I.

Relevance
402 All relevant Evidence is admissible. Evidence which is not relevant is not admissible 401 Relevant Evidence is evidence that is both probative and material 1. Probative evidence having any tendency to make the existence of any fact...more or less probable than it would have been without the evidence Could be probative if it corroborates something another witness said 2. Material evidence to make the existence of any fact that is of consequence ot the determination of the action Admissibility 1. 104(a) Preliminary questions concerning qualification to be a witness, existence of a privilege or admissibility of evidence shall be determined by the court. Trial judge generally determines whether evidence is admissible Must be satisfied its reliable by a preponderance of the evidence This applies for almost every possible objection to admissibility except conditional relevance Rules of evidence do not apply in a 104(a) hearing except privilege (e.g. hearsay is allowed) 104(a) is used when the testimony would clearly be relevant if allowed 104(a) used to determine if hearsay exception applies 2. 104(b) When relevancy depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of that condition Easier standard to satisfy than 104(a) Judge must determine only that a reasonable jury could believe that the fact exists The contested evidence is admissible only if another condition is satisfied 403 Balancing test for relevant evidence 1. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence 2. Unfair Prejudice = an undue tendency to suggest decision on an improper basis Relevant evidence that persuades the jury to base guilt on something other than proof of the charged offense E.g.) Someone needs to pay for this, or the victim deserved it, or the D is a bad person he should go to jail, etc. Examples: o Photos and Inflammatory Evidence o Evidence of Flight can sometimes indicate guilt, but there could be innocent reasons for fleeing o Probability Evidence Generally not allowed because you cant give the odds that D is guilty and jury might give it too much weight

o Stipulations parties can agree to admit some evidence (past crime), but dont need to know the specifics of the crime for Specialized Relevance Rules some types of evidence are definitely relevant, but the likelihood of unfair prejudice is too extreme or there are social goals that are furthered by keeping this type of evidence out 1. 407 Subsequent Remedial Measures evidence that a D changed or repaired something after it was allegedly involved in an injury is not admissible to prove negligence or other culpable conduct But, could be admissible for other purposes (ownership, control, etc.) Dont want to deter people from making repairs SRMs cannot be used to impeach SRMs can be used to show feasibility if D controverted feasibility by saying there was no way he could do it another way 2. 408 Compromise Offers 1) furnishing or accepting an offer to pay consideration in compromise of the claim and 2) conduct or statements made in compromise negotiations are not admissible to prove liability But, could be offered for things other than liability bias, etc. Does not protect admissions or statements not part of the compromise Also, conduct at civil discussions are usually admissible in criminal cases 3. 409 Payment of Medical Expenses evidence of furnishing or offering to pay medical, hospital or similar expenses because of an injury is not admissible to prove liability for that injury Narrower version of 408 Pro-Humanitarian 4. 411 Liability Insurance Evidence that a person was or was not insured against liability is not admissible upon the issue of whether that person acted negligently or otherwise wrongfully But, can be used for another purpose agency, bias, prejudice, etc. 5. 410 Any statements made in pleas or plea discussions are not admissible against D who made the plea or was a participant in the discussions Must be spoken to a prosecutor Its always barred except where specifically permitted in a later perjury case or for contexts other than conviction Only shields D, not GOV (more probative against D than GOV anyway)

II. Character-Propensity Evidence

404(a) Evidence of a persons character or trait may not be introduced to support an inference that the person acted in conformity therewith on a particular occasion 1. Rule against propensity evidence cant go through propensity box that D is the type of person that would do this 2. Character evidence, whether proven by way of opinion or reputation or specific incidents evidence, is not admissible to prove propensity to behave in a particular way on a particular occasion

