Evidence Outline

Relevant: 2 prongs that must be satisfied for offered evidence to be relevant: 1. General relevance: 1) Offered evidence must prove or disprove some fact or matter of consequence in the case; 2) The evidence must be probative of a matter in issue in the case; 3) Must pass FRE 403 balancing test if raised by opponent of offered evidence i. 1ST prong: Look to pleadings and substantive law of the case to determine whether a matter or fact is of consequence to the case for first prong of test ii. 2nd prong: Any tendency suggests slight relevance is enough to satisfy FRE 401 and the 2nd prong of general relevance 1. Conditional relevance: Evidence that standing by itself is not relevant to any issue in a trial but would be relevant if the trier of fact also had some other information (FRE 104 B) iii. 3RD Prong: Highly prejudicial objection raised by opponent to offered evidence. 2 grounds you can object on under FRE 403: 1. Relevant evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." 2. According to FRE 403, relevant evidence may be excluded if "its probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." a. Concerned w/ judicial efficiency 3. Process for determining FRE 403 rulings a. Judge weighs admissibility vs. exclusion. On the admissibility side of the scale, judge considers relevance and whether proponent can prove the fact any other way. On the exclusion side, judge considers the impact evidence would have on an untrained jury. 4. Judges discretion is considerable but not limitless; SC overturned conviction of defendant because of prejudicial evidence allowed in that should ve been excluded under 403 2. Special Relevance: Special relevance prong is a way to keep generally relevant evidence out. The reason behind this prong is because the unfair prejudice from particular types of evidence is considered so extreme that it cannot be risked. a. Character trait rules (404a + 405): i. Rule 404(a): Generally cannot introduce character evidence for the purpose of proving action in conformity with EXCEPT: 1. Essential element rule (405 B): When character or a trait of character is an essential element of a charge, claim, or defense it is admissible in both criminal and civil cases a. Child custody cases, knowingly hiring someone w/ a certain character type, wrongful termination cases i. Have to prove the person hired has that character type b. Mostly applies to civil cases

Evidence Outline c. This exception is rarely used only applicable when charges require character traits to be proven d. Can use reputation, opinion, or specific instances of conduct to prove character under this exception 2. Circumstantial Evidence Rule (405 B): Exception that allows character evidence in, as circumstantial proof that a person acted consistently with his character at the time in issue in the case a. Can only be used in criminal cases b. Evidence concerning a sex offense victim s character should be excluded if it is required by FRE 412 c. Only reputation & opinion are permissible ways to introduce character evidence under this exception d. Defendant decides whether character evidence will be admissible. If defense does not introduce character evidence, prosecution may not do so either. e. CE procedure: i. Prosecution may admit character evidence of victim s good character for peacefulness in a homicide case where the defendant introduces evidence that the victim was the first aggressor (arguing self defense) ii. Defendant claim s peaceful character P can rebut w/ violent character of D iii. Defense attacks victim s character (they re violent) Prosecution can rebut w/ peaceful character of victim iv. Defense attacks victim s character (they re vilent) Can rebut w/ defendant s violent character 1. AZ has not adopted this v. Offer specific acts to relating to character to impeach character witness f. Character evidence may be admissible against a defendant to prove propensity or conformity in sexual assault and child molestation cases in both criminal and civil cases under FRE 413-415 i. Only can use specific instances of conduct b. Other Acts Rule (Rule 404 B): i. Can t offer other acts to show propensity or bad character (specific instances of conduct) ii. 404 (B) is a rule of inclusion iii. Applies to both civil & criminal cases iv. Non-propensity purposes of other acts under 404 (b): 1. Identity a. Requires striking similarity b/w 2 acts

Evidence Outline 2. Intent 3. Knowledge a. Person ran stop sign b4 so they knew it was there if they deny knowing 4. Motive a. Other act to show reason for committing crime 5. Planning a. D purchased gun week before the murder 6. Consciousness of guilt 7. State of mind 8. Dislike of or attitude toward victim v. 404 (b) analysis must be confined to other crimes, wrongs, or acts. The conduct must be extrinsic to the matter being tried, not contained in it, or a part of it 1. If the other act/crime is part of the crime on trial, 404 (b) is not implicated. General relevancy standard would apply vi. The previous conduct did not have to result in an arrest or a conviction to be used, hence others acts not other crimes (Dowling v. United States) vii. Courts allow enough other acts evidence into the trial to show that the defendant was the one who did it by a preponderance of the evidence 1. AZ uses clear & convincing standard for admissibility c. Habit Rule (FRE 406): Offer habit to show propensity & its ok i. Habit is reflexive, situation-specific repetitive behavior 1. Different from character evidence in the sense that CE is a general personality characteristic that is not situation-specific ii. Evidence of a person s habit or an organization s routine practice is admissible as circumstantial evidence of conduct at a particular time 1. Routine practice is typically offered in commercial and product liability cases. For example, a company had a procedure to ALWAYS place a warning manual in their products iii. Rule applies to criminal + civil cases iv. Habit evidence is more probative than character evidence because habit evidence is automatic and more reliable v. Important to not let character evidence in under the guise of habit 1. If habit is very generalized more likely to be character evidence a. I always stop at stop signs too general basicall saying you are careful driver b. I always stop at THIS stop sign proper habit evidence d. Sexual Assault Rule (Rule 412): Known as the rape shield rule and precludes specific acts involving sexual history of the victim of the offense i. The following evidence is not admissible in criminal or civil cases: 1. Evidence offered to prove that any alleged victim engaged in other sexual behavior

