Evidence Bar Exam Lectures

I. RELEVANCE
Always start with relevance. Every other issue depends on this threshold issue. What’s
the purpose of the evidence?
Two Theories of admission under relevancy:
1. Logical Relevance or probativeness
2. Discretionary / Pragmatic / Policy based relevance
A. Logical Relevance (Rule 401) – Applicable Law Everywhere
a. Evidence is logically relevant, if it has any tendency to make a
material fact, more probable or less probable than it would be
without the evidence.
i. TIP: we worry about logical relevancy when the evidence
concerns some other time, event, or person (sometimes it
might be too remote).
B. Discretionary Relevance (Rule 403) – Applicable Law Everywhere
a. Stricter standard. Evidence might be logically relevant, but still not
admissible, because its probative value is substantially outweighed
by one of the following:
i. Danger of unfair prejudice
ii. Confusion of the issues
iii. Misleading the jury
iv. Undue delay
v. Waste of time
vi. Cumulative Evidence
b. TIP: Bar Exam Question – what’s missing from the list?
i. Unfair Surprise – Sample Question – what’s the least unlikely
ground to exclude evidence? Unfair Surprise. This is not a
ground for exclusion of evidence under Rule 403.
II. LOGICAL RELEVANCY
a. There are eight situations where the evidence does concern some other
time, event, or person, but is still relevant and admissible.
1. Complicated Issues of Causation (to prove cause and effect
in complicated situations).
2. Prior Accidents or Claims (usually two parts)
a. ∆ wants to show prior accidents or claims of Plaintiff
i. Prior accidents or claims are not admissible,
EXCEPT:
1. To prove common claim or scheme of
fraud
2. If the prior claims or accidents are
relevant to the issue of the

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 a. I.e., if you are claiming injury to
the same place as you had in the
past.
b. Plaintiff wants to show the same allegedly offending
instrumentality
i. Prior accidents involving the same
instrumentality which occurred under the same
or similar circumstances may be shown.
ii. Reason: To show notice / knowledge and also
to show that the instrumentality is dangerous.
3. Where the Intent or state of mind of a person is an issue
a. How do you show intent? By conduct.
4. To rebut (and for examination purposes, to rebut the
claim or defense of impossibility)
a. Evidence of a prior event, person, or time may be
admitted. I.e., Coca-Cola mouse example.
5. Comparable sales to establish value
a. At issue would be the value of your property / chattel.
You may show what some other chattel sold for
provided that:
i. Other items where of the same general
description
ii. Sales took place in same general geographic
area
iii. Other sales took place at around the same time
period.
6. Habit Evidence
a. Under Federal Rules habit evidence is admissible to
infer that at the time of the litigated event, that person
acted in conformity with his or her habit.
i. How do you know is habit? (habit tends to
overlap with these two other rules:
1. Disposition Evidence – the disposition of
a person to i.e., be careful or careless is
not admissible to show that the person
was careful or careless at the time of the
litigate events.
2. Prior Acts – Evidence that a person acted
in a certain way once or twice on a prior
occasion is generally not admissible to
infer conduct on the occasion in question
at the time of the litigated event.
ii. Two key words which describe habit evidence:

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 1. Specificity—it must be specific / detailed
conduct.
2. Recurrence – it is habitual / automatic. It
has to occur often enough. How many
times? This is discretionary depending
on the circumstances.
3. Buzz Words – “always,” “instinctively,”
automatically, invariably.
NEW York Distinction:
New York is less liberal about admitting habit evidence
Rule:
1) Evidence of habit in a professional or business context is admissible in NY. I.e.,
attorney’s habit of exercising a will.
2) Exception: In NY, generally habit is not admissible to show that a party used care
or file to use care in a negligence situation.
3) Exception to Exception: Habit Evidence will be admissible to show that plaintiff
in products liability case misused or properly used a product. Rationale: In this
area, the actor has more or less complete control of the use of the products.
7. Industrial or business routine – The normal routine of the
entity (i.e., corporation) is admissible to show that at the time
of the litigated event, this corporation acted in conformity
with its business routine. (Same Rule in NY).
8. Industrial Custom as evidence of the standard of care- the
custom of the business as a way to establish the standard of
care. I.e., what do other parties in the business usually do?
a. This is not conclusive evidence, but it will be
admissible.

III. DISCRETIONARY / PRAGMATIC / POLICY BASED RELEVANCE

Three Rules
i. Liability Insurance
ii. Subsequent remedial measures
iii. Settlements
a. Liability Insurance
a. Is not admissible to show negligence (i.e., any kind of fault) or the
ability to pay a substantial judgment (nor would the absence be
admissible to show otherwise).
i. Two situations where admissible:
1. To prove ownership and control when ownership and
control is disputed
2. where it is relevant to impeach the credibility of a
witness by showing that the witness has a stake in the
litigation (showing, interest, biased or motive)

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 3. TIP: Bar examiners will give you evidence that is not
admissible for some purpose, but that can be used to
impeach the credibility of a witness by showing a stake
in the litigation.
b. Subsequent remedial measures (repairs) – are not admissible to
prove negligence or comparable conduct.
i. Exceptions:
1. To prove ownership and control when it is disputed
2. To rebut or to impeach (to show the feasibility of a
precautionary measures when feasibility is
challenged). (to rebut a claim that precautions were
impossible)
a. Example: When ∆ says that there is no way to
have avoided the accident / make product safer.
Plaintiff could show that ∆ did make the
product safer after the fact.
3. Under the federal rules, you cannot get evidence of
subsequent remedial measures to show a defect in a
product design or need for a warning (not admissible
in strict liability).

