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EVIDENCE OUTLINE
1. RELEVENCE..........................................................................................................................4
A. Relevance Admissible FRE 402...................................................................................4
B. Relevance Defined FRE 401..............................................................................................4
C. Exclusion of Relevant Evidence FRE 403.....................................................................4
2. DEFINITION OF HEARSAY.................................................................................................4
A. Hearsay FRE 801(c)...........................................................................................................4
B. Statement FRE 801............................................................................................................4
C. Not Hearsay........................................................................................................................4
(1) Not offered for truth of the matter asserted.................................................................4
(2) Use of scientific instruments.......................................................................................5
(3) Admissions of a party opponent FRE 801(d)(2).........................................................5
(c) Personal Admissions FRE 801(d)(2)(A).........................................................5
(d) Adoptive Admissions FRE 801(d)(2)(B)........................................................6
(e) Representative Admissions FRE 801(d)(2)(C-D)...........................................6
(f) Co-conspirators Statements FRE 801(d)(2)(E)..............................................7
(g) Prior Inconsistent Statement FRE (801)(d)(1)(A)..........................................8
(h) Prior Consistent Statement FRE 801(d)(1)(B)................................................8
(i) Prior Identification FRE 801(d)(1)(C)................................................................8
3. EXCEPTIONS TO HEARSAY...............................................................................................9
A. Exceptions Requiring Unavailability...............................................................................9
(1) What is Unavailability? FRE 804(a)...........................................................................9
(2) Dying Declarations FRE 804(b)(2).............................................................................9
(3) Former Testimony FRE 804(b)(1)..............................................................................9
(4) Statements against interest FRE 804(b)(3)...............................................................11
B. Exceptions that do not Require Unavailability.............................................................12
(1) Present Sense Impressions FRE 803(1)....................................................................12
(2) Excited Utterances FRE 803(2)................................................................................12
(3) State of Mind FRE 803(3).........................................................................................13
(4) Statements for purposes of medical diagnosis or treatment FRE 803(4)..................13
(5) Past Recollection Recorded FRE 803(5)..................................................................14
(6) Business Records FRE 803(6)..................................................................................15
(7) Public Records FRE 803(8)......................................................................................16
(8) Judgment of Previous Conviction FRE 803(22).......................................................17
4. CONFRONTATION AND HEARSAY................................................................................18
A. Testimonial Hearsay Crawford v. Washington (2004).................................................18
(2) Testimonial statement................................................................................................18
(3) Unavailability............................................................................................................18
(4) Subject to Cross examination....................................................................................18
B. Non-Testimonial Hearsay................................................................................................19
(1) Crawford does not apply here...................................................................................19
(2) Ohio v. Roberts 2 part test.........................................................................................19
C. Due Process Issues...........................................................................................................19
D. Forfeiture of objections...................................................................................................19
(1) Forfeiture by wrongdoing..........................................................................................19
(2) Failure to object can you answer with opposing evidence?.................................19

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5. CHARACTER AND HABIT................................................................................................20

A. Character in Issue............................................................................................................20
B. Character as Circumstantial Evidence..........................................................................20
(2) Evidence of Character or Trait of Character FRE 404(a)......................................20
(a) Inadmissible to show action in conformity therewith....................................20
(b) Must Offer Through Reputation or Opinion FRE 405(a).............................21
(3) Evidence of Other Crimes, Wrongs, or Acts FRE 404(b).........................................21
(a) Inadmissible to show character in order to show action in conformity.........21
(b) May be admissible for other purposes...........................................................21
(d) Other act needs only a preponderance Huddleston (1988).........................21
C. Habit FRE 406...............................................................................................................21
(1) Evidence of habit admissible to show action in conformity w/ habit........................21
(2) Distinction between habit and character....................................................................21
(5) Proof by separate instances of conduct......................................................................22
6. OTHER CIRCUMSTANTIAL PROOF..............................................................................22
A. Similar Happenings No FRE.......................................................................................22
B. Subsequent Remedial Measures FRE 407..................................................................22
C. Offers in Compromise.....................................................................................................23
(1) FRE 408 Compromise and Offers to Compromise................................................23
(2) FRE 410 Inadmissibility of pleas, Plea Discussions and Related Statements..........23
7. WITNESSES..........................................................................................................................24
A. General rules....................................................................................................................24
B. Impeachment....................................................................................................................25
(1) Generally FRE 607....................................................................................................25
(2) Impeachment by Contradiction..................................................................................25
(3) Character of Witness FRE 608...............................................................................25
(4) Prior Convictions FRE 609....................................................................................25
(5) Prior Statements FRE 613......................................................................................26
(6) Impeachment by Sensory or Mental Defects.............................................................26
(7) Bias............................................................................................................................27
8. CONFIDENTIALITY...........................................................................................................27
A. FRE 501 Two Part System...........................................................................................27
(1) Diversity Cases..............................................................................................27
(2) Federal Question Cases..................................................................................27
(3) Privilege rules interpreted strictly and do not apply broadly.........................27
B. Attorney-Client Privilege................................................................................................27
(1) Clients Privilege.......................................................................................................27
(2) Requirements.............................................................................................................27
(3) Does not include........................................................................................................27
(4) Corporate Clients.......................................................................................................28
(5) Exceptions to privilege..............................................................................................28
C. Doctor Patient Privilege...............................................................................................28
(1) General privilege against...........................................................................................28
(2) Special issues.............................................................................................................28
(3) Psychotherapist patient privilege...............................................................................28
D. Marital Privilege..............................................................................................................28

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(1) Marital Testimonial privilege.....................................................................................28

(2) Marital Communications privilege............................................................................29
(3) Jurisdictional breakdown...........................................................................................29
E. Church State Privilege..................................................................................................29
F. Parent Child Privilege..................................................................................................29
G. News Persons Privilege....................................................................................................29
(1) No constitutional privilege in a Criminal GJ.............................................................29
(2) If subpoenas you.....................................................................................................29
(3) Test.............................................................................................................................29
(4) Breakdown.................................................................................................................29
9. WRITINGS AND THE BEST EVIDENCE RULE............................................................29
A. Definitions FRE 1001....................................................................................................29
B. Requirement of original FRE 1002.............................................................................30
C. Admissibility of Duplicates FRE 1003........................................................................30
D. Admissibility of Other Evidence of Contents FRE 1004...........................................30
E. Public Records FRE 1005............................................................................................30
10. AUTHENTICATION AND IDENTIFICATION................................................................30
A. Requirement of Authentication or Identification.........................................................30
(1) FRE 901(b) Illustration.............................................................................................30
(2) Chain of Custody.......................................................................................................30
B. Self-Authentification........................................................................................................30
C. Subscribing Witness Testimony Unnecessary..............................................................30
11. JUDICIAL NOTICE.............................................................................................................30