Evidence Outline 2. Evidence offered to prove any alleged victim s sexual predisposition ii. Exceptions to the above rules in criminal cases: 1. 3rd party responsible 2. Consent iii. Rule 412 prevents the defense from using FRE 404 (a)(2) to prove a character trait/past acts of the victim in a sexual assault case iv. For 412 to apply there does not have to be a charge of a sexual crime, so long as the charge involves sexual misconduct 1. Ex: A defendant takes a hostage for the purpose of a sexual attack, the rule applies even though the actual charge is kidnapping v. Evidence of prior and probably false rape allegations against others is not excluded by Rule 412 e. Sex Assault Rules (413-415): These rules are designed to allow specific acts of the defendant to show propensity in certain situations i. FRE 413: Provides that in criminal sexual assault cases evidence of the defendant s commission of other sexual assaults is admissible ii. FRE 414: Makes admissible in criminal child molestation cases, evidence of the defendant s commission of other offenses of child molestation iii. FRE 415: Applies Rules 414 & 415 to civil cases 1. Courts are still required to apply the FRE 403 balancing test to evidence of sexual misconduct under FRE 412-415. a. Typically the evidence still gets in under the assumption that Congress intended that evidence of a defendant's propensity to commit sexual assaults under FRE 413 or FRE 414 is not outweighed by any risk of prejudice or other adverse effects 2. Preponderance standard a. AZ uses clear & convincing standard 3. Doesn t require defendant to be charged or convicted for the evidence to get in iv. Rule 404 (c): 1. Applies only to Arizona in lieu of FRE 413-415 2. Permits the admission of other acts if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged f. Policy Exclusions (407-415): i. Remedial Actions (FRE 407): Evidence of subsequent repairs or product recalls is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product s design, or a need for a warning instruction 1. Applies mostly in civil negligence cases and strict liability, warning inadequacies, etc. 2. Applies to federal courts and some states, including AZ

Evidence Outline 3. Existence or non-existence of prior accidents involving the products can be admitted 4. Exceptions: a. Can be admitted if offered to prove ownership, control or feasibility of precautionary measures. i. Typically lawyers will admit to ownership & control to keep remedial action evidence out ii. Ex: Slip and fall case. Store owner says part of parking lot is not owned by me, owned by state. Can rebut by asking then why do your employees clean up spills in the parking lot? b. Remedial evidence can also be used to impeach a witness. So if a gun expert testifies that the gun in issue is not only safe but also is the standard for guns, this opens the door to evidence that the gun's safety mechanism was changed within weeks of the accident ii. Payment of Medical Expenses (FRE 409): 1. Evidence of furnishing or offering or promising to pay medical, hospital or similar expenses is inadmissible to prove liability 2. Rationale behind the rule is such offers or payments may be motivated by reasons other than fault, but the jury will believe it shows fault 3. Rule is very limited in scope does not exclude other factual statements or conduct of the person making the offer just the offer itself 4. Does not bar offers to pay or payments of car repairs. Nor does it bar statements of fault associated w/ an offer iii. Liability Insurance (FRE 411): Evidence that a person had liability insurance or doesn t is not admissible to prove negligence or fault 1. Reason being is the fear that jurors who know a party has insurance may find that party liable only because they the liability will be cost-free to the party or increase the damages 2. Lack of liability insurance can be admitted if offered for proper purpose, such as proof of agency, ownership, control or witness bias iv. Compromise and Offers of Compromise (FRE 408): Evidence of settlement or offers to settle are not admissible to prove liability or amount of damages 1. Applies mostly to civil cases while 410 deals w/ criminal 2. Rationale behind the rule is to encourage settlements 3. Exception: A Mary Carter agreement is a partial settlement b/w a plaintiff and one of multiple defendants a. At trial settled defendant becomes witness, the fact that D1 settled w/ plaintiff is admissible to show bias b. If settled defendant doesn t testify, agreement isn t brought up

Evidence Outline c. A few states have held that such agreements are void on public policy grounds d. Most states uphold the agreements v. Plea Agreements and Discussions (FRE 410): 1. Negotiations must be with the prosecuting attorney for statements to be barred 2. If plea discussion are made w/ prosecuting attorney statements/conduct made during plea bargaining are inadmissible against defendant 3. If plea discussions fail, nothing in those discussions is admissible 4. Most plea discussions involve the defendant s lawyer and rule covers his statements 5. If the defendant is the one engaging in plea discussions, the defendant must intend to engage in plea negotiations in order for the statements to be barred a. Defendant must be seeking a guilty plea deal 6. A plea of guilty later withdrawn may not be used against the defendant who made the plea 7. Exception to the general rule barring plea discussions: a. Whenever a co-defendant enters into a plea agreement and later becomes a witness at trial of remaining codefendant, the witness may be examined about his plea agreement with prosecution in order to show bias g. Privileges: Promotes candid conversations between certain people without fear of details being exposed in court one day i. General: 1. Federal criminal and civil-federal question cases FRE 501 2. Federal civil-diversity cases State privilege law applies a. Due to Erie doctrine 3. State courts State privilege law applies ii. Specific Privileges: 1. Spousal Bar Privilege (broader than communciations priv): a. Allows one spouse to bar the other from testifying completely b. Most states don t like the rule which is why it terminates upon dissolution of marriage c. Consider this privilege first, then inter-spousal communications d. Federal courts: i. Privilege only applies in criminal cases ii. The witness spouse is the holder of the privilege iii. Only applies to events during marriage iv. Privilege terminates upon dissolution of the marriage