New York Distinction:

In NY, it depends what kind of strict liability you are talking about.
In design defect cases – not allowed
In failure to warn cases – not allowed,
However, in a manufacturing defect case, you can bring the evidence in, if the
subsequent repair is relevant (to establish defectiveness of product when made).

ii. Subsequent remedial measures by third parties - it would

be admissible if it is relevant.
c. Settlements
i. Are not admissible to prove liability for, invalidity of, a claim
that is disputed as to validity or amount. (In other words, not
admissible as to any kind of fault or liability or damages).
1. an offer to compromise a claim that is disputed as to
liability or damages is not admissible
2. An offer to plea guilty is not admissible
3. The withdrawal of a guilty plea is not admissible
4. An admission of fact/ liability/ damages which is made
in the course of a compromise is not admissible.
5. Nolo contendere pleas are not admissible.
ii. Limitations:

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 1. There must be a claim (this does not mean that there
has to be litigation). It cannot be too early / there must
be a claim
2. there has to be a dispute s to liability and / or amount
a. If you admit to full damages or liability then
this would be admissible.
3. An offer to pay hospital or medical expenses is NOT
admissible. However, an admission of fact as to
damages or liability related to an offer to pay medical
bills will be admissible.
a. The offer itself is not admissible, but the
admission would be.
IV. CHARACTER EVIDENCE
a. Character evidence may be offered as substantive, rather than impeachment
evidence to (1) prove character when it is the ultimate issue in the care or
(2) serve as circumstantial evidence of how a person probably acted.
b. The use of character as substantive evidence to prove a material fact in the
litigation:
i. Four preliminary questions / considerations upon which applicability
depends:
1. For what purpose do you seek to introduce the character
evidence- Possible Purposes:
a. Character of party is one of the material issues in the
case
b. Character as circumstantial evidence to infer conduct
at the time of litigated event
c. Character to impeach credibility of a witness
2. What method can you use to prove character?
a. Three possible ways:
i. Specific acts of conduct
ii. By opinion testimony (call a witness to give an
opinion)
iii. Reputation evidence (this is the common law
traditional way)
b. *The method used depends on the purpose.
3. What kind of case?
a. Civil
b. Criminal
4. Character for what trait?
a. This is important because you cannot prove general
character. It has to be specific - it has to be the
character that is the substance of the case.
c. CHARACTER IN CIVIL CASES

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 i. No character in civil cases. No character as circumstantial evidence
to infer conduct in a civil case by either party.
1. Character is admissible if the character of a party is at issue in
the case.
2. TIP: the only kind of question used has been the defamation
action where truth is a defense. In this situation, character
evidence will be admissible and you can prove it by using any
of the methods.
ii. SUMMARY:
1. If it is purpose # 2, not admissible by either party.
2. However, if it is purpose #1, you can prove it
3. and you can use any of the methods (reputation, opinion,
specific acts)
iii. TIP: don’t be too quick to assume that character is directly at issue
(this is rare)

V. CHARACTER IN A CRIMINAL CASE

a. Character directly at issue (rarely ever tested)
b. Character as circumstantial evidence (very much tested!)
i. May evidence of criminal propensity be allowed?
1. Basic Rule: no bad character evidence in any form at the
initiative of the prosecution, unless, the defendant first tries to
show good character as circumstantial evidence to infer
conduct, (i.e., to infer innocence)
2. In a criminal case, the ∆ can use purpose # 2. The accused
can take the initiative to show good character, and then and
only then, can the prosecution act.
3. TIP: If the ∆ takes the stand, he may be impeached by the
prosecution with his prior convictions. However, merely
taking the stand and testifying about the facts of the case does
not open the door. Taking the stand places the defendant’s
credibility (not character) in issue.
ii. How methods can the defendant use (to open the door)?
1. Common Law: Reputation evidence is the only way to prove
character when offered to show conduct.
2. Under the Federal rules – you can aside from reputation, use
opinion testimony. (Call a witness that would give his
personal opinion concerning the trait of the ∆).
3. CANNOT USE SPECIFIC ACTS
iii. How can the prosecution respond?
1. TWO POSSIBLE WAYS:
a. The prosecution is entitled to cross-examine the
accused’s own good character witness by inquiring as

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 to any specific acts which would tarnish the reputation
of the accused or which would affect the opinion of the
witness.
i. I.e., the prosecution can inquire about arrests on
the defendant’s record, to basically test the
witnesses’ knowledge of the reputation.
NEW YORK DISTINCTION:
In NY, the questions in cross-exam have to be “have you heard,” NOT “do you know?”
FEDERAL RULE:
Under the federal rule, the prosecutor can ask both “have you heard, and Do you know
questions – either form is okay.
However, you must live with the answer of the witness!
ii. The inquiry as to specific acts is limited to
cross-examination, cannot prove it / must take
answer of the witness (not extrinsic evidence)
2. The prosecutor is entitled to call his own bad reputation
character witness
IN NY – this “bad character” witness will be limited to Reputation (not specific acts).
a. Under the federal rules, the witness can testify as to
opinion or reputation
IN NY – the introduction of prior convictions of the ∆ is allowed ONLY when they
adversely affect the character trait in issue.
c. VICTIM’S CHARACTER
i. MS RULE: if the victim’s character is relevant to a defense of the
accused, the ∆ is entitled to take the initiative to show the bad
character of the victim.
ii. TIP: usually more related to assault / murder cases
iii. The ∆ can call a witness to testify about the victim’s reputation or
opinion but NOT SPECIFIC ACTS.
iv. The prosecution can rebut by either or both:
1. showing good character of the victim or / and
2. Attacking the character of the accused himself by reputation
or opinion testimony. (By placing the victim’s character in
issue, the ∆ also opens the door to his own character).
NY DISTINCTION:
NY does not allow the attack of the victim’s character in this situation.
3. RAPE SHIELD LAWS: in any civil or criminal proceeding
involving alleged sexual misconduct, evidence offered to
prove the sexual behavior or sexual disposition of the victim
is generally inadmissible.

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 4. MS + NY RULE: A specific act of conduct of the victim
would be admissible to show the state of mind of the ∆, if it
was communicated to the ∆ (acts of violence)
VI. SPECIFIC ACTS OF MISCONDUCT
a. A prior act of misconduct will be admissible if it is not to show character
AND is relevant apart from a showing of criminal disposition.
1. Exception: If the prior act of misconduct is being used to
prove criminal disposition.
b. Situations where a prosecutor can show a prior ct of misconduct:
i. MOTIVE – prosecutor is entitled to show motive
ii. INTENT – or the state of mind of the ∆ is at issue
1. You usually prove mental state by conduct.
iii. INDENTITY
1. Modus Operandi – this is a crime that is distinctive and
unusual i.e., ∆’s trademark or “signature”
a. In order to fall into this category of modus operandi,
the crime must be “distinctive and unusual” and then it
will be admissible.
iv. COMMON PLAN OR SCHEME
Motive
Intent
Mistake (absence of)
Identity
Common scheme or plan
1. Two points about MIMIC:
a. Applies only to prior acts, FRE 403 still applies (even
if you have an act that shows of the 5 things, the judge
can still exclude it) – IN MS – prejudice and
unfairness will be very obvious.
b. The MIMIC Rule also applies in civil cases.