404(b) Evidence of a persons other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes: 1. Proof of Knowledge evidence of past act proves he knows how to do it 2. Proof of Motive evidence of past act to prove he has a reason to indulge in the current criminal intent 3. Proof of Identity Evidence that D in the past used a similar method so that the current crime must also be by D Establishes who done it Modus Operandi D can use reverse-404(b) to show that someone else has this MO so it must have been that other person who did this crim 4. Narrative Integrity Evidence of past act is necessary for the proponent to offer a coherent and comprehensible story for the commission of the crime 5. Absence of Accident Evidence of past act proves the current occurrence isnt an accident 6. Doctrine of Chances Evidence of past event is so objectively improbable to be an accident that D must have committed this crime 7. Common Plan, Pattern or Scheme Evidence of past crime can be used to show that this crime was part of an overall scheme Or one crime was committed as a way to commit another crime (stole the gun to commit homicide) 8. Intent Evidence of other bad acts show D had intent to commit those past crimes 9. These are routes around the propensity box the evidence of the past acts are being used for permissible purposes, not to show that D is a bad person acting in conformity with their bad character 10. Court must still do a 403 balancing test to determine if the evidence is admissible First, is it relevant for some other purpose beyond showing criminal propensity If yes, then the court must do a 403 analysis to determine if the probative value of such evidence is not substantially outweighed by the danger of unfair prejudice Huddleston - other act evidence should be admitted if there the court determines if D committed the act by a preponderance of the evidence Court must follow 4-step process when evaluating 404(b) evidence: o 1) Whether the proponent is offering it for admissible purpose o 2) Whether the evidence is relevant for that purpose o 3) Weight probative value against risk of unfair prejudice (the character-propensity inference unless its a sex case) i. In 403 analysis court looks at need for evidence, how probative it is, how time consuming, the effect of a limiting instruction and how strong the evidence that the other conduct even occurred and whether D even did it o 4) Give a limiting instruction

The jury must be limited to only use this evidence for the permissible purpose, not to also draw inferences that D had a propensity to comit this crime 11. When evidence is used for the other purposes then its not character-propensity evidence at all! But, sometimes the other purpose still has relevance as character propensity evidence E.g.) Even if its evidence of identity, isnt there still an inference that D is the kind of person who commits crimes with that particular MO Difference is that its more specific and character refers to general traits If coming in under 404(b), it will inevitable prove conduct on a particular occasion, but its not coming in to prove this solely by way of an inference from character to such behavior 12. Also, congress should amend 404(b) to allow for signature crimes

Exceptions to the Character-Propensity ban Routes Through the

Propensity Box 1. 413 In criminal case where 1) D is accused of sexual assault, 2) evidence of the Ds commission of other sexual offenses is admissible 3) on matters to which it is relevant GOV must give D advanced notice of this evidence Can show specific acts 2. 414 In criminal case where 1) D is accused of child molestation, 2) evidence of the Ds commission of other child molestation is admissible 3) on matters to which it is relevant GOV must give D advanced notice of this evidence 3. 415 Evidence of past sexual crimes can be admitted to support an inference that D committed the sexual conduct charged in a civil suit 4. 413, 414, 415 No limiting instruction, but 403 balancing test applies But, the 403 test does not consider whether the evidence is propensity evidence 5. 404(a)(1) In criminal case, character of the accused (D) is permissible if: 1) Evidence of a pertinent character trait offered by D o E.g. Peacefulness to show he didnt fight o In the form of reputation or opinion 2) Evidence by the prosecution to rebut the same o Once D opens the door by offering propensity evidence about himself, the P can offer propensity evidence on the same trait o In the form of reputation or opinion, unless its cross-examining Ds witness then it can ask about specific instances o When a Ds character witness is cross-examined about specific events, then it is coming in for the limited purpose of impeaching the witnesss reliability and so a limiting instruction is given 3) Evidence of a character trait of D offered by P if D has offered evidence that the victim has that trait under 404(a)(2)

6. 404(a)(2) In criminal case, Character of the alleged victim is permissible if: 1) Evidence of a pertinent of the V offered by the D o E.g. Victim is violent so D acted in self-defense 2) Evidence by the prosecution to rebut that trait 3) Evidence by P in a homicide case that V was a peaceful person to rebut evidence that V was first aggressor 7. Methods of proving Character: 1) 405(a) When evidence of a character or trait is admissible, proof may be made by testimony as to reputation or testimony in the form of opinion 2) On cross-examination, inquiry is allowable into relevant specific instances of conduct 3) But, P is not allowed to introduce independent proof about the character trait, and is required to accept whatever answer the character witness gives 4) P can respond to rebut the character trait with his own W, but then it must be in the form of opinion or reputation 405(b) In cases in which character or trait is an essential element of a charge, proof may be made of specific instances of that persons conduct o E.g. in a defamation case, D would need to show Ps past acts to prove that its true (if hes an asshole) 8. 406 Evidence of the habit of a person is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit or routine practice Habit describes particular response in one situation, character is usually about ones tendency to act in a certain way in different situations

