Federal Rules of Evidence

Question 1

103: Preserving a Claim of Error

Answer 1

Lists the ways in which a party may preserve their right to appeal because generally appellate courts have extremely limited jurisdiction over evidentiary rulings.

Question 2

105: Limiting Evidence

Answer 2

If the 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.

Question 3

401: Test for Relevant Evidence

Answer 3

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.

Note: The existence of a concession (i.e. a stipulation or confession) does not make evidence regarding that matter irrelevant however it can go to show opposing counsel is only offering it to prejudice the jury.

Question 4

403: Excluding Evidence for Prejudice, Waste of Time, Other Reasons

Answer 4

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

1. Unfair Prejudice
2. Confusing the Issues
3. Misleading the Jury
4. Undue Delay
5. Wasting Time
6. Needlessly Cumulative

Question 5

407: Subsequent Remedial Measures

Answer 5

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

1. Negligence
2. Culpable Conduct
3. Defective Product or Design
4. The need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Question 6

408: Compromises & Negotiations

Answer 6

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Question 7

409: Offers to Pay Medical Expenses

Answer 7

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

However, it may be offered for any other purpose besides liability.

Question 8

410: Plea Bargaining

Answer 8

Evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

1. A guilty plea that was later withdrawn;
2. A nolo contendere plea
3. A statement made during a proceeding related to 1 or 2. Where defendant had an actual subjective expectation of negotiating a plea and the expectation was reasonable given the totality of the objective circumstances
4. A statement made during plea discussions with a prosecutor, if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Exceptions. The court may admit a statement described in #3 or #4:

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Question 9

411: Liability Insurance

Answer 9

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 a witness’s bias or prejudice or proving agency, ownership, or control.

Designed to encourage the purchase of liability insurance & generally has low probative value.

Question 10

Rules for Testifying

Answer 10

Who can testify? Rules 601, 602, 605, and 606

How do Witnesses Testify? Rules 603, 604, 611, 612, 614, 615

Impeaching WItnesses: Rules 607-610, 613

Question 11

602: Need for Personal Knowledge

Answer 11

o Witness must have personal knowledge
o Not necessarily direct eyewitness knowledge
o information can be based on seeing, hearing, or otherwise sensing

Does not apply to experts under 703.

Question 12

603: Oath or Affirmation to Testify

Answer 12

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.

Capacity to Testify: Every witness needs 4 capacities to testify:

1) narration
2) Understanding the importance of telling the truth
3) Memory
4) Perception

Question 13

614: Court

Answer 13

Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

Examining. The court may examine a witness regardless of who calls the witness.

Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

Question 14

615: Excluding Witnesses

Answer 14

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

1. A party
2. Party Representative
3. Essential Persons (expert witnesses)
4. Those authorized by statute

Question 15

612: Refreshing Recollection

Answer 15

1. Witness says she cannot recall.
2. Identify the “memory jogger” and ask witness if it would refresh their memory.
3. Show the document to opposing counsel.
4. Show the document to the witness.
5. Take document away.
6. Ask witness to testify from memory.

Question 16

613: Impeaching with Prior Inconsistent Statements

Answer 16

1. May ask the witness about prior statement without showing it to the witness.
2. But must show the statement to the opposing counsel on request.
3. If you use extrinsic evidence of prior statement, the witness must have an opportunity to explain or deny.
4. And opponent must have the opportunity to question the witness about the inconsistencies.

Question 17

Impeachment by Showing a Propensity for Dishonesty

Answer 17

1. Cross-examine witness on prior inconsistencies of dishonesty but no extrinsic evidence (Rule 608(b))
2. offer extrinsic evidence of criminal convictions to show witness is dishonest (Rule 609)
3. call character witness who will testify that witness is untruthful character (Rule 608(a))

Question 18

608: Attacking Witness’ Credibility

Answer 18

Witness was dishonest before → Witness has dishonest character traits → so she is dishonest on the stand

Under rule 608(b),

1. “Good Faith Belief” is usually probable cause for warrants
2. Judge has discretion
3. Extrinsic evidence is not admissible to prove character or conduct

Question 19

608: Attacking Witness’ Credibility

Answer 19

Witness was dishonest before → Witness has dishonest character traits → so she is dishonest on the stand

Under rule 608(b),

1. “Good Faith Belief” is usually probable cause for warrants
2. Judge has discretion
3. Extrinsic evidence is not admissible to prove character or conduct

Question 20

3 Layers of Judicial Control over Witness Examinations

Answer 20

608(b) gives judges discretion.

611: Mode and Order of Examining Witnesses and Presenting Evidence
403: exclude if unfair prejudice substantially outweighs probative value

Question 21

609: Impeachment by Evidence of Criminal Conviction

Answer 21

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

1. The crime must be punishable by imprisonment for more than a year. And:
   a. It must be admitted per 403 in a civil case or a criminal case where the witness is not the defendant.
   b. It may be admitted in a criminal case where the defendant is a witness only if the probative value outweighs the prejudicial effect.
   c. For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
2. If more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
   a. Its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
   b. the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Evidence of a conviction is not admissible if the person was pardoned. A conviction that is pending appeal is admissable however so is the fact that it is pending appeal.

Evidence of a juvenile adjudication is admissible under this rule only if it is offered:

1. In a criminal case and the witness against whom it is being offered is not the defendant.
2. The crime must be one for which an adult’s conviction for that offense would be admissible.
3. Admitting the evidence must be necessary to fairly determine guilt or innocence.
   ble.

