Table of Contents

Trial Judge’s Discretion; Standard of Review 2

Relevance 4

Probative Value and Prejudice 5

Conditional Relevance 9

Hearsay 9

Nonhearsay Uses of Out-of-Court Statements 11

Implied Assertions 14

Hearsay and Confrontation 15

Exceptions to the Hearsay Rule 18

Prior Statements by Witnesses 18

Admissions by Opposing Parties 20

Direct Admissions 20

Multiple Hearsay 21

Completeness 21

Adoptive Admissions 22

Authorized Admissions 23

Agent and Employee Admissions 24

Co-Conspirator Admissions 25

Admissions and the Bruton Rule 26

Spontaneous and Contemporaneous Statements 28

State of Mind 30

The Hillmon Doctrine 30

Injury Reports 32

Recorded Recollection 33

Business Records 35

Qualifying “Businesses” 36

Sources of Information 38

Absence of Record 39

Public Records 39

Former Testimony 42

Dying Declarations 45

Declarations Against Interest 46

Forfeiture By Wrongdoing 48

Residual Exception 49

Hearsay and Due Process 51

Character Evidence 52

Other Uses of Specific Conduct 58

Permissible Purposes 58

Requisite Proof 62

Character and Habit 62

Sexual Assault and Child Molestation 64

Character of the Victim 64

Character of the Defendant 68

Other Forbidden Inferences 70

Settlement Efforts 72

Civil Settlements 72

Criminal Settlements 74

Medical Payments and Liability Insurance 76

Character for Untruthfulness 77

Prior Criminal Convictions 79

Admissible and Inadmissible Convictions 80

Preserving Claims of Error 82

Prior Inconsistent Statements 83

Bias and Incapacity 86

Specific Contradiction 88

Rehabilitation 89

Character for Truthfulness 90

Prior Consistent Statements 92

Opinions, Experts, and Scientific Evidence 93

Lay Opinions 93

Expert Testimony 97

Permissible Subjects and Scope 97

Reliability 101

Court-Appointed Experts 101

Privileges 103

Attorney-Client Privilege 104

Elements of the Privilege 105

Communication 105

In Confidence 106

Between Attorney and Client 108

To Facilitate Legal Service 110

Waiver 112

Crime-Fraud Exception 114

Spousal Privileges 115

Physical Evidence 116

Authentication 117

Best Evidence Rule 121

Scope and Purpose 123

Exceptions 124

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Trial Judge’s Discretion; Standard of Review

FRE 104. Preliminary Questions

• (a) In General. The Court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

FRE 103. Rulings on Evidence

• (a) Preserving a Claim of Error. Party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

  • (1) if the ruling admits the evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or

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

• (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 objection or offer proof to preserve a claim of error for appeal.

• (c) Court’s Statement About the Ruling; Directing an Offer of Proof. Court may make any statement about character or form of evidence, objection made, and ruling. Court may direct an offer of proof be made in question-and-answer form.

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

• (e) Taking Notice of Plain Error. Court may take notice of plain error affecting substantial right, even if claim of error was not properly preserved.

Park et al., Evidence Law

• Courts differ on degree of certainty required to find error harmless.

  • 9th Cir. uses “more probable than not” for nonconstitutional errors; 3rd Cir. requires reversal unless harmlessness is “highly probable”; 5th Cir. requires reversal unless “sure” error did not influence or had very slight effect on jury verdict.

• If party opposing admission did not object, objected on wrong ground, or failed to specify ground, appellate court will reverse only if trial judge’s admission was “plain error.” Plain error is not easily defined and allows substantial judicial discretion, considering facts of case, gravity of offense, and probably effect of error. Some courts require error be obvious in record.

Saltzburg et al., FRE Manual

• Questions of law reviewed de novo. Mixed questions of law and fact reviewed de novo, such as whether communication is protected by privilege. Vast majority reviewed under abuse of discretion standard.

Bandera v. City of Quincy, 344 F.3d 47 (1st Cir. 2003)

Facts:

• P testified to her own experience and adduced testimony from witness including Coletta, who had filed then-pending sexual harassment claims of her own against D.

Opinion (Boudin, CJ):

• Coletta’s testimony on her own experiences was relevant to show liability on the part of supervisors and pattern of knowing toleration.

• Coletta had no “actual knowledge” of what happened to D, and testimony assessing what D reported happened was “wholly inappropriate opinion testimony” (FRE 701), which “should certainly not have been admitted.”

• FRE 103(b) provides objection resolved by definitive in limine ruling admitting evidence need not be renewed at trial.

  • Under FRE 103(a)(1), an objection, if its basis is not obvious, is not preserved unless the ground is stated.

  • Under FRE 103(c), failure to preserve the objection means review is at most for plain error.

Relevance

FRE 401. Test for Relevant Evidence

• Evidence is relevant if:

  • (a) it has any tendency to make a fact more or less probable than without evidence; and

  • (b) the fact is of consequence in determining the action.

FRE 402. General Admissibility of Relevant Evidence

• Relevant evidence is...

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