Evidence

Question 1

201

Answer 1

Judicial Notice of Adjudicative Facts (201)

1. Timing: notice can be taken at any stage of proceeding
2. Opportunity to be heard: party may be heard on the propriety of taking judicial notice; opponent may be heard even after notice is taken
3. Instructing Jury: if civil case: jury to accept that fact as established criminal:
4. Facts that can be JN:

a. is generally known within the trial court’s territorial jurisdiction; or
b. can be accurately and readily determined from sources who’s accuracy cannot reasonable be questioned

5. How to take notice
   a. court may take judicial notice on its own; or
   b. take notice if a party request it and the court is supplied with the necessary information

• No Judicial Notice for Legislative Facts
o adjudicative facts are the facts of a particular case; and
o Legislative facts are those which have relevance to legal reasoning and the lawmaking process.

Question 2

401

Answer 2

“Test for Relevancy (401)
(all evidence is relevant-unless it is not= low bar)
1. it has any tendency to make a fact more or less probable than it would be without the evidence; and

2. the fact is of consequence in determining the action.
   “

Question 3

402

Answer 3

“Admissibility of Relevant Evidence (402)

1. Relevant evidence is admissible unless any of the following provides otherwise: US Con.; Fed Statute; these rules of Evidence; and prescribed rules by S.C.
2. Irrelevant evidence is not admissible.
   “

Question 4

403

Answer 4

“Exclusion of Relevant Evidence (403)

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
1. unfair prejudice,
2. confusing the issues,
3. misleading the jury, undue delay,
4. wasting time, or
5. needlessly presenting cumulative evidence.
“

Question 5

103

Answer 5

“Rulings on Evidence (103)

Preserving a Claim of Error-

1. Only if the error affects a substantial right of the party AND:

I. if the ruling admits evidence, and the party, on the record:
a. timely objects/moves to strike; AND
b. states the specific ground, unless it was apparent from the context; OR
II. if the ruling excludes evidence, a party then informs the court of its substance by an offer of proof to preserve a claim of error for appeal

2. If the court rules definitively on the record-a party does not need to renew an objection/offer of proof to preserve a claim of error
3. Court may request offer of proof be made in Q&A form
4. Court should do best to prevent jury from hearing inadmissible evidence
5. “Take notice of Plain Error” Court is allowed to even if the claim was not properly preserved.
   “

Question 6

901

Answer 6

“Authenticating or Identifying Evidence
(a) the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Examples:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
“

Question 7

902

Answer 7

“Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified.
(3) Foreign Public Documents. Court may: (A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final certification.
(4) Certified Copies of Public Records.
(5) Official Publications.
(6) Newspapers and Periodicals.
(7) Trade Inscriptions and the Like.
(8) Acknowledged Documents.
(9) Commercial Paper and Related Documents.
(10) Presumptions Under a Federal Statute.
(11) Certified Domestic Records of a Regularly Conducted Activity.
(12) Certified Foreign Records of a Regularly Conducted Activity.
“

Question 8

104

Answer 8

“Preliminary questions (104)

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. Here, Court ONLY bound by privilege rule no others.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
(c) Conducting a Hearing So That the Jury Cannot Hear It if:
1. the hearing involves the admissibility of a confession;
2. a defendant in a criminal case is a witness and so requests; or
3. justice so requires.
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
(e) Evidence Relevant to Weight and Credibility. This rule does not limit “

Question 9

601

Answer 9

“Competency to Testify

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
“

Question 10

602

Answer 10

“Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
“

Question 11

603

Answer 11

“Oath or Affirmation to Testify Truthfully (603)

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
“

Question 12

606

Answer 12

“Juror’s Competence as a Witness (606)
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
(b) During an Inquiry Into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
“

Question 13

605

Answer 13

“Judge’s competence as a witness (605)
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
“

Question 14

611

Answer 14

“Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
“

Question 15

612

Answer 15

“Writing used to refresh a witness’s memory

(a) Scope. adverse party certain options when a witness uses a writing to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If proponent claims writing has unrelated matters, court reviews and has it redacted if confirmed. If part is deleted must preserve objection on the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or–if justice so requires–declare a mistrial.
“

Question 16

1001

Answer 16

Defines writing, record and original

Question 17

1002

Answer 17

Requirements of Original: An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Question 18

1003

Answer 18

“Admissibility of Duplicates (1003)

Admissibility of Dupicates: A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.”

