Evidence

Real or demonstrative evidence is actual physical evidence (as opposed to testimonial, documentary) addressed directly to the trier of fact (a gun).
Note: Real evidence may be direct, circumstantial, original, or prepared (demonstrative).

Direct evidence involves no inferences; it is testimony or real evidence that speaks directly to a material issue in the case

Circumstantial evidence: is indirect and relies on inference. It is evidence of a subsidiary or collateral fact from which, alone or in conjunction with other facts, the existence of a material issue can be inferred.

Generally, the evidence must relate to time, event, or person involved in the present litigation; otherwise, it is not relevant.

Complicated issues of causation may be established by evidence concerning other times, events, or persons (e.g., damage to nearby homes caused by D's blasting is relevant to prove D's blasting damaged P's home).

Evidence that a person has filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim. But evidence that the party has made previous similar false claims or claims involving the same bodily injury is usually relevant to prove that:
(i) the present claim is likely to be false, or
(ii) the plaintiff's condition is attributable in whole or in part to the prior injury.

Evidence of prior accidents or injuries caused by the same event or condition is admissible to prove: (i) the existence of a dangerous condition, (ii) that the D had knowledge of the dangerous condition, and (iii) that the dangerous condition was the cause of the present injury

Absence of Similar Accidents: Many courts are reluctant to admit evidence of the absence of similar accidents to show absence of negligence or lack of a defect. ~ However, evidence of the absence of complaints is admissible to show the defendant's lack of knowledge of the danger.

Yes, Similar conduct previously committed by a party may be introduced to prove the party's present motive or intent when such elements are relevant (e.g., history of school segregation admissible to show motive for current exclusion of minorities).

The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut a claim of impossibility (e.g. D's claim that car will not go above 50 mph can be rebutted by showing occasions when car went more than 50 m.p.h.).

Evidence of sales of similar personal or real property that are not too remote in time is admissible to prove value. ~ Prices quoted in mere offers to purchase are not admissible. ~ However, evidence of unaccepted offers by a party to the action to buy or sell the property may be used against him as an admission.

If witness's memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event. The writing itself is not received as an exhibit; it must be read to the jury.
The foundation must include evidence that:
1) the witness had personal knowledge of the facts in the writing;
2) The writing was made by the witness or under her direction, or was adopted by the witness;
3) The writing was timely made, when the matter was fresh in the witness's mind;
4) The writing is accurate; and
5) The witness has insufficient recollection to testify fully and accurately.

a. there has to be a "Business" (liberally defined)
b. the Entry has to be made in the regular course of business and that it was customary to make the type of entry involved (i.e., the entrant had a duty to make the entry).
c. the person entering the statement has to have had Personal Knowledge of the entry
d. the Entry has to have been made near the time of the event e. the Authenticity of the record must be established - This can be accomplished by the custodian
(i) Testifying that the record is a business record or
(ii) certifying in writing that the record is a business record.

Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provision of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum report, record or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

The following are admissible:
(A) Records setting forth the activities of the office or agency;
(B) Recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases);
(C) In civil actions and against the government in criminal cases, records of factual findings resulting from an investigation authorized by law.
~ The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.

Under the FRE, judgments of felony convictions are admissible in criminal and civil actions to prove any fact essential to the judgment.
In a criminal case, the government may use the judgment for this purpose only against the accused.
Against persons other than the accused, the government may use prior convictions only for impeachment.

Prior criminal acquittals cannot be used – the exclusionary rule still applies to prior criminal acquittals.

A. Inadmissible in Criminal Proceeding – A civil judgment is clearly inadmissible in a subsequent criminal proceeding because of the differing standards of proof.
B. Generally inadmissible in Civil proceeding – Generally inadmissible in subsequent civil proceedings. There are statutory exceptions such as FRE 803(23)

Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirement of the
Law.

To prove the absence of a record, report, statement, or data compilation in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency.

Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.

Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, make by a clergyman, public official, or other person authorized by the ruled or practices of a religious organization or by the law to perform the act certified, an purporting to have been issued at the time of the act or within a reasonable time thereafter.

Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc. are admissible.

The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

Statements in any authenticated document 20 years old or older the authenticity of which is established

Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.

Learned treatises Are admissible as substantive proof under the FRE if:
a. Called to the attention of, or relied upon by an expert witness; and
b. Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice.
If admitted, the statements may be read into evidence but may not be received as exhibits (not shown to the jury).