VII. WRITINGS AND DOCUMENTARY EVIDENCE

a. Favorite issue for evidence essay question
b. AUTHENTICATION
i. The fundamental general rule is that “a writing is not admissible
until it has been authenticated. Have to show that the writing is
genuine.
ii. General rules:
1. Writings are not self-authenticating - need to establish a
foundation before it is admitted.
2. You can authenticate a writing by direct evidence or
circumstantial evidence
iii. SIGNATURE

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 1. You can prove a signature by:
a. Lay witness: any witness that is familiar with the
signature. The person does not have to be too familiar.
i. It can be a person that has seen the signature in
the ordinary course of business.
b. Expert Testimony: the expert will compare the
disputed signature with a genuine specimen that
everyone would agree is the signature of the person
c. Jury Comparison: the jury itself can compare the
signature in question with a genuine specimen.
2. What’s not permitted?
a. A lay witness cannot make a comparison
b. A lay witness cannot become familiar with the
signature just for the purpose of litigation.
iv. Circumstantial Evidence
1. Ancient Document Rule: an document may be authenticated
by evidence that it:
a. is at least 20 years old or more (federal Rule)
i. 30 years or more (NY rule)
b. is in such condition as to be free from suspicion as to
authenticity; and
c. Was found in a place where such writing would likely
be kept.
2. Solicited Reply Doctrine – A writing may be authenticated
by evidence that it was written in response to a
communication sent to the claimed author. Writing comes in
reply to a prior communication. Very strong circumstantial
evidence.
v. What quantum of proof is necessary?
1. there has to be a foundation laid for the evidence
2. It is for the jury to ultimately decide whether the document is
genuine. All you have to do is introduce enough evidence
that would allow a reasonable person to conclude the
document is genuine. “Sufficient evidence to justify a jury
finding.”
3. Self-Authenticated Writings (six kinds) – meaning extrinsic
evidence of authenticity is not required for the following:
a. Certified copies of public or business records (i.e.,
certify copy of a mortgage)
b. Official publications – i.e., books or pamphlets –
indicating on their face that they come from a public
authority.
c. Newspapers and periodicals

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 d. Trade inscriptions or labels – indicating ownership or
control. i.e., can of green giant beans
e. Acknowledge documents
f. Commercial papers as provided by the UCC.
vi. Photographs
1. In order to authenticate photograph – do you have to call the
photographer? NO. All that is required is a witness that can
look at the photograph and state that it is an accurate
representation of the people or objects in it.
a. In other words, all you need is a witness that is
familiar with the things depicted in the picture. Just
lay a “sufficient foundation.”
c. THE BEST EVIDENCE RULE
i. This is a narrow rule that applies ONLY to writings. Writings are
liberally defined to include: film, x-rays, recordings, documents,
photos.
ii. The rule expresses a preference for the original document.
iii. KEY: it requires that a party seeking to prove the contents of a
writing must either produce the original document or satisfactorily
account for its absence
1. In other words, if your excuse for not producing the original
is a good one, then a copy or oral testimony is admissible.
iv. When does the rule apply?
1. When the writing is a legally operative document – that is a
writing which itself creates or destroys a legal relationship
that’s at issue in the case. i.e., a will, a contract, a divorce
decree.
2. Where the witness SOLE knowledge comes from a writing
(in order words, where the witness knows about something
because he or she read it somewhere).
v. Analysis for writing:
1. Has the writing been authenticated?
2. If the writing is a copy, worry about the best evidence rule,
has the absence of the original been properly explained?
3. Hearsay – are you trying to prove the truth of the writing?
a. Applicable Hearsay exceptions to writings
i. Admissions of a party
ii. Recorded recollection / prior testimony
iii. Business records
b. Key: only applies when you are seeking to prove the
context of a writing.
vi. When does it not apply?

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 1. When the fact to be proved is independent of the writing.
(This is a situation where you want to prove some fact that’s
in a writing; however, you have a witness on the stand with
personal knowledge.
a. I.e., you can prove death – without a death certificate,
you can prove birth –without a birth certificate.
b. Sample Q - I Spinal make payment? Witness takes
the stand and says that she saw Spinal pay and get
receipt. Answer: the best evidence rule has nothing to
do with this situation, because witness has personal
knowledge.
2. A legitimate exception: Collateral document exception:
the best evidence rule does not apply to writings of minor
importance to the litigation.
vii. Modifications to the Best Evidence Rule (Situations where you can
produce some other writing – not need the original)
1. Public Records- no need to produce original of public
record. (Purpose: it is hard to get the original. The best you
can get is a certified copy).
2. Voluminous documents – when the original documents are
so voluminous that they cannot conveniently be examined in
court, then the proponent may prove its contents by means of
a summary, calculation or a chart.
a. Two requirements:
i. The voluminous originals must be admissible
evidence
ii. The voluminous originals must be equally
available to your opponent, so that he or she
may prepare his own summary, chart or
calculation.
viii. What’s an original?
1. Under the FRE, we have something called a duplicate, which
is a counterpart produced by any technique that accurately
reproduces the original and that would avoid casual errors.
I.e., a fax, carbon copy.
a. TIP: If you copied it by hand, this would be secondary
evidence and is admissible only if the original or a
duplicate is unavailable.
2. Duplicates are admissible, just like the originals unless:
a. There is a genuine question raised about the
authenticity of the original
b. Or it would be unfair to admit the duplicate in place of
the original.

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 3. TIP: On the exam, an objection based on the fact that it is a
duplicate would lose, because a duplicate is acceptable –
unless a or b are shown.
NEW YORK DISTINCTION
The Uniform photographic copies of business and public records as evidence act
: NY does not recognize duplicates. However in the act, photographic copies are
admissible as primary evidence, if the copies were made, kept, or recorded in the
ordinary course of business, then the copies would be admissible just like the original.

