What can/shall the courtdo?
- A. decide preliminary questions qualifying a witness 104(a)
- B. decide the existence of a privilege 104(a)
- C. decide the admissibility of evidence 104(a)
- does the relevancy of the evidence depend on the fulfillment of a condition of fact?
(1) yes – ct shall admit the evidence subject to the introduction of evidence sufficient to support the fulfillment of the condition 104(b)
- Conduct hearings on admissibility outside the presence of the jury when justice req’s or..104(c)
- E. Exercise reasonable control over interrogating witnesses and presenting evidence to make presentation and questioning effective for discovering truth, avoiding needless waste of time and protecting witnesses from harassment or undue embarrassment 611(a)
- ct can’t overly limit ability to cross or will violate C clause
- 2. Questioning
- A. Scope of cross 611(b)
- B. Leading questions 611(c)
- Can’t ask for a legal conclusion, sum up, assume facts not in evidence, ask for just yes or no unless W is evading
- What is the evidence?
- Is the evidence admissible?
- Is the witness competentto testify? 601
- heavy presumption 601 – just cross them about the problem on the stand
- Is the witness competentto testify? 601
F. Enforce rules limiting the scope of cross and limit leading of witnesses 611(b)
(1) Drug user – competent (intoxicated informer)
(2) Child – presumption to let it in
(a) 3 year old kid – no – can’t understand oath or communicate (little archie)
(b) 9 yrs old testifying about when he was 3 – let it in and cross him on ability to understand at the time (little archie)
- b. Can person understand the oath? No – out –603 (3 yr old kid above)
- Do they have an inability to perceive or communicate? No – out
(1) someone who can only signal yes or no – can argue no way to really cross – but still let it in
(2) Interpreter – can be used but you have to be able to test the translation (only 1 person can understand W? – no)
- d. Does the person have personal knowledge of the events? Has foundation been laid as to this knowledge? 602
(1) foundation can consist of W’s own testimony
(1) does W remember facts during the hypnosis?
(a) yes – does W remember facts after the hypnosis?
- yes – maybe let it in
- no – don’t let it in; including if the person remembers what they said under hypnosis but not the event itself
(2) (SC says can’t ban hypnosis totally – may violate D’s right to testify on their own behalf Rock v. AK)
- Religious beliefs – can’s use to show that the person is more or less credible – 610
- Is the evidence credible?
- Is the witness credible?
(1) general veracity – triggers 608
(2) Is the person on the stand? – because you can’t bring in extrinsic evidence of someone’s lack of credibility (like the defendant)
- if they are, ask about the events
- Is the document authentic?
- Is the evidence relevant?
- Has tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without it 401
- Irrelevant? Inadmissible 402; Relevant? – admissible 402
- Low threshold for admissibility – Will the evidence help the jury to understand the claim?
- Evidence of jury misconduct (ex. juror testimony that jury was fucking around and drinking) – generally not relevant Tanner v. U.S. (except outside influence stuff like bribery)
- What is the fact/issue sought to be proven? For what purpose is the evidence offered? What is the issue? What is the substantive law?
(1) motive, intent, notice, knowledge, damages (statement – my legs were hurting)
(2) the fact need not be in dispute (can be background stuff admitted as an aid to understanding – charts, murder weapons, view of real estate) 401 a.n.
- f. Is the evidence material?
(1) Is there a link between the fact that the evidence tends to establish and the substantive law?
(2) Is the evidence relevant to the substantive fact sought to be proven? Is it a link in the chain of evidence proving that fact?
(3) Most common irrelevant evidence – where there’s no link between the evidence and the legal elements
- g. Does the evidence make the fact/issue any more or less likely than it would be without the evidence (Probative)?
(1) does the item tend to prove what is sought to be proven?
(2) Evidence rarely excluded for lack of probative value
(3) Is the evidence direct or circumstantial? McCormick
(a) If believed, it resolves a matter at issue
- direct – always probative – if it’s material, it’s relevant McCormick
(b) If believed, still doesn’t resolve matter at issue unless additional reasoning is used
- Circumstantial – does it affect the probability of the proposition?
- doesn’t have to make it more probable than not 401 a.n.
- can still be improbable (insufficient after receipt) McCormick
- Lack of uniqueness decreases probative value (and increases prejudicial effect) People v. Adamson
- When evidence is equally consistent with existence or nonexistence of a fact sought to be proven – should be excluded (ex. non-unique item) State v. Brantley
- Can’t be that the evidence and the fact sometimes or often go together but that they most usually do State v. Stone (condoms in wallet and incest – way too prejudicial)
- Remoteness – can the object be connected to the events? If not, not probative
- The more steps in the chain of inference (and the less convincing any one of the steps is), the less probative (E p.13)
- Probability and Statistical Proof
- not probative if methodology is unsound Collins
- if sound – can be probative of guilt
- but never sufficient on its own to convict – have to tie D to the specific crime
- (risk of prejudice – the more other evidence, the lower the risk of prejudice from stats)
- Spoliation of evidence to show consciousness of guilt
- have to support the chain of inference – that D was arguably the one that destroyed the evidence (they were the last one to have it etc)
- chain – that when you try to destroy evidence, you’re guilty
- Post-arrest – can’t use silence as probative of anything after Miranda warning Doyle
- Pre-arrest ex. guy didn’t go to police and claim self-defense til he was arrested – used as probative of falsity of self defense claim Jenkins (crap – his right to remain silent should still be there – violates self-incrim privilege)
- Generally – usually so ambiguous it has little probative value Hale
(also it may be given too much weight – prejudice)
- not probative of innocence
- b/c too many reasons why people flee – and bad public policy
- Flight or concealment of identity
- have to use a chain of inferences to make it relevant – may not work in every case
- if there is evidence to support the chain, it comes in and D can argue they fled/concealed for another reason
- If you can’t complete the chain, it won’t be probative (have to have a connection between the flight and the crime charged – ex if D didn’t know she was suspected of a crime Silverman)
- h. Is the evidence only relevant if another condition of fact is fulfilled? Conditional relevance
(1) Can evidence be introduced sufficient to support a finding of the fulfillment of that condition? – then it can come in 104(b)
(2) evidence comes in on the condition that they can prove facts showing it relates to the case
(3) ct won’t require extreme measures to show foundation just have to have a good basis for the evidence – waste of time (but other side can challenge)
- Is the rule involved mandatory or discretionary?
- Prior acts? Do 404(a)(1) or 404(a)(2) allow admission of acts showing a character trait/general character evidence?
- Is it a habit? See I
- Is it a conviction? See 609
- Is it for the purpose of attacking truthfulness?
- Is it a criminal case? – 404(a)(1) and 404(a)(2) don’t apply to civil
- Is it evidence of the accused D’s character or trait of character offered to prove action in conformity therewith?
(1) Yes – Is it offered by the accused? – admissible 404(a)(1) see how and when (F)
(2) Is it offered by the prosecution?
(a) To rebut character evidence offered by the accused? – admissible 404(a)(1) see F
(b) Otherwise – not admissible under 404(a)(1) – see 404(b)
(c) (case said allowing P to offer propensity evidence was harmless error b/c there was other evidence supporting conviction – crap)
- Is it evidence of the victim’s character or a pertinent trait of character to prove action in conformity therewith?
(1) Is it offered by the accused – admissible 404(a)(2)
(2) Is it offered by the prosecution?
(a) To rebut character evidence about the victim offered by the accused? – admissible 404(a)(2)
(b) Is it a homicide case where D has claimed self-defense?
- To rebut evidence that the victim was the first aggressor – P can offer evidence of victim’s peacefulness 404(a)(2)
- If evidence can be admitted under (a)(1) or (a)(2), what kind of evidence and when?
- Should 403 still keep it out?
- If you can offer character evidence, it can be offered by testimony as to reputation or in the form of an opinion 405(a) (not hearsay 803(21))
- Accused can offer:
(1) a general character witness as to his own character
(a) during the case-in-chief
- ex. rep for peace or quietude in an assault and battery case
(2) a general character witness as to the victim’s character
(a) any time – in a self defense case
(3) general character witnesses to rebut P’s rebuttal general character witnesses
(4) if P offers a general character rebuttal witness, D can cross with specific instances of D’s good character
- Accused can’t offer:
(1) specific good instances witness to show their good character
(a) ever ( – irrelevant)
(2) specific instances or a general witness about someone else’s bad character to show their propensity to have done the crime instead of D
- Prosecutor can offer:
(1) If D offers a general character witness in case-in-chief:
(a) On cross of character witness, specific instances of character contradicting the witness (to show lack of credibility) Michelson
(b) On cross of character witness, ask about the basis for witness’s opinion – other things witness heard etc. 405 a.n.
(c) A general bad reputation witness on rebuttal
(d) A general good reputation witness as to victim’s peacefulness to rebut a homicide self-defense case 404(a)(2)
- Prosecutor can’t offer:
(1) Even if D offers general character witness
(a) P can’t offer specific instances witness on rebuttal
(2) If D doesn’t offer general character witness
(a) then P can’t bring up instances of D’s character
(b) then P can’t offer any bad rep witnesses
- If you can’t bring in stuff under 404(a)(1) or (a)(2), Is there a 404(b) exception to allow a prior?(what are you trying to prove?)
- have to be able to reasonably conclude that a bad act happened and D did it
- Can’t bring general rep witnesses under 404(b)
- Specific instances that are offered to prove:
(1) proof of intent – can bring in intent evidence on rebuttal if D claims lack of intent Beechum; otherwise, intent is shown by proving D did it
(2) motive, state of mind, opportunity,
(3) knowledge – ex. safe combo
(4) preparation, planning – like with self defense or heat of passion manslaughter defense
(5) to tell the whole story –
(a) D may add parts to the relevant story by raising a certain defense (D says entrapment, you can bring up D’s past wrongs to show no entrapment – he does it all the time)
(b) Facts central to explaining the charge
(c) Zackowitz with the guns
(6) identity – MO money or death, doesn’t have to be an arrest or conviction; has to be distinctive enough (or not probative enough to overcome prejudice); more probative if ID is a main issue and there’s little other evidence Danzey
(a) Less distinctiveness/similarity needed for D to use MO to show it was someone else (no prejudice) Jewett
(b) D can show evidence that he was misID’d in the past Jewett
(8) absence of mistake or accident
(a) can show identity and decrease chance of misID
(b) to show orchestration when D is saying coincidence Oliphant
(9) Using past acquittals (for MO or absence of mistake now)
(a) estoppel issue – ask whether guilty verdict necessarily decided the issues you’re using here (D has to prove it was litigated) Dowling;
(b) you have to be reasonably able to conclude that the prior bad act happened and D did it
(10) not to show conformity therewith (404(b))
(11) during the case-in chief or on rebuttal to prove an essential element of the case 405(b)
(12) can use extrinsic evidence under 404(b)
H. Character in civil cases 404
- inadmissible to show propensity (like carelessness to show negligence in the accident or peacefulness)
- no (a)(1)or(2) exceptions
(1) not even when the conduct accused is crime-like (one case allows it, one doesn’t)
- c. can show character or a trait if character is in issue 404a.n. (404b stuff)
(1) then, can show specific acts, W opinion and reputation
(2) ex’s knowledge, notice of a problem (shouldn’t have let someone do X); to show no damages to defamed person b/c it was true; for defense of truth; to show no damages in a wrongful death b/c the guy was a gambler
(3) Self defense – can show V’s rep for violence if D knew about it at the time – shows reasonable apprehension
(4) Past accidents put co. on notice of danger from similar products Exum
(5) Repeat problems could put P on notice that it’s a dangerous place – contributory (the why concert)
(6) Fact that a company has a Higher accident rate – doesn’t put them on notice – too general
(7) Streetcar driver started quickly at 2 previous stops – shows state of mind not propensity Farnsworth
- if ct lets D put up a good rep witness, P can put up a bad one
- routine practice – relevant to show conformity with the habit in a certain occasion 406
- character – general disposition as to a certain trait; habit – regular practice of certain conduct in a certain situation McCormick
- maybe semi-automatic McCormick
- have to lay a foundation that it’s habit; 403 can trump
- habit for drunkenness – no 406 a.n.
- addiction – no b/c it’s not volitional and too prejudicial Pothead v. daredevil
- past assaults to show habit to assault 406 a.n.
- can be routine habit of an organization 406 a.n.
- doesn’t have to be corroborated prior to admission 406 a.n.
- if there were eyewitnesses to the event – can still bring n habit evidence 406 a.n.
- religious practices – not habit 406 a.n.
- defensive use – I always do x so I must’ve done x.– Meyer v. U.S.
