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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 an equally percipient witness, although such would enhance the declaration’s evidentiary weight. (Jones)

D.     Admissions (not hearsay under FRE)
1)      General Admissions (not hearsay)
(a)    RULE: An admission by a party, that is that party’s own statement, is not hearsay if offered against that party. ®801(d)(2)(A)
(i)     May be based on the declarant’s personal opinion or conclusion. (Gilbert)
(ii)   No personal knowledge is required. (Mahlandt)
(iii)Need not be “against interest,” but simply contrary the party’s present position. (Gilbert)
(b)   Common Law – admissions were an exception to the hearsay rule
2)      Implied or Adoptive Admissions (not hearsay under FRE)
(a)    RULE: A statement by another, where the party has manifested an adoption or belief in its truth, is not hearsay if offered against that party as an admission. ®801(d)(2)(B)
(i)     Implied
·         If an admission is made in the presence of the D and he remains silent, then it is likely that he adopts its truth—especially given the right circumstances. (Hoosier)
·         If a party fails to respond or makes an evasive reply to accusatory statements made to the party or within his hearing, and a reasonable person in such a position would have unequivocally denied such accusations, the party’s silence or evasion may be an implied admission. (Gilbert)
·         Party must have been (1) present and capable of hearing and understanding the accusations; (2) been physically and mentally able to deny the accusations; and (3) had the opportunity and motive to deny (reasonable person would want to deny). (Gilbert)
·         Note that in a criminal case, Ds have the “right to remain silent” and silence after Miranda rights are read is not an admission. (Gilbert)
(ii)   Adoptive
·         A party may, by words or other conduct, voluntarily adopt or ratify the statement of another. (Gilbert)
·         The adoption must be voluntary.

(iii)Properly conducted surveys are admissible as they are statements of present state of mind, belief, or attitudes. (Zippo)
(b)   Declarations of present intent as evidence to show subsequent conduct (yes)
(i)     A person’s out of court statements of state of mind may be admissible to show the probability that the person committed some subsequent act pursuant to that declared state of mind. (Hillmon)
(ii)   The intentions of a declarant can be used to prove the likelihood that the intended act was accomplished even if the intentions involved another party. (Phaester)
(c)    Declarations of the Past (no)
(i)     Declarations of memory, pointing towards the past, do not fall under the exception. (Shepard)
(ii)   A declarant’s present statements of state of mind may not be used to prove a past event. (Shepard)
(iii)You cannot use this exception to help prove events that already happened—only applies to events that occurred after the declarations. (Gilbert)
2)      RULE: Statements of memory or belief relating to the execution, revocation, identification, or term’s of declarant’s will, are admissible. ®803(3)
H.     Medical Diagnosis (unavailability immaterial)
1)      RULE: Statements made for purposes of medical diagnosis or treatment that describe medical history, past or present symptoms, pain, sensations, or the inception or general character of the cause or source thereof as reasonably pertinent to the diagnosis or treatment are admissible. ®803(4)
(a)    Statements may not be made just to a physician, but to anyone associated with providing medical services. (Gilbert)
(b)   Under FRE, statements about present pain or pasty physical condition made to a physician who examined the declarant solely for the purpose of testifying at trial are still admissible. (Gilbert)
(c)    Common Law – statements made to non-treating physicians are not admissible
I.        Prior Identification (not hearsay under FRE)
1)      RULE: A prior statement by a witness at another trial or hearing, identifying a person after seeing the person, and subject to cross-examination concerning the identification, is not hearsay. ®801(d)(1)(C)
(a)    The previous identification must be constitutionally obtained. (Gilbert)
(b)   A witness is “subject to cross” when he is on the stand, under oath, and answers the questions of his own accord. (Owens)
(c)    Admissions of an out of court previous identification does not violate the CC because the witness is still “subject to cross” even if the witness cannot, upon cross, remember the basis of the previous identification due to memory loss. (Owens)
(d)   CC is satisfied when a party has an opportunity to bring out, for example, witness bias, lack of care, poor sensory perception, faulty member, etc. (Owens)
(e)    The witness, however, must appear at the present trial and be subject to cross concerning that previous identification to satisfy CC. (Owens)
(f)    The CC guarantees a right to confront witnesses with cross, it does not guarantee an effective cross. (Owens)
J.       Prior Inconsistent Statements (not hearsay under FRE)
1)      RULE: A previous inconsistent statement, made a former hearing, trial, or other proceeding while under oath, that is made by a witness who is now testifying (and is subject to cross) at a trial, hearing, or deposition, is not hearsay. ®801(d)(1)(A)
(a)    Note that here it is not being used for the truth of the matter, but simply that inconsistent statements were said.
K.     Prior Consistent Statements (not hearsay under FRE)
1)      RULE: A prior statement by a witness at another trial or hearing, subject to cross-examination concerning the statement, that is consistent with the declarant’s current testimony and is now offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, is not hearsay. ®801(d)(1)(B)