Evidence - Trocolli Flashcards
1
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Rule 103(a) - Objections
A
The objection must be timely, at the time the evidence is being introduced, and it must be specific.
When a party objects to introduction evidence and is sustained, the proponent makes an offer of proof to show the judge what the evidence entails so that the issue is preserved for appeal. The Appellate Court needs a basis upon which to base its opinion. You approach the bench to do it. You only need an offer of proof if you lose.
2
Q
Rule 105 - Limiting Instructions
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If a court admits evidence but only for a particular purpose, the jury can give a limiting instruction. A judge MUST give a limiting instruction if it is requested.
3
Q
Interlocutory Appeal
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At trial you can pause the trial and give the specific question to the appeals court - usually for a motion to suppress - and you can have the appeals court rule on it and then send it back down with its answer.
4
Q
Rule 403 - Balancing for Admission
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“The Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Unfair means that the evidence has a tendency to lead jurors away from their duty to weigh the facts under the legal standards supplied by the judge.
5
Q
Rule 407 - Subsequent Remedial Measures
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subsequent remedial measures
6
Q
Rule 408 - Settlement Negotiations
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settlement negotiations.
For Rule 408 to apply, the disagreement must have matured to a claim.
The statement can be conversations regarding settlement that is facilitated by party representatives.
7
Q
Rule 409 - Offers to pay Medical Expenses
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Offers to pay medical expenses, actual payment of medical expenses. This protects ONLY the offer and actual payment of medical expenses, not other comments that occur during that discussion.
These discussions can take place between party representatives and still be covered.
8
Q
Rule 410 - Plea Bargaining
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Plea bargaining:
(1) The statement must be to a prosecutor
Evidence may not be used to show bias. Statements made during a plea bargain may ONLY be admitted to complete partial disclosures that the defendant may make and in some perjury prosecutions.
9
Q
Rule 411 - Liability Insurance
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Liability Insurance
Evidence that a party is insured is not admissible to show negligence or other wrongful conduct, but is admissible to show a witness’s bias, proving ownership, or control.
10
Q
Rule 402 - Rule of General Admissibility
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Rule of General Admissibility When Relevant
Some relevant evidence is not admissible if the Constitution, federal statute, the Rules, or a Supreme Court ruling says otherwise.
11
Q
Rule 401 - The Test for Relevance
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Test for Relevance:
(1) Makes a fact more or less probable, and
(2) the fact is of consequence in determining the action.
The evidence doesn’t have to be directly relevant to a material fact.
Generally, negative evidence is not relevant.
12
Q
Rule 407 - Subsequent Remedial Measures
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What Does the Rule Cover?
(1) “Measures” that would have made an earlier injury or harm less likely to occur;
(2) That are “subsequent” to an earlier injury or harm;
(3) That are offered to prove liability, eg – Negligence; Culpable conduct; A defect in a product or its design; or – A need for a warning or instruction.
If admitted for another purpose (other than to impeach), it MUST BE A CONTESTED ISSUE
13
Q
Rule 408 - Compromise and Offers to Compromise
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NOTE: IMPEACHMENT IS NOT AN ACCEPTABLE PURPOSE UNDER 408
Requirements:
(1) There must be a disputed claim, and
(2) the statements must be made during a negotiation.
Evidence of a negotiation can be used to show bias - it would be relevant to the biased witness’s truthfulness, not to the merits of the case.
IF negotiations involved a government actor, then the statements may be offered in a criminal case.
14
Q
Rule 409 - Offers to Pay Medical Expenses
A
What Does Rule Cover?
• Furnishing, promising or offering to pay
• Medical, hospital or similar expenses
– No “claim” necessary
– No “compromise negotiations” necessary
– Rule only covers the offer to pay or the furnishing of medical expenses, not any other statements that were made contemporaneously with the offer.
