Federal Rules of Evidence

Question 1

Rule 601. Competency to Testify in General

Answer 1

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Question 2

Rule 602. Need for Personal Knowledge

Answer 2

A witness may testify to a matter only if evidence is introduced 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.

Question 3

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence.

Answer 3

(a) Control by the court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.

Question 4

Rule 611 Objection: Argumentative

Answer 4

the attorney is drawing inferences or stating conclusions

Question 5

Rule 611 Objection: Asked and Answered

Answer 5

the attorney has already asked the question and the witness has already answered. The objection will be sustained if: (1) the same party; (2) asks the same question; (3) of the same witness, and; (4) the witness has already answered that question

Question 6

Rule 611 Objection: Assumes a fact not in evidence

Answer 6

These questions include a factual assertion that is embedded into the question – presents information as a fact when it has not been established

Question 7

Rule 611 Objection: Beyond the Scope

Answer 7

cross examination topic is beyond the scope of direct, OR redirect is beyond the scope of cross

Question 8

Rule 611 Objection: Narrative

Answer 8

the question is too broad; the witness will tell a story instead of answering a question

Question 9

Rule 611 Objection: Calls for Speculation

Answer 9

The question asks the witness what other people might have been thinking or what might have been happening to them beyond the scope of the witness’s perception.

Question 10

Rule 611 Objection: Compound Question

Answer 10

attorney’s may not ask more than one question at a time

Question 11

Rule 611 Objection: Badgering

Answer 11

badgering includes: repeatedly asking the same question in different ways, insulting the witness, speaking in a manner that will intimidate or harass, arguing with the witness

Question 12

Rule 611 Objection: Misstates Testimony

Answer 12

lawyer incorrectly summarizes earlier witness testimony in a subsequent question

Question 13

Rule 611 Objection: Leading Question

Answer 13

a question that suggests the answer. if the question ends with a phrase that attempts to confirm that a fact is correct, it’s a leading question.

Question 14

Rule 611 Objection: Non-responsive

Answer 14

The witness provides information not required by the questioning attorney

Question 15

Rule 611 Objection: Vague

Answer 15

Question lacks sufficient detail to allow proper response or includes an unclear term

Question 16

Rule 401. Test for relevant evidence

Answer 16

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

Question 17

Rule 402. General Admissibility of Relevant Evidence

Answer 17

Relevant evidence is admissible unless any of the following provide otherwise:

• the United States Constitution
• a federal statute
• these rules
• other rules prescribed by the supreme court

Question 18

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Answer 18

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

Question 19

Rule 407. Subsequent Remedial Measures

Answer 19

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:
-negligence
-culpable conduct
- a defect in a product or its design; or
- a need for 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 20

Rule 408. Compromise Offers and Negotiations

Answer 20

(a) Evidence of the following is inadmissible to prove or disprove the validity or amount of a disputed claim or to impeach by prior inconsistent statement:
(1) furnishing, promising, offering, or accepting, promising to accept, or offering to accept - a valuable consideration in compromising the claim
(2) conduct or a statement made during compromise negotiations about the claim (except in a criminal case where the statement was made by the government)
(b) Exceptions. The court may admit this evidence for another purpose such as proving a witness’s bias prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or proceeding

Question 21

Rule 409. Offers to pay medical expenses

Answer 21

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.

Question 22

Rule 410. Pleas, Plea Discussions, and Related Statements

Answer 22

(a) prohibited uses. In a civil or criminal case, 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 on either of those pleas
(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.

Question 23

Rule 801: Hearsay Definition

Answer 23

an out of court statement offered to prove the truth of the matter asserted

Question 24

Rule 802: The Rule Against Hearsay

Answer 24

Hearsay is not admissible unless any of the following provides otherwise:

• a federal statute
• these rules; or
• other rules prescribed by the Supreme Court

Question 25

Rule 801 (d)(1)(A). Statements that are not hearsay: A Declarant-Witness’s Prior Inconsistent Statement.

