Juris Doctor (JD) Evidence Syllabus

What are the three FRE 606(b) exceptions allowing juror testimony to impeach a verdict?

A juror may testify about: (1) extraneous prejudicial information improperly brought to the jury's attention; (2) an outside influence improperly brought to bear; and (3) a mistake in entering the verdict on the verdict form. (Pena-Rodriguez adds clear racial bias.)

Under FRE 611, what is the general rule on leading questions?

Leading questions should not be used on direct examination except as necessary to develop testimony. They are permitted on cross-examination and when examining a hostile witness, an adverse party, or a witness identified with an adverse party.

Under FRE 612, what may an adverse party do when a witness uses a writing to refresh recollection?

When a witness uses a writing to refresh memory while testifying, the adverse party is entitled to have it produced, to inspect it, to cross-examine the witness about it, and to introduce relevant portions into evidence.

What is the difference between 'present recollection refreshed' (FRE 612) and 'recorded recollection' (FRE 803(5))?

In present recollection refreshed, the writing jogs the witness's memory and the witness then testifies from refreshed memory; the writing is not evidence. In recorded recollection, the witness cannot fully recall, so the record itself (made when fresh) is read into evidence as a hearsay exception.

Under FRE 607, who may impeach a witness?

Any party, including the party that called the witness, may attack the witness's credibility.

What are the main methods of impeachment?

(1) Prior inconsistent statements; (2) bias, interest, or motive; (3) character for untruthfulness (reputation/opinion, prior bad acts, criminal convictions); (4) sensory or mental defect; and (5) contradiction.

Under FRE 613, what foundation is required to impeach with a prior inconsistent statement and to admit extrinsic evidence of it?

The statement need not be shown to the witness before questioning, but it must be disclosed to opposing counsel on request. Extrinsic evidence is admissible only if the witness is given an opportunity to explain or deny it and the opposing party may examine the witness (unless justice requires otherwise); it cannot impeach on a collateral matter.

Under FRE 608(a), how may a witness's character for truthfulness be attacked or supported?

By testimony about the witness's reputation for, or opinion of, the witness's character for truthfulness or untruthfulness. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

Under FRE 608(b), may specific instances of conduct be used to attack truthfulness, and is extrinsic evidence allowed?

Specific instances probative of truthfulness/untruthfulness may be inquired into on cross-examination, in the court's discretion, but extrinsic evidence is NOT admissible to prove them (you must take the witness's answer).

Under FRE 609(a), how are convictions used to impeach—what is the rule for crimes punishable by more than one year?

For felonies (crimes punishable by death or imprisonment over one year): if the witness is a criminal defendant, admissible only if probative value outweighs prejudicial effect; for all other witnesses, admissible subject to FRE 403.

Under FRE 609(a)(2), how are convictions involving dishonesty or false statement treated?

Any conviction—felony or misdemeanor—for a crime requiring proof of a dishonest act or false statement (crimen falsi) MUST be admitted to impeach; the court has no discretion to exclude it under FRE 403.

What is the 10-year time limit on impeachment by conviction under FRE 609(b)?

If more than 10 years have passed since the conviction or release from confinement (whichever is later), the conviction is admissible only if its probative value substantially outweighs its prejudicial effect and the proponent gives reasonable written notice.

Under FRE 701, what are the limits on lay opinion testimony?

A lay witness's opinion must be (1) rationally based on the witness's perception, (2) helpful to understanding the testimony or determining a fact, and (3) not based on scientific, technical, or other specialized knowledge under FRE 702.

State the four requirements for admitting expert testimony under FRE 702.

(1) The expert is qualified by knowledge, skill, experience, training, or education; (2) the testimony will help the trier of fact; (3) it is based on sufficient facts or data; and (4) it is the product of reliable principles and methods reliably applied to the facts (and the proponent shows this is more likely than not).

What are the Daubert factors for assessing the reliability of expert/scientific testimony?

(1) Whether the theory/technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) general acceptance in the relevant scientific community.

Under FRE 703, on what may an expert base an opinion, and when may inadmissible underlying facts be disclosed to the jury?

An expert may rely on facts/data made known before or at trial, including inadmissible evidence if experts in the field reasonably rely on such; inadmissible bases may be disclosed to the jury only if their probative value in helping evaluate the opinion substantially outweighs their prejudicial effect.

Under FRE 704, may an expert opine on an ultimate issue, and what is the exception?