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1. RELEVENCE
A. Relevance Admissible FRE 402
B. Relevance Defined FRE 401
(1) Tendency to make the existence of fact more or less probable
(2) Fact must be of consequence to the determination of the action
(3) Direct = always relevant
(4) Circumstantial = must have probative value
(a) Chain of inference longer, less probative
(b) No questioning credibility here low hurdles
C. Exclusion of Relevant Evidence FRE 403
(1) Probative value substantially outweighed by
(a) danger of unfair prejudice,
(b) confusion,
(c) waste of time
(2) previous crimes old chief stipulate to the prior so that judgment stays out
(3) other evidence of guilt to past crimes not going to be admitted
(4) Island Comparison Narrative Richness Test 3 steps
(a) Look at evidence alone is it per se prejudicial?
(b) Look at proffered evidence in comparison to other available evidence. Is
other evidence at lest equally probative but less prejudicial?
(c) Does proffered evidence have another purpose aside from the reason is
proffered?
2. DEFINITION OF HEARSAY
A. Hearsay FRE 801(c)
(1) Out of court statement offered in court for purpose of proving truth of the matter
asserted.
B. Statement FRE 801
(1) Oral or written assertion or
(a) testimonial conclusions that require use of hearsay is inadmissible U.S. v.
Brown auditor case
(2) Nonverbal conduct of a person, if it is intended by the person as an assertion
(a) Assertive conduct
i. Picking out the person during a mug shot
(b) Silence
i. Only if silence is intended as an assertion.
ii. Silence on a train is not intended to show that the people were
comfortable w/ temperature. They were simply comfortable.
(c) Implied assertions are non assertive verbal conduct and not hearsay
i. Zenni utterances of bettors telephoning in bets were nonassertive
verbal conduct
ii. Non-assertive unless a forceful or positive declaration
A. intent to state that some factual proposition is true
C. Not Hearsay
(1) Not offered for truth of the matter asserted
(a) Circumstantial evidence that someone is alive
i. I am alive shows person is alive b/c they speak the words

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(b) Evidence to show character and use of a place

i. Drug ledgers cant be admitted to show truth of what is asserted therein,
but can be to show that the place was used for drug trafficking.
Jaramillo-Suarez (9th Cir. 1991)
(c) Verbal acts or legal operative fact
i. Accepting a contract
ii. Comments of slander
(d) Verbal parts of acts
(e) Effect on hearer or reader
i. Put on notice, had certain knowledge, had a certain emotion
ii. Duress doesnt matter if the statement was true
iii. Account of an arresting officer how he came to make an arrest will
either be treated as hearsay or as unfairly prejudicial
(f) Declarants state of mind
i. To show knowledge (negligence), sanity, fear etc.
A. Statements that prove knowledge of something coupled w/
evidence that knowledge is accurate = admissible
ii. Statements of mental state will be hearsay b/c they are offered to show
truth of the matter asserted
(g) Availability of knowledge
(h) Reputation in defamation suit
i. not concerned w/ whether reputation is correct
(i) Opinion surveys
(j) Impeachment
i. Not trying to show previous statement is true but that witness is
changing his story.
(2) Use of scientific instruments
(a) Cop read speed off of a electric timer
(3) Admissions of a party opponent FRE 801(d)(2)
(a) Admission must be offered AGAINST party who made it
i. Need NOT be against declarants interest when made
ii. No requirement of unavailability
(b) Not binding
i. Party can offer evidence contradicting the admission
A. Unlike a judicial admission i.e. pleading
(c) Personal Admissions FRE 801(d)(2)(A)
i. Partys own statement
ii. Regardless of if in individual or representative capacity
iii. Pleadings generally treated as admissions
A. Civil pleadings, same case
1. judicial admission maker cannot controvert them
except by amending pleadings
2. adversary may use original pleading as evidence
B. Subsequent case
1. statements made by a litigant in one case may be
introduced against him in subsequent cases

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C. Inconsistent pleadings
1. Pleading in the alternative does not count as an
admission.
D. Guilty Pleas
1. Guilty plea that is not withdrawn is generally
admissible as an admission
2. However, a guilty plea to a minor offense will generally
not be admissible
3. withdrawn guilty plea falls under FRE 410 and cannot
be used in the same criminal or subsequent civil trial
iv. Conduct as admission
A. Manifestation of guilt
1. flight after a crime or attempt to obstruct justice are
admissible as admissions
B. Failure to testify or produce
1. in civil cases this can be used as an inference that
unproffered evidence would not have been favorable to
the party
2. negative inference will not carry a burden for the other
side
v. Admission in criminal cases
A. Admissible as long as constitutional
(d) Adoptive Admissions FRE 801(d)(2)(B)
i. Party has manifested adoption or belief in statements truth
ii. Express adoption counts as an admission.
iii. Test for implied adoption
A. Whether, taking into account all circumstances, partys conduct or
silence justifies the conclusion that he knowingly agreed with Bs
statement
B. Look at probable human behavior
iv. Silence
A. Mere fact that party remained silent does not by itself amount to
an adoption
B. Look at factors
1. heard
2. understood
3. within knowledge
4. no impediments to response
5. statements, if untrue, call for denial under the
circumstances
C. Letters or bills
1. failure to respond or question may be admitted as
evidence of adoption of correctness
v. Admission by conduct
A. Shaking your head is too ambiguous to constitute adoption
(e) Representative Admissions FRE 801(d)(2)(C-D)

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i. Explicitly authorized admission FRE 801(d)(2)(C)

A. Party has expressly agreed that his agent may make a statement
on the particular subject
B. Corporations designated employee to speak for it on a certain
matter
C. Statements to principal
1. Internal reviews, inspections, other investigations taken
at request of corporation
2. FRE allows reports from agent to principal to be
admitted against the principal.
ii. Vicarious admission by agents FRE 801(d)(2)(D)
A. Agent not explicitly authorized to speak on a matter
B. FRE admits as non hearsay if
1. statement made by partys agent or servant
2. concerning a matter within the scope of the agency or
employment,
3. made during the e existence of the relationship
C. NO complete bootstrapping! Must have other evidence outside of
the statement showing agency relationship
D. Three elements to agency relationships
1. power of agent to alter legal relationships between
principal and third parties
2. existence of a fiduciary relationship towards matters
within the scope of the agency
3. the right of the principal to control the agents conduct
with respect to matters within the scope of the agency
(f) Co-conspirators Statements FRE 801(d)(2)(E)
i. statement must have been made
A. by a member of the same conspiracy of which the party against
whom it is admitted is a member
B. while the conspiracy was still in force AND
C. in order to further the aims of the conspiracy
ii. during course of
A. termination means statements are only admissible against
declarant
B. conspirator leaves - A leaves but conspiracy continues
1. As statements can go against B,C
2. B,C statements cant go against A
C. Statements before
1. When a conspirator enters an ongoing conspiracy, he is
held implicitly to have adopted the earlier statements of
fellow co-conspirators
iii. In Furtherance
A. Some reasonable basis exists for concluding that the statement
furthered the conspiracy
1. Advance conspirators objectives

