Questions:

1. modus operandi exception to bar against evidence of character: applicable only to crim
cases or also civil. D only or W as well? Believe no, pg 198, plus 404b no crim id
2. Do federal rules take bubble bursting or mccormik approach?
3. Foundation for extrinsic evidence of bias: if W denies statement/expression of bias during
cross-exam  is it still within the discretion of the judge to admit?
4. Where’s rule requiring ‘good faith’ questioning (ex – cross exam of W abt ‘bad acts’ to
impeach) + Must accept answer W on cross gives, cannot offer extrinsic ev.
5. Instances when a party may bring forth specific instances of conduct
6. Evidence of character available in civil, criminal (flow chart)
7. Important cases mentioned
8. If D raises good character evidence under 404(1)…and P wants to rebut by asking
questions about specific instances, must she do it by questioning the same W or may she
ask other W abt specific instances?
9. 609(a)(1) – bringing previous convictions of W, when do 403 assessment is judge
assessing whether conviction is probative or whether W actually committed the crime in
question?
10. Notes: R. 401, parts 1&2 are strategic, 3 is legal…what does that mean!?!?
11. 404(b) – must judge first do a 104(a) analysis abt legitimacy of admission (where you
argue why it should be entered) before jury does 104(b) process of whether event
actually occurred?
12. Pg 199 how could prosecution avoid use of extrinsic evidence to bring prior misconduct
and instead cross examine D? Why would defense broach topic of past crimes…don’t have
to stay in general scope of direct testimony?

EVIDENCE OUTLINE
I. TYPES OF EVIDENCE
A. Physical Types of Evidence
i. Real Evidence – gun, paper, etc.; an object that played a role in the events at issue,
produced for inspection at trial. Type of demonstrative
a) Exception to admittance: if particularly disgusting, like an amputated leg but
also depends on how presented.
ii. Demonstrative – object that played no role in events at issue but illustrates
something abt those events
a) Ex – maps, diagram, model, etc.
iii. Documentary (special type)
iv. Viva Voche – from the mouths of witnesses
v. Judicial Notice – [201]
a) substitute for other types, when highest ct. takes notice of efficacy of form of
evidence (e.g. radar, DNA)
b) Must be:
1. Adjudicative fact
 Capable of being known to a veritable certainty/ ‘not subject to
2.
reasonable dispute’ [“capable of accurate determination thru sources not
reasonably questioned”] [201(b)]
3. Based on general knowledge, not judge’s own experience
c) Scope:
1. Only: adjudicative facts
2.
d) Not eligible for j.n.:
1. Legislative facts (pre-nuptual agreements deter divorce)
2. “subjective” points (Shaq is tall vs. Shaq is 6’10”)
e) Timing – any time, even during appeal
f) P may controvert j.n. [201(e)]
1. Judge may look at inadmissible ev (e.g. study that controverts study j.n.
based on). If unsure  no j.n.; If by preponderance of ev  permitted
2. Only before judicial notice ruled on and implemented [201(g)]
3. If civil  conclusive to jury…so anything to the contrary is inadmissible.
4. ** …is applicable to the facts in way P stipulates (judicial notice Marines
trained in guns, dispute that D trained to clean gun quickly)**
g) Civil vs. Criminal
1. Criminal
 Jury not required to accept j.n. as conclusive…even if D asks for
it
 Past criminal conduct: ct. may take notice of existence of docs in
system, but likely not their contents (e.g. indictment for previous
assault, but not the facts or allegations contained within)
2. Civil
 Jury must accept j.n. as conclusive
h) Practice Question
1. Assume for felony, must show item stolen worth $1,000. Prosecution puts
on case and rests, forgot to show item worth $1k. What can P do? Can
request j.n…available at any time, even on appeal.
B. Relevancy of Evidence [401, 402, 403]
i.
ii. Rules
a)  R. 401 : RELEVANT – if has “any tendency to make the existence of any
fact that is of consequence to the determination of action more probable or
less probable than would be without the evidence”
1. “Logically Relevant” – evidence that has any tendency in logic to
establish a proposition
b)  R. 402 : ADMISSIBILITY OF RELEVANT EV. – relevant evidence is
admissible except as otherwise provided by statute or constitution.
c)  R. 403 : PREJUDICIAL RELEVANT – even if relevant, evidence may
be excluded if its probative value is substantially outweighed by
considerations of unfair prejudice, waste of time, confusion of issues.
 1. “Legally Relevant” – Ev. whose probative is great enough to justify the
delay, expense, prejudice or confusion that is involved in considering it.
2. Examples:
 Emotional appeal: personal injury plaintiff day in the life video
featuring emotional scenes of P w/ fam, cld remove prejudicial
portions
 Waste of time, confusion: p.i. case for defective bullets at D
manufacturing plant 1, evidence of defects in bullets at other
plants…some probative but time of investigating differences in
plants, incidents, etc. outweighs.
 Ineffectiveness of limiting instructions: D facing murder of V via
poison, pros wants bring ev of V claim before died that D
poisoned to show V’s state of mind  not to show D murdered
but unlikely jurors wld be able to ignore for that purpose.
3. Court Should Consider:
 Available substitutes for that evidence (prob value & risk of
prejudice) [Old Chief case],
 Verbal testimony, stipulation, pre (not post)
autopsy photos, still illustrations (not computer
animation), direct W to avoid inflammatory
characterizations
 *Testimony as accurate and truthful, cannot dismiss b/c
unreliable W*
4. Applies to:
 Criminal + Civil
 Both P + D
 Exception – Rule 609(a)(2) impeachment of witness for
‘dishonesty crime’ w/o balance test.
 Admissible for one purpose but not another and danger jury won’t
follow limiting instruction.
5. Objecting to:
 Analyzing (1) §401  what is probative value?
 (2) § 403  what is unfairly prejudicial aspect?
 (3) How is V substantially outweighed by P?
6. Defending: minimize prejudicial facts/impact + max probative