Opinion testimony is not objectionable merely because it embraces an ultimate issue. Exception (FRE 704(b)): in a criminal case, an expert may not state an opinion about whether the defendant did or did not have the mental state constituting an element of the crime or defense; that is for the trier of fact.

What is the FRE 801(c) definition of hearsay?

Hearsay is a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted in the statement.

What qualifies as a 'statement' and a 'declarant' for hearsay purposes under FRE 801(a)-(b)?

A statement is a person's oral or written assertion, or nonverbal conduct intended as an assertion. A declarant is the person who made the statement. Statements by machines or animals are not hearsay because they have no human declarant.

Give three categories of out-of-court statements that are NOT hearsay because they are not offered for their truth.

(1) Verbal acts/legally operative words (e.g., words of contract, defamation); (2) statements offered to show effect on the listener (e.g., notice, motive, reasonableness); and (3) statements offered as circumstantial evidence of the declarant's state of mind or knowledge.

Under FRE 801(d)(1), which prior statements of a testifying witness are defined as NOT hearsay?

When the declarant testifies and is subject to cross: (A) a prior inconsistent statement made under oath at a prior proceeding; (B) a prior consistent statement offered to rebut a charge of recent fabrication/improper motive or to rehabilitate credibility; and (C) a statement of prior identification of a person.

Under FRE 801(d)(2), what are the five types of opposing-party statements (admissions) that are not hearsay?

(A) the party's own statement; (B) a statement the party adopted/believed true; (C) a statement by a person authorized to speak; (D) a statement by the party's agent/employee on a matter within scope during employment; and (E) a co-conspirator's statement made during and in furtherance of the conspiracy.

What is the key distinction between the FRE 803 and FRE 804 hearsay exceptions?

FRE 803 exceptions apply regardless of whether the declarant is available as a witness. FRE 804 exceptions apply only when the declarant is unavailable (e.g., privilege, refusal, lack of memory, death/illness, or absence).

Define 'present sense impression' and 'excited utterance' (FRE 803(1) and 803(2)) and their key difference.

Present sense impression: a statement describing an event made while or immediately after perceiving it. Excited utterance: a statement about a startling event made while under the stress of excitement it caused. The key difference is that the excited utterance requires a startling event and stress, while the present sense impression requires near-contemporaneity.

What is the 'state of mind' exception under FRE 803(3) and its limit?

A statement of the declarant's then-existing mental, emotional, or physical condition (e.g., intent, motive, plan, pain) is admissible. It does NOT include a statement of memory or belief offered to prove the fact remembered/believed (except about the declarant's will).

What are the requirements of the business records exception under FRE 803(6)?

A record of an act/event/condition is admissible if: made at or near the time by someone with knowledge; kept in the regular course of business; making the record was a regular practice; and shown by a qualified witness or certification—unless the source or circumstances indicate a lack of trustworthiness.

What are the requirements for the statement-for-medical-diagnosis-or-treatment exception (FRE 803(4))?

Statements are admissible if made for, and reasonably pertinent to, medical diagnosis or treatment, describing medical history, past or present symptoms, or their general cause. Statements of fault are generally excluded unless pertinent to treatment.

What are the four FRE 804(b) exceptions requiring declarant unavailability?

(1) Former testimony; (2) dying declarations (statement under belief of imminent death about its cause/circumstances, in a homicide prosecution or any civil case); (3) statements against interest; and (4) statements of personal or family history. (Plus 804(b)(6) forfeiture by wrongdoing.)

What is 'forfeiture by wrongdoing' under FRE 804(b)(6)?

A statement is admissible against a party who wrongfully caused—or acquiesced in wrongfully causing—the declarant's unavailability and did so intending that result. This also forfeits Confrontation Clause objections.

Under Crawford v. Washington, when does the Confrontation Clause bar admission of an out-of-court statement?

In a criminal case, a testimonial statement by an unavailable declarant is barred unless the defendant had a prior opportunity to cross-examine the declarant. The Clause applies only to testimonial statements offered against the accused.

Under Davis v. Washington, what distinguishes 'testimonial' from 'nontestimonial' statements to police?

Statements are nontestimonial when made to enable police to meet an ongoing emergency. They are testimonial when the primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution.

What are the elements of the attorney-client privilege, and who holds it?

A confidential communication between attorney and client (or their representatives), made for the purpose of obtaining or providing legal advice, is privileged from disclosure. The client holds the privilege and may waive it; it survives the client's death.

What is the crime-fraud exception to the attorney-client privilege?

The privilege does not apply to communications made to enable or aid the client in committing or planning a future or ongoing crime or fraud. It does not protect advice sought to further wrongdoing.