Impeachment evidence is admissible to show a Ws character for truthfulness

1. Sometimes impeachment is not character based W is lying now, but hes not always lying 2. 404(a)(3) Evidence on character of a witness is permissible under 607, 608 and 609. 3. 607 The credibility of a witness may be attacked by any party, including the party calling the witness 4. 608(a) 1) evidence of a witnesss character for untruthfulness may be offered in the form of reputation or opinion. 2) Evidence of a witnesss truthful character is admissible only after the witness has been attacked by opinion or reputation or otherwise Qualification as a reputation witness W must have an acquaintance with the subject in his community and circles in which has move, as to speak with authority of the terms in which generally the subject is regarded Qualification as an opinion witness W needs to have a sufficient factual basis to make his opinion credible (less stringent than reputation) 608(a)(2) can only rehabilitate your witness after his character for truthfulness has been attacked 5. 608(b) On cross-examination, a party may ask a witness about specific instances of conduct to attack or support the witnesss character for truthfulness

6.

7.

8.

9. 10. 11.

Extrinsic evidence may not be provided for attacking or supporting a witnesss character for truthfulness through specific instances of conduct o Use of extrinsic evidence will not be admitted on a collateral matter o But, it can be allowed to show a direct matter evidence of bias is never collateral Questioner must have reasonable basis for asking about specific opinions on cross-examination cant just be to get at otherwise inadmissible evidence Must be probative of truthfulness or untruthfulness, and up to the judge whether to allow such inquiry into specific events Must also survive a 403 weighting test This evidence is admitted for the purposes of impeaching Ws credibility 609(a)(1) Evidence that a W other than an accused has been convicted of a crime shall be admitted, subject to 403, if the crime was punishable by death or imprisonment of over 1-yr If offered against D, then do a stricter 403 test only admit if probative value outweighs prejudicial effect If not a criminal case against D, then do regular 403 test 609(a)(2) evidence that any witness has been convicted of a crime shall be admitted if the elements of the crime involved an act of dishonesty Crimen Falsi ultimate criminal act was itself an act of deceit Absolutely admissible no 403 balancing test Brewer When D is on the stand, 5 factors to determine whether impeachment evidences probative value is greater than prejudicial value: 1) Nature of the crime 2) Time of conviction and subsequent history 3) Similarity btwn past crime and crime charged if too similar then not allowed because of propensity 4) Importance of Ds testimony if important, then they wont let P impeach him because that would deter him from taking stand 5) Centrality of the credibility issue 609(b) Evidence of conviction is not admissible if more than 10 years has passed since conviction or release D may not appeal from trial judges ruling on 609 admissibility of past convictions to impeach D unless 1) D testified at trial, and 2) the P introduced the evidence Summary: Evidence of a persons character is generally barred 404(a)(1) and (a)(2) allows character evidence that bears on a pertinent trait 608 and 609 allow party to offer evidence about character for truthfulness o In form of reputation or opinion 608(a)(2) party may support a witnesss character for truthfulness only after the other party has attacked it 608(a)(1) permits litigant to offer evidence of witnesss character for truthfulness or untruthfulness in the form of reputation or opinion

