Someone recently bought our

students are currently browsing our notes.

X

Evidence Long Outline

Law Outlines > Evidence Outline

This is an extract of our Evidence Long Outline document, which we sell as part of our Evidence Outline collection written by the top tier of Harvard Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outline. Due to the challenges of extracting text from PDFs, it will have odd formatting:

EVIDENCE OUTLINE
Relevance...........................................................................................................................................3
Rule 401. Test for Relevant Evidence.........................................................................................3
Probative v. Unfair Prejudice.............................................................................................................4
Rule 403. Excluding Evidence for Prejudice, Confusion, Waste of Time...............................4
Special Relevance Restrictions (Remedial Measures, Negotiations, Plea Deals, etc.)......................6
Rule 407. Subsequent Remedial Measures................................................................................6
Rule 408. Compromise Offers and Negotiations.......................................................................6
Rule 409. Offers to Pay Medical Expenses (or similar)............................................................7
Rule 410. Pleas, Plea Discussions, and Related.........................................................................7
Rule 411. Liability Insurance......................................................................................................8
Character Evidence............................................................................................................................9
Rule 404. Character Evidence; Crimes or Acts.........................................................................9 404(a)(1) Prohibited Uses............................................................................................................................... 9 404(a)(2) Exceptions for a Defendant or Victim in a Criminal Case.............................................10 404(b) Crimes, Wrongs, or Other Acts.................................................................................................... 10 404(a)(3) Exceptions for a Witness........................................................................................................... 11
Modus Operandi.............................................................................................................................................. 11
Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other
Purposes......................................................................................................................................12
Rule 413. Similar Crimes in Sexual-Assault Cases.................................................................12
Rule 414. Similar Crimes in Child Molestation Cases............................................................12
Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation.......12
Rule 405. Methods of Proving Character................................................................................14
Rule 406. Habit; Routine Practice............................................................................................15
Impeachment....................................................................................................................................16
Rule 607. Who May Impeach a Witness..................................................................................16
Rule 608. A Witness...................................................................................................................16
Rule 609. Impeachment by Evidence of a Criminal Conviction............................................18
Rape Shield......................................................................................................................................20
Rule 412. Sex-Offense Cases: The Victim................................................................................20
Rule 610. Religious Beliefs or Opinions...................................................................................20
Probabilistic Evidence......................................................................................................................24
Hearsay.............................................................................................................................................26
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay.......................26
Rule 802. The Rule Against Hearsay........................................................................................27
Rule 613. Witness.......................................................................................................................30
Not Hearsay:.....................................................................................................................................31
Opposing Party Statements.......................................................................................................31
Coconspirator Statements.........................................................................................................31 Hearsay Exceptions..........................................................................................................................32
Rule 804. Hearsay Exceptions; Declarant Unavailable..........................................................32
Rule 803. Exceptions - declarant availability immaterial......................................................33
Rule 806. Attacking and Supporting the Declarant................................................................38
Rule 807. Residual Exception....................................................................................................38
Rule 602. Need for Personal Knowledge..................................................................................38
Rule 612. Writing Used to Refresh a Witness..........................................................................38
Confrontation Clause.......................................................................................................................39
Lay Opinions and Experts................................................................................................................43
Rule 701. Opinion Testimony by Lay Witnesses.....................................................................44
Rule 702. Testimony by Expert Witnesses...............................................................................44
Rule 703. Bases of an Expert.....................................................................................................44
Rule 704. Opinion on an Ultimate Issue...................................................................................44
Authentication..................................................................................................................................49
Rule 901. Authenticating or Identifying Evidence..................................................................49
Rule 902. Evidence That Is Self-Authenticating......................................................................50
Rule 1001. Definitions That Apply to This Article..................................................................52
Rule 1002. Requirement of the Original..................................................................................52
Rule 1003. Admissibility of Duplicates.....................................................................................52
Rule 1004. Admissibility of Other Evidence of Content.........................................................52
Privileges..........................................................................................................................................63
Rule 501. Privilege in General...................................................................................................63

1. Psychotherapist-Patient.........................................................................................................64

