Evidence Basics Flashcards
FRE 401
Evidence is relevant if it has any tendency to make a fact of consequence more or less probable
FRE 403
A court may exclude relevant evidence if its probative value is substantially outweighted by unfair prejudice, jury confusion, wastes time, needlessly presenting cumulative evidence.
FRE 407
Evidence of subsequent remedial measures is not admissible to prove liability; admissible for other purposes such as impeachment or if disputed, to prove ownership, control or feasibility of precautionary measures
FRE 408
Statements (offers, acceptances and promises) and conduct made after a dispute has matured into a claim during a compromised negotiation (settlement discussion) are not admissible to prove the validity or amount of a claim, disprove the validity or amount of a claim, or to impeach a witness testimony by a prior inconsistent statement or contradiction. EXCEPTIONS: court may still admit statements made during a compromised negotiation to prove a witness’s bias.
FRE 409
Evidence of offering or furnishing or promising to pay for medical, hospital or similar expenses resulting from an injury is not admissible to prove liability
FRE 410
Evidence of the following is not admissible in a civil or criminal case: a guilty plea that was later withdrawn, a no contest plea, a discussion that resulted in a not guilty plea. EXCEPTIONS: def brought up statements made during plea against the prosecutor and fairness and completeness requires introduction of statements made during discussion that could be damaging to the def.
FRE 411
evidence of liability insurance is not admissible to prove liability. Court may admit evidence for another purpose such as proving bias, ownership or control
FRE 601
Everyone is presumed competent to testify as a witness
Four elements of competence
Narration, Perception, Memory, Sincerity
FRE 602
Witnesses may only testify if they have personal knowledge of the matter. Personal knowledge = seeing, hearing,…using at least one of the senses
Personal Knowledge
Memory and perception. Witness perceives event with the senses and has sufficient memory to remember the events.
FRE 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.
FRE 604
An interpreter must be qualified and must give an oath or affirmation to make a true translation. Interpreter does not need to be neutral
FRE 605
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
FRE 606
AT a 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.
FRE 607
Any party, including the party that called the witness, may attack the witness’s credibility.
FRE 608
Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
Primary tabs
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, 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. 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.
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.
FRE 609
Impeachment by Evidence of a Criminal Conviction
FRE 610
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.
FRE 611
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.
FRE 612
Refreshing a witness’s recollection
FRE 613
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).
