Heavold Short Evidence Outline
Heavold Short Evidence Outline
Heavold Short Evidence Outline
Relevance
1.) FRE 606 Inquiry into Validity of Verdict or Indictment
a. When theres an Inquiry into Validity of Verdict or Indictment, Juror must not testify about:
i. Statements/Incidents that occurred during jury deliberations
ii. Jurors Thoughts/Emotions that caused juror to agree/disagree w/ verdict/indictment
iii. Jurors Mental Processes in connection w/ agreeing or disagreeing w/ verdict/indictment
b. Exceptions Juror may testify about:
i. Whether Extraneous Prejudicial info was improperly brought to jurys attention
ii. Whether there was any Outside Influence on any juror
iii. Whether there was a mistake in entering the verdict on the verdict form
2.) FRE 401 Probativeness and Materiality
a. Evidence is Relevant if:
i. Probative It has any tendency to make a fact more or less probable than would be w/o
the evidence, and
ii. Material The fact is of consequence in determining the action
1. In deciding whether evidence is Material, look to Substantive law
3.) FRE 402 General Admissibility of Relevant Evidence
a. All Relevant evidence is admissible, unless prohibited by:
i. Constitution, Federal Law, FRE, or SCOTUS Rules
4.) FRE 104
a. FRE 104(a) Preliminary Questions
i. Ct must decide any preliminary question about whether:
1. Witness is qualified/competent,
2. Privilege exists, or
3. Evidence is admissible
ii. In so deciding, Ct is not bound by FRE, except those on Privilege
iii. Standard of Proof Preponderance of Evidence [Huddleston]
b. FRE 104(b) Conditional Relevance
i. When the Relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact exists.
ii. Ct may admit the proposed evidence on condition that proof be introduced later on
iii. Standard of Proof Proponent must produce evidence sufficient to allow a reasonable
jury to conclude that _____ (e.g., D committed the prior acts) [Huddleston]
5.) FRE 403 Probativeness vs. Risk of Unfair Prejudice
a. Relevant evidence may be excluded if its Probative value is substantially outweighed by a
danger of:
i. Unfair Prejudice
ii. Confusion of the Issues
iii. Misleading the Jury
iv. Undue Delay
v. Waste of Time, or
vi. Needless presentation of Cumulative Evidence
6.) FRE 407 Subsequent Remedial Measures
a. Ct must not admit evidence of Subsequent Remedial Measure to prove:
i. Negligence
ii. Culpable Conduct
iii. Defect in Product/Design
iv. Need for Warning/Instructions
b. Exceptions Ct may admit evidence of Subsequent Remedial Measures to prove:
i. Ownership/Control, or
ii. Feasibility of Precautionary Measures
7.) FRE 408 Compromise Offers/Settlements
b. Halloran To justify introduction of Habit/Routine evidence, the Party must be able to show on
voir dire that he expects to prove a sufficient number of instances of the conduct in question
12.) FRE 404 Character Evidence; Crimes or Other Acts
a. FRE 404(a) Character Evidence
i. Evidence of a persons Character or Character Trait is not admissible to prove that on a
particular occasion the person acted in accordance w/ that Character or Trait
ii. Exceptions for a D or Victim in a Criminal Case
1. D may offer evidence of Ds pertinent trait, and if the evidence is admitted,
Prosecutor may offer evidence to rebut it
2. Subject to the limitations in FRE 412, D may offer evidence of Victims pertinent
trait, and if the evidence is admitted, Prosecutor may:
a. Offer evidence to rebut it, and
b. Offer evidence of Ds same trait
3. In a homicide case, Prosecutor may offer evidence of Victims Trait of
peacefulness to rebut evidence that Victim was the first aggressor
iii. Exceptions for a Witness Evidence of a Witnesss Character may be admitted under
FRE 607, 608, and 609
b. FRE 404(b) Crimes, Wrongs, or Other Acts [104(b) determination]
i. Evidence of a Crime, Wrong, or Other Act is not admissible to prove a persons Character
in order to show that on a particular occasion the person acted in accordance w/ the
Character, but
ii. This evidence may be admissible for another Purpose, such as proving:
1. Motive
2. Intent
3. Preparation
4. Plan
a. Kirsch (SSC) Under FRE 404(b)s common plan/scheme exception, its not
enough to show that each crime was planned in the same way rather, there
must be some overall scheme of which each of the crimes is a part
5. Knowledge
6. Identity
7. Absence of Mistake, or
8. Lack of Accident
13.) FRE 405 Methods of Proving Character
a. FRE 405(a) By Reputation or Character
i. When evidence of a Persons Character or Trait is admissible, it may be proved by
testimony about the persons (1) Reputation, or (2) Opinion
ii. On cross-examination of the Character-Witness, the Ct may allow an inquiry into relevant
specific instances of the persons conduct [Michelson]
1. Michelson When D introduces C.E., Prosecutor may cross-examine Ds
Character-Witness and ask very specific questions about D (e.g., whether D was
arrested before) BUT, Prosecutor may only impeach the integrity, or impair the
credibility, of a Character-Witness by asking whether Character-Witness has been
convicted of any crimes (BUT not if Character-Witness has ever been arrested)
2. Exception FRE 413, 414, 415 Character-Witness may testify about Specific Acts
1. Ct determines whether Party met this burden, then Jury decides whether the
foundational facts are true
2. Mandatory presumptions are unconstitutional in Criminal cases against D
3. Conclusive Presumptions are not allowed in Criminal cases (violates DP)
b. FRE 301 Presumptions in Civil Cases Generally
i. In a civil case, unless a Federal law or FRE provides otherwise, the party against whom a
presumption is directed has the burden of producing evidence to rebut the presumption,
but this rule does not shift the burden of persuasion, which remains on the party who
originally had it [Thayer View]
1. Thayer Rule If letter mailed, its presumed to be received, but if person claims he
didnt receive letter, presumption is removed and jury can decide for P or D
2. Morgan Rule If D claims not to receive letter, D must prove he didnt receive it
c. FRE 302 Applying State Law to Presumptions in Civil Cases
i. In a civil case, if State law decides the case, presumption rule of State applies in Fed Ct
d. Presumptions in Criminal Cases (No FRE for presumptions in Criminal cases)
i. Francis v. Franklin (1985) Cts scrutinize presumptions in criminal cases where the
impact on D can be almost a conviction w/o any proof by Govt
II.
Reliability
1.) Competency of Witness
a. FRE 601 Competency to Testify in General
i. Every person is competent to be a Witness unless FRE provides otherwise
ii. In a Civil case, State law governs the Witnesss competency regarding a claim or defense
for which State law supplies the rule of decision
iii. Competent Witness has personal knowledge of the event and can recollect it
b. FRE 602 Need for Personal Knowledge [104(b) determination]
i. Witness may testify to a matter ONLY IF evidence is introduced sufficient to prove that
Witness has personal knowledge (i.e., Witness must see it See = Knowledge)
ii. Evidence to prove personal knowledge may consist of Witnesss own testimony
iii. Experts [FRE 703] need not have Personal Knowledge
c. FRE 603 Oath or Affirmation to Testify Truthfully
i. Before testifying, Witness must give Oath or Affirmation to Testify Truthfully. It must be
in a form designed to impress that duty on the Witnesss conscience
d. FRE 604 Judges Competency as Witness
i. Presiding-Judge may not testify as Witness.
e. FRE 610 Religious Beliefs or Opinions
i. Evidence of Witnesss Religious Beliefs/Opinions not admissible to Attack or Support the
Witnesss Credibility
2.) Impeachment and Character for Truthfulness
a. FRE 607 Who May Impeach a Witness
i. Any Party may attack the Witnesss Credibility by showing:
1. Bias
2. Sensory/Mental Incapacity
3. Prior Inconsistent Statement made by that Witness under FRE 613
4. Contradiction by Another Fact, OR
5. Impeachment for Untruthfulness under FRE 608 or 609
ii. May not call W solely to impeach if purpose is to offer otherwise inadmissible evidence
b. FRE 608 Witnesss Character for Truthfulness/Untruthfulness [Impeachment]
i. FRE 608(a) Reputation or Opinion
1. Witnesss Credibility may be Attacked or Supported by:
a. Testimony about Witnesss Reputation, or by Opinion, of Witnesss
Character for Truthfulness/Untruthfulness BUT, evidence of Truthful
2. For any Crime, regardless of the punishment, evidence must be admitted if the Ct
can readily determine that establishing the elements of the Crime required proving
(or Witness admitting) a Dishonest act or False statement
a. Only FRE that escapes FRE 403 balancing
b. Perjury, Fraud, Embezzlement, False Pretense (NOT theft, robbery, larceny)
c. FRE 609(b), (c), and (d) apply to FRE 609(a)(2) Crimes
2. Loper If D did not have Lawyer at prior conviction, Govt may not use prior
conviction for impeachment
d. FRE 613 Witnesss Prior Statements [Impeachment Rule Cf. 613 w/ 801(d)(1)]
i. FRE 613(a) Showing or Disclosing the Statement During Examination
1. When examining a Witness about Witnesss prior statement, a Party need not
show it or disclose its content to the Witness, but the Party must (on request) show
it or disclose its contents to an adverse-Partys Attorney
ii. FRE 613(b) Extrinsic Evidence of a Prior Inconsistent Statement
1. Extrinsic Evidence of a Witnesss Prior Inconsistent Statement is admissible if the
Witness is given an opportunity to explain or deny the statement [Available] and
the adverse-Party is given an opportunity to examine the Witness about it
a. Barrett (1st Cir)
i. Permitted under 613 Using statement to impeach Witness Credibility
ii. Not Permitted under 613 Using statement to prove guilt/innocence
vi. Vejvoda (SSC) In Criminal cases, Ct may not take Judicial Notice of a Fact if it relates
to an element of the Crime
g. Bourjaily Bootstrap: When preliminary facts relevant to FRE 801 [Opposing Party] are
disputed, offering party must prove them by preponderance of evidence under 104(a)
Ds silence in the face of an accusation of guilt (You robbed the bank), may serve as an
adoptive admission of guilt and because silence may be inconsistent with a later claim
of innocence, evidence of silence may also serve to impeach
4. D in Custody, Post-Miranda
a. Harris v. NY (1971) If a D is in custody (post-Miranda), silence is not
deemed an adopted admission under FRE 801(d)(2)(B)
b. Doyle v. Ohio (1976) If a D is in custody (post-Miranda), silence cannot
be used to impeach his credibility under FRE 613
5. Fletcher v. Weir (1982) In the absence of the sort of affirmative assurances
embodied in the Miranda warnings, it does not violate DP for a State to permit
cross-examination as to a Ds post-arrest silence when D chooses to take the stand
c. FRE 802 Rule Against Hearsay
i. Hearsay is not admissible unless Federal Law, FRE, or SCOTUS provides otherwise
ii. Owens FRE 802 does not bar Testimony concerning a prior Out-of-Court [Hearsay]
identification when the identifying-Witness is unable to explain the basis for the
identification because of memory loss
d. FRE 805 Hearsay within Hearsay
i. Hearsay within hearsay is admissible only if each part of the statement conforms w/ an
exception to the Rule Against Hearsay
e. FRE 806 Attacking or Supporting Declarants Credibility [Impeachment]
i. If Hearsay or FRE 801 [Opposing Party Statement Authorized, Agent, or Co-Conspirator] has
been admitted into evidence, Opposing-Party may Attack Declarants Credibility, even if
Declarant is Unavailable, by:
1. Proof of Bias
2. Inconsistent Statements
3. Contradiction (of Fact or Prior Inconsistent Statement)
4. Evidence of Untruthful Character (Opinion/Reputation/Criminal Convictions)
5.) Hearsay Exceptions
a. FRE 804 Exceptions to the Rule Against Hearsay [Declarant Unavailable]
i. FRE 804(a) Criteria for Being Unavailable
1. Declarant is Unavailable as a Witness if Declarant [May raise CC issues]:
a. Ct determines that Privilege applies
b. Refuses to testify despite a Ct order to do so [5th Amendment]
c. Testifies to not remembering the subject matter [see RR and PRR]
d. Death or a Then-existing Infirmity, or physical or mental illness, or
e. Is absent from the trial or hearing and the statements Proponent has not
been able, by process or other reasonable means (e.g., subpoena), to procure:
i. Declarants attendance, or Declarants Testimony
2. Determinations of Unavailability are FRE 104(a) determinations
ii. FRE 804(b) Exceptions Applicable Only When Declarant is Unavailable:
1. Former Testimony Testimony that:
a. Was given as a Witness at trial, hearing, or lawful deposition, and
b. Is now offered against a Party who had (or in a Civil case, whose
Predecessor in Interest had) an opportunity and similar motive to develop
it by direct, cross-, or redirect-examination
i. Predecessor only applies if current Trial is Civil (not Criminal)
ii. No Grand Jury No opportunity for Crossiii. Witness should be Under Oath
2. Dying Declaration In a Prosecution for Homicide, or in a Civil case, a statement
that the Declarant, while believing Declarants death to be imminent w/o hope of
recovery, made about its cause or circumstances [requires personal knowledge]
3. Statements Against Interest Statement that:
a. A Reasonable person in Declarants position [Subjective] wouldve made
only if he believed it to be true because it was so contrary to the
Declarants Ownership, Monetary, or Penal interest, or had so great a
iii. Gray If a Redaction replaces Ds name with an obvious indication of deletion, such as
a blank space, nickname, the word deleted, or a similar symbol, then Bruton applies
and the redacted-report is inadmissible (FRE 105 is Insufficient)
iv. Marsh If jury cannot figure out from confession/redacted report that D is implicated,
then FRE 105 Limiting Instructions are permissible
v. Edwards A confession that redacts all names and replaces them w/ pronouns is
admissible and does not violate Ds CC rights only if there are numerous Ds because if
there are numerous Ds, it is unlikely the jury can determine which pronoun is who
7.) Compulsory Process
a. 6th Amendment In all Criminal trials, D shall have compulsory process for obtaining
Witnesses in his favor
b. Chambers Ds Compulsory Process right has been violated if a States hearsay rules:
i. Deny D the opportunity for cross-examination
ii. The excluded hearsay was critical for Ds defense, and
iii. The excluded hearsay had considerable assurances of reliability and trustworthiness
c. Crane US Constitution guarantees criminal-D a meaningful opportunity to present a
complete defense
d. Holmes If a State only considers the Probative value of Ds evidence by exclusively examining
the Prosecutions evidence, it violates Ds right to a fair trial
8.) Lay and Expert Opinion Testimony
a. FRE 701 Lay Opinions [Must Testify from Personalized Knowledge]
i. A Witness who is not qualified as an Expert by Knowledge, Skill, Experience, Training,
or Education, may testify in the form of an Opinion or otherwise if:
1. Rationally based on the Witnesss perception
2. Helpful to clearly understanding the Witnesss testimony or determining a fact in
issue, and
3. Not based on Scientific, Technical, or Other Specialized Knowledge under 702
ii. Lay Witness may not bring evidence onto the stand and talk about it
b. FRE 702 Expert Testimony [Need Not Testify from Personalized Knowledge]
i. Witness who is qualified as an Expert by Knowledge, Skill, Experience, Training, or
Education may testify in the form of an Opinion or otherwise if:
1. Experts Scientific, Technical, or Other Specialized Knowledge will help the trierof-fact understand the evidence or to determine a fact in issue
2. Testimony is based on sufficient facts or data
3. Testimony is the product of reliable principles and methods, and
4. Expert has reliably applied the principles and methods to the facts of the case
ii. Expert Witness may bring 803(18) evidence onto the stand and talk about it
c. FRE 704 Improper Topics of Expert Testimony
i. An Opinion is not automatically objectionable just bc it embraces an ultimate issue
ii. Exception In a Criminal case, an Expert Witness must not state an opinion about
whether D had the culpable mental state of the crime charged, or of a defense
1. Batangan Expert may not testify about whether a Witness is telling the truth
2. Guilbert Expert testimony about reliability of eyewitness testimony admissible
d. FRE 703 Bases of an Experts Opinion Testimony [Experts can rely on Hearsay]
i. Expert may rely on facts or data:
1. He personally observed
2. He was made aware of at the hearing/trial, or
3. He was made aware of before the hearing
e. FRE 803(18) Learned Treatise & Medical Statements
i. Experts reliance on inadmissible hearsay actually makes that hearsay admissible as
substantive evidence
a. Unique items [knife, gun, etc.] still must be Authenticated via FRE 901
b. Best Evidence Rule [Applies only to Writings, Recordings, and Photographs]
i. FRE 1001 Definitions
1. Writing Consists of letters, words, numbers, or their equivalent in any form
2. Recording Consists of letters, word, numbers, or their equivalent in any manner
3. Photo Photographic image or its equivalent stored in any form
ii. FRE 1002 and FRE 1003 Originals and Duplicates [Originals = Duplicates]
1. Original or Duplicate Writing/Recording/Photo is Required to prove its Content
a. Jury decides whether a writing is an Original under FRE 104(b) [1008(b)]
b. Where CONTENT is CRITICAL BER Applies
i. If Content not critical, have someone testify about it (if not hearsay)
2. Duplicate Must be mechanically preserved (no potential for human error allowed)
iii. FRE 1004 Secondary Evidence Rule
1. An Original is not required and other evidence of the content of a Writing,
Recording, or Photo is admissible if:
a. All Originals were lost/destroyed, & not by Proponent acting in bad faith
b. Originals cannot be obtained by any judicial process
c. Party against whom the Original would be offered had control of the
Original; was at that time put on notice, by pleadings or otherwise that the
Original would be a subject of proof at the Trial or Hearing, and fails to
produce it at the Trial or Hearing, or
d. The Writing, Recording, or Photo not closely related to a controlling issue
III.
Privileges
1.) Privileges Generally
a. FRE 501 Privilege Analysis
i. Is it a Criminal or Civil case?
1. If Criminal, see if Federal CL Privilege applies
a. If Federal CL Privilege does NOT apply, Judge may create one under FRE
501 Reason and Experience language
2. If Civil, and State Law is Rule of Decision, Judge must use State Law Privilege
a. If State Law is not Rule of Decision, Judge must use Federal CL Privilege
i. If No Federal CL Privilege, Judge can either make it up using
Reason and Experience, or apply State Law Privilege
b. 3 Types of Privilege
i. Psychotherapist-Patient Privilege [504 + Jaffee]
ii. Clergy-Penitent [506 + Trammel]
iii. Lawyer-Client [FRE 502 + Upjohn]
1. Togstadt In determining whether Attorney-Client Privilege exists, Ct must look
at it from the Clients POV (Would a reasonable client believe AC Privilege exists?)
2. Inadvertent Disclosure
a. Williams v. DC (DDC 2011) Inadvertent Disclosure of Info covered by
Attorney-Client Privilege (or WP Doctrine) is not a Waiver if:
i. Disclosure is Inadvertent
ii. Holder of Privilege took reasonable steps to prevent disclosure, &
iii. Holder of Privilege took reasonable steps to rectify the error
3. Corporate Setting
a. Upjohn Subject Matter Test
i. In order to determine whether the AC Privilege applies in the
Corporate Setting, balance the following factors:
1.
2.
3.
4.
5.
6.