2. Lawyer-Client.........................................................................................................................65

3. Marital Privileges...................................................................................................................68

2 General
Evidence = rules about how the judicial system resolves disputes over questions of fact. Has implications for the juries.
Hard to determine what happened in the past with any certainty.
o finders of fact find facts.
o they could certainly be wrong.
o because its hard to know what happened in the past when people dispute them.
o rules in evidence are supposed to assist the fact finder in doing that as accurately as possible (either allowing evidence in or keeping evidence out).
 might look at other rules in evidence that reflect other values or policy preferences.
o most states have rules of evidence that conform or differ from the federal
 MA has no rule of evidence, but rather relies on the common law.
Limiting Instructions?
105 - things can against some parties and not others 404 - character evidence only considered for the right things.

Rule 104. Preliminary Questions
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Relevance
Rule 401. Test for Relevant Evidence
Rule 401: (a) evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence. (b) that is a fact of consequence.
Irrelevant evidence is inadmissible.
o need only make one fact more probable; not the whole crime.
o each piece is "a brink in a wall"
 a brick is not a wall
United States v. James (p. 29)
 Facts: James handed a gun to her daughter, who shot the victim. Ogden (victim); had just punched someone in the face. James says she was in fear. James said that Ogden had told her all these terrible things that he did. (p. 29). At trial the prosecution wanted

3 to introduce court documents on the robbery in which Ogden had sat on a man and threatened to blind him. (p. 30).
o Trial judge ruled that it was not admissible. Because James didn't know about the court document; so it says nothing about her state of mind.
o Reviewing court (9th Cir.) says it should have been admissible; necessary for her defense that she be found credible; and whether or not he really did it might be evidence of whether he believed her.
o makes it more probable that she was scared of him?
o realize that he probably wasn't lying about the other crimes too
 shows whether she would have believed him when he told her (b/c of his credibility) i.e., "the ring of truth"
 establishing her credibility - about whether she was afraid? or about whether he actually told her these things. (i.e., she is not making it up that he told her these things).
o fact must be of consequence to determining the action. 401(b).
o Ogden's conviction for the same thing makes it more likely that he actually told her that story, and that she believed him.
o evidence must make a fact of consequence more probable.
Cox. v. State (p. 36)
o Theory is that the murder was in retaliation for lawsuit against Hammer

Four days before the shooting there was a bail hearing for Hammer.
o Why not let it in? Did not know if Cox knew about the hearing and the outcome.
o Only Hammer's mother was there
 Maybe she talked to Cox?
 He couldn't have acted on something that he was unaware of.
o Rule 104(b) - relevance that depends on another fact.
o When relevance depends on whether a fact exists, must introduce other evidence that permits a factfinder to find the necessary fact.
Probative v. Unfair Prejudice
Rule 403. Excluding Evidence for Prejudice, Confusion, Waste of Time
 The court may exclude relevant evidence if the probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.
State v. Bocharski (p. 44)
o Killed this old woman in her trailer. Six photographs of the murder victim were admitted into evidence.
o did they add anything at all to the case?
o some were allowed and others were not.
o the last two are ruled inadmissible.
 because it substantially outweighs their probative value.
 her brain has been removed

4 not used for anything at trial - introduced just to inflame the jury. (does that matter?) (no)
 supposed to be an objective test
 but ppl are not idiots.
Dead Baby Video Example:
o theory of the case is about coldness of the victim

photos of the child's body
 nothing that can be testified to
 is only emotional
 shows that the focus was on getting revenge on the mother

judges have to look at the evidence

Is the photo relevant?
 goes to the intent of the defendant
 also shows the victim
 does it make the motive more or less probable?
 Does the danger of unfair prejudice outweigh?
 yes?
 too emotional?
 but not that gruesome?
 not that probative?
 there isn't a right answer - always a balance.
 would dislike the defendant?
 maybe vote to convict on weaker evidence than they would otherwise b/c inflamed?
 what is the probative value of it?
 they will certainly hear how the body was found
 how much does a photo add?
o its not like you need the photo to understand how the crime was committed.
o murdering a baby is already pretty callous
 how much does it add tho?
 from the video:
 doesn't take a picture to describe a dead baby in a hole
 can't let it in

