Professional Documents
Culture Documents
Evidence Checklist
Evidence Checklist
Part 1: Relevance
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18
19
Part 6: Hearsay:
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Part 7: Confrontation:
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40
Part 9: Privilege:
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51
5 Building Blocks
Relevancy all evidence that is admitted is relevant
Witness Testimony 3 types: character, lay, expert
Exhibits 2 types: real evidence, demonstrative evidence
Hearsay 3 key issues: Is it hearsay? Does it fall within exception? Any confrontational issues?
Privileges
Is it relevant? Under 401
Authenticated? Under 901
Hearsay
Assertion
Out of court statement
To prove TOMA
Exceptions
Even if court admitted under exception still have Confrontation Clause issues
Who is it being offered against?
Prior opportunity to cross-examine?
Prove not available?
Testimonial
Can prove expert witness?
1) Is Evidence Relevant
If relevant, what is my purpose for introducing the evidence (Character/Propensity)
o Permissible Purpose
Limited Purpose, Limiting Instruction
Rule 403
o Impermissible Purpose
Is the witness
o Competent, oath , know, examined correctly
Rule 104(a): judge resolves all legal issues relating to admissibility as well as most factual ones- preponderance of
evidence whether reasonable jury could resolve dispute either way
Huddleston: preponderance standard
Rule 106: Rule of completeness, If a party introduces all or part of a writing or recorded statement, an adverse party
may require the introduction, at that time, of any other part- or any other writing or recorded statement- that in fairness,
ought to be considered at the same time
Oral Statement: Might require under 403 to admit missing portion or Rule 611(a)
Part I Relevance
1) Rule 401: Does the proffered evidence have any tendency to make a material fact of consequence more or less likely
(very low standard)
Rule 402: All relevant evidence is admissible unless other provision excludes the evidence.
3) If prejudicial effect substantially outweighs probative value, then evidence is excluded. If not, still subject to other
rules, such as hearsay.
Other Relevance Rules
1) Rule 407: Does the evidence include a subsequent remedial measure (in civil case that wouldve made the accident
less likely)
2) Rule 408: Does the evidence arise out Compromise/Settlement Offers in a civil case?
3) Rule 409: Payment of Medical Expenses: Does the offered evidence include evidence of offers to pay medical
expenses? Rule 104(a)
4) Rule 410: Plea Discussion- In a criminal case, does the evidence arise out of:
A withdrawn guilty plea; a plea of nolo contender; surrounding statements concerning a withdrawn guilty plea
or plea of nolo contender; or statements made during plea bargaining with a prosecuting attorney Rule 104(a)
o If no, not excluded under Rule 410. Look to statement of party opponent
Did plea bargaining occur
o 1. displayed an actual subjective expectation to negotiate a plea and
o 2. That expectation was reasonable given the totality of the objective circumstances
Has another statement from the same plea bargaining discussions already been introduced?
o Would fairness dictate that this plea statement also be admitted
Is the statement made in plea discussion being offered in a criminal prosecution for false statement or perjury?
o Was the statement made under oath, on the record, and with counsel present
Evidence is not excluded under Rule 410, admissible as statement by an opposing party
o Was the statement waived-Waiver is permissible, at least to including statements made during plea
negotiations
Does the probative value substantially outweigh the prejudicial effect under Rule 403?
5) Rule 411: Liability Insurance: Does the evidence go to whether a person possessed liability insurance?
Is the evidence concerning liability insurance being offered to demonstrate a purpose other than to prove that a
person acted negligently or otherwise wrongfully?
o If yes, not for purpose excluded by Rule 411
o Need to provide specific other purpose- proving agency, ownership, or control; demonstrating bias of
witness
Dias the probative value substantially outweigh prejudicial effect under Rule 403
Yes: character evidence, excluded unless fits into exception or non-character use
o Rule 404(a)(1): Evidence of a persons character or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the character or trait.
No: not character evidence and may be admissible because
o Crimes/Wrongs/Other Acts Non-Character Purpose under Rule 404(b)(2): Civil and Criminal
Can jury find by a preponderance of the evidence that the defendant committed the other act
Huddleston: whether knew video tapes were stolen. Prior bad act can be admitted if
judge finds jury could reasonably find committed prior act
What is purpose: motive, intent, mistake or accident (absence of), identity, common plan or
scheme
Absence of mistake (probability of events- death of many wives in same way)
Common plan (burglarizing garage to get stuff to rob bank)
o Setting two fires in past to get insurance money
Motive- previous crime motivated charged crime
o Tax liabilities to show motive for arson
Identity- signature elements of a crime (strong connection, unique)
o Identity must be at issue; strong similarities between charged and other crime
o Hookers able to recognize cop b/c hired regularly
Opportunity- access to a particular place
Knowledge: if element, (convicted of DUI before); breaking into safe shows know
o Jenkins: just using crack in past isnt admissible to show knew that package
contained cocaine
Intent: (poisoning someone, failing, then shooting intent to commit the crime)
o Good as well- hired older worker goes against discrimination
Probative value: Is directed at disputed fact or issue, cannot be cumulative
Such as questioning
Rule 403 balancing: is probative value substantially outweighed by prejudicial effect
Strength of evidence, need for the evidence, proximity in time of other act/ degree of
similarity
How long ago the other crime/act was
Can a limiting instruction minimize the danger?
Notice- on request by defendant, prosecutor must provide notice, before trial
o Rare occasion where character is at issue and specific acts evidence of character admissible under
Rule 405(b)
Direct evidence of character because trait or character is essential element of claim, crime, or
defense
Can introduce extrinsic elements
Defamation, child custody, entrapment, negligent entrustment
Rule 403 balancing test
o Rule 406: Habit Evidence
1) Is it the type of conduct that can constitute a habit; 2) Is the conduct shown to have
occurred with sufficient frequency and regularity; 3) has sufficient evidence been introduced
to establish that particular person possessed the habit?
Doesnt have to be corroborated
specific, repeated responses to particular situation or stimulus, distinct
Generally passes Rule 403 because low risk of prejudice
Yes: only type of character evidence allowed in civil case is character of witnesses.
o Rules 607, 608, 609: Witnesss general tendency of truthfulness and witnesss conviction of certain
crimes can be used to impeach.