iii. Logical Relevance

a) Question: is the information PROBATIVE?, does it make proposition more
or less likely (very low standard)
b) But…may be admissible for one purpose but not another (but once in, it’s in,
so find way to argue its relevance).
c)
iv. Circumstantial Evidence – Requires some inference  musts show relevance
a) Most facts require some level of inference – even eye-witness’
testimony....requires the inference that the witness is telling the truth
b) FACT + INFERENCE = LEGAL PROPOSITION
 1. Ex – Officer states he saw Joe’s wet jacket on the floor. Makes the
inference is that Joe was outside in the rain around time Leslie was shot
“more likely”, leading to idea he cld have been the shooter
 Fibers, fluids, other physical ev.
v. Direct Evidence – requires only the inference that the evidence is true
vi. Removing Relevance: D may stipulate a fact/issue (essentially admitting to it) so
the issue is no longer in contention  R. 403 issue then, evidence to show fact is no
longer probative and may be unfairly damaging to D = UNFAIRLY PREJUDICIAL
a) Stipulation, in order to block evidence offered to prove admitted facts, must:
1. Leave no ‘gap’ in the legal story (if it doesn’t, P cannot claim that it will
suggest to jurors that P doesn’t have evidence to support the claim)
2. Cover issue in its entirety
• Old Chief v. United States – D charged w/ being felon in possession of
firearm, previous assault conviction. D moved to STIPULATE to the offense
if P agreed not to mention details of previous crime. P rejected. Ct. found
evidence no longer held any probative value but details of the assault cld
prejudice jurors against the D.
vii. Relevancy Objections
a) Evidence is Immaterial – materiality can be confused with relevance,
although it has logical tendency to establish fact its offered to prove, the fact
is not at issue (may have been removed b/c of ADMISSION in the pleading,
CONCEDED POINT)  R. 403 “Waste of Time”
b) Evidence is Irrelevant “Objection, relevancy?” Irrelevant if has no tendency
in logic to establish the fact that the proponent asserts the evidence will help
prove.

II. INTRODUCING EVIDENCE

A. Standard for Admissibility
i.
B. Generally
i. Types:
a) Judge decided = sufficient for item to be admitted into evidence, looking only
at proponent’s evidence  “authentication”
b) Jury decided = whether sufficient to be, in fact, “authentic”  “authentic”
ii. Process: * cannot reveal contents *
a) Must be marked (even if not admitted, for appeal)
b) Show to opposing attorney
c) Witness testimony
1. Ask Ct. to approach
2. Exhibit to W
3. “Can you identify?” (ref. # for record clarity)
d) Lay the Foundation (for Authentication if 901)
1. may ask leading questions b/c otherwise difficult if ‘unfriendly witness’
[only when unfriendly or all?]
2. bring extrinsic evidence
 e) If permitted, tangible product for jury (make copies, put on screen, etc.)…
make sure jurors aware of contents now