Old Chief v. United States (p. 82)
Facts: Old Chief charged with possession of a firearm by anyone with a prior felony conviction,
and assault with a dangerous weapon. He was involved in a fight where at least one gunshot was fired. In order to fall within the possession statute, must have previously been convicted of a felony (crime w/ possible sentence of more than one year, or the death penalty).
o includes a lot of crimes

he was convicted of assault resulting in serious bodily injury
- what is the controversial evidence?
o government wants to put in the order of the judgment and commitment

5 


stated that he did knowingly and unlawfully assault Roy Dean Fenner,
which caused serious bodily injury, and resulted in 5 years imprisonment.
what is that? Just a court order on a piece of paper.
official document that says he is guilty shows the disposition of the case

Case Brief: Old Chief offered to stipulate to the fact of a prior conviction, which was an element of the crime with which he was charged. The prosecution resisted this stipulation,
arguing that it had the right to present its case in any manner it chose. In Old Chief, the Court applied Rule 403 to the particular situation presented by this case, and concluded that Rule 403 required the trial court to accept the defendant's stipulation to a prior conviction over the prosecution's objection.

Notes:
- Is it relevant?
o yes, it makes some fact (the prior conviction) more likely to be true

elements are (1) felon and (2) in possession

basic rule is that relevant evidence is admissible, so why not here?
- defendant is worried that the facts or type of prior crime will prejudice the jury; can generally give impression of bad character
- here Old Chief agreed to stipulate to the fact of the prior felony conviction, and that fact is no longer in dispute.
o jury must accept the fact as proved
- maybe the jury will think the crime was less bad? more bad?
- juries maybe do think that felons are bad people

the name of the crime (assault) is going to give the jury improper propensity evidence -- propensity is an impermissible basis for conviction.
o too similar because the names of the crimes are too similar
 therefore unfairly prejudicial
- here, without the stipulation, the prosecutor might have had to introduce the evidence
- does the stipulation render the evidence irrelevant?
o no, but maybe duplicative, maybe less important than it was before

still relevant, but introduction of the stipulation changes the relative probative value of the evidence.
 probative value is in comparison with other pieces of evidence
 rule 403 is always a balancing test

original document is highly probative, when it is the only possible way to prove the element

adding the stipulation renders the original order less relevant to the prosecutions case - supposedly gives it no value at all (but probably not true, there might be a little bit more value over a simple stipulation) (although if that was true why would the prosecution want to introduce it so bad?)
Real meaning of Old Chief: prejudice needs to only outweigh the reduced probative value of the objectionable evidence in relation to the other available evidence (i.e., marginal probative value).
- so why can't a defendant stipulate to all uncontested elements of a crime?
o what would happen if jury trials were actually only about the tiny disputed fact at issue?

6 -o jury needs all the context of the case that you're deciding?
o does over-stipulation remove the juror's responsibility to find fact?
Souter (separately)
o why don't we let everyone stipulate to everything?
o need for descriptive richness
 moral sense - without any context, is there moral imperative to get it right
 juror's expectations of what they will be shown
 juror's don't want to be disappointed but here, given the other available evidence, this judgment is highly prejudicial and not that probative and, the document doesn't add much by way of descriptive richness

Special Relevance Restrictions (Remedial Measures, Negotiations, Plea Deals, etc.)
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove:
 negligence;
 culpable conduct;
 a defect in a product or its design; or
 a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed
— proving ownership, control, or the feasibility of precautionary measures.
Rule 408. Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party —
either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Bankcard v. Universal (2000), p. 113
- contract about merchants signups between two credit card companies. Universal signs up retailers to use credit cards from the credit card company (Bankcard). for one year,
Universal can't sign up Bankcard competitors. But then, Bankcard terminated the contract,
and Universal moved the accounts to a different bank, which Bankcard sued for.

7

Buy the full version of these notes or essay plans and more in our Evidence Outline.