Evidence Outline e. AZ Rule (civil +criminal): i. Party spouse is the holder of the privilege ii. Only covers events occurring during the marriage in criminal cases iii. Covers events all time in civil cases iv. Privilege terminates upon dissolution of the marriage v. Exceptions to the privilege: 1. Inter-spousal torts and crimes a. If husband assaults wife 2. Joint spousal torts and crimes a. They commit a crime together 2. Spousal communications privilege: a. Only applies to communications (letters, emails, phone calls) made during time frame of marriage b. Federal: i. Privilege protects 1) confidential 2) communications 3) between legally married spouses 4) made during the marriage ii. Both civil and criminal cases iii. Each spouse is holder of privilege and can assert the privilege to his or her communications to the other iv. Privilege never terminates c. AZ Rule: i. Basically the same as federal rule ii. Both civil + criminal iii. Each spouse is the holder of the privilege to their communications made to the other iv. Never terminates v. Exceptions: Privilege doesn t apply to: 1. Joint torts + crimes 2. Interspousal crimes + torts 3. Attorney-Client Privilege: a. Federal: i. Protects confidential communications, oral and written, between an attorney and client relating to the rendering of legal services 1. The key inquiry is to look at the circumstances under which the communication was made 2. Not all communications are privileged ii. Client is the holder of privilege only he can waive it iii. Does not terminate upon dissolution of relationship

Evidence Outline b. AZ Rule: i. Basically follows federal rules ii. Privilege survives death of the client c. Atty/Client privilege Corporate setting: i. Federal courts & AZ follow Upjohn test 1. Protects any communication from any corporate employee to corporate counsel which was necessary to develop information needed to inform corporate counsel so that it could competently represent the corporate client ii. Most states follow Control test: 1. Only communications between corporate counsel and the control group (officers, directors and managerial employees with legal decision making authority) are protected under the privilege d. Multiple clients issue: Where two or more individuals have consulted a lawyer for advice on a matter that concerned both individuals, they are joint clients. If the joint clients sue each other, their communications to the lawyer will not be privileged 4. Doctor/Patient privilege: a. If federal law applies (federal criminal + fed ?): i. No doctor/patient privilege ii. Only recognizes privilege for psychotherapistpatient communication b. AZ Approach: i. Protects not only confidential communications between doctor & patients but also examination results from disclosure in civil cases ii. Plaintiff holds the privilege iii. Only plaintiff can waive the privilege doesn t terminate upon end of relationship iv. Patient waives the privilege by testifying to these communications or facts, or calling the physician to testify to them 1. Means privilege issues are uncommon v. A plaintiff, by filing a lawsuit which puts in issue his physical condition, impliedly waives the privilege as to the medical records relevant to his condition (ex: personal injury case) as well as earlier medical records that relate to the particular medical condition (to perhaps show plaintiff had pre-existing condition)

Evidence Outline 5. FRE 502: Deals w/ advertent and inadvertent waivers of the attorney client privilege and work product doctrine in fed and state litigation a. Gives effect to non-waiver agreements b. When an inadvertent disclosure is made in a federal proceeding, the disclosure does not operate as a waiver in a federal or state proceeding if the disclosure is inadvertent, the holder of the privilege or protection took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error c. Basically the rule limits the cost of discovery process, since the parties can now avoid effects of inadvertent waivers on the attorney client privilege and workproduct Reliability I. Hearsay: 1) statement 2) made out of court 3) offered to prove the truth of the matter asserted in the statement a. A statement is an 1) oral assertion; 2) written assertion or 3) assertive conduct (intended to be an assertion) i. First prong: 1. Assertive conduct is a statement only if clearly intended as the functional equivalent of an assertion a. Most conduct is not a statement ii. Second prong: 1. Satisfied whenever a witness, while on the stand, repeats any statement either he, or another person, made at any other time or place iii. Third prong: 1. Is the out of court statement being offered to prove a matter in issue? b. Common categories of non-hearsay (out of court statements offered for proper purpose proponent of evidence will argue these): i. Independent Legal significance: Applies when the applicable substantive law gives legal significance to words merely because they have been said (they aren t being offered for the truth) 1. Defamation a. Requires you just to prove that the words were said 2. Contract 3. Gift 4. Intentional Misrepresentation a. Statements here are not hearsay since they are being offered for their falsity (aka misrepresentation)