Reputation among members of a person’s family by blood, adoption or marriage, or among a person’s associated or in the community concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, ancestry or other similar fact of person or family history.

Reputation evidence is admissible, under several exceptions to the hearsay rule, as evidence of the following:
(i) land boundaries and a community's general history FRE 801(20)
(iii) Reputation of a person’s character among associates or in the community FRE 801(21)

Evidence of a final judgment entered after a trial or upon a plea of guilty (but not a plea of nolo contender), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment but not including,
1. when offered by the Government in a criminal prosecution for purposes other than impeachment
2. judgments against persons other than the accused
The pendency of an appeal may be shown.

Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

Unavailable as a witness includes situations where a declarant is:
a. Exempt from testifying by a court ruling on the grounds of privilege
b. Persists, despite a court order, in refusing to testify concerning the statement
c. Testifies to lack of memory of the subject matter of the statement
d. Unable to testify because of death or physical or mental illness
e. Is absent (beyond the reach of the court’s subpoena) and the statement’s proponent had been unable to procure his attendance or testimony by process or other reasonable means.

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence was due to the procurement or wrongdoing by the proponent of the statement for the purpose of preventing the witness from attending or testifying.

1. Former Testimony
2. Statements Against Interest
3. Dying Declarations
4. Statements of Personal or Family Interest
5. Forfeiture by wrongdoing

The statement of a now unavailable declarant is admissible if:
The party against who the testimony is offered was a party or in privity with a party in the former action.
The former action involved substantially similar subject matter
The previous testimony was under oath; and
The party had an opportunity at the prior proceeding to develop the declarant's testimony (i.e., by direct, cross, or re-direct examination)
Note: Grand juries do not qualify for this exception because there was no opportunity for cross-examination.

A Statement by a now unavailable declarant is admissible if:
a. The declarant believed his death was imminent; and
b. the statement concerned what he believed were the causes or circumstances surrounding his death.
Note:
Applies, under the federal rules, in homicide cases and civil actions.
Under the Federal Rules the declarant could survive but must be unavailable.
Under the traditional viewpoint declaration is admissible only in homicide prosecutions (not civil) and the declarant must have died.
In California, any kind of case, civil or criminal, like the traditional view the declarant must have died.

The statement of a person (now unavailable as a witness) against the person's pecuniary, proprietary, or penal interest when made, as well as collateral facts contained in the statement, is an exception to the hearsay rule.
Elements:
1. The Statement must have been against pecuniary, proprietary, or penal interest when made
2. Declarant must have had Personal knowledge of the facts.
3. Declarant must have been aware that the statement is against her interest and have no motive to misrepresent when the statement was made.
4. Declarant must be unavailable as a witness

A now unavailable declarant's statement concerning births, marriages, divorces, relationships, genealogical status (re descent, ancestry), etc., will be admissible provided:
a. the declarant is a member of the family or intimately associated with it; and
b. The Statement(s) are based on personal knowledge

The statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the defendant's unavailability.

The Federal Rules provide a catch-all exception, which requires:
1. hearsay statement possess circumstantial guarantees of trustworthiness;
2. statement is strictly necessary; and
3. notice be given to adversary

a. Evidence of specific acts
b. Opinion evidence; and
c. Testimony as to a person's general reputation in the community.

A witness for the D may testify as to the D's good reputation for the trait in question and may give his personal opinion concerning that trait of the D.

(i) To prove character when it is the ultimate issue in the case.
(ii) Serve as circumstantial evidence of how a person probably acted.

The object must be identified as what the proponent claims it to be, either by:
a. Testimony of witness that she recognizes the object as what the proponent claims it is (e.g., witness testifies that a gun is the one found at the crime scene); or
b. Evidence that the object has been held in a substantially unbroken chain of possession (e.g., blood taken for blood-alcohol test).

A writing is authenticated by proof that shows that the writing is what the proponent claims it is. ~ proof must be sufficient to support a jury finding of genuineness

Ancient documents are authenticated on a showing that:
1) the document is at least 20 years old
2) it is in such condition as to be free from suspicion as to authenticity; and
3) it was found in a place where such a writing would likely be kept.

The Reply Doctrine states that a writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author.

Photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts.

If a photograph is taken when no person who could authenticate the scene is present, the photograph may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph was developed from film obtained from that camera.

A voice may be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun for the sole purpose of testifying.

