Evidence

Rule 105

Limiting Instructions: If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

If the party negatively affected by the evidence requests a limiting instruction, the court MUST restrict the evidence to its proper scope and instruct the jury accordingly

Reversing on Evidentiary Issues

       Abuse of Discretion standard

◦          Rule 103 allows reversal for evidentiary error only if the error affected a “substantial right” of one of the parties

▪          This only occurs when there is a reasonable probability that the outcome would have been different

•          De novo

◦          Applies when judge misinterprets a Rule of Evidence or applies the wrong legal standard

◦          Substantial right still applies

•          Plain error (Rule 103(e))

◦          If party fails to preserve evidentiary objection at trial, reversal only for plain error affecting substantial right

◦          Must be a clear and obvious error, affects substantial rights, would seriously affect fairness/integrity/public reputation of the court if left uncorrected

Rule 402

Relevant evidence is admissible unless provided otherwise by the Const., statute, FRE, other SC rules. Irrelevant evidence is never admissible

Rule 401

1. Evidence is relevant if it:

   1. Has any tendency to make a fact more or less probable than it would be without the evidence; AND

      1. Low threshold, very lenient

      2. Whether the evidence is strong or weak speaks to weight, not relevance

   2. The fact is of consequence in determining the action

      1. Must connect to legal issues in the case

      2. The facts to which evidence is directed need not be in dispute. So even if a party concedes, that doesn’t prevent evidence from being admitted or being relevant

Rule 403

1.  Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

   1. The court may (discretionary) exclude relevant evidence if its probative value is substantially outweighed (there is still a firm preference in favor of admissibility) by a danger of one or more of the following:

      1. •    unfair prejudice,

         1. “unfairly prejudicial” evidence “lure[s] the fact finder into declaring guilt [or liability] on a ground different from proof specific to the offense charged

      2. •    confusing the issues, misleading the jury,

      3. •    undue delay, wasting time, or needlessly presenting cumulative evidence.

         1. Is the evidence duplicative? Unnecessary?

         2. Ex: 10 witnesses to say the same thing

   2. If the balance is equal, the evidence will still be included

   3. This is a sort of last resort, should be analyzed last

FRE 403 (balancing test) –

o   What is the probative value of the evidence [step one: assess the strength/usefulness of the evidence in proving a fact of consequence]?

o   Does the evidence risk causing unfair prejudice (causing the jury to decide the case on an improper basis, like strong emotions), confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence [step two: assess the dangers of introducing the evidence].

o   The evidence will only be excluded if the probative value of the evidence is substantially outweighed by the above-mentioned dangers [step three: weigh both sides of the balancing test, which is very discretionary and favors admissibility].

Rule 407 - Subsequent Remedial Measures

(subsequent remedial measures) – Is it evidence of a remedial measure taken by a party after an injury? If yes:

§  General rule: it is not admissible if it is being used to show negligence, culpable conduct, or product and design defects/need for warnings (strict liability)  

§  Exceptions: it is admissible if it is being used for another purpose such as

·         To impeach; or

·         If disputed, to show ownership, control, or feasibility of the precautionary measure

• Like control over an employee 

Rule 408 - Settlement Negotiations

settlement negotiations) – Is it evidence of a settlement agreement or statement made during settlement negotiations regarding a disputed claim? If yes:

§  General rule: it is not admissible if it is being used to prove or disprove the validity or amount of the claim, or if it is being used to impeach by prior inconsistent statement or contradiction

§  Exceptions: it is admissible if it is being used for another purpose such as to

·         Show a witness’s bias or prejudice;

·         Negate a contention of undue delay;

·         Prove an effort to obstruct a criminal investigation or prosecution;

·         If it was a statement made during compromise negotiations in a prior investigative/regulatory/enforcement action involving a government agency, then it can be used in a subsequent criminal prosecution

Rule 409 - Medical Expenses

(medical expenses) – Is it evidence of an offer to pay or payment of medical expenses? (does not encompass offers to pay lost wages, repair an automobile, or compensate an injured party for other types of economic or property damage)

§  General rule: it is not admissible if it is being used to prove liability for the injury

§  Exceptions: it is admissible if is being used for another purpose, such as to show the injury occurred

Rule 410 - Criminal Plea Bargains

(criminal plea bargains) – Is it evidence from a criminal plea bargaining that did not result in a guilty plea that is being used against the criminal defendant in a subsequent civil or criminal case?

§  General rule: It is not admissible for any purpose.

§  Exceptions: Only admissible in two narrow situations

·         When a statement made during the same plea discussions has been introduced and fairness requires more context to prevent the statement from being misleading; or

·         In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present

Rule 411 - Liability Insurance

(liability insurance) – Is it evidence that a person was or was not insured against liability?

§  General rule: It is not admissible if it is being used to prove the person acted negligently or otherwise wrongfully.

§  Exceptions: It is admissible if it is being used for another purpose, like

·         To prove a witness’s bias or prejudice;

·         To prove agency, ownership, or control 

Rule 601 - Competency to Testify in General

Competency to Testify in General. Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Common law capacity

• Every witness needs:

  • Narration

  • Understanding importance of telling the truth

  • Memory

  • Perception

• Deficient in one area means you can still testify, but opposing counsel can challenge and challenge weight

• Completely lacking one means cannot testify

Rule 602 - Personal Knowledge

Need for Personal Knowledge. A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

• Personal knowledge implies that a witness is capable of apprehending an event, remembering it, and describing it to others. If a witness lacks the ability to fulfill these functions—because of youth, mental impairment, or any other reason—the witness may not have sufficient personal knowledge to testify.

Rule 603 - Oath or Affirmation

Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

• Failure to do an oath renders you incompetent

• Doesn’t have to be “I swear to tell the truth”

Character Evidence, Rule 404 General Rule

(1) Prohibited Uses. Evidence of a person’s character or character trait (good or bad) is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait

Rule 608

Is an attorney attempting to introduce evidence of the truthful character of a witness?

• Yes

  • Is the evidence regarding the witness’ general reputation, or specific conduct?

    • General reputation

      • Allowed under FRE 608(a) if they establish foundation for knowing the person

    • Specific conduct

      • Not allowed under FRE 608(a) on direct examination, gotta be general reputation/opinion

      • Inquiry into specific conduct allowed on cross-examination under FRE 608(b)(2) IF they are probative of the character for truthfulness or untruthfulness of: 

        • the witness; or 

        • another witness whose character the witness being cross-examined has testified about.

      • But extrinsic evidence of specific conduct is not admissible to prove character for truthfulness, except for a criminal conviction under Rule 609

  • Has the witness' character for truthfulness been attacked?

    • No

      • Then evidence supporting truthfulness not permissible under FRE 608(a)

    • Yes

      • Then testimony supporting truthful reputation is allowed under FRE 608(a)

Rule 610 - Religious Beliefs or Opinions

Is an attorney attempting to introduce evidence of a witness’ religious beliefs/opinions?

• No

  • FRE 610 not implicated

• Yes

  • Is it being used to attack a witness’ credibility?

    • Yes

      • Improper under FRE 610

    • No

      • FRE 610 is not a bar

      • But it must still be relevant under FRE 401 and not excluded under FRE 403

Rule 613 - Prior Inconsistent Statements

Is an attorney seeking to introduce evidence of a Prior Inconsistent Statement made by a witness?

• Is the PIS connected to a collateral matter, or a non-collateral matter?

  • Collateral

    • Attorney can question witness about the PIS

    • But attorney must accept the witness’ answer

    • And must show the PIS to opposing counsel if they request it

  • Non-collateral

    • Attorney can offer extrinsic evidence about the PIS if both are met:

      • Witness has chance to explain/deny the PIS, AND

      • Adverse party gets the chance to examine the witness about it

Rule 106 - Rule of Completeness

If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part — or any other statement — that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection. 

Rule 609 Analysis - Impeachment by Prior Criminal Conviction

•          Is an attorney attempting to introduce evidence of a witness’ prior criminal conviction?

•          Is the criminal conviction being used only to suggest an untruthful character?

◦          No (used for another reason): Not admissible

◦          Yes: May be admissible; the jury may only consider the conviction to assess the witness’s character for truthfulness

•          Was the crime pardoned, annulled, or did the witness obtain a certificate of rehabilitation?

◦          Was the pardon or annulment based on a finding of innocence?

▪          Yes: Not admissible under 609(c)(1)–(2)

▪           No (no finding of innocence): Has there been any subsequent felony conviction?

–         No: Not admissible

–         Yes: May be admissible; continue analysis

•          Was the crime committed as a juvenile?

◦          No: Rule 609(d) not implicated; proceed

◦          Yes — admissible under 609(d) if ALL of:

▪          The crime was a criminal conviction

▪          The witness is NOT the defendant (never admissible against the criminal defendant)

▪          The conviction would be admissible against an adult; AND

▪          The evidence is necessary to fairly determine guilt or innocence

•          Was the witness convicted or in confinement for the crime less than 10 years ago?

◦          Yes: Rule 609(b) not implicated; proceed

◦          No (10+ years ago): Admissible under 609(b) only if prejudicial effect is substantially less than probative value AND the attorney gives the opposing party reasonable written notice

•          Did the crime involve dishonest acts or false statements?

◦          Yes: Automatically admitted under 609(a)(2). Note: Rule 403 does not apply

◦          No — was the crime a felony? (crime punishable by death or imprisonment for more than one year)

▪          No (misdemeanor): Not admissible under 609(a)

▪          Yes:

–         If the witness is the defendant in a criminal case, the prior crime must be admitted if the prejudicial effect is less than the probative value under 609(a)(1)(B) — special balancing test that looks only at prejudicial effect to that defendant

–         If the witness is anyone other than the defendant in a criminal case, the prior crime is admissible if Rule 403 does not exclude it (admissible unless prejudicial effect substantially outweighs probative value)

Rule 104 - Preliminary Questions

FRE 104(a)

•          The judge decides preliminary questions about admissibility using a preponderance standard and is not bound by evidence rules except privilege

FRE 104(b)•          When relevance depends on a fact, the judge “screens” the evidence and will admit it if a reasonable jury could find the fact exists

Hearsay Basic Rule + What is a statement?

Hearsay is:

1. an out-of-court statement

   1. A “statement” for hearsay purposes has two ingredients: (1) it is an assertion, and (2) it is made by a human

2. offered for the truth of the matter asserted

5 Questions to Ask about Potential Hearsay

    Five questions to ask about every piece of potential hearsay:

◦          Does the evidence contain a statement?

◦          Did the statement occur outside the courtroom?

◦          Is the party offering the statement to prove the truth of the matter asserted?

◦          Does an exception apply?

◦          Does the Sixth Amendment limit use of the statement?

Common examples of evidence being offered not for TOMA (thus not hearsay)

◦          Knowledge of the speaker

◦          Notice to the listener

◦          Effect on the listener

◦          Legally binding statements

FRE 801(d)(1) – Prior Statements by Witnesses

(Not Hearsay)

•          Prior Statements by a declarant-witness who testifies and is subject to cross-examination are considered not hearsay and can be used for TOMA in three situations:

◦          Prior Inconsistent Statement (PIS) given under penalty of perjury at a trial, hearing, other proceeding, or in a deposition

◦          Prior Consistent Statement (PCS) offered to rehabilitate the witness’s credibility

◦          Prior ID of someone the declarant perceived earlier

FRE 801(d)(2) – Opposing Party Statements

(Not Hearsay)

•          A statement offered against an opposing party that was:

◦          (A) Made by the party in an individual or representative capacity

◦          (B) Made by someone else, but the party adopted the statement

◦          (C) Made by a person whom the party authorized to make the statement

◦          (D) Made by the party’s agent or employee:

▪          On a matter within the scope of that relationship; and

▪           While the relationship existed

◦          (E) Made by the party’s coconspirator:

▪          During the conspiracy; and

▪          In furtherance of the conspiracy

•          Note: The statement alone cannot establish the requisite conditions for (C), (D), and (E). More evidence is needed

     803(1) – Present Sense Impression

◦          Describes or explains an event or condition

◦          Statement made while or immediately after perceiving the event or condition

    803(2) – Excited Utterance

◦          Relates to a startling event or condition; and

◦          Statement made while still under stress of the excitement

   803(3) – Then-Existing Mental, Emotional, or Physical Condition

◦          Statements that show what the declarant was internally feeling, thinking, or physically experiencing at that moment

