Evidence - Fisher Flashcards
104(A)
ARE THERE PRELIMINARY QUESTIONS OF ADMISSIBILITY?
Preliminary Qs In general. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible [Bourjaily: by preponderance of the evidence]. In so deciding, the court is not bound by evidence rules, except those on privilege.
401
401: Test for Relevant Evidence: Evidence is relevant if:
(a) [probative] it has any tendency to make a fact more or less probable than it would be without the evidence
(b) [material] the fact is of consequence in determining the action
402
Relevant evidence is admissible unless any of the following provides otherwise: the US Constitution; a federal statute; these rules; other rules prescribed by the SC. Irrelevant evidence is not admissible.
104(b)
Are there preliminary questions of conditional relevance? Like is there some intermediary fact/link you need to prove?
104(b) when there is Relevance that Depends on a [contested] Fact. When relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding [Huddleston: by a reasonable jury by preponderance of evidence] that the fact does exist. Court may admit proposed evidence on condition that proof be introduced later.
403
Does probativeness substantially outweigh risk of unfair prejudice?
403: The court may exclude (i.e discretion) relevant evidence if [1] its probative value is substantially outweighed by a danger of one or more of the following: [2] unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence (not only for inflaming content)
105
105: Limiting evidence that is not admissible against other parties or for other purposes. If court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly
407
Subsequent remedial measures (evidence of “later remedies”)
407: Subsequent remedial measures (measures taken that would have made earlier injury/harm less likely to occur)
Not admissible to prove: [1] negligence [2] culpable conduct [3] defect in a product or its design [4] need for a warning or instruction
May be admissible:
For another purpose, such as impeachment, or
Thus, technically these are not exceptions to the rule but examples of where the rule does not apply
if disputed: proving
[1] ownership; [2] control, [3] feasibility of precautionary measures
408
408: compromise offers & negotiations
(a) (1) Furnishing, promising, or offering; or accepting, promising to accept, or offering to accept; valuable consideration in compromising/attempting to compromise; &
(a) (2) conduct or statement made during compromise negotiations about the claim
- Except: when offered in crim case and negotiations related to claim by public office in exercise of its regulatory, investigative, or enforcement authority
(a) Not admissible:
[1] to (dis)prove validity [or invalidity]/amount of disputed claim
[2] to impeach by a prior inconsistent statement or contradiction
(b) May be admissible for another purpose, such as: [1] proving witness bias or prejudice, [2] negating claim of undue delay; [3] proving an effort to obstruct a crim investigation or prosecution
409
409: Offers to pay medical and similar expenses
Furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from injury Not admissible:
To prove liability
411
Liability insurance
evidence a person was or was not insured against liability
Not admissible
[1] to prove whether person acted negligently or otherwise wrongfully
May be admissible
For another purpose, such as
[1] proving a witness’s bias or prejudice
[2] proving agency, ownership, or control
410
410: Pleas, plea discussions, related statements
(a) (1) a guilty plea later withdrawn
(a) (2) a nolo contendere plea
(a) (3) statement made during a proceeding on either of those pleas under FRCrimP 11 or comparable state procedure
(a) (4) statement made during plea discussions with an attorney for prosecuting authority, if discussions did not result in a guilty plea or resulted in later withdrawn plea
Not admissible:
(a) In civil or criminal case, against the Defendant [or prosecution] who made plea or participated in plea discussions
May be admissible
ONLY:
(b)(1) in any proceeding in which another statement made during same plea or plea discussions has been introduced, if in fairness statements should be considered together
(b)(2) in crim proceeding for perjury or false statement, if D made statement under oath, on the record, and with counsel present
404(a)(1):
Prohibited uses of character evidence through the propensity box
404(a)(1): Prohibited uses
