OUTLINE

UBE/MEE

EVIDENCE

JULY 2022

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Table of Contents: Evidence
I. Hearsay and Circumstances of its Admissibility................................................................... 1
1) Hearsay definition ........................................................................................................... 1
2) Hearsay rule ..................................................................................................................... 2
3) Non-hearsay ..................................................................................................................... 3
4) Hearsay exceptions ......................................................................................................... 9
a) Unavailability exceptions............................................................................................ 9
b) Declarant may be available or unavailable ............................................................ 15
5) Note on animal or machine statements ..................................................................... 22
Hearsay on the Multistate Essay Exam ................................................................................... 22
II. Presentation of Evidence...................................................................................................... 25
1) Role of the judge ............................................................................................................ 25
2) Introduction of evidence—mode and order .............................................................. 25
3) Burdens and presumptions .......................................................................................... 27
4) Judicial notice ................................................................................................................. 29
III. Evidence: Types, Relevancy, Authentication, and the Best Evidence Rule.................... 30
1) Types of evidence .......................................................................................................... 30
2) Relevancy and probative value of evidence ............................................................... 31
3) Authentication and identification ............................................................................... 32
4) Contents of writings, recordings, and photographs: the best evidence rule ......... 36
IV. Witnesses .............................................................................................................................. 38
1) Requirement of knowledge and oath ......................................................................... 38
2) Competency of witnesses ............................................................................................. 39
3) Lay opinions ................................................................................................................... 41
4) Expert witnesses ............................................................................................................ 41
5) Exclusion of witnesses .................................................................................................. 44
V. Impeachment and Rehabilitation ....................................................................................... 45
1) Any party may impeach a witness ............................................................................... 45
2) Seven ways to impeach a witness ............................................................................... 45
3) A few notes on impeachment ...................................................................................... 51
4) Rehabilitation of impeached witnesses ...................................................................... 51
VI. Character and Related Concepts ........................................................................................ 52
1) Admissibility of character ............................................................................................. 52
2) Distinguish from character evidence: habit and routine practice .......................... 58
3) Distinguish from character evidence: other crimes or bad acts to prove
something else ....................................................................................................................... 59

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VII. Privileges .............................................................................................................................. 63
1) Privilege in general ........................................................................................................ 63
a) If the action is pending in federal court.................................................................. 63
b) Privileges recognized by the federal rules.............................................................. 63
VIII. Other Policy Exclusions ..................................................................................................... 70
1) Insurance ........................................................................................................................ 70
2) Subsequent remedial measures .................................................................................. 71
3) Offers to settle and offers to pay medical expenses ................................................ 72
4) Plea bargaining .............................................................................................................. 74

Evidence Tested Issues ................................................................................................................ i

Hearsay Cheat Sheet: List of Exceptions ................................................................................. iv
Evidence Mini Outline ................................................................................................................. v
Hearsay Problems Worksheet ................................................................................................ viii
Answers to Hearsay Problems ................................................................................................ xiv
Answers ...................................................................................................................................... xx

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Evidence
• Relevancy and reasons for
excluding relevant evidence: 8–9 Note
questions
Number of • Hearsay and circumstances of its Dates in green font
MBE admissibility: 6–7 questions indicate when a

Questions: • Presentation of evidence: 6–7 concept was tested on

a Multistate Essay
questions

25 • Privileges and other policy

exclusions: approx. 2 questions
Exam (MEE) essay and
all examples in green
font come from past
• Writings, recordings, and
MEEs.
photographs: approx. 2 questions

Background
1) Application of federal law: The Federal Rules of Evidence govern all proceedings in federal court.
The Federal Rules favor the admission of evidence.
2) When state law governs: federal courts apply state law on competency, burden of proof, and
presumptions.

I. Hearsay and Circumstances of its Admissibility

Tested: Oct 2020, July 2020, Feb 2020, July 2018, July 2016, Feb 2016, July 2013, Feb 2013, Feb
2011, Feb 2008

1) Hearsay definition:
a) Out of court
b) Statement
i) There needs to be an intent to make an
assertion—that is, an intent to communicate.
(1) Ex.: If you ask me where something is and I point,
there is an intent to communicate.
c) Offered to prove
d) The truth of the matter asserted
i) If a statement is offered for credibility or to
prove that something was spoken/written, it is
not hearsay.

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 ii) See the first three hearsay exclusions for examples.

2) Hearsay rule
a) Hearsay is inadmissible unless an exception or exclusion applies.
b) Rationale for the hearsay rule: hearsay is unreliable because
i) the declarant may misperceive an event;
ii) the declarant may misremember an event;
iii) the declarant may be lying; or
iv) the person testifying in court may misremember the statement, may have misheard it,
or may be lying about it.
c) Thus, the law makes it necessary for the declarant herself to testify in court so that the jury
can evaluate sincerity and whether the declarant has misperceived or misremembered the
situation (likely through questions on cross-examination).

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3) Non-hearsay: Bar Exam Tip: The first three categories of non-hearsay are not used to
prove the truth of the matter asserted. The next two categories (prior statements of a
trial witness and an opposing party’s statement (“party admission”)) are used to prove the
truth of the matter asserted.

Statements that are non-hearsay and not used to prove the truth of the matter

a) Verbal act: legally operative words

i) Rationale: The statement is not being offered for the truth of the matter asserted—only that
the statement was said. The proponent is basically trying to prove an element of the claim, so
therefore it is not hearsay.
ii) Definition: These are words that have a legal effect. They are being offered into court
solely to prove that they were said, as merely saying the words gives rise to a claim.
iii) Examples include: defamation, contract formation, solicitation of crime, bribery, or to
show something like sexual harassment, that a gift was made, perjury, or fraud.

(1) Ex.: A coworker says to a woman, “you would look better without a shirt on.” The woman offers the
statement into evidence in her sexual harassment claim against the coworker. She is not offering it

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 to prove it is true, but to prove that the statement was said and that it constitutes sexual
harassment.
b) Effect on person who heard or read statement—“state of mind” (effect on listener, effect
on reader) (Feb 2013)
i) This is a statement that is not offered for the truth of the matter asserted—rather, it is
generally offered to show that a person (1) had notice of a fact, or (2) to dispute motive
or intent.

(1) Notice
(a) Ex.: A woman slips in a grocery store and sues the store. An hour before the woman slipped, a
witness overheard a different customer mention to the manager that the floor was very
slippery. Is the statement of the customer admissible in court? For what purpose?
___________________________________________________________________________________________.1
(b) Ex.: Bob Bystander says to Dan Driver, “Dan, it looks like your tire is flat.” Dan drives his car
anyway, but because the tire was flat, he strikes Patty Pedestrian. Patty sues Dan for negligence
and wants to offer Bob’s statement into evidence. May she? For what purpose—as substantive
evidence, for proof he had notice of the flat tire, for both purposes, or neither?
__________________________________________________________________________________________________________
________________________________________________________________________________________________________.2
Bar Exam Tip: on the MBE, this hearsay exclusion often comes up with fact
patterns involving cars and a negligence claim.

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 (2) Motive or intent
(a) Ex.: A woman is charged with elder abuse because she did not give her mother the proper
medications after her mother had surgery. As a result, her mother died. If the woman
introduces a doctor’s note that said not to give her mother the medications in question after
surgery, then that note would be offered not for truth of matter but to show the
_________________________________________________________________________________________________________3
(and that the woman was not trying to abuse her mother).
(b) Ex.: Bob claims his manager, Linda, who was newly appointed to the manager position,
discharged him from his sales job because she was biased against older people like him. Linda
states he had been evaluated as “below average” based on past performance reviews written by
his prior manager. Are the performance reviews admissible? For what purpose?
_____________________________________________________________________________________________
___________________________________________________________________________________________.4
c) Circumstantial evidence of speaker’s state of mind
i) These are statements being offered to prove someone’s state of mind—not truth.
ii) Rationale: it is not being offered for the truth of the matter asserted so it is not hearsay.

(1) Ex.: A defense attorney introduces the fact that his client said, “God told me to kill [the victim]” to
show the defendant was insane (not the truth of the matter).

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Statements that are non-hearsay but are used to prove the truth of the matter

a) Prior statements of a trial witness—three kinds (Feb 2016)

i) Witness’s prior statement of identification of a person (Feb 2016)
(1) Rationale: in-court identifications are not as reliable as identifications made under less
suggestive circumstances.

(a) Ex.: A victim was robbed after leaving a jewelry store. She went into the police station to give a
statement and when she walked in, she overheard the defendant in the adjoining room. As
soon as she heard the defendant’s voice, she said, “that is the voice of the guy who robbed me.”
If the victim testifies, this statement could be admitted as nonhearsay. (Feb 2016)
ii) Witness’s prior inconsistent statement
(1) Rationale: to eliminate perjury.
(2) Elements:
(a) the statement is made under oath at a formal trial, hearing, or deposition;
(b) it is inconsistent with the statement at trial; and
(c) the declarant is testifying at a trial or hearing and
is subject to cross-examination concerning the
statement.
(i) Bar Exam Tip: prior inconsistent
statements that fall within this exception
can be used for substantive evidence and
impeachment!
(ii) Note: if used for impeachment too, the
witness must have some opportunity to
explain or deny the statement on the stand
(unless the witness is the opposing party,
because then the statement would be
admissible as an opposing party’s statement

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 (“party admission”) and their lawyer can simply call them to the stand).
iii) Witness’s prior consistent statement
(1) Rationale: it is used to rehabilitate the witness but also to prove that the statement is true
since if the same statement was made pre-motive, the witness is less likely to be lying.
(2) Elements:
(a) the statement is consistent with testimony at trial, and
(b) is used to rebut charge of recent fabrication of improper motive/influence.

b) Opposing party’s statement (“party admission”) (Oct 2020, Feb 2020, July 2018, July 2016)
i) Rationale: the witness can simply take the stand and explain why he said what he said!
ii) There are four kinds of opposing party statements:
(1) Opposing party statement: any statement made by the opposing party if offered
against that party.

(2) Adoptive admissions: A party remains silent under circumstances in which a

reasonable person would protest if the statement were false. The proponent must
show that the person:
(a) heard and understood the statement,

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 (b) was physically and mentally capable of
responding, and
(c) a reasonable person would have denied
the statement.
(i) Ex.: If a woman came up to someone at a
coffee shop and said, “I just saw you hit that
old lady crossing the street then flee the
scene!” a reasonable person would deny it if
the incident did not occur. Thus, if the
accused person is silent, heard and
understood the statement, and was capable
of responding, this would be an adoptive
admission.
(3) Agent or employee statements: These are
admissible if:
(a) they are made by the agent/employee,
(b) they are offered against the principal/employer,
(c) they are made during the existence of the agency/employment relationship, and
(d) the statement concerns a matter within the scope of the agency or employment.
(i) Bar Exam Tip: The person does not need to be at work when the
statement is made. The statement could be said after work but they
must still be an agent or employee while the statement is made.

(4) Statement by co-conspirator: these are admissible if made during the course of
and in furtherance of the conspiracy. Prosecutors must prove the existence of a
conspiracy with independent proof that a conspiracy exists with something other
than the statement. (Oct 2020)

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 (a) Note:______________________________________________________________________________
____________________________________________________________________________________
__________________________________________________________________________________.5
4) Hearsay exceptions
a) Unavailability exceptions: Declarant must be unavailable
for the below five exceptions:
i) Determining unavailability: A declarant is unavailable if
the declarant: (mnemonic = SAILS)
(1) states claim for privilege,
(2) is absent from jurisdiction,
(3) is ill or dead,
(4) lacks memory, or
(5) stubbornly refuses to testify.
ii) Five hearsay exceptions where declarant must be
unavailable
(1) Forfeiture by wrongdoing (witness tampering)
(a) Rationale: party cannot complain about hearsay if his
conduct led to the witness being unavailable.
(b) Elements:
(i) if the declarant is unavailable, and
(ii) the court finds by a preponderance of the
evidence that the party’s conduct was
specifically designed to prevent the witness from testifying, then
(iii) the party “forfeits” both the hearsay objection and Sixth Amendment
objection (see below).
1. Ex.: Mr. Smith told his alleged paramour, Diane, “If you show up to trial and testify, I
promise you that the world as you know it will be over and there will be hell to pay.”
Diane left the country and did not return until after trial. Mr. Smith, in his divorce
action, cannot complain about hearsay. Her statements would be admissible even if
they would otherwise be considered hearsay.
2. Ex.: Defendant is charged with murdering a victim. A day before the murder, the victim
told her best friend, “I am afraid that defendant will murder me.” The prosecution
wants to admit the statement, arguing that the victim is only unavailable because the
defendant murdered her so he cannot complain about her statement being admitted.
Will the prosecution be successful?
________________________________________________________________________________________________
______________________________________________________________________________________________.6

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 (2) Former testimony
(a) Rationale: Both an oath and the opportunity to cross-examine were already present
at some point, even if this occurred before trial. Thus, the statement is reliable.
(b) Elements:
(i) the declarant is unavailable;
(ii) the declarant had given testimony at a former proceeding or deposition;
and
(iii) the statement is admissible against a party (or someone in privity) who, on a
prior occasion, had the opportunity and motive to develop the testimony of
the witness. The issues must be the same.

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 (3) Statement against interest (Oct 2020, July 2020)
(a) Rationale: declarant is not likely to say something against her interest unless it is true.
(b) Elements:
(i) the declarant is unavailable;
(ii) the statement is against the declarant’s pecuniary, proprietary, or penal
interest;
(iii) it was against the declarant’s interest when made; and
(iv) the declarant knew it was against his interest when the statement was
made (look at the context!).
1. Note: the declarant may be a non-party.
2. In criminal cases, statements against penal interest must be supported
by corroborating circumstances showing the trustworthiness of the
evidence.
3. Ex: A department store sues Cathy Customer alleging that Cathy stole a vase. At the
time the vase was stolen, Cathy was shopping with her best friend, Thelma Thief. Cathy
heard Thelma admit to stealing the vase to her friends. Thelma is unavailable on the
trial date. Thelma’s incriminating statements could be admitted as a statement
against interest.

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 (4) Dying declaration
(a) Rationale: declarant is unlikely to lie about the cause or circumstances of her death if
she truly believes that she is dying.
(b) Elements:
(i) the declarant is unavailable (but does not have to be dead),
(ii) the statement is used in a homicide or civil case,
(iii) the statement is made while the declarant believed death was impending,
and
(iv) the statement concerns the cause or circumstances of death.

(5) Statement of personal or family history

(a) Rationale: declarant is likely to know his family history.
(b) Rule: A statement is admissible if it is
(i) a statement about the declarant’s own birth, adoption, legitimacy, ancestry,
marriage, divorce, relationship by blood, adoption, or marriage, or similar
facts of personal or family history, even though the declarant had no way of
acquiring personal knowledge about that fact; or
(ii) a statement about another person concerning any of these facts, as well as
death, if the declarant was related to the person by blood, adoption, or
marriage or was so intimately associated with the person’s family that the
declarant’s information is likely to be accurate.

