Law Outlines Evidence Outlines
Hello! These are my notes and outlines for Evidence, based on the textbook by Sklansky, Evidence: Cases, Commentary and Problems (4th ed.).
The full course outline includes detailed case briefs, along with class discussions. You could use it to excel in cold-calls even if you haven't done the readings.
The exam outline has been pared down. It will be good for persons looking to learn the main points of material before their exam, without worrying about the detailed factual and procedural ...
The following is a more accessible plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Trial Judge’s Discretion; Standard of Review 2
Relevance 4
Probative Value and Prejudice 5
Conditional Relevance 9
Hearsay 9
Nonhearsay Uses of Out-of-Court Statements 11
Implied Assertions 14
Hearsay and Confrontation 15
Exceptions to the Hearsay Rule 18
Prior Statements by Witnesses 18
Admissions by Opposing Parties 20
Direct Admissions 20
Multiple Hearsay 21
Completeness 21
Adoptive Admissions 22
Authorized Admissions 23
Agent and Employee Admissions 24
Co-Conspirator Admissions 25
Admissions and the Bruton Rule 26
Spontaneous and Contemporaneous Statements 28
State of Mind 30
The Hillmon Doctrine 30
Injury Reports 32
Recorded Recollection 33
Business Records 35
Qualifying “Businesses” 36
Sources of Information 38
Absence of Record 39
Public Records 39
Former Testimony 42
Dying Declarations 45
Declarations Against Interest 46
Forfeiture By Wrongdoing 48
Residual Exception 49
Hearsay and Due Process 51
Character Evidence 52
Other Uses of Specific Conduct 58
Permissible Purposes 58
Requisite Proof 62
Character and Habit 62
Sexual Assault and Child Molestation 64
Character of the Victim 64
Character of the Defendant 68
Other Forbidden Inferences 70
Settlement Efforts 72
Civil Settlements 72
Criminal Settlements 74
Medical Payments and Liability Insurance 76
Character for Untruthfulness 77
Prior Criminal Convictions 79
Admissible and Inadmissible Convictions 80
Preserving Claims of Error 82
Prior Inconsistent Statements 83
Bias and Incapacity 86
Specific Contradiction 88
Rehabilitation 89
Character for Truthfulness 90
Prior Consistent Statements 92
Opinions, Experts, and Scientific Evidence 93
Lay Opinions 93
Expert Testimony 97
Permissible Subjects and Scope 97
Reliability 101
Court-Appointed Experts 101
Privileges 103
Attorney-Client Privilege 104
Elements of the Privilege 105
Communication 105
In Confidence 106
Between Attorney and Client 108
To Facilitate Legal Service 110
Waiver 112
Crime-Fraud Exception 114
Spousal Privileges 115
Physical Evidence 116
Authentication 117
Best Evidence Rule 121
Scope and Purpose 123
Exceptions 124
*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.
FRE 104. Preliminary Questions
(a) In General. The Court must decide any preliminary questions 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.
FRE 103. Rulings on Evidence
(a) Preserving a Claim of Error. Party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits the evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes the evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew objection or offer proof to preserve a claim of error for appeal.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. Court may make any statement about character or form of evidence, objection made, and ruling. Court may direct an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, court must conduct jury trial so inadmissible evidence is not suggested to jury by any means.
(e) Taking Notice of Plain Error. Court may take notice of plain error affecting substantial right, even if claim of error was not properly preserved.
Park et al., Evidence Law
Courts differ on degree of certainty required to find error harmless.
9th Cir. uses “more probable than not” for nonconstitutional errors; 3rd Cir. requires reversal unless harmlessness is “highly probable”; 5th Cir. requires reversal unless “sure” error did not influence or had very slight effect on jury verdict.
If party opposing admission did not object, objected on wrong ground, or failed to specify ground, appellate court will reverse only if trial judge’s admission was “plain error.” Plain error is not easily defined and allows substantial judicial discretion, considering facts of case, gravity of offense, and probably effect of error. Some courts require error be obvious in record.
Saltzburg et al., FRE Manual
Questions of law reviewed de novo. Mixed questions of law and fact reviewed de novo, such as whether communication is protected by privilege. Vast majority reviewed under abuse of discretion standard.
Bandera v. City of Quincy, 344 F.3d 47 (1st Cir. 2003)
Facts:
P testified to her own experience and adduced testimony from witness including Coletta, who had filed then-pending sexual harassment claims of her own against D.
Opinion (Boudin, CJ):
Coletta’s testimony on her own experiences was relevant to show liability on the part of supervisors and pattern of knowing toleration.
Coletta had no “actual knowledge” of what happened to D, and testimony assessing what D reported happened was “wholly inappropriate opinion testimony” (FRE 701), which “should certainly not have been admitted.”
FRE 103(b) provides objection resolved by definitive in limine ruling admitting evidence need not be renewed at trial.
Under FRE 103(a)(1), an objection, if its basis is not obvious, is not preserved unless the ground is stated.
Under FRE 103(c), failure to preserve the objection means review is at most for plain error.
FRE 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than without evidence; and
(b) the fact is of consequence in determining the action.
FRE 402. General Admissibility of Relevant Evidence
Relevant evidence is...
Buy the full version of these notes or essay plans and more in our Evidence Outlines.
Hello! These are my notes and outlines for Evidence, based on the textbook by Sklansky, Evidence: Cases, Commentary and Problems (4th ed.).
The full course outline includes detailed case briefs, along with class discussions. You could use it to excel in cold-calls even if you haven't done the readings.
The exam outline has been pared down. It will be good for persons looking to learn the main points of material before their exam, without worrying about the detailed factual and procedural ...
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