NextGen UBE Evidence

Evidence determines what information a jury or judge may rely on. It covers relevance, character evidence, hearsay and its exceptions, witness testimony, expert opinions, and privileges. It also explains how courts weigh probative value against unfair prejudice. Evidence law, primarily codified in the Federal Rules of Evidence (FRE), aims to ensure that trials are built on reliable information presented in an orderly and fair way.

I. RELEVANCE AND REASONS FOR EXCLUDING RELEVANT EVIDENCE

A. Probative Value

1. Relevance*
Evidence is relevant if it tends to make a fact of consequence more or less likely, even slightly. The fact that a party offers to stipulate to an issue does not make the evidence irrelevant, but the court may consider the stipulation when weighing probative value against potential harm.

2. Exclusion for Unfair Prejudice, Confusion, or Waste of Time*
Even relevant evidence can be excluded under Rule 403 if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence.

B. Character and Related Concepts

1. Admissibility of Character Evidence*
Character evidence is generally inadmissible to prove conduct in conformity but can be admissible in criminal cases when the defendant opens the door, or in civil cases when character is directly at issue (e.g., defamation).

2. Crimes, Wrongs, or Other Acts*
Evidence of prior bad acts, under Rule 404(b), is not admissible to prove character but may be admitted for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.

3. Methods of Proving Character*
Character can be proven by reputation or opinion testimony, and on cross-examination, specific acts may be inquired into. In some cases, specific acts are admissible to prove elements of a crime or civil claim.

4. Habit and Routine Practice*
Habit evidence reflects a person’s regular response to a specific situation and is admissible to prove conduct on a particular occasion. Unlike character, habit is highly probative and admissible under Rule 406.

C. Opinions and Expert Testimony

1. Lay Opinion*
Lay witnesses may offer opinions if based on their perception and helpful to understanding the testimony or determining a fact, such as speed or apparent intoxication.

2. Qualification of Expert Witness*
An expert must be qualified by knowledge, skill, experience, training, or education and offer specialized opinions helpful to the trier of fact. Judges act as gatekeepers under Rule 702.

3. Proper Subject Matter for Expert Testimony*
Expert testimony is permitted only when the subject involves scientific, technical, or specialized knowledge beyond a layperson’s understanding.

4. Reliability of Expert Testimony*
Expert opinions must be based on reliable principles and methods applied reliably to the facts. Courts use the Daubert factors to assess reliability.

5. Bases of Expert Opinion Testimony*
Experts may base their opinions on personal knowledge, information made known to them, or inadmissible evidence if reasonably relied upon in their field.

6. Ultimate Issue Rule*
Experts may testify about ultimate issues (e.g., cause of death) but cannot give legal conclusions (e.g., “the defendant is guilty”) in criminal cases.

II. PRESENTATION OF EVIDENCE

A. Foundation, Authentication, and Identification (Including the Best Evidence Rule)
Evidence must be authenticated as genuine before admission. FRE 901(b) provides examples like witness testimony, distinctive characteristics, chain of custody, or comparison. The best evidence rule requires the original writing, recording, or photograph when its contents are in dispute, unless exceptions apply.

B. Competency of Witness
Witnesses must have personal knowledge of the matter and understand the oath. All persons are generally competent unless the rules provide otherwise.

C. Juror’s Competency as a Witness
Jurors cannot testify as witnesses in their own trial, and post-verdict inquiries into their deliberations are limited except in cases of racial bias or external influence.

D. Refreshing Recollection
A witness may use any document or object to refresh memory while testifying, but the opposing party is entitled to inspect and cross-examine using that item.

E. Objections and Offers of Proof
Objections must be timely and specific to preserve error for appeal. Offers of proof are made when evidence is excluded to preserve the record of what the testimony or evidence would have shown.

F. Judicial Notice
Courts may accept certain facts as true without formal proof if they are not subject to reasonable dispute and are generally known or easily verified.

G. Limited Admissibility
Evidence admissible for one purpose or against one party may be inadmissible for another purpose or against another party, and limiting instructions should be given upon request.

III. PRIVILEGES AND OTHER POLICY EXCLUSIONS

A. Spousal Immunity and Marital Communications*
Spousal immunity prevents a spouse from being compelled to testify against the other in criminal cases. Marital communications privilege protects confidential communications between spouses in both civil and criminal cases.

B. Attorney-Client and Work Product*
Attorney-client privilege protects confidential communications made for legal advice. Work product doctrine protects materials prepared in anticipation of litigation, unless the opposing party shows substantial need.