Civil case, Rule 412 Rape Shield: Probative value substantially outweighs the danger of harm to any victim
and unfair prejudice to any party, and the victim has placed it in controversy.
3) Rules 607-609: Is Evidence offered of a Testifying Witnesss general character for truthfulness/untruthfulness?
4) Rule 404(a)(2): Does the Criminal Defendant seek to offer Character Testimony (Either reputation or opinion) as
to their own good character about the pertinent trait
5) Rule 404(a)(2): Does the Criminal Defendant seek to offer Character Testimony As to Victims Bad Character
about pertinent trait?
If not sexual, Rule 405(a): May be proved by reputation or opinion testimony
o Pertinent Trait: peacefulness and good order; truthfulness & veracity
Prosecutor can then
o Cross-Examine Witnesses for Accused on specific instances of pertinent behavior
Whether knows about good specific acts relevant to trait
Good faith belief, no extrinsic evidence
Limiting Instruction that only to test knowledge
Specific Act by the defendant must be publicly known/susceptible to public knowledge
o Impeach defendants witness credibility: bias, motive, criminal convictions
Offer character evidence (different witness) to rebut evidence about victim through reputation or
opinion
Testifies as to victims good character of same trait
Offer character evidence of the same trait of the Accused through reputation or opinion
6) Rule 404(a)(2): In Homicide case, did Accused offer evidence that Victim was first aggressor?
Rule 404(a)(2): Prosecutor can introduce evidence of victims character for peacefulness+ good order to rebut
Rule 412: If evidence of sexual disposition/history, including dress, only admissible if falls under rape shield
exception
o Specific instance to prove someone else source of physical evidence
o Evidence of specific instance of victim with respect to Accused to prove consent or if offered by the
prosecutor
o reject evidence of the defendants promiscuous reputation to prove that the defendant reasonably
believed that she consented to sexual contact with him
o Greater discretion in civil cases
o Violate constitutional rights
Olden: wanted to show had motive to lie about consensual relationship because seeing Oldens brother
o Wanted to introduce evidence, that was living with brother as motive.
o A defendant has the right to confront a witness against him in a sexual assault case and impeach the
witness for bias through cross examination on certain issues not barred by Rule 412 of the Federal
Rules of Evidence.
Civil case, Rule 412 Rape Shield: Probative value substantially outweighs the danger of harm to any victim
and unfair prejudice to any party, and the victim has placed it in controversy
All relevant bad acts of Accused are admissible under Rule 413-414
o No time limit, need not be convicted conduct
o Rule 413: allows prosecutors to introduce evidence of other sexual assaults committed by the
defendant, and to use that evidence for any purpose, including to suggest that the defendant has a
propensity to commit sexual assaults.
o Rule 414: For child molestation, prosecutor can introduce evidence of other molestations, and argue
that defendant has a propensity to molest children
o Rule 415: Same evidence and propensity reasoning in civil cases involving sexual assault or child
molestation.
Doesnt have to be convicted of earlier act, prosecutor has to show under Huddleston that a jury could
reasonably find by a preponderance of the evidence that the defendant committed
Rule 403 applies, but propensity use is not unfair prejudice
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1) Defects of Capacity
Attack witnesss ability to perceive events, recollect events, or accurately recount testimony
o Physical impairment to sight or hearing; a mental defect to cognition or understanding
Substance abuse that interferes with the ability to process information or remember the
incident
If yes, the witness can be impeached for sensory perception and extrinsic evidence of that impairment is
probably admissible
Rule 403 still applies though
2) Contradictory Facts: Showing something that the witness said is actually false
Key issue of whether you can prove up the contradiction with extrinsic Evidence
o Collateral v. Non-Collateral- Does the evidence have any other purpose than to contradict the witnesss
testimony?
If yes: Non- Collateral = can introduce extrinsic evidence to further disprove answer
Bias, motive, interest
Witnesss Convictions under Rule 609
Linchpin Facts: facts negating assumption that witness was in the right place at the
right time to observe what she testified to
Any dual relevancy evidence (impeach and substantive issues at trial)
If no: Collateral = cannot introduce extrinsic evidence, must take answer
Probative of Witnesss Untruthfulness under Rule 608(b)
PIS & Contradictory Facts when only admissible purpose to contradict witness
Specific Relevant Act when cross-examining Character Witness under Rule 405(a)
No specific federal rule. Relevant, non-collateral, and never beyond the scope of direct-examination
Bias: Anything about the relationship between a party and a witness which might lead the witness to slant,
unconsciously or otherwise, the testimony in favor or against a party. United States v. Abel
o Extrinsic Evidence Allowed
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2 Purpose
o 1) Impeachment
2) TOMA => Hearsay Issues
Rule 613(a): When examining about prior statement
o Need not show or disclose to witness, but on request must show to adverse attorney
Rule 613(b): Extrinsic evidence admissible only if
o Witness is given opportunity to explain or deny the statement and
Adverse party is given opportunity to examine the witness
Or if justice so requires
o Does not apply to opposing partys statement under Rule 801(d)(2)
Rule 106: If a party introduces all or part of a writing or recorded statement, an adverse party may require the
introduction, at that time, of any other part or any other writing or recorded statement that in fairness ought
to be considered at the same time
Judges use discretion under Rules 403 and 611 to prohibit extrinsic evidence of a prior inconsistent statement
on a purely collateral matter
o Causes delay and confusion under Rule 403; disrupts under 611
o Under Rule 613, can present extrinsic evidence of non-collateral matter if witness is given opportunity
to explain or deny the statement and adverse party given an opportunity to examine the witness about
it or if justice so requires
Definitions:
o Inconsistent
No requirement of direct contradiction, reasonable tendency to discredit testimony
Impeach by silence: only to show that witness wouldve been reasonably expected to speak
Pre-Arrest: Not barred, rules 401 and 403 though
Post-Arrest: Not barred but often excluded under 403
Post-Miranda: Constitutionally barred, Doyle
o Statement: Can be oral or in writing, sworn or unsworn.
