Federal Rules of Evidence Flashcards
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
a. it has any tendency to make a fact more or less probable than it would be without the evidence; and
b. the fact is of consequence in determining the action
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
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
Rule 404. Character Evidence; Other Crimes, Wrongs or Acts
character evidence
1. prohibited uses. Evidence of a persons character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait
2. Exceptions for a defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
a. a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
b. subject to limitations in rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may (1. offer evidence to rebut it; and 2. offer evidence of the defendants same trait; and)
c. in a homicide case the prosecutor may offer evidence of the alleged victim’s trait of a peacefulness to rebut evidence that the victim was the first aggressor
3. Exceptions for a witness. Evidence of a witness’s character may be admitted under rules 607, 608, and 609.
Other Crimes, Wrongs, or Acts
1. prohibited uses. evidence of any other crime, wrong, or act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character
2. permitted uses. this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
3. notice in a criminal case. in a criminal case the prosecutor must
a. provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it.
b. articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
c. do so in writing before trial - or in any form during trial if the court, for good cause, excuses lack of pretrial notice
Rule 405. Methods of Proving Character
a. by reputation or opinion. When evidence of a persons character or character trait is admissible it may be proved by testimony about the persons reputation or by testimony in the form of an opinion. on cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the persons conduct
b. by specific instances of conduct. When a persons character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
Rule 406. Habit; routine practice
evidence of a persons habit or an organizations routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness
Rule 602. Need for personal knowledge
A witness may testify to a matter only if evidence is introduces 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.
Rule 701. Opinion Testimony by Lay Witness
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
Rule 702. Testimony by Expert Witness
A witness who is qualified an an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrated to the court that it is more likely than not that
a. the experts 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 experts opinion reflects a reliable application of the principles and methods to the facts of the case
Rule 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible, 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
Rule 801. Definitions that apply to this article; exclusions from hearsay
(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).
Rule 803. Exceptions to the Rule Against Hearsay - Regardless of whether the declarant is available as a witness
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.