- can’t bring in past sexual behavior or offer evidence to prove sexual predisposition 412
- b. except – 412(b)
I. Can it be construed as a HABIT?
J. Sexual predisposition
(1) criminal case (b)(1) – to show person other than D was a source of physical evidence; past sexual behavior with the accused to show consent (or offered by the prosecution); or when const. requires (see C. Clause)
(2) civil case (b)(2) – if fits above and probative outweighs prejudicial;
(3) both – reputation evidence of victim – only if victim places it in controversy
c. there are some notice and requirements 412(c)
- Impeaching a witness’ credibility(truthfulness)
- has to be about truthfulness to qualify under 608 or 609 – otherwise is may covered by 404 or by none of those
- can only bring up specific instances on cross – no extrinsic evidence 608(b)
(1) instances about W’s character
(2) or instances about person that W is a general veracity witness for
- If a witness A’s general veracity is attacked, you can then bring a witness W as to their reputation for truthfulness to rehab
- That witness W can be crossed about specific instances of their own untruthfulness or A’s
- Bias evidence is not a challenge to general veracity and isn’t covered by 608 – so you can’t bring a rehab witness to show veracity – but you can bring a witness about the bias (just ask regular relevance q’s etc)
- A’s testimony conflicts with B’s; neither of their general veracity has been attacked;
(1) If A conflicts with B to the point of basically saying B is full of shit – that’s an attack – not a Q of details or perception – saying “B has to be lying”
- Questioning someone’s memory, their testimonial capacity (eyesight) – not general attacks
- Bringing up prior inconsistent statements – not necessarily an attack – judgment call (if it is, you can bring a rehab witness)
(1) prior inconsistent statement – you can use extrinsic evidence – with certain requirements 613
- Questioning someone on lying about their name and address – attacking veracity (can’t use extrinsic evidence) wind river ranch
- D denying the charge on the stand puts her credibility at issue Alexander
- k. Using a prior conviction as a specific instance 609
(1) Crime of false statement or dishonesty – regardless of punishment 609(a)(2)
(a) of a witness other than the accused – admitted subject to 609(b)
(b) of the accused who has been/is a witness – admitted subject to 609(b)
- includes (allows) misdemeanors
- not petty larceny Fearwell
- grand larceny (big theft by stealth) argue either way
(2) Another crime 609 (a)(1)
(a) of a witness other than the accused
- admitted if crime punishable by death or imprisonment more than a year under law under which they were convicted
ii. subject to 403
(b) of the accused who has been a witness
- if ct determines that the probative value outweighs the prejudicial effect (609(a)(1) balancing test)
- subject to 609(b)
(c) 609(b) time limit
- older than 10 yrs (from date of conviction or release – whichever later) – out unless probative substantially outweighs prejudicial (like a 609(a)(2) crime)
- older than 10 yrs – have to give notice and stuff
(d) (a)(1) generally
- doesn’t include misdemeanors (they can’t come in) Amaechi
- similarity weighs against – adds to prejudice
- veracity argument for non (a)(2) crimes – You didn’t do it? You did it last year!
- The older it is, the less probative
- No crimes since – weighs against (decreases probative value)
- 609(a)(1) – More than 10 yrs old – heavy presumption that it stays out – clear prejudice Sims
(e) when there’s been a pardon, annulment or certificate of rehab 609 (c)
(f) Juvenile adjudications 609(d)
(g) Pendency of appeal 609(e)
(h) How it comes in:
- if it comes in under (a)(1)or(2), ask about it on cross when they’re a witness – can offer extrinsic evidence
- If D has testified – can use a separate witness to bring it in on rebuttal mom and pop spa
- If person hasn’t testified (including D), can’t bring in their convictions
- can use cross and extrinsic evidence to buttress witness’ testimony
- ex. memory is faulty – discrepancy between testimony and what other witnesses/evidence says, bias, etc.
- Q is whether the issue is too collateral
- W denies his reason for bias against D – can call a witness that bad event did happen between W and D harry’s harborside
- Can ask about their bias on cross and also call witness about their bias Abel
- Trying to show memory is faulty by calling witnesses showing specific contradictions – depends on how major they are
L. When your witness is attacked in other ways (other than general veracity)
(1) you were wrong about what movie was on that day – too collateral
(2) is it important enough that it actually shows that W’s memory is faulty?
- M. Is the evidence an assertion?
- Only if it’s intended to be 801 a.n.