Question 22

610: Religious Beliefs

Answer 22

Religious beliefs are not admissible to show a witness’s character or untruthfulness or lack thereof.

Question 23

406: Habit

Answer 23

Evidence of a person’s habit or an organization’s 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.

Habit is defined as:
•	Specific conduct
•	Indistinctive situation
•	On a regular basis
•	With a lack of moral overtones

Question 24

412: Rape Shield Law

Answer 24

Precludes evidence of victim’s prior sexual conduct or predisposition.

Exceptions:

1) Explanations of physical evidence
2) prior sexual conduct with the defendant (defendant: to show consent and plaintiff: to show any other reason)
3) constitutional catch-all (attack the credibility of the victim)

Question 25

Points to Remember on 413-415: Admission of Sexual Assault charges on Subsequent Sexual Assault Cases

Answer 25

3 points to remember:

1. If the defendant is on trial for sexual assault, the state can introduce evidence of prior sexual assaults and if the defendant is on trial for child molestation, the state can introduce evidence of prior molestations → even if no conviction or charge
   2) The state can argue propensity explicitly
   3) 403 is difficult to apply because the propensity is not unfairly prejudicial in this case.

Question 26

802: Hearsay

Answer 26

Generally speaking, hearsay is inadmissable.

Question 27

Hearsay Exception Categories

Answer 27

801 D: Not Hearsay

803: Availability Immaterial
804: Declarant Unavailable
807: Residual Exception (very rare)

Question 28

801D Statements that are not Hearsay

Answer 28

The following are not hearsay.

Prior Inconsistent (SWORN) Statements by the Witness (used to impeach)
Prior Consistent (SWORN) Statements by the Witness (used to rehabilitate the witness’ credibility)
Prior Identification of a Person
Statement by a Party Opponent

Question 29

801 D1 (A) Prior Inconsistent Statements

Answer 29

1. Declarant testifies at trial
2. Declarant/witness is subject to cross
3. Prior statement is inconsistent with courtroom testimony
4. Prior statement was given under penalty of perjury
5. Prior statement was given during a proceeding → (generally need an audience and a transcript → trial, deposition, or grand jury hearing)

Question 30

801 D1 (B) Prior Consistent Statements

Answer 30

1. Declarant testifies at trail
2. Declarant/witness is subject to cross
3. Prior statement is consistent with courtroom testimony
4. Offered to rebut charge of fabrication (or to rehabilitate witness’s credibility)
5. Prior statement was made before motive to lie arose

Question 31

801 D1 (C) Prior Identification

Answer 31

1. Declarant testifies at trial
2. Declarant/witness is subject to cross
3. prior statement was the identification of a person

Question 32

801 D2 Admission by Party Opponent

Answer 32

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).

Question 33

803: Hearsay Exceptions

Answer 33

1. Present Sense Impression
2. Excited Utterance
3. Then-Existing Mental, Emotional, or Physical Condition
4. Statement Made for Medical Diagnosis or Treatment
5. Recorded Recollection
6. Regularly Conducted Activity
7. Absence of Regularly Conducted Business Records
8. Public Records
9. Vital Statistics
10. Absence of Public Records
11. Religious Records Concerning History
12. Marriage/Baptism/Birth Certificates
13. Family Records
14. Records of documents that affect personal property
15. Statements of documents that affect personal property
16. Ancient Documents
17. Marketplace or Commercial Publications
18. Learned Treatises, Periodicals, or Pamphlets
19. Reputation Concerning Personal or Family History
20. Reputation Concerning Boundaries or General History
21. Reputation Concerning Character
22. Judgment of a Previous Conviction
23. Judgments Involving Personal, Family, or General History, or a Boundary

Question 34

803 1: Present Sense Impression

Answer 34

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Question 35

803 2: Excited Utterance

Answer 35

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Question 36

803 3: Then-Existing Mental, Emotional, or Physical Condition

Answer 36

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.

Question 37

803 4: Statement Made for Medical Diagnosis or Treatment

Answer 37

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.

Question 38

803 5: Recorded Recollection

Answer 38

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.

Question 39

803 6: Records of a Regularly Conducted Activity

Answer 39

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

Exceptions:

Records that lack trustworthiness.

Matters observed by law enforcement personnel are not admissible against criminal defendant.

Results of an investigation by any public agency are not admissible against a criminal defendant.

Statements by third parties require a separate hearsay exception (watch out for hearsay within hearsay!)

Question 40

803 16: Ancient Documents

Answer 40

1. Document has existed for 20 years or more
2. Authenticity is established
3. Watch for hearsay within hearsay

Question 41

803 17: - Market Reports, Directories, Commercial Publications

Answer 41

1. Must be published
2. Data compilation
3. Relied upon
4. CANNOT include analysis

Question 42

803 18: Learned Treatises

Answer 42

1. May come from any field
2. Offer substantive evidence
3. As long as accepted as reliable authority
4. 2 peculiarities:

a. Must accompany expert witnesses
b. Read excerpts into the record

Question 43

804: Exceptions due to Unavailable Declarant

Answer 43

A. Criteria for Being Unavailable:

1. The court rules that a privilege applies;
2. Refuses to testify about the subject matter despite a court order to do so;
3. Testifies to not remembering the subject matter;
4. Cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
5. Declarant is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
   a. the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
   b. the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But 5 doesn’t apply if the statement’s proponent caused the declarant’s unavailability as a witness.

Exceptions:

Former Testimony
Statement Under Belief of Imminent Death
Statement Against Interest
Statement of Personal or Family History
Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability