Controlling jury access to info admissible to prove that on a particular occasion the e) 413a permitted uses.

prove that on a particular occasion the e) 413a permitted uses. In a criminal case in which D is
1) POLICY: trials must end, constitutional limits, privacy and person acted in accordance with it. accused of sexual assault, may admit evidence that the D
privileged communications, Unlike a bench trial, jury verdict c) 404a2 Exceptions for a D or V in a Crim. Case committed any other sexual assault, may be considered on
reasons are off limits to review: Goal right result d) 404a2A D can offer evidence to build their own character- any matter relevant.
General Principles of Relevance subj. to rebuttal f) 413b See disclosure above
2) Probativeness and Materiality = Relevant e) 404a2B D may offer evidence of Vs pertinent trait- subj. g) 414a Permitted Uses. In criminal case in which D is
a) 401: Evidence is relevant if: to rebuttal, 412 and evidence of Ds same trait; Im accused of child molestation, may admit evidence that the
b) 401a: Probative= evidence that has a tendency to make a violent- youre violent D committed any other child molestation, may be
fact more or less probable- Brick not wall (bare relevance) f) 404a2C in homicide case P may offer evidence of Vs considered on any matter relevant.
c) 401b: Material= fact is of consequence in deciding the trait of peacefulness h) 414b See disclosure above
matter (conditionally Relevant) g) 404a3 Exceptions for a Witness- evidence of a Ws i) 415a Permitted Uses. In a civil case involving a claim for
d) ANALYSIS: what does evidence show? character may be admitted see 607, 608, 609 relief based on a partys alleged sexual assault or child
e) STANDARD: Preponderance of the Evidence- more h) 404b Crimes, Wrongs or Other Acts molestation, the court may admit evidence that the party
likely than not- inference i) 404b1Prohibited Uses: evidence of a crime, wrong, or committed any other sexual assault or child molestation.
f) 402: Evidence Admissible Unless Prohibited by: other act is not admissible to prove a persons character in The evidence may be considered as provided in 413/414
Constitution, Federal Statute, FRE/SCOTUS rules order to show that on a particular occasion the person j) 415b See disclosure above
g) US v James- what D believed true was corroborated by acted in accordance with that character k) US v Guardia- Analysis.
wrongfully excluded evidence- overturned exclusion j) 404b2Permitted Uses: civil or criminal -may be i) Three threshold requirements
3) Conditional Relevance: exists in context admissible to prove motive, opportunity, intent, prep, plan, (1) Accused of Sex offense
a) 104b: Relevance that depends on a fact. When the knowledge, identity, absence of mistake, or lack of (2) Evidence of commission of another sex
relevance of evidence depends on whether a fact exists, accident. offense
proof must be introduced sufficient to support a finding k) 404b2A on request P must provide notice of use, (3) Must be relevant
that the fact does exist. The court may admit the proposed l) 404b2B unless judge excuses for good cause ii) Then balance (403) and consider if the prejudicial
evidence on the condition that the proof be introduced i) and then do 403 analysis effect of the evidence can be minimized through a
later. m) NOTE: scope of cross exam will match the Ds witnesses less elaborate method of presentation
b) 104b STANDARD: Preponderance of the Evidence- more testimony- this is why the defense does not usually bring l) US v Mound- the cautionary instruction to the jury
likely than not (inference) in character evidence- the P can go after anything brought guarded against unfair prejudice, and in light of the
c) Cox v State- testimony dependent on inference of what up- very broad! instruction, the court exercised its discretion in a proper
reasonably known by D- jury can use common sense to i) You can narrow the testimony to just manner.
assess peacefulness- P could not then bring in conduct 12) Proof of the Ds and the Vs Character
4) Probativeness v Risk of Unfair Prejudice about lying a) See 404a2A and 404a2B
a) ANALYSIS- always do 403 analysis even if evidence is n) Michelson v US- b) 405 Methods of Proving Character
admissible under other rules i) P is not allowed to introduce evidence of Ds evil c) (a) By Reputation or Opinion. When a persons
b) 403: Excluding Relevant Evidence. Fact intensive character to establish probability of guilt. character or character trait is admissible, it may be proved
balancing test. court may exclude relevant evidence if its ii) However, if a D calls a character W then the P by reputation/opinion. On cross-examination of character
probative value is substantially outweighed by a danger of may pursue the inquiry for the limited purpose of W, the court may allow an inquiry into relevant specific
one or more of the following: unfair prejudice, confusing impeaching the Ws credibility. instances of the persons conduct.
the issues, misleading the jury, undue delay, wasting time, iii) POLICY: character Ws are only believable if can d) (b) By Specific Instances of Conduct. When a persons
or needlessly presenting cumulative evidence. However, establish they know character of the D. character or character trait is an essential element of a
we do not force Ps to present case through stipulation o) see 413, 414, 415 May allow proof of sexual propensities charge, claim, or defense, the character or trait may also
alone- nuances in sex offense trials be proved by relevant specific instances of the persons
c) STANDARD- deference to trial judge p) People v Zackowitz- In a criminal prosecution, character conduct.
d) GOAL: present evidence with fair weight is never an issue unless the D chooses to make it one. 13) Evidence of Habit
e) ANALYSIS: look for improper influence evidence will q) ANALYSIS: Explain that it is character trait and P is only a) 406 Habit: Routine Practice Evidence of a persons habit
show a propensity for crime; Who is the target of the introducing to try to show that D did this act on this day or an organizations routine practice may be admitted to
prejudice? The D or perpetrator? i) 401 and 402- is it relevant? propensity is relevant prove that on a particular occasion the person or
f) State v Bocharski- Relevant evidence (6 gruesome but not admissible under 404b organization acted in accordance with the habit or routine
photos) should be excluded when the probative value of ii) 404- not admissible- prosecution cannot introduce practice. The court may admit this evidence regardless of
the evidence is outweighed by the risk of prejudice to a D- evidence of Vs character whether it is corroborated or whether there was an
could have admitted fewer (1) go ahead and argue that the prior act is eyewitness.
g) Tyco Videotape- over the top birthday party edited for evidence of skill or knowledge- but know i) Habit is a repetitive pattern of conduct that is
prejudice it is not likely to win the day if it is not so regular it is predictable
h) US v James- documentation of Vs crimes can lead jury unique ii) Habit is an automatic action done almost
to ask did he do it? instead of, what did she believe?- iii) 405- methods of proving character- without volition
Unfair prejudice- evidence that makes the jury want to (1) defense brings up by reputation or opinion (1) Not violence (fact dependent) or drinking
come to a conclusion not based on the evidence but based only (Disease)
on a another motivation- like emotion (2) prosecution can respond with specific Impeachment and Character for Truthfulness
i) People v Collins- mathematical odds based on un- acts, cross examination, and their own 14) Modes of impeachment Cast doubt on the Ws accuracy or
validated estimates are not admissible as evidence to witnesses trustworthiness
identify a D in a criminal proceeding- cast a light not a iv) then go to 403- was the probative value 15) Non-Character- Based Impeachment
spell do not usurp juries ability to assess defects beyond substantially outweighed by the prejudicial nature a) ERROR: calling a witness mistaken
the math of the evidence i) challenge- not by character but by traits:
j) Old Chief v US- to present prejudicial evidence (1) speculative = inadmissible (1) Their perception- poor eyesight, hearing,
unfettered would encourage construction of cases in such (2) how probative is it? Too much of a good lighting
a way as to not try cases on their own merit, thing? (2) Their memory- passage of time, witnesss
k) If it violates 404 it also violates 403- if the probative v) Then go to 105 for a limiting jury instruction age
value does not substantially outweigh the prejudice Routes around the box (3) Their narrative skills- suggest the witness
Specialized Relevance Rules- Public Policy r) See 404b2, above misspoke
5) Subsequent Remedial Measures s) General relevance test- is it a brick? ii) Offer counter witnesses
a) 407: Fixing After Harm Bars subsequent remedial t) Special relevance two part test- iii) Thresholds 401 and 403
measures (by D) to prove negligence, culpable conduct, i) does the evidence have special relevance on a b) LIE: suggest W lying now, one lie at a time, not that have
product defect, or need for warning, may be admitted material issue independent of its tendency to show a tendency to lie non-character based accusation
(unless negotiate otherwise) to impeach or, if disputed, propensity? i) Contradict with conflicting evidence
prove ownership, control, feasibility- do 403 test (1) an exact match to prove is not necessary ii) Contradict with past inconsistent statement
b) POLICY: encourage fixing after harm (2) the sum of lesser features does have iii) Present evidence of bias-like motive
6) Compromise offer/Payment of Med. Exp. significant probative value- even when 16) Impeachment by Opinion, Reputation, and Cross Examination
a) 408: Compromise Cant use settlement talks (after claim individually they may not be sufficient about Past Lies
is made) to show disputed liability or to impeach, may be ii) then apply 403 balancing test a) Character based impeachment- 404a3 authorizes
admitted to prove witness bias, lack of undue delay, or u) on appeal examine for abuse of discretion evidence of a witnesss character for truthfulness as
efforts to obstruct criminal investigation permitted by:
v) make at least two logical connections
b) POLICY: may be motivated by desire for peace, i) 607- Any party, including the party that called the
i) connect D and the past conducteven if acquitted,
encourage compromise W, may attack the Ws credibility
or accusations
c) 409 Medical Expenses specific statements to pay cant be ii) 608a Reputation or Opinion Evidence. permits
ii) connect the past conduct and the charged offense
used to prove liability any litigant to offer evidence of a witnesss
w) when judging the probative nature of the special skill
d) POLICY: encourage humane impulse/assistance character for truthfulness or untruthfulness in the
the larger the pool of people who know how to do that
7) Liability Insurance skill the less probative the evidence is form of opinion or reputation (not peacefulness,
a) 411 Liability insurance cant be used to prove negligence x) A motion in limine- a hearing to eliminate evidence at the temperance, etc) (bias is not character)
or wrongful action, may be used to prove witness bias or threshold of the trial- before the trial begins iii) 608b Specific Instances of Conduct. on cross
agency, ownership, or control examination any party may ask a witness about
y) US v Trenkler- proper to allow evidence of another
b) POLICY: unlikely insured are more careless than the bombing because the two bombings were so similar. The specific instances of a witnesss conduct if
uninsured- discourages a windfall for P court also found that no prejudice to D existed. probative of propensity to lie or speak the truth-
c) Williams v McCoy- cure wrong application by giving i) flaws go to weight not admissibility but It is a dead end if they lie- no extrinsic
jury limiting instructions evidence can be offered
z) Huddleston Standard: given 404(b)2 Could a reasonable
8) Pleas in Criminal Cases jury looking at all the evidence find this fact by a (1) no restriction on evidence to show witness
a) 410 Pleas bars admittance against D of guilty please later preponderance of the evidence possible? Does not have to lied in this case
withdrawn, nolo contender plea, statements in plea be a conviction (Conditional relevance) 17) Impeachment with Past Convictions
proceedings, statements in plea talks with P, may be i) 4 sources of protection against unfair prejudice a) 609- may impeach with past conviction of a sufficiently
admitted for perjury prosecution if under oath, on record, serious or deceptive crime
(1) 404b- evidence offered for a proper
and in counsels presence- may not be used to impeach, D b) 609a1 if crime was punishable by death or imprisonment
purpose
can use, P can not for more than one year,
(2) 402/104b- must be relevant
b) POLICY: exclusion promotes plea bargaining, innocent c) 609a2 crime involved dishonesty and false statements-
party may plead guilty to avoid risks of trial- no barriers to (3) 403- is probative value substantially
outweighed by potential for unfair especially probative of ones propensity to lie-
pleas automatically admissible
prejudice
9) Constitutional exception- criminal Ds have right to a defense and i) subject to 609b, 609c, 609d
right to confrontation- 6th am. Due process right (4) 105- limiting instr. to jury
11) Propensity Evidence- Sexual Assault Cases ii) not subject to 403
Character Evidence iii) differentiate between deceit and stealth- sneaking
10) The Character-Propensity Rule
a) Exceptions to 404- 403/hearsay still apply
b) Presumption for admittance no SoL up or in is not a lie
a) Meant to Prevent: iv) must be readily apparent that the elements of the
i) unfair prejudice- jury may give excessive weight, c) Requires testimony of specific acts
crime required deceit or dishonesty- no mini trials
or a preventative conviction 1) jury could fear d) Disclosure to the D. If P intends to offer evidence, the P
must disclose it to the D, including Ws statements or a d) 609b rebuttable presumption on Limit for Using
greater danger, or think 2) deserves punishment Evidence After 10 Years from conviction or release from
summary of the expected testimony. The P must do so at
ii) Juror Confusion and Waste of Time jail (which ever is later) to date of
least 15 days before trial or at a later time that the court
b) 404a1 Prohibited Uses of Character Evidence. allows for good cause. indictment, presumption that it will come in unless
Evidence of a persons character or character trait is not substantially outweighed by prejudice and must give
 adverse party reasonable written notice of intent- so has probative value substantially outweighs the danger of v) recorded recollections
opportunity to contest. harm to any V and of unfair prejudice to any party. The vi) Business Records
e) 609c Not admissible if Pardoned, Annulled, or issues a court may admit evidence of a Vs reputation only if the V vii) Public Records and Reports
Certificate of Rehabilitation. has placed it in controversy. s) 804 Exceptions applicable only when the Declarant is
f) 609d juvenile adjudications are never admissible in civil p) 412c Procedure to Determine Admissibility. Unavailable
cases or to impeach the testimony of criminal Ds q) 412c1 Motion. If a party intends to offer evidence i) Former Testimony- predecessor in interest crossed
g) Us v Brewer- under Rule 412(b), the party must: ii) Dying declarations- must think dying
i) 609a balancing test- the probative value of the r) 412c1A file a motion that specifically describes the (1) St. of mind- future more weight than past
evidence must outweigh its prejudicial effect (not evidence and states purpose for which it is to be offered; iii) Statements against interest- pecuniary or jail
like 403 where it must substantially outweigh) s) 412c1B 14 days before trial iv) Forfeiture by wrongdoing
Factors: t) 412c1C serve the motion on all parties t) US v Owens neither the Confrontation Clause nor FRE
(1) Nature of the crime- Violence does not u) 412c2 Hearing. Before admitting evidence must conduct 802 is violated by admission of an identification statement
speak to honesty or veracity an in camera hearing and give right to be heard. Unless by a witness who is unable, because of memory loss, to
(2) Time of conviction and subsequent court orders otherwise, the motion, related materials, and testify concerning the basis of the identification.
history Does time lapse demonstrate record of the hearing must be sealed. u) US V Duenas- Does the old the cross have same objective
rehabilitation? v) ANALYSIS- look at 3 exceptions in 412 and 404/403 v) 807 Residual Exception- best evidence of a material fact
(3) Similarity between past crime and i) Requirements: needs to be critical to the defense i) look for trustworthiness and to serve justice
charged crime- too similar a crime is and have strong markers of trustworthiness
w) 612- refresh a Ws memory if exhausted
prejudicial- he did it again 19) Rape Law in Force x) 803(5)- Recorded Recollection- W must be on stand and
(4) Importance of Ds testimony a) State v Smith- We do not consider prior false allegations unable to recall well enough to testify fully and
(5) Centrality of the credibility issue of sexual misconduct to be sexual behavior accurately- records made when memory fresh and
h) Luce v US- Conditions for appeal: D may not appeal 609 b) Olden v Kentucky- The 6th Am. right to be confronted accurately reflects Ws knowledge
ruling unless two conditions met: with the witnesses against the accused, includes the right y) US v Ince Under 607, a Ws credibility may be attacked
i) The D must have testified at trial to conduct reasonable cross-examination. through impeachment testimony, but when testimony
ii) The P must have introduced evidence of the Competency of Witnesses lacks any probative value and carries a high risk of
contested conviction c) 601- everyone is competent unless they are not prejudice, the evidence must be excluded, even when it
i) Ohler v US- once a D admits a prior conviction in court, d) 602- A W may testify to a matter only if evidence is meets the technical requirements of Rule 607
they forfeit the right to appeal the decision that the introduced sufficient to support a finding that the W has Confrontation and Compulsory Process
evidence was admissible. personal knowledge of the matter. Evidence to prove 21) Confrontation Clause 6th Am. In all criminal prosecutions, the
18) Rehabilitation, Use of Extrinsic Evidence personal knowledge may consist of the Ws own accused shall enjoy the ...right to be confronted with the witnesses
a) Can rehabilitate after an attack by offering evidence of testimony. This rule does not apply to a Ws expert against him.
truthful character consistent with rule 608 testimony under Rule 703. 22) Crawford Rule: Testimonial Hearsay must be excluded unless 1)
b) Bias Is not character evidence- can offer evidence e) 603- Before testifying, a W must give an oath or the declarant is available at trial for cross, or 2) the declarant is
supporting truthfulness in this case- not general character affirmation to testify truthfully. It must be in a form unavailable and the D, against whom the statement is sought to be
for truthfulness designed to impress that duty on the Ws conscience. introduced, had an earlier opportunity to cross the declarant.
c) On cross examination specific act can be asked about a W f) 610 Evidence of a Ws religious beliefs or opinions is not 23) Testimonial: Preliminary hearing testimony, grand jury testimony,
truthfulness- attacking their character for truthfulness, but admissible to attack or support the Ws credibility. former trial testimony, statements made in police interrogations.
state can take steps to rehabilitate g) Childs Competency Factors: 24) Primary Purpose Test: If the purpose of the questioning was to
i) the door to character evidence has been opened by i) If perceive and remember events accurately enable police to respond to an ongoing emergency.
the attack ii) If child can communicate effectively 25) Reliability Test: Does the statement have the indicia of reliability.
ii) bolster his truthfulness by bringing in character iii) If understands difference between truth and 26) Documents: Documents reporting the results of tests implicate the
evidence about his reputation for truthfulness falsehoods and the obligation to tell the truth Confrontation Clause. Need lab tech.
(1) not about specific act which would be iv) If child can respond intelligibly to questions posed 27) Solemnity Test: Is the statement formal.
extrinsic evidence about a specific act on cross examination 28) Does not apply: Statement not offered for its truth, offered in civil
(2) not ask about an extenuating h) POLICY: Opposing party needs to be able to cross cases or against P, declarant is a W at trial, the declarant is
circumstances or justification The Rule Against hearsay unavailable and was previously cross examined about statement,
d) if witnesss testimony is not challenged you can still bring 20) Defining Hearsay (must do a 403 weighing) Ds wrongdoing, statement is nontestimonial.
in witnesses to support the facts in the statement but not to a) 801 Exclusions to Hearsay The following definitions 29) The Bruton held that a defendants confrontation clause rights are
bolster your witnesses truthfulness without an attack on apply under this article: violated when a non-testifying codefendants confession naming
that truthfulness b) 801a Statement. Statement means a persons oral or the defendant as a participant in the crime is introduced at their
e) EVIDENCE ANALYSIS written assertion, or nonverbal conduct, if person intended joint trial, even if the jury is instructed to consider the confession
i) Identify the purposes of introducing the evidence- it as an assertion. only against the defendant. Later decisions say limiting
could be multiple c) 801b Declarant. Declarant means the person who made instructions can be given and the statement redacted to eliminate
ii) Is one of the purposes UNRELATED to the the statement. not only Ds name but their very existence!
character for truthfulness d) 801c Hearsay. Hearsay means statement that: 30) Compulsory Process
(1) If only relates to character not allowed to i) 801c1 declarant does not make while testifying at a) Will arise when D is trying to bring in evidence for his
talk about specific instances current trial or hearing; & defense and he is denied the admission of that evidence.
(2) But if there is a purpose otherwise ii) 801c2a party offers in evidence to prove the truth Not all evidence is admissible though.
iii) If yes, is that purpose otherwise permissible (eg of the matter asserted i) Evidence must be critical.
under rule 404) e) 801d Statements That Are Not Hearsay. If meets the ii) Evidence must be especially trustworthy.
iv) If yes, are there any other reasons to exclude it (eg following conditions not hearsay: Lay Opinions and Expert Testimony
403 balancing) f) 801d1 A Declarant-Witnesss Prior Statement. The 31) 701 Lay Opinions: Testimony as opinion limited to: rationally
f) Bias is exculpatory not character and may be established declarant must testifies and is subject to cross- based on witnesss perception; not based on scientific, technical,
by extrinsic evidence examination about a prior statement, and the statement: or other specialized knowledge within the scope of 702.
g) BALANCING STANDARDS g) 801d1A is inconsistent with the declarants testimony and 32) 702 Expert Testimony: Qualified expert may testify in the form
i) criminal witness not the D- use 403- is the was given under penalty of perjury at a trial, hearing, or of an opinion or otherwise if: (a) experts scientific, technical or
probative value is substantially outweighed by the other proceeding or in a deposition; otherwise specialized knowledge will help the trier of fact to
risk of unfair prejudice h) 801d1B is consistent with the declarants testimony and is understand the evidence or determine a fact in the issue; (b) the
ii) criminal D- stricter 403- does the probative value offered testimony is based on sufficient facts or data; (c) the testimony is
of the evidence outweigh its prejudicial effect (not i) to rebut an express or implied charge that the the product of reliable principles and methods; and (d) the expert
substantially) more like preponderance of the declarant recently fabricated it or acted from a has reliably applied the principles and methods to the fact in the
evidence recent improper influence or motive, or case. Note: opinion can be based on inadmissible info as long as
iii) juvenile adjudication evidence- only if admitting ii) to rehabilitate the declarant's credibility as a reasonably relied on by experts in the field. IF the facts or data
the evidence is necessary to fairly determine guilt witness when attacked on another ground; or would otherwise be inadmissible, the proponent may disclose
or innocence i) Tome v US- A consistent statement that predates the them to the jury only if the probative value in helping the jury
iv) evidence of 10year+ since convicted or released motive is a square rebuttal of the charge that the testimony substantially outweighs their prejudicial effect. [703]
from confinement- presumption of was contrived as a consequence of that motive 33) Mental State: No opinion of about mental state or condition that
inadmissibility- wouldve to be very relevant j) 801d1C identifies a person the declarant saw earlier. constitutes an element of the crim. Matter for ToF. [704]
v) perjury- is admissible unless it is over 10 years k) 801d2 An Opposing Partys Statement. The 34) Ideas: W can be challenged on cross about facts, data, or methods
old or in a juvenile adjudication statement is offered against opposing party &: Authentication, Identification, and the Best Evidence Rules
vi) larsony- not admissible if punishable by less than l) 801d2A was made by the party in an individual or 35) To satisfy the requirement of authenticating or IDing an item of
a year and does not involve deceit- more likely representative capacity; evidence, the proponent must produce evidence sufficient to
involves stealth m) 801d2B is one the party manifested that it adopted or support a finding that the item is what the proponent claims it is.