◦          Cannot be for a past event or condition

◦          Cannot be used to sneak in a past fact or show that events occurred

◦          Cannot be a statement of memory or belief

803(4) – Statement Made for Medical Diagnosis or Treatment

◦          A statement (usually by the patient, but could be someone speaking for the patient) that:

▪          (A) Is made for (subjective standard) — and is reasonably pertinent to (objective standard) — medical diagnosis or treatment (includes physical and psychological; need not be made to a medical professional, but usually are); AND

▪          (B) Describes medical history; past or present symptoms or sensations; their inception; or their general cause (excludes most references to blame or fault, except sometimes in child sex abuse or domestic abuse cases)

court may redact info blaming someone or is not reasonably pertinent to diagnosis/treatment

  803(5) – Recorded Recollection

◦          A record that:

▪          (A) Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately

▪          (B) Was made or adopted by the witness when the matter was fresh in the witness’s memory (need not be contemporaneous); and

▪          (C) Accurately reflects the witness’s knowledge

◦          If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party

◦          *Don’t confuse 803(5) with Rule 612 (refreshing recollection)

 803(6) – Records of a Regularly Conducted Activity

(business records — private companies or non-profits)

◦          Made close in time to the event by someone with firsthand knowledge (or from someone internal who has firsthand knowledge)

◦          The organization keeps the record as part of normal operations

◦          The organization routinely makes this kind of record

◦          Proven by someone who understands the system (i.e., the custodian/record keeper)

◦          AND opponent does not show it lacks trustworthiness (e.g., made with bad motive in preparation for litigation)

    803(8) – Public Records

(governmental entities)

◦          Records that set out:

▪          The office’s activities (routine operations), OR

▪          Observations while under a legal duty to report (but police reports can’t be used against criminal defendants), OR

▪          Findings in a legally authorized investigation (can’t be used against a criminal defendant)

◦          AND opponent does not show it lacks trustworthiness

FRE 805 – Hearsay Within Hearsay

•          Look for multiple layers of hearsay

•          Each layer must fit into its own exception; if either layer fails, the entire statement is inadmissible

example: police report with witness statement example. Report is hearsay and the witness statement is hearsay within that

Rule 804 – Declarant Unavailability

•          Declarant is “unavailable” if one of these applies:

◦          Is exempted from testifying because the court rules that a privilege applies

◦          Refuses to testify about the subject matter despite a court order to do so

◦          Testifies to not remembering the subject matter

◦          Cannot be present or testify because of death or a then-existing infirmity, physical illness, or mental illness

◦          Is absent and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s appearance/testimony

•          *Note: FRE 804(a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability in order to prevent the declarant from attending or testifying

FRE 804(b)(1) – Former Testimony

•          Not hearsay if declarant is unavailable and the testimony:

◦          (A) Was given as a witness at a trial, hearing, or lawful deposition, whether in the current or a different proceeding; AND

◦          (B) Is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination

•          Four factors courts use to determine whether an opposing party had similar motives to develop prior testimony:

◦          The type of proceeding in which the testimony was given

◦          Trial strategy

◦          The potential penalties or financial stakes

◦          The number of issues and parties

FRE 804(b)(2) – Dying Declaration

•          Declarant is unavailable (though they need not have actually died)

•          Can only be used in a homicide case (someone died) or in a civil case

•          Statement declarant made while believing their death to be imminent (subjective standard; look at their statements, what they’d been told by medical professionals, the nature and extent of their wounds/illness); AND

•          The statement was about its cause and circumstances

FRE 804(b)(3) – Statement Against Interest

•          Declarant is unavailable

•          A statement that a reasonable person in the declarant’s position (objective standard) would have made only if they believed it to be true because:

◦          It was so contrary to the declarant’s proprietary or pecuniary interest; OR

◦          Had so great a tendency to invalidate declarant’s claim against someone; OR

◦          Had so great a tendency to expose the declarant to civil or criminal liability

•          If offered in a criminal case, the statement must be supported by corroborating circumstances that clearly indicate its trustworthiness after considering the totality of the circumstances (e.g., motives to lie, frequency of statement, who it was made to, relationship with accused, independent corroborating evidence)