Evidence is excluded when offered to prove liability for the injury
15
Q
Rule 410 - Criminal Plea Bargaining
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What Does Rule Cover? (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding • on either of those pleas under Federal • Rule of Criminal Procedure 11 or a • comparable state procedure; or (4) a statement made during plea • discussions with an attorney for the • prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
REMEMBER:
-Only bars statements when plea bargaining fails
-Bars admission in both criminal and civil cases
- It cannot be used for any purpose against the defendant, even to impeach him/her
410(a)(4) - discussions which result in a guilty plea are admissible
16
Q
Rule 410 - When does Plea Bargaining Occur?
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It’s A Two-Part Test
• Defendant had an actual subjective expectation of negotiating a plea
• The expectation was reasonable given the totality of the objective
17
Q
Rule 411: Liability Insurance
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“Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as
• proving agency, ownership, or control.”
Always remember who this is being offered against - evidence that a non-party is insured or not is admissible.
18
Q
Rule 601 - Rule Favoring a Witness’s Competency
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Basic Rule Favoring Competency/ State Claim, State Law
In a civil proceeding governed by state law, state law determines whether the witness is competent.
19
Q
Rule 605 - Judge’s Competency as a Witness
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A judge is incompetent to testify at a trial over which s/he is presiding
A party need not object to preserve the issue
20
Q
Rule 606(a) - Juror’s Competency as a Witness at trial
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A juror is incompetent to testify at a trial in which s/he is the fact finder.
This requires and objection be made, but the objection can be made out of the presence of the jury.
21
Q
Rule 602 - Need for Personal Knowledge
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There must be evidence enough to support a finding that the witness does have personal knowledge. This evidence can be the witness’s own testimony.
22
Q
Rule 603 - Requirement that the witness take an Oath or Affirmation
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The witness need only prove that s/he understands the importance of being truthful - it must create the basis for a perjury charge.
23
Q
Rule 604 - Interpreter’s Oath or Affirmation
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The interpreter has to give a similar oath or affirmation as a witness
24
Q
Rule 611 - Mode and Order of Examining Witnesses & Presenting Evidence
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(1) The Court controls how witnesses are examined.
(2) The Scope of Cross cannot go beyond the scope of Direct and matters affecting credibility, though the court may allow questions beyond the scope
(3) Leading Questions are allowed only on cross or on direct when the witness is hostile or an adverse party.
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Rule 614 - The Court's Calling and Examining a Witness
The court can call a witness on its own, or at one party's request.
Each party is entitled to cross-examining the witness
The court may examine any witness, regardless of who called him/her.
Objections to not need to be timely - they can come the next time the jury is not there.
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Rule 612 - Refreshing a Witness' Memory
When a witness uses a document to refresh his or her memory, s/he testifies from a "refreshed memory."
Opposing party is entitled to see the document, cross-examine the witness about it, and introduce the "refresher" into evidence.
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Rule 612 - Method for Refreshing a Witness’s Memory
Establish that the witness does not recall the answer to the question.
Describe the writing she wishes to use to refresh the witness’s memory and ask if that writing would refresh the witnesses recollection.
Show the writing to the witness and take it back
Ask whether the document has in fact refreshed the witnesses memory
Either before or during this process, the attorney must be sure to give the opposing counsel a copy of the writing.
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Four Competencies to Testifying
Narration (incapable of speaking)
Understand importance of telling truth
Memory
Perception
A witness completely lacking any of these capacities cannot testify in court. Being merely deficient in one of these capacities does not make a witness ineligible to testify.
-The Law presumes the W has all 4 capacities
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Rule 607 - Who May Impeach a Witness
Any Party
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Collateral Matter
Relevant to the Case SOLELY because it is used to impeach a fact witness.
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Non-Collateral Matter
proves a fact in consequence other than impeachment. If a piece of evidence both proves a fact of consequence and impeaches a witness.
32
Rule 613 - A Witness's Prior Statements
Don't have to show the prior statement to the witness first, but must show to adverse party upon request DOES NOT HAVE TO BE ADVANCE NOTICE/INSPECTION
For prior inconsistent statement, note that if it just leaves something out that was there before - but the rest is still there - that’s not necessarily inconsistent.