C. Authenticating Documents [R 901, 902]

i. Types requiring authentication:
a) Real Evidence – gen involves action in transaction or occurrence which gave
rise to lit (guns, cocaine, etc.)
1. Must show:
 Actual item from transaction or event
 Has not undergone significant change
2. Methods
 Distinctive characteristics [901(b)]
 Chain of Custody (from event -> ct) – each person who touched
exhibit must describe how and from whom received, how
handled
ii. Requirements
a) Authentication and identification as condition precedent to admissibility
b) Evidence to support finding matter in question is what claims to be
c) Standard: reasonable jury cld find item to be what proponent claims
iii. Self-Authenticating [902]
iv. Authentication by Identification [901]
D. Original Document Rule

III. BURDENS & PRESUMPTIONS

A. Burden [301]
i. Types
a) Production
b) Persuasion
B. Presumption
i. Basic Equation:
a) (1.) FOUNDATIONAL FACTS + (2) REBUTTABLE PRESUMPTION =
(3) PRESUMABLE FACT
1. Foundational Facts: from situation before the court (ex - P added stamp
and address to a letter)
2. Rebuttable Presumption: general proposition assumed to be true (ex –
letters which contain stamps and addresses and are put in mail are
delivered)
3. Presumable Fact: conclusion due to existence of foundational and
rebuttable (ex – D received the letter)
b) Effect: if rebutted they will require a factual finding even if that finding is
contrary to reality (assuming not rebutted by opponent of)
1. proponent must offer evidence sufficient to meet a burden of production
at to each foundational fact (trial ct. decides if have met)
2. jury decision whether facts are true
3. CONCLUSIVE EFFECT (unless either presumption or facts
challenged/rebutted)
 c) Reasoning:
1. Fairness – correct imbalance b/c of parties’ unequal access to proof (ex –
between connecting carriers of goods, damage occurred while the goods
were in the possession of the last carrier)
2. Substantive policy – encourage/discourage certain types of out-of-ct.
behavior (ex – that after missing for number of years, person is deceased
so can settle wills)
3. Resolve issues – otherwise diff b/c of absence of proof (ex – title vii case,
once P proved firms failure to promote was motivated by her gender,
burden of persuasion then on D to demonstrate lack of unlawful
discrimination).
4. Facilitation of litigation process – by resolving matters in accordance /w
high probability, streamlines process and avoids factual distortions by
juries deciding fact is not true.
d) Distinguished from:
1. Permissive inference – factual conclusion that the factfinder MAY draw
from another fact or group of facts but does not have to, based on
everyday logic (ex – someone whose usual practice is to fasten seatbelt
did so on relevant occasion)
2. Conclusive presumption – not presumption at all, rule of law that change
the nature of the facts needed to be proven (ex – except otherwise
provided by another stat, child of wife cohabitating w/ a non-sterile
husband child assumed to be child of the marriage …and no conflicting
evidence may be presented).
3. Irrebuttable presumption – not evidentiary devices, rules of substantive
law.
ii. Challenging Presumption- two ways: foundational or presumed
a) Nothing –
1. to jury to decide if believes facts presented, if yes then given conclusive
effect;
2. If weight of evidence supporting facts so strong, judge may enter directed
verdict for element of case or binding jury instruction
b) Foundational Fact Challenge
1. If sufficient facts brought  jury instructed: yes, facts exist  MUST
find presumable facts exist; no, facts don’t exist  view facts normally
and under normal civil standard
2. No challenge to underlying/ foundational  ct. instructions to jury: if
foundational found true  it MUST find presumed fact is true (P retains
burden of persuasion as to underlying facts UNLESS so strong judge
directs verdict)
3. Challenge to foundational facts  jury determination as to existence
 If jury says yes  MUST find that the presumed fact exists/is true
 If no  view facts normally using civil standard of preponderance
c) Presumed Facts Challenge
1. Bursting Bubble Theory – after proponent puts forth facts to support the
presumption, if opponent produces sufficient evidence to meet the burden
 of production, the presumption disappears entirely and jury is not
informed of (functions as matter of permissive inference/may find either
way)
2. Morgan McCormick theory: burden of persuasion shifts to the opponent
to show non-existence of the presumed facts. Usually jury instruction
issued. Two ways
 P produces sufficient foundational – D produces sufficient
against foundational (neither meets persuasive burden) > J.I. = if
foundational facts are true  presumed facts are true unless D
persuades that more likely than not presumed facts are untrue.
 P meets production and persuasive burden for foundational facts
> J.I. = presumed facts are true unless D convinces you they’re
not.
iii. In Criminal Cases
a) Two types of presumptions
1. Mandatory – NOT ALLOWED as jury must make all findings regarding
all elements of alleged crime
2. Permissive