FRE 804(b)(6) – Forfeiture by Wrongdoing

•          Exception for Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability

•          If the declarant is unavailable

•          A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—(courts define “wrongfully” as coercion, undue influence, or pressure to silence testimony; more than just ordinary persuasion) the declarant’s unavailability as a witness (even if they were just a potential witness at the time), and did so intending (need not be the only motive, just part of the motive; does not apply if preventing testimony was merely an unintended side effect) that result

•          Policy: aims to prevent wrongdoers from profiting from their misconduct (implied waiver)

FRE 807 – Residual Exception

•          A hearsay statement not excluded by the rule against hearsay even if not admissible under Rule 803 or 804 (near misses for those exceptions may qualify here) if:

◦          (1) The statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and any corroborating evidence (court considers: made under oath, declarant had firsthand knowledge, declarant ever recanted, corroborating evidence, evidence that contradicts the statement, declarant’s incentive to lie); AND

◦          (2) It is more probative on the point for which it is offered than any other evidence the proponent can obtain through reasonable efforts (if the declarant is available, the judge will force the party to call the declarant rather than rely on FRE 807)

FRE 806 – Attacking a Declarant’s Credibility

•          When a hearsay statement—or a statement described in Rule 801(d)(2)(C), (D), or (E)—has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness

•          The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it

•          If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination

Confrontation Clause - Sixth Amendment Analysis

          Before worrying about a Sixth Amendment analysis, make sure the statement is admissible hearsay first; if it’s inadmissible hearsay, no constitutional analysis is needed

•          The Confrontation Clause only limits evidence offered against a criminal defendant

◦          No impact on civil cases

◦          Doesn’t restrict evidence the criminal defendant offers against the state

•          Right to confrontation = right to cross-examination

•          Three questions when faced with a Confrontation Clause problem:

◦          Is the proffered statement testimonial? (Testimonial triggers the Confrontation Clause; non-testimonial does not)

◦          If so, is the declarant available for cross-examination?

◦          If testimonial and declarant is unavailable, can the prosecutor establish both that the declarant is unavailable and that the defendant had a prior opportunity to cross-examine?

Testimonial vs. Non-testimonial for Confrontation Clause

•          Testimonial — primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution (objective test):

◦          Formal statements during litigation, under oath, in the presence of a judge

◦          Statements made in response to conventional police interrogation

◦          Many laboratory reports offered against a criminal defendant (especially if formalized and created for the purpose of accusing a targeted individual)

•          Non-testimonial — primary purpose is something else:

◦          Statements to law enforcement to enable assistance to meet an ongoing emergency

◦          Statements made in furtherance of a conspiracy (can be used against all members even if speaker unavailable)

◦          Business records (usually created for business purposes, not to create evidence; but records created for litigation would likely fail 803(6) and be considered testimonial)

◦          Statements admitted to prove something other than the truth of the matter asserted

◦          Statements to private parties (friends, family, neighbors, etc.)

◦          Defendant’s own statements

•          If declarant is unavailable and prosecutor is trying to use testimonial evidence, prosecutor must show:

◦          Declarant is unavailable (prosecution must make a good faith effort to secure the witness’s testimony); and

◦          Defendant had a prior opportunity (and similar motive) to cross-examine the declarant

•          Note: Two “founding era” exceptions where testimonial evidence may be used even if there was no prior opportunity to cross-examine:

◦          Statements that qualify for the forfeiture exception

◦          Dying declarations

Bruton Doctrine for Confrontation Clause

•          It violates the Confrontation Clause to admit statements by one non-testifying criminal defendant that incriminate another criminal defendant by name or obvious reference

•          Exam key: Look for multiple criminal defendants on trial together, the declarant does not testify, and the statement was made after the joint venture ended (e.g., after an arrest)

•          Reminder: If the statement was made during the conspiracy, Bruton doesn’t apply (a statement made in furtherance of a conspiracy is attributed to all coconspirators)

•          If prosecutors choose to admit confessions that mention codefendants, they must follow these guidelines:

◦          A statement that explicitly names a codefendant and implicates that codefendant on its face violates Bruton. The statement cannot be admitted in this form

◦          A statement that simply replaces the codefendant’s name with blanks or other obvious marks of deletion also violates Bruton; it will inevitably tempt the jury to fill in the blanks

◦          A statement that does not refer explicitly to a codefendant, and contains no obvious omissions tempting the jury to fill in gaps, satisfies Bruton. These statements are still admissible only against the defendant who made the out-of-court statement, and the judge will instruct the jury not to consider them in connection with any codefendants

Rule 701 - Lay Opinions

•          Lay witnesses can give opinions if:

◦          The opinion is rationally based on something the witness perceived (not speculation; not based on hearsay), AND

◦          The opinion is helpful to understanding the witness’s testimony or determining a fact in issue, AND

◦          The opinion is not based on scientific, technical, or other specialized knowledge within the scope of FRE 702 (but lay witnesses can draw reasonable inferences from their unique experiences if they lay foundation for having info to form that opinion)

FRE 702 – Expert Testimony

•          A witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the proponent demonstrates to the court that it is more likely than not that (judge makes this determination, not the jury; preponderance standard is a 2023 amendment):

◦          (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue (“fit” requirement), AND

◦          (b) The testimony is based on sufficient facts or data, AND

◦          (c) The testimony is the product of reliable principles and methods (Daubert); AND

◦          (d) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case

Tests for a Judge to Determine whether expert’s field of expertise is reliable

Before allowing an expert witness to testify, the judge must determine that the field of expertise is reliable:

◦          Frye test — judges measure reliability by asking whether the expert’s opinion was based on methods sufficiently established to have gained “general acceptance” in the particular field (some states continue to apply this, including California)

◦          Daubert test — non-exhaustive factor test for reliability (all federal courts):

▪          Whether the theory or technique has been tested

▪          Whether it has been subject to peer review and publication

▪          The technique’s error rate

▪          The existence of standards controlling the technique’s application

▪          Whether the theory or technique has been generally accepted in the relevant scientific community

FRE 703 – Bases of an Expert’s Opinion

•          An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed

•          If experts in the particular field would reasonably rely on those kinds of facts or data, they need not be admissible for the opinion to be admitted

•          But if the facts or data would otherwise be inadmissible, the proponent may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect (reverse 403!; this rule does not apply if the facts or data would be independently admissible)

FRE 704 – Opinion on Ultimate Issue

•          (a) An opinion is not objectionable just because it embraces an ultimate issue

•          (b) Exception: In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone

FRE 705 – Disclosing Facts Underlying Expert Opinion

•          Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data

•          But the expert may be required to disclose those facts or data on cross-examination (the opposing party may want to attack weaknesses in the testimony)

      Five factors to trigger attorney-client privilege:

◦          Client: Any individual or entity who obtains legal services from a lawyer or consults a lawyer about obtaining those services

◦          Lawyer: Any person authorized to practice law or whom the client reasonably believes is authorized to practice law (and their representatives like paralegals, legal assistants, etc., as long as their services are necessary to further the legal representation)

◦          Communication: Can be written, oral, or even nonverbal if the conduct asserts a fact; covers communication from both the client and the attorney. The privilege does not protect underlying information (i.e., outside witnesses or pre-existing documents or objects)

◦          Confidential: Look at the setting, whether third parties were present, steps taken to maintain secrecy. Communications lose privilege when made in the presence of people outside the privilege. If an eavesdropper overhears the communication, existence of privilege depends on whether the client took reasonable precautions to ensure confidentiality

◦          Made for the purpose of receiving legal services: Includes initial consultations, even if the parties do not pursue representation

 Waiver of Attorney Client Privilege

◦          An attorney may not waive the attorney-client privilege without permission from the client

◦          Expressly or implicitly by sharing confidential communications with someone outside the privilege

◦          If the client waives one portion, the court may force the attorney to testify about any related communications that “ought in fairness to be considered”

◦          Inadvertent disclosure won’t waive privilege if the privilege holder used reasonable measures to prevent the disclosure and takes reasonable steps to rectify it

5 Exceptions to the 404(a) General Rule:

◦          Evidence of untruthful character used to impeach a witness (Rules 608/609)

