FRE available at https://www.law.cornell.edu/rules/fre.

Part 1 of 5:
Prelim determinations, relevance/prejudice, personal knowledge, & Hearsay
There should be no state-specific law mentioned on this summary I'm creating.

Preliminary Issues
104(a): Judge determines evidence admissibility/privilege/witness competency. Judge not bound by the rules
of evidence in making this decision.
104(b): Conditional relevance. Evidence that depends on the existence of other evidence is not relevant
unless the proponent can also prove up the other evidence. Proof can be admitted later in trial though.

Judicial Notice and Presumptions

201 Judicial Notice. Court may take notice of fact not subject to reasonable dispute. May do so sua sponte,
but must upon request if supplied with the necessary info.
201(f) Civil cases, court must instruct jury to accept noticed fact. Criminal cases, instruct jury only that it
may or may not accept noticed fact.
301 Presumptions in Civil Cases. Unless a rule or statute says elsewise, party against whom presumption is
made has burden of disproving it. "Shifting presumptions" occur when one party raises an issue with prima
facie evidence, triggering a presumption that the matter is proved until the other party shows sufficient
evidence to contrary.
) 303 Criminal cases. Rule has been deleted. Under Constitution, a statute CANNOT allow a
presumption that an element required for defendant's guilt be presumed against him. Prosecution always
bears burden of proving any element of a crime against defendant. However, lawmakers can write affirmative
defenses with presumptions against the defendant, who may be required to prove the defense.
)

) Relevance
) 402. All admissible evidence is necessarily relevant evidence.
) 401. Any evidence tending to make a fact at issue more or less likely is relevant. Needs to place at
least one brick in the wall, but need not build the wall all on its own.
) 403. Balancing Test. Relevant or "probative" evidence may nonetheless be excluded if it
is substantially more prejudicial/confusing/misleading/waste of time.
)
) Personal Knowledge and Competency Requirements
) 602. With one exception (expert testimony) all testimony and evidence at trial must be based on a
witness's personal knowledge. Guessing or speculating about things is prohibited, and repeating second-hand
things other people have told you (Hearsay) is generally banned with its own list of exceptions under the 800
series of the FRE.
) 601. To testify at all, a witness must be competent. All are presumed competent unless a rule provides
otherwise.
) 701. Lay witness opinions. Must be rationally based on witness's own perception, not on scientific or
specialized knowledge, and must be helpful to a fact at issue.
)

) Hearsay (second hand, rather than first-hand personal knowledge)

) 801. Hearsay is (a) a statement (b) made out of court (c) offered to prove the truth of the statement's
content (truth of the matter asserted)
) "statement" means an actual CLAIM that has truth or falsity value. "What's the weather today?" has
no truth or falsity value and cannot be hearsay.
) non-verbal conduct can be a statement if it was INTENDED to claim something, such as tucking your
cap's bill to warn your fellow bank-robbers that the cops are on their way
) Anything "said" by a non-human, like a dog or a mechanically produced object like a road sign, is by
definition not a hearsay statement.
) "out of court" means any statement not said under oath by a witness AT THIS SPECIFIC TRIAL. A
previous trial for the same case is still "out of court" for hearsay purposes
) "to prove the truth of the matter asserted" ex: A crazy guy comes up to you on the street and yells "I'm
Jesus!" Truth of the matter asserted is that he's literally Jesus. That's the CONTENT of the statement. Can't
use it to prove he's Jesus unless he shows up in court to say he is. But you can use it for a non-truth-of-the-
matter-asserted purpose... such as the fact that he's fucking crazy. Let me know if you need more on
T.O.M.A.
) 802. Hearsay is inadmissible.
)

