Table of Contents

Chapter 1. Introduction to Evidence Law 3

D. The Role of the Trial Judge 3

1. The Trial Judge’s Authority 3

2. The Trial Judge’s Discretion 3

Chapter 2. Relevance 5

A. Relevance and Irrelevance 5

B. Probative Value and Prejudice 9

C. Conditional Relevance 15

Chapter 3. Hearsay 17

A. The Hearsay Rule and Its Rationale 17

1. Introduction 17

2. Nonhearsay Uses of Out-of-Court Statements 20

3. Implied Assertions 26

B. Hearsay and Confrontation 29

C. Exceptions to the Hearsay Rule 34

1. Prior Statements by Witnesses 35

2. Admissions by Opposing Parties 37

a. Direct Admissions 37

i. Generally 37

ii. Admissions and Multiple Hearsay 39

iii. Admissions and Completeness 40

b. Adoptive Admissions 40

c. Authorized Admissions 42

d. Agent and Employee Admissions 43

e. Co-Conspirator Admissions 45

f. Admissions and the Bruton Rule 48

3. Spontaneous and Contemporaneous Statements 51

4. State of Mind 54

a. Generally 54

b. The Hillmon Doctrine 55

5. Injury Reports 59

6. Recorded Recollection 60

7. Business Records 63

a. Generally 63

b. Qualifying “Businesses” 64

d. Sources of Information 67

e. Absence of Record 68

8. Public Records 69

9. Former Testimony 74

10. Dying Declarations 79

11. Declarations Against Interest 81

12. Forfeiture By Wrongdoing 84

13. Residual Exception 87

D. Hearsay and Due Process 89

Chapter 4. Character Evidence 93

A. The Basic Rule and Its Exceptions 93

C. Other Uses of Specific Conduct 101

1. Permissible Purposes 101

2. Requisite Proof 107

D. Character and Habit 109

E. Sexual Assault and Child Molestation 112

1. Character of the Victim 112

2. Character of the Defendant 118

Chapter 5. Other Forbidden Inferences 121

A. Subsequent Remedial Measures 123

1. Civil Settlements 123

2. Criminal Settlements 127

C. Medical Payments and Liability Insurance 129

A. Introduction 130

B. Character for Untruthfulness 131

1. In General 131

2. Prior Criminal Convictions 134

a. Admissible and Inadmissible Convictions 134

b. Preserving Claims of Error 137

C. Prior Inconsistent Statements 139

D. Bias and Incapacity 145

E. Specific Contradiction 147

F. Rehabilitation 151

1. In General 152

2. Character for Truthfulness 153

3. Prior Consistent Statements 156

Chapter 9. Opinions, Experts, and Scientific Evidence 160

A. Lay Opinions 160

B. Expert Testimony 165

1. Permissible Subjects and Scope 165

2. Reliability 169

a. Court-Appointed Experts 169

Chapter 10. Privileges 173

A. In General 173

B. Attorney-Client Privilege 174

1. Introduction 174

2. Elements of the Privilege 177

a. Communication 177

b. In Confidence 178

c. Between Attorney and Client 181

d. To Facilitate Legal Service 186

3. Waiver 188

4. Crime-Fraud Exception 192

C. Spousal Privileges 193

Chapter 11. Physical Evidence 195

A. Authentication 195

B. The Best Evidence Rule 201

1. Scope and Purpose 202

2. Exceptions 203

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

Chapter 1. Introduction to Evidence Law

D. The Role of the Trial Judge

1. The Trial Judge’s Authority

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.

Advisory Committee note to FRE 104(a)

• Applicability of a particular rule of evidence often depends upon the existence of a condition: e.g., is the alleged expert a qualified physician? If the question is factual in nature, the judge considers evidence pro and con on the issue. Practical necessity leads the judge, when determining admissibility, to hear evidence without regard to exclusionary rules: a piece of evidence offered and objected to may itself be considered in ruling on admissibility.

2. The Trial Judge’s Discretion

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

• FRE, like FRCivP and FRCrimP, mandates courts disregard errors not affecting substantial rights of the parties. Reversible or prejudicial error must affect substantial rights. Definition of substantial rights is vague, and prejudice is determined on case-by-case basis.

• 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...

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