Question 19

1004

Answer 19

“Admissibility of Other Evidence of Content (1004)

An original is not required if:

1. all originals are lost/destroyed (not in bad faith);
2. original cannot be obtained by judicial process;
3. party against who original offered has control of it was put on notice and fails to produce
4. the original is not closely related to a controlling issue

”

Question 20

1008

Answer 20

“Functions of the Court and Jury (1008)

The court determines whether the proponent has fulfilled the factual conditions for admitting evidence under 1004+1005

But in a jury trial, the jury determines–in accordance with Rule 104(b)–any issue about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.
“

Question 21

701

Answer 21

“Opinion Testimony by Lay Witness (702)

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
“

Question 22

702

Answer 22

“Testimony by Expert Witnesses (702)

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
“

Question 23

703

Answer 23

“Bases of an Expert’s Opinion Testimony (703)

An expert may base an opinion on facts/data in the case they personally observed or made aware of if:
1. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject,
2. they need not be admissible for the opinion to be admitted.
a. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
“

Question 24

704

Answer 24

“Rule 704. Opinion on an Ultimate Issue

(a) In General–Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.”

Question 25

705

Answer 25

“Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion

Unless the court orders otherwise, an expert may state an opinion–and give the reasons for it–without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.”

Question 26

607

Answer 26

“Rule 607. Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness’s credibility.”

Question 27

608

Answer 27

“Witness’s Character for Truthfulness or Untruthfulness (608)

(a) Reputation or Opinion Evidence.
a. A witness’s credibility may be attacked or supported by:
i. testimony about the witness’s truthfulness reputation; or
ii. by testimony in the form of an opinion about that character.
iii. Evidence of truthful character is admissible only after the witness’s character is attacked.

(b) Specific Instances of Conduct.
a. Except for a criminal conviction under Rule 609,
b. extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.
c. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
3. (1) the witness; or
4. (2) another witness whose character the witness being cross-examined has testified about.
5. By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
“

Question 28

609

Answer 28

“Impeachment by Evidence of a Criminal Conviction (609)

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

1) If the crime is punishable by death or 1yr+ imprisonment, the evidence is admitted if:
a) Meets rule 403, in civil/criminal in which the witness is not a defendant
b) If It is a criminal case where the witness is a defendant,
i) If the probative value outweighs its prejudicial effect to that defendant
c) For any crime regardless of the punishment, if the court can readily determine that establishing the elements of the crime required proving/ witness admitting a dishonest act or false statement.

(a) If more than 10 years have passes since the witness’s conviction/release the evidence is admissible only if:
a. its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
b. the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(b) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
a. The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or1yr+ imprisonment
b. the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(c) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
a. it is offered in a criminal case;
b. the adjudication was of a witness other than the defendant;
c. an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
i. it is necessary to fairly determine guilt or innocence.
(d) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending.
a. Evidence of the pendency is also admissible.
i. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
1. the witness; or
2. another witness whose character the witness being cross-examined has testified about.
3. By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
“

Question 29

610

Answer 29

“Religious Beliefs or Opinions(610)

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.”

Question 30

611

Answer 30

“Mode and Order of Examining Witnesses and Presenting Evidence (611)

(a) Control by the Court; Purposes. reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.”

Question 31

803

Answer 31

“Exceptions to the Rule Against Hearsay–Regardless of Whether the Declarant Is Available as a Witness (803)

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for–and is reasonably pertinent to–medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by–or from information transmitted by–someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony–or a certification under Rule 902–that a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice–unless the court sets a different time for the notice or the objection.
(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a reasonable time after it.
(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose–unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.
(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage–or among a person’s associates or in the community–concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
(20) Reputation Concerning Boundaries or General History. A reputation in a community–arising before the controversy–concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.
(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.
“

Question 32

801

Answer 32

“Exclusions from hearsay+ definitions (a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).”

Question 33

802

Answer 33

“The Rule Against Hearsay (802)

Hearsay is not admissible unless any of the following provides otherwise:
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.”

Question 34

804

Answer 34

“Exceptions to the Rule Against Hearsay–When the Declarant Is Unavailable as a Witness (804)

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had–or, in a civil case, whose predecessor in interest had–an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
(4) Statement of Personal or Family History. A statement about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
(5) [Other Exceptions.] [Transferred to Rule 807.]
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused–or acquiesced in wrongfully causing–the declarant’s unavailability as a witness, and did so intending that result.”

Question 35

807

Answer 35

“Rule 807. Residual Exception

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.”