) What is by definition not hearsay (otherwise called "exEMPtions" rather than "exceptions" to
hearsay)
) 801.d(1)(A) Prior Inconsistent Statement: a statement made out of court that is inconsistent with
something the same declarant just said as a witness in court
) 801.d(1)(B) Prior Consistent State, if: it is offered to rehabilitate or rebut an an attack on that same
witness's credibility
) 801.d(2) Admission by Part Opponent. Five different situations where statements by the opposing
party come in if offered by the other party, IF:
) (A) made by party in individual or representative capacity (through a lawyer)
) (B) party adopted truth of the statement (ex. signing a document)
) (C) made by someone authorized to speak for the party (spokesman)
) (D) admission by agent of party acting in scope of agent relationship
) (E) admission by criminal defendant's co-conspirator, provided (1) prosecution can prove to judge a
conspiracy existed by preponderance of evidence, and (2) the statement was made in furtherance of the
conspiracy
)

) Hearsay Exceptions, without caring if declarant can testify

) 803.1, Present Sense Impression. Something said during or immediately after the declarant's
perceiving it happening.
) 803.2, Excited Utterance. While still suffering under startlement from an event, recalling information
about that startling event.
) 803.3, Statement of Mind. Then-existent physical/emotional condition, or statement of intent, plan or
scheme.
) 803.4, Statement for purpose of medical trtmnt. A statement from patient to doctor/staff designed to
influence treatment/diagnosis.
) 803.5 Past recollection recorded. Witness cannot remember an event but earlier recorded their
recollection of that event when it was fresh in memory. Proponent can only read the recording into evidence
as a supplement; opponent can introduce the document itself as evidence.
) 803.6 Record of regular business activity. (A) record was made by someone with personal knowledge
of the information inside of it (B) kept in course of regular activity at business (C) regular practice is to make
record of it (D) as proved either by a testifying custodian of document or a written certification by the same,
and (E) opponent does not show source of info or method of record-keeping lacks trustworthiness.
) 803.7 Absence of record of regular activity. Missing evidence, if normally kept in the course of
business, can be used as evidence that something did not occur. (Absence of evidence can be used as
evidence of absence!)
) 803.8 Public records. Record or statement of public office that (A) sets out office's activities, or is a
matter observed under legal duty to report (but not in criminal cases), or is a factual finding used in a civil
case or against the gov in a criminal case, and (B) opponent does not show source of info or record-keeping
methods lack trustworthiness.
) 803.10 Absence of Public Record. More or less same logic of 803.7, but with a complicated rule not
worth memorizing unless told otherwise by professor.
) 803.11 and beyond: Not worth memorizing unless your professor specifically covered one of these.
)

) Hearsay exceptions that require witness be unavailable first

) 804(a), Defining Unavailable. Five kinds. Witness is:
) (1) exempted from testifying because of privilege
) (2) refuses to testify in spite of court order
) (3) testifies to not remembering subject matter
) (4) dead or has then-existing physical or mental impediment
) (5) absent from trial because party could not reasonably procure (i) their attendance (for 804[b][1] or
[6]), or (ii) their attendance or testimony (for [b][2], [3], or [4]).
) Applicable Exceptions:
) (1) Former testimony given by witness at trial/hearing/depo, offered against party whose predecessor
in interest had opportunity and similar motive to examine that witness
) (2) Statement under belief of imminent death. In all civil cases, but only in criminal prosecutions that
are over a homicide, if witness made statement while believing his death to be imminent and the statement
was about its cause or circumstances.
) (3) Statement against Interest. (A) Reasonable person in dec's position would only make if they
believe it true and it was so contrary to his proprietary or pecuniary interests. AND (B) IT WAS
CORROBORATED by trusthworthy evidence. (I always forgot that part.)
) (4) statement about dec's own birth, adoption, legitmcy, mrrg, dvrc or such, or about another person if
dec was related by blood/adop/mrrg or so intimately familiar that they'd know this
) (5) Statement offered against party that wrongfully procured Wit/Dec's unavailability. Provided
opposing party intentionally made person unavailable, proponent can offer unavailable person's statement
against the opposing party.

) Part 2 of 5: Random Hearsay Tips, Character Evidence, Impeachment with Past Crimes/Acts of
Dishonest.
) Random Hearsay Rules To Know
) 805 Hearsay with hearsay. Each layer of hearsay must have an applicable exception for the deepest
level to be admissible.
) 806 Hearsay declarants are treated as witnesses for impeachment purposes. You can impeach the
person who made an out-of-court statement, even if they don't testify, by offering inconsistent statements
against them or using their criminal record against them!
) 807 Residual Hearsay Exception. You can argue to the judge to invent a new hearsay exception if
statement has circumstantial guarantees of trustworthiness, is more probative than non-hearsay evidence of
the same fact, and if the statement is not specifically covered by a different exception that it couldn't satisfy.
) Remember, 801(d)(2) Admission by Party Opponent is NOT the same thing as 804(b)(3) Unavailable
Witness's Statement against Interest!
) Co-conspirator admissions offered under 801(d)(2)(E) can violate the Confrontation Clause according
to the Bruton case. At OP's request, initially I did not cover Confrontation, but I did add it as a 5th part to this
thread!
)

) Character Evidence
) 404(a) Defined. Character is a tendency to do something, as demonstrated by specific acts of conduct
or by reputation. Ex: Violent character, law-abiding character, honesty, or dishonesty.
) 404(a)(1) The Prohibition. Not admissible to show a person acted in accordance with char trait on a
specific occasion. Ex: You murdered in 1981, so you must have committed the 2015 murder. Or: You're a
violent person, so you must be the bank robber.
) 404(b)(1) Specifically precludes offering past crimes or wrongs to show character. Yep, two rules.
404(a) is general to any character, helpful or hurtful, 404(b) more specific to past crimes and wrongs.
)

) Character Evidence Exceptions

) 404(a)(3) Impeachment with qualifying character evidence against the TESTIFYING witness under
607, 608, 609 is allowed.
) 404(a)(2) Defense Opens Door in Criminal Case. Defendant can either bolster his own character as a
defense, or he can attack the victim's character, but the prosecution gets to rebut him with the same kind of
otherwise-inadmissible character evidence.
) (A) Defendant offers evidence of his own good character, and prosecutor may rebut with evidence of
his bad character. (Ex. Molestation trial. Def offers testimony that he is attracted to his adult wife; prosecutor
rebuts with his Google search history to show he is in fact a pedophile.)
) (B) Def attacks victim's character. Ex: Self defense shooting. Defendant says victim is the violent one
of the two and was the aggressor. Prosecutor gets to rebut with defendant's violent criminal history.
) 404(b) Evidence for non-Character Purposes. Evidence proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, lack of accident, are all fair game.
) 404(b)(2)(A): In criminal case, prosecutor must give reasonable notice of any 404(b) offer.
) 406 Habit, Routine Practice. Evidence of habit or org's routine practice admissible to prove on
particular time it acted in accordance. Basically has to be conduct that occurs so often it is said to be
"automatic or semi-automatic". (Ex. Church has John mow the grass every goddamn Saturday at sundown.)
)

) How to Acceptably Prove Character When It is Allowed

) 405. When character and action in accordance is necessarily at issue because of the particular kind of
case, or when a crminal defendant opens the door to it, it only be proved in the following ways:
) 405(a) by Reputation or Opinion. On direct examination, only reputation and opinion of character are
allowed. On cross, specific instances are allowed to rebut the general rep/op.
) 405(b) When character is an essential element of a charge, claim or defense, then it can be proved by
specific instances of conduct. (Ex. Felon in Possession of Firearm. Prosecution has to actually prove that
Defendant is a felon, which is a specif instance of conduct.)
) 609 Impeaching a witness with specific instances of criminal convictions under 609 is allowed
provided that rule is satisfied for its requirements.
) 608 Impeaching a witness with specific instances of dishonesty under 608 also allowed, also provided
rule is satisfied.
)

) Impeachment: Defined
) What is it? Showing a witness is less credible by offering inconsistent past statements, evidence of
bias, or evidence of past crimes, wrongs or acts.
) 607 Who may Impeach: Everyone. Even the party calling their own witness may impeach that
witness.
)

) Impeaching with Past Conduct

) 609 Impeaching with Criminal Convictions
) 609(a)(1) Crimes Not About Truthfulness. A felony -- any crime punishable by death or more than 1
year prison -- MUST be admitted: (A) subject to Balancing Test FRE 403, in any case where witness is not a
defendant, or: (B) in a criminal case where wit is Def, if reverse 403 is true: probative value outweighs
prejudicial effect
) 609(a)(2) Crimes Affecting Truthfulness. Any crime, regardless of felony or punishment status,
MUST be admitted without any 403 balancing analysis, if elements of crime require proving a dishonest act
or statement.
) 609(b) 10 Year "Limit". Ten years after conviction or confinement, whichever is later, make it harder
to offer a crime. Reverse 403 must be true: Probative value substantially outweighs prejudice, and party gives
reasonable written notice of impeachment.
) 609(c)-(e). Advanced rules for effects of pardons, rehabilitation, juvenile convictions and ongoing
appeals. Not worth memorizing unless told otherwise.
) 608 Impeaching with Non-Conviction Past Bad Acts and Reputation of Untruthfulness
) 608(a) Reputation/Opinion Evidence. Character for truthfullness may be attacked or rehabilitated by
evidence of a person's reputation for (un)truthfulness or by opinion testimony. Truthful reputation admissible
only after being attacked.
) 608(b) Specific Instances of Conduct. Except for convictions under 609, extrinsic evidence not
admissible to prove specific instances of witness's character for truthfulness. Only reputation evidence or an
admission by the witness himself will be allowed.
)

) 8
) Reply
) Share
) Part 3 of 5: Privilege, Random Policy Rules, Authentication
)

) Privileges
) 501 Privilege in General. Common law controls any claim of privilege for FRE jurisdictions, unless
the US Constitution, federal statute, or Supreme Court case law says otherwise.
) After Eerie, the CivPro case, federal diversity jurisdiction cases use the privilege rules of the host
state.
)

) Random Policy Rules

) 407 Subsequent Remedial Measures. Can't let plaintiffs prove negligence or culpability with
corrective actions the defendant took after the plaintiff's harm occurred, or else that would instill a chilling
effect on correct measures by corporations.
) 408 Compromise Offers and Negotiations. None of the substance or results of these are admissible to
prove fault, liability or damages. If we let this shit in at trial, then parties would never have negotiations out
of fear that everything they say could be shown to the jury later.
) 409 Offers to Pay Medical and Similar Expenses. Not allowed to use to prove liability for an injury or
else nobody would ever offer to pay someone's medical expenses out of fear of getting later sued for their
generosity.
410 Pleas, Plea Discussions, and Related Stmnts. Not admissible in both civil and crim cases against a
defendant, as long as the plea did not occur or it was later withdrawn. However, a court may let in statements
from pleas and plea hearings to impeach a witness if they are lying about it, or in a criminal prosecution for
perjury involving the plea.
) 411 Liability insurance. Not admissible to prove liability. Can be offered to prove bias or prejudice,
agency, ownership, control.
) 610 Impeachment of Religious Beliefs. Not allowed. Can't attack credibility because witness
subscribes to any religious belief. Religious beliefs may be relevant for other purposes though.
)

) Sex History/Predisposition Rules

) 412 Victim's sexual predisposition. Generally not allowed.
) 412(b)(1) Criminal exceptions. Allowed to show someone other than defendant is source of
semen/injury, or to prove consent, or anything offered by the prosecutor. Still won't come in unless excluding
it would violate defendant's constitutional rights.
) 412(b)(2) Civil exception. Admissible to prove vic's predisposition or behavior if probative value
substantially outweighs danger to victim and unfair prejudice (reverse 403). Also victim may place this topic
at issue by choice.
) 413-415. Defendant's sexual history. In criminal and civil cases, prosecution/plaintiff can offer
evidence that defendant committed similar sexual misconduct in the past, provided they fully disclose all the
info on those past cases to defense and give written notice of intent to offer them.
)

) Authentication
) 901 Authentication Defined. Any item of evidence must be authenticated to sufficiency of evidence,
meaning evidence supporting finding that item is what proponent claims it is.
) 901(b) Examples, an Inclusive (not Exhaustive) list. Testimony of witness with knowledge, non-
experts about handwriting, distinctive characteristics of the item of evidence, opinion about a voice, opinion
about telephone speaker, and public records can all be authenticated by a witness saying they appear
sufficiently familiar.
) 902 Self Authenticating Evidence. Sealed and signed domestic public docs, and certified copies of
public records. Official publications, newspapers, trade inscriptions, commercial paper -- all self-
authenticating, but still subject to Hearsay of course!
)

) Best Evidence Rule

) 1001 & 1002. If offering the contents of a writing, recording or photo as true, party must offer the
original copy, with exceptions.
) 1003 Duplicates suffice, UNLESS a genuine question is raised about original's authenticity or the
circumstances make it unfair to admit the duplicate.
) 1004 When you CAN offer a non-original/duplicate: (a) all originals lost/destroyed, not by proponent
acting in bad faith, (b) original can't be obtained by any other judicial process, (c) party against whom
evidence is offered had control of original and failed to produce it at trial after notice that proponent wanted
it, OR (d) the evidence is not closely related to a controlling issue.
) 1006 Summaries of voluminous evidence allowed when they cannot be conveniently examined in
court, but originals/duplicates must be available and given in reasonable advance to other parties.
) 6
) Reply
) Share

) level 4
) NurRauch
) 8 yr. ago· edited 8 yr. ago
) Part 4 out of 5: Experts
) I know, I know. Not quite half an hour as promised. Oh well, fast enough! ;)
)

) Threshold Expert Testimony Qualifications

) Under Daubert and other cases, Court must making finding that qualifications listed under Rule 702
have been met before allowing a jury to hear testimony of expert nature.
) 702, Testimony by Expert Witnesses. Witness cannot offer expert conclusion unless:
) (a) he is qualified as expert by specialized training, education or experience in scientific, technical or
other such field.
) (b) testimony based on sufficient facts or data
) (c) principles and methods used are "reliable" as defined by Daubert. Reliable can but need not
include peer reviewed, testable, known error rate, accepted in the scientific community, or anything else
relevant.
) (d) expert reliably applied principles and methods to this case
)

) Exceptions to Personal Knowledge of Testimony by Expert

) 703 Bases of Expert. May base opinion on facts or data the expert has not been personally made
aware of, provided experts in his field would reasonably rely on them. The opinion can even be based on
inadmissible evidence such as character evidence or hearsay, provided it's reliable for expert to rely on it.
) 703 Offering Inadmissible Underlying Evidence. Proponent can even offer the inadmissible
underlying evidence for an expert conclusion, provided it is reverse 403 substantially more probative than
prejudicial and is helpful (i.e. necessary) to trier of fact in understanding expert's conclusion.
) 705 Disclosing Underlying Facts and Data. Proponent need not first offer underlying facts and data
before offering conclusion, but the court can order it if it wishes. And opponent can always delve into
underlying facts and data on cross examination to challenge credibility of expert's conclusion, even if
underlying info is otherwise inadmissible.
)

) Expert Opinion on Ultimate Issue

) Defined. When a witness opines on existence of an element of crime or tort. Ex: "In my opinion, John
was criminally negligent." Old rule always prohibited this.
) 704(a) Generally IS admissible today!
) 704(b) The ONE Exception: In a criminal case, an expert MUST NOT state opinion about whether
defendant did or did not have required mental state/condition for a crime or a defense to crime. Ex: Expert
cannot say defendant had mens rea or intent. Or: Expert cannot say defendant was criminally insane at the
time of the murder; rather, he can only say defendant demonstrated insanity at times before and after the
murder.
) 5
) Reply
) Share
)