Extrinsic evidence allowed if inconsistency is non-collateral or if justice so requires - opposing party must have an opportunity to examine the witness about the prior statement.
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Rule 404
Character Evidence; Crimes or Other Acts
| No propensity evidence; exception for witnesses
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Rule 608 - A Witness's Character for Truthfulness or Untruthfulness
A witness's credibility can always be attacked by character-witness testimony that a person has an untruthful character by testifying that the person has a (1) reputation for dishonesty, or (2) the character witness has formed the opinion that the fact witness is dishonest.
On cross, specific instances of honest/dishonest conduct may be revealed.
Evidence of a witnesses truthful character may only be revealed if the witness's character for truthfulness has been attacked.
Remember the 608(b) makes it discretionary: “[T]he court MAY, on cross-examination, allow [specific instances of a witness’s conduct] to be inquired into if they are probative of the character for truthfulness or untruthfulness . . .”
No extrinsic evidence allowed UNLESS it is for 609, evidence of a criminal conviction; or it is relevant in some way other than to prove the witness's character.
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Rule 609 - Impeachment by Evidence of a Criminal Conviction
You can only ask about prior convictions, but you can’t ask about specific details of the felony - not even on cross.
the conviction must have been:
(1) a felony
(a) for non-defendant witnesses: it MUST be included, subject to rule 403
(b) for a defendant-witness, the probative value of the evidence must outweigh its prejudicial effect to the defendant. (reverse 403)
(2) the conviction involves dishonesty:
REMEMBER: Evidence of crimes involving dishonesty are automatically admitted - there is no balancing test!
LOOK OUT FOR 10+-year-old convictions!
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Rule 609(d) - 10 Year Old + Crimes
Must have been sentenced or released 10 years ago, whichever is later.
Only way to admit this evidence is if the probative value substantially outweighs the prejudicial effect under 609(b)
The proponent must give notice
37
Rule 610 - Religious Belief and Opinions
Religious Belief and Opinions cannot be used to question the credibility of the witness.
It IS allowed for other purposes, however.
38
Character Witness Summary
Must relate to a witness
Must relate to truthfulness
Reputation or opinion evidence on direct Cross-examination on specifics
No extrinsic evidence of specifics UNLESS character is an element of the crime (rare)
Testimony on good character only after character attacked - judge must give a limiting instruction when asked.
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Rule 405
Method of Proving Character
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Rule 406
Habit
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Rule 412 - Rape Shield
Only for cases involving alleged Sexual Misconduct.
Cannot use past sexual acts to show a predisposition to having sex
EXCEPTIONS:
CRIMINAL CASES:
You can use this evidence when: (i) showing someone other than the defendant was the source of the physical evidence, (ii) the past interacts with the defendant are used to support a claim of consent, (iii) the evidence is so crucial that its exclusion would be unconstitutional.
CIVIL CASES:
The evidence can be admitted only if:
(a) the evidence's probative value substantially outweighs the danger of harm, or (b) if the victim places his/her reputation into controversy.
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Rule 413 - Defendant's Tendency to Commit Sexual Assault (Criminal Case)
You can admit evidence of past sexual assaults for any relevant purpose. The prosecutor must give the defendant notice of his or her intent to admit the evidence.
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Rule 414 - Defendant's propensity to molest children (criminal case)
You can admit evidence of past sexual assaults against children for any relevant purpose. The prosecutor must give the defendant notice of his or her intent to admit the evidence.
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Rule 415 - Defendant's propensity to molest children/commit sexual assault (civil case)
You can admit evidence of past sexual assaults for any relevant purpose. The prosecutor must give the defendant notice of his or her intent to admit the evidence.
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Rule 404(a)(2)
Mercy Rule
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Rule 104
Preliminary Questions
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Rule 802 - The Rule Against Hearsay
General Ban on Hearsay
| Hearsay is inadmissible unless a federal statute, these rules, or Supreme Court rulings provide otherwise.