C. Physician/Psychotherapist-Patient
Communications for medical or psychological treatment are privileged, promoting full disclosure. The privilege is subject to exceptions such as threats of harm or court-ordered examinations.

D. Insurance Coverage
Evidence of liability insurance is generally inadmissible to prove negligence or wrongful conduct but may be admissible for other purposes, such as proving bias or agency.

E. Subsequent Remedial Measures*
Actions taken after an injury to make conditions safer are inadmissible to prove negligence or culpability but can be used to show control, ownership, or feasibility if disputed.

F. Compromise and Payment of Medical Expenses
Offers to settle a claim or pay medical expenses are not admissible to prove liability or fault to encourage settlement.

IV. HEARSAY AND CIRCUMSTANCES OF ITS ADMISSIBILITY

A. Definition of Hearsay*
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. It is generally inadmissible unless an exception applies.

B. Statements That Are Not Hearsay

1. Declarant-Witness’s Prior Statement*
Prior inconsistent statements given under oath, prior consistent statements, and identifications made after perception are not hearsay if the declarant testifies and is subject to cross-examination.

2. Opposing Party’s Statement*
Any statement made by or attributed to a party and offered against that party is not hearsay, including adoptive and authorized admissions.

C. Right to Confront Witnesses*
In criminal cases, the Confrontation Clause prohibits admission of testimonial hearsay against a defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.

D. Hearsay Within Hearsay
Each layer of a multi-level hearsay statement must independently qualify under a hearsay exception or exclusion to be admissible.

V. EXCEPTIONS TO THE RULE AGAINST HEARSAY

A. Declarant’s Availability Immaterial

1. Present Sense Impression and Excited Utterance*
Statements describing or explaining an event made during or immediately after the experience (present sense) or made under the stress of excitement (excited utterance) are reliable enough to be exceptions.

2. Statement of Then-Existing Condition*
Statements describing a declarant’s then-existing state of mind, emotion, or physical condition (e.g., intent, pain) are admissible.

3. Statement Made for Medical Diagnosis or Treatment
Statements about symptoms, cause, or general background made for purposes of diagnosis or treatment are admissible.

4. Recorded Recollection*
If a witness forgets and cannot testify fully, a record made when the matter was fresh may be read into evidence.

5. Business Records; Absence of Business Record*
Records of regularly conducted business activity are admissible if properly authenticated. The absence of a record may also prove the non-occurrence of an event.

6. Public Records and Reports*
Public agency records, including factual findings and conclusions from investigations, are admissible in civil cases and criminal cases against the government.

7. Statement in Learned Treatise
Statements in authoritative publications are admissible if relied upon by an expert or called to the expert’s attention.

8. Reputation Concerning Character
Statements regarding a person’s reputation for character among associates or in the community are admissible in certain cases.

B. Declarant Unavailable

1. Former Testimony*
Prior testimony given under oath is admissible if the party against whom it is offered had a similar motive and opportunity to develop it.

2. Statement Under Belief of Imminent Death
A dying declaration made under belief of imminent death is admissible in homicide prosecutions or civil cases.

3. Statement Against Interest*
A statement so against the declarant’s interest that a reasonable person would not have made it unless believing it true is admissible if the declarant is unavailable.

4. Statement Offered Against a Party That Wrongfully Caused Unavailability
A party forfeits hearsay objections if they intentionally procured the declarant’s absence.

VI. IMPEACHMENT, CONTRADICTION, AND REHABILITATION

A. Ability to Observe, Remember, or Relate Accurately*
Witnesses may be impeached by showing they lacked capacity to perceive or remember what they testify about.

B. Contradiction*
A witness can be impeached by demonstrating inconsistency between their testimony and other evidence or prior statements.

C. Inconsistent Statements and Conduct*
Prior inconsistent statements can be used to impeach credibility, which may be introduced as substantive evidence if given under oath.

D. Bias and Interest*
Evidence showing a witness’s bias, interest, or motive to testify falsely is always relevant to credibility.

E. Character for Truthfulness or Untruthfulness

1. Impeachment with Bad Acts*
Specific acts bearing on truthfulness may be inquired into on cross-examination but cannot be proven by extrinsic evidence.

2. Impeachment with Convictions*
Certain prior convictions may be introduced to impeach a witness based on criteria like the type of crime and time elapsed.

F. Religious Belief or Opinion*
Evidence of a witness’s religious beliefs is generally inadmissible to attack credibility, but may be used to show bias.

G. Rehabilitation of Impeached Witness*
A witness may be rehabilitated by showing prior consistent statements or explaining attacked credibility factors.

H. Impeachment of Hearsay Declarant*
Hearsay declarants may be impeached as if they had testified live at trial.