5


Evidence Outline
Overarching Question:  Is this Evidence admissible?
 
I. Introduction  •••••••••••••••••••••••••••••••••••••••• §  Introduction
A. Trial Context
1. Types of Evidence at trial:
a. Witnesses;
b. Direct Evidence:  Direct evidence supports the truth of an assertion (in criminal law, an assertion of guilt or of innocence) directly, i.e., without an intervening inference.  
c. Circumstantial Evidence:  Circumstantial evidence, by contrast, directly supports the truth of evidence, from which the truth of the assertion may be inferred.  In other words, even though the circumstances may support an assertion, alternative explanations for those circumstances are still possible.
(1) Example: a witness who testifies that he saw the defendant shoot the victim gives direct evidence. A forensics expert who says that ballistics proves that the defendant’s gun shot the bullet that killed the victim gives circumstantial evidence, from which B’s guilt may be inferred.  In direct evidence a witness relates what he or she directly experienced.
(2) Common assumption that Direct Evidence is more powerful than circumstantial evidence = this is not true.
d. Real Evidence:  tangible things directly involved in the transaction or events being litigated;
(1) Authentication of Evidence:  Witness testimony to the presence, use, or other information establishing those things entered into evidence were authentically the things they witnessed.
e. Demonstrative Evidence: Created for illustrative purposes at trial; e.g. diagrams, animations, photographs, crime-scene photographs, maps, models, etc.
B. Policy Overview (Values the Evidence Rules protect)
1. Accuracy
a. Rationality:  Does the evidence have a rational relationship to the case?
b. Reliability:  Is the evidence credible?
2. Efficiency:  see Ω403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
3. Fairness:  Rules should be party-neutral;
a. Note:  Some rules exclude evidence to one party’s advantage (ex. Confrontation Clause advantages criminal ∆s).
4. Danger of Misuse of Information:
a. One Solution:  Limiting Instructions;
b. Judges, however, are sometimes skeptical of a jury’s willingness/ability to follow limiting instructions, so the Ω403 balancing test is done and often the evidence is excluded as unduly prejudicial.
5. Protecting the Right to Jury Trial:
a. Part of the 6th Æ right to jury trial is the right to an effective jury; jury must be able to do more than just what the judge says; so judge must protect the jury’s prerogative to view evidence and draw its own conclusions.
II. Trial Mechanics  •••••••••••••••••••••••••••••••••••••••• §  Trial Mechanics
A. Ω104:  Preliminary Questions (For Judge or Jury)
1. Ω104(a)  Questions of Admissibility Generally:  Preliminary questions on witnesses, privileges, and admissibility of evidence are determined by the court and not bound by the rules of evidence (except for issues of privilege); EVEN THOUGH, the issues in the preliminary stage may be issues of fact for the judge to determine as the trier of those particular, preliminary facts.
a. This is about the Trial Judge serving as gatekeeper.
2. Ω104(b)  Relevancy Conditioned on Fact:  The relevance of some evidence is dependent upon a preliminary condition.  E.G., a letter establishing an admission of a probative fact must also be shown to have been written by the person in question.  Another Example:  Statements of co-conspirators.
a. This is about the jury; and that they will be judging issues of fact; so if facts depend upon the fulfillment of a condition, the jury decides this not the judge; hinges on if a reasonable jury could believe the conditional fact - typically the judge allows the evidence and lets the lawyers argue it;
3. Ω104(c)  Hearing of Jury:  Confessions’ admissibility are heard outside of the jury;
a. in addition, other matters when “justice requires” should be heart outside of the jury;
b. Other matters can be before a jury - judge’s discretion.
4. Ω104(d)  Testimony by Accused:  Subjects covered by a witness in a preliminary hearing does not give rise to cross-examination on such issues during trial.
5. Ω104(e)  Weight and Credibility:  This rule does not restrict evidence on weight and credibility being given before the jury.
B. What Happens at Trial (pleadings, preliminary actions, pre-trial motions, depositions, pre-trial conferences are all finished by this point):
1. Jury Selection
a. For Cause Challenges:  Finding “prejudice” in a juror enables a side to challenge a juror “for cause”; the judge determines if this challenge is valid; unlimited “for cause” challenges; (Jury Selection process = Voir Dire)
(1) Often thought of as:  “Jury De-Selection”; you’re not picking so much as you’re getting rid of those persons you do not want.
b. Peremptory Challenges:  Always a finite number.  Usually only three; excusing a juror for any reason and the reason need not be stated; judge does not review.  (Exceptions:  Cannot disqualify based on sex, race, religion, etc. unless that factor is probative to the issue being litigated.)
c. Federal Courts:  Voir Dire is conducted by the judge (usually very rapid); state court conducted by the lawyers and can run for days.
2. Opening Statements
a. Party with Burden of Persuasion goes first:
(1) Civil cases:  Plaintiff;
(2) Criminal cases:  Prosecutor;
b. First introduction to the jury about the facts of the case; opening statement is NOT evidence;
(1) It’s what the lawyer expects the evidence the lead to;
(2) Also not supposed to be an argument, but rather a statement of where the evidence will lead; a narrative of the facts (which the evidence will illustrate during trial);
3. Presentation of Proof
a. Case-in-Chief:  the main presentation of the case of each side with evidence; (“rests” after completing this phase)
b. Case-in-Rebuttal:  the refutation of the other side’s case-in-chief;
c. This can continue until each side is satisfied or the judge deems it repetitive and stops it;
d. Direct and Cross-Examinations are during this part of the trial.
(1) Direct Examination; π
(2) Cross Examination; ∆
(3) Redirect (rebuttal by π);
(4) Recross (rebuttal by ∆);
(5) Can continue in this fashion until Judge stopes it;
(6) This would be order for π’s witnesses, turns would be reversed in π’s case-in-chief witnesses;
4. Trial Motions
a. JMOL, Summary Judgement, et al.
5. Closing Argument
a. Party bearing the Burden of Persuasion goes first, then goes a final time after the opposition’s closing argument.
6. Instructions
a. The parties draft the jury instructions and submit them to the court for approval and/or modification;
7. Deliberations
a. Part of the reason for secrecy in jury deliberations is that if opened for scrutiny, the institution may not itself survive;
8. The Verdict
9. Judgment & Post-Trial Motions
a. JNOV (aka Judgment Notwithstanding the Verdict) is made at this phase;
10. Appellate Review
a. Evidentiary errors claimed on appeal are only permitted if the claim has been “preserved” by being clearly stated at trial;
C. Making the Record (written account of the trial from start to finish used by higher courts on appeal);
1. The Record - Composed of 5 kinds of material:
a. The pleadings;
b. Filed documents; (motions, accompanying briefs, et al.)
c. Record of the Proceedings;
d. Exhibits; (documentary or physical)
e. Docket entries; (chronological line items of trial from start to finish compile by the clerk; a veritable Table of Contents of the trial);
2. Critical Importance of the Record:  It’s critically importance for any attorney to get their information, objections, exhibits, evidence of all kinds in (and the other side’s excluded) as much as possible to ensure the case survives on appeal; that means objections (noted below) and offers of proof are done properly and never missed.
D. How Evidence is Admitted or Excluded
1. Ω611:  Mode and Order of Interrogation and Presentation
a. Ω611(a)  Control by court:  Goals:
(1) Make evidence/case presentation effective to find truth;
(2) Be efficient with time;
(3) Protect witnesses from harassment/embarrassment.
(4) Policy:  This rule is general on purpose; to give discretion and flexibility to the judge to effectively run an adversarial interrogation process during trial.
b. Ω611(b)  Scope of Cross-Examination: Limited to subject matter of direction examination and/or matters affecting the credibility of the witness.
(1) However, the trial court does have discretion when appropriate to “permit inquiry into additional matter as if on direct examination”.
c. Ω611(c)  Leading Questions: No leading questions on direct examination of a witness (except to develop witness’ testimony); Adverse parties’ calling a hostile witness may interrogate by leading questions.
(1) Leading Questions = Question which suggest the desired answer(s);
(2) If it’s your witness you cannot ask leading questions UNLESS the witness is hostile;
(a) Hostile Witness:  Not forthcoming, resisting/challenging your questions;
(b) Children:  Contentious when child witnesses can be led; can take an expert to say whether they need to be led;
(c) Adults with Communication Problems:  Can be led;
(3) Direct Examination:  When cross-examination amounts to direct examination, the traditional rule is that cross-examination must proceed without leading questions;
(a) Example:  When one Co-∆ cross-examines a friendly witness called by another Co-∆.
2. Foundation & Offer
a. Testimonial Proof/Evidence:  Direct Examination
(1) For most situations, Direct Examination must proceed with non-leading questions;
(a) There is no set of rules defining a “leading question”; judge’s discretion;
(b) The idea is that the witness should be testifying, not the lawyer;
(2) Direction Examination questions are typically open-ended;
(a) The objective with Direct Examination is to get the witness to testify and enable you to get evidence submitted into the record during the examination;
(b) The Scope of the Direct Examination is fairly broad; it’s all things probative in determining the truth of a situation (but it must be probative -- with some exceptions: rules that govern certain things that are not permitted to be asked); not just limited to the actual even itself;
(c) Example Questions:  “Where do you work?”, “How long have you worked there?”
(3) Typical Order of Examinations:
(a) Direct Examination;
(b) Cross-Examination;
(c) Redirect Examation;
(d) Then in MOST courts, that’s it.
b. Testimonial Proof/Evidence:  Cross-Examination
(1) Leading questions ARE permitted in Cross-Examination;
(a) Example questions:  “Do you work at Bank of America?”, “You’ve worked there for 6 years, correct?”  
(2) Here the questions are as important as the answers; for they can suggest ideas to the jury to consider;
(3) Limitation:  Scope-of-Direct Rule.  Cross-questioning is limited to issues explored on direct examination;
(a) A judge may permit wider questioning on a case-by-case basis;
(b) If it’s probative, then a question that otherwise might be seen outside of the scope would be permitted;
(4) Exception:  5th Amendment Self-Incrimination:  The accused who elects to be a witness at his own trial waives the 5th Amendment protection on subjects he testifies upon during direct-examination.
3. Keeping Evidence Out
a. The Objection:  Must be timely, raised at the earliest possible opportunity.  Must also contain a “ground”; in other words it must be specific, not general.  General Objections overruled will not preserve issues for appeal (unless sustained by the judge with reason); specific objections will.
(1) Substantive Objections:  Objections based on Exclusionary principles in the Rules of Evidence;
(2) Formal Objections:  Focus on the manner of questioning; e.g.:
(a) Asked and Answered;
(b) Argumentative;
(c) Compound (questions whose answer can mean more than one thing; usually a question which contains more than one question);
(d) Leading the Witness;
(e) Misleading; (a question that misstates the evidence)
(f) Ambiguous, uncertain, and unintelligible;
(g) Speculation or Conjecture; (cannot ask witnesses to “guess” or provide “conjecture”);
(h) Nonresponsive to the Question;
b. The Motion in Limine:  “At the Threshold”
(1) Motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in atrial. This is done in judge’s chambers, or in open court, but always out of hearing of the jury.  Can often determine trial strategy of the sides.
c. The Offer of Proof:  
(1) Counterpart to the Objection; just as crucial for appeal issues;
(2) A lawyer faced with a ruling excluding evidence MUST make a formal offer of proof if he wants to preserve the point for later appellate review; which means demonstrating to the trial court exactly what he is prepared to introduce, if permitted.
(3) Offers of Proof are ALWAYS with the jury excused and not present.
4. Judicial Mini-Hearings:  
a. Judges determine preliminary questions (witness competency, privilege, admissibility of evidence);
b. Juries determines evidence questions where different answers are possible;
E. Consequences of Evidential Error
1. Separating evidentiary errors that require correction on appeal from those that do not:  three adaptive techniques:
a. Appraising Error on the Merits:  
(1) Reversible Error:  an error that affected the judgment/outcome; attorney made necessary motions to preserve issue for appeal;
(2) Harmless Error:  an error that did not affect the judgment/outcome;
(3) Plain Error:  Error that warrant relief even though the attorney may not have made motions to preserve the issue for appeal;
(4) Constitutional Error:  Criminal Cases; usually means evidence was admitted that should have been excluded for Constitutional reasons.  Most often invoked for Search and Seizure reasons.
b. Evidence Doctrines:
(1) Cumulative Evidence Doctrine: Even in the presence of an error of admitting or excluding evidence, the evidence that is not in dispute is so overwhelming that the jury would have still found the way that they did (most common reason for denial of appeals);
(2) Curative Instruction Doctrine: An instruction given by a judge to limit certain evidence to avoid reversal on appeal.
(3) Overwhelming Evidence Doctrine: As it states, an overwhelming amount of evidence is provided;
c. Appellate Deference:  Discretion of the Trial Judge
d. Procedural Pitfalls
(1) Failing to Object or Offer Proof:
(a) Failing to Object:  Waives the right to claim error in admitting evidence;
(b) Failing to Offer Proof:  Wavies the right to claim error in excluding evidence;
(2) Inviting Error:  
(3) Opening the Door:  
F. Obtaining Review of Evidence
1. Appeal from Judgment
a. Appeals of most rulings during a trial are not appealable until after judgment; exceptions:
2. Interlocutory Appeals
a. Two most common reasons for Interlocutory Appeals (Privilege Rulings & Suppression of Evidence in Criminal Cases);
(1) Privilege Rulings:
(2) Suppression Motions:  
G. Review Standards in Appeals:
1. de novo:  Pure Questions of Law (fresh review, as if reviewing it new)