608(b) permits party to ask on cross-examination about specific instances of the conduct of any witness o But, cannot be proven by extrinsic evidence 405(a) permits inquiry into specific instances only on cross-examination of a character witness 609 allows evidence of past deceitful crimes to impeach 12. Modes of Impeachment Bias o Permitted on cross-examination o Extrinsic evidence is permitted o 403 Balancing test applies Attack on sensory or mental capacity o W must have personal knowledge o Permitted on cross-examination o Extrinsic Evidence is permitted Prior Inconsistent statements 613, 801(d)(1)(A) o When is admissible as substantive evidence, then it can be considered for its truth as well as for what it asserts o Permitted on cross-examination o Extrinsic evidence permitted but W is afforded an opportunity to explain or deny the inconsistent statement. Not permitted if its only on a collateral matter Attack on character for truthfulness 608 and 609 o With prior misconduct (608) permitted on cross-examination if probative of truthfulness, no extrinsic evidence P is stuck with Ws answers o With prior convictions governed by 609 Contradiction 13. 607 party can impeach its own witness Where GOVs purpose in calling the W is clearly and solely to then impeach him with otherwise inadmissible hearsay that can come in only for impeachment, federal courts have ruled that the impeachment is impermissible Must determine the GOV was acting in good faith had a legit reason for calling this W to testify Rape Shield Law 1. 412(a) Evidence that 1) victim engaged in other sexual behavior or 2) evidence offered to prove any victims sexual disposition is not admissible in a proceeding involving sexual misconduct 2. 412(b) - Exceptions it will be admissible if: 1) Evidence of specific instances of sex by the victim to prove that a person other than D was the source of physical evidence (semen, blood, etc.) 2) Evidence of specific instances of sex by the V with the D offered to prove consent

 3) Evidence, the exclusion of which, would violate Ds constitutional rights 3. Evidence of past allegedly false accusations is allowed This is character of the victim under 404(a)(2) If D cant use specific instances, may be able to make constitutional claim that the specific instances are critical to his defense 4. Evidence of sexual actions is allowed if not to show propensity (404(b) style): Proof of Bias/Motive to Lie V lied because she was having sex with X and didnt want him to find out Narrative Integrity D might need to tell story to present a proper defense, but this would gut the rape shield completely Ds State of Mind to show that D didnt have intent to rape 5. Congress could have amended 404(a)(2) to not allow sexual acts as pertinent propensity evidence

III.

Relevance
Competency of Witnesses 1. 601 Every person is competent to be a witness except as otherwise provided 2. 602 A witness may not testify unless evidence is introduced sufficient to support a finding that the W has personal knowledge of the matter (104(a)) 3. 603 All witnesses must swear to tell the truth by oath or affirmation 4. 604 Presiding judge at trial cannot be a W at that trial 5. 606 Jurors may be witnesses but its limited 6. Young Children court will usually hold a competency hearing before permitting a child to testify if there are compelling reasons for challenging a childs competency

IV.

Hearsay
802 Hearsay is not admissible except as provided by these rules 1. General Rule against Hearsay 801(c) Hearsay is a 1) statement (assertion) made 2) out of court that is 3) offered in evidence to prove the truth of the matter asserted 1. 801(a) statement is an 1) oral or written assertion or 2) nonverbal conduct that is intended by the person as an assertion 2. 801(b) declarant is the person who makes the statement 3. The OOC statement is only inadmissible if the party seeks to have it admitted to establish the content is true 4. We are wary of hearsay evidence because we cannot test the 4 testimonial capacities of the Witness: 1) Perception 2) Memory 3) Narration 4) Sincerity 5. If the witness speak in court, there are more assurances of reliability:

1) Spoken under oath 2) Demeanor is scrutinized by jury 3) Subject to Cross-Examination When has the declarant asserted something? 1. There must be an audience 2. Declarant must have known there was an audience 3. Declarant must have intended to communicate something to that audience Letters didnt intend to assert that Wright was competent, so they can be admitted to show hes competent Diary might be assertive if D expected it to be read (communicative intent) 4. Non-Assertive Conduct is not hearsay Actions intended to accomplish something, not to convey a message Non-verbal conduct not intended as an assertion is not hearsay when it is introduced to prove a fact by way of two-step inference: o Conduct to belief and then belief to true belief 5. Assertions can be indirect or implied but the intent was to convey that message Its a hearsay statement even when offered figuratively or indirectly Indirect Assertion assertion offered to establish a link in a chain of inferences (e.g. Alice spent morning planning retirement home if true, this can be used to show she didnt commit suicide) Hearsay Test: 1. Is the proponent offering evidence to show what the declarant said is true? If what the statement asserts is also likely to be used by the jury for its truth then it is inadmissible hearsay The relevance of the assertions depends on their truth 2. Is that what the declarant intended to communicate Nonhearsay Uses of OOC Statement not offered for truth of matter asserted 1. Words offered to prove effect on listener 2. Verbal Acts W can say what was said to prove it was in fact said 3. Inconsistent Statements Offered to Impeach 613 If the prior inconsistent statement is used to impeach, it raises no hearsay implication Should be careful when letting GOV impeach its own witness, may just be trying to get hearsay statement admitted in bad faith Nonhearsay Uses of OOC Statement not offered for truth of matter asserted 1. Nonassertive Words involuntary expressions; spontaneous reactions 2. Words offered to prove something other than what they assert 3. Assertions as circumstantial proof of knowledge