- Doing something that just implies a certain belief – not an assertion (taking kids on boat)
- Habitual or automatic conduct – no
- Silence/inaction – difficult – many reasons for it; maybe – when person would protest a statement made in his presence if it weren’t true 801 a.n.
- If not, not excluded as hearsay 801
- not hearsay = relevant for the mere fact that it was made or heard, regardless of it’s truth or falsity, and tends to establish an ultimate fact in the case
- may be offered to show: actor’s beliefs, speaker’s state of mind, hearer’s state of mind, if relevant; operative legal facts; to show hearer had knowledge, was on notice, had motive; to show association between parties Day;
- info possessed by hearer can bear on their good faith, reasonableness, voluntariness of conduct, reasonable apprehension of danger in self defense
- to show circumstantial evidence of declarant’s state of mind if relevant (assertions of feelings = hearsay; statements that imply state of mind – not)
- statements or manifestations that someone is nuts
- to prove declarant’s knowledge of certain reality (see notes)
- to prove X is alive b/c x made a statement
- 5 req’s
N. If so, is the evidence offered for the truth of the matter asserted (does the statement have to be true to be probative?)?
a. Offered for another reason – not hearsay 801
O. If so, is the statement within an exemption from or exception to the hearsay rule?
P. If the statement is not admissible as a traditional exemption or an exception to the hearsay rule, it is admissible under the catch-all exception (803(24) or 807)?
(1) circumstantial guarantees of trustworthiness equivalent to those underlying other exceptions
(2) offered as evidence of material fact (not for impeachment)
(3) more probative on the issue than other reasonably available evidence
(4) the general purpose of the rules and the interests of justice will be served
(5) sufficient notice of intent to use
- Good ex – Dallas County – old newspaper case about 50 yr old lightning strike
- Won’t be used when the declarant or other evidence is available
- See outline
- Is there any OTHER REASON why it shouldn’t be admitted?
- a. Too PREJUDICIAL?
- Probative value substantially outweighed by danger of unfair prejudice, confusion of issues, misleading jury or undue delay, waste of time or needless cumulative evidence 403
- a. Too PREJUDICIAL?
Q. If not an exception or exemption – hearsay – inadmissible 802
R. In a criminal prosecution, is the admission of the hearsay statement forbidden by the Confrontation Clause or required by the Due Process Clause?
(a) unfair prejudice – undue tendency to suggest decision on an improper basis, commonly an emotional one 403 a.n.
- Balance – probative value and need for the evidence vs. harm likely to result from admission 403 a.n.
(a) consider availability of other means of proof 403 a.n.
(b) consider the probably effect of a limiting instruction 403 a.n.
(c) How unique is it? (less unique: less probative and more misleading, more prejudicial) Adamson
(d) Evidence that tends to ID D has greater risk of prejudice than stuff about the crime Adamson
(e) When evidence is equally consistent with existence or nonexistence of a fact sought to be proven – should be excluded (ex. non-unique item) State v. Brantley
(f) Can’t be that the evidence and the fact sometimes or often go together but that they most usually do or it’s misleading State v. Stone (condoms in wallet and incest)
(g) How unique is the foundation – how remote is it – how well can you tie the evidence to the events?
(h) How much are we willing to rely on the corrective nature of the adversary system to ensure that evidence is given its proper value?
- Are you trying to draw an impermissible inference from circumstantial evidence?
(a) flight – allowed as cir. evidence of guilt
(b) nonflight rarely allowed as cir. evidence of innocence
(c) pre-arrest silence – allowed cir evidence of untruthfulness in self defense
(d) general silence – may be not very probative and prejudicial – be careful
(e) post-arrest silence – not allowed as cir evidence of anything
- 4. Statistical evidence
(a) irrelevant if foundation is faulty (not probative) Collins
(b) too prejudicial if there’s no other support for guilt
(c) be careful about prejudice – awe inspired by math
5. Gross pictures/other pictures
(a) unnecessarily graphic or distorted? – probably out
(1) ex. body with wounds not from death but from autopsy
(b) necessary to convey details of how victim died – in
(1) even if gross, color, or large
(2) enlarged ok b/c jurors can all look during the testimony yahweh ben yahweh
(3) wounds more gruesome than they were in reality?