IV. OBJECTIONS + PROTECTING THE RECORD

A. Standard
i. JUDGE DECIDED [104(a)]
a) Test: more probably true than not (civil standard)
b) Types of issues governed
1. Expert witness, qualifications to be (more likely an expert than not)
2. Applicability of hearsay exception
3. Existence of privilege
4. Voluntariness of confession
5. Preliminary questions
ii. JURY DECIDED
B. Preliminary Question –
i. Civil standard (even in crim trials)
ii. Even when jury will decide same question. Why incl judge? B/c if find evidence
excludable wld likely be difficult for jury to not incorporate into thinking
iii. Concerning:
a) Qualifications to be W
b) Existence of privilege
c) Admissibility of evidence
iv. First: whether preliminary fact exists/more likely than not fact exists
a) Judge Considers:
1. even inadmissible evidence
2. credibility of witnesses
C. Conditional Relevance
i. when relevance depends upon existence of some other fact, not only judge deciding
 a) Fact finder Considers:
1. Only admissible evidence (otherwise jury cldn’t hear)
2.
ii. not required to choose between evidence rules, of which jurors assumed to have
insufficient knowledge
iii. unless judge decides ‘no reasonable jury cld reach such a conclusion’
iv.

V. WITNESSES
A. CHARACTER EVIDENCE [404(a)]
i. Exclusion against, generally: prohibits reception of evidence illuminating a person’s
(Witnesses, Defendants, any party on stand) general deposition, when that evidence
is offered to show action in conformity with that disposition on a particular
occasion.
a) Reasoning: “ct. encourages rigorous logic exercise about event, not whether
W good/bad person.”
b) “Character” – generalized descrip of disposition or general trait ex - honesty,
temperance, peacefulness (not stroke victim’s forgetfulness…medical
condition)
1. Arising from: one’s morals –this is not settled tho—over which one has
substantial element of choice and ppl view person more or less favorably
as a result.
B. Exceptions to the Exclusion
i. Criminal Trials
a) If D raises his own character which he raises and is relevant
b) P rebutting D’s claims of good character – may use specific instances when
questioning same W [404(a)(1)]
c) Accused offering evidence of pertinent trait of ‘victim,’ minus limitations
under 412 in sex offense cases
d) P bringing positive character evidence of V to rebut D character claims
against the victim (Note: objectionable if P raises before D does)
e) P bringing negative character evidence against D pertaining to the same trait
which D brought against V (Note: objectionable if P raises before D does)
f) Homicide case – D claims victim was original aggressor, evidence of
victim’s peaceful character [404(a)(2)]
g) Witnesses – for truthfulness or untruthfulness (at discretion of the ct.)[608]
h) Propensity Exceptions – not being used to show conformity but for some
other purpose [404(b)]
i) Habit is freely permitted
ii. Civil Trials
a) Character of the W for truthfulness or lack of (at ct. discretion) [608]
b) Propensity Exceptions
C. Prior Bad Acts 404(b) – (available in both civ and crim), supposedly not being used
to show individual in question acted in a consistent manner, but significantly
undermines 404(a)’s denunciation of character evidence as distinction is so slight.
 i. Standard for admission: to be allowed, judge must determine if a reasonable jury
cld believe D committed act by preponderance of the evidence.
ii. Uncharged misconduct evidence is the term often used to describe what may be
admitted to prove the ‘propensity exception’ b/c ‘uncharged’ implies the act is not
the crime currently being charged in ct. and ‘misconduct’ shows that the act need
not be a criminal one.
a) May include: evidence of crimes/misconduct which did not result in
conviction, acquittal (sometimes)
iii. The act may be admitted not to show conformity but may be used to show
a) Circumstantial support for ultimate issues
1. Motive – may be the “ultimate issue” in a criminal case to show intent or
in civil to support award for punitive damages.
 Ct. have allowed in for variety of reasons (nurse addiction as
reason replaced patients’ demerol shots w/ saline; D prior
imprisonment as evidence selling cocaine to support family) (but
another did not allow evidence of alderman’s gambling to show
motive for stealing money from city…said wld be allowed if
pressing gambling debt).
 Racially motivated past crimes show motive/enmity against
group
 Previous assaults against same person (show dislike as well as
‘lack of mistake’)
2. Preparation – uncharged crimes may be used, e.g. stole car to use as
getaway vehible for robbery, broke into store to take tools used for bank