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Rule 801(d)
Statements that are NOT Hearsay: Prior statements by witness/opposing party statements
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Rule 804
Hearsay Exceptions When Declarant is Unavailable
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Rule 803
23 Exceptions to Hearsay regardless of whether the declarant is available
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Rule 805
Hearsay Within Hearsay
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Rule 404(a)(2) - The Mercy Rule
Only applies in criminal cases. The “mercy rule” gives Ds a chance to present as complete defense as possible:
◦ The defendant can introduce evidence of his character on traits pertinent to the defense.
◦ The defendant can also introduce evidence of the V’s character on pertinent traits.
D must present character evidence 1st for rule to apply.
Rule only applies to Defendants and Victims. See 404(a)(3).
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The Rebuttal to the Mercy Rule
If the D offers evidence of his own character, the prosecution can rebut it by offering evidence on the same trait of D.
◦ Prosecution can’t use this as opportunity to introduce evidence about the V’s character. (Parallels R. 608: can’t introduce truthfulness until character is attacked.)
If the D offers evidence of the V’s character, the prosecution can rebut it by offering evidence on that trait of the V’s character and by offering evidence on the same trait in the D.
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The Rebuttal to the Mercy Rule - Homicide Cases
If the D offers any evidence (it can be character evidence, or an eyewitness) that the V was the first aggressor, the prosecution may offer evidence that the V had a peaceful character.
IE, prosecutor does not have to wait for D to introduce character evidence.
◦ Eg, if eyewitness testifies that V struck D first (which is not character evidence), rule allows prosecutor to present evidence that V had a peaceful character.
Rationale = dead Vs can’t talk.
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405 (Ds & Vs) vs. 608 (Ws)
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Rules in both establish identical process for presenting character evidence.
But 608(a) governs a W’s propensity to lie or tell truth.
405(a) governs situations in which 404(a)(2) allows parties to make propensity arguments. That is, proof of a D’s or V’s propensity in criminal cases.
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Other similarities:
Specific instances under 405(a) only allowed on cross-examination.
◦ Note exception if trait is an element. 405(b)
Specific instances must be relevant to the pertinent
character trait.
Must have good faith belief to ask question. No extrinsic evidence allowed.
Rebuttal character witnesses allowed. Limiting instruction may be appropriate.
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Habit is
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Specific conduct
• In distinctive situation
• On regular basis
• With lack of moral overtones
• More probative than propensity evidence
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Rape Shield - Permissible Purpose
The Judge will allow the D to admit evidence that Cindy had sex with her boyfriend on the day of the alleged rape. This would be admitted to go to prove that he was not the person who had sex with Cindy. This is all going to happen in Limine.
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Rape Shield: Civil Cases
Evidence of victim’s other sexual behavior or sexual predisposition excluded UNLESS the probative value of that evidence substantially outweighs the danger of harm to any victim and of unfair prejudice to any party
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801(d)(1)(A): Prior Inconsistent Statement by Witness only happens if:
Declarant testifies at trial
2. Declarant/witness is subject to cross
3. Prior statement is inconsistent with courtroom testimony
4. Prior statement given under penalty of perjury
5. Prior statement given during trial, hearing, deposition, other proceeding
NOTICE: This is not just to impeach, but for the substantive truth of the statement.