Evidence Outline ii. Effect on listener s state of mind: A statement is non-hearsay if it is being introduced merely to show that it affected the listener. Meaning it is offered to show the statement was made, not that it is true. 1. Notice: Tort law cases where you have to show defendant or someone was aware of a fact 2. Fear: Offering an out of court statement to show that someone is afraid of another after hearing a threat iii. Impeachment with a prior inconsistent statement: Prior inconsistent statement is being offered to show contradiction (impeachment) not that the prior statement made was true Hearsay Exceptions General: a. Witness Availability requirement categories: i. 801(d): Classifies as non-hearsay both admissions of a party opponent and certain prior statements by witnesses 1. 801(D)(1) requires declarant to be subject to cross 2. 801 (D)(2) do not require declarant to be subject to cross ii. 803: Exceptions that don t require declarant to be subject to cross iii. 804: Exceptions that require witness to be subject to cross unless they are unavailable 1. A witness is unavailable when he asserts a privilege, refuses to testify, has a lack of memory, is dead or too sick to testify, or will not voluntarily attend the trial and cannot be reached by compulsory process Specific Exceptions I. Prior Statements Category: a. Admissions by party opponent [801 (D)(2)] i. An admission is anything an adverse party has ever communicated (in speech, writing, or in any other way) sought to be introduced against that party at trial. The statement could have been favorable to some interest of the party, or unfavorable, or neutral ii. Considered fair to use whatever an opposing party says against him at trial iii. Rule is very generous and no guarantees of trustworthiness is required iv. A party cannot offer its OWN prior statement as a party admission statement can only qualify if offered by the opposing party v. FRE characterize party admissions as non-hearsay states consider it hearsay exception vi. Types of admissions by party opponent: 1. A party s own admission [801 (d)(2)(a)][ non-hearsay ] a. The party s own statement oral written or non verbal conduct before or during trial b. Note - Any words or acts by a criminal defendant before arrest are admissible as admissions, but a properly admonished defendant may, under the Miranda holding, II.

Evidence Outline waive his 5th amendment and 6th amendment rights and make admissions as well 2. Adoptive Admissions [801(D)(2)(B)]: a. A statement of which the party has manifested an adoption or belief in its truth i. Ex: A says to B "I am sorry i had to shoot the bank teller, but it was the only way you and I could get the money," and B says, "You're right." B has adopted A's statement as his own and can be admitted against B b. Silence can be considered an adoptive admission if most people would have spoken to contradict something like a statement just made to the party. i. Civil cases silence is allowed in as party admission as long as party heard the statement/understand English ii. In criminal cases 5th Amendment privilege issues D has right to remain silent 1. Cop says to defendant why did you shoot the guy? D says nothing. Not admissible because defendant has 5th Amendment right to remain silent iii. Note - Silence as an adoptive admission is not favored by judges because silence can mean any number of things 3. Admissions by authorized persons, agents and employees a. Someone who admits something and is authorized to do so on behalf of a party i. Ex: A lawyer b. An agent statement made on behalf of a party if the statement 1) concerned a matter within scope of the agency relationship or employment 2) and was made during existence of the relationship 4. Co-Conspirator statement as party admission [801 (D)(2)(E)] a. Can be used against a party if: 1) Evidence exists there was an ongoing conspiracy involving the declarant and the person the statement is offered against; 2) The statement was made "during the course and in furtherance of the conspiracy i. Can prove conspiracy by using the declarant's own statement, however, it is not enough standing alone, to establish the existence of the conspiracy and the participation in it of the declarant and the party against whom the statement is offered (Bourjaily v. U.S.).

Evidence Outline b. Prior Statements by Witnesses [801(D)(1)] [ non-hearsay ] i. Prior Inconsistent Statement [801(D)(1)(A): 1. A prior statement used to impeach a witness during a trial or hearing is not hearsay if the statement is 1) inconsistent with the declarant's testimony and 2) was given under oath subject to the penalty of perjury at a trial or hearing/proceeding a. Means that the statement is admissible as substantive evidence, that is, for its truth b. If prior inconsistent statement wasn t made under oath it can only be offered to impeach but not offered for its truth (613) 2. Arizona has modified 801 (D)(1) so that ALL prior inconsistent statements used to impeach are non-hearsay and substantive evidence (truth) ii. A statement consistent with the declarant's testimony, offered to rebut an express or implied charge against the declarant of recent fabrication or of improper influence or motive [FRE 801(d)(1)(B)] 1. The rule treats such prior consistent statements as nonhearsay, admissible as substantive evidence, that is, for its truth. a. So if on cross these implication of bias/interest/lying isn t made, these prior consistent statements would not be admissible 2. Prior consistent statement can be oral or written under oath or not 3. Prior consistent statement must be made before the event giving rise to the charge of recent fabrication, etc. 4. The charge of recent fabrication or improper influence or motive can be "express or implied" during cross 5. Deals w/ rehabilitation iii. A statement of identification of a person made after perceiving the person [FRE 801 (d)(1)(c)] 1. Prior statement is not hearsay if it is one of identification of a person made after perceiving the person 2. Reason for this Exception is that in-court identification testimony is weak and subject to suggestion an out-of-court identification is fresher in time and opportunities for exerting influence is less c. Statements against interest [804(b)(3)]: Exception is based on the assumption that people do not make statements damaging to themselves unless they believe for good reason that their statements are true i. Test for exception to apply: 1. Declarant must be unavailable