) level 5
) NurRauch
) 8 yr. ago· edited 8 yr. ago
) (Part 5 of 5: Confrontation Clause. If you copy paste this section into your own notes, be sure to place
it right after the Hearsay section.)
) NOT FROM FRE: Exclusion Required Because of Confrontation Clause
) Confrontation Clause of Constitution says "in all crim prosecutions, accused shall enjoy right to be
confronted with witnesses against him." Generally means that prosecutions in criminal cases cannot offer
second-hand statements (hearsay) against a criminal defendant unless the declarant shows up in court with an
opportunity to be cross-examined. There are a few important exceptions to this rule.
) Testimonial Evidence, from Crawford v. Washington: CC applies only to "testimonial" hearsay.
Hearsay statements by a declarant that were not given with the understanding that the declarant was
essentially giving testimony against a person are not subject to the CC. Typically, this involves statements by
a person to law enforcement, which a person would understand will or could be used against a defendant.
) Availability of Witness: If statements are testimonial, the wit must usually be available. If testimonial
and wit is unavailable, defendant MUST have had prior opportunity to confront with cross exam. Look for
804(a) when defining availability.
) Defining sufficient opportunity for cross: Being present at a former hearing where witness testified
usually suffices as opportunity to cross-examine. The defendant need not have actually chosen to cross them.
)
) Exceptions to Confrontation Clause Requirement
) 1.) Emergency Exception, from Davis v. Washington: Non-"testimonial" statements are any
statements to law enforcement officers made during an ongoing emergency, when the primary purpose is to
help law enforcement resolve the emergency rather than establish or prove past events. "Testimonial"
statements to law enforcement are the opposite: when there is no ongoing emergency and the primary
purpose is to establish or prove past events potentially relevant to later criminal prosecution.
) Factors determining if emergency exception exists: Consider (1) whether statement describes past
events or events that are still unfolding, (2) its purpose is to assist investigation of crime or provide info for
some other purpose, (3) the formality of exchange when statement is given (more formal the questioning,
then the more obviously testimonial it is).
) Ex 1: A 911 call about an ongoing domestic assault is not "testimonial" because purpose of call is
informal and to resolve a crisis, not help law enforcement prosecute the abuser. But it depends what the caller
is saying. If she's describing an assault that is occurring at her house but also adds that the abuser lives at a
different address, then that statement in particular is made for purposes of a more investigatory and
"testimonial" nature. On the other hand, if the abuser has left her house, say, to go get a gun from his place
and come back, then that is a fact that would actually make it more of an ongoing emergency situation even
though the instant assault itself is over-with. TLDR: This analysis is very fact-specific.
) Ex 2: If an armed perpetrator shoots someone and leaves the scene of the crime, then details about that
armed prep are similarly going to tend to be about resolving the emergency of an armed perp being out there
and dangerous.
) 2.) Forfeiture by Wrongdoing Exception: If defendant makes the witness unavailable for the purpose
of preventing them from testifying, then he forfeits his right to confront the witness. Note, however, that it
requires specific purpose of wanting to prevent them from testifying. A regular old murder for money would
not satisfying this rule. Prosecution must prove this exception by a preponderance of evidence.
) Dying declarations have NOT been explicitly acknowledged by Supreme Court as exception to CC,
though they are an 804 unavailability hearsay exception that USED to be applied to CC IN OLDER TIMES.
)
) Bruton, Confrontation, and 801.d(2)(E) Co-Conspirator Exemption from Hearsay
) Bruton v. US held Def's CC rights are violated when non-testifying codefendant's confession naming
Def as participant in conspiracy are introduced at their JOINT trial, even when jury is instructed to only
consider the co-conspirator's confession against that co-defendant and not the other defendant.
) Why is Bruton an issue? Essentially, what happened in this case is that two defendants were tried in
the same trial for the same crime as co-conspirators. Prosecutor used Def A's admissions under 801.d(2)(E) to
count as an admission of guilt against Def B. Defense objected, and judge instructed jury to only consider the
statements for A's guilt, and ignore the fact that B was implicated in the inadmission. Problem is that the
implicated defendant wanted to confront and cross-examine the veracity of the confession by questioning his
co-defendant on the stand, but his co-defendant chose not to testify. Quite the bind! The Court said it's unfair
and unconstitutional to allow 801.d(2)(E) to be used even with the trial court's instructions to the jury in this
super narrow fact pattern
)
)

