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Rutgers University, Newark School of Law
Leubsdorf, John


I.      Relevance
A.     RULE: “Relevant evidence” means evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than without. ®401
1)      Is it material?
(a)    The evidence must be upon a matter in issue. (Gilbert)
(b)   Which matters are determined by the pleadings, substantive law, pretrial orders, etc. (Gilbert)
(c)    Some matters, like credibility of a testifying witness, are always in issue. (Gilbert)
2)      Is it probative?
(a)    The evidence must logically tend to prove the proposition for which it is offered. (Gilbert)
(b)   The evidence must make the fact more likely than it would be without the evidence. (Gilbert)
B.     RULE: All relevant evidence (unless otherwise admitted) is admissible. Evidence that is not relevant is not admissible. ®402
1)      In a trial to determine whether a police officer’s belief of the present of a gun is reasonable, evidence that there in fact was no gun is not relevant and thus not admissible. (Sherrod)
C.     RULE: When evidence is admissible to one party or one purpose, but not admissible to another party or for another purpose ends up being admitted, the court can issue a limiting instruction to the jury upon request. ®105

II.   Prejudice
A.     RULE: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ®403
1)      Evidence can NOT be excluded because the judge does not find it credible. (Ballou)
2)      If an alternative to the proffered evidence has essentially the same probative value, but a lower danger of unfair prejudice, then the judge should choose the alternative over the more prejudicial option. (Old Chief)

A.     RULE: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or admissibility of evidence will be determined by the court—and in doing so it is not bound by the rules of evidence. ®104(a)
1)      Court may consider evidence that would not otherwise be admissible when making a preliminary ruling. (Bourjaily)
2)      Privileged evidence, however, may not be considered. (Gilbert)
B.     RULE: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall at admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition. ®104(b)
1)      Court will use a “preponderance of the evidence” standard. (Gilbert)
2)      But issues that speak to credibility are remain in the domain of the jury. (Gilbert)

IV.           Hearsay
A.     What is Hearsay
1)      RULE: “Hearsay” is a statement made by an out of court declarant offered to prove the truth of the matter asserted. ®801(c)
2)      RULE: Hearsay is not admissible, unless otherwise provided. ®802
B.     What is not hearsay
1)      If not used to prove the truth of the matter
2)      If used simply to show that the statement was made
(a)    Statements to show simply that certain statements were made, not caring whether true or not, is not hearsay. (Ries Biologicals)
(b)   Statements that themselves serve as operative facts (in contracts, gifts, etc.) are not hearsay.
(c)    Statements to show that information was available, not caring whether true or not, is not hearsay. (Misericordia)
(d)   Statements to show what others believed a place to be, not caring whether they were right or not, is not hearsay. (Jaramillo-Suarez)
3)      Lack of Statements
(a)    Lack of certain statements is not hearsay—as only conduct intended to be assertive are statements and thus subject to the hearsay rule.
(i)     But is not conclusive proof unless other independent evidence demonstrates that there was an opportunity to complain. (Silver)
4)      If to show the effect of the statement on the listener
(a)    A statement to show notice or knowledge of an unsafe condition is not hearsay. (Vinyard)
(b)   Statements offered to prove anger or other motive reflecting on hearer or reader’s later conduct is not hearsay.
(c)    Statements offered to prove the hearer or reader’s subsequent conduct was in good faith is not hearsay.
5)      If the statements are admissions by a party opponent – see ®801(d)(2)
6)      If to show the declarant’s state of mind – see®803(3)
(a)    A statement offered to show duress is not hearsay. (Subrumaniam)
(b)   “State of mind” must be relevant to the case at hand to be admissible. (Hernandez)
7)      If to show inconsistent statements
(a)    Prior inconsistent statements are not hearsay if made under oath at a previous hearing. ®
(b)   Common Law – prior inconsistent statements are hearsay
8)      Conduct, observations, or others that are not statements
(a)    Nonverbal conduct, that is not intended to be an assertion, is not hearsay under ®. (Zenni)
(b)   People making phone calls to place bets at a place are not hearsay under the ® because their statements were not intended to be assertions—but they do demonstrate the character of a place.
(c)    Common Law – nonverbal conduct can be hearsay