2. Clear Error:  Questions of fact reviewed (fair amount of deference to trial court)
3. Abuse of Discretion:  Most deference to the trial court.
III. Relevance + Reliability = Admissibility  ••••••••••••••••••••••••••••••••••• §  Relevance = 1st Requirement of Evidence
A. Logical Relevance:  Is evidence logically relevant?
1. Ω401: Definition of “Relevant Evidence”
a. Relevance & Materiality
(1) Relevant Evidence:  Evidence is relevant if it has any tendency at all to make a material fact more or less probable;
(a) “Any tendency” language makes this a low bar to overcome;
(2) Material Evidence:  If the point the Relevant Evidence tends to establish also bears on issues in the case; stated differently, does it matter to the result in this case?  The “of consequence” language in 401 establishes this.
(a) This is also the factor that is primary in the judges “balancing test” when deciding to keep evidence in or out (under Ω403).
(b) Scale: Think of “more probable or less probable” as a scale.  Does putting this piece of information on the scale move it in any direction, by any degree?
(3) Judicial Standard of Probability to Review Evidence as Relevant:  “More probable to prove a fact than it would be without the evidence.”
(a) Note:  The Rules of Evidence make no difference between Circumstantial or Direct Evidence.
(4) Relevance as Threshold:  The Standard of Probative Worth (Weight & Sufficiency of Evidence ≠ Relevance)
(a) Weight of Evidence:  The probative worth that the fact finder (usually a jury) places on the evidence in the case.
(b) Sufficiency of Evidence:  The amount of evidence necessary to satisfy the standard of proof that applies in the case.
(c) Relevancy does NOT mean either of these terms.  Relevancy under Ω401 is a different concept altogether; evidence doesn’t have to be sufficient to prove your case in order to be admitted; can be admitted as long as it’s a relevant “brick” in the case you’re building.
2. Ω402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
a. Relevant Evidence is admissible, with SOME exceptions:
(1) The Constitution’s exclusions;  (e.g. Unlawful Search and Seizure)
(2) Acts of Congress which prohibit certain relevant evidence;
(3) The Rules of Evidence exclusions.
b. Irrelevant Evidence is inadmissible;
(1) NO exceptions.
c. NOTE:  Relevance as necessary, but not necessarily sufficient, to be heard by a jury.
B. Pragmatic Relevance:  Is the evidence relevant & probative but unduly prejudicial?
1. Ω403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
a. If Relevant Evidence might be excluded if it creates prejudice, confusion, or wastes time.  Judge has broad discretion with this rule.  Judge as gatekeeper;
b. Uses a balancing test:  Probative Value of Evidence vs. Harm Likely to Occur as a Result of its Admission into Evidence.  Does the Probative Value of the Evidence substantially outweigh the danger of undue prejudice?
(1) Gives wide discretion to trial judge, thus Appellate Courts will generally defer as long as the decision is reasonable.
(2) Laundry list of things that can outweigh Probative Value:
(a) Danger of Unfair Prejudice;
(b) Confusing Evidence (may mislead jury);
(c) Considerations of Undue Delay, Waste of Time, or Needless Presentation of Cumulative Evidence;
c. Note:  The language of Ω403 favors admissibility; evidence is excluded “ONLY IF”...
d. Note:  This is a HUGE rule and crops up everywhere in the rules of evidence; is often called the “defense attorney’s best friend”.
e. Case Examples:
(1) Old Chief v. United States, 1997, p. 52:  If evidence of past behavior is prejudicial to the matter being litigated and is unrelated to the current case, excluding it is justified and necessary; stipulating that a “prior conviction” had occurred to prove the present charge (which required a showing of a prior coviction) is sufficient and avoids the prejudicial effects of the details of that previous conviction.
(2) State v. Chapple, 1983, p. 69:  When relevant evidence is NOT material to the issues being litigated, the probative value of the evidence will be outweighed by any prejudicial affect it may have on the jury and therefore should be excluded.
2. Ω105:  Limited Admissibility
a. If evidence is admissible for one party but is NOT admissible to other for a different purpose and is admitted, the court -- if requested -- must restrict the evidence’s scope and give a “limiting instruction” to the jury on the evidence.
(1) This is about evidence that might ordinarily be forbidden under the rules for use under one purpose but is being used for another purpose;
(2) Parties need to redact evidence so as to only admit that which is admissible and relevant to the issue;
(3) Not all evidence can be effectively redacted - in such cases, the judge can choose to admit the necessary evidence and give the jury a limiting instruction on it’s use/applicability.
3. Ω106:  Remainder Of or Related Writings or Recorded Statements (aka the Rule of Completeness)
a. When a writing or recording is submitted by one party, the other party may require related writings or recordings be considered along side it at the same time.
(1) Completeness Doctrine:  Designed to prevent distortion of evidence by just brining a piece of the larger picture in;
(2) NOTE:  The principle of this rule can be applied to other forms of evidence as well and under Ω401-403 and Ω611, judges apply this principle to other forms of evidence at their discretion.  Usually applies to writings (but sometimes videos, etc.).
C. Conditional Relevance
1. Ω104(b):  Relevancy Conditioned on Fact: The relevance of some evidence is dependent upon a preliminary condition.  E.G., a letter establishing an admission of a probative fact must also be shown to have been written by the person in question.  Another Example:  Statements of co-conspirators.
a. When a party seeks to introduce evidence it concedes is not relevant by itself, but is dependent upon another, later piece of evidence (to give context and thus relevance), it is admitted;
b. If the party fails to produce the necessary evidence, the jury will likely disregard the evidence easily (or may be instructed to by the judge);
c. This is about the jury; and that they will be judging issues of fact; so if facts depend upon the fulfillment of a condition, the jury decides this not the judge; hinges on if a reasonable jury could believe the conditional fact - typically the judge allows the evidence & lets the lawyers argue it;
D. Specific Exclusions of Relevant Material
1. Character Evidence
a. Ω404:  Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(1) Ω404(a): Character Evidence Generally Inadmissible: This is the rule against “Propensity Evidence”; Evidence of someone’s character to prove action in conformity with that character is not admissible, EXCEPT:
(a) Character of Accused (Accused Supports Self):  In a Criminal Case, despite the general rule against the Propensity Evidence, a criminal ∆ may introduce evidence of “good character” related to the type of criminal offense ∆ is being tried for;
I. If the ∆ (accused) takes advantage of this opportunity (“opens the door”), the prosecution is entitled to introduce opposing character evidence;
II. If the ∆ takes advantage of attacking the character of the victim under (a)(2) of this rule, the “door is opened” to an attack on the same character trait of the accused by the prosecution;
(b) Character of Alleged Victim (Accused Attacked Victim):  In a Criminal Case, the accused ∆ can offer evidence of a pertinent trait of the victim, which allows the prosecution to offer rebuttal evidence;
I. the prosecution may also offer, in homicide cases, evidence of the peacefulness of the victim IF the accused claims the victim was the aggressor;
(c) Character of Witness:  Evidence of the character of a witness is permitted as provided in rules 607, 608, & 609;
(d) NOTE:  Character evidence is inadmissible in all civil cases;
I. Except:  Where specified in Ω415 for sex crimes damages trials.
(2) Ω404(b): Other Crimes, Wrongs, or Acts (Prior Acts):   Evidence of past crimes or wrongs is not admissible to prove the character of a person;
(a) However, such evidence of past crimes may be admissible to prove:
I. proof of motive;
II. opportunity;
III. intent;
IV. preparation;
V. plan;
VI. knowledge;
VII. identity;
VIII. absence of mistake of accident (in other words, that it’s not an accident or mistake as ∆ may claim);
(b) So long as, the prosecution provides reasonable notice in advance of trial or during trial if the court excuses pre-trial notice on good cause having been shown.
I. Ω405:  Methods of Proving Character
A. (a) Reputation or Opinion:  This is a two step analysis:
1. When evidence is admissible (under Ω404) to prove the character of a person;
2. then testimony of reputation or opinion is permissible;
B. (b) Specific Instances of Conduct:  When the character or trait of a person is an essential element of a charge, claim, or defense, specific instances of conduct of that person can be used to prove the character trait. (This provision almost never happens.)
II. Ω412:  Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Sexual Predisposition (Rape Shield Rule:  Protects Alleged Victims from having their sexual past used in court against them, with limited exceptions.)
A. Ω412(a): Evidence Generally Admissible:  In civil and criminal cases the following evidence is inadmissible:
1. Evidence to prove any alleged victim engaged in other sexual behavior;
2. Evidence offered to prove any alleged victim’s sexual predisposition;
3. except as provided in (b) & (c):
B. Ω412(b) Exceptions:
1. In a Criminal Case, evidence is admissible for:
a. Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
b. Evidence offered by the accused to prove consent or as offered by the prosecution;
c. Evidence that, if excluded, would violate the accused’s constitutional rights;
2. In a Civil Case:
a. Evidence of sexual behavior or sexual predisposition of an allege victim is admissible if it is otherwise admissible under the FRE and the probative value substantially outweighs the range of harm to the victim and of undue prejudice to any party;
b. Reputation evidence of an alleged victim is admissible ONLY if it has been placed into controversy by the alleged victim;
C. Ω412(c): Procedure to Determine Admissibility:  To admit evidence under (b):
1. Proponent of the evidence must file a written motion 14 days before trial, describing the evidence and its purpose;
2. Serve the motion on all parties and notify the alleged victim, victim’s representative, or victim’s guardian;
3. Before admitting the evidence, an in camera hearing must be conducted by the court; the motion, related papers, and record of the hearing must be sealed and remain sealed unless otherwise ordered by the court.
III. Ω413:  Evidence of Similar Crimes in Sexual Assault Cases
A. A sexual assault ∆ may have evidence of other offenses or sexual assault offenses admitted for bearing on any matter to which it is relevant;  In other words, past sexual offenses are admissible to support an inference that his commission of such an act in the past increases the likelihood that he committed the charged offense (this is admissible Propensity Evidence);
B. The prosecution must disclose the evidence to the ∆ at least 15 days in advance of trial; or at a later time if the court allows for good cause;  (To avoid undue prejudicial effects)
C. Defines at the end the crimes that fit the sexual assault definition;
IV. Ω414:  Evidence of Similar Crimes in Child Molestation Cases (Same as Ω413, just deals with Child Molestation)
A. A child molestation ∆ may have evidence of other offenses or child molestation offenses admitted for bearing on any matter to which it is relevant;   In other words, past sexual offenses are admissible to support an inference that his commission of such an act in the past increases the likelihood that he committed the charged offense (this is admissible Propensity Evidence);
B. The prosecution must disclose the evidence to the defendant at least 15 days in advance of trial; or at a later time if the court allows for good cause; (To avoid undue prejudicial effects)
C. Defines at the end the crimes that fit the child molestation definition;
V. Ω415:  Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
A. Ω413, 414 are applicable here for the purposes of civil litigation for damages as a result of child molestation or sexual assautl;
B. The proponent of the evidence must disclose the evidence to the adverse party at least 15 days in advance of trial; or at a later time if the court allows for good cause; (To avoid undue prejudicial effects)
C. This rule does not limit the admission of evidence under any other rule.  
2. Other Specific Exclusions of Relevant Material
a. Ω407:  Subsequent Remedial Measures
(1) Assumption of the rule:  It’s unwise to discourage efforts to make things better or safer after the fact;
(2) Subsequent remedial measures are inadmissible, EXCEPT:
(a) To show Ownership or Control:
I. ∆ argues “I had no power to make the change” necessary;
II. If, after the accident, ∆ did actually make the change then this can show that ∆ does have ownership or control; (a “door opener”)
(b) Feasibility:  If the ∆ claims the subsequent remedial measure is unfeasible;
I. ∆ says “It couldn’t be done” or “It could have been done but it was unsafe” (another “door opener”)
A. If ∆ says is wasn’t feasible, ∆ is creating opportunity for π to invoke this exception to show that it was “feasible” because the ∆ did, in fact, make the change after the fact;
II. Impeachment:  Very similar to the feasibility argument;
A. At trial ∆’s witness says it was safe to use the product the way the π did when injured;
B. π wants to introduce notice that ∆’s put on product after incident saying that it’s unsafe to use the product as the π did (directly contradicts what was said on the witness stand);
1. Note:  Doesn’t have to be a direct contradiction, just detract from credibility of what was said on the witness stand;
b. Ω408, 409, 410:  The Settlement Negotiation Rules
(1) Ω408 Civil Settlements (Compromise & Offers to Compromise):
(a) Negotiations are inadmissible, period.
(2) Ω410 Criminal Cases (Inadmissibility of Plea Discussions & Related Statements):
(a) Civil Settlements in government enforcement suits are admissible in criminal cases;
(3) Ω410 Plea Bargaining in Criminal Cases:
(a) Inadmissible, period.
c. Ω409:  Payment of Medical & Similar Expenses
(1) AKA the “Good Samaritan Rule”;
(2) Offers to pay medical expenses is inadmissible;
(a) Offers to pay anything OTHER than medical expenses may be admissible;
d. Ω411:  Liability Insurance (Lack Of)
(1) Lack of liability insurance cannot be used as proof of negligence or other wrongful acts;
(2) Other purposes, however, can use this lack of insurance as proof:  proof of agency, ownership, control, bias, or prejudice of a witness.
3. Admissible Relevant Material:  Habit and Routine Practice (Contrasted to Character/Propensity Evidence)
a. Ω406:  Habit & Routine Practice
(1) Evidence of habits or routine practices or individuals or organizations is admissible to prove that conduct on a particular occasion was in conformity with the habit or routine practice.
(2) Ω406, In contrast to “character” evidence, proof of personal habit is freely admitted by the court;
(a) Assumption:  Habit is more probative of conduct than character;
(3) Character:  Generalized description of one’s disposition in respect to a general trait, like honesty, temperance, etc.
(4) Habit:  One’s regular response to a repeated situation; reflex behavior;
(5) Habit Evidence is really hard to prove;
(6) Example:  Witness testifies to seeing a party to a case to wearing a bike helmet EVERY time they ride a bike.
IV. Hearsay  •••••••••••••••••••••••••••••••••••••••• §  Hearsay (May be relevant, but may or may not be admissible.)
A. What Hearsay Is
1. Ω801:  Hearsay Definitions
a. Ω801(a):  Statement
(1) A statement is an oral or written assertion or;
(2) Nonverbal conduct of a person, if it is intended by the other person as an assertion.
(a) Note:  The key here is that nothing is an assertion unless it is intended to be one.
b. Ω801(b):  Declarant
(1) A declarant is a person who makes a statement.
c. Ω801(c):  Hearsay
(1) Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(a) Note:  Statements made by someone other than the declarant to prove that words were SAID, rather than TRUE are NOT hearsay and admissible to prove that they were said.
(b) Stated another way, Hearsay is about: What did he say versus what did he do? Say = Hearsay.  Do = Permissible Testimony.
d. Conversations to which you were a part of:
(1) You may only testify to what you said;
(2) Testifying to what the other person said, heard, or did is hearsay.  Why?
(a) Because the other person isn’t present for cross-examination to test the truth of the witness statements.
(3) NOTE:  You cannot even say on the stand as a witness: “I said...”, because then you are attempting to put into the record an out-of-court statement that’s yours -- THIS IS HEARSAY!  Instead, the examining attorney should ask not what you said, but rather what you did.  E.G. “When you got there, what did you do?”, “What transpired next?”  These are all questions about ‘what happened’ not what someone said.
e. Policy:  Why Exclude Hearsay?  Court preference is Live statements, not out-of-court statements reported by third persons.
(1) No Cross-Examination:  Out of court statements are not subject to cross-examination, which is a key way of testing the truth of witness statements;
(2) No Demeanor Evidence:  The absence of demeanor evidence (evidence of the out-of-court declarant’s inflections, tone, appearance and what that conveys to the jury or fact finder);
(3) No Oath:  The absence of the Oath;
(4) No Declarant:  Often the declarant of the statement never appears in court and therefore cannot be cross-examined;
(5) Misperception;
(6) Faulty Memory;
(7) Ambiguity;
2. Ω802:  The Hearsay Rule
a. Hearsay is not admissible;
b. EXCEPT as provided by the FRE or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.
B. Non-Hearsay Uses of Out-of-Court Statements
1. Impeachment;
a. Most often, a prior inconsistent statement (e.g., said once the car was blue, then later the car was red); Ω801(d) below;
b. Not offered to prove the truth of the prior statement;
c. Offered soley to impeach the witness’ credibility.
2. Verbal Acts;
a. Where the statement itself has legal effect;
b. Classic example:  a Contract - which creates legal effects, rights, etc. // “I do.”
c. Example:  Prosecutor offers testimony of an Undercover Agent on what Debra said; if Agent is believed, ∆ can be found liable for solicitation of prostitution;
3. Effect on Listener or Reader;
a. Showing that the response to what someone said, affected that person’s behavior (so long as it is not used to prove the truth of the matter asserted);
b. Not hearsay if brought to prove reasonableness of the proponent’s reliance on the statement;
4. Verbal objects;
a. Like a matchbook with writing on it; the writing on the object makes it a verbal object;
b. Logo on a car hood; et al.;
5. Circumstantial Evidence of State of Mind and of Memory:
a. Cannot be used to prove a “fact remembered or believed” only to prove the state of mind;
b. Statements that illustrate the memory of the declarant or the belief(s) of the declarant;
6. Indirect Hearsay (Foundational Personal Information of a Witness):
a. Usually permitted;
b. Typically, foundational information like “where were you born”, “where were your parents born”, “when did they move to America”.  These familial kinds of questions which rely on “hearsay of the family” are typically acceptable, unless they are issues germane to the issue at dispute.
C. Statements Declared Not Hearsay by the FRE (Two:  Prior Witness Statements & Admissions)
1. Ω801(d)(1):  Declarant Testifying
a. Ω801(d)(1)(a):  Prior Inconsistent Statements:
(1) The point of this rule is not to let in what would be kept out, but to permit fuller use of such statements.