V. Exceptions to Hearsay Rule

Rationale Necessity or Reliability

 801(d) Statements which are not considered hearsay

1. 801(d)(1) Prior statements by Witness Statement is not hearsay if the 1) declarant testifies at trial under oath and 2) is subject to cross-examination concerning the statement and the statement is: 801(d)(1)(A) Inconsistent statement offered substantively o The statement is inconsistent with the declarants testimony and was given under oath to the penalty of perjury at another hearing o 104(a) up to the judge to determine if its inconsistent o This may be offered substantively to prove the matter that it asserts o 1) Statement was made OOC, 2) Before the W testified, and 3) conflicts with something the W says in testimony 801(d)(1)(B) Past Consistent Statements o 1) Statement was made OOC, and 2) reinforces Ws testimony o May only be introduced if 1) the witnesss testimony has been attacked as recently fabricated or influenced by a motive to lie and 2) the witness made the prior statement before the time of the alleged motive to lie o 104(a) to determine if fabrication exists 801(d)(1)(C) Statements of Identification o Ws OOC statement identifying a person is admissible as substantive evidence of the identification if W perceived the person o And W must be subject to cross examination concerning the statement So these can be offered substantively if 1) the declarant is at trial under oath and 2) is subject to cross-examination o Subject to cross-examination is an easy standard (Owens) o May be unavailable (memory) and still subject to cross-examination 2. 801(d)(2) Admissions by party-opponents A statement is not hearsay if it as admission and is: 801(d)(2)(A) The partys own words o An admission is anything a party has ever communicated and is sought to be introduced at trial against that party o Can also be used substantively 801(d)(2)(B) Adoptive admissions o Partys reaction or action to something is an admission of something implied as long as 1) statement is heard and understood, 2) the party was at liberty to respond and 3) the circumstances naturally call for a response and 4) the party did not respond 801(d)(2)(C-D) A statement by a partys agent or someone authorized to speak on his behalf 801(d)(2)(E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy o 1) The conspiracy existed at the time the OOC was made, 2) the conspiracy included both the declarant and the party against whom the statement is offered and 3) the declarant spoke during the course of and in furtherance of the conspiracy

o 104(a) to determine if conspiracy existed 3. Rationale These statements were more reliable at the time they were made than they would be at trial 4. Admissions do not require personal knowledge

804 Hearsay Exceptions where the Declarant is Unavailable

1. 804(a) A witness is unavailable when: 1) Exempted from testifying by privilege 2) Refuses to testify concerning the subject matter of a OOC statement despite court order 3) Testifies to a lack of memory of the subject matter 4) Unable to be present due to physical infirmity 5) Absent from the hearing and proponent has been unable to procure declarants attendance by process or other reasonable means 2. Evidence must still pass through a 403 weighing test 3. 804(b)(1) Former Testimony Its not hearsay if testimony was 1) given as a W at another hearing of the same or different proceeding, 2) if the party against whom it is now offered or a predecessor in interest, had an opportunity and similar motive to develop the testimony 4. 804(b)(2) Dying Declarations Not hearsay if its a statement made by a declarant 1) while believing that death was imminent, 2) concerning the cause or circumstances of what the declarant believed to be impending death 104(a) judge must determine that declarant had knowledge or opportunity for knowledge as to the acts declared 5. 804(b)(3) Statements Against Interest Its not hearsay if it was a statement which was at the time of its making 1) so far contrary to declarants pecuniary or proprietary interest or 2) subjected declarant to civil or criminal liability or 3) rendered invalid a claim against another that 4) a reasonable person in the declarants position would not have made the statement unless believing it to be true No requirement of cross-examination Statements collateral to self-inculpatory statements can be removed from admission so only the inculpatory parts are admissible 6. 804(b)(6) Forfeiture by wrongdoing Its not hearsay if its a statement against a party that has 1) engaged or acquiesced in wrongdoing that was intended to and 2) did procure the unavailability of the declarant as a witness If you do something bad, you forfeit your right to a hearsay objection 104(a) to determine if D did the wrongdoing; favors admissibility It doesnt matter whether the statements do or do not come within some other exception if the opponent of the hearsay intentionally procured the declarants unavailability, then hearsay statements are not inadmissible Still must pass a 403 weighting test