robbery, etc.)
3. Modus Operandi – distinctively similar method admitted to show (a)
IDENTITY, often that of the defendant as perpetrator or also (b) LACK
OF MISTAKE. Some claim evidence of modus operandi must be
extremely distinct = signature.
 “Brides in the Bath” case where man assumed fake name,
married wealthier woman, joint wills, wife soon found drown in
bath tub…P wanted to incl two other similar instances  admitted
to go to identity
 DOCTRINE OF CHANCES: addresses relevance of similar
misconduct and describes mental process of considering the
likelihood that an unusual or unexpected element would occur…
and the likelihood the unique factor would be coincidentally
replicated in linked instances (i.e. how many times can one
dude’s wives drown in the bath accidentally?)
 Defending against: the situations differ in some manner (Joe
previously punching guy who hit on girlfriend not same as Leslie
being shot, although both may show anger over interference w/
females, bar incident was heat of the moment and Lelsie incident
on g.f. not interferer.
 4. Common plan or scheme – underlying multiple crimes, like if son trying
to reconstitute father’s gun collection, fact stole one missing piece may be
used in case following son’s second theft of gun from collection.
5. Opportunity – shows that D had chance or ability or means to commit
the act in question.
 Defense: if info being used is overly prejudicial (ex – broke out
of prison in area of robbery) should object due to existence of
less prejudicial methods
b) Ultimate Issues:
1. Knowledge – previous warnings abt illegality of certain activity may be
used to undermine D claims of ignorance,
2. Intent/Absence of Mistake – shows existence of a state of mind that is a
prerequisite of commission of the crime. Can also be used to disprove D
claims (if attributes bank robbery he committed w/ B but next day
committed another crime w/ B but was not under duress, undermines
claim). Also, showing of D was not acting under false impression, an
absence of mistake, undermines that defense.
 Be careful! Close to being simply character evidence—which is
barred (if on trial for shooting A, evidence stood trial for shooting
L will only serve to prove the D has a violent, murderous temper)
3. Identity – uncharged misconduct may be offered to show identity of
person who committed certain act. Commonly through modus operandi.
Also, more directly (ex – D attempting to bribe juror suggests he is guilty
and has something to hide).
c) Must also withstand:
1. Relevance scrutiny: proponent must put forth evidence showing both
a) the immediate purpose for the evidence offered (what does it go to
prove? Move, opportunity, etc) & b) the ultimate fact it tends to prove (is
it circumstantially showing something or does it go to an ultimate
fact/element?)
2. 403 determination, must ask if…arouses horror or sympathy? Invoke
desire to punish? Remoteness in time of crime or other bad act?
 Strength of evidence of case before the court. If solid case
already, makes additional evidence less probative and more
vulnerable to 403 objection
 Alternative methods available to prove same point
 if in blurry range btwn ‘general bad character’ evidence and
‘propensity’  argue it is unlikely jurors cld consider ev only to
element of motive, etc etc.
3. 104(b) determination, must bring sufficient evidence to show that a
reasonable jury could find by a preponderance of the evidence that W did
commit the act in question
d) New York Rule: the list of exceptions is exhaustive and evidence of
‘character’ may be brought in ONLY for those purposes listed.
e) Res Gesta/Complete Story – W permitted to tell story in a natural fashion,
admitted for that purpose NOT for saying anything abt character
 1. Balance: full flavor vs. prejudicial
f) Quantum of Proof: Uncharged Misconduct – must show not whether
person was guilty of the uncharged offense beyond a reasonable doubt…but
whether the uncharged offense demonstrates proof of the charged offense
beyond a reasonable doubt.
1. Burden: showing of evidence sufficient to allow a reasonable jury to
conclude that D had committed the prior acts  CONDITIONAL
RELEVANCY THEORY ([104b] jury obligation to consider evidence
only if it decides by a preponderance of the evidence that the fact at issue
is true)
2. • Huddleston v. United States (1988) – D accused of selling stolen goods
based on his selling at below the cost of manufacture, denied knowing
they were stolen. P offered evidence that sold stolen/apparently stolen
goods before to show guilty knowledge.
3. ex – Brook’s racial attitutdes