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801(d)(1)(B): Prior Consistent Statement by Witness requires:
Declarant testifies at trial
2. Declarant/witness is subject to cross
3. Prior statement is consistent with courtroom testimony
4. Offered to rebut charge of fabrication
5. Prior statement made before motive to lie arose
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801(d)(1)(C): Prior Identification by Witness requires:
Declarant testifies at trial
2. Declarant/witness is subject to
cross
3. Prior statement was identification of person
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Rule 803(5) - Recorded Recollection: Six Foundational Elements
There is a Record
Witness made or adopted that record
Witness once had personal knowledge
Witness made or adopted the record when that knowledge was fresh
Witness testifies that info was accurate
Witness has forgotten
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804(a) - Unavailability for Purposes of 804(b)
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Privilege
Refusal to testify
Lack of memory (real or feigned)
Death or illness
Absence (Not in jurisdiction, thus cannot be subpoenaed)
Proponent must show unavailability
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Types of "Interest" in 804(b)(3) - Hearsay Exception - Statement Against Interest
Pecuniary or proprietary interest
– Civil or criminal liability
– Invalidates the declarant’s claim
Test = no reasonable person would have made the statement unless it was true
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Forfeiture By Wrong-doing 804(b)(6)
1. Declarant unavailable
2. Other party engaged or acquiesced
in wrongdoing
3. Intended at least in part to cause unavailability
4. Wrongdoing caused unavailability
Under R. 104(a), Government must prove wrongdoing by a preponderance of the evidence, even if there is not other available exception.
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Rule 801(d)(2)(E) - Statement by a Co-Conspirator - What does the proponent need to establish?
1. The statement must be made by a conspirator.
[Note: For there to by a "conspiracy" there needs to be some agreement to use joint efforts to reach a common goal.]
2. The statement must occur “in furtherance of the conspiracy.”
3. The statement must also occur during the conspiracy.
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Statements against Interest that implicate two people - The Bruton Problem
Bruton v. United States, 391 U.S. 123 (1968): In a joint trial of co-defendants, when the prosecution introduces an admission or confession made by one defendant that implicates another defendant, and the declarant opts to not testify at trial, the trial court must sever the trials or order a deletion of references to the other defendant. When the statement is redacted, it is not sufficient merely to insert a blank or other substitution for the name of the defendant; the redaction should not indicate the defendant’s involvement in any manner.
BUT:
Severance or redaction is not required if the declarant testifies at trial because the defendant is given the opportunity to cross-examine the co-defendant. Nelson v. O’Neil, 402 U.S. 622 (1971).
-The rule also does not apply if the confession is offered for a limited purpose other than to prove guilt. Tennessee v. Street, 471 U.S. 409 (1985).
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Residual Exception - Rule 807 - Necessary Conditions
The judge must determine that the proffered statement has sufficient guarantees of trustworthiness.
The statement must be the most effective way to prove a fact in consequence, despite reasonable efforts to find otherwise admissible evidence.
The proponent of the evidence must give notice of her intent to use the statement at trial.
Generally, "near miss" evidence does not meet this exception (i.e. 19 year old writing).
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Sixth Amendment: 5 Principles
1. All evidence must satisfy the FRE. Check this first! Confrontation doesn’t get evidence in, it keeps it out!
2. Sixth Amendment applies only to evidence offered against the accused in a criminal case.
3. If a statement is non- testimonial, it satisfies the Sixth Amendment.
4. If a statement is testimonial, the accused must have a chance to cross-examine the declarant.
5. If the accused can’t examine at trial, then the prosecutor must establish (a) unavailability & (b) prior opportunity to examine.
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What statements are "testimonial"? How to assess.
1) Formal proceeding/solemnity
2) Government involvement
3) Statement made to prove a fact related to a crime
4) Was there a “targeted individual” at the time the statement was made
Essentially, is the statement that declarant reasonably would expect to be used prosecutorially?
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Rule 201: Judicial Notice - The Basics
(1) Judicially noticed facts must not be subject to reasonable dispute. R. 201(b).
(2) They must satisfy that general standard by one of two routes:
(a) they are generally known within the trial court’s territorial jurisdiction, or
(b) they are capable of accurate and ready determination by checking sources whose accuracy cannot reasonably be questioned.
Court may take judicial notice on its own initiative or if a party requests it. R. 201(c). (rare for the court to take notice on it’s own)
- When this happens the parties have a "right to be heard."
- Courts may take judicial notice at any time, even on appeal, UNLESS it's on appeal in a criminal case - the jury isn't bound by judicially noticed facts in criminal case. R. 201(d).