Evidence Outline 2. Statement must be against the declarant's pecuniary, proprietary interest, or subject the person to civil or criminal liability a. Pecuniary interest is a financial interest i. Ex: "I owe Johnson $100." b. Proprietary interest is an interest in property i. Ex: "I gave Mary the diamond ring as a present." c. Penal interest subjects someone (including declarant) to criminal or civil liability i. 2 kinds of statements against penal interest: 1. Inculpates (says someone is guilty) Statement is generally trusted a. I robbed the bank i. Who says that? 2. Exculpates (says someone is innocent) Distrusted a. Not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement b. Focus on relationship b/w person making statement and person exculpated 3. Statement was so far contrary to the declarant s interest that a reasonable person would not have made the statement unless it believes it to be true a. Look at context/situation where statement was made b. Statements have to be disserving d. Prior Testimony [804 (B)(1)]: i. 3 prongs must be satisfied b4 transcript of a witness' earlier testimony is admissible: 1. The out-of-court declarant must be unavailable (see above) a. AZ does not require unavailability if the transcript is introduced in a civil case 2. The transcript of the out-of-court- declarant must be offered against a party that was present at the earlier hearing 3. The party must have an opportunity and similar motive to develop the witness' testimony in the earlier hearing Spontaneous statements a. Present Sense Impressions [803(1)]: i. 1) Statement must be made during or immediately after perceiving the event and 2) describe what they saw 1. Key inquiry is the length of time between event & statement 2. Rationale behind the exception is declarant doesn t have time to forget the event or distort it 3. Just needed a witness to testify about the statement

II.

Evidence Outline b. Excited Utterances [803(2)] i. 1) Statement must be made under the stress of excitement and 2) statement must relate to a startling event 1. Statements are reliable because the declarant has no time to fabricate 2. Excited standard is subjective meaning the length of time between statement and event can fluctuate 3. Issue w/ this exception is psychologists say people under excited state aren t good observers c. Statements of present or past conditions for diagnosis [803(4)] i. Statements made by patient (or representative of patient like parent) for purpose of receiving treatment / diagnosis are admissible 1. Covers prior history + present symptoms 2. Both doctors and related parties (such as nurses/healthcare providers) can testify about the statements made to them 3. No distinction b/w treating/non-treating physicians 4. Only limits on the rule are statements of pure fault and medical history not reasonably pertinent to the present medical condition d. Present Mental and Physical Condition [803(3)] i. Can admit statements about physical condition 1. My back hurts right now 2. Allowed in w/o exception because people won t lie about their present physical condition ii. Can also admit statements regarding State of mind in limited situations ( I m frightened ) ( I d like to kill Joe ) 1. Allowed in as direct evidence if it proves an element of the case a. Intent to create domicile b. Mental suffering element of damages c. Malice d. Intentional torts and crimes 2. Allowed in as circumstantial proof of conduct if: a. Statement is present state of mind about future conduct i. Allowing past conduct would gut hearsay rule could be making up a lie about what u did b4 ii. Can allow statement to show past conduct when a person s will is in issue 1. Testator is in best position to know what he intended to accomplish in his will b. Cannot offer statement by declarant against a 3rd party under FRE c. Most states allow present state of mind statements to apply to declarant & 3rd person i. Ex: Mary says I m going to a party with Joel. Can apply statement to Mary but not joel d. Factual assertions included in statement r excluded

Evidence Outline i. "I am afraid of Arthur because he uses a baseball bat to collect debts." e. Dying Declarations (804(B)(2) i. Requires 1) declarant to be unavailable; 2) belief in certainty of imminent death; 3) statement must be about circumstances of injury/cause of imminent death 1. Proponent of offered evidence has burden of proving declarant believed death was imminent a. Subjective standard b. Words such as I m about to die will suffice 2. Issue w/ this exception is whether declarant believed they were dying imminently 3. Applies to homicide & civil cases 4. Rationale behind the rule is people who are about to die are unlikely to lie III. Records a. Business Records [803(6 & 7)] i. Allowed in to evidence if custodian or other qualified witness can testify that the exhibit is: 1. 1) Record of the business; 2) made at or near the events recorded on it; 3) by a person who had knowledge of the facts recorded or made from information transmitted by a person having knowledge of the facts; 4) made as party of the regular practice of that business ; 5) kept in the course of a regularly conducted business activity a. Record includes a memo, report, record or data compilation in any form b. Record may contain acts, events, conditions or opinions 2. Issues w/ exception: a. Margin notes/hand written changes on the record: i. Good argument to keep them out cuz u don t know who made the notes or when they were made ii. If u want the margin notes in argue the notes were made by employee of company and should be party admission b. Records made in anticipation of litigation are not automatically excluded, but can be excluded if the record indicates lack of trustworthiness c. Business records whose creation lack trustworthiness i. Self-serving records d. Double hearsay issue (805): i. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the