Answer 25

Elements:

(1) declarant testifies
(2) declarant is subject to cross examination
(3) prior statement is inconsistent with trial testimony
(4) prior statement is given under penalty of perjury
(5) prior statement is made at trial, deposition, or other legal proceeding

Question 26

Rule 801(d)(1)(B). Statements that are not hearsay: A Declarant-Witness’s Prior Consistent Statement

Answer 26

Elements:

(1) declarant testifies
(2) declarant is subject to cross examination
(3) prior statement is consistent with the testimony
(4) offered either to: (a) rebut a claim of fabrication or recent improper motive; or (b) rehabilitate witness credibility from attack on another ground

Question 27

Rule 801(d)(1)(C). Statements that are not hearsay: Identification

Answer 27

• previous identification
• declarant testifies
• declarant is subject to cross

Question 28

Rule 801(d)(2). Statements that are not hearsay: An Opposing Party’s Statement

Answer 28

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 while it existed;
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy…

Question 29

Rule 803(1). Exceptions to the Rule Against Hearsay: Present Sense Impression.

Answer 29

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

Question 30

Rule 803(2). Exceptions to the Rule Against Hearsay: Excited Utterance.

Answer 30

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

Question 31

Rule 803(6). Records of a Regularly Conducted Activity

Answer 31

Elements that must be met for admission as an exception to the hearsay rules:

1. record
2. “kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit”
3. “made at or near the time by—or from information transmitted by—someone with knowledge.”
4. “making the record was a regular practice of that activity”
5. “all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies”
6. “the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”

Question 32

Rule 803(8). Public Records

Answer 32

it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
The opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

Question 33

Rule 804(a). Criteria for Being Unavailable.

Answer 33

A declarant is considered to be unavailable as a witness if the declarant:
1. privilege
2. refusal to testify
3. lack of memory
4. death or illness
5. absence
But, this subdivision does not apply if the party offering the witness’s statement caused the unavailability through unlawful means

Question 34

Rule 804(b)(1). Former Testimony

Answer 34

Four requirements for admitting former testimony:

1. must have been given at trial, hearing, or deposition
2. opposing party must have had an opportunity to question the declarant in the prior trial
3. the opposing party’s motive in questioning the declarant in the prior hearing must have been similar to the motive the opposing party would have in cross-examining the declarant in the current trial
4. criminal cases require identical parties and civil cases require a predecessor in interest

Question 35

For 804 (Former testimony), what are four relevant factors to determine a similar motive?

Answer 35

1. type of proceeding
2. trial strategy
3. stakes
4. number of issues and parties

Question 36

Rule 804(b)(2). Statement under the belief of imminent death

Answer 36

requirements:

1. applies only if the declarant is unavailable
2. applies only in homicide prosecutions and civil proceedings
3. declarant must believe death is imminent when she makes the statement
4. content of the statement must concern the cause or circumstances of declarant’s death

Question 37

Rule 804(b)(3). Statement against interest

Answer 37

the statement will be admitted as an exception to the hearsay rule if:

1. the declarant is unavailable
2. the statement is against the declarant’s interest “when made”
3. it is against the declarant’s interest in one of three ways:
   - it could be contrary to the declarant’s proprietary or pecuniary interest
   - render invalid she has a claim against another person; or
   - expose the declarant to civil or criminal liability
4. and it is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case

Question 38

Rule 804(b)(6). Statement offered against a party that wrongfully caused the declarant’s unavailability

Answer 38

the statement will be admitted as an exception to the hearsay rule if four requirements are met:

1. the witness is unavailable
2. the opposing party wrongfully caused or acquiesced in causing the witness’s unavailability
3. the opposing party intended to make the declarant unavailable
4. the wrongdoing caused the witness to become unavailable

Question 39

Rule 807. Residual Exception

Answer 39

A hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception if:

1. the statement has equivalent circumstantial guarantees of trustworthiness
2. it is offered as evidence of a material fact
3. it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
4. admitting it will preserve justice

(must give adversary notice)

Question 40

Rule 805. Hearsay within Hearsay.

Answer 40

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule..

Question 41

The 6th Amendment excludes:

Answer 41

1. the government’s offer of
2. testimonial hearsay
3. from a declarant the defendant cannot cross examine now, and
4. could not meaningfully cross examine before

Question 42

What is testimonial hearsay for purposes of the 6th Amendment?

Answer 42

• the statement’s primary purpose must be to establish or prove past events potentially relevant to later criminal prosecution
• a statement is more likely testimonial when: the crime is completed, the danger is over, it describes past events, it was made in a formal setting, there was structured questioning

Question 43

Rule 404(a)(1). Character evidence

Answer 43

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character trait.