evid of a person’s character or character trait
Not admissible
To prove that on a particular occasion the person acted in accordance with the character or trait
404(b)
permitted uses of crimes, wrongs, or other acts (around propensity box)
404(b)(1)
Evidence of a crime, wrong, or other act
Not admissible
(b)(1) to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character
[restates (a)(1)]
May be admissible (b)(2) For another purpose, such as proving [1] motive [2] opportunity [3] intent [4] preparation [5] plan [6] knowledge [7] identity [8] absence of mistake [9] lack of accident
405(b)
character trait as essential element of charge, claim, or defense
405(b): When person’s character or character trait is essential element of charge, claim, or defense, the character or trait may also be proved by relevant specific instances of person’s conduct [in addition to opinion/reputation evid]
406
habit; routine practice
406
evid of person’s habit or an organization’s routine practice
May be admitted
To prove that on a particular occasion the person or org acted in accordance with habit or routine practice
Regardless
Of whether evidence is corroborated, or whether there was an eyewitness
413
413: similar crimes in sexual assault cases
(a) [1] in a crim case, where
[2] D accused of sexual assault
Evidence
(a) D committed any other sexual assault
May be admissible
(a) on any matter to which it is relevant
(b) disclosure requirements
(d) definitions
414
414: similar crimes in child molestation
(a) [1] in a criminal case, where
[2] D accused of child molestation
Evidence (a) D committed any other child molestation
May be admissible
(a) on any matter to which it is relevant
(b) disclosure
(d) def: (1) child under 14
415
415: civil cases
(a) civil case involving: claim for relief based on party’s sexual assault or child molestation
Evidence
(a) party committed other sexual assault or child molestation
May be admissible
(a) as provided in 413 and 414
(b) disclosure requirements
404(a)(2)(A):
(proof of the D’s and Victim’s character in criminal case)
404(a)(2)(A): D’s character
evidence of D’s pertinent trait
May be admitted
[1] in a crim case
[2] by a defendant
405(a)
through reputation or opinion testimony only
If admitted
Prosecutor may offer evidence to rebut it [including calling own character witness in rebuttal to testify to same pertinent trait]
404(a)(2)(B):
404(a)(2)(B): V’s character
evidence of alleged V’s pertinent trait
May be admitted
[1] in criminal case
[2] by a defendant
[3] subject to 412
405(a)
through reputation or opinion testimony only
If admitted Prosecutor may:
(i) offer evidence to rebut it
(ii) offer evidence of D’s same trait [including by calling witnesses]
405(a)
405(a)
When character evid admissible under 404(a)(2)(A)/(B)/(C)
May be proven by Reputation or opinion testimony only [on direct]
On cross-exam of character witness [only]:
May allow questions of specific instances of person’s conduct [to test knowledge basis only]
404(a)(2)(C)
404(a)(2)(C)
evidence of the alleged V’s trait of peacefulness
May be offered
[1] in homicide case
[2] by prosecution
Only to: Rebut [fact] evidence that V was the first aggressor
404(a)(3)
Exception for evidence of witness’ character
404(a)(3)
Evidence of a witness’s character
May be admitted
Under Rules 607, 608, 609
607
any party can impeach witness
607: Any party, including the party that called the witness, may attack the witness’s credibility.
608(a):
witness’s character for (un) truthfulness with reputation/opinion evidence
608(a)
testimony about
[1] witness’s reputation for having a character for truthfulness or untruthfulness; or
[2] testimony in the form of opinion about that character
May be admissible
To attack or support a witness’s credibility
But order matters:
Evidence of truthful character admissible only after witness’s character for truthfulness has been attacked
608(b):
prohibition of extrinsic evidence to prove specific instances
608(b): extrinsic evidence
Not admissible
To prove specific instances of witness’s conduct to attack/support witness’s character for truthfulness
Except for
Criminal convictions under 609
608(b): witness’s character for (un)truthfulness with specific instances of conduct on cross
608(b) specific instances of a witness’s conduct
May be inquired into
on cross-exam [only, of principal witness or character witness] If probative of character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about [principal witness]