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Rule 701 - The Opinion of Non-Experts
Lay witness opinion must be:
A. Rationally based on witness's perception
B. Helpful to the jury
C. NOT based on scientific, technical, or other specialized knowledge
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Rule 702 - Testimony by Expert Witnesses
1. Evidence based on scientific, technical or other specialized knowledge
2. Expert must be qualified
3. Reliable principles and methods in the field
4. Technique reliably applied to the facts
5. Evidence fits the facts (helpful to fact finder)
6. Evidence must satisfy R. 403’s general balancing test (the opponent has to raise a 403 objection, however).
Bottom Line: The science used must be reliable and it must be reliably applied to the case.
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Rule 703 - The Factual Basis of an Expert's Opinion
Expert's opinion can be based on:
1. Personal knowledge or facts made aware of
2. Evidence presented at trial
3. Inadmissible facts or data if they are the type reasonably relied upon by experts in the particular field, including hearsay (established through the proponent on foundation)
These foundations can be disclosed when: the probative value substantially outweighs their prejudicial effect, or the opposing party asks on cross.
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The "Special Powers" of an Expert
1. May remain in the courtroom if his testimony requires him to hear evidence. R. 615(c) (rule on witnesses).
2. Is only witness who can certify document as a learned treatise. R. 803(18).
3. May state conclusions based on his special training or experience.
4. May rely on wide range of data, including hearsay and other inadmissible evidence, so long as experts in the field reasonably rely upon that type of information.
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Expert's Disclosure of Inadmissible Information
Default rule: expert may rely on inadmissible info, but may not disclose it to the jury.
Opposing party may ask expert to disclose the inadmissible evidence (no balancing) (R. 705) OR
A Court may allow disclosure by proponent if the probative value would substantially outweigh its prejudicial effect (R. 703)
-No balancing: testimonial hearsay against criminal D = inadmissible unless satisfies Confrontation Clause. (Williams v. Ill.)
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Evidence Coming through Expert's Disclosure of Basis of Opinion under Rule 702/3/5
NOT coming in for the truth of the matter asserted, thus, not hearsay.
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Evidence Coming through Expert's Disclosure of Basis of Opinion under Rule 803(18) - Learned Treaties
Allowed for the Truth of the Matter Asserted
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What does Attorney-Client Privilege Cover?
The privilege encompasses “confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.”
The existence of the attorney-client privilege, therefore, depends on the presence of five factors:
1 A client or representative
2 An attorney or her representative
3 A communication between those two parties
4 Confidentiality of the communication and
5 A purpose of facilitating professional legal services to the client.
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Possible Objections to Lay and Expert Testimony
1. Rule 702: it is too conclusory and therefore doesn’t assist jury.
2. Rule 704: although rule allows testimony on ultimate issue, here language invades province of fact- finder too much.
3. Rule 403: probative value of evidence is substantially outweighed by danger of unfair prejudice.
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Spousal Testimonial Privilege
Applies only in criminal trials or grand jury proceedings – not civil cases
Applies only while two are married
While married, privilege covers info obtained before marriage
Privilege shields any information: don’t have to testify at all!
Witness spouse controls the privilege (this is its weakness)
Exceptions exist, eg intra-family crime or spouses as co-defendants
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Spousal Confidential Communication
Applies to all judicial proceedings
Survives termination of marriage
Both spouses control the privilege - so one spouse can prevent the other from testifying.
Narrower than Testimonial privilege
– Only protects communications during the
life of the marriage
– Only protects communications made in confidence
– Only protect communications between spouses
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Psychotherapist – Patient Privilege
It is broad: applies to psychiatrists, psychologists, and licensed social workers.
No balancing of need for evidence over patient’s privacy interest.
– Some courts may allowing piercing the privilege if there is a compelling need
Communications must be for purposes of diagnosis or treatment of a medical or emotional problem.
