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EVIDENCE OUTLINE RELEVANCE Logical relevance: In order to be relevant, the evidence must tend to make a material fact more or less probable. Legal relevance: Relevant evidence may be excluded if its probative value is substantially outweighed by unfair prejudice, confusion, misleading the jury, undue delay, waste of time, or needlessly cumulative evidence. CHARACTER EVIDENCE Inadmissible for propensity: to prove a person acted in accordance with a particular trait in a particular occasion Admissible to (1) impeach; (2) element of claim; (3) Δ opens the door; (4) prior bad act to prove MIMIC • • • Civil case: when character is an essential element to a claim or defense. Can be proven by opinion or reputation, or specific acts. (Defamation, negligent entrustment, child custody) Criminal case: when Δ "opens the door" by introducing evidence in form of opinion or reputation of his own good character to the pertinent crime charged (honesty or peacefulness), then the prosecutor can (1) cross examine character witness with specific acts; (2) introduce evidence of Δ bad character to the same trait. When Δ raises self-defense and introduces evidence of the victim's bad character, then the prosecutor can introduce evidence of victim's good character for the same trait and Δ bad character for the same trait. Prior bad acts to prove MIMIC (motive, intent, absence of mistake, identity (M.O.), common plan) Habit: admissible to prove a person acting in accordance with a habit or business routine on a particular day (always). A habit is a person's particular routine reaction to a specific set of circumstances (semi-automatic conduct). HEARSAY HS: out of court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls within an exception. Hearsay within hearsay is admissible as long as each level of hearsay falls within an exception. • A hearsay statement may be an oral or written and can be nonverbal conduct intended as an assertion (questions are not assertions if question does not communicate any information that can be offered for its truth) Not HS: statements offered to prove something other than the truth (1) circumstantial evidence of declarant's state of mind; (2) effect on the listener (prove a person had notice); (3) legally operative language. Machines/Animals are not persons, admissible Exemptions (not HS): (1) declarant must be available & subject to cross: prior inconsistent statement made under oath at a prior depo, hearing or trial; prior statement of identification of a person after perceiving that person; (may be admissible to impeach and substantive evidence) (2) opposing party statement: statement offered against an opposing party that was made or adopted by the party either by silence (party heard and understood statement, had an opportunity to respond, and failed to deny the statement), agent or employee within the scope of employment, statement made by co-conspirators in furtherance of the conspiracy Exceptions (1) Unavailable due to assertion of privilege, refusal to testify, death or illness, lack of knowledge/memory, absent & cannot be subpoena. ▪ Former Testimony: prior testimony given at a depo, hearing, or trial where OP or successor in interest had opportunity and same motive to cross. ▪ Statement Against Interest: statement was made against declarant's pecuniary interest and a reasonable person would not have made if it was not true. (if will subject declarant to cim liab. must be corroborated) ▪ Dying Declarations: statement made while under the impression that death was imminent, and statement relates to the cause of death. (homicide & civil cases) Family History: statement about declarant's own family history or relation (birth, adoption, marriage, divorce, legitimacy) ▪ Forfeiture caused by OP: any statement declarant made against a party that caused unavailability (2) Availability irrelevant ▪ Present Sense Impression: statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it. ▪ Excited Utterance: statement about a startling event while the declarant is under the stress of excitement. The event must shock or excite the declarant, and the statement must relate to the event. ▪ Business Records: record or other writing of any act or event made in the course of regularly conducted business. To be admitted, the custodian of the record or other qualified witness must establish that the record was made (1) at or near the time of the event, (2) by a person with knowledge of the event, and (3) making the record was part of a regular practice in the course of business. ▪ Then-existing mental or physical: statement of the then-existing state of mind (present intent) admissible to prove action in conformity with that intent (emotion or intent, love hate) ▪ Medical Diagnosis/Treatment: statement describing medical history or past or present symptoms that is made for the purpose of obtaining medical treatment. A statement of the cause or source of the condition is admissible if it is reasonably pertinent to diagnosis or treatment but usually id. of person is not pertinent ▪ Recollection recorded: witness may read record if (1) concerns a matter W once had knowledge; (2) was made or adopted by W when the matter was fresh in memory; (3) Accurately reflect W knowledge; and (4) W testifies he has insufficient memory of event to testify ▪ Public Records: record or statement of a public office or agency that sets out (1) Activities of the office or agency; (2) Observation of a person under duty to report the observation; (3) Factual finding of legal investigation ▪ Learned Treaties: statement contained in treatises, periodical, or pamphlet admissible if expert relied on statement, and it is established as reliable authority ▪ Judgment of Prior convictions: evidence of final judgment of conviction is not excluded as HS if (1) judgment of conviction was entered after trial or guilty plea (not nolo contendere or acquittal); (2) conviction was for a crime punishable by death or imprisonment of more than one year; (3) evidence is offered to prove any fact essential to sustain the judgment. ▪ The Confrontation Clause gives a criminal defendant the right to be confronted by the witness against him. To admit a testimonial hearsay statement against a criminal defendant the declarant must be unavailable, and the defendant must have had a prior opportunity to cross-examine the declarant. A statement that has the primary purpose of ascertaining past criminal conduct is testimonial while a statement with the primary purpose of enabling police to provide assistance to meet an ongoing emergency is not testimonial. WITNESSES Any person that has personal knowledge of the matter and is willing to take an oath is competent to testify. • • Presiding Judge is BARRED from testifying at trial Juror is barred to testify as witness at trial he sits in front of the jury After trial juror MAY testify about (1) extraneous prejudicial information improperly brought to jury or (2) outside influence improperly brought on juror (threatened life); (3) mistake in verdict form; (4) juror decision relied on racial stereotype Opinion Testimony • • Lay witness is permitted to testify as to his opinion if the testimony is (i) rationally based on the witness's perception, (ii) helpful for the tier of fact to understand a fact in issue, and (iii) is not based on scientific, technical or specialized knowledge Expert may testify as to his opinion, provided: (i) the witness is qualified as an expert by knowledge, skill, experience, training, or education; (ii) the testimony is based on sufficient facts or data; (iii) the testimony is the product of reliable principles and methods; and (iv) the witness applied the principles and methods reliably to the facts of the case.

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