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2. Nonetheless, confessions, narratives and finger pointing

has come in
iv. No need to charge conspiracy
v. Procedure
A. Judge must find by a preponderance that there was a conspiracy
1. mini trial outside of jury
2. by time statement is offered there may be enough proof
3. admit subject to later introduction of evidence
B. Contents of the statement shall be considered but are not alone
sufficient to establish the existence of the conspiracy and the
participation therein of the declarant and the party against whom
the statement is offered
1. Bourjaily
(g) Prior Inconsistent Statement FRE (801)(d)(1)(A)
i. Not hearsay if declarant testifies at trial & is subject to cross about a
statement that is
A. Inconsistent w/ the declarants testimony, and
B. Was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding or in a deposition
ii. Does not require confrontation analysis
A. The statement itself does not need an opportunity for cross
(h) Prior Consistent Statement FRE 801(d)(1)(B)
i. Not hearsay if declarant testifies at trial & is subject to cross about a
statement that is
A. Consistent w/ the declarants testimony and is offered to rebut an
express or implied charge against the declarant of recent
fabrication or improper influence or motive
B. Rebutting a SPECIFIC kind of Impeachment
ii. Consistent statement must come before change in motive or fabrication
or improper influence - Tome
(i) Prior Identification FRE 801(d)(1)(C)
i. Statement of identification of a person made after perceiving him is not
hearsay if the declarant testifies at trial and is available for cross
examination
ii. No oath or proceeding required
iii. Subject to cross-examination liberal reading
A. U.S. v. Owens so long as the opponent has the ability to ask
questions to the declarant about his prior identification, the prior
identification qualifies as non-hearsay even though declarant
admits to having a lack of memory about the event that gave rise
to the identification
B. Interesting questions
1. what if there was a total lack of memory is that
subject to cross?
2. How could Crawford change Owens? Is Subject to
cross under CC different then 801?

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3. EXCEPTIONS TO HEARSAY
A. Exceptions Requiring Unavailability
(1) What is Unavailability? FRE 804(a)
(a) Declarant Unavailable if
i. Privileged from testifying re the subject matter
ii. Persists in refusing to testify concerning the subject matter of the
declarants statement despite an order of the court to do so; or
iii. Testifies to a lack of memory on the subject matter of the statement; or
iv. Is unable to be present or to testify at the hearing b/c of death or then
existing physical or mental illness or infirmity; or
v. Is absent from the hearing and the proponent of a statement has been
unable to procure the declarants attendance (or in the case of a hearsay
exception under subdivision (b)(2), (3), or (4), the declarants
attendance or testimony) by process or other reasonable means
(b) Declarant NOT unavailable if
i. Exemption, refusal, claim of lack of memory, inability, or absence is
due to the procurement of wrongdoing of the proponent of a statement
for the purpose of preventing the witness from attending or testifying
(c) Constitutional problems criminal cases only
i. Absence from state and cannot be compelled by process not sufficient
for constitutional unavailability
A. Might have to show more effort persuasion
B. Good faith effort will suffice or showing that such efforts would
have been very unlikely to succeed Mancusi v. Stubbs
(2) Dying Declarations FRE 804(b)(2)
(a) Prosecution for Homicide or in a Civil Action
i. Does not include non-homicide criminal cases
(b) Awareness of Imminent Death
i. Look at actual statement made
ii. Severity of wounds
iii. Statements made to victim by others telling him he was a goner
(c) Declaration must relate to circumstances of the killing
i. Concerning the cause or circumstances of what declarant believed to be
his impending death
(d) FRE does not require
i. Actual Death
ii. Declarant being the victim of the homicide in question
(3) Former Testimony FRE 804(b)(1)
(a) Requirements
i. Unavailability of declarant
ii. Former testimony made during a proceeding either in
A. Hearing (trial, prelim hearing, GJ proceeding); OR
B. Deposition
iii. Opportunity for cross
A. By party offered against or by a predecessor in interest
iv. Similar Motive to cross-examination

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A. By party offered against or by a predecessor in interest

B. substantial overlap in the issue at stake when the prior testimony
was given and the issue at stake now
(b) Hearing and Proceeding
i. Hearing includes any setting in which sworn testimony by a witness is
taken
ii. Proceeding includes any official inquiry conducted in a manner
authorized by law whether judicial, administrative, legislative,
investigative or inquisitorial
iii. Covered
A. Prior trial
B. Preliminary hearing in a criminal case
C. Grand jury investigation
D. Suppression hearing in a criminal case
E. Depositions
iv. Not covered
A. Affidavits
B. Statements made to police or other law enforcement officials
during investigation
v. Must be under oath
(c) Opportunity for Cross-examination
i. Actual examination not required
A. Only reasonable opportunity
1. consider time to prepare
2. presence of counsel for opportunity
ii. Direct has been held equivalent of an opportunity to cross
(d) Similar motive
i. Same issues, same stakes, same parties
A. Similarity of issues
1. Whether issue to which the testimony now sought to be
used is the same as the issue on which the proponent
now seeks to introduce the testimony
B. Similarity of states
1. Smaller stakes in the first proceeding may mean no
similar motive
C. Similarity of parties
1. Criminal must be the same defendant
2. Civil Predecessor in interest mustve had same motive
ii. Specific contexts
A. 1st proceeding is preliminary hearing in criminal case
1. has opportunity to cross but doesnt
2. Argument that doesnt want to tip off his hand usually
loses
B. Grand Jury testimony
1. prosecution can never use testimony at later trial

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2. can, however, use exculpatory testimony by a witness

if prosecutor had similar motive to cross
a. Very tough to win for Salerno
C. Criminal followed by civil trial
1. look for same motive
D. Depositions
1. deponent likely to become unavailable easy comes
in
2. Deponent not likely to become unavailable still, it
will probably come in
(e) Identity of the parties
i. Criminal same opposing party required
ii. Civil predecessor in interest
A. Effectively a person with a like motive to develop the same
testimony about the same material facts
(f) Not just for transcripts
i. a first hand observer may orally recount the testimony, either from
unaided memory or by refreshing his recollection by use of transcript
(4) Statements against interest FRE 804(b)(3)
(a) Requirements
i. Unavailability of declarant
ii. Statement, that at the time of its making, was against declarants
pecuniary, proprietary or penal interest
iii. A reasonable person would not have made the statement unless
believing it to be true
iv. Declarant must have first hand knowledge of what he is saying
(b) Statements against Pecuniary interest
i. Property limiting property rights
ii. Debts statement by creditor that debt owed to them was paid is against
interest b/c it extinguishes right to sue
iii. Tort liability
(c) Statements against penal interest
i. Limitation for exculpating the accused
A. A statement tending to expose the declarant to criminal liability
and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness
of the statement
B. Corroboration
1. Does declarant have an apparent motive to lie?
2. General character of the declarant
3. persons hearing statement more and more likely it
comes in
4. spontaneous more likely to come in
ii. Self serving statements even though against interest may not be
received
iii. Collateral statements

