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Rutgers University, Newark School of Law
Rothman, Andrew James

Professor Andrew Rothman
Spring 2010

1.     Introduction. 2
2.     Relevance and Irrelevance. 2
3.     Probative value and prejudice. 3
4.     Conditional Relevance. 6
6.     Introduction to Hearsay. 7
7.     Implied Assertions:10
8.     Exceptions to the Hearsay Rule: Prior statements by witnesses:12
9.     Admissions by Party-Opponents:13
10.       Spontaneous and contemporaneous statements:17
11.       State of Mind Exception:19
12.       Injury reports; recorded recollection. 21
13.       Business records. 23
14.       Public Records, 803(8)-(10):25
15.       Former Testimony; Dying Declarations; Declarations against Interest26
16.       Forfeiture by wrongdoing: FRE 804(b)(6):30
17.       Residual Exception: 807. 30
18.       Hearsay and Confrontation. 31
19.       Bruton and Chambers. 32
20.       Character:34
21.       Other Uses of Specific Conduct:37
22.       Character Evidence in Cases of Sexual Assault and Child Molestation. 39
23.       Other Forbidden Inferences. 41
25.       Impeachment44
26.       Dishonesty: Character for Untruthfulness. 44
27.       Prior inconsistent statements. 47
28.       Bias and Incapacity. 48
29.       Specific Contradiction:49
30.       Rehabilitation:49
31.       Competence. 51
32.       Lay Opinions:52
33.       Expert Testimony. 53
34.       Scientific and Technical Evidence. 55
35.       AC Privilege. 57
36.       Waiver58
37.       Crime-Fraud Exception. 58
38.       Spousal Privileges. 59
39.       Physical Evidence. 60
40.       Presumptions and Judicial Notice. 62

1.     Introduction
a.       History
a.      Federal Rules of Evidence 1975.
b.      Anglo-American Trial
a.      before trial begins, judge hears motions on how it will proceed.
1.      Often motions to rule certain evidence admissible or not—called motions in limine.
b.      jury selection
1.      bench trial if parties agree to no jury or parties have no right to jury.
c.      Opening statement:
d.      Case in chief
1.      calling witnesses
a.       direct examination
b.      cross examination
2.      presenting physical evidence
c.       Role of Judge
a.      great deference to trial court’s determination of admissibility of evidence
d.      Policy:
a.      why not let all evidence in?
b.      ad hoc vs per se

2.     Relevance and Irrelevance

a.      “Relevant Evidence”
a.      Definition: evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. FRE 401
b.      standard of probability is “more probable than it would be w/o the evidence.”
c.      very low standard of evidence; any tendency to claim slightly or less lightly to be true.
b.      Rule 402:
a.      irrelevant evidence excluded—no exceptions.
b.      All relevance evidences included, with lots of exceptions, Constitution, these rules.
c.       Examples:
a.      Clubbed to death:
1.      to establish self-defense, D said that he killed M because he heard that M had killed an old man while arresting him.
2.      State rebutted with physician testimony that old man died of disease
3.      è admissible to negative D’s claim; tends to discredit him. Knapp v Ohio [Ind. 1907]:
b.      Ownership of gun
1.      D accused of shooting and killing V; government introduced evidence that D owned a gun, had barrel replaced, shop-owner saw scratches on gun.
2.      è relevant: makes his guilt more probable. US v Dominguez [1st 1990]:

c.      Riding a horse:
1.      L convicted of negligent endangerment for riding horse with kid, who died from fall.
2.      blood alcohol higher than generally accepted by scientific community for safe driving
3.      è admitted; relevant to show that L’s reactions impaired. State v Larson [Mont. 1992]:
d.      Notes on relevance rule
a.      structure is unique
b.      relational
c.      two parts
d.      undemanding
e.      require evidence to be rationally probative
3.      Probative value and prejudice

a.       FRE 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
a.      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
1.      unfair prejudice,
2.      confusion of the issues, or
3.      misleading the jury, or
4.      by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

b.      Confusion of Issues: US v Noriega [7th 1997]:
a.      N indicted on drug charges; wanted to use classified info about his work for US to rebut US charge that he had unexplained wealth [to argue that money comes from drug trafficking]; said he got money from doing covert work for the US.
b.      District court ruled irrelevant; cannot disclose info about content of discrete operations, but can disclose info about the fact, amt, and source of money he allegedly received.
c.      è evidence is relevant but district court did not abuse discretion under FRE 403 when it said that probative value of proffered material was outweighed substantially by confusion of issues its admission would have caused—shifted trial from drug trafficking to geo-political intrigue.
d.      disputed amts, facts regarding the operations could lead jury to determine N or US’s claim is more credible; e.g., if operations significant, then more likely that his higher amt is more credible—but no matter, too confusing.
e.      Notes:
1.      chain of inference: did important work à US pays him lots of money à didn’t have unexplained wealth à wasn’t a drug trafficker. [each with background presuppositions]
c.       Presentation of Cumulative Evidence/Misleading the Jury: US v Flitcraft [5th 1986]: 
a.      D convicted for failing to file tax returns, etc.; contends government charge of willfulness; said relied on cases and articles to conclude that he owed no taxes; judge did not allow him to introduce cases and articles to jury but allowed him to talk about them.
b.      è documents themselves very little probative value since he already talked about them; also barred under 403, presenting danger of confusing jury by suggesting that the law is unsettled.
c.      [ignorance of law generally not excuse, but in tax

at prior conviction is not evidence of guilt of the crime now charged.
3.      this should offset whatever prejudice there is. 
4.      [but the jury instruction was moronic!] m.      Notes:
1.      unusual to see reversal of trial court for abuse of discretion
2.      rare to see so forcibly argue case that trials not all about logic; emotions matter; [but this is not evidence law!]

4.     Conditional Relevance

a.       FRE 104:
a.      “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.”
b.      Admissibility of evidence may depend on answer to preliminary question of fact.
a.      e.g., speed of car in reckless driving prosecution, relevant only if D actually was driving car.
b.      Rule: trial court allows speed evidence as long as court decides that there is sufficient evidence to permit a reasonable jury to conclude that D was driving car.
c.      Relevancy conditioned on fact: “When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”

c.       Did inmate talk to D?: State v McNeely [Or 2000]:
a.      D convicted of aggravated murder; jailhouse inmate testified about statements D made to him. These statements make it more likely that D did it. Relevant, however, only if inmate spoke to D.
b.      court denied D’s motion to strike testimony because inmate was unable to id D as the person.
c.      è admitted.
d.      court found that a reasonable juror could find that the man inmate spoke to was D.

d.      Vaughn Ball—no conditional relevance:
a.      everything deals with probabilities anyway, so when inmate testified, it is plain relevance, not conditional relevance. 
b.      just requires some slight chance of increasing proof.
c.      if really don’t like it, then exclude under 403. 
d.      Craig Callen—

Balancing Test: FRE 403.
Limited admissibility: 105, when admissible for one purpose but not for another, then give jury a limiting instruction. 
Conditional relevance: judge decides whether reasonable jury would conclude the condition.