Evidence Outline combined statements conforms with an exception to the hearsay rule provided in these rules ii. Each level of hearsay must qualify as an exception for statement to get in 1. Ex: Police report contains statement from witness that the car sped right thru the redlight 2. Police report = public record exception 3. Witness statement = excited utterance iii. Comes up a lot w/ written documents e. Business record v. summaries: i. Comes up when computers organize business records into different arrangements and are printed out ii. Still a business record? Likely a summary under FRE 1006 b. Public records & reports [803(8) & (10)] i. Qualifies if: 1) Activities of office; 2) deals w/ matters observed w/ duty to report; 3) factual finding made pursuant to law 1. Factual findings includes conclusions & opinions BUT the findings has to be from a public entity that is directed by law to make public findings a. Doesn t happen very often b. National Transportation Safety Board investigates cause of all plane crashes directed by statute to determine cause of plane accidents ii. Includes police reports however police reports are barred in criminal cases unless offered by the defendant (confrontation clause issue) 1. Doesn t apply to routine police stuff like license numbers or weather the day of the accident iii. Watch out for double hearsay issues iv. Rationale: Allow the document in as public record exception because of assumption public officials will perform duty properly c. Recorded Recollection [803(5)] i. Recording must 1) be made or adopted by a declarant who ONCE had personal knowledge of the recorded facts, 2) be made or adopted by the declarant at a time when the matter was fresh in his memory, and 3) accurately reflect the declarant's firsthand knowledge 1. Fall back option for written statements that don t qualify as public records or business records 2. Allows the recorded statement (writing) into court as evidence asserted for its truth when the witness no longer has a recollection of the events 3. Policy is that it is preferable to admit the record than lose the evidence altogether

Evidence Outline 4. The record is read to the jury but not admitted into evidence unless opponent wants it admitted IV. Residual Exception (807) a. Used as last resort to admit a statement that doesn t fall into any of the hearsay exceptions b. In order to be admitted, proponent must demonstrate: i. Equivalent trustworthiness 1. Was statement made under oath? 2. Did the declarant speak from personal knowledge? If not, the statement bears little or no trustworthiness 3. Character of declarant for honesty ii. Offered as evidence to a material fact iii. Most probative available proof iv. Serves interests of justice v. Give notice to opponent c. Been applied to such matters as prior inconsistent statements of a witness that lack the oath requirement of FRE 801 (d)(1)(a), prior consistent statements that do not fit within FRE 801 (d)(1)(b), former testimony where the lack of opportunity and motive to cross keeps it outside FRE 804(b)(1), and records that are not quite business or public rd prong deals w/ evidence being presented the right way Right: 3 1. Witnesses: a. Competency Rules: Threshold issue is whether witness is competent to testify i. FRE apply if federal criminal or federal question civil case (601-606) 1. FRE has eliminated common law disqualifications such as parties, felons, infants because those issues can be raised on cross 2. Basically anyone can testify ii. AZ rule in state case or federal diversity: 1. AZ has eliminated most competency disqualifications, retaining only in civil cases the bar to witnesses of unsound mind, and children under 10 who are incapable of receiving just impressions or relating them fully 2. Basically anyone can testify 3. Deadman Act (ARS 12-2251): a. This barred the testimony of interested parties to transactions with the deceased in litigation involving the estate of the deceased b. AZ will allow the testimony in if the testimony is corroborated or a manifest injustice would otherwise result i. Most times this allows testimony in iii. General competency notes: 1. Every witness is given an oath to testify truthfully 2. Judge/Jurors may not serve as a witness

Evidence Outline 3. Judge can call and question witnesses 4. Witnesses must be excluded from the courtroom during testimony of other witnesses 5. Parties to the case cannot be excluded b. Direct Examination General i. Leading questions (FRE 611) 1. Generally not allowed on direct but allowed on cross 2. Leading question is one which, either from its content or the way its articulated, suggests a preferred answer to the witness 3. Leading questions are barred because you want the witness to give the answer & not be suggested one by the lawyer 4. Leading questions are permitted on preliminary or undisputed matters 5. Leading questions are also allowed when establishing a foundation for an exhibit or when proving up (FRE 611 (C)) ii. Called witness must have personal knowledge about the matter testifying about (FRE 602) iii. Refreshing recollection of witness (FRE 612): 1. If a writing is used to refresh memory of a witness for purpose of testifying (during or before) an adverse party is entitled to 1) have the writing produced at the hearing to inspect it, 2) cross witness about it, 3) and introduce into evidence portions which relate to testimony of the witness 2. Item used to refresh memory does not have to be admissible iv. Lay Witness Opinion (701) 1. Lay witnesses are typically allowed to testify about FACTS not to draw conclusions from the facts 2. Opinion rules for lay witnesses have been relaxed permitted to give opinions if 1) rationally based on perception of the witness and 2) helpful to clear understanding of the witness testimony of a fact in issue 3. BUT, if opinion is based on scientific, technical or other specialized knowledge, they must qualify as an expert under 702 v. Expert Opinion Rules (702-706) 1. Is subject matter appropriate? a. Will the expert testimony help the jury resolve the case and solve issues b. If the stuff is obvious it s a waste of time for expert to testify 2. Is expert qualified? a. Those that become experts thru education (doctors, lawyers, accountants, economists) OR b. Experts thru work experience (farm workers, miners, truck drivers, etc.)

