Relevance
403 Balancing Test
Can be excluded if the prejudice substantially outweighs the probative value
Proof of Conduct by Propensity
Evidence of a persons character is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait
3 Exceptions for criminal defendant:
(1) May offer evidence of D's pertinent trait; prosecutor may offer evidence to rebut (specific acts, no extrinsic + must match what D raised)
(2) D may offer evidence of AV's pertinent trait (subject to 412); Prosecutor may offer evidence to rebut + show D has the same trait
(3) In a homicide case, prosecutor may introduce AV's trait of peacefulness if D claims self-defense
*Must relate to a pertinent character + is relevant to the particular matter
What are the general rules?
Out-of-court statement offered for the truth of the matter asserted
- Encompass written communications + actions if asserting a fact (non-verbal conduct must be extremely clear)
- Declarants have to be people
Offered for any other purpose ≠ hearsay
3 basic requirements to put a witness on the stand
(1) Competent: everyone is competent unless rules specifically provide otherwise
(2) Personal Knowledge: can only testify about matters they have seen, heard, or otherwise sensed themselves
- CANNOT speculate about matters beyond their knowledge
(3) Take an oath or affirmation: does not require magic words
- Lays basis for perjury prosecution if witness lies
What is a leading question? Who can use them and who can't?
Suggesting particular answer to the witness: Ex. "Ryan took you to lunch, right?"
CANNOT use on direct examination or when crossing a friendly witness
CAN use on cross-examination of adverse party
Subsequent Remedial Measures
Cannot be introduced to prove (1) Negligence, (2) culpable conduct, (3) defective product/design, or (4) need for warning/instruction
- Admissible to prove: (1) Ownership, control, or feasibility for alternative (IF DISPUTED); (2) Impeachment
Proof of Acts for Propensity Purposes
Evidence of any other crime, wrong, or act is NOT admissible to prove a person's character in order to show on a particular occasion the person acted in accordance with the character -> "This is the type of person he is so he did it"
*Admissible for other purpose: motive, opportunity, intent, preparation, plan, absence of mistake, lack of accident, or identity (must be at issue/strong similarities between charged and other crime)
Which exceptions require the declarant/witness to testify?
Prior statements by witnesses (inconsistent, consistent, or ID): (1) declarant must testify and (2) be subject to cross
Recorded Recollection: (1) declarant testifying, (2) cannot recall, (3) made/adopted when the matter was fresh, and (4) accurately reflects knowledge
Business Records: Does not require the declarant to testify, but someone who is a qualified witness
Lay witnesses are limited to testimony in the form of....
An opinion that is:
(1) Rationally based on the witness's perception
- Must lay foundation
(2) Helpful to understanding the witness's testimony or to determine a fact in issue; and
(3) Not based on scientific, technical, or other specialized knowledge
- Ex. "There's a storm" v. "there's a category 3 hurricane"
Requirements to be an expert witness
(1) Is the person qualified? SKEET: Skill, knowledge, education, experience, & training
(2) Is what they're going to testify to helpful?
(3) Is their opinion actually reliable?
Compromise Negotiations
Conduct and statements from negotiations are not admissible to: (1) to prove or disprove validity/amount of claim or (2) to impeach testimony
*Allows some settlement statements to be used during criminal trials: 408 generally applicable in criminal prosecutions
Admissible for another purpose
Both parties must engage in negotiations; can't be one-sided
Habit
Evidence of a person's habit or an organization's routine practice may be admissible to prove that on a particular occasion, the person or organization acted in accordance with the habit or routine practice
Specific, repeated response to particular situation or stimulus
Cannot use impermissible character evidence to show there's a habit
Confrontation Clause Analysis/Framework
(1) Is it even hearsay?
(2) Is it used against a criminal defendant?
(3) Is the declarant testifying?
(4) Is the statement testimonial?
- Look at primary purpose for making the statement: used to establish elements for trial or non-testimonial purpose
How can a party attack a witnesses character for truthfulness or untruthfulness?