(c) just to show murder happened – not how – then don’t need a bunch of pictures – cumulative
(d) can be used to show identity of victim, manner of death, murder weapon, any other element of the crime, to corroborate testimony of witnesses about how it happened Yahweh Ben Yahweh
(e) In tort case – can show gross injuries as long as not distorted b/c highly relevant for damages coppertone corpse
(f) Stipulations – you don’t have to go along with stipulation of facts – you can put in your photo of the body or whatever (even if they stipulate cause of death or whatever) yahweh, grassi
- Demonstrative evidence – have to link the evidence to the particular situation (foundation – need to show it was the same type of thing that was used in the crime or it will be misleading)
(a) The more uniquely you can tie evidence to D, more likely it’s not too misleading (bat and hammer under bed)
- Unfair surprise – not a reason to exclude for prejudice – give a continuance 403 a.n.
- b. Waste of time? – especially when evidence is cumulative 403
- c. Tendency to confuse or unduly distract from the main issues? – (probative value outweighed) exclude under 403 McCormick
- d. Is it a subsequent remedial measure? 407
- Was it done subsequent to the injury-causing event?
(a) No – admissible (measures taken prior to event causing the injury can come in even if they occurred after the manufacture or design of the product) 407 a.n.
(1) Yes – who did it?
- Third party – 407 doesn’t bar – but consider 401 (if it’s only relevant to show D was negligent b/c repairs were done subsequent – that’s impermissible conclusion under 407); also 403; 407 a.n.
- By D: go to 2
- Is it offered to prove negligence culpable conduct, a defect in a product, a defect in a product’s design or a need for a warning or instruction? 407
(a) Yes – not admissible 407
(1) offered for impeachment – admissible 407
(2) Offered for purpose like proving ownership, control or feasibility of precautionary measure
- Is there a genuine issue there?
- can only come in if it’s controverted 407
- stays out if the other party makes an admission (of ownership or whatever) 407 a.n.
- ex. showing road contractor put out warning signs so road was within his control 407 a.n.
- Is it evidence of a compromise or offer to compromise? 408
- Is it/was it actually a compromise negotiation?
(a) look at degree of formality
(b) evidence that it was a conscious undertaking to compromise or settle
(c) No – comes in, an admission
- Yes – Does the compromise relate to a claim disputed as to validity or amount?
(a) No – like someone who owes a creditor a certain amt but wants to settle for a smaller amt; admissible 408 a.n.
(b) If you’re unsure, err on the side of admissibility (rule requires express dispute about validity or amount)
- Yes – Is it offered to prove an admission of the claim’s validity (liability) or amount?
(a) No – offered to show bias or prejudice of a witness, to negative a contention of lack of due diligence in presenting a claim, to show an effort to buy off or obstruct a criminal prosecution 408 a.n.
- Yes – inadmissible
(a) completed compromises including compromises with third parties are excluded 408 a.n.
- 5. Unclear – think of the purpose of the law – to promote settlement 408 a.n.
- Is it Payment or an offer to pay medical or similar expenses?
- Furnishing or offering to furnish payment for medical, hospital or similar expenses from an injury?
- Not admissible to prove liability for the injury
- May be made out of compassion – not necessarily probative of liability 409 a.n.
- Only excludes conduct or statements that are part of the act of furnishing, offering or promising payment 409 a.n.
- Is it a PLEA, an offer of a plea, a plea discussion or related statement? 410
- plea of guilty later withdrawn – can’t be used against D who participated in the plea – in a civil or criminal proceeding
- plea of nolo contendere – “
- any statement in a plea discussion w/ a prosecuting attorney that didn’t result in a plea of guilty later withdrawn – “
(a) another statement made in the course of the same plea or plea discussion has been introduced so the statement should be considered in interest of fairness
(b) OR if the statement was made under oath, on record, and in presence of counsel – admissible in a criminal proceeding for perjury or false statement
- h. Liability Insurance?
- Insurance or lack thereof – offered to show that someone was negligent or acted wrongfully? – inadmissible 411
- Offered for another purpose – proof of agency, ownership, control, or bias or prejudice of a witness – admissible 411
- Will it advance the search for truth?
- Is the evidence sufficient?
Remember under hearsay – ask is the person available, is the person testifying – write which rules this applies to
804 – requires that there was an opportunity to cross in the past b/c you don’t have the person there to cross now
801 – if you have the person now, they have to take the stand for it to come in – opportunity to cross now
person is available – can’t use the residual exception