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A. Williamson FRE 804(b)(3) does not allow admission of non-

self-inculpatory statements, even if they are made within a
broader narrative that is generally self-inculpatory
1. some say all that is not self-serving
B. State courts not bound by Williamson but tend to go the same
way
C. Confrontation clause problem
1. wont even get to the question of admissibility of
collateral statements b/c entire statement is inadmissible
under Crawford
B. Exceptions that do not Require Unavailability
(1) Present Sense Impressions FRE 803(1)
(a) Statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter
(b) Immediacy
i. No material time may pass between the event being perceived and the
declarants statement about it
(c) Description
i. Must describe or explain the event that the declarant has perceived
(d) Perception
i. Declarant must have perceived the event rather than have learned about
it from some other means (newspaper)
(e) Opinions allowed
i. May still be admitted even if it expresses an opinion, so long as it is an
attempt to explain something that the declarant is perceiving
(f) No corroboration of statement required by listener
(g) Boot strapping
i. Ask Cribari
(2) Excited Utterances FRE 803(2)
(a) Statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition
(b) Startling event must be sufficiently startling
i. Must eliminate declarants capacity to reflect before speaking
ii. Physical violence not required, looking at a photo is sufficient
iii. Court looks at whether a normal person would probably have spoken
before thinking
(c) Declarant must still be under the influence of the startling event when making
the statement
i. If a delay, look for shock, memory loss, coma
ii. If statement evinces a presence of reflection not admissible
A. Look for exciting words and look at context
(d) Declaration need not explain or refer to startling event
i. Must merely relate to startling event
(e) Distinguished from Present sense impression
i. That must describe or explain an event or condition, this must merely
relate to the event

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(3) State of Mind FRE 803(3)

(a) Statements of the declarants then existing state of mind, emotion, sensation,
or physical condition (such as intent, plan, motive, design, mental feeling,
pain, and bodily health), but not including a statement of memory or belief to
prove the fact remembered or believed
(b) State of mind directly in issue
i. Applies only to the declarants then existing mental state
A. As such, statement must evince a present mental state, not
mentioning a prior mental state
ii. Surrounding circumstances
A. Judge may permit the entire statement in but instruct jury to
consider the statement only for the mental state of the declarant
and not the truth of other acts mentioned
B. If risk of unfair prejudice is too great then you can get a redaction
of part of the statement
(c) Proof of subsequent act (act is in issue, not SOM)
i. Statement evincing SOM will be admitted if
A. Relevant AND
B. Corroborated
ii. Need corroborating evidence to survive a directed verdict on whether
the act took place
(d) Cooperation of other
i. A SOM statement can show intent to do something with someone but
there must be some corroborating independent evidence showing that
the third party and the declarant actually did the act
A. Strength of independent evidence that declarant or X in fact
participated in the activity and
B. The extent to which it is likely that the declarant would have
participated in the activity only with the cooperation of X
(e) Proof of prior acts
i. Rule excludes a statement of memory or belief to prove the fact
remembered or believed
(f) Surveys
i. Either not hearsay at all or viewed as SOM exceptions
ii. Court will look at reliability of the survey
(4) Statements for purposes of medical diagnosis or treatment FRE 803(4)
(a) Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations,
or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment
(b) Can be made in anticipation of litigation
(c) Does not include actual diagnosis and treatment
(d) Statement need not be in connection with a present bodily condition
i. can include past pain, symptoms, or even past events that have given
rise to pain or symptoms

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(e) Includes stuff that related to the cause of the pain, symptoms or other
condition if they are reasonably related to treatment
(f) Includes statements made by a 3rd person
(g) Includes statements to third parties who are not doctors
(5) Past Recollection Recorded FRE 803(5)
(a) Requirements
i. Memorandum or record must relate to something of which the witness
once had first hand knowledge
ii. Record must have been made when matter was fresh in the witness
memory
A. could be several days after the event
iii. Witness must have suffered at least some impaired memory
A. Insufficient recollection witness should testify this
iv. Accuracy when written
A. In practice, witness must testify the he remembers making an
accurate recording of the event or that he would not have written
something down that was inaccurate
B. Adopted by witness
1. Not required that witness at trial made the record
2. Okay if they adopted or approved it must check
accuracy though
(b) Memorandum or record may be read into evidence but may not itself be
received as an exhibit unless offered by an adverse party
(c) Present Recollection Refreshed
i. Witness on stand has trouble remembering an event, may be given any
item to aid recollection
ii. Few restrictions
A. Document need not have any guarantee of reliability
B. Need not have been prepared near the time of the events it
describes and
C. W need not have been involved in the documents prep
iii. Four limits
A. Memory must be exhausted by regular direct and cross
B. Trial judge may control manner of refreshment
C. W must say memory is in fact refreshed
D. Questioners adversary is entitled to inspect the refreshing
document
iv. Use of Writing for Refreshing Recollection FRE 612
A. Writing consulted during testimony
1. non calling party gets three rights
a. right to inspect document
b. right to cross witness based on the
document
c. right to introduce into evidence the
portions of the document that relate to

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the testimony of the witness (subject to

other rules of evidence hearsay)
B. Writing consulted before testimony
1. FRE 612 says opposing party gets these rights if the
court, in its discretion, determines it is necessary in the
interest of justice
(6) Business Records FRE 803(6)
(a) Requirements
i. Regular entries
A. Entries must be made in the routine of a business (kept in the
course of a regularly conducted business activity, and it was
the regular practice of that business activity to make the
[record])
ii. Knowledge
A. The record must have been made by, or from information from, a
person with personal knowledge of the matter recorded
iii. Timeliness
A. Entries must have been made at or near the time of the matter
recorded
(b) Business
i. Business, institution, association, profession, occupation , and calling of
every kind, whether or not conducted for profit
(c) Person who originally supplies information
i. Must have first-hand knowledge of the facts he reports; and
A. Original source need not be person who actually makes the entry
ii. Must do his reporting while working in the business
A. Must act on behalf of the business
B. Duty to report
(d) Made in Regular course of business
i. An activity may be in the regular course of business without being so
frequent as to be routine
ii. Exclude the record where they sense a strong motive on the part of the
business or the employee declarant to behave in a self serving manner
Palmer
(e) Trustworthiness
i. Does the source of the information or the method or circumstances of
preparation indicate lack of trustworthiness?
A. Self-serving?
B. Other reason for not being trustworthy?
(f) Business records can exist within Business records
(g) Business record contains irrelevant information
i. Not part of business record to have info in record
ii. Irrelevant part is not admitted
(h) Computer files
i. A witness is competent to lay the foundation for systematically prepared
computer records if the witness