Not Excluded (Character Ev not barred by rule) source

•Direct Conclusion Not w/i

Evidence – leads directly to  conclusion X more or less likely to have occurred = not banned scope
1. Crim Case: D offers ev of good character about D (“opens door”)  P may offer Crim.
contradictory ev. [note: may also act as witness and treated as such] 404(a)(1)
 Limits
a. Not allowed: specific acts – minus basic background
b. Must be in form of: Opinion or Reputation by knowledgeable W 405(b)
c. Must include: “pertinent trait of character” (specific traits – honesty, nonviolence- ok; 405(a)
general statement of ‘good character’ – not ok)
d. Relevant to crime charged with
 P method of rebuttal:
a. Call own W – in form of reputation or opinion
b. Cross D’s W – allows P to ask of specific instances of D conduct re: traits W testified to
on direct
2.(a) Crim: D offers relevant ev. against Victim character  P may support character Crim
404(a)(2)
2(b) Crim: D offers relevant ev. against Victim character  P may attack D charac on same Crim
attribute 404(a)(2)
3. Any P, attack W character for truthfulness  other side may then support W character Civ/Crim
 W may incl : D if takes stand as W, ev. against may incl. 608
- prior convictions of D
- W on D character for truthfulness/credibility as W

4. Sexual Assault/Child Molestation: similar conduct of 413, 414,

415
Too narrow and specific to be character trait = TENDENCIES or MODUS OPERANDI Civ/crim
 (‘identity’ example) 404(b)

When character is element of cause of action, character is not used to speculate D behavior, 404 – not
but end in itself. showing
conformit
Prior bad act  if showing something other than character, like motive, opportunity.

iv. Excludes:

Excluded (Character bar applies) Source

•Two steps of inference:
Evidence via W testimony: General Disposition 
Conclusion act more or less likely = Barred

Evidence used to “circumstantially” prove out-of-ct behavior

Reputation (way of showing character but may be undeserved)

Specific instances of conduct, if offered to show general disposition

D. Habit
i. Evidence of habit is freely admissible
ii. Distinction from character: habit is semi-authomatic/reflex response to particular
situations.
iii. In Business: to show processes
iv. For Admission: no requirement habit or routine be corroborated by other evidence,
do not need eyewitnesses, but decided by judge [104(a) – by a preponderance of the
evidence, whether is habit is not a question for the jury]
a) To argue against: not sufficiently regular … depends on how great the need
is for inclusion
b) Must meet § 701 test – Opinion of lay witness
E. Procedural
i. Notice  P must give if intent to offer uncharged misconduct in crim trial [404(b)]
a) Motion in Limine – D may offer in response to possibility of uncharged
misconduct  may influence his decision to take the stand.
ii. Limiting Instruction (uncharged mis) – inform jury that only purpose of evidence is
to shed light on D’s possible motive/intent/etc and not to show D had a bad
character and was likely to commit crimes of they nature charged.
a) Purpose: even if unlikely to effectively separate in mind of jurors, it preserves
for appeal.
 iii. Partial exclusion/ Redaction/ Limiting Instruction (dual purpose) – when evidence
admissible for one purpose but not another, request limiting instruction or that
information be ‘neutered.’ In part to avoid prejudice.
iv. Stipulation – to avoid evidence which may be legally admissible for a purpose,
stipulate that point if less damaging than details being offered (P wanting to present
evidence of Joe’s shooting at motorist to show he knows how to operate a
gun/”ability or knowledge”…just stipulate knows how to operate gun).
F. QUESTIONING WITNESSES
i. On Direct
a) May not use leading questions (which suggest answer in question), except
1. Preliminary questions
2. Transitional questions (v. common)
3. To refresh recollection (can use not only verbal prompts)
4. To discuss things/facts/matters not controverted
b) REFRESHING RECOLLECTION [612]
1. W must demonstrate cannot remember facts asked to recall
2. Approach judge to seek permission
3. May bring anything OR use leading questions – does not need to be
admissible into evidence (however may redact irrelevant points and
furnish to opposing counsel if so request)
4. Once W memory sufficiently refreshed
5. Take item away
ii. On Cross
a) May use leading questions
b) Content is restricted to matters raised on direct
1. To get in, bring as own W
c) c
iii. Form of Question Objections
a) Leading – on direct not allowed unless… [611(c)]
1. Hostile witness
2. Adverse party
3. W identifies w/ adverse party – merely being friends is insufficient, must
be evasive
b) Beyond Scope – on cross-examination, may not as any questions of witness
dealing with topic not addressed during direct
1. To get in…invite as own W
c) Assumes fact not in the record – can’t do on direct, just b/c in discovery
does not mean in evidence
d) Calls for Narrative Response – witness could reveal inadmissible evidence
if prompt not sufficiently narrow.
1. Defending: not prejudicial and will not involve hearsay or inadmissible
evidence (careful, if wrong anger judge)
e) Compound Question – incl. multiple questions in one and cld confuse W or
give inaccurate impression.
f) Non-Responsive – W not answering question asked of him/her
1. Move to strike from record to preserve for appeal
G. LAY & EXPERT WITNESSES
i. R. 701 – LAY TESTIMONY
a) Basic Elements
1. “rationally based”
2. “helpful to”
3. “not based on scientific, technical, or specialized knowledge”
b) Argument for Excluding
1. R. 602 – Personal Knowledge
2. “Rationally based” – have collected underlying facts but did not reach a
logical conclusion.
3. “Helpful to”…not helpful if:
 too general
 too specific
 merely concludes element at issue (despite R. 704 removing
ban on Opinions on Ultimate Issue, generally is not helpful)

