liability insurance - not admissible to show negligence or ability to pay a judgment

subsequent remedial measures - can be admissible to show ownership or control or to rebut claim that measure was not feasible

settlement offers and withdrawn guilty please - not even direct admissions made during negotiation are admissible

offers to pay medical expenses - BUT admissions of fact accompanying the offer IS admissible

(1) def may introduce evidence of her own good character

(2) (non rape) def may introduce evidence of victim's bad character if relevant to accused's innocence

the prosecutor can rebut by:

(1) CX-ing a character witness: "did you know about x prior bad act?" ALL of DEFENDANT's bad acts can be referred to this way (including defendant's ARRESTS and convictions), but limited to the CX - no extrinsic ev on the bad act. also can't get to the WITNESS's past arrests

(2) EE - can call other qualified witnesses to give opinion/reputation evidence of bad character. cannot call witnesses for defendant's prior bad acts.

(1) introduce evidence of the victim's good character

(2) introduce evidence of defendant's bad character

what are specific acts of misconduct inadmissible to show?

what are they admissible to show?

specific acts of misconduct are inadmissible if offered to establish a criminal disposition or bad character.

MIMIC - motive, intent, (absence of) mistake, identity, common plan

there must be sufficient evidence to support a jury finding that defendant did the prior act

and must pass 403

can be authenticated by the trier of fact through comparison of samples

the opinion of a NON expert with PERSONAL knowledge is fine,

but can't become personally familiar with the handwriting just for purposes of testifying

to prove the TERMS of a writing/recording/photograph, the original thing must be produced if the terms of the thing are material.

by original, we mean duplicates are okay because this rule is ridiculous.

terms of a legally operative document

when the knowledge of a witness concerning a fact results from having it read it in a document that's not being produced 

(so when the only reason you know about mileage is that you looked on a sticker, can't testify as to the mileage without an excuse for not producing the sticker)

loss or destruction of the original

the original is in the possession of an outside-of-jurisdiction 3rd party and is unobtainable

the original is in the possession of an adversary who fails to produce it after due notice

usually the judge makes the determination of fact about the admissiblity of a duplicate/originals under the best evidence rule, but the FRE reserves which three questions to the jury?

whether the thing produces IS the original

whether the original existed at all

whether the evidence offered correclty reflects the contents of the original

what can you use to refresh a witness's recollection on the stand (when they can't remember)?

can you read from it?

can you enter into evidence?

ANYTHING. anything can be present recollection revived.

no and no.

1 - subject matter is experty

2 - witness is qualified as an expert

3 - expert is reasonably sure about his opinions

in a criminal case, expert can't testify to if D had the requisite mental state if one is an element

CX of adverse witnesses is a matter of right in every trial where there's a disputed issue of fact

SCOPE of cx is discretionary

the scope of the direct

and testing the credibility of a witness

the court has discretion to exclude:

1 - if impeaching a criminal defendant, court can exclude if prosecutor hasn't shown the probative value >> prejudicial effect

2 - for all other witnesses, court decides if the probative value >> prejudicial effect

they were a juvenile, or

more than 10 yrs have passed since release from jail OR date of conviction, whichever is latest

the conviction was consitutionally defective

a specific act of misconduct offered to attack truthfulness can be elicited ONLY on CX.

when is a prior CONSISTENT statement substantive evidence of the thing it says?

attorney/client

marital privilege

psychotherapist privilege

probably not dr/patient privilege because consultation was not in contemplation of treatment

IS attorney/client privilege so long as doctor isn't called as an expert.

actions between spouses

actions where one spouse is a victim

actions involving crimes against either spouse's kids

(1) a professional relationship exists

(2) the info acquired in contemplation of treatment, not just for trial

(3) the information was NECESSARY for treatment. non-medical information you say to your dr is not privileged

1 - inconsistent AND given under oath at prior proceeding

2 - CONSISTENT and offered to rebut an accusation of lying/exaggeration & was made before the bad motive would arise

3- it's a PRIOR IDENTIFICATION OF A PERSON

1- party heard and understood the statement

2- was capable of denying

3 - a reasonable person would have denied the accusation

(if silence in face of police accusation in a criminal case, will almost never be considered an admission)

1- declarant = conspirator

2- to a 3rd party

3- in furtherance of the conspiracy

4- at a time when the declarant was participating

list the hearsay exceptions that hinge on declarant's unavailability

hint: six

1. FORMER TESTIMONY

2: DYING DECLARATION

3. STATEMENT AGAINST INTEREST

4. personal/family history

5. offered against the mobster who disappeared the witness

6. the catchall

1- can't testify bc of illness/death

2- lack of memory

3- privilege

4- refuse to testify despite court order

5- absent (beyond reach of subpoena AND can't reach you despite reasonable efforts)

1- oath

2- OPPORTUNITY TO CX (so GJ testimony can't come in here)

2- former action involved same subject matter

3- the party the statement's offerest against was a party in the former action

1- declarant had personal knowledge of the facts that made the statement against her interest (doesn't have to know it may have been dumb to make it to who they made it to)

2- declarant had no motive to misrepresent when she made it

3- in criminal proceeding, if "it" is someone else's confession, requires corroborating evidence of trustworthiness