Compare the two forms of spousal privilege (testimonial vs. confidential marital communications).

Spousal testimonial (immunity) privilege: in a criminal case, a spouse may refuse to testify against the defendant-spouse; held by the witness-spouse; requires a valid marriage at trial. Confidential marital communications privilege: protects private communications made during marriage (civil or criminal); held by both spouses; survives divorce.

Under FRE 901, what is the general requirement for authenticating evidence?

To authenticate an item, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. This is a low bar; the jury ultimately decides genuineness.

Under FRE 902, what is self-authenticating evidence (give examples)?

Certain items require no extrinsic authentication, e.g., public documents under seal, certified copies of public records, official publications, newspapers/periodicals, trade inscriptions/labels, acknowledged (notarized) documents, commercial paper, and certified business and electronic records.

State the best evidence (original document) rule under FRE 1002 and when it applies.

To prove the content of a writing, recording, or photograph, the original (or a duplicate) is required. It applies only when the contents are at issue—e.g., the writing is a legally operative document or a witness relies on the writing rather than independent knowledge.

Under FRE 1003 and 1004, when are duplicates and secondary evidence of contents admissible?

A duplicate is admissible to the same extent as the original unless there is a genuine question about authenticity or it would be unfair (FRE 1003). Secondary evidence (e.g., testimony) is allowed if the original is lost/destroyed not in bad faith, unobtainable, in the opponent's control, or relates to a collateral matter (FRE 1004).

Under FRE 201, what facts are subject to judicial notice and what is the standard?

A court may judicially notice an adjudicative fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

How does the effect of judicial notice differ between civil and criminal cases under FRE 201(f)?

In a civil case, the jury must accept a judicially noticed fact as conclusive. In a criminal case, the jury may—but is not required to—accept the noticed fact as conclusive, preserving the defendant's right to a jury trial.

What is the effect of a rebuttable presumption in a civil case (the 'bursting bubble' theory under FRE 301)?

A presumption shifts the burden of production (going forward with evidence) to the opposing party, but not the burden of persuasion. Once the opponent produces sufficient rebutting evidence, the presumption disappears and the underlying inference is for the jury.

What is the 'collateral matter' rule in impeachment by contradiction?

Extrinsic evidence is not admissible to impeach a witness by contradicting testimony on a collateral matter—one with no significance to the case other than contradicting the witness. The cross-examiner must accept the witness's answer on collateral points.

What is the 'rule of completeness' under FRE 106?

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing/statement—that in fairness ought to be considered at the same time, even if it would otherwise be inadmissible hearsay.

What is the difference between hearsay 'exclusions' (FRE 801(d)) and hearsay 'exceptions' (FRE 803/804)?

Exclusions (FRE 801(d))—prior statements of a testifying witness and opposing-party statements—are defined as not hearsay at all. Exceptions (FRE 803/804) admit statements that ARE hearsay but are deemed sufficiently reliable; some require declarant unavailability.

What is the residual (catch-all) hearsay exception under FRE 807?

A hearsay statement not covered by a 803/804 exception may still be admitted if it has sufficient guarantees of trustworthiness (considering totality of circumstances and corroborating evidence) and is more probative on the point than other reasonably obtainable evidence, with reasonable notice to the adverse party.

Under Bruton v. United States, what Confrontation problem arises in a joint trial?

In a joint criminal trial, admitting a non-testifying co-defendant's confession that facially incriminates the other defendant violates the Confrontation Clause, even with a limiting instruction, unless the confession is redacted to eliminate reference to the co-defendant.

How do FRE 104(a) and 104(b) allocate the judge's role on preliminary questions vs. conditional relevance?

Under 104(a), the judge decides preliminary questions about admissibility (competency, privilege, qualifications) by a preponderance and is not bound by the rules of evidence (except privilege). Under 104(b), for conditional relevance, the judge admits the evidence if there is sufficient proof for a reasonable jury to find the condition fulfilled.

What is impeachment by bias, and is extrinsic evidence permitted?

Bias impeachment shows the witness has a motive to favor or oppose a party (e.g., relationship, financial interest, hostility, plea deal). Bias is never a collateral matter, so extrinsic evidence is admissible (though most courts require a foundation/opportunity to explain).

What is the chain-of-custody requirement, and when is it needed for authentication?

For fungible or readily alterable physical evidence (e.g., drugs, blood), the proponent must show a substantially unbroken chain of custody establishing the item is in substantially the same condition as when obtained, to authenticate it as what it purports to be.