Must be witnesss statement ,not statement of third-party*** Application to hearsay
FRCrimP 26.2 => Either side can request any statement relating to matters opponents witness testified to
o FRCrimP 16(a) => Defendant can request relevant statements made in response to interrogation that
prosecution intends to use
Public Policy: Remember, cant include settlement negotiations, plea discussions Rules 408 & 410
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Limiting Instruction: Show that inconsistency casts doubt on witnesss memory, accuracy, and truthfulness
(offered for judging credibility of witness- not evidence of proof)
Rule 403 Analysis still applies
Rule 609 applies only when a party uses a criminal conviction for a particular purpose: to suggest that a
witness has an untruthful character. The jury may consider that conviction only to assess the witnesss
character for untruthfulness.
Rule 609 has three categories of rules
1) Prior felony convictions used to impeach any witness other than the defendant in a criminal case
2) Prior felony convictions used to impeach a witness who is the defendant in a criminal case: Rule 609(a)
(1)(B)
Rule 609 makes it harder to introduce evidence of a criminal defendants prior felony conviction
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3) Prior convictions for any crime involving a dishonest act or false statement, regardless of the witnesss
role or the crimes felony status.
Rule 609 allows litigants to use any conviction for a crime of dishonesty or false statement, no matter
what the sentence, to impeach any witnesss character for truthfulness
Must be admitted if elements of past crime involved dishonest act or false statement
o No balancing test or reference to Rule 403
Dishonest act or false statement must be element of crime
o Doesnt include violence, theft, robbery, drug use
Time Limits: Barriers to using convictions that are more than ten years old (since the witnesss conviction or
release from confinement- whichever is later). Admissible only if:
Probative value, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect (Reverse 403); and
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.
Was the witness the subject of a Criminal Conviction? (Doesnt include no contest pleas)
Was the crime subject to a pardon or juvenile adjudication (Impeachment not generally admissible then)
o Davis: D has confrontation-clause right to cross-examine a witness concerning witnesss prior juvenile
adjudications to show bias
States interest in protecting juveniles does not trump need to cross-examine about bias
Would be excluded if offered just to show untruthfulness (but instead, fact that didnt want to
lose probation so would blame someone else)
o Pardons, annulments: can only be used if witness has since committed another felony and original
conviction was pardoned for reasons other than innocence
Luce v. United States: Defendant must testify to raise and preserve for review the claim of improper
impeachment with a prior conviction.
o Doesnt apply to motion in limine where the defendant never testifies, even if the defendant does make
the timely and specific motion
Ohler v. United States: If defendant raises prior conviction on direct to lessen the sting , loses right to appeal
admission of evidence of past conviction
Modes of Impeachment under 609
o On cross, can only ask about basic facts reflected on face of judgment (name of offense, time and
place of conviction, and sentence received)
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B. Witnesss Character for Truthfulness via Character Witnesss Opinion/ Reputation Testimony (Rule 608(a))
C. Witnesss Conduct Probative of Untruthfulness (Rule 608(b))
Does a party believe that a witness has a general problem with Truthfulness that is not subject of conviction?
Rule 608(a): Opinion and reputation evidence about the witnesss character for lack of truthfulness may be
presented
o Extrinsic Evidence may be used to prove the opinion and reputation evidence
Rule 608(b) The witness may be cross examined about specific instances of lack of truthfulness but questioner
must take the answer, extrinsic evidence cant be introduced.
o Probative of witnesss character for truthfulness: false name, lying on application, failing to file tax
returns (specific acts have to deal with truthfulness)
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Must have good faith belief, cant introduce extrinsic evidence (such as disciplinary report or
testimony from others)
o Judicial Discretion may under 608(b), Rule 403 and 611
o Probative of Witnesss Character for Untruthfulness:
False identification, false statements on forms, giving false testimony, forgery, lying,
embezzling
o Not probative of Ws character for untruthfulness: violence, drug use, bankruptcy, adultery
Rule 403 still applies
Go to Step 5
o
5) Has the witnesss character for truthfulness been Attacked? (Direct attack or line of questioning where conclusion
is that witness is lying)
6) Has a witness, as a character witness, offered reputation or opinion testimony concerning the lack of Truthfulness
of another witness?
Yes: As in Step 5, that witness can be impeached concerning own character for truthfulness by reputation and
opinion testimony, and specific instances on cross
o That witness can be asked about specific instances of conduct relating to truthfulness of the witness
whom she provided character evidence.
Must take answer, no extrinsic evidence
o That witness can trigger other witnesses to contradict her, rehabilitating witness she testified against,
with opinion and reputation testimony
No, => Step 7
8) Is the proposed impeachment independently admissible extrinsic evidence that contradicts a witnesss testimony?
Impeachment by contradiction is admissible so long as doesnt fail Rule 403 balance (often waste of time)
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Rule 601: Everyone competent, unless rules provide otherwise. Minimal physical and mental capacity to
perceive, record, & recollect impressions of fact
In a civil case, state law governs competency where state law supplies rule of decision
o Potential Dead Mans Statute: restricts evidence when a live person asserts a civil claim against a
dead one.
Rule 605: Judges cannot testify as witness (give commentary from bench that amounts to)
Rule 606: Jurors cannot testify as to deliberations. Can testify as to:
o Mistake concerning verdict recording; introduction of extraneous prejudicial information;
improper outside influence
2) Does the witness have personal knowledge (Rule 602) and testify about facts and limited opinion (Rule 701)
Did perceive, record, and recollect impressions tending to establish a fact of consequence
Establish through ones own testimony
Rule 602: Witness can testify to matter only if evidence introduced to show personal knowledge
o Have to lay foundation. Doesnt apply to experts under Rule 703.
Rule 701: if not testifying as an expert, testimony is limited to one that is
o Rationally based on the witnesss perception; helpful to clearly understanding the witnesss
testimony or determining a fact in issue (helps stretch to additional information supplied); and
cannot be based on scientific, technical, or other specialized knowledge within scope of Rule 702
(expert)
Everyday knowledge: even if distinct, drug dealer can testify about quality of cocaine. Everyday person
could offer opinion about defendants sanity
Declares and understands it, appreciates difference between truth and lie
a) Control over the mode and exercise of examining witnesses and preventing evidence so as to
o Make those procedures effective for determining the truth; avoid wasting time; protect witnesses
from harassment or undue embarrassment
b) Scope of Cross: Cross-Examination should not go beyond the subject matter of the direct examination
and matters affecting the witnesss credibility.
c) Leading Questions: Should not be used on direct, except as necessary to develop witnesss testimony.