The other Forfeiture by Wrong doing in 804(a): o The proponent of the evidence is now the one who has done something to keep the W out of court, so he will no be considered unavaibale and the proponent cannot bring it in o E.g. Ws prior testimony was good for D, but then struck a deal with P. So D kills him and then tries to introduce the old testimony 7. Rationale to 804 despite its inferiority to live testimony, hearsay is admissible when the alternative is doing without the evidence altogether

803 Hearsay Exceptions where the Declarants Availability is Immaterial

1. Rationale This kind of hearsay is better than live testimony OOC statement possesses circumstantial guarantees of trustworthiness to justify admissibility even if declarant is available 2. 803(1) Present Sense Impressions Statement is admissible if 1) it describes an event or condition 2) while the declarant is perceiving the event or condition and 3) it must have been made contemporaneously with or immediately thereafter Declarant must have personal knowledge 3. 803(2) Excited Utterances Statement is admissible if 1) it relates to a startling event or condition 2) made while under the stress of excitement caused by the event or condition Longer temporal window than PSI 4. 803(3) Then Existing Conditions Statement is admissible if it is about the declarants then existing state of mind, emotion, sensation or physical conditions (intent, plan, motive, design, etc.) But, not admissible as proof of memory or belief to prove the fact remembered Permits statements of intention to prove future acts; but its still inadmissible hearsay to prove past acts Unclear whether it applies to prove conduct of 3rd party because that relies on the declarants memory and what he believes to be true 5. 803(4) Statements for Medical Diagnosis Statement is admissible if it is 1) made for purpose of medical diagnosis or treatment and describes 2) medical history, or 3) past or present symptoms, or 4) inception or general cause of the disease or injury and 5) is reasonably pertinent to diagnosis or treatment Can be made to any medical service people, and can be made by someone other than patient 6. 803(5) Recorded Recollection Statement is admissible if it is 1) a memorandum or record concerning a matter about which witness once had knowledge, but 2) now has insufficient recollection to testify fully and accurately, where 3) the record was made

7.

8.

9.

10.

when the W had a fresh memory and 4) the D certifies/vouches for the accuracy the memo The document is not offered into evidence, but it is read to the jury so they can make use of it as if the W had remembered o The opposing party may present it as an exhibition on option Witness is in court, but is also unavailable because no memory 612 prior recollection rule is different; that allows lawyer to show the W something to jog their memory so they can testify in court 803(6) Business records Statement is admissible if 1) the records are those of a regularly conducted business activity, 2) the records must be regularly kept by the business, 3) the source of the information must have personal knowledge nd must be acting in the course of the business and 4) the information must have been recorded contemporaneously with the event which is a record Foundational Requirement a custodian of records must attest to the process by which the records were generated But, no exception if the circumstances of its preparation indicate a lack of trustworthiness of if the source seems unreliable Business records are routine 803(7) Absence of entry in records Evidence that a matter is missing in business records that are kept in accordance with (6) are admissible if relevant of somethings nonoccurrence that would have been recorded if it occurred/existed 803(8) Public Records and Reports Statement is admissible if it is 1) records, reports, statements, data compilations setting forth 2) activities of the office or agency or 3) matters observed pursuant to a duty imposed by law Excludes matters observed by police Not admissible if untrustworthy 803(8)(C) Not inadmissible merely because they state conclusions or opinions as long as they are based on a factual investigation and satisfies the rules trustworthiness requirement Police reports inadmissible under 803(8) are not usually admissible under 803(6) as business records 803(10) Absence of Entry Same as business exception

807 Residual Exception A statement not specifically covered by 803 or804 but
having equivalent guarantees of trustworthiness is no excluded by the hearsay rule if the court determines that: 1. The statement is offered as evidence of a material fact 2. The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts 3. The statement has circumstantial guarantees of trustworthiness 4. The general purpose of these rules and the interests of justice will best be serve by admission of the statement into evidence

5. Pre-Trial Notice must be given 6. Rationale the evidence just misses an exception, so this catch-all gets it admitted because its trustworthy

VI.