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A. Can demonstrate that the computer record is what the proponent

claims and
B. Is sufficiently familiar with the record system used and
C. Can establish that it was the regular practice of that business to
make the record
ii. Presumption is trustworthy, unless opposing party comes forward with
some evidence to question reliability
(i) Proving the record
i. Witness required who knows enough about record keeping procedure to
testify that
A. It was the business regular practice to make such a record
B. The particular record in question was made in the regular course
of business on the personal knowledge of the recorder or someone
reporting to him
C. The person with the first hand knowledge was acting in the
regular course of the business; and
D. The entries were made at or near the time of the transaction
(j) Hospital records
i. Generally admitted as a business record
(7) Public Records FRE 803(8)
(a) Records, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth
i. FRE 803(8)(A) Activities of the office or agency, or
ii. FRE 803(8)(B) Matters observed pursuant to duty imposed by law as to
which matters there was a duty to report, excluding, however, in
criminal cases matters observed by police officers and other law
enforcement personnel, or
iii. FRE 803(8)(C) In civil actions and proceedings and against the
Government in criminal cases, factual findings resulting from an
investigation made pursuant to authority granted by law, unless the
sources of information or other circumstances indicate lack of
trustworthiness
(b) Activities of the office
i. Agencys records of its own activities can be used to show that those
activities occurred
ii. Conclusions dont come in
(c) Matters observed under duty
i. Requirements
A. observations in the line of duty and
B. The official had a duty to report observations
ii. Does not apply in criminal cases to matters observed by police officers
and other law enforcement personnel
A. Arguably, the can use the reports against the government you
would argue through subsection C
(d) Investigative reports
i. Allows factual findings and may have evaluative component

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A. May allow conclusions if they are based on factual statements and

follow trustworthiness
B. Legal conclusions not allowed
ii. No use against criminal but can use against government
(e) Criminal cases
i. If police officer sees commit a crime, and puts observations into a
required daily activity report, this record would NOT be admissible
against in a criminal prosecution. Subsection (B)
ii. If police did not witness but conducted an after the fact investigation of
the crime, the investigative report does not come in under subsection
(C)
iii. Other law enforcement personnel
A. Important participant in the prosecutorial effort Customs
Service chemist counted in U.S. v. Oates
B. Medical examiner probably not a law enforcement personnel
iv. Routine observations
A. Exclusionary language in subsection B covers only police
officers reports of their contemporaneous observations of crime,
not routine bureaucratic observations of events that were not in
themselves criminal acts U.S. v. Grady
(f) 803(8) v. 803(6) and other hearsay exceptions
i. 803(8) wins, you cant get the records in under another exception U.S.
v. Oates
(g) Trustworthiness in (C) cases - factors
i. Timeliness of the investigation
ii. Special skill or experience of the official
iii. Whether a hearing was held and the level at which it was conducted
iv. Possible motivation problems
(h) Multiple hearsay
i. Report by one government agent to another may come in
ii. Statements by those without duty to talk not admissible unless another
hearsay exception
iii. Reports based on statements -
(i) Trustworthiness in A and B cases
i. Grammatical ambiguity
ii. On policy grounds, the proviso should be interpreted to apply to all
three subsections
(8) Judgment of Previous Conviction FRE 803(22)
(a) Conviction of crime punishable by death or over 1 year in prison
i. To prove ANY fact essential to sustain the judgment
ii. Must be conviction after trial or guilty plea (not no contest)
(b) Criminal cases government cannot use a third persons conviction as part of
its case in chief
i. Can use the third person conviction for impeachment purposes
(c) Normal Scenario: Use in subsequent civil case.
(d) Prior civil judgments do not fall under the rule

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4. CONFRONTATION AND HEARSAY

A. Testimonial Hearsay Crawford v. Washington (2004)
(1) Testimonial Hearsay is inadmissible unless
(a) Declarant is unavailable to testify at trial
(b) The accused must have had a prior opportunity to cross-examine the declarant
about the statement
(2) Testimonial statement
(a) Crawford included the following
i. Ex parte in court testimony
A. Preliminary hearing testimony
B. Grand jury testimony
C. Former trial testimony
ii. Extra judicial statements in formalized testimonial materials
A. Affidavits
B. Depositions
C. Prior testimony or
D. Confessions
iii. Statements made during the course of police interrogations
A. Colloquial definition of interrogation
iv. Statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial
v. DD may not be included in 6th A - FN 6
(b) 911 Statements Objective test
i. During 911 Call identifying the situation non testimonial
A. Reasonable person would think statements made to respond to an
ongoing emergency
ii. Emergency over, officer comes, asks questions testimonial
A. This is now testimonial
(3) Unavailability
(a) May be different from the 804 definition
(4) Subject to Cross examination
(a) At time of declaration or
i. Actual cross no Crawford problem
ii. Opportunity to cross probably still no Crawford problem but
question has not been 100% settled (Dicta in Crawford)
(b) At time of trial
i. Declarant appears and testifies no Crawford problem
ii. Declarant appears but is evasive
A. W honestly doesnt remember
1. Owens while there is no indication that the same
definition of unavailability applies this will seem to
count as subject to cross
2. Shows W&C that the guy has bad memory
B. W seems to be lying
1. Maybe easier to argue unavailability for cross

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2. Still, probably goes to W&C and comes in

iii. Declarant takes a privilege
A. Unavailability for cross
B. Non-Testimonial Hearsay
(1) Crawford does not apply here
(a) Ohio v. Roberts may be the CC rule for non-testimonial hearsay or
(b) Federalism i.e. abolishing Ohio v. Roberts is fine
(2) Ohio v. Roberts 2 part test
(a) Unavailability of declarant; and
(b) Super reliability
i. Firmly rooted hearsay exception or
ii. Circumstances provide a particularized guarantee of trustworthiness
(c) Firmly Rooted exceptions
i. Co-conspirator statements during course of conspiracy and in
furtherance of it Bourjaily
A. Does not even require unvailability
ii. Excited utterances
iii. Present sense impressions
iv. State of mind statements
v. Statements to medical personnel
vi. Dying declarations
vii. Past recollections recorded
viii. Business records & public records
ix. Does not include
A. Declaration against interest
B. Statements by co-offender or suspect while in custody or under
interrogation naming others
C. Statements by children talking about abuse they have suffered or
witnessed Idaho v. Wright
(d) Particularized guarantees of trustworthiness
i. Cannot come from corroborating evidence
C. Due Process Issues
(1) Criminal May impeach its own witness Chambers v. Mississippi (1973)
(2) Prosecution who uses a statement as true in one case cannot try and have it
dismissed in another case, especially when involving the death penalty Green v.
Georgia, (1979)
D. Forfeiture of objections
(1) Forfeiture by wrongdoing
(a) Extinguishes confrontation claims on essentially equitable grounds
(b) If a witness is absent by the accuseds wrongful procurement, he cannot
complain if competent evidence is admitted to supply the place of that which
he has kept away.
i. Need to intent result of making person unavailable for trial
(2) Failure to object can you answer with opposing evidence?
(a) Inadmissible evidence was not prejudicial
i. No standing to complain