Question 44

404(a)(2). Exceptions to the bar against propensity evidence for a defendant or victim in a criminal case

Answer 44

in a criminal case:
(A) the 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) a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it, offer evidence of the defendant’s same trait, and in a homicide case the prosecutor may offer evidence of the victim’s peacefulness to rebut evidence that the victim was the first aggressor

Question 45

Elements for inadmissible character evidence

Answer 45

1. character trait
2. about a person
3. used to prove that because a person has a particular character trait they are more likely to act according to that trait on a particular occasion

Question 46

Rule 405. Methods of proving character

Answer 46

when evidence of a person’s character trait is admissible

• testimony through opinion or reputation is permissible on direct
• when the person’s character is an essential element of a charge, claim, or defense, the character trait may be proved through specific acts
• when the person’s character is not an element, cross on specific acts is permitted

Question 47

404(b)(2) Character Evidence; Crimes or Other Acts

Answer 47

• evidence of crimes or other wrongs is not permissible to prove propensity
• it may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

Question 48

Rule 406. Habit; Routine Practice

Answer 48

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. (does not need to be corroborated or witnessed)

Question 49

Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predispostion

Answer 49

• prohibits the use of 2 types of propensity evidence:
  1. evidence of specific acts of sexual behavior, and
  2. evidence of reputation or general character
  Exceptions in a criminal case:
  1. evidence of specific sexual acts is admissible to prove the defendant is not the source of physical evidence
  2. evidence of specific instances is admissible to show prior sexual conduct with the defendant
  3. where exclusion of the evidence would violate the defendant’s constitutional rights

Procedure:

1. party intending to introduce the evidence must give notice to the court, opposing party, and the victim 14 days before trial
2. secret proceeding to determine admissibility

Question 50

Rule 413. Similar Crimes in Sexual Assault Cases

Answer 50

in a criminal case, where the defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault

Question 51

Rule 414. Similar Crimes in Child Molestation Cases

Answer 51

in a criminal case, where the defendant is accused of child molestation, the court can admit evidence that the defendant committed any other child molestation

Question 52

Rule 415. Similar acts in civil cases involving sexual assault or child molestation

Answer 52

in a civil case involving a claim for relief base on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.

Question 53

Rule 608(a). A witness’s character for truthfulness or untruthfulness. Reputation or Opinion Evidence.

Answer 53

allows parties to introduce opinion or reputation evidence about a witness’s character. Requirements:

1. evidence must be in the form of an opinion or reputation
2. evidence must relate to the witness’s character for truthfulness or untruthfulness
3. and this testimony can only be elicited after the witness’s character for truthfulness has been attacked

Question 54

Rule 608(b). A witness’s character for truthfulness or untruthfulness. Specific Instances of conduct

Answer 54

The court may allow cross examination on specific instances of a witness’s conduct in order to attack the witness’s character for truthfulness (no extrinsic evidence except for a criminal conviction under rule 609)

Question 55

Rule 609(a)(1)(A). Impeachment by evidence of a criminal conviction. Felonies in a civil case or in a criminal case in which the witness is not the defendant

Answer 55

the evidence must be admitted when attacking a witness’s character for truthfulness or untruthfulness

Question 56

Rule 609(a)(1)(B). Impeachment by evidence of a criminal conviction. Felonies in a criminal case in which the witness is a defendant

Answer 56

the evidence must be admitted if the probative value of the evidence outweighs its prejudicial effect

Question 57

Rule 609(a)(2). Impeachment by evidence of a criminal conviction. Any crime, regardless of punishment

Answer 57

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

Question 58

Rule 609(b). Limit on using the evidence after 10 years

Answer 58

evidence used to impeach a witness’s character for truthfulness cannot be used if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later

Question 59

Rule 609(c). Effect of a pardon

Answer 59

evidence used to impeach a witness’s character for truthfulness cannot be used if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation or other equivalent procedure

Question 60

Rule 609(d). Juvenile adjudications

Answer 60

evidence of a juvenile adjudication is admissible only if:

1. it is offered in a criminal case;
2. the adjudication was of a witness other than the defendant;
3. an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
4. admitting the evidence is necessary to fairly determine guilt or innocence

Question 61

Rule 701. Opinion Testimony by Lay Witnesses

Answer 61

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally related to 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

Question 62

Rule 702. Testimony by an Expert Witness

Answer 62

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or 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;
(d) the expert has reliably applied the principles and methods to the facts of the case

Question 63

what does the court consider to determine whether expert testimony is the product of reliable principles and methods?

Answer 63

The Daubert factors:

1. can the theory be tested?
2. has it been subjected to peer review and application?
3. is there a known error rate?
4. are there standards controlling the technique’s application?
5. has the theory been generally accepted?