Evidence - Trocolli Flashcards
Rule 103(a) - Objections
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.
Rule 105 - Limiting Instructions
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.
Interlocutory Appeal
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.
Rule 403 - Balancing for Admission
“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.
Rule 407 - Subsequent Remedial Measures
subsequent remedial measures
Rule 408 - Settlement Negotiations
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.
Rule 409 - Offers to pay Medical Expenses
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.
Rule 410 - Plea Bargaining
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.
Rule 411 - Liability Insurance
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.
Rule 402 - Rule of General Admissibility
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.
Rule 401 - The Test for Relevance
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.
Rule 407 - Subsequent Remedial Measures
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
Rule 408 - Compromise and Offers to Compromise
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.
Rule 409 - Offers to Pay Medical Expenses
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
Rule 410 - Criminal Plea Bargaining
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
Rule 410 - When does Plea Bargaining Occur?
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
Rule 411: Liability Insurance
“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.
Rule 601 - Rule Favoring a Witness’s Competency
Basic Rule Favoring Competency/ State Claim, State Law
In a civil proceeding governed by state law, state law determines whether the witness is competent.
Rule 605 - Judge’s Competency as a Witness
A judge is incompetent to testify at a trial over which s/he is presiding
A party need not object to preserve the issue
Rule 606(a) - Juror’s Competency as a Witness at trial
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.
Rule 602 - Need for Personal Knowledge
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.
Rule 603 - Requirement that the witness take an Oath or Affirmation
The witness need only prove that s/he understands the importance of being truthful - it must create the basis for a perjury charge.
Rule 604 - Interpreter’s Oath or Affirmation
The interpreter has to give a similar oath or affirmation as a witness
Rule 611 - Mode and Order of Examining Witnesses & Presenting Evidence
(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.
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.
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.
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.
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
Rule 607 - Who May Impeach a Witness
Any Party
Collateral Matter
Relevant to the Case SOLELY because it is used to impeach a fact witness.
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.
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.
Rule 404
Character Evidence; Crimes or Other Acts
No propensity evidence; exception for witnesses
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.
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!
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
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.
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.
Rule 405
Method of Proving Character
Rule 406
Habit
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.
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.
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.
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.