V.   Hearsay Exceptions
A.     Dying Declarations (must be unavailable)
1)      RULE: A statement concerning the cause or circumstances of his impending death, if made by declarant while believing that his death was imminent, is admissible. ®804(b)(2)
(a)    Statement must be that of the victim, not some third person (Gilbert)
(b)   Declarant must have believed that death was imminent at the time of the statement. (Soles)
(c)    Statement must concern facts related to the cause or circumstances of his impending death. (Shepard)
(d)   Mere opinion offered by the declarant is inadmissible. (Shepard)
(e)    Determination of whether the victim was under a sense of impending death is made by the judge. (Soles)
(f)    Does not apply to confessions about the deaths of others—only your own. (Gilbert)
(g)   Common Law – only if declarant dead, in homicide cases, and only against the killer
B.     Excited Utterances (unavailability immaterial)
1)      RULE: A statement relating to a startling event or condition made while declarant was under the stress or excitement cause by that startling event or condition is admissible. ®803(2)
(a)    The excited utterance need not relate to the startling event. (Tone)
(i)     But some courts only allow statements that are directly related to the excited event. (Michling)
(b)   There must be some occurrence startling enough to produce nervous excitement. (Michling)
(c)    The utterance must have been made before there was time to reflect. (Michling)
(i)     Need not be contemporaneous—so long as the startling effect hasn’t worn off (Michling)
(d)   There must be some evidence of the starting event in addition to the utterance that accompanies it. (Michling)
(i)     But some statements give rise to the presumption that the event occurred. (Michling)
(e)    Courts have leeway to determine how excited you have to be. (Gilbert)
C.     Present Sense Impressions (unavailability immaterial)
1)      RULE: A statement describing or explaining an event or condition, when made while the declarant was perceiving it or immediately thereafter, is admissible. ®803(1)
(a)    Statements made after the event are not admissible. (Gilbert)
(b)   Statements the are not reflexes—but are deliberative—are not admissible. (Lira)
(c)    Statements that are based on training and expertise are not instinctive—and not admissible. (Lira)
(d)   No requirement that the statements be corroborated by the testimony of

consider potentially inadmissible evidence when making a preliminary ruling whether the conspiracy existed. (Bourjaily)
·         Court must use a preponderance of the evidence standard when evaluating. (Bourjaily)
E.     Former Testimony (must be unavailable)
1)      RULE: Testimony given as a witness in another hearing, in other proceedings, or in a deposition is admissible if the party who the testimony is now offered against (or predecessor in interest) had an opportunity and similar motive to develop that testimony by direct, cross, or redirect. ®804(b)(1)
(a)    The issues in both trials must be identical (Travelers Fire)
(b)   But the parties need not be identical—they just must have the same motives and interests in cross-examining the witness. (Travelers Fire)
(c)    The fact that the same parties were involved does not mean that at the former trial they had the same motive—different hearings sometimes serve different purposes. (Salerno)
F.      Declarations Against Interest (must be unavailable)
1)      RULE: A statement, which at the time of its making, was so far contrary to the D’s pecuniary or proprietary interest, criminal liability, or invalidates a claim, such that a reasonable person in that position would not have made that statement unless believing it was true, is admissible. ®804(b)(3)
(a)    There must appear nothing to indicate that the declarant had some motive to falsify the facts stated. (McKelvey)
(b)   The declarant must still have personal knowledge of the facts he states (McKelvey)
(c)    The statement must be offered into evidence for its disserving aspect—for a purpose to the prejudice of the declarant—and not some other purpose. (Williamson)
(d)   Common Law – statements against penal interest were not allowed
2)      RULE: A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. ®804(b)(3); Barrett
(a)    Does not allow for statements which are not self-inculpatory, even if such statements are part of a broader narrative which is largely self-inculpatory. (Williamson)
G.     State of Mind (unavailability immaterial)
1)      RULE: A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), is admissible—but not statements of memory or belief to prove the fact remembered or believed. ®803(3)
(a)   Declarations as to present mental or emotional state (yes)
(i)     When the intention, feelings, or other mental state of a person is material to the issues, evidence of such a person’s declarations are admissible. (Adkins v. Brett)
(ii)   But if the evidence is admissible for one purpose, and inadmissible for another, judge will use discretion. (Adkins v. Brett)
·         Limiting instruction can be used: If wife says “I hate my husband, he’s a cheater,” the court can accept the “I hate him” statement and instruct the jury to disregard the “cheater” statement. (Tone)