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(b) Inadmissible evidence is prejudicial and there was a timely objection

i. Adversary is entitled to answering evidence by right
(c) Evidence is prejudicial but no timely objection
i. Judicial discretion
(d) Unfairly prejudicial
i. Answering evidence as of right
5. CHARACTER AND HABIT
A. Character in Issue
(1) Generally - FRE 404(a) Advisory Notes
(a) When character is an element of a crime, claim or defense no problem of
the general relevancy of character evidence is involved, and the present rule
therefore has no provision on the subject.
(2) Specific instances of conduct can show character in issue FRE 405(b)
(a) Character must be an essential element of a charge, claim or defense,
i. Essential element means it is of ultimate issue
A. e.g. defamation
ii. Not essential if offered as circumstantial evidence to prove some other
fact.
(3) Limited Admissibility evidence comes in for a specific purpose
(a) Past instances of drunkenness cannot show present drunkenness but can show
RR negligence in keeping him - Cleghorn (NY 1874)
B. Character as Circumstantial Evidence
(1) Civil Cases
(a) General rule inadmissible
(b) Character of carefulness of carelessness not allowed
(c) Quasi-criminal acts alleged
i. Majority and FRE says still inadmissible
ii. Unless self-defense claim and the was aware of the victims reputation
for violence.
(2) Evidence of Character or Trait of Character FRE 404(a)
(a) Inadmissible to show action in conformity therewith
i. Character of Accused FRE 404(a)(1)
A. In a criminal case
1. can offer evidence of his character and prosecution
can rebut with contrary evidence; OR
2. If offers evidence of the victims character under
404(a)(2), prosecution can offer evidence showing the
to have the same character
ii. Character of Victim FRE 404(a)(2)
A. In a criminal case an subject to FRE 412,
1. can offer evidence of the victims character and the
prosecution can rebut with contrary evidence; OR
2. ONLY IN HOMICIDE CASES - if offers evidence
that victim was first aggressor, the prosecution can offer
evidence of a character trait of the victims peacefulness
iii. Character of Witness FRE 404(a)(3)

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A. Governed by FRE 607, 608, 609

(b) Must Offer Through Reputation or Opinion FRE 405(a)
i. On Direct proof may be made by testimony as to reputation or by
testimony in the form of an opinion
ii. On Cross inquiry is allowable into relevant SIC
A. No extrinsic evidence denial and thats the end of the matter
1. Defense cant disprove either
B. Must have a good faith basis for asking SIC questions on cross
1. In camera hearing
2. Proof that act really took place
C. Acts must be relevant to the character testimony offered
iii. Note reputation as to character hearsay exception 803(21)
(3) Evidence of Other Crimes, Wrongs, or Acts FRE 404(b)
(a) Inadmissible to show character in order to show action in conformity
(b) May be admissible for other purposes
i. Motive
A. Addiction goes to motive Cunningham (7th Cir.)
ii. Opportunity
A. Access to scene of the crime
iii. Intent
A. Rebutting an innocent explanation
1. requirement of similarity
2. degree of similarity such that a guilty state of mind of
the other crime suggests a guilty state of mind as to the
act charged.
iv. Preparation
v. Plan
vi. Knowledge
A. Act not performed inadvertently
vii. Identity Signature or Modus Operandi
A. Uniquely different from the standard practice
B. so similarity so that substantially probative of identity
C. A mere showing that has committed other crimes of the same
class is insufficiently probative
viii. Absence of mistake or accident
(c) Prosecution has to provide reasonable notice if the asks for it
(d) Other act needs only a preponderance Huddleston (1988)
i. i.e. not guilty verdict wont preclude it (BRD v. Pre)
ii. unless unmistakable from verdict that didnt do it
(e) Note - many states require prior acts instead of other acts
C. Habit FRE 406
(1) Evidence of habit admissible to show action in conformity w/ habit
(2) Distinction between habit and character
(a) Character is a generalized description of a persons disposition
(b) Habit - regular response to a repeated situation
(3) Three Factors to consider

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(a) Specificity
(b) Regularity
(c) Degree of reflection automatic or volitional?
(4) No eyewitness required
(5) Proof by separate instances of conduct
(a) As long as sufficient number of instances, and
(b) instances have enough in common w/ each other
(6) Used often for routine practice of a business.
6. OTHER CIRCUMSTANTIAL PROOF
A. Similar Happenings No FRE
(1) General rule
(a) reluctance to allow evidence of similar happening
i. court will scrutinize evidence
(b) FRE silence
i. But FRE 402 relevance prior episodes must be sufficiently similar to
the present episode
(2) Cannot be offered to show s negligence
(3) Can be offered to show
(a) Defect existed
(b) Causation that a defect whether or not disputed, cause s accident
(c) Risk s conduct created a substantial risk; or
(d) Knowledge knew or should have known of the danger.
i. Subsequent happenings cant be offered to show any of these
(4) Evidence of past safety is allowed if the shows that
(a) Conditions were the same during the historical period as during the moment
of s injury; and
(b) Had there been any injuries, they would have been reported to the
(5) Other kinds of events
(a) Contracts
i. Same parties assuming similar k, court will admit evidence for
purpose of meaning of terms
ii. Opponent and third party reluctance
iii. Neither party the same refusal, except
A. Fair market value or
B. Value of land
(b) Criminal allegations
i. Evidence of other acts by are admissible on the same basis as in
criminal trial of the
(c) Prior fraudulent claims by
i. If shown to be fraudulent, they can come in
(d) Accident proneness general refusal to admit
B. Subsequent Remedial Measures FRE 407
(1) General rule
(a) Couts generally do not allow evidence of subsequent repairs when offered to
show the repairers culpability
i. Little probative value

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ii. Discouragement of repairs