Should allow only on cross; or when party calls hostile witness, adverse party, or witness identified with
adverse party.
o Allow on direct to establish pedigree, direct to relevant place and time, help witness who is
hesitant or confused, and hostile witnesses
Any objection to a form of a question is based on Rule 611(a)
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4) Rule 403: Probative value is not substantially outweighed by dangers of unfair prejudice
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A declarant, for example, will report on what someone else told him, or a document will contain a
quote from a third party.
Rule 805 provides that these double hearsay statements are admissible for the truth of the matter
asserted as long as each level of the statement fits into an exception.
However, it may be difficult to lay the foundation for the original out-of-court statement, because the
witness testifying on the stand may not know much about the context of the original declarants
statement.
-Might be multiple statements, but may not be offered for TOMA, therefore no hearsay for one.
I. Is it hearsay?
1)Rule 801: Definition of Hearsay out-of-court statement offered to prove the truth of the matter asserted
Probative value of the non-hearsay purpose against the unfair prejudice of the hearsay
purpose. Balance tilts in favor of admissibility
o Limiting Instruction introduced as well
Photographs and Videotapes: most do not portray an assertion. Video of defendant pulling a gun
would not be an assertion.
Reasons for hearsay rule: lacks the assurances of reliability such as in-court oath, ability of factfinder to observe witnesss demeanor, possible prosecution for perjury, lack of opportunity for cross
2) Rule 802: Hearsay is not admissible unless any of the following provide otherwise: federal statute, these
rules, or other rules prescribed by the Supreme Court
III. Who Decides: Under Rule 104(a), the judge decides both whether a statement is hearsay and whether
one of the exceptions apply. Party offering the statement must persuade the judge by a preponderance of the
evidence
IV. Sixth Amendment: Crawford v. Washington applies against the prosecution in criminal cases.
Potential Sixth Amendment limit to application of hearsay exception
V. Rule 403
II. A. Rule 801(d) Exemptions
3) Prior Statements by Witnesses, Statements by Party Opponent- Rule 801(d) Not Hearsay
Exemptions
A. Prior Statement by Witness: Rule 801(d)(1)
- Applies even when witness and declarant are same person
-Declarant must testify at trial and be subject to cross-examination on the statement. If that applies, then
three types of prior witness statements are admissible
Subject to cross-examination: witnesses who take the stand and claim loss of memory (whether real
or feigned) are still subject to cross-examination.
o Those who completely refuse to testify by invoking privilege against self-incrimination are
not.
5th amendment selectively might be deemed to
o Memory Loss- Owens: witness placed on stand, under oath, and responds willingly to
questions. Fact that doesnt remember doesnt matter
a. Common law impeachment: to contradict witness, show unreliability, not for TOMA
Rule 801(d)(1)(A): Impeachment and Substantive evidence (prove TOMA)
b. Rule 801(d)(1)(A): Prior out-of-court statement is not hearsay only if:
Declarant testifies at current trial or hearing and is subject to cross-examination
concerning the prior statement at the current trial or hearing
The prior out-of-court statement is inconsistent with the Declarants current testimony
The prior out-of-court statement was given under oath, subject to penalty of perjury
and
Was made at a trial, other hearing, other proceeding (or deposition)
o Includes grand-jury
If doesnt meet criteria, can be used for impeachment only
General Rules:
Relationship to Other Rules: Rule 407 (subsequent remedial measures); Rule 408 (settlement
negotiations); Rule 409 (medical expenses); Rule 403
Multiple Parties: Against an opposing party
May encourage more narrow reading of Rule 801(d)(2), forbid parties from introducing statement of
co-plaintiff or co-defendant
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Civil Cases: The judge will protect those other parties, from any spillover effects by offer a limiting
instruction, redacting the out-of-court statement, or excluding the statement under Rule 403
Confrontation Clause: If not covered by co-conspirator, applies only when tries the defendant
jointly, and the defendant who made out-of-court statement fails to take the stand at trial
o A statement that explicitly names a codefendant and implicates the defendant on its face
violates Bruton and cant be admitted.
A statement that simply replaces with blanks also violates Bruton
o A statement that does not refer explicitly to a codefendant, and that contains no obvious
omissions tempting the jury to fill in those gaps satisfies Bruton. The prosecutor can admit
statements that satisfy this condition in their initial form or that can be redacted to reach this
form.
Statements are still admissible against only the defendant who made out-of-court
statement, judge will instruct jury not to consider these statements in connection with
any codefendants.
Preliminary Determinations: Under 104, judge makes preliminary determinations. Decide whether
conspiracy exists, out-of-court statement in furtherance of. Dont have to follow FRE, but have to
have more than just the statement
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6. Public Records Rule 803(8): Record or statement of a public office that sets out
a. The offices activities
b. 803(8)(A)(ii) A matter observed while under a legal duty to report
i. Not including, in a criminal case, a matter observed by law-enforcement personnel
c. 803(8)(A)(iii) factual findings resulting from an investigation made pursuant to legal
authority, applies in both civil and criminal cases
i. Criminal case: only Accused can use against government
d. Like business judgment rule, can exclude if find a lack of trustworthiness
e. Beech Aircraft Corp. v. Rainey: conclusions or opinions in public agency investigative reports
are admissible as long as the conclusion or opinion is based on the factual investigation
i. JAG report about plane found to be trustworthy, dont have to parse public records to
determine which statements are facts and which are opinions.
ii. All statements contained in report of government investigation are Factual findings
under Rule 803(8)(A)(iii)
f. Other Rules: must comply with other evidentiary rules, prior bad act might violate Rule 404.
i. Overly technical might lead to confusion under Rule 403.
ii. When information in public record violates another rule, trial judge can redact
inadmissible evidence and admit any remaining portion
g. Hearsay within hearsay:
i. When report contains statements of third parties, might be admissible under 803(8) but
has to redact unless another hearsay rule
ii. Can say Based on x,y,z, I conclude spill 15 hours ago but not a local told me spill
started 15 hours ago
iii. Investigators may rely on third party statements to generate conclusions
h. Policy:
i. Criminal Cases- Defendants 6th Amendment Right
ii. Assumption that public officials perform duties properly
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Rule 804: Declarant Unavailable = Former Testimony, Dying Declaration, Statement Against
Interest, Statement of personal or family history, forfeiture by wrongdoing
For an 804 exception to apply, the Declarant must be unavailable
Proponent must first show & judge determine under Rule 104(a) that Declarant, through no fault of the
proponent, is unavailable
Rule 804 sets out five types of unavailability
Privilege: If privilege shields the witnesss testimony, then 804(a)(1) declares the witness unavailable
o To show unavailability, party usually most call the declarant to the stand and force to invoke
o In case of privilege against self-incrimination, usually obvious and dont have to call.