VIII. WITNESSES AND TESTIMONIAL EVIDENCE

Here we are dealing with live witnesses.
A. Competency of the Witness – the focus is on the person on the stand, not so
much on the subject matter of the testimony.
a. There are four basic requirements for capacity:
i. Perception – the witness must have observed something
ii. Memory – the witness must be able to remember
iii. Communication – the witness must be able to relate what he or
she saw
iv. Sincerity - the witness must manifest some willingness to tell the
truth. i.e., take the oath.
b. These for requirements do not have to be met 100%, and the witness
will still be found competent.
c. The FRE boils it down to two limitations:
i. Witness must have personal knowledge of the matter about
which he is t testify; and
ii. The witness must declare that he will testify truthfully. i.e., take
the oath or affirm.
d. DISQUALIFICATIONS:
i. Infancy: no automatic disqualification. There is no age in the
FRE for automatic disqualification of a child. If he child meet
the 4 requirements he made testify (this is determined by the
judge).
ii. Insanity (judicially declared incompetent): An insane person my
testify, provided he understands the obligation to speak truthfully
and has the capacity to testify accurately.
iii. Convicted criminals: no disqualifications (even if convicted of
perjury 13 times).
NY DISTINCTION – Child Witness
1) All testimony in a civil case must be sworn. All witnesses must take the oath
(understand the nature of the oath). A child that is not sworn cannot testify for a
civil case.
2) In a criminal case, a child under 12 years old or anyone who has a mental defect
who does not understand the nature of the oath, can testify without being sworn, if

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 the person has sufficient intelligence to justify reception of the evidence.
*However, this unsworn testimony cannot alone be the basis of a conviction.

iv. All interest based disqualifications are gone, except:

1. The Dead man statute. There is no federal dead man
statute. However, if you are in federal court, a state’s
dead man statute can apply, if state substantive law
applies. This means that the dead man statute will apply.

NY is one of the states that does have a dead man statute.

Rationale: Fear of perjury.
2. Definition – an interested survivor is incompetent to
testify for his or her interest against the decedent or the
decedent’s representative about communications or
transactions with the decedent in a civil case unless there
is a waiver.
3. TIP: Be suspicious on the exam, because most of the
times, the dead man statute is not applicable. All the
requirements must be met:
a. The witness on the stand must have a direct stake
on the outcome of the litigation
b. Even if you have an interest, that witness must be
testifying in favor of her interest
c. The witness must be testifying against the decedent
or the decedent’s representative.
d. The interested survivor is only prevented to testify
as to matters that the decedent could contradict if
he was alive.
e. The Dead man statute NEVER applies in a criminal
case.
f. Even if you have all the elements, there may still be
a waiver. How do you waive it?
i. If the testimony of the decedent gets to the
jury by way of deposition, then the survivor
can reply.
g. TIP: look for all the elements; frequently they will
not be there.
h. TIP: Multi-state – when they give an answer
choice of “dead man statute” do not assume that
there is a dead man statute. This is not going to be
the right answer, unless the question states that a
dead man statute is in play.
NY DISTINCTION – automobile exception to the dead man statute:

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An interested survivor may testify about the facts of negligence or contributory
negligence in an accident arising out of the operation of an automobile, airplane or vessel,
(i.e., defendant in a wrongful death action may testify that the decedent, not the
defendant, was driving at the time of the accident) but cannot testify as to
communications about them.

B. FORM
a. This is a matter of judicial discretion.
b. Basic rationale: the witness not the lawyer must testify. There must be
interrogatory, not a narrative by the witness.
C. Kinds of Questions
a. Not leading questions. A leading question is one that suggests the
answer to the witness in the body of the question.
b. Leading questions are improper on direct examination, but they are used
in cross-examination or in situations where necessity or convenience
requires you to do it.
i. Where can you lead?
1. Cross examination
2. On direct, you may lead as to preliminary / non-crucial
matters.
3. When you are having trouble eliciting the testimony
because the witness is:
a. A child
b. Disabled
4. when you are examining someone under the control of the
adverse party or a genuinely hostile witness
ii. Misleading/compound/argumentative questions all have the same
defect – it is the kind of question which assumes as true,
something that is still in dispute.
D. WHEN CAN A WITNESS USE A WRITING IN AID OF ORAL
TESTIMONY (popular area for essay questions / at least one multi-state
question)?
a. Usually, this arises in a situation where you put some professional
(doctor, police officer) on the stand to testify and they want to refer to
their notes.
i. Basic Rule: witnesses are not supposed to read in court.
Witnesses are supposed to testify from personal recollection.
ii. Two situations where the witness can use a writing:
1. refreshing recollection (in NY called: present
recollection revived)
a. Use a writing only to jog the memory of the
witness so that she may testify from her

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 independent memory. Thus, you can use any
writing to try to jog the memory of the witness.
b. The writing does not need to abide by the rules.
c. Key: the witness must say “I can’t remember, I
can’t recall”
d. Rule: anything you use to refresh the memory of
the witness, opposing counsel is entitled to see and
use in his cross-examination of the witness and
opposing counsel is entitled to put into evidence
any writing that the attorney uses to refresh the
recollection.
i. Purpose: To avoid attorneys handing the
witness the answers.
2. Recording recollection (in NY- past recollection recorded)
a. The writing has to come into evidence as a
substitute to the independent memory of the
witness.
b. Need to lay the proper foundation:
i. You must show that the witness at one time
had personal knowledge
ii. The statement must have been made by the
witness or under the supervision of the
witness or adopted by the witness at the time
of its making. (Basically, it must be the
witness’ own statement.
iii. The statement must have been timely made
(made when the matter was fresh in the
mind of the witness).
iv. Most establish that the document is reliable
v. The witness must be unable to remember all
or part of the details of the transaction or
incident.
c. How does the writing come into evidence?
i. By being red to the jury. The jury does not
get to see the exhibit. To avoid emphasis to
the recorded testimony.
NEW YORK DISTINCTION: the testimony will be allowed to be handled by the jury.
ii. Recorded recollection is an exception to the
hearsay rule.
E. OPINION TESTIMONY
a. Lay opinion
i. Lay opinion is admissible if:

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 1. The opinion is rationally based on the perception of the
witness (meaning, the witness has personal knowledge),
AND
2. helpful to the trier of fact
b. Expert Witness (powerful tool to litigation)
i. 4 basic requirements for expert testimony:
1. The subject matter must be appropriate for expert
testimony.
a. KEY: assistance / helpful to the trier of fact
i. The methodology underlying the opinion
must be reliable
ii. The opinion must be relevant; it must “fit”
the facts of the case.
b. The proponent must establish these requirements as
a condition to admissibility by a preponderance of
the evidence. The proponent has to convince the
judge by preponderance of the evidence.
NY DISTINCTION: (General acceptance standard)
In NY, if the expertise involves novel scientific evidence, then it will be admissible
ONLY if the methodology is generally accepted in the appropriate scientific community.
2. The witness must be qualified as an expert. The witness
can be qualified based on experience; it does not have to
be education necessarily.
3. The expert must possess reasonable certainty or
probability regarding his opinion. (The opinion must be
elicited in form that informs the judge that this is more
than just mere guess work. It has to be something more
than mere probability).
4. The opinion must be supported by a proper factual basis.
The facts must be a proper basis.
a. Three possible basis:
i. Facts within the personal knowledge of the
expert. i.e., treating doctor of the victim.
ii. Facts which are supplied to the expert in
court by the evidence usually through the
hypothetical question. All the facts in the
hypothetical are the facts in evidence at the
trial.
iii. IN NY AND MS – the expert may base an
opinion in facts that are not in evidence, not
of personal knowledge and inadmissible as
long as the facts underlying the opinion are
of a type that experts in the field will

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 reasonably rely in making an outside
decision. (Reliability as established by the
profession).
F. Authoritative Texts and Treatises
a. Under the FRE and NY – you can use the content of a publication to
impeach the expert witness. (Purpose: to show varying opinions among
experts).
i. The expert must testify first and you need to lay a foundation
1. If your opponent’s expert actually relies / mentions the
publication during his direct, then you can read from the
treatise into evidence.
2. You can elicit an admission in cross-examination of the
opponent’s expert – i.e., ask the doctor about the treatise
3. You may call your own expert witness and he can testify
to the treatise and then you can read from it.
4. Judicial notice – if the work is very well known, then you
can ask the judge to take judicial notice.
b. The FRE take it one step further (multi-state)
i. Under the federal rules, you do not have to wait until the other
side puts in an expert, you can put your own expert to give an
opinion, and then you can read from the treatise and it will come
in for its truth.
ii. Hearsay- there is an exception to the hearsay rule. The FRE says
that if you can establish that it is a learned treatise – then you can
put it in. Two Limitations:
1. there must be an expert on the stand (either your own or
the other side)
2. The text or treatise ONLY comes into evidence by being
read to the jury. The jury is not allowed to inspect the text

IX. CREDIBILITY AND IMPEACHMENT

a. If You want to impeach a witness, you can do it in one of two ways:
i. During cross-examination or
ii. By extrinsic evidence (which means other means i.e., documents /
witnesses)
b. Cross Examination for Impeachment:
i. Three things to remember:
1. Some opportunity to cross any witness who testifies live is an
absolute right (however, the extent of cross is discretionary).
2. The scope of cross is limited to the scope of the direct
examination. (You may cross about any issues that were
treated either implicitly or implied during the direct
examination of the witness).

17
 a. If you would like to cross about other issues – you
would have to call the witness yourself.
3. COLLATERAL MATTERS DOCTRINE –
(impeachment by contradiction) – this is a rule that states
that you are bound by the answers that you get from a witness
in cross as to collateral matters. (No extrinsic evidence
allowed).
a. No extrinsic evidence is allowed to contradict a
witness as to a collateral matter.
i. What’s a collateral matter? It is a matter which
is relevant ONLY because of the contradiction.
It is not relevant to any other issues in the case,
but only to contradict the witness.
ii. Purpose of the rule: Interest in efficiency.
c. CREDIBILITY AND IMPEACHMENT
i. When and in what ways can you call a witness a liar?
1. Narrow issue: It is like a trial within the trial. The only issue
being credibility of the witness.
ii. Can you bolster the credibility of your witness before his or her
credibility has been properly attacked? NO, there has to be an attack
to credibility first. BAD MUST COME BEFORE GOOD.
iii. Prior Consistent Statements
iv. Prior Identifications by the victim
New York Distinction
Prior Identifications by the victim are allowed in NY.
Hearsay-- Not it is excluded from the hearsay rule.
IN NY a third party witness cannot testify normally to a prior ID made by the witness
(victim) unless the victim himself is unable to make the in court Identification because of
a failure of recollection.
v. Both NY and MS – a witness may testify as to his own prior
consistent ID.
vi. In Both NY and MS – third parties are allowed to testify if victim
cannot remember. (Being afraid of reprisal is not enough)
vii. Unavailable witness – It must be made by the victim, the person
who made the ID must be in the courtroom and available for cross
(protecting defendant’s right of confrontation).
d. Impeaching your own witness
i. Under federal rule: yes, free impeachment. The credibility of a
witness may be attached by any part.
In NY, you may not impeach your own witness, except:
By a prior written signed inconsistent statement or a statement that was given under oath.
You can use it only in a criminal case by the prosecution, if the witness gives
affirmatively harmful testimony.

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 ii. If the witness says “I don’t remember or I don’t know anything
about the case,” this is not good enough for impeachment.
X. Five Traditional Impeachment Techniques
a. Prior inconsistent statement
b. Showing of interest / biased or motive to misrepresent
c. Prior Convictions of crimes
d. Bad act impeachment (specific acts usually of deceit or lies, which may be
inquired)
e. Bad reputation for truth and veracity.
Note: obviously, you can also impeach by showing the witness’ inability to see/hear.

A. Prior Inconsistent Statement (most commonly examined)

a. A witness may be impeached by showing that the witness at some prior
time made a statement different form and inconsistent with the material
portion of the witness’ testimony in court.
i. The prior inconsistent statement is not affirmative evidence and will
not come in for its truth.
ii. A party cannot use the prior inconsistent statement to meet burdens
of production or persuasion.
b. Except: Only Federal rules / Not NY
i. In federal rules, a prior inconsistent statement that was given under
oath and as part of a prior trial, hearing, proceeding, or deposition;
this kind of statement comes in not only to impeach, but also for its
TRUTH.
ii. The prior inconsistent statement from the hearsay rule.
iii. You can use extrinsic evidence to prove that the witness made the
statement. You can use oral testimony or a written document
c. Do you need to lay a foundation?
In NY, you must first ask the witness about the statement, if he denies it, you can
bring in the evidence.
d. Federal Rule: the witness must have the opportunity to explain or deny the
statement. However, there is no time requirement, as long as the target
witness is still available to explain or deny the statement.
e. Important Q
i. P sues D for an automobile accident. P alleges D was speeding. D
takes the stand and says he was not speeding. P calls witnesses to
show otherwise. The inconsistent statement made by P.
1. A prior inconsistent statement by a party is fully admissible
for its truth an you do not need to lay any foundation for it.
As an admission by a party. (It comes in as an admission, not
need to think about impeachment).
f. Exam TIP:

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 i. First question regarding an inconsistent statement:
1. Who made it? If made by a party, when it is 99% of the time
admissible as an admission by a party.
2. Showing of interest / biased / motive to represent (any fact
showing an interest is enough to show the potential for
exaggeration).
a. You can prove it by extrinsic evidence,
b. After, you lay a foundation
c. After you give the witness an opportunity to admit
/deny the fact.
B. PRIOR CONVICTION OF CRIME
a. Just about every jurisdiction would allow for some type of crime to
impeach credibility.
i. What kind of crime?
1. Federal Rule
a. Any crime involving deceit or false statement can be
used to impeach. (It is usable to impeach any witness;
even the defendant) i.e., larceny by trick, fraud,
perjury. The crime has to have an element of fraud.
(In this situation, FRE 403 does not apply).
b. A felony (not involving deceit or false statement) can
be use to impeach but there is discretion. Cannot use
misdemeanors.
c. What kind of discretion? Depends on the witness.
i. Regular witnesses – rule 403 discretion
ii. Accused – the prior conviction will be
admissible if the probative values outweighs
prejudice.
d. Whatever type of conviction should not be too remote.
i. What’s two remote? 10 years is the general
guideline.
ii. IF more than 10 years from the date of release
from confinement - not allowed. This includes
crimes from deceit.
NY DISTINCTION
You can use any crime to impeach credibility of a witness, but:
The trial judge always has the discretion to review it (and this discretion s pretty close to
unreviewable). Great discretion. (Usually tested more in the area of ∆ taking the stand).
NY discretion standard: prior convictions are admissible unless prejudice far outweighs
probative value of the prior conviction on the issue of credibility.
Sandoval:
In addition, the ∆ is entitled to prior notice, as to whether prior convictions will be used
against him. The ∆ can make a Sandoval motion, asking the judge in advance of trial, to

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exclude prior convictions, in case the ∆ takes the stand.
Options for the Trial Judge:
1) Allow the convictions to come in – allow the prosecution just to name them.
2) Allow the prosecution to go into the details of the prior convictions
3) Or Compromise: the judge can let the prosecutor say that there were felony
convictions, but not name the crimes or go into the details of the crimes.
The trial judge’s discretion in this area is pretty much absolute.
b. SPECIFIC ACTS / “BAD ACTS IMPEACHMENT”
i. Usually specific acts of deceit or lies which did not result in
conviction are allowed.
1. How do you do it? In cross, you ask the witness “did you do
it? I.e., did you lie on your application for life insurance in
1998?
a. You have to have good faith. Must have a reasonable
basis for believing tat the act was done by the witness.
b. Multi-state- the act must concern lying or deceit.
IN NY – the specific act need not be one of deceit or false statement. You can inquire as
to any immoral, vicious or criminal act which may affect the character of the witness and
shows the witness is not worthy of belief.
In NY – you can ask “did you sell heroin to school children?”
ii. In NY and MS – no extrinsic evidence is allowed; you are limited to
inquiry under cross-examination. Must take the answer of the
witness.
c. BAD REPUTATION FOR TRUTH AND VERACITY
i. You can use extrinsic evidence. You must call a representative of
the community to testify, only as to truth and veracity.
ii. Under the Federal rules, the witness can also give its opinion.
NY Distinction
Reputation or opinion may be used, but the opinion must be based on the reputation of
the witness.
“In my opinion, on the basis of his reputation, I think . . .”
1. The opinion can be based on personal knowledge.
C. REHABILITATION
a. How can you rehabilitate a witness?
i. Good reputation for truth and veracity – can use it only when there
has been a direct character attack on your witness (3, 4, 5 types of
impeachment)
1. Under impeachment techniques 1 or 2, you cannot rehabilitate
by bringing in a witness for good character.
ii. Prior consistent statement
1. You DO NOT rehabilitate a charge of prior inconsistent
statement with a prior consistent statement.
2. When can you use it?

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 a. A prior consistent statement may be used to rebut a
charge of recent fabrication or improper influence or
motive.
i. Before you can put in the consistent statement,
you need the other side to cross you witness and
bring up the charge of recent fabrication, etc.
ii. The prior consistent statement would be
admissible for its truth, would not be hearsay.
b. A prior consistent statement can come in even if it is
not under oath or given in the course of a proceeding.
IN NY – the prior consistent statement comes in to rehabilitate, however, it is not clear as
to if it comes in for its truth.

XI. PRIVILEGES
I. Attorney-client privilege
a. Confidential communications between attorney and client made during
professional legal consultation are privilege for disclosure unless, waived
by the client or the representative of the decedent’s estate.
i. This privilege survives the death of the client
ii. No privilege for a statement shouted in a crowded place
iii. No privilege for evidence, i.e., a gun
iv. Pre-existing documents / objects are not privileged
v. There must be intent on the part of the client to establish a
professional legal relationship. Whether it is successful or not.
vi. However, retainer negotiations are covered. Key: Predominately
legal advice must be sought.
b. Exceptions: Three situations that will destroy any privilege:
i. The future crimes or fraud – no professional privilege will be
allowed to further any crime or fraud
ii. At issue – (regarding a communication relevant to an issue between
parties claiming through the same deceased client; and
iii. For a communication relevant to an issue of breach of duty in a
dispute between the attorney and clients
c. Exception applicable to attorneys only:
i. Joint Client exception – if two or more parties communicate together
with a lawyer about a matter of common interest, no privilege
between or among those in the group. Privilege will exist only as to
other third parties, not involved in the litigation at issue.
NY Exception to attorney –client privilege – information of preparation, execution and
revocation of any will or relevant document in actions involving probate, validity or
construction of will – this kind of information is not privilege
Purpose: carry out testator’s intent.

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II. Doctor/ psychiatrist – patient privilege
a. The patient has a privilege against the disclosure of confidential
information acquired by the physician in a professional relationship entered
into for the purpose of obtaining treatment.
b. This includes psychiatrist –patient relationships.
c. TIP: when raised in exam – it almost NEVER applies. Why?
i. The patient must be seeking treatment
1. If it is a non-treating physician no privilege. A doctor
examining for purposes of litigation – no privilege. No
privilege for a court ordered exam.
ii. Patient litigation exception:
1. It does not apply in situations where the patient sues or
defends by putting mental or physical condition at issue.
Does not apply to personal injury cases.