Confrontation Clause & Compulsory Process

6A In all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him 1. D has a right to face his accuser 2. All hearsay exceptions violate the confrontation clause to some extent 3. Does not apply in civil cases Roberts exemption to Confrontation clause if the eivdence is 1) necessary and 2) has indicia of reliability or particularized guarantees of trustworthiness 1. Also if it falls under a firmly rooted exception to the HS rule

Crawford The confrontation clause only applies to testimonial statements unless 1)

declarant is unavailable and 2) there was prior opportunity for cross-examination 1. Scalia no confrontation problem when the hearsay is not testimonial 2. Scalia police interrogations are testimonial, prepared by the state for litigation 3. There could also be constitutional forfeiture by wrongdoing if the D procured the Ws unavailability 4. If not testimonial, maybe do the Roberts test Testimonial vs. Non-Testimonial 1. Distinction between one who is contemplating being a witness in future legal proceedings and one who is simply crying for help 2. Davis Primary Purpose Test Testimonial circumstances objectively indicate that there is no ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant in a later criminal prosecution Non-Testimonial When made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency Factors bearing on primary purpose o Speaking about evens as they happen vs. past events o Facing an ongoing emergency o Statements necessary to resolve present emergency vs. learning about what happened in the past o Frantic and informal vs. higher level of formality Objective Test usually look at what the reasonable officers intent was in asking the question 3. Documents can be testimonial may be a confrontation clause violation depending on what the intent was in making the document and whether the creator or someone is present to testify in court and be cross-examined 4. If Testimonial

Confrontation Clause applies in full force, unless 1) Prior opportunity to cross examine, AND 2) Declarant is now constitutionally unavailable Forfeiture by wrong doing So, testimonial hearsay is not admissible against D no matter how reliable it is 5. If Non-Testimonial Confrontation Clause does not apply at all, OR Confrontation Clause does apply, but is admissible if shown to be sufficiently reliable, or is rooted in an exception to hearsay If no exception must be particularized guarantees of trustworthiness surrounding the making of the statement Giles D forfeits his confrontation clause rights if his conduct was specifically intended to prevent declarant from being a witness Bruton At a joint trial, declarants OOC statement that implicates him and the Co-D is only admissible against the declarant and not against the other D 1. Encourages joint trials because usually it will just not be allowed in 6A In all criminal prosecutions, the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor 1. Guarantees the right to compel the attendance of favorable witnesses 2. Chambers Hearsay rule may not be applied mechanistically to defeat ends of justice Even if the evidence is inadmissible hearsay, it can be admitted if 1) there are considerable assurances of reliability and 2) it has to b admitted for D to have a fair trial The statements were 1) spontaneous, 2) independently corroborated, 3) trustworthy because they were against interests of the accused, 4) declarant was present under oath and couldve been cross-examined and 5) was critical to Ds defense 3. Ds burden is lower than Ps for invoking constitutional arguments If vital to D then usually allowed, if vital/devastating for P to use it, then usually not allowed

VII.

Lay & Expert Testimony

701 Lay Opinions If the witness is not an expert, testimony in the form of opinions or inferences is limited to those that are: 1. Rationally based on the perception of the witness 2. Helpful to a clear understanding of the witness testimony or the determination of a fact in issue 3. Not based on scientific, technical or other specialized knowledge within scope of 702

4. Rationale lay persons can only testify to perceived facts, but can make inferences if they cant be reduced to facts (he looked tired) or they have particularized knowledge about something Whether something is lay or expert testimony depends on the complexity of the task is it something an ordinary person would know

