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Evidence

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Evidence

Course Info

Professor: Daniel Capra (F14 notes); Unknown (2013 outline) Semester: Fall 2014 / 2013 Course Code: Evidence Sources: Evidence - Capra - F14.pdf; 2013 Evidence Outline.docx

Prof. Capra was Chief Reporter for the 2011 restyling of the FRE. The 2013 outline provides deep doctrinal coverage of the FRE with extensive flowcharts, case law, and policy rationale. The course trains students to navigate both the black-letter rules and their underlying justifications. Historical grounding: trial by ordeal gave way to trial by jury in 1220; hearsay doctrine emerged from the requirement that witnesses be under oath; the FRE were enacted by Congress in 1975 (bypassing the Rules Enabling Act due to Watergate-era controversy) and have been adopted in whole or part by 42 states.

Topics Covered

  • History of evidence law; rationales for exclusionary rules (policy extrinsic to truth-finding; distrust of jury)
  • Direct vs. circumstantial evidence; probative value vs. sufficiency
  • Relevance (FRE 401–403): basic relevance, conditional relevance, unfair prejudice balancing
  • Categorical policy exclusions: subsequent remedial measures (FRE 407), compromise offers (FRE 408), medical expense offers (FRE 409), pleas and plea discussions (FRE 410), liability insurance (FRE 411)
  • Character evidence (FRE 404–405): propensity prohibition, MIMIC / 404(b) other acts, methods of proof
  • Character in sexual assault cases (FRE 413–415); rape shield law (FRE 412)
  • Habit and routine practice (FRE 406)
  • Best evidence / original document rule (FRE 1001–1008)
  • Competency of witnesses (FRE 601–606): personal knowledge, oath, judge and juror competency
  • Form and order of examination (FRE 611–615); leading questions; sequestration
  • Lay opinion testimony (FRE 701)
  • Expert testimony and Daubert gatekeeping (FRE 702–706)
  • Impeachment (FRE 607–613): six types — sensory/mental defect, bias, prior inconsistent statements, contradiction, character for truthfulness, prior convictions
  • Prior convictions for impeachment (FRE 609): crimen falsi, felonies, 10-year limit
  • Hearsay: definition, non-hearsay uses, assertions vs. conduct (FRE 801–802)
  • Hearsay exemptions — prior witness statements (FRE 801(d)(1)); party-opponent admissions (FRE 801(d)(2))
  • FRE 803 exceptions (declarant availability immaterial): present sense impression, excited utterance, state of mind, medical statements, past recollection recorded, business records, public records
  • FRE 804 exceptions (declarant unavailable): former testimony, dying declaration, statement against interest, forfeiture by wrongdoing
  • Residual exception (FRE 807)
  • Confrontation Clause and Crawford doctrine
  • Authentication and identification (FRE 901–903)
  • Privileges (FRE 501): attorney-client, spousal, Fifth Amendment

Detailed Outline

I. Relevance and Its Counterweights

FRE 401 — Definition of Relevant Evidence

Evidence is relevant if it has any tendency to make a fact more or less probable and the fact is of consequence in determining the action. Extremely low threshold: “brick not a wall.” Relevance is relational, not inherent in the evidence itself.

FRE 402 — Admissibility of Relevant Evidence

Relevant evidence is generally admissible; irrelevant evidence is never admissible. Exclusion is mandated by FRE 402, even though 401 is most often cited.

FRE 403 — Balancing: Prejudice, Confusion, Waste of Time

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

  • “Unfair prejudice”: evidence that causes an unfair inference (jury decides on improper basis) or unfair weight (jury gives undue probative value).
  • Probative value is assessed based on its weight if believed — not on the judge’s own assessment of its credibility (Ballou v. Henri Studios).
  • Probative value depends on the availability of alternative evidence: Old Chief v. United States — when the sole purpose of evidence is to prove a prior felony status and D offers to stipulate, prosecution may be forced to accept the stipulation.
  • People v. Harris: even when D stipulates to a fact (killing), prosecution may use graphic evidence where it shows deliberateness of conduct.

FRE 104 — Conditional Relevance

Relevance conditioned on a fact is governed by FRE 104(b): judge admits the evidence upon sufficient evidence to support a finding of the conditioning fact.