Crime-fraud exception may apply – check Circuit law
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Clergy - Communicant Privilege
Applies to (1) communications, (2) made in confidence, (3) by one seeking spiritual counseling, (4) to a member of the clergy of any religion, (5) as long as intent to seek spiritual guidance is legitimate, and (6) the communicant reasonably believes the communications will remain confidential.
Communicant controls the privilege.
Privilege can be waived if third party is
present.
– Privilege may still apply for group counseling sessions (nobody can waive unless everybody waives!)
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What Does the Best Evidence Rule Apply To? Rule 1001(a), (b), (c)
Only to writings, recordings, and photos.
But, very broad. Any type of document, data compilation, recording, still photo, video will fall w/i rule.
See definitions in R. 1001.
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What Does the Best Evidence Rule Require? Rules 1002 & 1003
Production of the original or
Production of a duplicate “unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.” R. 1003.
– Eg, copy of video that is altered. Duplicates that enhance or make it easier to view are ok as long as it is still authentic and not unfair.
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When Does the Best Evidence Rule Apply? Rule 1002
When trying to prove the content of a writing, recording, or photo.
EG, when the document has independent legal significance like a contract; or when disclosing content is necessary to prove some fact.
BER can be avoided if can prove fact in issue independently of any documents.
– Proponent of fact can rely on other evidence.
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Exceptions to the Best Evidence Rule - Rule 1004
Original is not required and other evidence allowed if:
1. Original is lost or destroyed and no bad faith by proponent; or
2. Original can’t be obtained by any available judicial process; or
3. Opponent has control of the original, was notified that original was needed, and fails to produce it; or
4. Writing, recording, or photo is not closely related to a controlling issue (i.e, collateral).
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Best Evidence Rule - Summaries - Rule 1006
Summaries of writings, recordings, or photos can be used where the content is voluminous and records can’t be conveniently examined in court.
Underlying records must be made available to opponent for examination and copying and must be produced in court if so ordered.
Summary can be in any form, including chart or calculation.
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Under the Federal Rules of Evidence, the original writing isn't required if
A duplicate is available, and there are no questions of authenticity or fairness: 1003
The original has been lost/destroyed, without bad faith: 1004(a)
The original is in the opponent’s possession & once notified, fails to produce it: 1004(c)
The opponent has admitted the contents by testimony, deposition, or writing: 1007
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Rule 101 - Where the Rules Apply
Only to the Federal Courts and only during trial
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Rule 104 - Preliminary Questions
104(a) - Judge rules on disputes
104(b) - Judge acts as a screen - when relevant depends on the existence of a fact, the judge allows the jury to hear it if s/he finds that any reasonable jury could find the fact exists. UNLESS it's a policy issue (Chapter 4 Rules)
Rules of Evidence DO NOT APPLY to preliminary questions of fact
The standard is a mere preponderance of the evidence - so even if a criminal jury rejected it, it can still come in.
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Rule 106 - Rule of Completeness
1) Rule allows adverse party to introduce other part of the writing or statement AS SOON AS the opponent offers the first portion
2) Rule only applies to writings and recorded statements
3) Some courts allow oral statements under 611(a)
4) Circuit Split: Can otherwise inadmissible evidence be admitted through 106?
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Rule 404 - Character Evidence Not Admissible to Prove Conduct; Exceptions
For defendants, in homicide cases, for witnesses, and for reasons other than propensity.
Propensity Evidence is bad, but there are exceptions:
FOR DEFENDANTS:
A Defendant in a criminal case may:
(1) offer evidence of a positive personality trait
(a) BUT if s/he does, the prosecutor may offer evidence to rebut that.
(2) offer evidence of the alleged victim's bad character
(b) BUT if s/he does, the prosecutor may present evidence (i) disproving that assertion, and (ii) that the defendant had that same character trait attributed to the victim.
IN A HOMICIDE CASE ONLY:
The prosecutor may rebut ANY evidence suggesting that the victim was the first aggressor by admitting evidence of the victim's peacefulness.
FOR WITNESSES:
-Using 607, 608, 609 to impeach is ok.