◦          Character is in issue (an element of a claim): defamation, child custody, negligent entrustment cases (any evidence can be used, see Rule 405(b))

◦          404(a) exceptions (criminal case exceptions, see below)

◦          Uncharged misconduct evidence (Rule 404(b))

◦          Habit (Rule 406)

Evidence Allowed when Character is In Issue

all forms of evidence (reputation/opinion testimony, specific instances, extrinsic evidence) are admissible because you aren’t using it to show propensity

Rule 404(a)(2) – Exceptions in Criminal Cases

•          (A) A defendant may offer evidence of the defendant’s pertinent trait (e.g., peaceful character in a violence case or honest character in fraud), and if admitted, the prosecutor may offer evidence to rebut it (must match what defendant offered)

•          (B) Subject to Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait (e.g., violent character to show self-defense), and if admitted, the prosecutor may:

◦          (i) Offer evidence to rebut it (must match what defendant offered); and

◦          (ii) Offer evidence of the defendant’s same trait (must match what defendant offered)

•          (C) In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor (regardless of whether defendant used character evidence to raise the issue)

Rule 404(b) – Other Crimes, Wrongs, or Acts

•          (1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character

•          (2) Permitted Uses. This evidence may be admissible for another purpose, such as (not exhaustive): proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

Rule 405 – Methods of Proving Character

•          (a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination, the court may allow inquiry into relevant specific instances of conduct

•          (b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct (during direct on the party’s case in chief; includes any type of extrinsic evidence)

FRE 406 – Habit

•          Habit for FRE purposes is a specific, repeated response to a particular situation or stimulus

•          Policy rationale for allowing habit evidence:

◦          Habit evidence tends to be morally neutral, so there is less chance of unfair prejudice

◦          It tends to have a higher probative value than propensity evidence

•          Rule 406: Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness

•          Focus on:

◦          The specificity of the conduct

◦          The distinctiveness of the situation producing the conduct

◦          The regularity of the conduct

FRE 412 – Rape Shield Law

•          Subject to a few exceptions, FRE 412 bars most evidence of an alleged victim’s prior sexual acts or sexual predisposition in sexual assault cases, both civil and criminal

FRE 413–415 – Sexual Assault / Child Molestation

•          Create exceptions allowing character evidence to be used in sexual assault/child molestation cases to prove defendant’s tendency to commit sexual assault/child molestation

Rule 404 – Threshold Question

•          Is an attorney attempting to use character evidence to prove a witness’ character trait?

◦          Is the character trait truthfulness or untruthfulness?

▪          No: Generally inadmissible under 404(a)(1)

▪          Yes: Possibly admissible under 404(a)(3) — go to Rules 608 and 609

Rule 103 – Preserving Error

•          (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only…

◦          (1) If the ruling admits evidence, a party, on the record:

▪          (A) Timely objects or moves to strike; AND

–         Timeliness = as soon as the ground for objection is known or reasonably should have been known

▪          (B) States the specific ground, unless it was apparent from the context

–         Specific ground and specific portion of evidence, unless objection applies to the whole thing

–         Gives opponent sufficient notice to respond and allows judge to rule more easily

◦          (2) If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context

▪          Gives the judge information needed to rule promptly and correctly on admissibility

•          (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal

◦          If a judge rules on a motion in limine, the losing party need not repeat any objection or offer of proof at trial (unless it’s a deferral on the MIL)

•          (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means

Spousal Privileges

1. Spousal Testimonial Privilege

   1. In a criminal case, 

   2. A spouse can refuse to testify against their spouse “during the life of the marriage,” even about information obtained before the marriage. 

   3. Protects all information from disclosure, not just communications 

   4. The witness spouse controls the privilege

2. Marital Communications Privilege

   1. Protects communications that occur during the life of the marriage, not anything that came before the marriage

   2. Applies to all stages of all judicial proceedings, both civil and criminal, regardless of whether the spouse is a party to the litigation 

   3. Protects marital confidential communications even after the marriage ends 

   4. Does not protect observations! 

   5. Both spouses control the privilege—it cannot be waived without the other’s consent 

   6. The presence of a third party almost always destroys the privilege (other than their children)