Refusal to Testify: Refuse to testify despite court-order to do so. May claim privilege court doesnt
recognize, refuse to testify because family member.
o Party must call to the stand. Often outside the juries presence
Lack of Memory: Court does not have to find that witness has actually lost memory, whether real or
feigned, witness is unavailable to testify about desired subject matter.
o Just lack of memory about subject matter of statement
o Party must call to the stand. Often outside the jurys presence
Death, Physical Illness, or Mental Illness
o Show death certificate.
o If illness, have to show not likely to recover within reasonable time.
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Absence: Most common when the party cannot find the declarant after making a diligent search or
the declarant refuses to come to court and is currently outside the courts jurisdiction.
o Party must use reasonable means in addition to serving a subpoena to persuade the declarant
to attend the trial. (Example in civil trial of paying expenses)
o Proponent must use reasonable means to procure the declarants deposition if the declarant
will not attend the trial.
o Party must show that good faith, genuine effort to procure the defendants attendance
Wrongdoing Caveat: A party offering the witnesss out-of-court statement cannot cause the unavailability
through wrongful means.
Good Faith Attempt to Get Witness
Proponent must then show and judge determine that Hearsay falls within one of Rule 804(b)s 5
Exceptions
1. Former Testimony: Rule 804(b)(1)= Must show declarant is unavailable and, testimony that
a. Was given as a witness at a trial, hearing, or deposition, whether given during the current
proceeding or a different one
b. Is now offered against a party who had or in a civil case- whose predecessor in interest had
an opportunity and similar motive to develop it by direct, cross, or redirect
i. Predecessor in interest: prior interest in litigation or who was otherwise in Privity with
a party
c. If witness is available, can be used to impeach with PIS or rehabilitate with PCS, but Rule
804(b)(1) offered for TOMA
i. Court can admit deposition testimony of unavailable witness under FRCP 32
ii. If prior testimony of party-opponent, admissible under 801(d)(2)
Declarant
Content of Statement
Context of Prior Statement
Any context
Must have been given as a
witness, which implies under
penalty of perjury
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deposition
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Applies to all hearsay statements and statements and declarations made by an opposing partys agent,
spokesperson, or coconspirator.
o Doesnt apply to statements that are not hearsay
Allows party to attack declarants credibility by introducing any evidence that would be admissible if
declarant had testified as a witness
o Evidence of declarants bias, prejudice, or interest
o Statements made by the declarant that are inconsistent with hearsay statement (Rule 613)
o Evidence that the declarant lacks personal knowledge (Rule 602) or ability to testify truthfully
(Rule 603)
o Reputation or opinion evidence given by a character witness that the declarant is untruthful
(Rule 608(a))
o Any criminal convictions allowed by Rule 609
OMITS questions about dishonest acts on cross under Rule 608(b)
Once a declarants credibility has been attacked, the other party can rehabilitate the witness (offer
evidence rebutting allegations of bias, prejudice, incapacity, or interest; introduce consistent
statements; and call positive character witnesses
Allows party to present declarants inconsistent statements by declarant without giving declarant
opportunity to explain or deny (like under Rule 613)
Can impeach any hearsay declarant, even own
If a declarants out-of-court statement is admissible, then a party an introduce that statement without
subjecting the declarant to cross-examination
C. In the Courtroom
1. Statements that are not hearsay: Doesnt allow impeachment of a declarant under Rule 806 for
declarants statement offered for purpose other than to prove the truth of the matter asserted.
Doesnt apply to when court admits prior statement by a witness under Rule 801(d)(1) where declarant will
appear as a witness. Also doesnt apply to out-of-court statements made or adopted by an opposing party.
Wouldnt hurt own credibility.
Does apply to statements of opponents agent, spokesperson, or coconspirator.
2. Evidence of Specific Acts
United States v. Lawson
Defendant was convicted in the United States District Court for the Middle District of Tennessee, L. Clure
Morton, Chief Judge, of uttering and possessing counterfeit money, and he appealed. The Court of Appeals
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held that where defense counsel cross-examined government witness to bring out that defendant had
consistently denied any involvement in the counterfeiting scheme, and introduced written statement in which
defendant denied all complicity in counterfeiting activities, defendant's credibility was made an issue in the
case, so that evidence of defendant's prior felony convictions was admissible on issue of credibility, even
though defendant never testified himself.
o Crawford: wife calm while officer taped, statements long after events over
o Davis: victims answers given over phone in not safe environment. Victim in immediate
danger
The prosecutor may introduce nontestimonial hearsay as long as those statements comply with the
hearsay rules. Sixth Amendment doesnt limit admission of nontestimonial hearsay.
The prosecutor may introduce testimonial hearsay if the statements comply with the hearsay rules,
and the declarant is available as a witness. Defendant then has a chance to cross-examine.
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If the hearsay statement is testimonial and the declarant is unavailable at trial, the prosecutor may
offer the statement only if the declarant had a prior opportunity to cross-examine the declarant.
1. Straightforward Cases
Testimonial
Formal Statements during Litigation: Sworn statements that occur before grand juries, at pretrial hearings,
during trial, and at post-trial proceedings.
Depositions, affidavits, confessions, and similar pretrial statements that declarants would reasonably
expect to be used prosecutorially: Crawford
Statements Responding to Conventional Police Interrogation: in response to interrogations by law
enforcement officers. Prosecutorial purpose of solving and prosecuting crimes.
Not Testimonial
Business Records: Supreme Court has noted repeatedly in dictum that many business records arent
testimonial. Created for administration, not for proving fact at trial. (Example of cell-phone records).