The Best Evidence Rule says that to prove the terms of a writing, the original writing must be produced if the terms of the writing are material.

Secondary evidence of the writing (e.g. oral testimony) is admissible only if the original is unavailable.

(i) the writing is a legally operative or dispositive instrument, or
(ii) the knowledge of a witness concerning a fact results from having read it in the document.

The Parol Evidence rule says that prior or contemporaneous negotiations or agreements are inadmissible to vary the terms of the writing.

Prior or contemporaneous negotiations or agreements are merged into the written agreement, and they are inadmissible to vary the terms of the writing.

a. If the contract is Incomplete or Ambiguous
b. Reformation of Contract (e.g., mistake) entitling him to reformation.
c. In a Challenge to the Validity of a Contract - this is where Parol evidence is allowed to show that the contract is void or voidable, or was made subject to a valid condition precedent that has not been satisfied.

Every person is competent to be a witness except as otherwise provided in the rules of evidence. In civil actions and proceedings the competency of a witness shall be determined in accordance with state law.

(i) personal knowledge of the matter about which he is to testify; (FRE 602)
(ii) witness must declare that he will testify truthfully by oath or affirmation. (FRE 603)

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Jurors may not testify before the jury in which they are sitting. Jurors cannot testify in post verdict proceedings as to matters or statements occurring during deliberations except:
A. When outside influence or extraneous prejudicial information was brought in
B. A juror can testify to whether there was a mistake in entering the verdict on the verdict form, i.e. wrong verdict count or a verdict form which states that a D is guilty when the jury agreed he was not guilty.

in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

Witnesses must possess to some degree four basic testimonial attributes: the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully.

The past recollection recorded rule states that Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid. (hearsay exception 803(5))

The proper foundation for Past Recollection Recorded exception must contain proof that:
1) the witness had personal knowledge of the facts in the writing;
2) the writing was made by the witness or under her direction, or was adopted by the witness;
3) The writing was timely made, when the matter was fresh in the witness's mind;
4) The writing is accurate; and
5) The witness now has insufficient recollection to testify fully and accurately.

The general policy is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful.

Opinion testimony by Lay Witnesses is admissible when three criteria are met:
(i) the opinions or inferences are rationally based on the witness's perception
(ii) the testimony is helpful to a clear understanding of his testimony or helpful to a determination of a fact in issue; and
(iii) the testimony is not based on scientific facts, technical or other specialized knowledge

An expert may state an opinion or conclusion, provided:
(i) The subject matter is one where specialized knowledge would assist the trier of fact,
(ii) a witness is qualified as an expert;
(iii) The expert possesses reasonable probability regarding his opinion; and
(iv) The opinion is supported by a proper factual basis

1) Personal observation
2) Facts made known to the expert at trial, or
3) Facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field.

(i) The scope of direct examination, including all reasonable inferences that may be drawn from it, and
(ii) Testing the credibility of the witness.

Impeachment means the casting of an adverse reflection on the veracity of a witness.

A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony.

To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case

Yes

Extrinsic evidence can be introduced to prove a prior inconsistent statement only if the witness is, at some point, given an opportunity to explain or deny the statement. ~ The exception to the rule is that inconsistent statements by hearsay declarants may be used to impeach despite the lack of a foundation.

Inconsistent statements by hearsay declarants may be used to impeach despite the lack of a foundation.

Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. ~ If, however, the statement was made under oath at a prior proceeding, it is admissible non-hearsay and may be admitted as substantive evidence of the facts stated.

Cross or Extrinsic evidence ~ Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie.

Before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination. ~ If these facts are admitted on cross-examination, admissibility of extrinsic evidence is within the court's discretion.

Cross-examination or Record of Judgment may be used to show conviction of a crime. A witness may be impeached by proof of a conviction (arrest or indictment is not sufficient) for certain crimes.

A pending review or appeal does not affect the use of a conviction for impeachment.

a) Any Crime Involving Dishonesty or False Statement (misdemeanor also) ~ The court has no discretion to bar impeachment by these crimes.
b) Felony not involving dishonesty ~ the court does have discretion here to exclude

When the prosecution has not shown that the conviction's probative value outweighs its prejudicial effect

When the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect. ~ i.e., the court makes the determination whereas for the criminal defendant the prosecution must prove the probative value substantially outweighs the prejudicial effect

Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible unless the court determines that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

A prior conviction may be shown either by cross-examination or by introducing a record of the judgment. No foundation is necessary.