III. Spousal Privilege

a. Spousal Immunity:
i. Protects the spouse from being forced to testify at all in a criminal
case.
ii. This is only for the Multi-state; it does not apply in NY.
iii. One spouse cannot be forced to give adverse testimony against the
other in a criminal case.
iv. Rationale: protect the stability of existing marriages.
v. Requirements for the privilege:
1. There must be a valid marriage at the time of trial.
a. Keep in mind; it makes no difference that the
testimony sought is as to pre-marital facts.
b. The spousal immunity privilege belongs to the witness
spouse, not the defendant.
2. It bars all testimony; the spouse cannot be compelled to take
the stand at all.
3. If the witness spouse wants to testify against his / her spouse,
then he/she can because the witness holds the privilege.
4. Only applies in Criminal cases.
b. Confidential marital communications Privilege
i. Protects only against confidential communications made during the
marriage. This applies in all cases / civil and criminal.
ii. Statement of privilege: A husband or a wife shall not be required or
without the consent of the other shall not be allowed to disclose a
confidential communication made by one to the other during the
marriage.

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 1. Rationale: Traditional view: society wants to encourage
open communications between spouses, to strengthen the
marital unit.
2. Modern rationale: Zone of privacy.
iii. Requirements for privilege:
1. For this privilege, the witness must have been married at the
time of the protected communication, not necessarily at the
time of trial.
a. Covers communications that occur during the
marriage. It outlasts the marriage.
2. Applies only to confidences not all testimony.
a. Spouse must take the stand and testify, but can decline
only when the communication comes into play – can
assert the privilege.
3. Both spouses hold the privilege. Basically the ∆ spouse can
keep the witness spouse from testifying.
4. Both spouses would need to waive the privilege to destroy it.

iv. Neither privilege will apply in an intra-family injury case. I.e., one
spouse is accused of assault of a child / spouse, incest, etc.

X. RECURRING ISSUES ON THE BAR EXAM

a. Application of state law in federal court
i. There are three (3) areas of evidence, where if you are in federal
court and state substantive law applies, then the state evidence law
would apply:
1. Burdens of proof and presumptions
2. Rules regarding the competency of witnesses
3. Privileges
ii. If it is a typical diversity case, (were you are only in federal court
because the parties are from different states) state law applies.
iii. HOWEVER, IF IT IS A SUIT UNDER FEDERAL
SUBSTANTIVE LAW, THEN FEDERAL LAW APPLIES.
iv. For privileges, you apply federal common law.

XI. HEARSAY
a. Two parts:
i. Definition
1. It is an out of court statement which is offered for the purpose
of establishing the truth of the context of the statement.
2. Is it hearsay?
a. Is it an out of court statement?
b. What precisely is the out of court statement?

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 c. Look at the statement and ask, “Is it being offered for
the purpose of establishing the truth of the statement?
d. Or, is it a writing? It does not matter if it is a witness
who wants to report what the ∆ said, or a writing
showing what the declarant wrote.
3. Typical actors:
a. Declarant – person that makes the statement
b. Witness – want to report what the declarant said
earlier.
4. There are some situations where a literal application of the
hearsay rule, would take you to the wrong conclusion. Keep
in mind the rationale. Why do we exclude hearsay? Because
Hearsay denies the opponent, the opportunity to cross-
examine the one whose memory, perception and sincerity we
are really concerned about (the declarant).

b. Exceptions and Exclusions – if it is hearsay, what are the exceptions?

i. Statements that are not hearsay
1. Verbal Acts or Legally operative facts – words which have
legal effect. This is a classic situation where the law gives
legal significance to certain words. In these situations all we
are concerned with is whether the declarant actually said the
words. Anyone can testify to having heard the words.
a. I.e., witness wants to testify to hearing Declarant say
“I accept your offer.” Words of acceptance to prove
an oral contract are not hearsay.
b. Words of defamation
c. Words of conspiracy / Bribery
d. Words of cancellation (i.e., canceling life insurance)
e. Words of misrepresentation (in a misrepresentation
action)
2. Out of court statements, not offered for its truth, but offered
to show effect on the person who heard it or read it. I.e., to
show the intent to kill from an anonymous note.

3. An out of court statement that is offered as circumstantial

evidence of the relevant state of mind of the declarant.
a. It is offered only to show what’s going on in the mind
of the declarant.
ii. What if the witness and the declarant are the same person? It would
still be hearsay, and it is not admissible unless, one of the exceptions
applies. It would not be a party admission because it is not offered
against the party.

25
 c. There are three exclusions to the hearsay rule. These witness’ statements
are not hearsay.
i. Prior inconsistent statements – given under oath at a prior
proceeding.
ii. Prior consistent statements – offered t rebut a charge of recent
fabrication
iii. A prior statement of identification made by a witness is admissible
for its truth.
d. Exceptions to the Hearsay Rule:
i. Why exceptions? Because there are situations that carry a higher bar
of reliability.
1. Admissions of a party
a. It is a declaration of a party offered against the party.
In order to be relevant, usually the declaration would
be inconsistent with the present position at the time of
the trial.
b. Key: at the time of trial. Personal knowledge is not
required.
c. An admission in the form of a legal conclusion is
admissible. I.e., I was grossly negligent in hitting you”
d. The Declarant is estopped from complaining because it
is his own statement. (He can’t cross-examine
himself). This is admissible non-hearsay.
In NY, this is an exception to the hearsay rule.
e. Vicarious Admission: Does the post accident
statement of the employee come in against the
employer?
In NY (traditional rule) - it depends on agency. Was this employee authorized to speak
for the employer? If the employee is the president of the company? Maybe. The public
relations representative? Yes.
i. Federal Rule: a statement made by an
employee concerning a matter within the scope
of employment is admissible against the
employer if made while the person was still
employed (while the employment relationship
still exists).
2. Former Testimony
a. The special reliability of this evidence is obvious.
There are always two proceedings. In the first
proceeding, the witness testified live. In the second
the person is unavailable- admissible, yes if two
requirements are met:

26
 i. Meaningful opportunity to cross-examine or
develop the testimony in the first proceeding
when the witness testified live.
1. the issue has to be the same
2. the former testimony will be admissible
against someone who was a party in the
first proceeding with the opportunity to
cross examine
3. Or, if it is a civil case, at least the
testimony is being offered against
someone who was in privity (i.e., a
predecessor in interest).
4. Key: against whom is the transcript
being offered? It has to be against a
party who had the opportunity to cross-
examine in the first action where the
witness testified live.
ii. Unavailability is required
1. What’s unavailability?
a. Absence form the jurisdiction
b. Death
c. Physical / mental absence.
2. Key: under Federal Rule – a witness can
on the stand and refuse to answer. The
witness will be considered unavailable.
Failure to remember is unavailability.
3. Statement against interest
a. Rationale: a person does not usually make a statement
against interest if it is not true.
b. The statement of a person, now unavailable as a
witness, against that person’s pecuniary, proprietary,
or penal interest (the kind of statement that would
expose to criminal liability) or the kind f statement that
would defeat a civil claim or incur liability at the time
it was made.
i. The declarant must also have had personal
knowledge of the facts, and must have been
aware that the statement was against her interest
when she made it.
c. MULTI-STATE LIMITATION: a statement against
penal interest which is offered to exculpate is not
admissible unless there is corroboration (i.e.,
corroborating circumstances – we nee to have some

27
 connection) of the truthfulness of the statement (third
party confessions)
d. Do not confuse with the admission of a party –
Differences:
i. The statement against interest must be against
interest at the time that it was made
ii. The statement against interest can be made by
anyone (does not have to be a party)
iii. Personal knowledge is required
iv. An admission by a party who is usually there
(for admissions against interest, declarant must
be unavailable).

4. Dying declarations
a. A statement made in contemplation of death.
b. Four important points:
i. State of mind – the declarant must be aware of
the death. There must be an expectation of
death. In NY this is a very strict requirement.
1. TIP: in a question, must get the state of
mind – in the fact pattern look for the
words of the declarant.
ii. The declarant does not have to die, just think
that he is going to die, as long as the declarant is
unavailable at the time of trial (unavailable
under any of the situations).

IN NY, the person must die.

In NY and under the traditional law – a dying declaration is only admitted in a
homicide case.
iii. Federal Rule: the dying declaration is a
homicide case (no other type of case) only or in
any civil case
iv. The subject matter of the declaration is
important. The dying declaration must
concern the cause or the circumstances of the
impending death.
5. Group of Exceptions:
a. Declaration of existing state of mind when state of
mind is at issue
i. I.e., issue: did spinal act with malice? Witness
could testify to spinal saying “I feel malicious
today.”

28
 b. Present intent to do something in the future
i. This is admissible to infer that the intended act
was in fact done. E.g., person is allowed to
testify that another is i.e., contemplating
suicide.
c. Excited utterance
i. There must be an startling event
ii. The statement must be made under the stress of
the excitement of the startling event
iii. The statement concerns the facts of the startling
event
iv. QTIP: on the exam – there has to be a startling
event.
1. What’s the startling event?
2. There can be a time lapse between the
startling event and the statement, as long
as the person is still under the effect of
the event.
3. However, has the excitement worn off?
4. What was going on during the time
lapse?
5. KEY words: “my god,” “good heavens,”
the declarant “exclaimed,” screamed,
NOT volunteered, discussed.
d. Present sense impression
i. The declarant is describing something at about
the very moment that it is happening.
NY – popular on the essays
Frequently it involves the use of a cell phone. i.e., the person is describing a robbery on a
cell phone as it happens. The person hangs up before saying their name. The present
sense impression would be admissible as long as there is corroboration. I.e., the cops
find the robbery in progress.
However, if the person agrees to testify – you can bring in the tape. The prior consistent
statement is admissible because it s a present sense impression.

e. Declaration of present physical condition

i. A declaration of a then existing physical
condition is admissible. You are saying
something that you feel as it happened.
f. Declaration of past physical condition
i. Condition is admissible if made for purposes of
diagnosis or treatment. Under the federal rules,
declarations of past physical condition made to

29
 doctor employed to testify are admissible (Even
if the diagnosis is made solely for the purpose
of giving testimony).s
6. Business Records
a. Two fundamental matters:
i. What’s the rationale? Why is a business record
more reliable?
1. Because employers are bound to follow
rules or get fired. They have more of an
incentive to record accurately.
ii. What’s the function of the business record?
1. It allows the record to substitute what the
employee live would testify to.
2. Problems? Does the rule apply? The
answer depends on whether the entry on
the record is germane to the business.
3. However, if the entry is germane to the
business but, the information came from
an outsider – that is someone else
observed something and reported it to the
company. (This would be double
hearsay).
a. Double Hearsay:
i. First level –the record
ii. Second level – the context
because it was not made by
an employee who kept the
record.
In NY, a police report can be a business record.
4. TIP: if the live person cannot testify, the
record cannot be admitted either.

7. Sample Q – Civil Case. P wants to introduce a police

report. There are three entries in the police report. Take
the police report entry by entry.
a. Observations by the police officer – would qualify as
a business record.
b. Statement of the witness (not coming in)
i. Is it germane? Yes
ii. Would the PO be allowed to testify as to what
the victim said? NO –this is hearsay. (Double
hearsay problem).
c. Statement of the driver

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 i. Is it germane? Yes
ii. Would the police be allowed to testify to “I ran
the red light?” yes, you have an admission by a
party.
1. Here we have two exceptions – one to
meet each level of hearsay.

XII. OTHER RECURRING QUESTIONS IN MULTI-STATE

a. Preliminary questions of fact upon which admissibility depends
i. Dying declarations are admissible as long at the declarant thought he
was going to die. Who decides this factual question? Judge or Jury.
The judge decides the preliminary fact questions. The judge is not
bound by the rules of evidence; the judge can rely on hearsay to
decide the question.
ii. Piece of hearsay comes in and it fits under one of the exceptions
1. You are now allowed to impeach the hearsay declarant as if
he was giving live testimony. You can use any of the
techniques of impeachment. Key: usually involves a prior
inconsistent statement.
ii. Hearsay and writings
1. V is found dead in the office – on his hand is his Dictaphone;
apparently he was recording some business things. On the
take you heard v talking to the defendant saying –“oh it’s you
Spinal – come in” and then gunshot. Detective who heard
tape wants to testify.
a. This would be inadmissible unless the absence of the
record is explained.
2. QTIP -This is a best evidence rule question combined with
hearsay. The pattern usually resolves one of the issues, but
they save one and not the other.

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