)
)

)
)
)
)

)
)

)
)

)
)
) Automatic Zoom Actual Size Page Fit Page Width 50%
75% 100% 125% 150% 200% 300% 400%

) ™VIRTUALPERFORMANCETESTWORK
SHOPSTUDENTHANDOUTBARMDMAY27,2021
) BarMDPerformanceTestWorkshopMaureenD.MacManus,Esq.May27,202
1™MultistatePerformanceTestWorkshop|
Page1of6Thecontent(“Content”)providedinthisbookletordigitallyorelectronicallyarecop
yrightedbytheKerflump,LLCdbaBarMD(“BarMD”).YouarepermittedtoviewtheContentfory
ourpersonalandnoncommercialuseonly.Youarenotpermittedtocopy,modify,reproduce,pos
t,disclose,ordistributeanyoftheContentinwholeorinpart.AnyunauthorizeduseoftheContent
isaviolationofBarMD’srightsandcouldsubjectyouandotherswhoareinvolvedtocriminalandc
 ivilpenalties.AllcopyrightsoftheStateBarofCaliforniaremainwiththeStateBarofCaliforniaan
dnothingstatedhereinisintendedtoattempttosupersedesuchrights.
) BarMDPerformanceTestWorkshopMaureenD.MacManus,Esq.May27,202
1™MultistatePerformanceTestWorkshop|
Page2of6GoalsforToday:1.UnderstandHowBarExaminersWriteaPT2.Und
erstandHowtoStructureanObjectivePT3.UnderstandHowtoCompletetheP
TWithoutPrintedCopiesProcessforWritingaPT1.ReviewtheTaskMemo(~5
mins)2.SetupPerformanceTestSkeletalOutline(~5mins)a.IncludeIntroducti
on,Conclusion,MacroHeadingsb.Ifdocumentthatwillprovideorganizingprin
ciples(e.g.,letter,motion)ismentioned,readthatnext.3.SkimFile(~5mins.)4.
Skim&ReadLibrary(~15mins)a.Readeachcasewithpurposeb.Focusonthea
nalysisofeachcasec.Assigncasestoappropriateissuesd.Identifywheretodra
ftruleexplanations/caseexplanations/
ruleproofs5.Draftrules&ruleproofs(~15mins)a.In[casename]thecourtheld[
holding]because[facts+reasoning].6.ReadLibrary(~15minutes)7.WriteAna
lysis(~25mins)8.Proofread(~5mins.)BasicStructureforAllPerformanceTest
sI.INTRODUCTION1.Re-
iteratewhatthetaskmemotellsyoutodo2.WriteincorrecttoneandtothetaskBel
ow,pleasefindmyanalysisregarding(1)...(2)...(3).II.ANALYSIS/
ARGUMENT1.Figureoutyourheadings2.FollowCREAC/CRPAC/
IREAC3.Identifywhereyouwillusethecases/
statutesIII.CONCLUSION1.Re-
iteratewhatyouwant2.Keepyourclient’sgoalinmind3.Cannedconclusionfor
objectivetaskThankyouforallowingmetoconductthisanalysisforyou.Iftherei
sanythingIcandotobeoffurtherassistance,pleaseletmeknow.
) BarMDPerformanceTestWorkshopMaureenD.MacManus,Esq.May27,202
1™MultistatePerformanceTestWorkshop|
Page3of6MEMORANDUMI.INTRODUCTIONBelow,pleasefindmyanalysi
sofwhetheranyofevidenceofthreespecificincidentsareadmissibleassubsta
ntiveevidenceandwhetheranyoftheincidentsareadmissibleforimpeachmen
tifMs.Martintakesthestand.II.ANALYSISIII.CONCLUSIONThankyouforallo
wingmetoconductthisanalysisforyou.IfIcanbeoffurtherassistanceonthis,or
anyother,matter,pleasedonothesitatetoletmeknow.
) BarMDPerformanceTestWorkshopMaureenD.MacManus,Esq.May27,202