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 iii) Remember the Sixth Amendment Confrontation Clause—the right of the
defendant to confront witnesses who testify against him (Bar Exam Tip: this is
applicable only in criminal cases.) (Oct 2020, Feb 2016, July 2013)
(1) Look for “TUN” elements:
(a) if a statement is testimonial,
(i) A statement is testimonial if the primary purpose of the questioning is to
establish or prove past events potentially relevant to criminal prosecution.
1. The Supreme Court has said, “In determining whether statements are
testimonial, we ask whether the declarant intend[ed] to bear testimony
against the accused . . . such that a reasonable person in the declarant’s

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 position would anticipate his statement being used against the accused
in investigating and prosecuting the crime.”
2. Grand jury testimony is testimonial.
3. A statement is non-testimonial if the primary purpose of the questioning
is to enable police assistance to meet an ongoing emergency.
4. Ex.: A woman tells her best friend that she is scared of her boyfriend but asks her best
friend not to tell anyone. The woman is later murdered. The woman’s boyfriend is
charged with murder. Is the woman’s statement to her best friend testimonial?
______________________________________________________________________________________________.7
5. Ex.: A kindergartener goes to school with obvious bruises on his face. The
kindergartener’s teacher asks him, “Where did you get those bruises?” The
kindergartener responds, “Dee Dee” (which was a nickname for his mom’s boyfriend).
Is this statement considered testimonial?_________________________________________________.8

(ii) declarant is unavailable, and

(iii) defendant had no opportunity for cross-examination (either before or at
trial).
(b) Then (if these “TUN” elements are met), the statement is not admissible because
it poses a confrontation problem under the Sixth Amendment. Note that even if
it falls within a hearsay exception, it will still not be admitted into evidence.

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 b) Declarant may be available or unavailable for the following exceptions:
i) Present sense impression (Feb 2016, July 2013, Feb 2013)
(1) Rationale: declarant is less likely to lie or misremember if the event is happening while he
describes or explains it.
(2) Elements:
(a) declarant describes or explains an event,
(b) while the event is occurring or immediately thereafter.

ii) Excited utterance (Feb 2016, July 2013)

(1) Rationale: the declarant is less likely to lie while under the stress of excitement.
(2) Elements:
(a) there is a sufficiently startling event,
(b) the statement is made while the declarant is under the stress of excitement, and
(c) the statement relates to the startling event.
(i) Consider nature of event, passage of time, and exclamation points!

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 (ii) Ex.: “Wow, that car just drove through that red light!” could be admitted as an excited
utterance or a present sense impression.
(iii) Ex.: A person witnessed an armed robbery outside of a jewelry store. A few minutes after
the robbery, a police officer took a statement from a witness, who was wringing her hands
and pacing. The witness described the robber as “six feet tall” with “brownish hair.” This
statement falls within the hearsay exception of present sense impression or excited
utterance. (Feb 2016)
iii) Then-existing mental, emotional, or physical condition (Oct 2020, Feb 2020)
(1) Rationale: Declarant is less likely to lie or misremember if the condition occurs while he
describes or explains it. (This is how you think, how you feel, and your intent.)
(a) This is a contemporaneous statement concerning present state of mind,
feelings, or emotions, or
(i) Not a memory or belief!!
(b) a current physical condition, or
(i) This must be a current condition. This statement can be made to anyone. (It
does not have to be a physician!) This is the same as a present sense
impression.
(c) intent to do something in the future.

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 (i) This can be used to show the declarant’s intent, the declarant’s action, and
someone else’s action (but for someone else’s action, the law is unsettled)!
This is very strong.

1. Ex.: In March, declarant says, “I plan to go to Florida with my boyfriend in April.” This
can later be used to show the declarant intended to go to Florida and the declarant
did go to Florida!
iv) Statement made for medical diagnosis or treatment (July 2018, July 2013)
(1) Rationale: declarant has a motive to be truthful when seeking medical attention.
(2) Elements:
(a) the statement can be made to anyone (usually medical personnel, but not
necessarily);
(b) the statement concerns past or present symptoms or the cause of condition;
(i) The identity of an assailant is not admissible (since usually it is not necessary
for accurate diagnosis or effective treatment). However, the identity of an
abuser in a domestic or child abuse case is generally admissible.
(ii) It cannot be something irrelevant to medical help (“I got into a car accident”
would be admitted, but not “he was negligently driving and hit my car . . .”).
(c) the statement is made for the purpose of diagnosis or treatment.
(i) The statement can be admitted even if it is made to a doctor paid to testify.

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 v) Past recollection recorded (July 2016)
(1) Rationale: This is a long-favored exception that allows witnesses who cannot remember
statements to use a statement that they had personal knowledge at one time in court. A
requirement is “insufficient recollection” so that the person did not simply make the
statement in preparation of litigation.
(2) Elements:
(a) the witness has an insufficient recollection; showing the writing to the witness
fails to jog his memory;
(b) the witness had personal knowledge at a former time;
(c) the writing was either made by the witness or adopted by the witness;
(d) the making or adoption occurred while the event was fresh in the witness’s
memory; and
(e) the witness can vouch for accuracy of writing when made or adopted.
(3) Note: If admitted, the statement may be read into evidence. It is not received as an
exhibit unless offered by the adverse party.

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 (4) Difference between past recollection recorded and refreshing recollection:
Refreshing recollection (tested Feb 2009)—also called “present recollection
refreshed”—does not pose a hearsay problem. For refreshing recollection, if a
witness’s memory fails him, he may be shown a document or item to jog his
memory. He will then testify based on his memory. He may not read the document
into evidence. The adversary has the right to inspect the document, use it on cross-
examination, or introduce it into evidence. However, the item itself is not evidence. It
is only a refresher. The in-court testimony is evidence (that is why it does not pose a
hearsay problem).

vi) Business records (July 2018, Feb 2013, Feb 2008)

(1) Rationale: businesses have incentives to keep accurate records.
(2) Elements:
(a) records of a business of any type (even churches, hospitals, schools),
(b) made in the regular course of business,
(c) made at or about the time of event recorded (“fresh”),
(d) which contains contents that consist of information observed by employees of
the business (“business duty rule”) or the statement falls within an independent
hearsay exception (“hearsay within hearsay”).
(3) Note: The witness need not be author of report. It can be a custodian or other
knowledgeable person to testify as to the above elements.

vii) Public records (Oct 2020)

(1) Rationale: a public official will perform his duty properly.
(2) Elements:

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 (a) Records of a public office or agency setting forth
(i) the activities of the office or agency;
(ii) matters observed pursuant to a duty imposed by law (excluding matters
observed by police officers and other law enforcement personnel in criminal
cases); or
(iii) in civil cases and proceedings against the government in criminal cases,
factual findings resulting from an investigation authorized by law (e.g., OSHA
inspection report) are allowed in unless sources or circumstance indicate
they are untrustworthy.

viii) Learned treatises

(1) Rationale: learned treatises are reliable and if an expert is on the stand, there is little
chance that the learned treatise has been misunderstood or misapplied because the
expert can explain it.
(2) Elements: if reliable, it may be read in as substantive evidence if the expert is on the
stand (and to impeach if used on cross-examination).
(3) Note: it may not be introduced as an exhibit.

ix) Residual catchall exception

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 (1) Rationale: the statement is trustworthy.
(2) Elements:
(a) A statement that is not otherwise covered by a hearsay exception is nevertheless
still allowed into evidence if:
(i) the statement is supported by sufficient guarantees of trustworthiness—
after considering the totality of circumstances under which it was
made and evidence, if any, corroborating the statement; and
(ii) it is more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts.
(b) The proponent has to give notice to the adverse party with a “fair opportunity” to
prepare to meet it.
x) Some other hearsay exceptions include:
(1) Reputation concerning character
(2) Judgment of a previous conviction for a felony offered against the defendant if it was
entered after a trial or guilty plea (not a nolo contendere plea) and it is admitted to
prove any fact essential to the judgment. (An appeal may be shown but does not
affect admissibility.)
(3) A statement in a document that is at least 20 years old and whose authenticity is
established if made before January 1, 1998.
(4) Proving familial relations: a record of a birth, death, or marriage, if reported to a
public office in accordance with a legal duty; or if contained in a regularly kept record
of a religious organization; or if contained in a family record (records in a bible, an
engraving on a ring, an inscription on a portrait, or an engraving on an urn or burial
marker).

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5) Note on animal or machine statements: In order for a statement to be hearsay, it must be made
by a human. The following are not considered to be hearsay: time or temperature displays, an
alarm clock ringing, a dog barking, or the actions of a drug-sniffing dog, etc.

Hearsay on the Multistate Essay Exam

I. Hearsay: how to approach a hearsay issue on the Multistate Essay Exam (mnemonic = DIA)
(Oct 2020, July 2020, Feb 2020, July 2018, Feb 2016, July 2013, Feb 2013, Feb 2011, Feb 2008)

D: Define hearsay: hearsay is “an out of court statement offered to prove the truth of the matter
asserted.”

I: State why it is important to determine if a statement is hearsay: hearsay is not admissible

unless it comes within an exception.

A: Analyze exceptions or exclusions: Some of the tested hearsay exceptions are as follows:
• Excited utterance: an excited utterance is a “statement relating to a startling event or
condition made while the declarant was under the stress or excitement that it caused.” (Feb
2016, July 2013)
• Present sense impression: a present sense impression is “a statement describing or
explaining an event or condition made while or immediately after the declarant perceived it.”
(Feb 2016, July 2013, Feb 2013)
• Statement made for medical diagnosis or treatment: these statements must be made for
and reasonably pertinent to medical diagnosis or treatment and describe medical history,
past or present symptoms or sensations, their inception, or their general cause. (July 2013)
• Business records: A record of “acts, events, conditions, opinions, or diagnoses” is admissible
if it is made “at or near the time” of the event recorded by a “person with knowledge” of the
event. Further, the making of the record must occur in the course of a regularly conducted
business activity, and it must be the regular practice of the business to make the record.
(Feb 2013, Feb 2008)
• State of mind nonhearsay exclusion: If offered to show state of mind and not truth, it is
not hearsay. (Feb 2013)
• Prior statement of identification: a prior statement of identification by a witness who
testifies at trial is considered nonhearsay. (Feb 2016)
• Opposing party’s statement (“party admission”): a statement made by an opposing party
offered against them is not hearsay. (Oct 2020, Feb 2020, July 2016)
• Past recollection recorded: A record that is on a matter that the witness once knew about
but now cannot recall well enough to testify fully and accurately and was made while the
matter was fresh in the witness’s memory. The witness can read the record; it should not be
offered as an exhibit. (July 2016)

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Page | 23 ©JD Advising, Inc. www.jdadvising.com. All rights reserved.
 Verbal act or legally operative words (e.g., defamation, words that show contract formation,
Hearsay Chart etc.)
To prove it
State of mind (e.g., “I’m the Queen of England” to show declarant is mentally incompetent)
was said
(Nonhearsay)
Effect on listener or reader (Tip: this is usually offered to prove motive or intent.)

Why is the Prior statements of a trial witness: (Tip: the declarant must be testifying at trial for these to apply!)
1) Prior statements of identification
statement 2) Prior inconsistent statement (made under oath at a formal trial, hearing, or deposition and defendant is
being offered? at trial subject to cross concerning the statement)
3) Prior consistent statement used to rebut a charge of recent fabrication of improper motive/influence
Nonhearsay

Opposing party’s statement (Tip: Do not make this harder than it is. If a party says something, it can
be used against them without posing a hearsay issue!)
To prove it 1) Any statement made by the opposing party that is offered against that party.
is true 2) Adoptive admissions (statements a person adopts through silence).
3) Agent/employee statements made by the agent offered against the principal during the existence of
the relationship and concerning a matter within the scope of the agency/employment.
4) Statements by co-conspirators made during the course of and in furtherance of the conspiracy.

Hearsay Exceptions

Declarant must be unavailable (invokes a privilege, Declarant can be available or unavailable

is absent from the jurisdiction, ill or dead, lack of
1. Present sense impression: declarant describes or explains
memory, or refuses to testify)
event as it is happening or immediately thereafter.

1. Forfeiture by wrongdoing (witness tampering): party

2. Excited utterance: there is a startling event and declarant
engages in wrongdoing for the purpose of making a witness
makes statement while under the stress of excitement and
unavailable for trial.
statement relates to startling event.

2. Former testimony: declarant is unavailable and had given

3. Then-existing mental, emotional, or physical condition:
testimony at a former proceeding or deposition and it is
declarant states his then existing feelings, physical conditions, or
admitted against a party or someone in privity who had the
intent.
motive and opportunity to develop the statement.
4. Statement made for medical diagnosis or treatment:
3. Statement against interest: declarant is unavailable and declarant makes statement about past or present symptoms or
made a statement he knew was against his interest at the time cause for purpose of diagnosis or treatment.
the statement was made.
5. Past recollection recorded: a witness has insufficient
4. Dying declaration: Declarant is unavailable, the statement recollection of event, but made or adopted a statement when he
was made while he believed death was impending, it concerns had personal knowledge while it was fresh in his memory and
the cause or circumstances of death and it is used in a can vouch for the accuracy of the statement.
homicide or civil case. Tip: memorize these elements!
6. Business records: a record made in the regular course of
business at or about the time the event occurred and that
5. Statement of personal or family history (e.g., birthdate,
contains information observed by employees of the business (or
marriage date)
an independent hearsay exception exists).

Is it a CRIMINAL CASE? If so, if the statement is testimonial, the 7. Public records (made by an agency, but not police reports in
declarant is unavailable, and the defendant had no opportunity criminal cases)
to cross-examine the declarant, the statement will NOT be 8. Learned treatises (read into evidence if an expert is on the stand)
admitted (pursuant to the Sixth Amendment). Tip: it will not 9. Catchall exception (for trustworthy statements)
be admitted even if there is a hearsay exception! 10. Others (reputation about character, familial relations, etc.)

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II. Presentation of Evidence
1) Role of the judge
a) Determining preliminary questions
i) The judge will determine preliminary
questions such as (mnemonic = PAC):
(1) privilege,
(2) admissibility of evidence, and
(3) competency of witnesses.
ii) When deciding a preliminary question, the
judge is not bound by the rules of evidence
(e.g., she can take into account hearsay that
may be inadmissible), but is bound by
privileges.
iii) The court should conduct a hearing on a
preliminary question so that the jury does not
hear it if:
(1) the question involves the admissibility of
a confession,
(2) a defendant in a criminal case is a witness and requests it, or
(3) if justice requires.
b) Questions and comments by the court:
i) A judge can call witnesses on its own or at a party’s request and interrogate the witness.
ii) A judge can comment on the weight of evidence and credibility of witnesses.
c) Limiting instruction: Sometimes evidence is admissible for one purpose and not another. In
such a case, a court may give a limiting instruction to the jury that the evidence can be used
for one purpose but not another (e.g., for impeachment but not for substantive evidence).
2) Introduction of evidence—mode and order
a) Control by court
i) The court should exercise reasonable control over the mode and order of examining
witnesses and presenting evidence so as to make procedures for determining the truth,
avoid wasting time, and protect witnesses from harassment or undue embarrassment.
b) Scope of examination
i) Direct examination: the questioning of a witness by the party who called him or her.
ii) Cross-examination: the questioning of a witness by the opponent.
(1) Cross-examination should only cover:
(a) matters within the scope of the direct examination, and
(b) matters affecting the witness’s credibility.

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 c) Form of questions
i) Leading questions
(1) Definition: leading questions are questions that suggest an answer—e.g., “Isn’t it true
that . . . ?”
(2) Leading questions are allowed on cross examination.
(3) Leading questions are not generally allowed on direct examination except:
(a) to develop preliminary matters.
(b) for youthful or forgetful witnesses, or
(c) for hostile witnesses, an adverse party, or a witness under control of the adverse
party.

d) Objections and offers of proof

i) Objecting to evidence admitted: if evidence is admitted that a party does not think
should be admitted, the party should object or move to strike the evidence as well as
state the specific ground for objection (unless it is apparent).
ii) Offer of proof: if the judge excludes the evidence, the party can inform the court of its
substance by an “offer of proof,” which is not heard in the presence of the jury.

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 iii) Error in admitting evidence: Sometimes evidence is admitted at trial because of an error
by the court and the losing party will appeal on those grounds. The question on appeal is
whether the admission of evidence was a “harmless” error or “plain” error.
(1) Harmless error—the appeal will be rejected if an error is considered to be a
harmless error.
(a) Ex.: The judge allows a hearsay statement offered by the plaintiff to be used for the truth of the
matter in a civil case. The defendant appeals after his objection to the evidence is overruled.
The appellate court finds that admitting the statement was an error but that the defendant
would have lost the case regardless of whether the evidence was admitted. This is a harmless
error and the appeal will be rejected.
(2) Plain error—the decision will be reversed. A court may take notice of a plain error
affecting a substantial right, even if the claim of error was not properly preserved
(e.g., there was no objection raised).

(a) Ex.: A confession found to be involuntary was admitted into evidence against the defendant.
This confession formed the basis of the prosecution’s case against the defendant. The
defendant was convicted and appealed. This is a plain error.
iv) Standard on review: The judge will only reverse the lower court’s decision if the lower
court abused its discretion. Thus, an appellate court uses an “abuse of discretion”
standard. (Feb 2009)
e) A note on the completeness rule: When a party introduces part of a writing or transaction,
the other party can ask that the rest of it be introduced as well if it, in fairness, ought to be
considered contemporaneously with it. Note that by introducing the original part of the
writing or transaction, the party initially offering the writing has waived any objections based
on hearsay, competency, etc.
3) Burdens and presumptions
a) Burdens
i) Burden of production
(1) This is the burden to produce evidence. Initially, this burden is on the plaintiff, but it
may switch (e.g., if she properly supports a motion for summary judgment based on

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 no genuine issue of material fact, then it is the defendant’s burden to produce
evidence to show that there is a genuine issue of material fact).
ii) Burden of persuasion (many times called “burden of proof”)
(1) This is determined by the jury after all of the evidence is heard.
(2) Three levels (from hardest to meet to easiest to meet)
(a) ______________________________________________9: The prosecutor must show the
elements of the crime are present beyond a reasonable doubt. This is the
highest standard and it is used in all criminal cases.
(b) _________________________________________________10: Plaintiff has the burden to
prove that there is a high probability that the fact exists. This is used in some civil
cases.
(c) _______________________________________________11: Plaintiff has the burden to
prove a fact is more probably true than not true. This is the standard in most civil
cases.

b) Presumptions
i) A “presumption” means that a certain fact is assumed unless the other side provides
evidence to the contrary.
ii) Examples:
(1) Ex.: Every person is presumed sane unless contrary evidence is shown.
(2) Ex.: A person is presumed dead in an action involving his property, if he is inexplicably absent for a
continuous period of seven years and has not been heard from.
iii) Criminal case: A “presumption” of fact is merely a permissible inference. The judge may
not tell the jury that the jury “must” find a presumed fact against the accused.
iv) Civil case: In a civil case, the party against whom a presumption is directed has the
burden of producing evidence to rebut the presumption. However, this does not shift
the burden of persuasion, which remains on the party who had it originally.

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4) Judicial notice
a) Judicial notice of an adjudicative fact
i) The court may judicially notice a fact that is not subject to reasonable dispute because
(1) it is generally known within the trial court’s territorial jurisdiction, or
(a) Ex.: ______________________________________________________________________________.12
(b) Ex.: ______________________________________________________________________________.13
(2) it can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
(a) Ex.:______________________________________________________________________________.14
(b) Ex.: ______________________________________________________________________________.15
(3) ***Note: A judge cannot take judicial notice of a fact just because the judge
happens to be aware of it if it does not fall into one of the exceptions above.
(a) Ex.: ________________________________________________________________________________
_________________________________________________________________________________.16

b) Judicial notice of the law

i) Mandatory judicial notice: most courts take judicial notice of federal and state laws.
ii) Permissive judicial notice: courts are permitted to take judicial notice of municipal
ordinances and the laws of foreign countries.
c) How the court may take notice: the court may take judicial notice either on its own or upon
the request of a party.
d) When the court may take judicial notice: at any stage of the proceeding (even for the first
time on appeal).

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 e) Instructing the jury
i) In a civil case, the court must instruct the jury that they must accept the noticed fact as
conclusive.
ii) In a criminal case, the court must instruct the jury that it may or may not accept the
noticed fact as conclusive.

III. Evidence: Types, Relevancy, Authentication, and the Best

Evidence Rule
1) Types of evidence
a) Direct evidence: relies on actual knowledge.
i) Ex.: On the issue of whether Paul left work early, Deborah testifies that she was at work and noticed that
Paul left at 12:00 PM and did not come back.
b) Circumstantial evidence: relies on inference
i) Ex.: On the issue of whether Paul left work early, Deborah testifies that she called Paul’s office several
times after noon and he never answered, nor did he call Deborah back.

c) Real and documentary evidence:

i) Real evidence: physical evidence, such as the knife that was used in an attack.

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 ii) Documentary evidence: written evidence, such as a contract.
d) Demonstrative evidence (evidence addressed “directly to the senses without intervention of
testimony”): It is admissible if it bears substantial similarity to an issue of fact involved in a
trial. Examples include: photos, videos, simulations, and models.
e) Experimental evidence: When an experiment performed in court is offered to prove an
argument. An example would be simulating an accident. The court can admit the evidence if
the tests were conducted under conditions substantially similar to the actual conditions.
2) Relevancy and probative value of evidence (Feb 2020,
July 2018, Feb 2013, Feb 2012, Feb 2010)
a) Relevancy
i) Relevancy defined: evidence is relevant if it has
any tendency to make a fact more or less
probable than it would be without the
evidence, and the fact is of consequence in
determining the action.
ii) Admissibility: Irrelevant evidence is not
admissible. All relevant evidence is admissible
unless:
(1) there is a statute or rule that says
otherwise; or
(2) the probative value is substantially outweighed by a danger of one or more of the
following (“403” test): unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.
(a) Note: this balancing test favors admitting the evidence.

(b) Ex.: If a defendant states his confession is inadmissible because, say, it violates Miranda, the
court should conduct a hearing on the admissibility of the evidence outside of the presence of
the jury. Otherwise, it is overly prejudicial.

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3) Authentication and identification (July 2020)
a) To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.
i) Note: The proponent does not have to prove by a preponderance of evidence” that
something is what the proponent says it is. This is a low bar!
b) Examples of evidence that satisfy this requirement:
i) Testimony by a witness with knowledge—testimony that an item is what it is claimed to
be by someone who has knowledge.
(1) Ex.: If a prosecutor claims that a specific gun was held to Patti’s head, Patti can authenticate it by
saying that the gun in the courtroom is the same one that was held to her head.

(2) Chain of custody: if evidence is likely to be confused or tampered with (e.g., drugs),
then the proponent must show that the object has been held in an unbroken chain
of possession (from the taking of the sample, the testing of it, etc.).
ii) Handwriting—There are three ways to authenticate a person’s handwriting:
(1) A lay witness who was familiar with the handwriting before the litigation (and did
not acquire this familiarity solely for the current litigation) can testify the handwriting
is genuine.
(2) An expert witness can testify the handwriting is genuine (by comparing the writing).
(a) Ex.: The genuineness of the signature on three birthday cards signed by the person in question
could be established by nonexpert opinion if the nonexpert was familiar with the person’s
signature. Or it could be established by an expert witness or the trier of fact.
(3) The trier of fact (e.g., jury) may compare the handwriting with an authenticated
specimen.

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 iii) Voice—an opinion identifying a person’s voice, whether heard firsthand or on a
recording, can be used to authenticate the alleged speaker’s voice even if the person
acquired familiarity with the voice solely for the purpose of litigation.
iv) A telephone conversation. A telephone conversation may be authenticated by:
(1) showing that the call was made to a particular person if circumstances (including
self-identification) show that the person answering was the one called, or that the
call was made to a particular business if the call related to business reasonably
transacted over the telephone;

(2) showing a particular person disclosed knowledge of facts known peculiarly to him;

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 (3) showing the response was in reply to a duly authenticated one (“reply doctrine”); or

(4) showing language patterns (these may indicate authenticity or its opposite).

v) Photograph—a witness authenticates a photograph by testifying that, based on his or

her personal knowledge, the photograph is a “fair and accurate representation” of what
is portrayed in the photograph.

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 (1) Note: _______________________________________________________________________________.17
(2) Note on unmanned surveillance cameras:
____________________________________________________________________________________________________
________________________________________________________________________________________
_____________________________________________________________________________________.18

vi) Ancient documents—An ancient document is

authenticated if:
(1) it is in a condition that creates no suspicion about its
authenticity;
(2) it is in a place where, if authentic, it would likely be;
and
(3) it is at least 20 years old when offered.
vii) Public records—evidence that a document was recorded
or filed in a public office as authorized by law, or a
purported public record or statement is from the office
where items of this kind are kept.
viii) Self-authenticating documents—The following are self-
authenticating and do not require further authentication:
(1) Official publications (book, pamphlets, etc. issued by a
public authority)
(2) Certified copies of records filed in a public office
(3) Newspapers and periodicals
(4) Trade inscriptions and the like (signs, tags, labels)
(5) Acknowledged documents (a document that has certification by a notary public)
(6) Commercial paper and related documents

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4) Contents of writings, recordings, and photographs: the best evidence rule (July 2020)
a) When do you need a document or writing under the best evidence rule to prove that
something happened?
i) In general, an event may be proved by non-documentary evidence, even though a
written record of it was made. One only needs to present documentary evidence (that is,
the original writing or a duplicate) of an event when the party is seeking to prove the
contents of a writing. This means that:
(1) the writing is a legally operative document, or
(a) Examples include a will, written contract, deed, mortgage, lease, a movie or
photograph in an obscenity action, written libel, and the copyrighted material in
a copyright action.
(2) the witness is testifying to facts she learned solely from reading about in a writing or
watching in a video and that witness has no independent knowledge of the events.
(a) Ex.: Wendy wants to testify that she bought a $300.00 vacuum cleaner on June 16, 2014, her
birthday. Does she need to produce the receipt? ____________________________________________________
_______________________________________________________________________________________________________.19
(b) Ex.: Tom wants to testify that he worked 40 hours last week and made $800 total. Does he need
to produce his time sheets or his paycheck? _________________________________________________________
_______________________________________________________________________________________________________.20
(c) Ex.: Gloria wants to testify that the divorce decree granted her all of the real property owned
during the marriage. Does she need to offer into evidence the actual judgment of divorce?
__________________________________________________________________________________________________________
_______________________________________________________________________________________________________.21

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 (d) Ex.: Edward wants to testify that he saw a video of a bank robbery and the robber looked just
like the defendant. Does he need to introduce the film as the best evidence?
_______________________________________________________________________________________________________.22
(e) Ex.: Same as above except Edward actually witnessed the bank robbery himself and wants to
testify that the bank robber looks just like defendant. Does he need to introduce the film as the
best evidence?_______________________________________________________________________________________.23

b) Requirement of an original writing

i) An original writing, recording, or photograph is required in order to prove its contents
unless the federal rules or a federal statute provides otherwise.
ii) However, a duplicate (an exact copy of the original, such as a photocopy) is admissible to
the same extent as the original unless
(1) a genuine question is raised about the original’s authenticity, or
(2) the circumstances make it unfair to admit the duplicate (e.g., if the photocopy or fax
cut off part of the document or it was unclear).
iii) When is an original (or duplicate) not required?
(1) If it was lost or destroyed without bad faith,
(2) if an original cannot be obtained by any judicial process (e.g., subpoena), or
(3) if it is not closely related to a controlling issue.

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 iv) Summaries: To prove the content of voluminous writings, recordings, or photographs
that cannot be conveniently examined in court, the proponent may use a summary,
chart, or calculation. However, the proponent must allow the other parties to examine or
copy the originals or duplicates and the court may order them to be produced.
c) Jury decisions
i) Ordinarily a judge will determine the admissibility of documents. The jury will determine
the following issues:
(1) whether the original of a writing, recording, or photograph existed;
(2) whether the writing, recording, or photograph is the original; and
(3) whether the evidence offered accurately reflects the contents of the original.

IV. Witnesses
1) Requirement of knowledge and oath
a) A witness must have knowledge of the matter that she testifies about. (Feb 2011, Feb 2010)
i) A lay witness must have personal knowledge (that is, it must be something she saw,
heard, or observed). A witness’s personal knowledge can be established by her own
testimony.
ii) An expert witness does not need personal knowledge but can instead testify based on
facts he has been made aware of at trial or through some other means.
b) Oath or affirmation: a witness must make an oath or affirmation to testify truthfully.

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 i) Ex.: A witness likely does not have to swear or affirm to tell the truth if it goes against her religious
beliefs. She can promise to tell the truth and recognize that she is subject to penalties if she commits
perjury.

2) Competency of witnesses
a) In general: every person is competent to be a witness unless the rules provide otherwise.
i) Things like religious beliefs, conviction of crime, age, mental capacity (to a point), and
connection with the litigation as an interested person do not mean a witness is
incompetent!
ii) Interpreters are competent to testify so long as they are qualified as experts and give an
oath or affirmation to make a true translation.
b) Who may not testify:
i) A presiding judge: The presiding judge may not testify as a witness at the trial. A party
does not need to object to preserve the issue.
ii) A juror:
(1) General rule: a juror may not testify as a witness before the jury that he is a member
of.
(2) Testifying during an inquiry into the validity of a verdict or indictment:
(a) In general, a juror may not testify about any statement made or incident that
occurred during the jury’s deliberations.
(b) Exceptions: A juror may testify about whether:
(i) extraneous prejudicial information was improperly brought to the jury’s
attention,

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 (ii) an outside influence was improperly brought to bear on any juror (e.g., a
bribe or threat), or
(iii) a mistake was made in entering the verdict on the verdict form.

c) Diversity cases: state law applies to diversity cases on witness competency

i) Dead Man Acts
(1) Federal rules do not recognize Dead Man Acts.
(2) Where state law governs in federal court (on a diversity case) and a state recognizes
a Dead Man Act, the following rule applies:
(a) Elements:
(i) In a civil action,
(ii) an interested witness is incompetent to testify in support of her own
interest,
(iii) against the decedent (or his estate or those who claim under him),
(iv) concerning communications or personal transactions between the
interested witness and the deceased person,
(v) unless the estate representatives waive the protection of the statute.
1. This could occur if the party testifies about the transaction herself, calls
the individual to testify, or fails to object in a timely manner.
(b) Purpose: To eliminate perjured testimony against the estate. Since the “dead
man” cannot testify, the living person who wants to protect her own interest also
cannot testify.
(c) Ex.: Elizabeth and Henry’s aunt owned a substantial amount of stock. The aunt left all of the
stock to Henry in her will. Elizabeth alleged that she dissuaded her aunt from changing her will
and giving half the stock to Elizabeth in exchange for Henry’s promise to give Elizabeth half the

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 stock. The aunt died. Henry received all the stock. Then Henry died without a will. Can Elizabeth
testify as to her conversations with Henry if the state recognizes a Dead Man’s Act?
_______________________________________________________________________________________________________.24

3) Lay opinions (July 2018, Feb 2011, Feb 2010)

a) A lay witness’s opinion is admissible if it is:
i) rationally based on the witness’s perception;
ii) helpful to determining a fact; and
iii) not based on scientific, technical, or other
specialized knowledge.
b) Examples of commonly accepted lay witness
testimony:
i) value of one’s own land or services;
ii) if someone is strong or weak, sad or happy, drunk
or sober, sane or insane;
iii) odors, tastes, colors; and
iv) speed of a vehicle. (Feb 2010)
c) Examples of what is not accepted lay witness
testimony: ___________________________________.25
i) Ex.: “The defendant was contributorily negligent” or “A
contract was made.”
4) Expert witnesses (July 2018)
a) General rule: A 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:
i) it is helpful to the trier of fact, and
ii) it is based on sufficient facts or data.

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 (1) This means that the expert bases his/her opinion on one of three things: (mnemonic
= PIN)
(a) personal knowledge of the facts or data;
(i) Ex.: _________________________________________________________________________.26
(b) facts that are in the record and made known to the expert by a hypothetical
question or testimony at trial; or
(c) facts that are not in the record if they are the kind of facts other experts would
reasonably rely on.
(i) However, if the statements themselves are inadmissible (e.g., hearsay), they
cannot be revealed unless:
1. they are offered into evidence by the adverse party; or
2. the proponent of the evidence shows that their probative value in
helping the jury evaluate the expert’s opinion substantially outweighs
their prejudicial effect. (This is a reverse 403 test!)
a. In such case, the trial judge must give a limiting instruction upon
request, informing the jury that the underlying information must not
be used for substantive purposes.

(ii) Ex.: An expert determines that a dangerous bacteria that grew in yogurt sold by Yogurt Co.
gave rise to the patient’s illness. May the expert testify that his opinion is based on his own
inspection of the yogurt? ______________________________________________________________________.27

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 May the expert testify that his opinion is based on what he learned during the course of the
trial about the texture and smell of the yogurt on the day the patient had eaten it?
__________________________________________________________________________________________________.28
May the expert testify that his opinion is based on statements that the patient’s family had
told him about how the patient was acting on the day he had eaten the yogurt (if this is the
type of information that experts like him would rely upon)?
_____________________________________________________________________________________________________
__________________________________________________________________________________________________.29
iii) Note: An expert does not need to admit into evidence independent proof of the sources
of knowledge that qualify the witness as an expert in the first place. The court can
determine if the expert has sufficient experience, training, and education.
iv) Ex.: A vertebrate biologist will likely not be able to offer testimony about psychology and medicine since
she is not qualified to speak on such matters.
v) Ex.: Ralph, an employee in human resources who “has no experience related to harassment claims” and
only has experience limited to benefits administration, is not qualified to testify as an expert that it was
likely that a plaintiff was harassed.
b) Necessity of reliability: the testimony must be the product of reliable principles and methods
which the expert has reliably applied to the facts of the case.
i) Trial courts are “gatekeepers” that will decide whether evidence is reliable by looking at
the Daubert factors (a nonexclusive list of factors for courts to use in assessing the
reliability of scientific expert testimony): (mnemonic = TREAT)
(1) Tested: whether the expert's technique or theory can be or has been tested;
(2) Rate of error: the known or potential rate of error of the technique or theory when
applied;
(3) Existence and maintenance of standards and controls concerning its operation;
(4) Acceptance: whether the technique or theory has been generally accepted in the
scientific community; and
(5) Technique or theory subject to peer review: whether the technique or theory has
been subject to peer review and publication.

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 c) Ultimate issue testimony
i) In general: It is not automatically objectionable. An opinion is not objectionable just
because it embraces an ultimate issue.
ii) Exception: in a criminal case, an expert witness must not state an opinion about
whether the defendant did or did not have the requisite mental state required by the
crime or defense.
(1) Ex.:___________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.30

5) Exclusion of witnesses: At a party’s request, a court must order a nonparty witness to be

excluded so that they cannot hear the other witness’s testimony. (A court may also do this on its
own.) However, a court cannot authorize excluding:

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 a) a party,
b) a person whose presence is essential to presenting the party’s claim or defense, or
c) someone authorized to be there by statute.

V. Impeachment and Rehabilitation

1) Any party may impeach a witness (even the party that called the witness). (July 2014, Feb 2010,
Feb 2009, Feb 2008)
2) There are seven ways to impeach a witness:

a) Prior inconsistent statements (Feb 2011, Feb 2008)

i) If a witness makes a prior statement that is inconsistent with her testimony at trial, it
may be used for impeachment (not necessarily substantive evidence).
(1) Note: It can be used as substantive evidence too if it falls into a hearsay exception or
exclusion (that is, it was made under oath during a formal hearing, proceeding, trial,
or deposition—discussed above—or if it is an opposing party’s statement, etc.).
ii) Extrinsic evidence may be used only if the witness is given an opportunity to explain or
deny the statement at some point. This does not apply:
(1) when the witness is the ____________________________________________________________.31
(2) when the witness is not in court at all (e.g., a statement made by a hearsay declarant
that never testifies), or
(3) when the interests of justice require (a witness left the stand, the statement was
discovered, and the witness is now unavailable).

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 b) Bias and interest (Feb 2020)
i) If a witness has reason to be biased (e.g., he is a family member, friend, or enemy of a
party, paid by the party, or granted immunity), then that can be used to suggest the
witness has motive to lie.

ii) The witness must be confronted with the alleged bias while she is on the stand.
iii) Extrinsic evidence may be used only after the witness is first asked about the bias and
only if the witness denies the facts that suggest the bias.

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 c) Conviction of a crime (Feb 2020, July 2014)
i) Whether the conviction can be used depends on (NAD): the nature of the crime, the
amount of time that has passed, and (only in criminal cases) whether the “witness” is the
defendant.
(1) Nature of the crime—Convictions that can be used:
(a) Convictions of crimes (felonies or misdemeanors) of dishonesty
(i) These are convictions of any crime as to which the prosecution is required to
prove an act of dishonesty or false statement as an element of the crime.
1. This crime can be a felony or misdemeanor.
2. It is automatically admissible. The trial court does not have any discretion
to disallow such convictions (however, they are subject to the 10-year
rule, below).
a. Examples of what qualifies:
___________________________________________________________________________________________
________________________________________________________________________________________.32
b. Examples of what does NOT qualify:
________________________________________________________________________________________.33

(ii) Conviction of any felony

1. A felony is a crime punishable by prison for more than a year or death.
2. However, the court may exclude the felony conviction from evidence if it
does not meet the defendant-friendly “balancing test” below:
a. When the witness is the defendant in a criminal case: the
prosecution has to show the probative value outweighs its prejudicial
effect to the defendant.

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 b. When the witness is not the defendant: the court has discretion to
exclude the conviction if the probative value is substantially
outweighed by the danger of unfair prejudice.

(2) Amount of time: The “10 year” rule states that if more than 10 years have passed
since the witness’s conviction or release from confinement for it, whichever is later,
evidence of the conviction is generally not admissible unless:
(a) the proponent can show its probative value substantially outweighs its
prejudicial effect, and
(b) the proponent gives an adverse party reasonable written notice of the intent to
use it so that the party has a fair opportunity to contest its use.

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 (3) Conviction required: an arrest or indictment does not suffice.
(4) Pendency of an appeal: A conviction that satisfies this rule is admissible even if an
appeal is pending. Evidence of the pendency is also admissible.
(5) Pardon from conviction: if a witness has been pardoned because he was found
innocent, the conviction is no longer admissible to impeach.
(6) Method of proof: Extrinsic evidence is permitted. The attorney can ask the witness to
admit it or introduce the record (no confrontation is required).
(7) Ex.: A prison inmate wants to file a charge against the prison for violating his constitutional rights.
Can any of the convictions come into evidence? (July 2014)
(a) Twelve years ago, he was convicted of felony distribution of marijuana. He served a three-year
sentence and was released nine years ago. ________________________________________________________34

(b) Eight years ago, he plead guilty to perjury, a misdemeanor. _____________________________________35

(c) Seven years ago, he was convicted of felony sexual assault of his daughter and is currently
serving a 10-year term.______________________________________________________________________________36
d) Specific instances of conduct—“bad acts” that are probative of truthfulness (July 2014,
Feb 2009)
i) On cross examination, a party may inquire into specific acts of misconduct if they are
probative of the character for truthfulness or untruthfulness.
(1) Such a bad act may be: filing a false tax return, forgery, or lying about something
such as age, etc. Bar Exam Tip: remember that the specific act must relate to
truthfulness.
ii) The prosecution must ask in good faith.
iii) The bad act cannot be too remote in time.
iv) Extrinsic evidence is not admissible to prove specific instances of misconduct.

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 (1) Ex.: Dan testifies that Laura, the defendant, did not commit a crime. On cross examination, the
prosecutor asks Dan, “Isn’t it true that you cheated on your math test last year?” Is this
admissible?__________________________________________________________________________________________________
____________________________________________________________________________________________________________.37
(2) Ex.: If Dan says no to the above question, can the prosecutor say, “Here’s the math test!” and offer
the math test into evidence? _______________________________________________________________________________
____________________________________________________________________________________________________________.38
(3) Ex.: Dan testifies that Laura did not commit the crime. On cross examination, the prosecutor asks
Dan, “Isn’t it true you got into a bar fight last night?” Is this admissible?
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.39
(4) Ex.: Dan testifies that Laura did not commit the crime. On cross examination, the prosecutor asks
Dan, “Isn’t it true you were charged with tax fraud?” Is this admissible?
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.40
e) Reputation or opinion for untruthfulness (Feb 2011)
i) A party may call its own character witness to testify that the witness in question has a
bad reputation for truthfulness or if, in the character witness’s opinion, the witness in
question does not have a truthful character.
(1) The witness is considered extrinsic evidence.
(2) The witness cannot testify as to specific facts.
ii) Confrontation is not required.

f) Sensory deficiencies: ability to observe, remember, or relate accurately.

i) Anything that concerns the witness’s perception or memory can be used to suggest the
witness is mistaken—e.g., if the witness is deaf, blind, has a bad memory, etc.
ii) Confrontation is not required.
iii) Extrinsic evidence is allowed.

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 g) Contradiction
i) A witness may be impeached during cross examination if he or she made a mistake or
lied about anything she said during direct examination.
(1) If the witness admits her mistake, she has been impeached.
(2) If the witness does not admit her mistake, extrinsic evidence may be used to prove
that she contradicted herself as long as the fact at issue is not a collateral fact.

3) A few notes on impeachment:

a) Religious beliefs or opinions cannot be used to impeach a witness!
b) Note on confrontation: one must only “confront” the witness first for bias.
c) Note on extrinsic evidence: extrinsic evidence may be used to prove all of the impeachment
methods except prior bad acts and collateral contradictory facts.
4) Rehabilitation of impeached witnesses
a) Evidence of truthful character is admissible only after the witness’s truthfulness is attacked.
i) Ex.: If Wanda Witness testifies that the defendant did not spill that hot coffee on the customer, can
William Witness testify that “Wanda has a good reputation for honesty.”? ________________________________.41

Can William testify, “Wanda has been saying that all along”? ______________________________________________.42

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Impeachment What is it? Is extrinsic evidence permitted? Is
(E.g., is outside evidence confrontation
permitted to prove that the (asking the
statement was made or that the witness about
event occurred?) it) permitted
or required?
Prior If a witness makes a prior statement that is inconsistent Extrinsic evidence may be used only if Permitted.
inconsistent with her testimony at trial, it may be used for the witness is given an opportunity to
impeachment. Bar Exam Tip: it may also be used as explain or deny the statement at some
statements
“substantive evidence” (that is, the truth of the point. This does not apply if the witness
matter asserted) if it falls within a hearsay is the opposing party, not in court at all,
exclusion—e.g., prior inconsistent statement or an or if the interests of justice require.
opposing party’s statement.
Bias If a witness is a family member, friend or enemy of a Extrinsic evidence may be used only after Required.
party, paid by the party, granted immunity, or if other the witness is first asked about bias and
circumstances show bias, then that can be used to if the witness denies the facts that
suggest the witness has motive to lie. suggest the bias.
Conviction of a There are two categories of convictions that are allowed Extrinsic evidence (the conviction) is Permitted.
crime into evidence under the federal rules: permitted.
(1) Felony or misdemeanor convictions where the
Note: If more than 10 years have passed
prosecution is required to prove an act of dishonesty
since the witness’s conviction or release
or false statement as part of the crime are automatically
from confinement for it, whichever is
admitted.
later, evidence of the conviction is not
(2) Felony convictions, provided they meet a balancing admissible.
test that weighs the probative value and prejudice.

Specific instances If a witness engaged in a “bad act” that is probative of Not permitted! If the witness denies the Required.
of misconduct truthfulness (e.g., lying, cheating), he may be questioned misconduct, evidence is not admissible to (Getting the
about it on the stand. prove that it occurred. witness to admit
it is the only way
to prove the act.)
Sensory Anything that concerns the witness’s perception or Permitted. Permitted.
deficiencies memory can be used to suggest the witness is
mistaken—e.g., if the witness is deaf, blind, has a bad
memory, etc.
Contradiction A witness may be impeached during cross examination If the witness will not admit her mistake, Required. (One
if she made a mistake about or lied about anything she extrinsic evidence may be used as long must confront
said during direct examination. as the fact at issue is not a collateral the witness prior
(irrelevant) fact. to offering
extrinsic
evidence.)
Reputation or A party may call its own character witness to testify that The witness is extrinsic evidence. Permitted.
opinion for the witness in question has a bad reputation for
untruthfulness truthfulness or if, in the character witness’s opinion, the
witness is not truthful.
Rehabilitation: evidence of truthful character is admissible only after the witness’s truthfulness is attacked.

VI. Character and Related Concepts

1) Admissibility of character: It comes up in three situations:
a) Situation #1: witness’s bad character for truthfulness to impeach the witness (see above).

