorney to assist in rendition of legal services. This can be a consultant, accountant, expert⬦ Any communication b/ w the representative and the clients and vice versa is protected under the a-c privilege
Criminal – expert
Criminal – expert can’t opine as to whether defendant possessed the mens rea of the crime charged. Look to the crime “w/ intent to distribute”
Lay opinion
FRE 701 – the opinion must be rationally based on the witnesses’ perception and the lay opinion has to be helpful to the fact finder. Scope of a lay opinion - *physical measurements such as height, weight, speed of a vehicle. Don’t need an expert to testify about a car speeding if the lay witness is percipient.

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