(2) Used for impeachment or rehabilitation of a witness; (usually used to impeach credibility)
(3) Conditions for Use/Admission of Prior Inconsistent Statement:
(a) Witness must be cross-examinable at trial / NOW;
(b) Prior Statement must be inconsistent with his present testimony;
I. Amnesia, Forgetfulness:  claiming no memory of prior statement is considered inconsistent as well
(c) Prior Statement must have been made under oath in a prior proceeding or deposition;
(d) * Materiality is not required, but should be considered for strategic reasons.
b. Ω801(d)(1)(b):  Prior Consistent Statements:
(1) The point of this rule is not to let in what would be kept out, but to permit fuller use of such statements.
(2) Used for impeachment or rehabilitation of a witness; (usually used to repair credibility)
(3) Conditions for Use/Admission of Prior Consistent Statement:
(a) Witness must be cross-examinable; (in the PRESENT case)
(b) Prior statement need not have been made under oath as above Ω801(d)1(a);
(c) Prior Statement must be consistent with his present testimony;
(d) Prior Statement must be offered to rebut a charge of:
I. recent fabrication;
II. Improper influence;
III. Improper motive;
(e) The Prior Statement admitted must have been made before the alleged “recent fabrication or improper influence or motive”; Tome v. United States
c. Ω801(d)(1)(c):  Prior Statements of Identification:
(1) Assumption:  Used because identifying statements made out of court are more trustworthy than in-court identifications;
(2) Not connected with impeachment or rehabilitation;
(3) Conditions for Use/Admission of Prior Statements of Identification:
(a) Witness must be cross-examinable;
(b) The statement is one of identification of a person after perceiving him;
(4) Example case:  State v. Motta, police artist, investigating officer’s testimony to victim’s identification is admissible for identification purposes; so these cases are usually admissible; definitely admissible if the actual witness giving the identification is available for cross-examination.
2. Ω801(d)(2):  Admissions by Party Opponent
a. Ω801(d)(2)(a):  Individual Admissions:
(1) A statement offered against a party that is the party’s own statement, or an adopted statement, a statement by an agent, or a co-conspirator statement;
(a) Principle:  People won’t admit to wrongdoing unless it were true;
(2) Broadly speaking, statements made by a party against himself are generally admissible against him;
(a) No Requirement that the person have personal knowledge of the admission, only that the admission is against the interest of the party making it;
(b) Some states have an “I’m sorry” exception that prevents expressing apology that it is an admission of guilt.
(c) Admissions in Judicial Proceedings:  Pleadings from prior lawsuits, pleadings dropped (superseded) by amendment in the pending suit are all generally admissible against the party who filed them.
(3) Spillover confessions are NOT permitted in implicating a co-defendant, in most cases; (e.g. Bruton v. United States - violates Due Process - two trials are required for each ∆.)  (If you can edit in such a way that does not cause the problem of Bruton, then it Spillover confessions may be permitted.)
b. Ω801(d)(2)(b):  Adoptive Admissions:
(1) Admissions not written or spoken by X, but by another (Y), and adopted by X by manifesting his adoption or belief in its truth;
(2) E.G.: After the death of testator, safe-deposit box is opened in presence of the executor of the will; bank officer counts out dollar bills in presence of executor, says there is $10,000; executor says nothing.  Issue at trial is whether there was $10,000.  From the executor’s silence, one can infer that the executor adopted the statement of the bank officer - if it weren’t so, the executor would speak up since he would be responsible for counting the contents.
(3) Silence as Adoption:  E.G. United States v. Hoosier, a ∆ was present during a conversation about his guilt and said nothing to contradict it.
(a) Miranda Warnings Exception:  Once a Miranda warning is given by police, silence cannot be used as a hearsay admission (esp. if an alternate explanation of events is given at trial explaining the silence or theory of the defense); Miranda warnings, once given, automatically renders any silence afterward inherently ambiguous as to whether it is an admission or whether it is exercise of the right to remain silent.  Doyle v. Ohio, 1976. (Note:  This exception does NOT apply to pre-arrest silence.)
I. If ∆ affirmatively denies reason for an arrest at the time of arrest, that denial and subsequent silence can come in, because the ∆ has opened the door to admissibility.
c. Ω801(d)(2)(c):  Admissions by Speaking Agents:
(1) When a statement by one person (agent) is considered an admission by another (agent’s authorizing principal);
(2) This rule is specific to agents who have been expressly authorized to act on behalf of the principal;
(3) Personal knowledge of the facts underlying the statement of an employee or agent is NOT required for such admissions to be admissible;
d. Ω801(d)(2)(d):  Admissions by Employees and Agents:
(1) This differs from the Speaking Agents rule in that it pertains to employees and agents not authorized to speak for the principal, but act in some other capacity (like driving a truck, etc.);