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 b) Situation #2: in civil cases, it is admissible when character is an essential element of the
case. (Feb 2010)
i) When is character an essential element of the case?
(1) Criminal proceedings: it is never an essential element in criminal proceedings.
(2) Civil proceedings: It is an essential element in cases involving:
(a) negligent entrustment or hiring,
(b) defamation,
(c) child custody.
(i) Ex.: Pam sues Archer for driving negligently. Archer seeks to offer evidence that he is an
extremely careful person into the record. May he do so?_______________________________________
_____________________________________________________________________________________________________
__________________________________________________________________________________________________.43
(3) What is the method of proving character in this instance?
(a) Reputation
(b) Opinion
(c) Specific acts
ii) Besides the above three scenarios, remember that character evidence is inadmissible to
prove that someone acted in accordance with their character at the time of the event.

c) Situation #3: in criminal cases to prove conduct in accordance with character at the time
the event occurred (Feb 2020, Feb 2016, Feb 2011, Feb 2010)
i) Criminal case: generally, character is inadmissible in the prosecutor’s case in chief to
prove that the defendant acted in conformity with his own character.

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 ii) However, the defendant in a criminal case may introduce evidence of a pertinent
(relevant) character trait to prove he acted in conformity with his character at the time in
question.
(1) He can do this only by witness’s testimony as to his:
(a) reputation, or
(b) opinion about him.
(2) Note: the witnesses for the defense cannot discuss specific acts.
(3) Note: the defendant does not put his general character in issue simply because he
testifies (he does, however, put his credibility—and therefore character for
truthfulness—at issue).
(4) Note: the defendant can also offer into evidence the victim’s pertinent trait and the
prosecution may rebut it or offer evidence of the defendant’s same trait using
reputation or opinion evidence.

iii) After the defendant “opens the door” by putting his character in issue, the prosecutor
can then rebut the defendant’s testimony in one of three ways:
(a) Reputation: calling its own witnesses to testify about the defendant’s reputation.
(b) Opinion: calling its own witnesses to testify about their opinion to contradict
defendant’s witnesses.
(c) Specific acts: cross examining the defendant’s witnesses by asking about
specific acts.
(i) The purpose is to impeach them.
(ii) The prosecution will ask questions like, “Have you heard . . . ?” or “Did you
know . . . ?”
(iii) However, if the defendant’s witness does not admit that a specific act
occurred, no extrinsic evidence may be offered to prove it.
iv) Examples: Ashley is prosecuted for battery after she hits someone in a bar fight.

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 (1) Ex.: The prosecution wants to call a witness to testify during its case-in-chief that Ashley is a very
violent person and she acted in conformity with her character on the night in question. Is this
admissible?_______________________________________________________________________________________________.44
(2) Ex.: Ashley’s sister, Danielle, wants to testify in her defense that “I know Ashley to be a very peaceful
person. She even started a pro-peace club in college.” Is this admissible?_______________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.45
(3) Ex.: Ashley’s sister, Danielle, wants to testify in her defense that, (a) “Ashley has a reputation for
being very patriotic,” (b) “Ashley is very honest,” and (c) “Ashley is a good sister.” Are any of these
statements admissible? _____________________________________________________________________________________
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.46
(4) Ex.: Ashley’s sister, Danielle, testifies that Ashley is a very peaceful person. The prosecution then
cross examines Danielle and asks, “Did you know that she was in fact in a fight just one week ago
when a Starbucks employee gave her the wrong drink?” Is this admissible? If so, for what purpose?
____________________________________________________________________________________________________________.47
(5) Ex.: If Danielle says “no” to the above question, can the prosecutor prove that Ashley was in fact in a
fight at Starbucks by calling the employee in question or using a videotape?___________________________
____________________________________________________________________________________________________________.48
(6) Ex.: After Danielle testifies, can the prosecutor call a witness to testify that Ashley has a reputation
for being violent or that, in the witness’s opinion, Ashley is violent?___________________________________.49
(7) Ex.: Ashley is sued for battery by the person she hit. Danielle wants to testify that “I know Ashley to
be a very peaceful person.” Is this admissible?____________________________________________________________
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.50

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 d) There are special character evidence rules for three kinds of cases—self-defense cases,
homicide cases, and sexual misconduct cases.
i) Special rule for self-defense cases
(1) The criminal defendant may introduce the victim’s violent character to prove that
the victim acted in conformity with their character (that is, as circumstantial evidence
that the victim was the initial aggressor).
(a) He can do this by reputation or opinion.
(2) The prosecution may rebut by introducing:
(a) Reputation or opinion evidence of the victim’s good character.
(b) Reputation or opinion evidence of the defendant’s character for violence.
(3) However, if the defendant was aware of the victim’s reputation or some specific acts
of violence, that awareness may be used to prove that the defendant acted
reasonably in defending himself. It is showing the defendant’s mental state.

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 ii) Special rule for homicide cases: in a homicide case, the prosecutor may offer evidence
of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first
aggressor (however proved).
(1) Ex.: Bob and Dan are at a fight in the bar. Dan is
prosecuted for battery. Dan says that Bob is the one that
started it and he was simply defending himself. Can Dan
admit into evidence Bob’s reputation for violence?
______________________________________________.51
(2) Ex.: Can Dan testify that he responded to Bob’s actions in
a severe manner because he knew at the time that Bob
had shot the last person he was in a minor fight with
without warning?
____________________________________________________________.52
What if Dan only learned about the fact that Bob shot
someone without warning at the time of trial, can he
offer that into evidence?
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.53
iii) Sexual misconduct cases
(1) Special rule on sexual misconduct case—victim’s sexual disposition (Feb 2012)
(a) Evidence to prove victim engaged in other sexual behavior or evidence offered
to prove the victim’s sexual disposition is not admissible in a civil or criminal
proceeding unless one of the exceptions applies:
(i) In a criminal case:

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 1. evidence of specific instances of a victim’s sexual behavior can be offered
to prove someone other than the defendant was the source of semen,
injury, or other physical evidence;
2. specific instances of a victim’s sexual behavior with defendant to prove
consent; and
3. evidence whose exclusion would violate the defendant’s constitutional
rights (“love triangle”).
(ii) In a civil case, evidence is generally not admissible. However, there are
narrow exceptions: (Feb 2012)
1. The court may admit evidence offered to prove a victim’s sexual behavior
or sexual predisposition if its probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any party.
a. Ex.: Evidence of past sexual relations should be admitted if woman claims she
believes in abstinence before marriage and never had prior sexual relationships.
The probative value substantially outweighs the danger of unfair prejudice. (Feb
2012)
2. The court may admit evidence of a victim’s reputation only if the victim
has placed it in controversy.
(2) Special rule for cases about prior sexual misconduct of a defendant
(a) In a criminal or civil case in which a defendant is accused of a sexual assault or
child molestation, the court may admit evidence that the defendant committed
any other sexual assault or child molestation. The evidence may be considered
on any matter to which it is relevant including that he acted in accordance with
his character.
(b) The prosecution or plaintiff can offer in specific acts—not reputation or opinion.
(c) Disclosure to the defendant: the prosecution or plaintiff must disclose that it
intends to offer this evidence to the defendant, including witnesses’ statements
or a summary of the expected testimony, at least 15 days before trial or at a later
time that the court allows for good cause.
2) Distinguish from character evidence: habit and routine practice (July 2018, Feb 2010)
a) Evidence of a person’s habit or an organization’s or business’s routine practice may be
admitted to prove that on a particular occasion the person or organization acted in
accordance with the habit or routine practice. This evidence may be admitted regardless of
whether it is corroborated or whether there was an eyewitness.
b) Definition of habit: Habit is a regular response to a particular set of circumstances. Examples
include:
i) A person takes the stairs two at a time.
ii) A person leaves for work every day at 9:00 AM.
c) Habit evidence is admissible in both civil and criminal cases.
d) Habit evidence is different from character evidence.

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 i) Ex.: Example of habit evidence vs. character evidence: Ashley has two glasses of wine every night at 9:00
PM with her boyfriend at her boyfriend’s house. This can be used to show:
____________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________.54
ii) Ex.: Same as above except what if an eyewitness saw that Ashley was out driving at 9:00 PM (far from her
boyfriend’s house) so she could not have possibly been at her boyfriend’s house. Can a witness still testify
as to Ashley’s habit?
____________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________.55
iii) Ex.: AJ is charged with driving under the influence of alcohol. At his trial, a witness wants to testify that he
saw AJ drink frequently at various bars in the last couple of months, that he staggered out to his car a
couple of times, and that he drank two weeks ago and then drove home. Is this admissible habit
evidence? _________________________________________________________________________________________________________
_________________________________________________________________________________________________________________.56
(1) Bar Exam Tip: if it is something that describes a person in one word (rather than
a person’s response to a particular set of circumstances), especially if the word
has moral implications (“careless,” “reckless,” “drunkard”) it could very well be
inadmissible character evidence rather than habit.
(2) Bar Exam Tip: look for words that denote habit like “every ______(day, week,
time),” “always,” “habitually,” and “regularly.”
e) Industrial custom
i) A plaintiff can also use habit to show the custom in a particular industry if the plaintiff is
trying to establish the appropriate standard of care. The plaintiff will show the custom
and then show that the party deviated from the custom.
3) Distinguish from character evidence: other crimes or bad acts to prove something else.
(Feb 2020)
a) Note that evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with
the character.

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 b) However, a defendant’s prior bad acts may be admissible for another purpose, such as
proving MIMIC.
i) Motive
(1) Ex.: A defendant was charged with the murder of a victim. He had been charged with assault.
However, before the assault trial, the victim was murdered. A court would allow a prior assault on
the murder victim to show that the defendant killed the victim in order to prevent her from testifying
against him at his assault trial.
ii) Intent
(1) Ex.: A defendant’s prior acts of engaging in sexual conduct with a child can be used to show the
defendant’s intent to engage in sexual activity with a different child victim.
iii) Mistake—lack of, or lack of accident
(1) Ex.: A defendant was caught with marijuana and said that he did not know it was marijuana. In fact,
he argued that he thought it was oregano. The prosecution could offer into evidence his prior “bad
acts” of smoking marijuana to prove lack of mistake.
iv) Identity
(1) Ex.: A defendant robbed a gas station wearing a clown costume three times in the past. A gas station
nearby was recently robbed by someone wearing a clown costume and the defendant was charged
with the crime. The prior bad acts could be offered to show modus operandi or identity.
v) Common scheme or plan, including preparation
(1) Ex.: An eye witness determined that a defendant stole a car from a parking lot, then stole a gun
from a store. Then someone robbed the bank next door to the store. The defendant’s prior bad acts
(of stealing the car and stealing the gun) could be used to show it was part of his “common scheme
or plan” to rob the bank as well.

c) Bar Exam Tip: this only applies when a party wants to show a person’s prior act to
prove something that is relevant to the current prosecution.
d) MIMIC can be used in ____________________________57 and _____________________________58 cases.

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 e) How to prove MIMIC: by conviction or by witnesses
i) The prosecution only has to produce enough evidence so that a reasonable juror could
conclude that the defendant committed the prior bad act in question. Note: a defendant
does not need to be convicted of a crime in order for MIMIC evidence to be permitted!
f) When the prosecutor in a criminal case seeks to use MIMIC evidence, the prosecutor MUST
provide reasonable notice of the general nature of any such evidence that the prosecutor
intends to offer at trial and do so before trial or during trial if the court, for good cause,
excuses lack of pretrial notice.
g) The 403 test applies. In an essay, you will want to discuss:
i) if the evidence is relevant for a proper purpose (not for propensity but MIMIC);
ii) if it is relevant; and
iii) whether the evidence passes the 403 test (that is, the danger of unfair prejudice must
not “substantially outweigh” the probative value).

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 Is a party trying to prove
character?

Yes No

Civil case Criminal case Special case Habit MIMIC

Self-defense: Habit can be used in It is not used to

D can prove victim’s (V) a case not to prove
It is only permitted prove character;
violent character by character, but a
It is only permitted if the defendant (D) rather, this is
reputation or opinion. The regular response
if it is an essential opens the door. offered when a
prosecution can use the to a particular set
element—that is, party wants to
D can use RO: same to prove D’s violent of circumstances.
cases involving prove a prior act
• Reputation or character or V’s peaceful
defamation, child This evidence may that is relevant to
• Opinion character.
custody, or be admitted the case.
to prove a relevant Homicide: prosecution can
negligent regardless of It is not used to
character trait. offer evidence to prove V
entrustment. whether it is prove character;
The prosecution can was not first aggressor if corroborated or
Can be proved by rather, this is
rebut with ROS: alleged. whether there was
ROS: •Reputation, offered when a
•Reputation, Sexual misconduct of an eyewitness. party wants to
•Opinion, or •Opinion, or victim: It can be used prove a prior act
•Specific acts. •Specific acts. In a criminal case, specific against both that is relevant to
acts may be used to prove a persons and the case.
different source of businesses.
semen/injury, consent, or if
it would violate D’s
constitutional rights.
In a civil case, it is rare and
can only be used if it meets a
reverse-403 test, or if the
victim places it in
controversy.
Sexual misconduct of
defendant:
Specific acts may be used if
D is accused of sexual
assault/child molestation.

Bar Exam Tip: the next two sections talk about how otherwise admissible evidence may be
kept out of evidence (because of a privilege or policy exclusion).

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VII. Privileges
1) Privilege in general
a) If the action is pending in federal court:
i) In a case arising under federal law, the privileges stated below (the common law
privileges) apply.
ii) In diversity cases in federal court, where state substantive law applies, apply the
privileges that are recognized by the state whose substantive law is applicable.

b) Below are the privileges recognized by the federal rules:

i) Attorney-client and work product
(1) Attorney-client privilege
(a) This privilege encourages the client to speak openly to his or her attorney. The
client holds the privilege and it lasts forever (even after the client dies).
(b) The privilege applies to:
(i) confidential communications
1. If the client knows a third party is listening in, there is no privilege.
a. Ex.: Lawyer and client agreed to let a professor who was doing an ongoing
sociological study of the lawyer/client interactions sit in on their discussions. The
privilege is likely waived.
(ii) between an attorney (or other agent of an attorney such as a clerk or
secretary) and client (or representative of client or person seeking to become
a client)
(iii) made for the purpose of obtaining legal advice,
1. This means that the primary purpose of the communication is to obtain
or render legal services.

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 2. Note that even statements or negotiations made before the official
signing of a retainer are protected.
(iv) and there is no waiver,
1. Only the client can waive it.
2. A voluntary waiver of privilege as to some communications will waive the
privilege as to others if:
a. the partial disclosure is intentional,
b. it concerns the same subject matter as the undisclosed
communications, and
c. fairness requires that they be considered together.
3. When a disclosure is inadvertent, the privilege will not be waived so long
as the holder of the privilege:
a. took reasonable steps to prevent disclosure, and
b. promptly took steps to correct the error.
(v) and there is no exception that applies.
1. Exceptions:
a. Professional services were sought to further future crime or fraud
b. Lawsuit between attorney and client
c. “Joint client” rule: if two clients consult an attorney, their
communications are privileged as to third parties, but if the clients
later have a dispute with one another concerning the interest, the
privilege does not apply.
2. Note: Fee agreements are not privileged. So if the question asks how
much a client paid in attorney fees, note that it is not covered by the
attorney-client privilege.

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 (2) Work product protection
(a) An opposing party may generally not discover or compel disclosure of written or
oral materials prepared by or for an attorney in the course of legal
representation, especially in preparation for litigation. In limited circumstances,
the opposing party may discover or compel disclosure of work product upon a
showing of “substantial need” and “undue hardship.” However, even then, the
opposing counsel will never be able to discover the attorney’s mental
impressions.

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 ii) Spousal immunity and marital communications (Feb
2008)
(1) Spousal immunity
(a) Purpose: to protect marriages that exist at the
time of trial.
(b) Elements:
(i) it applies in a criminal trial,
(ii) it is held by the witness spouse,
(iii) the parties must be married at the time of
trial, and
(iv) the event or communication could have
occurred before or during the marriage.
(2) Confidential communications
(a) Purpose: to encourage communication between
spouses during marriage.
(b) Elements:
(i) it applies in a civil or criminal trial,
(ii) it is held by both spouses,
(iii) there must be a confidential communication, and
1. _________________________________________________________________________. 59
(iv) the communication must be made during marriage (however, the parties do
not have to be married at trial).

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 (3) Exception to both marital privileges:
(a) Litigation between spouses (e.g., divorce)
(b) Abuse of spouse or children
iii) Doctor-patient privilege (July 2020, July 2018)
(1) Note: There is no doctor-patient privilege recognized under federal law. The Federal
Rules of Evidence do recognize a psychotherapist-patient privilege, which covers
communications made to a therapist, psychiatrist, social workers, counselors, etc.
(This is similar to the doctor-patient privilege.)
(2) Elements of the doctor-patient privilege: There must be:
(a) a confidential communication by a patient to a doctor
(b) for purpose of diagnosis or treatment of a medical condition.
(3) Exceptions:
(a) If a patient puts his or her physical or mental condition at issue (e.g., suing for
injuries that resulted in a car accident) (July 2018)
(b) If there is a dispute between patient and doctor
(c) If a patient states they are going to commit a crime

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 iv) Clergy-penitent privilege
(1) A person has a right to refuse to disclose or prohibit others from disclosing
confidential communications to a member of the clergy (minister, priest, etc.).
v) Fifth Amendment privilege against self-incrimination
(1) This privilege can be invoked at any civil or criminal, state or federal proceeding.
(2) It applies only to testimonial statements.
(a) Examples of what is not testimonial:
____________________________________________________________________________________
_________________________________________________________________________________. 60
(3) This privilege does not apply if the prosecutor grants immunity. There are two types
of immunity:
(a) Use immunity—the prosecution agrees not to use testimony, or anything derived
directly from it, in future prosecution.

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 (b) Transactional immunity—the prosecution agrees that it will not prosecute for
the crime(s) testified about later.

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 Privilege Definition Held by/who can waive

The following communications are privileged:

The client holds the privilege and
confidential communications, between an
Attorney-client only the client can waive it. The
attorney and a client, made for the purpose of
privilege privilege lasts forever, even after
obtaining legal advice, where there is no
the client dies.
waiver, and no exception applies.
Each party holds the privilege.
However, the opposing party may
An opposing party may generally not discover
compel disclosure of work product
Work product or compel disclosure of written or oral
upon a showing of substantial need
protection materials prepared by or for an attorney in the
and undue hardship (attorney
course of legal representation.
mental impressions are still not
discoverable).
A witness spouse may not be compelled to Only the witness spouse holds the
discuss events or communications occurring privilege.
Spousal immunity before or during the marriage in a criminal Exceptions: litigation between
trial. The spouses must be married at the time spouses (e.g., divorce), abuse of
of the trial. spouse or children
The privilege is held by both
A party does not have to disclose confidential
spouses.
Confidential communications made during the marriage at
Exceptions: litigation between
communications a civil or criminal trial. The parties do not have
spouses (e.g. divorce), abuse of
to be married at trial.
spouse or children
There must be a confidential communication
by a patient to a doctor for the purpose of
Doctor-patient diagnosis or treatment of a medical condition.
This is held by the patient.
privilege ***Note: This is not recognized under federal
law. The FRE recognize a psychotherapist-
patient privilege, which is similar.
A person has a right to refuse to disclose or
Clergy-penitent
prohibit others from disclosing confidential This is held by the penitent.
privilege
communications to a member of the clergy.
No person may be compelled to give a
Fifth Amendment Any person, although the privilege
testimonial statement in any civil or criminal
privilege against does not apply if immunity has
trial, state or federal proceeding that might
self-incrimination been granted.
incriminate them.

VIII. Other Policy Exclusions

1) Insurance
a) Evidence that a person was or was not insured against liability is not admissible to prove that
the person acted negligently or wrongfully.
b) However, the court may admit this evidence for another purpose, such as proving the
following issues only if they are in dispute:
i) agency,
ii) ownership or control, or
iii) impeachment (e.g., a witness’s bias or prejudice).

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 (1) Ex.: Dandy got into an accident when he was delivering goods in his truck. He claimed he did not
own the delivery truck at the time of the accident. Thus, the insurance issued to Dandy, listing the
truck as an insured vehicle, may be admitted into evidence to prove ownership.
c) Limiting instruction: a court may give a limiting instruction to the jury that the evidence can
be used for one purpose but not another (e.g., for impeachment but not for substantive
evidence against the defendant).

2) Subsequent remedial measures (July 2020, Feb 2012)

a) When measures are taken that would have made an earlier injury or harm less likely to
occur, evidence of the subsequent measures is not admissible to prove:
i) negligence or culpable conduct,
ii) a defect in a product or its design, or
iii) a need for a warning or instruction.
b) However, the court may admit this evidence for another purpose, such as:
i) impeachment,
ii) ownership or control, or
iii) feasibility of precautionary measures if disputed.
(1) Ex.: Plaintiff is walking down the stairs of a restaurant, holding onto the railing. The railing breaks
and the plaintiff slips and falls. Plaintiff sues the restaurant for personal injuries, alleging that it had
a defective railing. Can the plaintiff offer into evidence the fact that right after she filed the lawsuit,
the restaurant installed a new railing?
(a) In general? ________________________.61

(b) What if the restaurant denies owning the railing?_____________________.62

(c) When else could the plaintiff admit it into evidence?__________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.63

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3) Offers to settle and offers to pay medical expenses
a) Offers to settle (Feb 2012)
i) The following is not admissible in court to prove the validity of a disputed claim:
(1) promising, offering, accepting, or promising to accept consideration to compromise
a claim; or
(2) conduct or a statement made during compromise negotiations about the claim.
ii) Exceptions:
(1) If the statement is offered to impeach for bias or prejudice.
(2) A statement or conduct made during settlement discussions in civil negotiations will
be allowed when offered in a criminal case and when the negotiations related to a
claim by a public office in the exercise of its regulatory, investigative, or enforcement
authority.
iii) Note: There must be a dispute as to either liability or amount. There must be a “claim”—
that is, a threat of litigation. (An actual complaint does not need to be filed.)
iv) Example: Bob and Adam run across a busy street at night. A driver hits both of them. Later, Bob files a
lawsuit against the driver and they have the following conversations:
(1) Ex.: Bob says, “I’m injured. You owe me $50,000.” The driver says, “No I don’t. I know I was speeding
but you were reckless. The most I’ll pay is $10,000 to make this go away.”
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.64
(2) Ex.: Bob says, “I’m injured. You owe me $50,000.” The driver says, “No I don’t, because you were
reckless. I only owe you $10,000, which I’ll pay to make it go away.”
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.65

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 (3) Ex.: Bob says, “I’m injured. You owe me $50,000.” The driver says, “I know I do, but I’m a lawyer and
I’ll drag this litigation out forever to make it not worth your $50,000. I’ll pay you $10,000 if you want
it to go away today.”
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.66
(4) Ex.: Bob settles his lawsuit for $10,000 with the driver. Adam and the driver are at trial and Adam is
suing the driver for $100,000. Can Adam use the fact that Bob and the driver settled for $10,000 to
show that the driver knows that he is at fault?
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.67
(5) Ex.: After Bob settles the case with the driver, Bob testifies in the driver’s favor and testifies in a way
to indicate that the driver was not at fault. Can the settlement between Bob and the driver be used
for any reason?
____________________________________________________________________________________________________________.68
(6) Ex.: Same scenario as above except the accident just happened. Before Adam and Bob even say
anything to the driver at all, the driver says, “I’m really sorry. I’ll pay you $10,000 if you promise not
to sue.”
_______________________________________________________________________________________________________________
____________________________________________________________________________________________________________.69

b) Offer to pay medical expenses (Feb 2012)

i) Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury but
may be admissible for another reason (e.g., impeachment, control, etc.).

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 ii) Note: ___________________________ or __________________________ that are not a part of the
act of furnishing or offering or promising to pay are ___________________________________.70

(1) Ex.: A woman at Starbucks spills hot coffee on a customer and says, “I am so sorry I spilled my
coffee on you! I wasn’t paying attention! I will pay your medical bills.” Will the statement be
admitted? ___________________________________________________________________________________________________
____________________________________________________________________________________________________________.71
c) Understanding the above exceptions:
i) Ex.: Prudence tripped over a piece of weatherstripping on the threshold of the door while she was
entering Acme Anvil Shop. The manager ran to help her and told an employee to call for an ambulance.
Prudence said she did not have health insurance and she could not afford an ambulance. The manager
said, “Don’t worry about it” and that he would “take care of the bills.” Later, Prudence filed suit. The store
manager initially offered to settle the case but withdrew his offer when she refused to settle for less than
$200,000. He balked at that amount, stating that he was merely leasing the property, did not own it, and
was not responsible for the condition of the weatherstripping. Through discovery, Prudence’s attorney
learned that the shop was covered by a $1 million liability policy. The attorney also learned that after
Prudence was injured, the weatherstripping was replaced with a narrower type that was not likely to
pose a trip hazard. Acme files a motion to dismiss, saying that there is no evidence the Shop was
responsible for weatherstripping or was negligent. In response, Prudence wants to offer the following
into evidence. Is it permitted?
(1) The manager’s statement that he would “take care of the bills”?_________________________________________
____________________________________________________________________________________________________________.72

(2) His offer to settle the case? _____________________________________________________________________________ .73

(3) The insurance policy?_______________________________________________________________________________________
____________________________________________________________________________________________________________.74
(4) The replacement of weather stripping?___________________________________________________________________
____________________________________________________________________________________________________________.75
4) Plea bargaining (FRE 410)
a) The following are inadmissible in a civil or criminal case against the defendant:

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 i) an offer to plead guilty,
ii) a guilty plea that was later withdrawn,
iii) a nolo contendere (no contest) plea, and
iv) a statement made during discussions with the prosecution if the discussions did not
result in a guilty plea or they resulted in a later withdrawn guilty plea.
b) However, a plea of guilty (not withdrawn) is admissible in subsequent litigation based on the
same action under the rule of an opposing party’s statement (or to impeach, if the defendant
testifies).

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Evidence Tested Issues

Feb 2022: awaiting answers from the NCBE

July 2021:

Feb 2021:

Oct 2020: hearsay: statement against interest, public office report, then existing mental, emotional
or physical condition; Sixth Amendment Confrontation Clause

Sept 2020:

July 2020: policy exclusions: subsequent remedial measures (inadmissible to prove negligence or
culpable conduct); hearsay: statement against interest, privileges: doctor-patient; authentication;
best evidence rule

Feb 2020: [combined with Criminal Law] hearsay: nonhearsay, opposing party’s statement, then
existing mental, emotional or physical condition; relevancy; character evidence; MIMIC evidence can
be used for non-propensity purposes only; impeachment: by conviction and bias

July 2019:

Feb 2019:

July 2018: hearsay: nonhearsay, opposing party’s statement, business records, statement made for
medical diagnosis or treatment; relevancy; lay witnesses and expert witnesses; privileges: doctor-
patient; habit evidence

Feb 2018:

July 2017:

Feb 2017:

July 2016: [combined with Criminal Procedure] hearsay: nonhearsay, opposing party’s statement,
past recollection recorded

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Feb 2016: hearsay: present sense impression, excited utterance, prior statement of identification is
not hearsay; Sixth Amendment Confrontation Clause; character evidence: may not be used in
prosecution’s case-in-chief

July 2015:

Feb 2015:

July 2014: impeachment: felony convictions admitted to impeach (one felony where witness was
released nine years ago admitted, one for sexual assault not admitted, a misdemeanor of
dishonesty which he plead guilty to admitted); prior bad acts: one can cross-examine regarding past
bad acts but cannot offer extrinsic evidence

Feb 2014:

July 2013: hearsay: present sense impression, excited utterance, statement made for medical
diagnosis or treatment; Sixth Amendment Confrontation Clause (does not apply in “ongoing
emergency”)

Feb 2013: hearsay: state of mind exclusion, present sense impression, business records, relevancy

July 2012:

Feb 2012: policy exclusions: subsequent remedial measures (inadmissible to prove negligence or
culpable conduct), offers to settle are inadmissible if there is a disputed claim, offers to pay medical
expenses inadmissible, sexual assault victim’s past sexual behavior may be admitted if the probative
value substantially outweighs the danger of unfair prejudice, relevancy

July 2011:

Feb 2011: impeachment: prior inconsistent statement should be admitted to impeach; hearsay:
prior statement of identification admitted as nonhearsay; lay witness testimony on character
evidence: a defendant is permitted to offer a witness to testify about his good character—however
witness must testify as to own opinion as to reputation or opinion

July 2010:

Feb 2010: relevancy; lay witnesses may testify as to relevant non-technical issues that are rationally
based on their perception (such as speed); character evidence may not be used in a civil case; habit
evidence; impeachment: sensory perception evidence can be used to impeach a witness; evidence
of already-stipulated facts should not be allowed at trial

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July 2009:

Feb 2009: impeachment: prior bad acts: one can cross-examine regarding past bad acts but cannot
offer extrinsic evidence; refreshing recollection permitted (but witness reads document to himself,
not out loud); abuse of discretion is the standard that reviewing judges follow

July 2008:

Feb 2008: hearsay: business records (including a hospital record—but not the identity of an
assailant); privileges: marital privilege and confidential communications privilege; impeachment:
prior inconsistent statement should be admitted to impeach

July 2007:
Feb 2007:
July 2006:
Feb 2006:
July 2005:
Feb 2005:

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Hearsay Cheat Sheet: List of Exceptions

Nonhearsay

• Verbal act: legally operative words

• Effect on person who heard or read statement (effect on listener, effect on reader)
• Circumstantial evidence of a speaker’s state of mind (e.g., to show he is mentally
incompetent)
• Prior statements of a trial witness—for truth of matter: There are three categories:
o Prior statement of identification
o Prior inconsistent statement (under oath)
o Prior consistent statement
• Opposing party’s statement (“party admission”)—four categories:
o Statement made by opposing party
o Adoptive admissions
o Agent/employee statement
o Statement by coconspirator

Unavailability exceptions

• Forfeiture by wrongdoing
• Former testimony
• Statement against interest
• Dying declaration
• Personal or family history

Witness can be available or unavailable

• Present sense impression

• Excited utterance
• Then existing mental, emotional, or physical condition
• Statement made for medical diagnosis or treatment
• Past recollection recorded
• Business records
• Public records
• Learned treatises
• Catchall
• Others: reputation regarding character, prior convictions for felony offenses, ancient
documents, familial relations

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Evidence Mini Outline

Always ask WHY is evidence being offered?

1. To Prove that a Statement was Said (but not necessarily that it is true)
These are not used for the truth but could be used for another purpose—i.e., to prove that
something was said.

Three nonhearsay exclusions (not used for the truth of the matter) (mnemonic = VEC):
• Verbal act: legally operative words (to prove a legal effect—e.g., defamation, contract
formation)
• Effect on person who heard/read statement
• Circumstantial evidence of a speaker’s state of mind (e.g., to show he is mentally
incompetent)

2. To Prove that a Statement is True (for the truth of the matter asserted)
These are all to prove that the statement said (whatever is in quotes) is actually true!

Two nonhearsay exclusions used to prove the truth of the matter (mnemonic = PP):
• Prior statements of a trial witness—must be testifying at trial! Can be a prior statement of
identification, an inconsistent statement (must be under oath), or a consistent statement
made pre-motive.
• Opposing party’s statement (“party admission”)—any statement made by opposing
party, adoptive admissions, agent/employee, or coconspirator can be used against that
party.

Hearsay exceptions: witness must be unavailable (mnemonic = FFFDS):

• Forfeiture by wrongdoing (witness tampering)
• Former testimony (under oath)
• Family or personal history (birth, marriage, divorce)
• Dying declaration (believe death is impending; relates to cause or circumstances of death;
criminal homicide or civil)
• Statement against interest (you know it is against your interest when made)

Hearsay exception: witness can be available or unavailable (mnemonic = PETS RePUBLCO)

• Present sense impression (Key word = present! Said while something is happening or
immediately after.)
• Excited utterance (Key word = excited! Under stress of excitement.)
• Then existing mental, emotional, or physical condition (how you feel mentally, physically,
or intent)
• Statement made for medical diagnosis or treatment (Does not have to be to a doctor,
but must relate to treatment. Cannot be “I was driving negligently…”)

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 • Past recollection recorded (you cannot remember something at trial, so you can read it to
jury)
• Public records
• Business records (must be in ordinary course of business)
• Learned treatises (read into evidence while expert is on stand. Not offered as exhibit)
• Catch-all
• Others: reputation regarding character, prior convictions for felony offenses, ancient
documents, familial relations

3. To Show a Witness is Lying and The Jury Should Not Believe Them!
This must have to do with credibility! The whole point is to show they are not telling the
truth! You cannot impeach someone who does not testify or whose statements are not
offered into evidence.

Examples—seven to show someone is lying (mnemonic = Princess Bride Can’t Really Be Speaking
Cordially)
• Prior inconsistent statement (must generally give a chance to explain unless they are a
hearsay declarant, the other party, or have left the stand)
• Bias and interest
• Conviction of a crime (any crime of dishonesty, or a felony; subject to 10-year rule)
• Reputation or opinion for untruthfulness
• Bad acts—specific instances of conduct (Note: A party cannot use extrinsic evidence! Crime
MUST relate to dishonesty.)
• Sensory deficiencies
• Contradictions

4. To Show a Witness’s Good or Bad Character

This must be for relevant character trait—something that has to do with the case against
them. They hardly ever allow this in a civil case. It is only allowed in a criminal case when
defendant brings it up!

• Civil case: Generally NOT admissible! The few exceptions where it is admitted is an essential
element of the crime (negligent entrustment/hiring, defamation, child custody). Use ROS
(reputation, opinion, specific acts)
• Criminal case: Defendant must open door to relevant character trait through RO.
Prosecution can rebut with ROS.

5. For Some Other Purpose (Motive, Intent, Lack of Mistake, Identity, Common
Scheme, etc.)
Not trying to prove anything about truthfulness, character, etc. Just trying to prove
something in your current case (like defendant had the motive to kill, or the defendant
knows what marijuana was even though he is saying he did not know!).

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MIMIC
• Motive
• Intent
• Lack of mistake
• Identity
• Common scheme or plan

Habit and routine practice

Note on how to keep otherwise admissible evidence out!

These would otherwise come into evidence, but for privilege or policy reasons, the court will
still refuse to admit them.

Privileges (mnemonic = CAMPS)

• Clergy-penitent
• Attorney-client
• Marital communications and spousal
• Psychotherapist-patient
• Self-incrimination—Fifth Amendment privilege against self-incrimination

Policy exclusions (mnemonic = IPSOO)

• Insurance (generally not admissible for liability, but can show agency, control,
impeachment, or MIMIC)
• Plea bargaining
• Subsequent remedial measures
• Offers to settle (all facts and offers inadmissible—but there must be a claim and a dispute)
• Offers to pay medical expenses (just the offer itself is inadmissible)

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Hearsay Problems Worksheet

Hearsay and nonhearsay

1. Bob asks Ann where she was punched. Ann points to her stomach. If it is offered into evidence
that she was punched in the stomach, is it hearsay?

2. Bob watches Ann as she is leaving Bob’s office building. He sees her putting on her gloves. Can he
offer the fact that she put on her gloves into evidence to prove it was cold outside?

3. As Bob and Ann are walking out to the parking lot together, Ann says to Bob: “It looks like your tire
is flat! You probably shouldn’t drive it.” Bob drives the car anyway and gets into an accident after his
tire goes completely flat. Can Ann’s statement to Bob be offered into evidence? If so, for what
purpose?

4. A defendant is pulled over for speeding. The police officer is suspicious that the defendant has
drugs and brings his drug sniffing dog around the front of the car. The dog starts barking and sure
enough, the police officer finds drugs in the car. Is the dog’s bark considered hearsay?

5. A robbery takes place in a supermarket. The clock in the supermarket says it is “5:10” (the exact
time that defendant was in the store). Can the fact that the clock said “5:10” be used against
defendant at trial? Is it hearsay?

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6. Alison sues Bob for defamation, claiming that he made a false statement about her that harmed
her reputation, after Bob posted on Facebook that “Alison Smith practices law even though she
never went to law school!” Can the statement be offered against Bob at trial? If so, for what purpose?

7. Prosecutor charges Dan with perjury, claiming that Dan lied under oath at his trial on April 1. Can
Dan’s statements be used against him at his June 1 trial?

8. Defendant says, “The Queen of England called me this morning.” Can the statement be admitted
to prove he is mentally incompetent?

9. An employer is being sued by defendant for race discrimination after being fired. defendant
accuses employer of being racist. Employer claims that she is not racist. She states that she merely
fired the defendant because there were several customer complaints made about him. Can the
customer complaints be admitted into evidence? Are they hearsay?

10. Same as above except would the above result change if defendant was suing for wrongful
termination, claiming that he was a good employee but was terminated prior to his contract date for
no good reason?

11. Defendant says, “I know I hit you with my car! I am so sorry!” Plaintiff wants to use defendant’s
statements against defendant at trial. Can she? If so, under what exception?

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12. Plaintiff and defendant are in a car accident. A witness at the scene states to a police officer that
“defendant ran the red light.” The witness testifies at trial that “the light was green for defendant.”
Can the prior statement that the witness made be admitted for its truth?

13. Plaintiff and defendant are in a car accident. A witness at the scene states in a deposition that
“defendant ran the red light.” The witness testifies at trial that “the light was green for defendant.”
Can the prior statement that the witness made be admitted for its truth?

14. A FedEx employee comes to plaintiff’s door and is holding a case of wine. Two of the wine bottles
are broken. The FedEx employee apologizes and says, “I am so sorry. I dropped them on my way to
the door!” Plaintiff sues FedEx. Can this statement be used against FedEx?

15. Same as above except the FedEx employee makes the statement at a bar after work.

16. Pedestrian sues a driver after being hit by the driver’s car. Pedestrian claims that the car accident
crushed his hand and that he is no longer able to write. Is a note that pedestrian handwrote to his
sister (“I’m going to sue that annoying driver!”) hearsay if it is offered to show he can write?

Hearsay exceptions

1. Witness is laying on the sidewalk dying after being hit by a vehicle. Witness says, “I know I am
dying. I wanted to tell you, I am not really your mother. You were adopted.” Then, witness dies. Can

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the statement be admitted for the truth of the matter asserted in a homicide case under the dying
declaration hearsay exception?

2. Witness is laying on the sidewalk dying after being hit by a vehicle. Witness says, “[Defendant] in
the green truck hit me!” Witness does not die but is in the hospital at the time of trial and cannot
testify. Can witness’s statement be used against the defendant at trial in the criminal assault case as
a dying declaration?

3. Witness sees a terrible accident on a busy road. Witness tells the police officer that “the defendant
ran the red light and hit the pedestrian.” It is 10 minutes after the accident when the witness makes
the statement to the police officer. Can the statement be offered into evidence as a present sense
impression?

4. Witness sees a terrible accident on a busy road. Witness tells the police officer that “the defendant
ran the red light and hit the pedestrian!” It is 10 minutes after the accident. Can the statement be
offered into evidence as an excited utterance? Note that the witness is unavailable to testify at trial.

5. Ann calls her sister, who is training to be a nurse, and says, “My knee has been killing me for the
past month. Do you know what I could do to make it better?” Is this statement admissible to show
that Ann’s knee has been hurting?

6. Ann goes to the doctor and says, “I really hurt my knee! I was driving negligently and hit a stop
sign and I crushed it.” Can the statement be used to prove Ann was driving negligently under the
statement made for medical diagnosis or treatment exception?

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7. Declarant says, “My stomach hurts.” Declarant later dies. Can this be used at trial to show her
stomach hurt?

8. Declarant says, “My stomach was hurting me yesterday” to a friend. Can this be admitted for its
truth?

9. Declarant says, “My husband and I are going to go skiing next weekend.” Can this be used to show
declarant intends to go skiing? Can it be used to show that she did, in fact, go skiing that following
weekend? Can it be used to show her husband went skiing that following weekend?

10. An investigator for a large insurance company cannot remember an accident that he
investigated. It happened three years prior to the trial and the investigator had been on hundreds of
investigations since that accident. You are his lawyer. You have his report that he wrote at the scene
of the investigation. Can you get this into evidence as a recorded recollection? If so, how should
you offer it into evidence?

11. (Continuing from above) What if, as soon as the investigator sees his report while he is on the
witness stand, he says, “Oh yeah! I remember this perfectly now!” What should you do?

12. Sally wants to prove that her grandfather was Ronald Smith so that she can inherit his estate
under the jurisdiction’s intestacy laws. She offers an engraving on a ring given by him to her

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grandmother. She also offers a record of family history that was kept in their family bible. Is either
admissible for its truth?

13. Carol calls Daryl and says, “I just accidentally hit a kid while I was driving and left the scene.”
Carol is later charged criminally for leaving the scene. Can her statement be used as a statement
against interest?

14. Same as above except Daryl is later blamed for hitting the child with his car. Carol is available to
testify at his trial. Can her statement be admitted under the statement against interest exception?

15. Same as above except Daryl is charged for hitting the child and leaving the scene of the accident.
Carol refuses to testify at trial. Can her statement “I just accidentally hit a kid while I was driving and
left the scene” be used as a statement against interest?

16. Witness is deposed about the car accident that she saw after Carol hit the child. Witness is
available for trial but talks really slowly and can sometimes be difficult to understand. Carol wants
someone to just read her transcript from the deposition rather than having witness testify at trial.
Carol cites the “former testimony” exception. Can she do this?

17. Defendant is charged with the murder of a victim. The day before the murder took place, the
victim told a friend: “I sometimes wonder about [defendant]. He has a really bad temper and it was
scaring me yesterday.” The prosecution asks the court to admit the victim’s statement. Defendant
objects. The prosecution says, “Well if you didn’t kill her, she would be here to testify!” Can the
victim’s statement be admitted at defendant’s criminal trial?

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Answers to Hearsay Problems

Hearsay and nonhearsay

1. Bob asks Ann where she was punched. Ann points to her stomach. If this is offered into evidence
to show that she was punched in the stomach, is it hearsay? Yes. Hearsay is an out of court
statement used to prove the truth of the matter asserted. This is a statement because Ann is
intending to communicate where she was punched. Because it is being offered for its truth value, it
is hearsay.

2. Bob watches Ann as she is leaving Bob’s office building. He sees her putting on her gloves. Can he
offer the fact that she put on her gloves into evidence to prove it was cold outside? Yes. When she
put on her gloves, she was not trying to communicate anything. Thus, it is not hearsay. (Bob’s
testimony would simply be what he witnessed as a lay witness.)

3. As Bob and Ann are walking out to the parking lot together, Ann says to Bob: “It looks like your tire
is flat! You probably shouldn’t drive it.” Bob drives the car anyway and gets into an accident after his
tire goes completely flat. Can Ann’s statement to Bob be offered into evidence? If so, for what
purpose? Yes, it can be offered into evidence for its “effect on the hearer.” That is, it can be offered
into evidence to show that Bob had notice that the tire was flat. It cannot be offered into evidence
for its truth (that is, it cannot be offered into evidence to show that Bob’s tire actually was flat!).

4. A defendant is pulled over for speeding. The police officer is suspicious that the defendant has
drugs and brings his drug sniffing dog around the front of the car. The dog starts barking and sure
enough, the police officer finds drugs in the car. Is the dog’s bark considered hearsay? Under the
federal rules, a “statement” made by an animal is not hearsay. The animal is not trying to
communicate anything—it is simply doing what it is trained to do (barking when it detects a specific
smell). Further, it would be difficult to cross examine an animal! (One could always cross examine
the trainer or the police officer at the scene, however.)

5. A robbery takes place in a supermarket. The clock in the supermarket says it is “5:10” (the exact
time that defendant was in the store). Can the fact that the clock said “5:10” be used against
defendant at trial? Is it hearsay? It can be used against defendant. It is not hearsay for the same
reason that animal reactions are not hearsay.

6. Alison sues Bob for defamation, claiming that he made a false statement about her that harmed
her reputation, after Bob had posted on Facebook that “Alison Smith practices law even though she
never went to law school!” Can the statement be offered against Bob at trial? If so, for what purpose?
Yes, it can be used against Bob. It can be used as nonhearsay (under the legally operative words
exception). It is not being offered for its truth value (indeed, the statement must be false in order to
succeed on a defamation claim), but it can be used to show that he committed the tort of
defamation.

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7. Prosecutor charges Dan with perjury, claiming that Dan lied under oath at his trial on April 1. Can
Dan’s statements be used against him at his June 1 trial? Yes. This is a verbal act (“legally operative
words”). The statements are not being used for their truth—they are being used to show he lied!

8. Defendant says, “The Queen of England called me this morning.” Can the statement be admitted
to prove he is mentally incompetent? Yes. It is not hearsay because it is not being offered for the
truth of the matter asserted. It is being offered to show his state of mind—that he is mentally
incompetent.