ii. R. 704 – EXPERT TESTIMONY

a) Basic Elements
1. Subject matter: “scientific, technical, specialized knowledge”
2. “will assist trier of fact”
 To assist, must be:
 Relevant
 Reliable:
a. Opinion based on sufficient facts or data
b. Product of reliable principles and
methods
c. Reliably applied principles to facts
3. “W qualified as an expert”
4. “may give opinion” [703]
 Not based on speculation, may be based on…
b) Cases
1. Kumho Tire v. Carmichael (S. Ct. 1999)
2. Daubert v. Merrell Dow Pharmaceuticals, Inc.
c) Exclusion [704]
1. Ex. W MAY NOT testify to:
 Criminal case + whether D possessed mens rea requrd
iii. Bases of Opinion Testimony (by Experts) [703]
a) May not base opinion on speculation, may base on…
1. Facts garnered from own observation
2. Facts presented in evidence at the trial, posed to expert usually thru
hypothetical question
 3. Facts not in evidence but expert learned out of ct. and are a type
reasonably relied upon by experts in the particular field in forming
opinions on the subject
b) Disclosure of factual basis [705]
1. Ex.W does not have to reveal basis for opinion on direct but may be
questioned abt on cross
2. If opinion based on ev. derived from trial  does not have to be revealed
by direct attny using hypos (as was pre-FRE practice)
3. If facts learned out of ct.  must NOT reveal those facts/ basis of
opinion unless…
 Ct. determines probative value substantially outweighs
prejudicial effect
c) Pre-Daubert: Frye Test  Admissibility of Methodology
1. W qualified to testify to the particular knowledge (on direct)
2. Gave opinion on substantive issue
3. Test of methods: general acceptability in field
4. Current applicability:
 NY
5. Criticism:
 Junk science admitted b/c those who use it obvi consider it
acceptable even if incorrect (divining rods e.g.)…often only 55
users and was considered ok.
 Lag b/c takes time for group to catch-on to
 Field has diff standards than ct., may be lower as not being used
to incarcerate or penalize person gen.
 See text
d) Daubert  Admissibility of Methodology [702]
1. Facts: lower ct. ruling overturned for failing to meet general acceptability
test b/c manner in which scientists conducted tests to determine if med
was carcinogenic was not gen used…reversed Frye.
2. Rule:
 Judge, not scientists, is the gatekeeper  encourages thorough
logical analysis
 Foundation
 104(a) judge preliminary question: subject
matter appropriate for expert testimony? 
see 702 “reliable principles and methods”
a. Experts: scientific, technological,
specialized
b. Non-experts: testimony based on
SPECIALIZED EXPERIENCE rather
than formal scientific training (Kumho
tire)  subject to gatekeeping examination
and use demonstrably valid
methodology but not need meet same
 requirements as scientific….depends on
category.
 Is W qualified to serve as ‘expert’?
 Considerations
 Has theory/technique been tested
 Controls and standards established and
maintained?
 Peer review studies published?
 Known error rate?
 General acceptance within scientific community?