Evidence Outline i. Expert must have greater knowledge than a lay person to make his testimony "helpful" to a jury 3. Is testimony based on relevant and reliable principles and methods? a. If expert is a scientific one (used tests to reach conclusion) Apply Frye for AZ & Daubert for FRE b. Frye Test: i. Test used to reach conclusion must be sufficiently established to have gained general acceptance in the particular expert community c. Daubert Test: i. Determination of reliability is made by the judge ii. Judge considers whether 1) technique used has been tested; 2) technique has been subject to peer review and publication; 3) technique has a high error rate; 4) the technique has been generally accepted in the relevant scientific community 1. No one factor is determinative 2. Judges can also look at the conclusion reached from the technique (joyner) d. Training & Experience Expert (no tests just personal observation to form opinion) i. AZ (Old 702): Is the witness an expert? Some form of education or expert thru experience 1. Shortcomings of Expert observations will be brought out on cross ii. FRE: Judge decides if expert observation is reliable (use Daubert factors) e. Deals w/ whether basis for expert opinion is reliable whether admissible or not. 703 deals w/ whether the expert can rely on inadmissible evidence 4. Proper Bases for Expert Opinions (FRE 703): a. Firsthand observation of the witness (703) i. Medical doctor can base an opinion on what he observes about the patient and what patient tells him b. The trial or hearing itself (703) i. Can give an opinion based on what he hears from sitting in court during trial c. Facts or data not admissible in evidence if the probative value of inadmissible evidence in helping the jury evaluate the expert s opinion substantially outweighs their prejudicial effect

Evidence Outline i. AZ allows the inadmissible evidence for the expert opinion so long as it is reasonably relied on by experts in the field 1. Ex: A doctor can testify that he based his opinions in part on consulting w/ other specialists, and tell the jury what the other specialists told him (despite being hearsay) a. Couldn t do this under FRE 5. Opinion on Ultimate Issue (FRE 704) a. Expert testimony on ultimate issue (factual matters or legal conclusions) is okay so long as it is helpful to jury i. If expert testimony is something jury couldn t figure out on their own, its ok ii. If jury can figure it out on their own, not ok 1. Defendant was at fault and negligent (improper) 2. Defendant is a paranoid schizo (proper) b. Experts are NOT allowed to testify in a CRIMINAL case as to their opinion on whether defendant had mental state required under the charge, or a defense to it i. Can t testify defendant was legally insane when crime was committed c. Cross Examination (611-615, 701) i. Leading questions are allowed 1. Adverse witnesses aren t as likely to follow a suggested answer contained in the question ii. In federal court, witness can only cover topics asked about on direct and credibility issues of the witness 1. Cross examiner can call the witness on direct to question them on new subjects iii. AZ court Witness may be crossed on any relevant matter (regardless of it was brought up on direct) iv. Impeachment is the only other area cross can cover that direct didn t d. Common Objections to Questions i. Leading ii. Argumentative iii. Asked and Answered iv. Commenting on other witnesses 1. Can t ask a witness to comment on the truth of another witness testimony v. Compound: vi. Confusing and misleading: vii. Harassing, embarrassing or personally attacking a witness 1. Ex: You re just a low-down scum of the earth, aren t you? viii. Narrative: ix. Non-responsive:

Evidence Outline 1. When the question is appropriate, but the answer does not respond to it 2. Typically happens on cross w/ adverse witness x. Speculation and Conjecture: e. Impeachment General i. Impeachment is cross examination that attacks a witness' credibility ii. Any party can impeach any witness, including their own witness 1. Would also want to impeach own witness to lessen the sting when its brought out on cross iii. Good faith requirement 1. Requires lawyer to believe the question is 1) relevant and 2) can be backed up by evidence if not admitted by witness iv. Warning Question Requirement: 1. Some impeachment methods require a witness to be asked about the impeachment matter before it is brought out 2. This question gives the witness an opportunity to admit, deny, or explain the impeaching matter before allowing extrinsic evidence in a. Rationale behind the rule is judicial efficiency. If witness admits the impeaching matter, no need to call another witness to prove up the impeachment 3. If witness denies impeaching matter, then depends on importance of the matter to determine whether issue can be proved up (see below) v. Proving up a denial of impeachment matter: If witness denies or equivocates impeachment matter 1. Noncollateral (important) matter Must be proven w/ extrinsic evidence a. If non-collateral and witness denies it and you can t prove it up, can t raise it during cross 2. Collateral (unimportant) matter CANT be proven w/ extrinsic evidence a. Collateral = only offered to contradict testimony or nonimportant issue b. Examiner must accept the witness answer 3. Non-collateral categories: a. Bias, interest, motive, and prior convictions must be proven up w/ extrinsic evidence 4. Collateral categories: a. Conduct probative of untruthfulness/prior bad acts 5. Case by case categories: a. Prior inconsistent statements and contradictory facts f. Methods of Impeachment: i. Bias/Interest/Motive: 1. Can be anything about the relationship of the witness to any of the parties or the lawsuit that might cause a witness,