The Communications concerned matters within the scope of the Employees duties
Employees knew the purpose of the Communications was to obtain legal advice
Employees were instructed that the Communications were to be kept confidential
7. Government Lawyers
a. Rowland AC privilege applies to Govt Attorney Communications
c. 4 Elements of Professional Privileges
i. Privilege is the Clients
1. Only Client (or Professional on Clients behalf) may assert or waive the Privilege
ii. Privilege protects only those confidential communications made to facilitate
professional services
1. Friendly chats do not qualify, nor do communications made to a Lawyer acting as
a lobbyist/business agent (i.e., not as a Law advisor) [Gionis]
iii. Privilege protects only Confidential Communications
1. Communication is Confidential if Client intended it to be Confidential and that it
stay Confidential
2. No Privilege attaches if, at the time of communication, Client plans to disclose it
to persons outside the Privilege, or knows her Lawyer plans to do so
3. Client waives Privilege if he voluntarily discloses or consents to disclosure of any
significant part of the communication to person outside the Privileged relationship
iv. Privilege Protects only Confidential Communications
1. Only the Communication, not the facts communicated, is privileged
2.) 5th Amendment Privileges
a. 5th Amendment No person shall be compelled in any Criminal proceeding to be a Witness against himself
b. Hubbell 5th Amendment Privilege is violated only when:
i. Compulsion + Testimonial evidence + Self-Incrimination
c. Testimonial Test Ds evidence is Testimonial only if he can lie about it, but if he is physically
unable to lie about it, then it is NOT Testimonial
i. Testimonial May not be compelled
ii. Not Testimonial May be compelled (e.g., blood, DNA) does not violate 5th
d. Couch Only if (a) the Clients 5th Amendment Privilege would have protected documents
against disclosure while in the Clients possession, and (b) Client has transferred the documents
to his Lawyer in confidence to obtain legal advice, then the Attorney-Client Privilege protects
the documents against compelled production while the Lawyer has possession
e. Use Immunity
i. Doe (D) If the evidence is Testimonial and Self-Incriminating, it may not be Compelled
unless Govt grants Use Immunity (e.g., Prosecutor may not use any Testimonial aspects
of the act of production)
1. Prosecutor is barred from offering evidence that D produced the documents, but
Prosecutor may offer the documents themselves if Govt has independent proof
of the 3 Testimonial Aspects of the act of production:
a. Document Existed,
b. D possessed the Item, and
c. The Documents produced are the ones Govt demanded
ii. Hubbell (W) Govt may compel a Witness to disclose the existence of incriminating
documents only if the Govt is able to describe the documents w/ reasonable particularity
1. If Witness produces those incriminating documents pursuant to Use Immunity, the
Govt is unable to use them to prepare criminal charges against Witness
3.) Family Privileges
a. Spousal Testimonial Privilege and Confidential Communication Privilege
i. Spousal Testimonial Privilege:
1. Applies ONLY in Criminal cases
2. Crime-Fraud Exception applicable
3. Trammel Testifying-Spouse has the choice to testify against D or not
a. Only Witness-Spouse has the Privilege
4. Facts and Communication are covered
5. Marriage goes backward Covers statements made before marriage
6. Does not survive the marriage
7. Email/Phone calls apply (but see Waiver)
8. Waiver If 3rd person hears/sees communication
ii. Marital Communication Privilege
1. Applies in Criminal and Civil cases
2. Crime-Fraud Exception applicable [Wolfe]
a. Snapshot In determining whether Marital Communication Privilege
applies, take a snapshot of when the Communication was made [Montgomery]
3. Etkin Both Spouses have the Privilege
4. Only Communications (not Facts) are covered [Rakes]
5. Marriage goes forward Statements made before marriage NOT covered
6. Survives the Marriage (unless its a Sham Marriage)
a. Anything said during the Marriage will survive even Death and Divorce
b. Anything said after the marriage (e.g., Divorce) is not privileged
7. Emails/Phone Calls apply (but see Waiver)
8. Waiver If 3rd person hears/sees the communication
a. Key Factor Does the person asserting Privilege have Notice that a 3rd
Person will hear/see the communication? [Etkin]
b. Parent-Child Privilege NO Parent Child Privilege [In re Grand Jury Proceedings]
4.) Governmental and Other Privileges
a. Informant Privilege If Govt uses an Informant in crime-fighting, Govt can prevent the
Disclosure of that Informants Identity [Roviaro]
i. Only Govt (Not Informant) has Privilege
b. State Secrets Privilege Govt has Privilege against revealing Military Secrets [Reynolds]
i. Only Govt (Not Private parties) has Privilege
c. Executive Privilege NO Absolute Executive Privilege [Nixon; Clinton]
i. Public Right to Info trumps Executives right to have Confidential Communications
ii. Executive Privilege may apply when oversight of Executive would impair Executive
Branchs National Security concerns