Expert Testimony 5 Requirements

1. 702 Witness must be qualified as an expert by knowledge skill, experience training or education Can be from experience or education Narrower view need formal training/legit work experience 104(a) for judge to determine if the expert is qualified 2. 702 Proper Topic If scientific, technical or other specialized knowledge will assist the trier of act to understand the evidence or to determine a fact in issue... may testify in the form of an opinion or otherwise Cant be common knowledge has to be knowledge that assists the jury Has to be relevant to determine a fact in issue Must be helpful decided by 403 704(a) testimony in the form of opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue o But cannot merely tell the jury what result to reach o Expert cannot give conclusory opinions that tell the jury what to do or communicate legal standards (thats the judges role) o E.g. Opinions on credibility or opinions on eyewitness ID cant just say if the W is right or wrong 704(b) Expert witness cannot state an opinion or inference as to whether the D did or did not have the mental state or condition constituting an element of a crime charged (only in criminal cases) 3. 703 Proper Basis An expert can base his opinion or inference on: 1) Facts or data perceived before the hearing 2) Facts or data made known to the expert at the hearing 3) facts or data acquired by talking to others, provided that other experts in the field would reasonably rely on such secondary source If the facts would otherwise be inadmissible in evidence, the expert can still rely on them if they are of a type reasonably relied upon by experts in the particular field o Inadmissible facts or data shall not be disclosed to jury unless the court determines their probative value in assisting the jury evaluate the experts opinion substantially outweighs their prejudicial effect (reverse 403) 705 Expert can testify without disclosing the underlying facts or data on which his opinion is based unless the court requires disclosure o Expert may be required to disclose the underlying facts on crossexamination

4. 702 Reliability/Proper Methods The testimony is the product of reliable principles and methods Frye expert opinion is admissible if the technique is generally accepted as reliable in the relevant scientific community Daubert Lists 5 factors to determine if scientific knowledge if reliable: o 1) Whether the theory can and has been tested o 2) Whether it has been subjected to peer review in the community o 3) Known or potential rate of error o 4) Existence and maintenance of standards controlling the techniques operation o 5) General/widespread acceptance in the scientific community 5. Expert opinion is still subject to a 403 weighting test 6. Daubert Scientific evidence is admissible if 1) scientifically valid and 2) the reasoning or methodology properly can be applied to the facts in issue 7. 104(a) The judge is the gatekeeper for 3 types of inquiries concerning expert testimony after Daubert 1) Sufficiency of experts underlying data 2) Reliability of experts methods 3) Reliability of experts application of those methods to the fact of the case 8. Polygraph evidence generally inadmissible unless the parties stipulate to it 9. Kumho Daubert applies not only to testimony based on scientific knowledge but also to testimony based on technical and other specialized knowledge 10. Syndrome Evidence describes patterns of behavior and mental states typically seen in persons who have experienced various kinds of stressful experiences PTS, RTS, BWS, BCS trend is toward recognizing this 403 test could be very prejudicial and confuse the jurors But, expert is barred from saying 1) whether witness is being truthful and 2) talking about what they think actually happened

VIII.

Privilege
501 Privilege is governed by the common law Rationale exclude evidence that is relevant and reliable to serve other societal interests Recognized Privileges these are protected when communications are made consistent with the relationship 1. Psychotherapist-Patient 2. Clergy-Communicant 3. Marital Privilege 1) Spousal Testimonial Privilege If D and W are married, W may invoke this to avoid testifying against D o Exceptions intra-spousal crime or if the spouses are litigating against each other o Trammel most jurisdictions, only W-spouse can invoke this, not D i. Federal Court only W-spouse can invoke

o Must be married at time privilege is invoked when one spouse is asked to testify against another spouse o When invoked, the W-spouse does nto have to testify against the Dspouse in any capacity o Only shield marital communications, not those that go beyond the marriage o Most states applies only in criminal trials and adverse testimony 2) Marital Communication Privilege Either spouse (D or W) can invoke this privilege to avoid the other testifying about things that were said to each other in confidence while they were married o Exception crime-fraud o Must be married at the time communication occurs o Applies in both civil and criminal cases o Only applies to confidential communicative conduct, not to observations one spouse may have made Sometimes privileges should give way to constitutional rights 1. Ds due process right to present a full and fair defense might trump Ws privilege invocation 2. But, Ws 5A right against self-incrimination might trump Ds 6A rights 3. Must weigh the interests of each party