9. An employer is being sued by defendant for race discrimination after being fired. Defendant
accuses employer of being racist. Employer claims that she is not racist. She states that she merely
fired the defendant because there were several customer complaints made about him. Can the
customer complaints be admitted into evidence? Are they hearsay? Yes, the can be admitted into
evidence. They are not hearsay because they are not offered for their truth; rather, they would be
offered to prove the effect on the reader—that she did not have a discriminatory motive.

10. Same as above except would the above result change if the defendant was suing for wrongful
termination, claiming that he was a good employee but was terminated prior to his contract date for
no good reason? Yes, because then the records would be offered for their truth (rather than the
effect on a reader), so they would be hearsay.

11. Defendant says, “I know I hit you with my car! I am so sorry!” Plaintiff wants to use defendant’s
statements against defendant at trial. Can she? If so, under what exception? Yes, it is an opposing
party’s statement (anything a party says can be used against them!). (Note: This is not a statement
against interest because it is not even hearsay at all, so there is no need to look for a hearsay
exception. Further, defendant is presumably available at trial, so the unavailability element of
statement against interest is missing. It is also not an excited utterance for the same reason.)

12. Plaintiff and defendant are in a car accident. A witness at the scene states to a police officer that
“defendant ran the red light.” The witness testifies at trial that “the light was green for defendant.”
Can the prior statement that the witness made be admitted for its truth? No. It is hearsay. It does
not fall into the prior inconsistent statement hearsay exclusion because the statement was not
made under oath. The prior inconsistent statement exclusion requires that the statement was
inconsistent, that it was made at a formal trial, hearing, or deposition (the statement in this hypo
was not!), and that the witness is subject to cross-examination concerning the statement. (Note: The
statement could be used for impeachment.)

13. Plaintiff and defendant are in a car accident. A witness at the scene states in a deposition that
“defendant ran the red light.” The witness testifies at trial that “the light was green for defendant.”
Can the prior statement that the witness made be admitted for its truth? Yes, this falls squarely into
the nonhearsay category of prior inconsistent statement.

14. A FedEx employee comes to plaintiff’s door and is holding a case of wine. Two of the wine bottles
are broken. The FedEx employee apologizes and says, “I am so sorry. I dropped them on my way to

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the door!” Plaintiff sues FedEx. Can this statement be used against FedEx? Yes. It is an opposing
party’s statement. This one is made by an agent/employee and can be offered against the
principal/employer so long as it is made during the existence of the agency or employment
relationship (it is) and concerns a matter within the scope of that relationship.

15. Same as above except the FedEx employee makes the statement at a bar after work. It is still
admissible. The employee does not have to be at work—he merely needs to be an agent or
employee while he makes the statement.

16. Pedestrian sues a driver after being hit by the driver’s car. Pedestrian claims that the car accident
crushed his hand and that he is no longer able to write. Is a note that pedestrian handwrote to his
sister (“I’m going to sue that annoying driver!”) hearsay if it is offered to show he can write? No. It is
not hearsay because it is not being used for the truth of the matter asserted. Rather, it is being used
to show that the pedestrian can write.

Hearsay exceptions

1. Witness is laying on the sidewalk dying after being hit by a vehicle. Witness says, “I know I am
dying. I wanted to tell you, I am not really your mother. You were adopted.” Then, witness dies. Can
the statement be admitted for the truth of the matter asserted in a homicide case under the dying
declaration hearsay exception? No. It is not a dying declaration. A dying declaration has four
elements: (a) witness is unavailable, (b) it is a homicide or civil case, (c) it concerns the cause or
circumstances of death, and (d) death is impending. Here, (c) is missing.

2. Witness is laying on the sidewalk dying after being hit by a vehicle. Witness says, “[Defendant] in
the green truck hit me!” Witness does not die but is in the hospital at the time of trial and cannot
testify. Can witness’s statement be used against the defendant at trial in the criminal assault case as
a dying declaration? No. It is okay that witness did not die (they just have to be unavailable). The
element missing here is (b) (see elements in previous answer). It has to be used in a homicide or civil
case.

3. Witness sees a terrible accident on a busy road. Witness tells the police officer that “the defendant
ran the red light and hit the pedestrian.” It is 10 minutes after the accident when the witness makes
the statement to the police officer. Can the statement be offered into evidence as a present sense
impression? No. It is too long after the accident to be a present sense impression. A present sense
impression (a) explains or describes an event (b) while the event is happening or immediately
thereafter. Ten minutes is too long and gives the witness the time to formulate a lie or
misremember.

4. Witness sees a terrible accident on a busy road. Witness tells the police officer that “the defendant
ran the red light and hit the pedestrian!” It is 10 minutes after the accident. Can the statement be
offered into evidence as an excited utterance? Note that the witness is unavailable to testify at trial.
Yes. An excited utterance is one that: (a) is made under the stress of excitement and (b) relates to

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the startling event. There is no strict timing requirement for an excited utterance so long as the
witness is under the stress of the excitement. It does not matter if the witness is available or
unavailable.

5. Ann calls her sister, who is training to be a nurse, and says, “My knee has been killing me for the
past month. Do you know what I could do to make it better?” Is this statement admissible to show
that Ann’s knee has been hurting? Yes. It is a statement made for medical diagnosis or treatment.
Any statement that is (a) made for (and reasonably pertinent to) medical diagnosis or treatment; and
(b) describes medical history, past or present symptoms or sensations, their inception, or general
cause, is admissible under this exception. (Note: This does not fall into the then-existing physical
condition hearsay exception because it has to do with past symptoms rather than present ones.)

6. Ann goes to the doctor and says, “I really hurt my knee! I was driving negligently and hit a stop
sign and I crushed it. Can the statement be used to prove Ann was driving negligently under the
statement made for medical diagnosis or treatment exception? No. It is not reasonably pertinent to
medical diagnosis or treatment. The fact that she was in an accident is relevant, but the fact that she
was driving negligently is not.

7. Declarant says, “My stomach hurts.” Declarant later dies. Can this be used at trial to show her
stomach hurt? Yes, it can be. It would fall under the then-existing physical condition exception (or
present sense impression).

8. Declarant says, “My stomach was hurting me yesterday” to a friend. Can this be admitted for its
truth? No. It would not fall into any exception or exclusion.

9. Declarant says, “My husband and I are going to go skiing next weekend.” Can this be used to show
declarant intends to go skiing? Can it be used to show that she did, in fact, go skiing that following
weekend? Can it be used to show her husband went skiing that following weekend? Yes, as to all
three. All three of these fall under the then-existing mental, emotional, or physical condition
exception (803(3)), which allows intent to be used not only to show declarant intended to do
something, but also the acts of herself and others.

10. An investigator for a large insurance company cannot remember an accident that he
investigated. It happened three years prior to the trial and the investigator had been on hundreds of
investigations since that accident. You are his lawyer. You have his report that he wrote at the scene
of the investigation. Can you get this into evidence as a recorded recollection? If so, how should
you offer it into evidence? Yes, under 803(5) a recorded recollection (a) is a matter that a witness
once knew about but now cannot recall well enough to testify fully, (b) was made or adopted by the
witness when it was fresh in his memory, and (c) is accurate. The record may be read into evidence.
It is not offered as an exhibit unless an adverse party offers it.

11. (Continuing from above) What if, as soon as the investigator sees his report while he is on the
witness stand, he says, “Oh yeah! I remember this perfectly now!” What should you do? If you show
him the report and he remembers it, then he can simply testify as to what he remembers. You

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should take the report away from him and let him testify. No hearsay exception or exclusion is
needed because no out of court statement is being offered for its truth. (Rather, it is an in-court
statement—you have merely “refreshed” his recollection.)

12. Sally wants to prove that her grandfather was Ronald Smith so that she can inherit his estate
under the jurisdiction’s intestacy laws. She offers an engraving on a ring given by him to her
grandmother. She also offers a record of family history that was kept in their family bible. Is either
admissible for its truth? Yes, both are. 803(13) allows records in family bibles (these have by long
tradition been received in evidence) as well as engravings on rings.

13. Carol calls Daryl and says, “I just accidentally hit a kid while I was driving and left the scene.”
Carol is later charged criminally for leaving the scene. Can her statement be used as a statement
against interest? No. She is a party to the case. It is an opposing party’s statement (nonhearsay!). We
do not need a hearsay exception if it is not hearsay. Further, she is not unavailable (which is
required for a statement against interest to be admitted).

14. Same as above except Daryl is later blamed for hitting the child with his car. Carol is available to
testify at his trial. Can her statement be admitted under the statement against interest exception?
No, she is available. For the exception of a statement against interest, one has to be unavailable.

15. Same as above except Daryl is charged for hitting the child and leaving the scene of the accident.
Carol refuses to testify at trial. Can her statement: “I just accidentally hit a kid while I was driving and
left the scene,” be used as a statement against interest? Yes, because she is (a) unavailable (she
refuses to testify), (b) she made a statement against her interest, and (c) she knew it was against her
interest when made.

16. Witness is deposed about the car accident that she saw after Carol hit the child. Witness is
available for trial but talks really slowly and can sometimes be difficult to understand. Carol wants
someone to just read her transcript from the deposition rather than having Witness testify at trial.
Carol cites the “former testimony” exception. Can she do this? No. Under the former testimony
exception, one has to be unavailable.

17. Defendant is charged with the murder of a victim. The day before the murder took place, the
victim told a friend: “I sometimes wonder about [defendant]. He has a really bad temper and it was
scaring me yesterday.” The prosecution asks the court to admit victim’s statement. Defendant
objects. The prosecution says, “Well if you didn’t kill her, she would be here to testify!” Can victim’s
statement be admitted at defendant’s criminal trial? Perhaps! Note that this is not forfeiture by
wrongdoing because that only applies to witness tampering (when one purposely makes a witness
unavailable for trial for the purpose of not allowing their testimony into evidence). The real problem
is that admitting the victim’s testimony may violate defendant’s Sixth Amendment right to confront
witnesses if the statement was considered testimonial. We would need to know more facts to know
if it was testimonial or not (e.g., did she reasonably believe it would be used in a criminal
prosecution), but it appears as though in this case it was not testimonial. If it was not testimonial,

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there would still need to be a hearsay exception or exclusion that would allow it into evidence. In
this case, there does not appear to be one that would allow it in.

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Answers
1
Yes, it can be offered to prove that the store had notice that the floor was slippery (but not that the
floor was actually slippery).
2
Yes, it can be offered to prove notice (but not that the tire was actually flat).
3
Effect on the woman.
4
Yes, this is admissible to show that Linda did not have discriminatory intent. This is not being
admitted for the truth of matter asserted (but rather, to show her mindset).
5
Note: This would not generally apply after the coconspirators are caught because it is not made in
the course of or in furtherance of the conspiracy. (It would still apply if, for example, it was part of
the conspiracy to get caught.)
6
No. In order to show forfeiture by wrongdoing, the prosecution needs to prove that the defendant
specifically made the victim unavailable to prevent them from testifying.
7
No. This is not testimonial.
8
No. This is not testimonial.
9
Beyond a reasonable doubt.
10
Clear and convincing evidence.
11
Preponderance of the evidence.
12
I-75 runs north and south.
13
The capital of Michigan is Lansing.
14
February 14, 2011 was a Monday.
15
The accuracy of radar, blood tests, paternity tests, etc.
16
In a case where someone claims the defendant ran a stop sign and the defendant claims the stop
sign fell down, the judge cannot take judicial notice of the fact that the sign is down on the basis that
“I drive by there every day. The stop sign fell down.”
17
The photographer does not need to testify!
18
A surveillance camera tape can be authenticated by showing that it was properly operating and
that the photograph or video was developed from film in the camera.
19
No. This is not legally operative. She has personal knowledge.
20
No. This is not legally operative. And he has personal knowledge.
21
Yes. This is a legally operative document.
22
Yes. His knowledge comes solely from the film.

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23
No. He has independent personal knowledge of the event.
24
No, not if the state has a Dead Man’s Act.
25
Legal conclusions.
26
A treating physician would have personal knowledge of his patient’s condition.
27
Yes (exception “a” above)
28
Yes (exception “b” above)
29
Yes, he but could not disclose what the patients told him.
30
An expert cannot say that a defendant was “legally insane” at the time he did the act. An expert
can talk about the symptoms of the defendant's diagnosis, however.
31
Opposing party.
32
Income tax fraud, embezzlement, and perjury.
33
Shoplifting, robbery.
34
Yes.
35
Yes.
36
No, because of the 403 test.
37
Yes, in the court's discretion.
38
No. That is extrinsic evidence.
39
No. It is not relevant to truthfulness.
40
No. One is not allowed to ask if the witness is “charged” or "arrested." It is not a “bad act” to be
charged or arrested. A charge or arrest is merely an accusation.
41
No.
42
No.
43
No. This is not permitted, as the case is not regarding negligent entrustment or hiring, defamation,
or child custody.
44
No. This cannot be used to prove conformity.
45
First part, “I know Ashley . . . ” can be admitted. Second part, “She even . . . ” cannot be admitted
because it is a specific act.
46
No. Irrelevant. (a) Not pertinent. (b) Not pertinent. One cannot boost a witness’s reputation for
truthfulness unless he has been impeached (unless it is an element of the crime). (c) Not relevant.
“Law abiding” is generally okay.
47
Yes, for the purpose of impeachment.

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48
No, the prosecutor must accept her answer.
49
Yes.
50
No, because this is a civil case and it does not fall into one of the three recognized scenarios
where one can bring in character evidence in a civil case (e.g., negligent entrustment or hiring,
defamation, child custody).
51
Yes.
52
Yes, it goes to his mindset at the time the incident occurred.
53
No, because this is a specific act and does not go to his mindset at the time that the incident
occurred.
54
This can be used to show that at 9:00 PM on a Friday, Ashley was, say, not at a crime scene. It can
also be used to show Ashley was probably at her boyfriend's house.
55
The court may admit this evidence regardless of whether it is corroborated or whether there was
an eyewitness.
56
This is not habit evidence because it is not a “regular response” to any particular set of
circumstances.
57
Civil.
58
Criminal.
59
This does not apply if the statement is made in front of older children, friends, etc.
60
Blood test results in a driving under the influence case, handwriting samples, voice samples, DNA,
etc.
61
No.
62
Yes.

63
(1) If they say it is "impossible." (2) If they say it was outside of their control. (3) Impeachment; "We
couldn't have made it safer."

64
This is inadmissible. There is a dispute as to liability. Neither the statements nor the offer will be
admitted into evidence.

65
This is inadmissible. There is a dispute as to the amount of the claim.

66
This is admissible. There is no dispute as to liability or amount.

67
No. One cannot use a settlement offer to show liability.

68
This is only admissible for bias!

69
This is admissible because no claim is being disputed. (There is no threat of litigation.)

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70
Conduct or statements that are not a part of the act of furnishing or offering or promising to pay are
admissible.

71
The first part of the statement is admissible. The second part is not. The inadmissible part will be
redacted.

72
This is not admissible to show liability. This is admissible to show control.

73
This is not admissible to show liability.

74
This is not admissible to show negligence. This is admissible to show control.

75
This is not admissible to show negligence. This is admissible to show control.

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