Some business records are testimonial because created for use at trial. These are already excluded for
a lack of trustworthiness under Rule 803(6) though. (Shoplifting offense notes)
Statements in Furtherance of a Conspiracy: Not made under circumstances to reasonably believe would be
available for trial, but only if made in furtherance of a conspiracy.
The Defendants Own Statements: No restrictions on defendants confession or other incriminating
statements.
Statements Admitted to Prove a Point Other than the Truth of the Matter Asserted: if not offered for its
truth, then doesnt testify to anything. (Phone call to show motive for retaliatory killing)
2. Hard Cases
Statements to Law Enforcement Outside Traditional Interrogation: Stationhouse interrogations versus
wife calling 911/guy telling police he stole my wallet
Primary Purpose of the interaction: If the primary purpose Is to establish or prove past events
potentially relevant to later prosecution=testimonial (Hammon case in Davis)
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o Wife giving battery affidavit because statements deliberately recounted in response to police
questioning how events happened. (Negative factors of shortly after attack, near crime
scene)
o Objectively viewed to see primary purpose to investigate possible crime
If another primary purpose, such as enable police assistance to upcoming emergency, then not
testimonial
o Talking to 911 operating saying the defendants name and accusing him of assault (Davis)
o Although to law enforcement, was speaking about events while happening; facing ongoing
energy and clearly a call for help; questions were necessary to resolve present emergency;
less formal and more frantic.
Bryant: police received call man shot. As officers arrived, asked him what happened, victim told
them that rick had shot him at house.
o Shooting was over, occurred several blocks from crime scene, repeatedly questioned victim
to get identification; asked for details of crime
o Police didnt know when or where had been shot; questioned to see if crime was ongoing;
seriously wounded so couldnt deliberately recount; questions was disorganized and not
structured. Majority found that statements were nontestimonial.
Lab Reports: Melendez-Diaz: lab reports (cocaine and amount of cocaine) were testimony statements
requiring cross-examination. Affidavit, for solemn declaration of establishing some fact, made under
circumstances that would lead an objective witness to reasonably believe statement would be available for
use at a later trial.
Bullcoming: BAC reports are testimonial. Testimony has to come from an analysist who signed the
certificate, or personally performed or observed the performance of the test.
Williams: (DNA swabs) changed everything up by introducing targeted individual and formality tests.
Lower court guidelines: A laboratory report is not testimonial if it fails Williams plurality targeted
individual standard and Justice Thomass formality line
o Targeted Individual: Accusing a targeted individual
o Formality: Notarized, certificate of analysis
If a report satisfies both the plurality standard and Thomas lime then it is testimonial
A highly formalized report, prepared under circumstances which would lead an objective witness
reasonably to believe that it would be available for use at a later trial, is testimonial even if it does not
accuse a targeted individual.
A lab report that accuses a targeted individual but not formal is also testimonial
Statements Among Private Parties: Supreme Court dicta strongly suggest that most statements among
private parties are not testimonial.
C. Availability and Cross-Examination: Declarant must be unavailable for Confrontation Clause to come
into play
1. Currently Subject to Cross-Examination: If the witness is subject to cross-examination in the
courtroom, the Sixth Amendment allows the prosecutor to introduce any hearsay statement by that witness;
doesnt have to be at the same time as a testimonial statement.
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Availability for Cross-Examination (Owens): Witnesses who suffer real or feigned memory loss but
who respond willingly to questions on the stand are available for cross (similar to prior statement)
o As long as witness testifies under oath and responds to cross-examination
Witness who invokes a privilege in response to cross-examination usually is not available.
3. Exceptions to Confrontation
Forfeiture: Defendant must have acted with the specific purpose of preventing a witness from
testifying (Giles). Thats federal rule, but this exception applies to states forfeiture exception.
Dying Declaration: State courts have held that dying declarations require no confrontation- even
when statements were testimonial accusations to police officers.
D. Putting it all Together: Combining the Rules and the Constitution Out of court statements are
admissible only if they satisfy both the Confrontation Clause and the hearsay rule. Does not apply to civil
cases or to evidence offered by the Accused against the government.
Chart on pg. 729
Hearsay Exceptions that Never Raise Confrontation Clause Issues
Rule 801(d)(1): Declarant-Witnesss Prior Statement: Admissible only if declarant is on stand
Rule 801(d)(2): Opposing Partys Statement: Defendant cant confront themselves.
Rule 803(5): Recorded Recollection: Statements are admissible only if declarant is on the stand.
Rule 803(6): Business Records: Only testimonial records would be excluding for untrustworthiness
(prepared in anticipation for litigation); Public records must satisfy Rule 803(8)s more stringent standard
Rule 803(10): Absence of a Public Record: Absence of entry is not a statement. A witness who testifies
about a missing record is subject to cross-examination. Notice and demand procedure would lead to
prosecutor to offer live testimony. (Melendez-Diaz)
Rule 804(b)(1): Former Testimony: Admissible in criminal cases only if defendant had opportunity and
similar motive to cross-examine the declarant.
Rule 804(b)(2): Dying Declarations: Founding-Era exception that Supreme Court appears to have
grandfathered in.
Rule 804(b)(6): Forfeiture: Found-era exception. Defendant must have specifically intended to prevent
witness from providing evidence against him.
Hearsay Exceptions that Rarely Raise Confrontation Clause Issues
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Rule 803(4): Statements made for Medical Treatment/Diagnosis: Usually nontestimonial because to private
parties and/or for purpose of obtaining medical care. Exception includes statement though for purpose of
obtaining diagnoses related to litigation; identity of abusers could qualify as testimonial.
Rule 803(7): Absence of a Record of a Regularly Conducted Activity: Absence of entry is not a statement
but if a witness searches business records to provide evidence for the prosecutor, statement declaring the
absence of those records most likely is testimonial. Witness must testify life about absence of the records.
Rule 803(17): Market Reports and Similar Commercial Publications: If published by Law Enforcement
Rule 803(18): Statements in Learned Treatises, Periodicals, or Pamphlets: If specifically published by law
enforcement
Hearsay Exceptions that Regularly Raise Confrontation Clause Issues
Rule 803 (1) & (2): Present Sense Impression and Excited Utterances: When made to private parties,
probably do not raise Confrontation Clause issues. If made to law enforcement for primary purpose of
obtaining immediate aid, then satisfy the Sixth Amendment. But, when made to law enforcement for
primary purpose of creating evidence, trigger defendants confrontation rights.