Categorical Policy Exclusions (FRE 407–411)

  • FRE 407 (Subsequent Remedial Measures): not admissible to prove negligence, culpable conduct, defect, or need to warn; admissible for impeachment or, if disputed, ownership/control/feasibility. Policy: encourage manufacturers to fix hazards.
  • FRE 408 (Compromise Offers): not admissible to prove/disprove the validity or amount of a disputed claim, or to impeach by prior inconsistent statement; admissible for bias, undue delay, or obstruction of criminal investigation. “Compromise negotiations” begin at the point a claim exists.
  • FRE 409 (Medical Expense Offers): not admissible to prove liability; policy is to encourage humanitarian assistance. Does not extend to related factual statements.
  • FRE 410 (Pleas and Plea Discussions): guilty pleas later withdrawn, nolo contendere pleas, and statements in plea discussions with a prosecutor are not admissible; waivable per United States v. Mezzanatto. No “ongoing negotiations” theory to extend to statements made to police.
  • FRE 411 (Liability Insurance): not admissible to prove negligence; admissible for bias, agency, ownership, control. Substantial connection test for insurance offered to show bias.

II. Character Evidence

FRE 404(a) — Propensity Bar and Exceptions

Character evidence offered to prove conformity (propensity) is generally inadmissible. Exceptions in criminal cases:

  • Defendant may offer evidence of a pertinent character trait; prosecution may rebut.
  • Defendant may offer evidence of victim’s pertinent trait; prosecution may rebut and may also offer evidence of defendant’s same trait.
  • In homicide cases, prosecution may offer evidence of victim’s peacefulness to rebut claim that victim was first aggressor.

Methods of proof (FRE 405): On direct — reputation or opinion only. On cross — specific instances of conduct may be inquired into (not extrinsic evidence) with good faith basis (Michelson v. United States). When character is an essential element of a charge, claim, or defense — specific instances allowed on direct.

FRE 404(b) — Other Acts / MIMIC Rule

Evidence of prior crimes, wrongs, or other acts is not admissible to prove propensity, but may be admissible for another purpose: motive, opportunity, intent, preparation, plan (common scheme), knowledge, identity (signature crime), absence of mistake or accident. Two required links: (1) sufficient evidence D committed the prior act; (2) prior act sufficiently probative of the intended, non-propensity inference. Must also survive FRE 403. Notice required in criminal cases.

Permissible uses include: completing the narrative (United States v. Gonzalez); negating a defense (United States v. Dunkin); common plan or scheme (Jones v. State — bathtub brides); identity (mark of Zorro); knowledge; motive. Standard for admission: Huddleston v. United States — sufficient evidence that D committed the prior act (preponderance, FRE 104(b) standard).

FRE 413–415 — Sexual Assault and Child Molestation Cases

In criminal cases involving sexual assault (FRE 413) or child molestation (FRE 414), evidence that defendant committed another such offense is admissible for any relevant purpose, including propensity — overriding the FRE 404(b) bar. FRE 403 still applies. Civil cases covered by FRE 415.

FRE 412 — Rape Shield Law

Evidence of a victim’s past sexual behavior or predisposition is generally inadmissible. Criminal exceptions: (A) alternate source of physical evidence; (B) specific instances with defendant to prove consent or offered by prosecution; (C) constitutionally required. Civil cases: admissible only if probative value substantially outweighs harm to victim and unfair prejudice. Shifts burden to proponent; raises threshold to “substantially outweighs.”

FRE 406 — Habit and Routine Practice

Evidence of a person’s habit or organization’s routine practice is admissible to prove conduct on a particular occasion. Habit requires virtually automatic, repetitive response to a specific situation — distinguishable from general character. Not limited by FRE 405 (no reputation/opinion requirement). Religious observance generally does not qualify (Levin v. United States).

III. Best Evidence Rule (FRE 1001–1008)

FRE 1002: Original writing, recording, or photograph required to prove its content. FRE 1003: Duplicate admissible unless genuine question about original’s authenticity or unfair to admit. FRE 1004: Original not required if: (a) lost/destroyed without bad faith; (b) unobtainable; (c) opponent failed to produce; (d) not closely related to a controlling issue. FRE 1006: Summaries permitted for voluminous documents.

Key limitation: the rule applies only when offered to prove the content of the writing — not when the event is proved by other means that happen to also be recorded. Inscribed chattels: trial court has discretion whether to treat as a chattel or writing (United States v. Duffy). Drawings are subject to the rule (Seiler v. Lucasfilm).

IV. Witnesses

Competency (FRE 601–606)

Everyone is competent unless otherwise provided (FRE 601). Shifted from rules about competency to rules about credibility — the modern question is not whether the witness should be heard, but whether they should be believed. Personal knowledge required (FRE 602). Oath or affirmation required (FRE 603). Judges (FRE 605) and jurors (FRE 606) may not testify in the case they are deciding. Juror testimony about deliberations is inadmissible to impeach a verdict (Tanner v. United States); extraneous prejudicial information and outside influences are exceptions.

Lay Opinion (FRE 701)

Lay opinion permitted if: (a) rationally based on witness’s perception; (b) helpful to understanding the testimony or determining a fact in issue; (c) not based on specialized knowledge. Examples: speed of vehicle, intoxication, emotional state, voice identification, handwriting familiarity.

Expert Testimony (FRE 702–706)

Expert may testify if specialized knowledge will help the trier of fact, testimony is based on sufficient facts or data, is the product of reliable principles and methods, and the expert reliably applied those methods to the facts.

Daubert gatekeeping (Daubert v. Merrell Dow Pharmaceuticals): judge serves as gatekeeper for reliability and relevance. Frye “general acceptance” test superseded by FRE adoption. Daubert factors (flexible): (1) testability; (2) peer review and publication; (3) known or potential error rate; (4) standards controlling operation; (5) general acceptance. Standard of proof: preponderance of evidence (FRE 104(a)).

Kumho Tire Co. v. Carmichael: Daubert gatekeeping applies to all expert testimony — scientific, technical, or experiential — not only “scientific” knowledge. Factors are flexible and non-exclusive.

Appellate review of expert exclusion: abuse of discretion (General Electric v. Joiner). Parties who rely on expert evidence have notice of exacting standards; no automatic remand if expert thrown out on appeal (Weisgram v. Marley Co.).

Expert may base opinion on inadmissible evidence (FRE 703) if experts in the field reasonably rely on such data; but inadmissible underlying facts may be disclosed to jury only if probative value substantially outweighs prejudicial effect. Expert may not define the law for the jury (Specht v. Jensen). Ultimate issue opinions generally allowed (FRE 704(a)); exception for criminal defendant’s mental state (FRE 704(b) — added after Hinckley trial).

V. Impeachment (FRE 607–613)

Any party, including the calling party, may impeach a witness (FRE 607). Six types:

  1. Sensory or mental defect — extrinsic evidence allowed.
  2. Bias — not explicit in FRE but common law preserved; extrinsic evidence allowed (foundation usually required).
  3. Prior inconsistent statements (FRE 613) — extrinsic evidence admissible if witness given opportunity to explain/deny and adverse party may examine. Must be material; cannot use as subterfuge for inadmissible hearsay (United States v. Webster).
  4. Contradiction — collateral issue rule limits extrinsic evidence to non-collateral matters (prior convictions, bias, sensory defect, facts relevant to substantive issues).
  5. Character for truthfulness (FRE 608) — opinion or reputation only; specific instances on cross only, with good faith basis; no extrinsic evidence for prior bad acts; must relate to truthfulness. Religious beliefs not admissible to show truthfulness (FRE 610) but can show bias (United States v. Abel).
  6. Prior convictions (FRE 609):
    • Crimen falsi (dishonesty or false statement as element): always admissible regardless of punishment; no FRE 403 discretion.
    • Felony against criminal defendant: admissible only if probative value outweighs prejudicial effect (reverse of standard 403 balancing).
    • Felony against other witnesses: admissible unless substantially outweighed by prejudice (403 standard).
    • Misdemeanor not involving dishonesty: never admissible for impeachment.
    • Convictions more than 10 years old: admissible only if specific facts show probative value substantially outweighs prejudicial effect.
    • Pardons based on innocence: never admissible; pardons based on rehabilitation: not admissible unless subsequent felony.
    • D must testify to preserve in limine ruling for appeal (Luce v. United States).

Prior Consistent Statements (FRE 801(d)(1)(B)): admissible substantively to rebut charge of recent fabrication or improper motive, but only if made before the motive to fabricate arose (United States v. Tome).

VI. Hearsay (FRE 801–807)

Definition and Non-Hearsay Uses

Hearsay (FRE 801(c)): an out-of-court statement offered to prove the truth of the matter asserted. Three dangers: insincerity, incorrect memory, inaccurate perception (Tribe’s Triangle).

Non-hearsay uses: verbal acts (operative legal effect); verbal parts of acts; effect on hearer/reader; declarant’s state of mind; impeachment (showing inconsistency). Non-assertive conduct is never hearsay (FRE 801 rejects common-law rule). Silence is hearsay only if intended as assertion.

FRE 801(d) — Exemptions (Not Hearsay)

  • FRE 801(d)(1)(A) — Prior inconsistent statement made under oath at trial, hearing, or deposition.
  • FRE 801(d)(1)(B) — Prior consistent statement to rebut charge of recent fabrication; must predate motive to fabricate (United States v. Tome).
  • FRE 801(d)(1)(C) — Prior identification of a person; no oath required.
  • FRE 801(d)(2) — Opposing party’s statement: personal admissions; adoptive admissions (silence when reasonable to respond); authorized admissions; agent/employee statements within scope of employment; co-conspirator statements during and in furtherance of conspiracy. Trustworthiness not a separate requirement.

FRE 803 — Exceptions (Declarant’s Availability Immaterial)

  • 803(1) Present sense impression: statement describing event made while or immediately after perceived; immediacy is critical.
  • 803(2) Excited utterance: statement relating to startling event while still under stress of excitement; time and reflection are key factors.
  • 803(3) Then-existing mental/emotional/physical condition: state of mind, motive, intent, or plan; cannot be used to prove past acts (Shepard v. United States); forward-looking intent may prove subsequent conduct (Mutual Life Insurance Co. v. Hillmon).
  • 803(4) Statements for medical diagnosis or treatment: past or present symptoms, cause (but not fault); applies to therapists, social workers, forensic interviewers if in chain of medical care.
  • 803(5) Past recollection recorded: record made when fresh, accurate, now impaired memory; read into evidence but not received as exhibit unless offered by adverse party.
  • 803(6) Business records: made at or near time, by someone with knowledge, in regular course of regularly conducted activity; self-serving litigation-driven reports excluded (Palmer v. Hoffman); opinions included if trustworthy.
  • 803(7) Absence of business record: to show event did not occur.
  • 803(8) Public records: agency’s own activities (civil and criminal); matters observed under duty (not by law enforcement in criminal cases); investigative factual findings (civil or by defendant in criminal). Opinions and conclusions in investigative reports are admissible if based on factual investigation and trustworthy (Beech Aircraft Corp. v. Rainey).
  • 803(10) Absence of public record.
  • 803(16) Ancient documents: at least 20 years old and authenticated.

FRE 804 — Exceptions (Declarant Unavailable)

Unavailability: privilege, refusal to testify, lack of memory, death/illness, absence.

  • 804(b)(1) Former testimony: given at trial, hearing, or deposition where adverse party had opportunity and similar motive to cross-examine.
  • 804(b)(2) Dying declaration: statement under belief of imminent death, concerning its cause or circumstances; civil and homicide criminal cases only.
  • 804(b)(3) Statement against interest: so contrary to pecuniary, proprietary, or penal interest that a reasonable person would not make it without believing it to be true.
  • 804(b)(6) Forfeiture by wrongdoing: statement by unavailable declarant whose unavailability was procured by the party against whom offered.

FRE 807 — Residual Exception

Admissible if: (1) sufficient guarantees of trustworthiness; (2) offered as evidence of material fact; (3) more probative on point than other reasonably obtainable evidence; (4) admission serves interests of justice. Must give notice. To be used sparingly — not a way to circumvent categorical exceptions (Capra).

Confrontation Clause

See Confrontation Clause. Crawford v. Washington: the Confrontation Clause bars testimonial hearsay against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. “Testimonial” is defined by the primary purpose of the statement (Ohio v. Clark): statements whose primary purpose is to establish or prove past events potentially relevant to later criminal prosecution are testimonial; statements made to address an ongoing emergency are not. Non-testimonial hearsay is governed by the FRE, not the Confrontation Clause.

Key Doctrines

Key Cases

  • Daubert v. Merrell Dow Pharmaceuticals — FRE 702 gatekeeping standard for expert testimony; Frye “general acceptance” test superseded; five flexible reliability factors
  • Kumho Tire Co. v. Carmichael — Daubert applies to all expert knowledge, not only “scientific” testimony; factors are flexible and non-exclusive
  • Crawford v. Washington — Confrontation Clause bars testimonial hearsay unless declarant unavailable and prior opportunity to cross-examine
  • Ohio v. Clark — primary purpose test for testimonial statements; statements to teachers about abuse are non-testimonial
  • Huddleston v. United States — standard for admitting FRE 404(b) other acts: sufficient evidence (preponderance) that defendant committed the prior act; no preliminary finding of proof required
  • Old Chief v. United States — FRE 403 and stipulations; when sole purpose is proving prior felony status, defendant’s offer to stipulate may force prosecution to accept
  • United States v. Tome — FRE 801(d)(1)(B) prior consistent statements must predate the motive to fabricate
  • Beech Aircraft Corp. v. Rainey — FRE 803(8) public records exception extends to opinions and conclusions in investigative reports if based on factual investigation and trustworthy

Exam Approach

Step 1 — Is the evidence relevant?

  1. Does it tend to make a material fact more or less probable? (FRE 401)
  2. Is it of consequence to the determination of the action?
  3. Apply FRE 403 balancing: probative value vs. unfair prejudice, confusion, waste of time
  4. Is relevance conditioned on a fact? → FRE 104(b) conditional relevance

Step 2 — Is there a policy exclusion?

  • Prior bad acts / character to prove propensity? → FRE 404(a), (b); identify MIMIC purpose
  • Subsequent remedial measure? → FRE 407
  • Settlement offer or statement? → FRE 408
  • Offer to pay medical expenses? → FRE 409
  • Plea or plea discussion? → FRE 410
  • Liability insurance? → FRE 411
  • Sexual history of victim? → FRE 412 (shift burden; higher threshold than 403)

Step 3 — Witness issues

  • Competency: Does the witness have personal knowledge? (FRE 601–602)
  • Oath: Did witness swear or affirm? (FRE 603)
  • Opinion: Lay (FRE 701) vs. expert (FRE 702–Daubert)?
    • Expert: qualified? reliable methodology (Daubert factors)? applied reliably to facts?
    • Ultimate issue allowed (FRE 704(a)) except mental state in criminal case (FRE 704(b))
  • Impeachment: PIS (FRE 613), bias, prior conviction (FRE 609), bad acts (FRE 608(b))
    • Crimen falsi: always admissible, no FRE 403 discretion
    • Felony vs. criminal defendant: probative must outweigh prejudicial
    • 10-year-old convictions: probative value must substantially outweigh prejudice

Step 4 — Is the statement hearsay?

  1. Is it an out-of-court statement (FRE 801(a)-(c))?
  2. Is it offered to prove the truth of the matter asserted?
  3. If yes → check exemptions under FRE 801(d): prior statements by witness, admissions by party-opponent
  4. If still hearsay → check FRE 803 exceptions (availability immaterial)
    • 803(1) Present sense impression (immediacy required)
    • 803(2) Excited utterance (stress of excitement; time and reflection are key)
    • 803(3) Then-existing mental/physical state (no past acts; forward-looking intent allowed)
    • 803(4) Statements for medical diagnosis or treatment (cause OK, fault not OK)
    • 803(5) Past recollection recorded (fresh, accurate, now impaired memory)
    • 803(6) Business records (regular course, not self-serving litigation reports)
    • 803(8) Public records (scope varies by civil/criminal and type of record)
  5. If declarant unavailable → check FRE 804 exceptions
    • 804(b)(1) Former testimony (prior opportunity and similar motive to cross)
    • 804(b)(2) Dying declaration (belief of imminent death; cause or circumstances)
    • 804(b)(3) Statement against interest (penal, pecuniary, or proprietary interest)
    • 804(b)(6) Forfeiture by wrongdoing (party procured unavailability)
  6. Catch-all: FRE 807 residual exception (use sparingly)
  7. Even if admissible under FRE → check Confrontation Clause (Crawford) if criminal case
    • Is statement testimonial (primary purpose: establishing past facts for prosecution)?
    • If yes: declarant must be unavailable and defendant must have had prior opportunity to cross-examine

Step 5 — Is the evidence properly authenticated?

  • Is it what the proponent claims? (FRE 901)
  • Self-authenticating? (FRE 902)

Step 6 — Best Evidence Rule

  • Is a writing, recording, or photograph’s contents at issue? (FRE 1002)
  • Is it offered to prove content, or to prove the underlying event independently?
  • If content at issue: original or acceptable duplicate? (FRE 1003–1004)

Step 7 — Privilege

  • Attorney-client? Spousal? (FRE 501)
  • Was privilege waived?

Step 8 — Limiting instructions and curative admissibility

  • FRE 105: evidence admissible for one purpose, not another → request limiting instruction
  • Rule of completeness: FRE 106

Professor Capra’s Policy Themes

  • The 2011 restyling of the FRE was meant to be stylistic only — no substantive changes
  • FRE 807 residual exception should be used sparingly; courts must not circumvent the categorical exceptions
  • Daubert gatekeeping is about reliability of methodology, not correctness of conclusions (though Joiner allowed looking at both)
  • Crawford’s “testimonial” concept is defined by primary purpose, not location or formality
  • FRE 404(b) is not a true exclusionary rule — it only bars propensity reasoning, not the evidence itself
  • Why we have hearsay rules: distrust the jury to properly weigh statements not subject to cross-examination; absence of oath; inability to assess demeanor
  • FRE 403 balances inputs — the jury remains a black box for outputs (Tanner v. United States)

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