The Defendant's CRIMES, WRONGS, and OTHER ACTS:
can be used to prove motive, preparation, plan, knowledge, etc. This, however, requires notice.
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Rule 405 - Methods of Proving Character
Ask: Does 404 allow this evidence?
Then, how can it come in?
405 says, Character witnesses can give: (1) reputation evidence, and (2) opinion evidence.
Direct: No specific instances
Cross: Specific instances ok
IF proof of character is necessary to the case (child custody, negligent entrustment, defamation cases, and entrapment), then specific instances proof allow on direct.
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Rule 406 - Habit; Routine Practice
Specific, repeated responses to a particular situation or stimulus.
A person can testify about his/her own habits.
Generally, there is no judgement issues.
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Rule 501 - Privilege
The common law governs privileges
In Civil Cases, the state's privilege laws govern
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Rule 502 - Attorney-Client Privilege; Work Product
Inadvertent disclosure/waiver can be undone if:
(1) the holder acted reasonably to prevent it, and
(2) made reasonable efforts to promptly rectify the disclosure.
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Rule 606(b) - Juror's Competency as a Witness during an inquiry into the validity of the verdict
Jurors cannot testify about his or her mental process, statements, or anything else concerning how the jury reached its conclusion. BUT a juror is able to testify about outside influences on the jury's decision, and about mistakes on the verdict form.
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Rule 615 - Excluding Witnesses
At a party's request, the court MUST order witnesses excluded from hearing any other witness's testimony. OR the court may do so on its own.
Who can't be excluded:
(1) a party who is a natural person
(2) officers or employees of a party
(3) persons essential to the defense as a lawyer's assistant.
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Rule 704 - Opinion on the Ultimate Issue
Opinions on the ultimate issue are not automatically objectionable.
Experts in criminal cases cannot state outright whether the defendant did or did not have a culpable mental state at the time the crime was committed. Though, s/he can say whether the defendant acted consistent with someone who did/didn't.
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Rule 705 - Disclosing the Facts or Data Underlying an Expert's Opinion
An expert's testimony does not have to include the basis for his/her opinion. But the basis must be given if asked for on cross-examination.
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Rule 801 - Hearsay Defined
- A declarant must be a person
- A statement must be an assertion, either verbal, written, or non-verbal
- Hearsay is:
(1) A declarant's out of court statement
(2) Being offered for the truth of the matter asserted.
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Rule 806 - Attacking or Defending the Credibility of a Hearsay Declarant
Any of the Article 6 methods may be used against the hearsay declarant - regardless of whether s/he takes the stand and regardless of whether s/he has had the opportunity to explain or deny the statement.
The party opposing the hearsay statement may call the declarant as a witness, and examine him/her as though s/he is on cross.
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Rule 901 - Authenticating or Identifying
The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it to be.
There does not need to be absolute proof of a finding. The proponent need only prove that a reasonable jury could so find.
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Rule 901 - Authenticating or Identifying
| Voice Recognition
ANYONE who is familiar with a person’s voice may identify that voice in court. The witness may develop that familiarity “at any time.”
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Rule 901 - Authenticating or Identifying
| Handwriting
Rule 901(b)(2) allows a lay person who is familiar with another person’s handwriting to identify that handwriting in court. Familiarity with the handwriting, however, must develop outside of litigation; a lay witness cannot authenticate another person’s handwriting after studying it to prepare for trial.
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Rule 902 - Self-authenticating Items
This is an exhaustive list of 12 items that are self-authenticating. Not on the list, must be authenticated by further proof.
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Rule 1001-1008 - The "Best Evidence" Rule
If a party wants to prove the content of a document, then the party should produce the document itself.
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801(d) Exemptions - These are not hearsay
Witness's prior statements (including pre-trial ID)
Opposing Party Statements
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Hearsay Exceptions - Declarant must be unavailable
Former testimony
Dying declarations
Statements against interest
Forfeiture
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Hearsay exception requiring the Declarant to appear as a witness
It is NOT hearsay - witness's prior statements