Rule 803(3): Then-Existing Mental, Emotional, or Physical Condition: Under some circumstances, when
made to law enforcement that are gathering evidence for the prosecution.
Rule 803(8): Public Records: Many public records are testimonial, but exception already restricts admission
against criminal defendants.
Rule 803(16): Statements in Ancient Documents: Confessions, police reports, and other testimonial
statements do not lose their testimonial character with time.
Rule 804(b)(3): Statement Against Interest: Probably not to private parties, but those to government agents
often are. Especially when prosecutor attempts to introduce one perpetrators confession against another
participant in the crime.
Rule 807: Residual Exception: Before Crawford, courts often used this rule to admit grand jury testimony.
If yes, go to step 2
Is the opinion rationally based on the witnesss perception
o Is the lay opinion helpful to the finder of fact because it clarifies the witnesss testimony or
helps to determine a disputed fact
Expert Opinion
2) Is the witness qualified by her education, experience, knowledge, or skill to render an expert
opinion?
Does the experts opinion derive from personal knowledge, any information the expert learned in
preparation for testimony, or training and study?
Does the experts opinion rely on inadmissible evidence?
o Do experts in the field reasonably rely on these kinds of facts or data?
o Is the experts opinion based on sufficient facts or data?
Is the experts opinion the product of reliable principles and methods?
o Theory or technique underlying the expert testimony can/has been tested
o Controls and standards were maintained
o Theory subject to peer review and publication
o Known error rate
o Field of expertise claimed is known to reach reliable results
o Theory accepted in scientific community
Did the expert apply the scientific or technical principles correctly
Expert Witnesses give testimony based on their scientific, technical or other specialized knowledge
Frye Test whether principle underlying experts opinion was sufficiently established to have gained general
acceptance in the particular field
Daubert Test judges determine reliability of expert testimony, judges should consider these factors:
Whether theory has been tested
Whether it has been peer reviewed or published
Techniques error rate
Existence of standards controlling its application
Whether theory has been generally accepted in relevant scientific community
Rule 701: Opinion Testimony By Lay Witness
If witness is not testifying as an expert, testimony in form of opinion is limited to one that is:
(a) Rationally based on witnesss perception
(b) Helpful to clearly understanding witnesss testimony or to determining a fact in issue; and
(c) Not based on scientific, technical, or other specialized knowledge w/in scope of Rule 702
Notes:
Experts are increasing staple at trial
Increasing role of district courts to examine expert testimony
Expert Testimony in Civil Trials
o 1st Expert Report under FRCP 26(a)(2) & (e)(1)
Requires them to show compensation, list of all other cases testified at
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o Facts & Data admitted into evidence expert can discuss facts & data on direct
o Can show basis for experts opinion, for TOMA
Rule 705: Disclosing the Facts or Data Underlying an Experts Opinion
Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first
testifying to the underlying facts or data. But expert may be required to disclose those facts/data on crossexamination.
On Direct can just ask expert their qualifications & their opinion
On Cross expert may have to disclose those facts or data
Admitting underlying facts that are otherwise inadmissible
1. Party opposing expert always has right to ask expert to divulge the basis of her opinion during crossexamination
2. Party sponsoring expert tries to admit facts during direct
a. Party will argue that knowledge of underlying facts is essential for jury to understand &
evaluate experts opinion
b. Rule 703 directs judge to apply reverse 403 balancing test
3. If facts underlying experts opinion are themselves admissible, then parties may freely introduce
Daubert Analysis:
Are experts methods & techniques reliable in general?
o Whether technique or theory can be or has been tested
o Existence & maintenance of standards controlling the techniques operation
o If experts theory or technique is testable, what is known or potential rate of error of
technique/theory when applied?
o Has experts technique or theory been tested in the marketplace? Has it been subject to peer
review & publication?
o Has technique/theory been generally accepted in scientific community?
o Has experts technique or theories grown materially or directly out of research expert
conducted independently of litigation or developed expressly for litigation?
o Correlation does not mean causation
Has expert reliably applied methods & techniques to facts in this case?
o Any step that renders analysis unreliable renders experts testimony inadmissible
o This is true whether step completely changes a reliable method or merely misapplies that
methodology
Confrontation Clause Issues with 703?
If expert relies on out of court statement that is non-testimonial there is no 6th Amendment conflict
If prosecutor asks expert hypothetical question and expert basis opinion solely on facts stated in
hypothetical then there is no 6th Amendment problem
Split on a rule for this Williams plurality held that Cellmarks report was non-testimonial partly
because they believed the report was reliable, dissent stuck to Crawford (procedural guarantee of
cross-examination)
Problematic Expert Opinions
2. Prosecutorial discretion goes to issue of s guilt?
3. State of mind of one of the parties expert in no better position that jury
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4. Conclusory opinions
CH. 64: Limits on Opinion & Expert Testimony
Rule 704 removed the strict rule against testimony on ultimate issues, but courts continue to patrol
Rule 704: Opinion on an Ultimate Issue
(a) In General Not Automatically Objectionable. An opinion is not objectionable just because it
embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of fact alone.