A. Evidence of third party repairs are admissible
(2) FRE 407
(a) Evidence of the subsequent measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect in a products design, or a
need for a warning of instruction.
(3) Permissible alternative purposes
(a) proving ownership, or control,
(b) feasibility of precautionary measures, if controverted, or
i. must put this in issue
ii. Strong words change wouldnt have helped no other safer
methods Tuer v. McDonald (Utah)
(c) impeachment.
i. there was no hazard
C. Offers in Compromise
(1) FRE 408 Compromise and Offers to Compromise
(a) Inadmissible Evidence
i. Offers of compromise a claim or validity or amount are not admissible
to prove liability, if disputed, or its amount
ii. Conduct or statements made in negotiations is not admissible
(b) Requirements
i. Actual dispute
ii. Intent to compromise
(c) Exceptions
i. Evidence otherwise discoverable
ii. Evidence offered for another purpose, such as
A. proving bias or prejudice of a witness,
B. negativing a contention of undue delay, or
C. proving an effort to obstruct a criminal investigation or
prosecution
(2) FRE 410 Inadmissibility of pleas, Plea Discussions and Related Statements
(a) The following are inadmissible
i. Plea of guilty which was later withdrawn
ii. Plea of nolo contendere
iii. Any statement made in the course of plea discussions with a
prosecuting attorney which does not result in a guilty plea
A. Statement admissible
1. in any proceeding wherein another statement made in
the course of the same plea or plea discussions has been
introduced and the statement ought in fairness be
considered contemporaneously with it, or
2. in a criminal proceeding for perjury or false statement if
the statement was made by the under oath on the
record and in presence of counsel
(b) FRE 801(d)(2)(B) revisited

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i. Guilty plea is an adopted admission of party opponent hearsay

exception
7. WITNESSES
A. General rules
(1) FRE 601 - Competence of a Witness
(a) Everyone competent unless otherwise provided in these rules
i. No oath is one of the rules
ii. Being drunk is okay weight & credibility
A. Same w/ Alzheimers, insane,
B. Until reach a point of simply not functioning
(2) FRE 602 Lack of Personal Knowledge
(a) W must have personal knowledge of the matter
(b) Must lay foundation for testimony
(3) FRE 603 Oath or Affirmation
(a) Cannot testify unless sworn in
(4) FRE 604 word for word interpreter
(5) FRE 605 Judge is incompetent to be a witness
(6) FRE 606 Juror not competent to be a witness
(7) FRE 610
(a) Evidence of the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature the
witness credibility is impaired or enhanced
(8) FRE 611
(a) Court Control
i. Decides order and mode of interrogating witnesses and presenting
evidence so as to promote
A. Effective ascertainment of truth
B. Time
C. Protect W from harassment or undue harassment
(b) Scope of Cross-examination
i. Cross should be limited to matters
A. Presented on direct
B. credibility
C. character
ii. May also go on direct of other partys witness for other matters too, at
discretion of court
A. Consequence waive right to file motion to dismiss or acquittal
(c) Leading Questions
i. Only allowed on direct to develop witness testimony
(9) FRE 614 Court can call witness
(10) FRE 615 Exclusion of witness
(a) Right to exclude other partys witness
(b) No discretion to the court
(c) Does not include
i. Natural person

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ii. Officer or employee of a party not a natural person designated as its

representative by its attorney
iii. A person whose presence is shown by a party to be essential to the
presentation of the partys case
iv. Person authorized by statute to be present
B. Impeachment
(1) Generally FRE 607
(a) Any party may impeach any witness
(b) Cannot call a witness for purpose of impeaching him to get otherwise
inadmissible evidence United States v. Hogan (5th Cir. 1985)
(2) Impeachment by Contradiction
(a) Collateral issue rule governed under FRE 403
(b) Cannot call a witness whose sole purpose is to contradict another witness
unless the issue is a material issue or if the second witness could assert the
statement independently
i. Can still call witness to testify for first witnesss
A. Bad character for truthfulness
B. Bias
C. Sensory or mental defect
D. Sincerity
(3) Character of Witness FRE 608
(a) Opinion and Reputation evidence of Character
i. Can be used to attack or support a W credibility, subject to 2 limitations
A. Can only refer to character for truthfulness or untruthfulness
B. Evidence of truthful character can only come in after the Ws
character for truthfulness has been attacked by opinion, or
reputation or otherwise
(b) Specific Instances of Conduct (extrinsic evidence)
i. Not permissible to use to show Ws character for truthfulness or
untruthfulness.
A. Except 609 convictions
ii. May, however, inquire into on cross of W
A. Concerning W character for truthfulness or untruthfulness or
B. Concerning the character for truthfulness or untruthfulness of
another witness as to which the current witness has testified
1. ?s must be probative of this character and
2. permissible by courts discretion
iii. Same rules apply to Unavailable Hearsay Declarant no extrinsic
evidence U.S. v. Saada (3d Cir) FRE 806
(c) W can still assert 5th A privilege against self- incrimination
(4) Prior Convictions FRE 609
(a) Subject to 403, evidence of a prior felony conviction (misd. 1+ year) is
admissible to attack credibility of a witness
i. If W is Accused admissible if court determines that probative value
outweighs (not substantially outweighs) prejudicial effect

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ii. Usually, however, in a criminal trial will not be impeached by former

felonies (403 prejudicial)
(b) Conviction of a crime that involved dishonesty or false statement is
admissible, regardless of the punishment
i. Must be readily determinable that the crime involved some dishonest
elements
ii. SHALL BE ADMITTED no discretion to court
(c) Time limit 10 years since date of conviction, or date of release (whichever
is later)
i. If within 10 years, then it comes in no 403 question
ii. If outside of 10 years,
A. Judge may still allow it in under probative value substantially
outweighs prejudicial effect analysis
B. AND notice to other side
(5) Prior Statements FRE 613
(a) Limited admissibility
i. Only admissible for credibility unless there is a hearsay exception or
then it can go to truth of the statement
(b) Examining witness concerning prior statement.
i. Statement need not be shown nor its contents disclosed to the witness at
that time
ii. But on request it shall be shown or disclosed to opposing counsel
(c) Foundation requirement
i. Extrinsic evidence of prior inconsistent statement of witness is not
admissible unless
A. witness is afforded an opportunity to explain or deny the same
and
B. the opposing party is afforded an opportunity to interrogate the
witness thereon, or
C. the interests of justice otherwise require
ii. No extrinsic evidence allowed for collateral matters
A. Must take Ws answer no proving it out
iii. Does not apply to admissions of a party opponent 801(d)(2)
iv. Burden not on impeaching party to recall the impeached witness
(6) Impeachment by Sensory or Mental Defects
(a) A witness can always be impeached by showing that his capacity to observe,
remember, or narrate events correctly has been impaired by
i. Sensory defect
ii. Mental Defect
iii. Drugs & Alcohol
A. Can show proof of intoxication
B. Probably cant show addiction unless was drunk at time
iv. Psychiatric Testimony
A. Generally frowned upon you can do it but you get close to a
403 violation US v. Lindstrom (11th Cir 1983)
(b) Extrinsic evidence allowed