Credibility may be attacked or supported by testimony about the witness's character for truthfulness or untruthfulness
- LIMITED to opinion or reputation
- Can't introduce evidence about truthfulness until that character has ben attacked
*CANNOT introduce extrinsic evidence to prove specific instances: can only inquire into them on cross
- Exception for criminal convictions (details on another)
If a party wants to introduce a statement against interest to prove criminal liability, what do they need to do?
They must support the statement with corroborating circumstances: look at the totality of the circumstances
Offer to Pay Medical Bills
Offers to pay for medical bills or similar expenses is NOT admissible to prove liability for the injury
*Admissible for any other purpose
Rape Shield
Evidence of AV's past sexual behavior or sexual propensity is NOT admissible in civil or criminal proceeding involving alleged sexual misconduct
Criminal Exceptions
(1) Evidence to prove that someone other than D was the source of injury or other physical evidence
(2) Specific instances between AV and D
- D can only offer to prove consent; prosecutor can for any purpose
(3) Evidence whose exclusion would violate D's con. rights
- Invoked to claim AV made prior allegations of SA that were false
Civil Exception
May be admitted if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party (reverse 403)
A declarant is considered unavailable as a witness if...
Which exceptions require unavailability?
(1) Exempt from testifying: privilege
(2) Refuses to testify: court order required
(3) Testifies to not remembering the subject matter: need not find actual memory loss, fake or not = unavailable
(4) Death or serious mental/physical illness
(5) Tried everything reasonable to get the testimony
Exceptions:
- Former testimony
- Dying Declaration (doesn't have to die)
- Statements against interest
When can a criminal conviction be used to attack a witnesses/defendants character?
Felony convictions & crimes involving dishonesty can be admitted to suggest a witness has an untruthful character
- Extrinsic evidence OK
Felony convictions = Generally admissible against witnesses; judge retains discretion under 403 to exclude
- Criminal defendant: only admissible if the judge makes a distinctive finding that the probative value outweighs prejudicial effect (low threshold to exclude)
Crime Involving Dishonesty = Can use ANY conviction of dishonesty or false statement to attack ANY witness's character of untruthfulness
- Judge has no discretion to exclude
*Special requirements for convictions more than 10 years old: (1) notice to adverse party, (2) judge must find specific facts and circumstances supporting probative value; and (3) judge must determine the probative value substantially outweighs its prejudicial effect (reverse 403)
Former testimony can only be offered IF
Witness is unavailable; testimony was given as a witness at a trial, hearing, or deposition
Civil case = Predecessor in interest had an opportunity and similar motive to develop it by direct or cross
Criminal case = Prior hearing must have been the same party as the defendant in the current case + had an opportunity to cross
Pleas, Plea Discussions, and Related Statements
Accepted plea of nolo contendere = Plea itself, bargaining statements, or statements made during plea-related court proceedings are not admissible
Withdrawn guilty plea = Plea itself, bargaining statements, or statements made during plea-related court proceedings are not admissible
No plea = Statements made during bargaining not admissible
Accepted guilty plea = Statements and plea admissible
413, 414, & 415 Exceptions
Can introduce evidence of other sexual assaults/child molestations committed by the defendant + use it for any purpose (including propensity)
Criminal or civil suit must involve sexual assault or child molestation
When are public records not admissible?
(1) Observations made by law enforcement personnel when offered in a criminal case
(2) Government investigations when offered against D in a criminal case (regardless of the agency)
When evidence of a person's character is admissible, testimony is limited to:
Testimony about the person's reputation or by testimony in the form of an opinion
- Must show the witness has sufficient knowledge to offer an opinion about character or reputation
- Only cross-examination can get into specific instances: no extrinsic evidence
Must an expert witness testify to the underlying facts or data before they state their opinion?
705: Expert may state an opinion without first testifying to the underlying facts or data (may be required to disclose facts on cross)
703: Expert may base opinion on facts or data in the case they were made aware of or personally observed
- Can disclose information to the jury if the probative value substantially outweighs the prejudice