The Rape Shield Law believed to be true; 36) Examples:
h) Factors for proving rape: n) 801d2C was made by a person whom the party authorized a) Testimony of W with knowledge;
i) Prove actual physical resistance by V to make a statement on the subject; b) Non-Expert opinion about handwriting;
ii) Prove substantial force by aggressor o) 801d2D was made by the partys agent or employee on a c) Comparison by expert W or the ToF;
iii) Show corroboration of the Vs account matter within the scope of that relationship and while it d) Distinctive characteristics and the like;
iv) Penalize Vs who do not promptly complain existed; or e) Opinion about a voice - Heard first hand or through
v) Vs prior sexual history goes to Consent and p) 801d2E was made by the partys coconspirator during and transmission or recording.
Credibility in furtherance of the conspiracy. f) Evidence about a phone conversation; evidence that a call
vi) Policy for change: V being violated by both i) Conspiracy existed at time statement made was made to the number assigned to:
aggressor and the justice system ii) Conspiracy included both parties i) a particular person showing that the person
i) 412a Prohibited Uses. The following evidence is not iii) Made in the course of or furtherance of the answering was the person
admissible in a civil or criminal proceeding involving conspiracy ii) A particular business and the call related to
alleged sexual misconduct: q) ANALYSIS: business reasonably transacted over phone
i) (1) evidence offered to prove that a V engaged in i) Is it hearsay? Was the statement meant to g) Evidence about public records (excludes police reports)
other sexual behavior; or communicate or was assertive conduct? i) document was recorded or filed in public office as
ii) (2) evidence offered to prove a Vs sexual (1) A threat can be by verbal conduct NH authorized by law; or
predisposition. (2) Are the words asserting ToM? ii) a purported public record or statement is from the
j) 412b Exceptions. (3) Reputation is hearsay office where this kind of item is kept.
k) 412b1 Criminal Cases. The court may admit the ii) Non hearsay uses of out of court statement: h) evidence about ancient document or data;
following evidence in a criminal case: (1) Impact on listener i) In a condition that create no suspicion about it
l) 412b1A evidence of specific instances of a Vs sexual (2) Prove legal right or duty authenticity and was as in a place where if
behavior, offered to prove that someone other than the D (3) Inconsistent statement to impeach authentic it would likely be
was source of semen, injury, or other physical evidence; 37) The Best Evidence Rule A writing, recording or photograph in its
(4) Involuntary expressions
m) 412b1B evidence of specific instances of a Vs sexual original form. Original is not required if all the originals are lost,
r) 803 Exceptions Applicable Regardless of the
behavior with respect to the person accused of the sexual or destroyed and not in bad faith; or an original cannot be obtained
Declarants availability
misconduct, if offered by the D to prove consent or if by available judicial means. Duplicates may be offered unless
offered by the P; i) present sense impressions
there is a genuine question as to the authenticity of the original or
n) 412b1C evidence whose exclusion would violate the Ds ii) excited utterances it would be unfair to admit the duplicate.
6th Am. rights. iii) Stmts of the existing mental, emotional or 38) Note: Rule only applies when a party seeks to prove the contents
physical condition
o) 412b2 Civil Cases. may admit evidence offered to prove of the writing, not when it is used for some other purpose.
a Vs sexual behavior or sexual predisposition if its iv) Stmts made for medical diagnosis or treatment