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(7) Bias
(a) All courts allow proof that W is biased
(b) Types of Bias
i. Friendly feeling
ii. Hostility
iii. Self-interest
iv. Membership in group
A. Where 608(b) and Bias conflict bias wins
B. U.S. v. Abel (SC 1984)
(c) Foundation not needed
i. 611 judge may, however, require it
(d) Bias is never collateral
8. CONFIDENTIALITY
A. FRE 501 Two Part System
(1) Diversity Cases
(a) In civil cases where state law supplies the rule of decision, state law of
privilege applies.
(2) Federal Question Cases
(a) In criminal cases, and in civil federal question cases, the federal courts are
free to use their own judgment
(b) Not bound by privilege law of the state in which they sit
(3) Privilege rules interpreted strictly and do not apply broadly
B. Attorney-Client Privilege
(1) Clients Privilege
(2) Requirements
(a) Client can be a corporation
(b) Professional relationship
i. No retainer needed
(c) Confidential
i. Includes agents of the lawyer contract w/ experts or doctors etc
ii. Presence of third parties waived privilege
iii. Eavesdropping
A. privilege not waived as to client/lawyer,
B. But privilege does not bind a third party Clark v. State (TX)
(d) For purpose of legal representation
(3) Does not include
(a) Non legal communication
i. Knowledge of appearance order time & date
ii. Lawyer is just an officer of the court United States v. Woodruff (EDPA
1974)
(b) Fact that relationship exists or identity of the client
(c) Physical evidence or documents given to him by the client
i. (other than documents written for the purpose of communicating from
client to lawyer)
ii. Cant conceal evidence
iii. Attorney choices

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A. Do not accept it
B. Accept for a reasonable time ballistic test
C. Turn over to prosecution if you think client will destroy
(4) Corporate Clients
(a) Who may communicate to lawyer?
i. Upjohn more than just the control group
ii. Unclear if every employee will be deemed to be speaking for the corp
A. Communication, however, must concern EEs employment
B. Communication must be for the purpose of legal representation
C. Communication must be treated confidentially in house i.e.
need to know basis
(5) Exceptions to privilege
(a) Crime or fraud exception
i. In camera examination
ii. Threshold showing to get in camera examination
A. Party must show a factual basis adequate to support a good faith
belief by a reasonable person that in camera review of the
materials may reveal evidence establishing the crime or fraud
exception
(b) Deceased client
i. In general privilege survives the death of the client
ii. Does not apply however, if the case is a will contest or property issue
(c) Attorney Client Dispute
(d) Joint Clients Dispute
C. Doctor Patient Privilege
(1) General privilege against
(a) Confidential communications
(b) Made to a physician (including psychiatrist)
(c) If made for the purpose of obtaining treatment, or diagnosis looking toward
treatment
(2) Special issues
(a) Other professionals no privilege
(b) Consulting for litigation purposes no privilege
(c) Patient must intend confidentiality,
i. if tells a friend about communication no privilege
(d) Waiver by bringing claim that puts mental state in issue no privilege Prink
(e) Public safety
i. Patient is dangerous to others, doctor can give a warning
(3) Psychotherapist patient privilege
(a) Qualified privilege may be overridden by confrontation clause concerns
(b) Waiver Danger itself nullifies privilege
i. Threat to therapist may destroy privilege, even if therapist thinks its an
empty threat - Menendez (Cal statute)
D. Marital Privilege
(1) Marital Testimonial privilege
(a) Testifying spouse has a right to take the privilege and not get take the stand

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(2) Marital Communications privilege

(a) may nonetheless have this privilege
(b) Prevents disclosure of confidential communications made by one spouse to
the other during the marriage
(c) Construed strictly was there a marriage when communication took place?
i. Tricky common law marriage?
(3) Jurisdictional breakdown
(a) Few jurisdictions have MTP
(b) Most jurisdictions have MCP
(c) Both recognized in federal court
(d) Know which, or if both is recognized in your JD
E. Church State Privilege
(1) In most states, covers all confidential communication made by a person to a
clergyman in his professional character as spiritual advisor
(2) Strictly construed what is priest, minister etc
F. Parent Child Privilege
(1) Almost everywhere there is no privilege law disfavors privileges
G. News Persons Privilege
(1) No constitutional privilege in a Criminal GJ
(a) Reporter cannot refuse to answer questions about sources
(2) If subpoenas you
(a) Constitutional right wins out to privilege
(3) Test
(a) Subpoena served report moves to quash subpoena
(b) has to convince trial judge that there is a reasonable probability that the
information sought is material and relevant and not obtainable by other means
(c) Judge inspects material in camera
(4) Breakdown
(a) Federal court
i. Government Subpoena reporter answers
ii. Subpoena reporter answers (unless diversity case)
(b) State court criminal case with shield law
i. Government subpoena not coming in
ii. subpoena Test in Farber
(c) State court criminal or civil case without shield law
i. Reporter comes in regardless of who subpoenas him
9. WRITINGS AND THE BEST EVIDENCE RULE
A. Definitions FRE 1001
(1) Writings & recordings
(a) Letters, words, or numbers or their equivalent
(b) Set down by handwriting, typewriting, printing etc.
(2) Photographs
(a) Still and motion pictures, video
(3) Original
(a) Writing or recording itself or any counterpart intended to have the same effect
by a person executing or issuing it

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(b) An original of a photograph includes the negative or any print from it

(c) Printout of computer data as long as it reflects the data accurately
(4) Duplicate
(a) Copies basically
B. Requirement of original FRE 1002
(1) to prove content of a writing, recording, or photograph
C. Admissibility of Duplicates FRE 1003
(1) Admissible unless
(a) Question authenticity of original
(b) Circumstances warrant unfair to use duplicate in lieu of the original
D. Admissibility of Other Evidence of Contents FRE 1004
(1) Original not required, and other evidence of the contents of a writing, recording or
photograph is admissible if
(a) All originals are lost or have been destroyed, unless the proponent lost or
destroyed them in bad faith:
(b) Original not obtainable
(c) Original in possession of opponent
i. Notice given but original not produced
(d) Collateral matters
i. Writing, recording, or photo is not closely related to controlling issue
E. Public Records FRE 1005
(1) Satisfy FRE 902 and you satisfy FRE 1005
10. AUTHENTICATION AND IDENTIFICATION
A. Requirement of Authentication or Identification
(1) FRE 901(b) Illustration
(2) Chain of Custody
(a) Not fatal administrative mishap
(b) At what point does 403 come up
B. Self-Authentification
(1) Trade inscriptions etc authenticate a product Jolly Green can of peas w/ mouse
(2) Public copies records
C. Subscribing Witness Testimony Unnecessary
11. JUDICIAL NOTICE
A. Can be done on appeal
B. In civil binds jury,
C. In criminal does not bind jury

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