Notes:
Rules 403 & 701-702 judges have authority to restrict testimony that treads too far on the fact
finders role
The type of words experts use rather than the content of their opinions is what matters
Experts diagnoses of someones mental disorder does not express an opinion about defendants
mental state at the time of the crime
Court will reject probability evidence if it lacks a sufficient factual foundation, contains technical
flaws, distracts the jury from important credibility issues, or confuses the rarity of an event w/
probability of the defendants guilt may hold that testimony is unhelpful or unfairly prejudicial
Polygraphs
o Judges reluctant to admit when admitted its assumed that its correct, cant assess the
credibility of a test
Testimony About Eyewitnesses
o Expert may only describe general findings about eyewitness testimony
o Most courts allow expert testimony about eyewitness reliability only when circumstances
suggest that eyewitness identification is less reliable than usual
Expert Witness Must Possess Requisite Qualifications
1. Proponent must show that witness has:
a. Minimally sufficient skill/knowledge
b. Related to pertinent field or calling
c. That her inference will probably aid the fact finder in search for truth
d. **Dont need the best or most specialized expert in that field just the minimally competent
2. Proponent can establish witnesss expertise in that particular field through any of 5 routes cited in
Rule 702
a. Knowledge, skill, experience, training or education
3. Witnesss qualifications as an expert must be measured w/ respect to the opinions that the witness
seeks to give
Ways to Impeach Expert
Defects of Capacity
Contradictory Facts
Particular Attack on Witnesss Credibility
o Bias, Motive, Interest
o Prior Inconsistent Statement (Rules 613, 801(d)(1)(A))
o General Attack on Witnesss Character for Truthfulness
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If no, according to Rule 501, any privilege from state federal law
Spousal Testimony
2) Is the privilege being asserted against an attempt to obtain a spouses testimony, deposition, police inquiry,
or other formal mechanism to extract information about the other spouse?
Privileges
I.
Spousal Privileges
I.
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a.
II.
a.
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b.
c.
d.
e.
Communication must happen during the marriage to be protected; however, communications made during the
marriage remain protected after the marriage. (your divorced wife cant screw you by telling your secrets in
court after divorce)
The interspousal communication privilege is recognized in all jurisdictions and usually applies to both civil and
criminal cases.
The biggest problem that surfaces with Interspousal privilege:
i. What constitutes confidential communications.
ii. Most courts hold that so long as the spouses take reasonable steps to assure confidentiality in the
communication, the privilege attaches.
1. So cant talk in front of other people and expect privilege to attach.
Joint Present and Future crimes exception:
i. The determinative point in time to determine Present/future is the time at which the communication in
question is made.
1. So if husband comes home and says I robbed a bank, that is a past crime.
2. If husband then ask wife if she can help him launder the money and she agrees, that is a
communication regarding a present/future crime in which the spouse is a participant.
Attorney-Client Privileges
I.
II.
III.
Policy:
a. Theory rests on 3 propositions:
1st
The law is complex and in order for citizens to comply with the law in the management of their
affairs and settlement of their disputes, they require the assistance of lawyers.
2nd
Lawyers cannot discharge this function without the fullest possible knowledge of the facts of
their clients situations.
3rd
Client cannot be expected to place the lawyer in the full possession of the facts without the
assurance that the lawyer cannot be compelled, over the clients objection, to reveal the confidences in
court.
b.
Exceptions:
a. When using Joint client exception, you need to have a joint defense agreement in place to ensure that
confidentiality is protected (i.e., that the other side doesnt disclose your clients CI).
Corporate Clients
a. Leading case on attorney-client privilege where client is a corporate entity is Upjohn Co. v. US, 449 U.S. 383
(1981).
b. Upjohn declines to articulate a test for all future situations, but outlines several factors where attorney-client
communication likely to be found in corporate context:
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IV.
V.
VI.
VII.
i. Corporate employees communicate to corporate counsel who were acting in their capacity as counsel
for the corporation.
ii. Employees were acting at the behest of their corporate superiors.
iii. Communications were made to enable the corporation to secure legal advice from its counsel and the
employees were aware of this.
iv. Communications concerned matters within the scope of employees duties.
v. Communications were considered highly confidential when made.
c. When talking with company employees, you should always explain that you represent the company and not the
employee in his individual capacity.
Waiver of Attorney-Client Privilege
a. CLIENT can waive privilege by
i. Testifying about portions of the attorney-client communications
1. As my attorney advised me . . .
ii. Asserting as a legal defense the clients reliance on the attorneys advice
iii. Claiming ineffective assistance of counsel in habeas proceeding client waives privilege regarding the
attorneys strategies
iv. Alleging a breach of duty by the attorney
v. Voluntarily disclosing privileged communications to a third-party
1. Producing a privileged document to the government.
Rule 502: Attorney-Client Privilege and Work Product
Fed. R. Civ. P. 26(b)(5): Claiming Privilege or Protecting Trial-Preparation Materials.
Fed. R. Civ. P. 26(f): Conference of Parties; Planning for Discovery.
. . . (3) Discovery Plan. A discovery plan must state the parties' views and proposals on: . . .
(D) any issues about claims of privilege or of protection as trial-preparation materials, including if the parties
agree on a procedure to assert these claims after production whether to ask the court to include their
agreement in an order . . .
**Dont want to assist your client in breaking the law or destroying documents**
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X. Judicial Notice
III.
Judicial Notice:
a. See Rule 201
Presumptions (3 important things to know)
a. Rule 301. Presumptions in Civil Cases
i. In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a
presumption is directed has the burden of producing evidence to rebut the presumption. But this rule
does not shift the burden of persuasion, which remains on the party who had it originally.
b. Rule 302. Applying State Law to Presumptions in Civil Cases
i. In a civil case, state law governs the effect of a presumption regarding a claim or defense for which
state law supplies the rule of decision.
c. What standard of proof applies?
i. ?
ii. ?
iii. Beyond a reasonable doubt
U.S. v. Microsoft Corp.
a. From a century of case law on monopolization under 2, however, several principles do emerge.
b. First, to be condemned as exclusionary, a monopolist's act must have an anticompetitive effect. That is, it must
harm the competitive process and thereby harm consumers. In contrast, harm to one or more competitors will not
suffice. The [Sherman Act] directs itself not against conduct which is competitive, even severely so, but against
conduct which unfairly tends to destroy competition itself.
c. Second, the plaintiff, on whom the burden of proof of course rests, must demonstrate that the monopolist's
conduct indeed has the requisite anticompetitive effect.
d. Third, if a plaintiff successfully establishes a prima facie case under 2 by demonstrating anticompetitive effect,
then the monopolist may proffer a procompetitive justification for its conduct. If the monopolist asserts a
procompetitive justification-a nonpretextual claim that its conduct is indeed a form of competition on the merits
because it involves, for example, greater efficiency or enhanced consumer appeal-then the burden shifts back to
the plaintiff to rebut that claim.
e. Fourth, if the monopolist's procompetitive justification stands unrebutted, then the plaintiff must demonstrate
that the anticompetitive harm of the conduct outweighs the procompetitive benefit.
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