H. IMPEACHMENT
i. Process/Method
a) Must be a good faith basis for factual validity of matters raised by questions
b) Extrinsic Evidence
1. Permitted:
 Inconsistent statement
 Bias
 Mental capacity
2. Not permitted:
 To impeach on collateral issue for truthfulness (but if relevant for
another reason may bring in extrinsic evidence)

ii. Using Character Evidence

a) Specific Instances of
1. Permitted at discretion of the judge (!!!) [608(b)]
iii. Modes of Impeachment (The Crazy COP Can Pray)
a) COMPETENCY
1. Attacking ability to perceive, recollect or narrate
2. Using:
 Extrinsic evidence
b) CHARACTER – Untruthfulness [608]
1. For truthfulness or untruthfulness
2. Using:
 Generalities about character (bad reputation or opinion of W)
[609]
 Must pertain only to truthfulness and be
extremely general
 Cross examine regarding specific misconduct (that did not result
in conviction and reflects on truthfulness) w/ permission of ct.
(ex – falsifying academic record on employment application)
 Must accept W denial of the misconduct, cross
examiner must accept the answer
 Prior criminal conviction that reflects on truthfulness

 c) OPPOSING TESTIMONY
1. Opposing testimony conflicting content of W testimony
2. Using:
 Cross examination (specific instances)
 Use of other previously introduced testimony
 Witnesses own prior inconsistent statement
 New evidence contradicting W’s testimony
 Extrinsic evidence regardless of whether collateral issue
 Note: if it is a collateral issue, extrinsic evidence used to
contradict the W may be kept out by court under 403 waste of
time anyway (unless case is close).
d) PARTIALITY/ BIAS
1. On Cross: may impeach in any mode so long as permission of judge [608]
+ good faith basis
2. On direct:
 May use extrinsic evidence
e) CRIME
f) PRIOR INCONSISTENT [613]
1. When inconsistence lies in what W originally did not say or left out
(admissibility depends on whether it is something wld naturally include)
2. Methods
 Collateral issues: only relevance is fact W prev said something
contradictory abt (ie type of food served at work picnic in sex
assault case).
 May question W abt (ct. has wide discretion to
bar or allow) but MUST accept W answer.
 Independently relevant: may be also used to show bias, a
substantive issue of suit, or perception
 EXTRINSIC is permitted (make sure not using
for heresay excluded purpose!!!!)
3. Foundation [613(b)] for EXTRINSIC – do not need to confront w/ the
prior inconsistent before bringing in the extrinsic evidence, but common
law approach is preferable b/c W may not be available later
 Does not apply to party-opponent…extrinsic of prior inconsistent
statement admissible whether or not a foundation has been laid
by asking p-o abt
 Queens Rule minority: if going to question W abt writing or prev
statement must first ask foundational questions
 If reading from a document  W has right to see and is often most
effective if have W read from.
4. Defending against
 Not inconsistent (purpose is to shed light on credibility…does
statement offered do that?)

I. REHABILITATION
VI. HEARSAY
A. EXEMPTIONS
B. EXCEPTIONS
i. Residual Exception
ii. Declarant is Unavailable [804]
a) Former Testimony
b) Declaration against interest [(b)(3)]
1. Types of interests that qualify:
2. Only partially disserving:
c) Forfeiture by wrongdoing
d) Dying Declaration
1. Unavailability
2. Belief death is imminent
3. Statement concerns the cause or circumstances of death
4. Civil case or homicide prosecution
5. Personal knowledge required
iii.
C.
i. Certain Documents
D. CONFRONTATION CLAUSE
i. Consider:
a) 1st: Is it Hearsay?
1. Yes  Does it fall into hearsay exception or exemption?
 Is it testimonial?
2. No  Not hearsay, in but not substantively
VII. EVIDENCE EXCLUSION –
VIII. NY
A. 613(a) – must give notice of previous inconsistent statement, follows Queens rule
(foundation: must tell subject, time, place, to whom statement was made)
B. P-O exception rather than exemption to hearsay
C. “Speaking agent” – must be authorized to speak for the principal (regardless of scope
of his employment)
D. Scientific expert – Frye test rather than daubert
E. Medical diagnosis – must be for treatment, not diagnoisi
F. Dead Man’s Statute: prohibits an adverse party from testifying a dead person’s eastate
a/b transaction or coversations w/ dead person