A conviction may not be used to impeach a witness if the witness has been pardoned and: (i) the pardon is based on innocence, or (ii) the person pardoned has not been convicted of a subsequent felony.

Under the FRE, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is probative of truthfulness (i.e., is an act of deceit or lying). ~ However, the cross-examiner must inquire in good faith. ~ Further, extrinsic evidence of "bad acts" to prove misconduct is not permitted - A specific act of misconduct relevant to impair credibility can be elicited only on cross-examination of the witness.

A witness is impeached in this manner by the testimony of other witnesses; ~ This may include evidence of reputation in business circles as well as in the community in which the witness resides. ~ Under the FRE, an impeaching witness may state his own opinion as to the character of a witness for truth.

A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. ~ A witness may also be impeached by showing that he had no knowledge of the facts to which he testified.

Under the Federal Rules, the credibility of someone who does not testify but whose out-of-court statement is introduced at trial may be attacked (and if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness. ~ The declarant need not be given the opportunity to explain or deny a prior inconsistent statement.

A party may not ordinarily rehabilitate a witness by showing a prior consistent statement. This is true even when the witness has been impeached by showing a prior inconsistent statement. ~ However, if the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement is admissible to rebut this evidence. ~ This previous statement also is substantive evidence of the truth of its contents.

1. An attorney-Client relationship - The client must be seeking the professional services of the attorney at the time of the communication.
2. confidential communications - the communications must have been made in confidence

(i) a professional relationship exists;
(ii) the information is acquired while attending the patient in the course of treatment; and
(iii) the information is necessary for treatment. (Nonmedical information is not privileged).

~ In most particulars, this privilege operates in the same manner as the attorney-client privilege. The U.S. Supreme Court recognizes a federal privilege for communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and his client.

a. Spousal Immunity (criminal cases)
b. Privilege for Confidential Marital Communications

Spousal immunity may be invoked where a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Moreover, a married person may not be compelled to testify against his spouse in any criminal proceeding, regardless of whether the spouse is the defendant. ~ There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage.

The privilege lasts only during the marriage.

In federal court, the privilege belongs to the witness-spouse (Thus, the witness-spouse cannot be compelled to testify, but may choose to do so) ~ In most state courts, however, the privilege belongs to the party-spouse. [check CA]

In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged.
For this privilege to apply, the marital relationship must exist when the communication is made. The communications must also have been made in reliance on the marital relationship (i.e., confidential).
Divorce will not terminate the privilege, but communications after divorce are not privileged.

Forever - Divorce will not terminate the privilege, but communications after divorce are not privileged.

The burden of proof encompasses the burden of producing or going forward with the evidence, and the burden of persuasion.

A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.

A presumption operates, until rebutted, to shift the burden of production to the party against whom the presumption operates.

Evidence may be admissible for one purpose but not another, or admissible against one party but not another. ~ In these situations, the court must, upon request, restrict the evidence to its proper scope and instruct the jury accordingly. (FRE 105)

Habit describes a person's regular response to a specific set of circumstances. ~ In contrast, character describes one's disposition in respect to general traits. ~ Under FRE 406, evidence of the habit of a person is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit.

Yes, Evidence that a particular business had an established business routine is relevant as tending to show that a particular event occurred.

Yes. Industry custom may be offered to show adherence to or deviance from an industry-wide standard of care. However, industry custom is not conclusive on this point (an entire industry may be acting negligently).

It may be admissible to show:
(i) ownership or control;
(ii) to impeach; or
(iii) as part of an admission.
Evidence of insurance against liability is not admissible to prove negligence or ability to pay a subsequent judgment;

Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction;

However, it may be admissible to:
(i) prove ownership or control;
(ii) to rebut a claim that precautions were not feasible, if controverted; or
(iii) to prove that the opposing party has destroyed evidence.

Evidence of compromises or offers to compromise is not admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount. ~ not even direct admissions of liability during compromise negotiations are admissible. ~ Likewise, withdrawn guilty pleas and offers to plead guilty are inadmissible.

Except as provided in this rule evidence of the following is not , in any civil or criminal proceeding, admissible against the D who made the plea or was a participant in the plea discussions:
1. A pleas of guilty which was later withdrawn
2. A plea of nolo contendere
3. Any statement made in the course of any proceedings under Rule 11 of the FRCrimPro or comparable state statute regarding either of the foregoing pleas or
4. any statement made in the course of plea discussion with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However such a statement is admissible
i. in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it. Or
ii. in a criminal proceeding for perjury or false statement if the statement was made by the D under oath, on the record and in the presence of counsel.

Payment of or offers to pay the injured party's medical expenses are inadmissible to prove culpable conduct. ~ However, unlike the situation with compromise negotiations, admissions of fact accompanying offers to pay medical expenses are admissible.

No, Unless character is directly in issue (e.g. defamation, negligent hiring, negligent entrustment), evidence of character offered by either party to prove the conduct of a person in the litigated event is generally not admissible in a civil case.

Generally Only the Accused Can Initiate; The prosecution cannot initiate evidence of bad character of the defendant merely to show that she is more likely to have committed the crime. (Although the prosecution may introduce evidence of prior misconduct for reasons other than propensity to commit the crime.

Under the FRE, a witness for the defendant may testify as to the D's good reputation for the trait in question and may give his personal opinion concerning that trait of the defendant. taking the stand places the D's credibility (as opposed to character) in issue; i.e., the prosecution is limited to impeachment evidence rather than substantive evidence)

Once the defendant opens the door by introducing character evidence, the prosecution may rebut it by:
1) Cross-examining the D's character witness (including whether he knows or has heard of specific instances of the defendant's misconduct)
2) Calling Qualified Witnesses - to testify to the defendant's bad reputation or give their opinions of the defendant's character.

Evidence of a person's other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character. Specific Acts of Misconduct are Admissible if Independently Relevant (Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition to commit the crime or act charged). MIMIC

To be admissible:
(i) There must be sufficient evidence to support a jury finding that the D committed the prior act, and
(ii) Its probative value must not be substantially outweighed by the danger of unfair prejudice (or the judge, in her discretion, may exclude it).

Statements made during a telephone conversation may be authenticated by one of the parties to the call who testifies that:
(i) he recognized the other party's voice;
(ii) the speaker had knowledge of certain facts that only a particular person would have;
(iii) he called a particular person's number and a voice answered as that person or that person's residence; or
(iv) he called a business and talked with the person answering the phone about matters relevant to the business.

1. Fact to Be Proved Exists Independently of Writing
2. Writing is Collateral to Litigated issue
3. Summaries of voluminous records
4. Public records - copies of public records that are certified as correct or testified to as correct.

An Original is the writing itself or any duplicate that is intended by the person executing it to have the same effect as an original.

A duplicate is an exact copy of an original, such as a carbon copy. ~ Duplicates are admissible in federal courts unless the authenticity of the original is challenged or unfairness would result. FRE 1003

If the proponent cannot produce the original writing in court, he may offer secondary evidence of its contents (handwritten copies, notes, oral testimony) if a satisfactory explanation is given for the nonproduction of the original.

Upon satisfactory foundation, the Federal Rules permit a party to prove the contents of a writing by any kind of secondary evidence, thus abolishing degrees of secondary evidence.

Dead Man Acts provide that a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. ~ A person is "interested" if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action. ~ A predecessor in interest of the interested party is also disqualified.

There is no Dead Man Act in the FRE, but a state Act will apply in federal cases where state law, under the Erie doctrine, provides the rule of decision (e.g., diversity cases).

Leading questions are questions that suggest the answer desired.
Leading questions should not be used on the direct-examination of a witness.
Leading questions are permitted on cross-examination.
When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

A Witness may use any writing (or photograph) for the purpose of refreshing her present recollection. ~ A Witness usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence. ~ there is no hearsay problem, because item is not entered into evidence

Under the FRE, an expert may render an opinion as to the ultimate issue in the case.
However, in a criminal case in which the defendant's mental state constitutes an element of the crime or defense, an expert may not, under the FRE, state an opinion as to whether the accused did or did not have the mental state in issue.

An expert may be cross-examined regarding statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice.
Under the FRE, these texts and treatises can be used not only to impeach experts, but also as substantive evidence

1) An expert must be on the stand when an excerpt is read from a treatise; and
2) The relevant portion is read into evidence but is not received as an exhibit.

Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

A. Explanation on Redirect: The witness on redirect may explain or clarify facts brought out on cross-examination.
B. Good Reputation for Truth: When the witness's character for truth and veracity has been attacked, other witnesses may be called to testify to the good reputation for truth of the impeached witness or to give their opinions as to the truthfulness of the impeached witness. Prior Consistent Statements (limited)