Evidence Outline consciously or unconsciously, to slant his testimony for or against a particular party 2. Type of impeachment is always non-collateral 3. Bias exists where a witness, through some relationship to the parties or attitude about the matter in dispute, has a frame of mind that could color his testimony 4. Interest exists where a witness's relationship to a party or the lawsuit is such that he stands to gain or lose, usually financially, from a particular outcome to the case a. Ex: Business partners 5. Motive is the reason why a person does something or testifies the way they do about their conduct a. Typically comes up on cross of the defendant b. Evidence that the witness once had a dispute with the defendant is admissible to show motive 6. Warning question required ii. Prior Statement Impeachment (613, 801 d(1)): 1. To impeach w/ prior inconsistent statement: a. Prior statement must be materially impeaching i. Major inconsistency between statement on stand and prior statement b. Warning questions are required c. Prove up if non-collateral (important) 2. The test for inconsistency is whether the prior statement or omission has a reasonable tendency to discredit the testimony of the witness 3. Impeachment by omission applies when a witness makes a statement about an event and adds an important fact to their testimony that was previously left out a. Can impeach by showing a reasonable person would not have left that omitted fact out originally i. Ex: Witness testifies at trial that the robber had a revolver in his waistband, but in a previous statement the witness failed to mention a revolver 4. Impeachment by silence applies when a witness testifies to a fact but failed to mention it previously a. Foundation is showing that the witness should have reasonably been expected to speak b. Can t use defendants post-arrest silence against him he has right to remain silent 5. Can impeach party under 801(D)(2) as party admission if they don t testify or under 801 (D)(1) prior statement by witness if they testify iii. Contradicting Facts:

Evidence Outline 1. Occurs when a witness, usually on cross-examination, is asked to admit a fact that is inconsistent w/ what the witness just testified about 2. Proving up depends on whether issue is collateral or non case by case basis 3. Warning question requirement a. Admits it impeachment over b. Denies collateral/non-collateral iv. Prior Convictions (609): 1. Allows impeachment of a testifying witness (including D) credibility by showing the witness was previously convicted of a. Felonies i. Felony = crimes punishable by death or imprisonment over a year b. Misdemeanors involving dishonesty or false statement i. No balancing test required ii. Perjury, embezzlement, any crime w/ deceitfulness or untruthfulness 2. Rule 609 requires balancing the prior conviction s probative value with its prejudicial effect, when: a. Felony convictions of defendants in criminal cases i. Applies when defendants testify n their own case ii. Consider 1) nature of prior crime; 2) age of the prior crime; 3) similarity b/w prior crime and crime at trial; 4) importance of defendant s testimony (if important judge will keep prior conviction out); 5) centrality of credibility issue 1. As a result most courts will sanitize the conviction you ll only hear he had a prior conviction but not what for b. Convictions over 10 years old i. Generally these convictions are kept out but allowed in if probative value outweighs the prejudicial effect 3. 403 objection can be raised to all prior convictions a. Judge determines whether the unfair prejudice of allowing the conviction substantially outweighs its probative value b. Judges are reluctant to allow conviction impeachment in civil cases unless conviction relates directly to truthtelling 4. Warning questions required 5. Non-collateral v. Character for Untruthfulness (608) 1. 608 (A) Deals w/ direct of character witness (rep or op)

Evidence Outline 2. 608 (B) Cross of fact or character witness (rep, op, SA) 3. Only character evidence allowed is truthfulness / untruthfulness a. Purpose of the rule is to prove that the fact witness or character witness is acting in conformity w/ that character and is more likely to be testifying untruthfully 4. Evidence of a witness TRUTHFULNESS (fact or character) can only be admitted once attacked 5. Applies to any witness including defendant if they testify 6. Cross of character witness is limited to credibility of that witness 7. 3 ways to attack/support (rebut) FACT witness (FW) character under 608: a. Call character witness direct - reputation of FW b. Call character witness direct opinion of FW c. Impeach FACT witness w/ prior bad untruthful acts (608(b)) i. Filling out false employment application ii. Filing false income tax returns iii. Warning question iv. Collateral 8. 4 ways to attack/support (on direct) CHARACTER witness truthtelling character: a. Call character witness for character witness rep b. Call character witness for character witness opinion c. Impeach original character witness w/ prior bad untruthful acts i. Collateral ii. Warning question required d. Impeach original character witness on cross w/ specific instances of the FACT witness conduct relating to FACT witness truth-telling or bad acts in general i. Allowed to test the character witness knowledge of the fact witness character ii. Warning question iii. Collateral vi. Treatises (803 (18)) 1. Applies only as a way to impeach an expert witness 2. Treatise must be established as a reliable authority by the testimony or admission of the witness or by other expert testimony 3. The treatise is read to the jury but not admitted as evidence vii. Impeaching out-of-court Declarant (806): 1. When court gets a statement from an out-of-court declarant (typically 804 exceptions), you can present impeachment

Evidence Outline material you would ve presented to the witness had they testified 2. Can offer extrinsic evidence if impeachment is non-collateral g. Rehabilitation (613 & 801(D)(1)): Applies after impeachment i. Proper redirect includes: 1. Giving witness opportunity to explain, qualify why can inconsistency occurred 2. Can rebut any bad character for truthfulness brought out under (608 b) w/ good character for truthfulness a. Note Showing of bias and interest is not considered an attack on truthfulness so not rehabilitation allowed after this 3. Rehabilitate after inference of interst/motive/lying under (801(D)(1) by showing prior consistent statement was made b4 event a. Just being impeached w/ prior inconsistent statement doesn t trigger (801(D)(1) rehabilitation 4. Anything that will reduce the impact of impeachment ii. No leading questions