1™MultistatePerformanceTestWorkshop|
Page4of6MEMORANDUMI.INTRODUCTIONBelow,pleasefindmyanalysi
sofwhetheranyofevidenceofthreespecificincidentsareadmissibleassubsta
ntiveevidenceandwhetheranyoftheincidentsareadmissibleforimpeachmen
tifMs.Martintakesthestand.II.ANALYSISA.CharacterEvidenceR-
Priorbadactsareinadmissibletoestablishanindividual’scharacterorpropensi
tytocommitacrime.CRE404(b)
(1).Priorbadactsareadmissibleforotherpurposes,suchas,butnotlimitedto,pr
oofofmotive,opportunity,intent,preparation,plan,knowledge,identity,orabse
nceofmistakeoraccident.CRE404(b)
(2).Todeterminewhetherprofferedevidenceisrelevantforoneoftheotherpurp
oses,thecourtconsidersthedegreeofsimilaritytothechargedcrime,andthete
mporalrelationshipofotheracts.Landreau.Specificactscanserveasthebasis
orinferringthedefendanthadamentalstateinconsistentwithinnocence.Id.RE
-
InLandreau,thecourtheldadmissionofafalsifiedmortgageapplicationwaspr
operlyadmittedinabadcheckpassingschemewhenthedefendantclaimedsh
edidnotknowherco-
conspirator’scheckswouldbounceanddefendantclaimedshedidnotintendto
defraudthebankbecauseherfalsestatementsshowedsheintendedtopassba
dchecksandabsenceofmistake.Thecourtfurtherheldthepriorbadactsweres
ufficientlysimilartimetosatisfythe404requirementbecauselyingonamortgag
eapplicationandpassingabadcheckbothdemonstratedwillingnesstodeceiv
esoastosecuremoneyfromafinancialinstitution.Id.Theinstancesweresuffici
entlycloseintimewhenthefraudulentmortgageapplicationwasfiledtwoyears
beforethecurrentoffense.Id.1.TestimonyofConstanceGainerA-C-
2.TestimonyofHenryFranksA-C-3.TestimonyofJoanTimmonsA
) BarMDPerformanceTestWorkshopMaureenD.MacManus,Esq.May27,202
1™MultistatePerformanceTestWorkshop|Page5of6CB.ImpeachmentR–
Ifawitnesstakesthestandandtestifies,sheputshercredibilityinissueandtheo
pposingpartyisentitledtoimpeachthewitness’scredibility.Proctor.Awitnessm
aybeaskedaboutspecificinstancesofconductthatareprobativeofawitness’s
characterfortruthfulnessoruntruthfulness.CRE608(b).Columbiacourtsrequ
 iretheacttohaveanaffirmativeelementaboutafalsestatementordeceptionbut
permitsquestioningaboutconductthatindicatesawillingnesstogainapersona
ladvantagebydishonestmeans,includingbytakingfromothersinviolationofth
eirrightsorbyencouragingdishonestbehaviorinothers.Proctor.Conductthati
sprobativeistruthfulnessincludesprovidingfalseinformationtoapoliceofficer,
intentionallyfailingtofiletaxreturns,andmisrepresentinginformationtoobtain
aloan.Proctor.Conductthatisnotprobativeoftruthfulnessincludesactsofviole
nce,instancesofdruguse,drivingundertheinfluenceofdrugs,andbigamy.Id.R
E--ProctorA-
CIII.CONCLUSIONThankyouforallowingmetoconductthisanalysisforyou.If
Icanbeoffurtherassistanceonthis,oranyother,matter,pleasedonothesitateto
letmeknow.
) .