Federal Rules of Evidence Flashcards
Rule 611
Mode and Order of Examining Witnesses and Presenting Evidence
Courtroom Objections: Irrelevant Leading Argumentative Vague Assumes Facts not in Evidence Asked and Answered Lack of Foundation Calls for Hearsay Compound Calls for Speculation Calls for Legal Conclusion Calls for Narrative Cumulative Badgering Outside the Scope Misstates the Evidence Privileged (Miranda) Foundation-Criminal Lack of Corpus
Objections form of Answer: Non Responsive No Personal Knowledge No Question Pending Narrative Hearsay No Foundation
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.
FRE 101 & Rule 1101
The scope of the Rules
Rules apply in lots of federal venues (even Guam) but they apply only to proceedings (basically testimony at trial), except rules of privilege always apply
Rule 103 (a) (e)
Objections: Timely, Precise, Complete
Offers of Proof: Make a Clear Record
Exception: Egregious and affects a substantial right
Rule 105
Limiting Instructions:
Evidence admissible against one party but not others in the same action, or;
Evidence admissible for one person but not others
Rule 401
Test for Relevant Evidence:
The 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.
WEAKEST OBJECTION, strong lean towards admissibility
Facts of Consequence
AKA Facts of Controversy
Opening the Door
Allows the opposing party to bring in evidence because of a lawyer or witness mistake
Rule 403
Allows the judge to jump in and 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
Needlessly Presenting Cumulative Evidence
Discretionary
Rule 407
Subsequent Remedial Measures
Policy: Encourage parties to take measures to keep more people safe without fear of punishment or liability because of remedial measures.
Only subsequent remedial measures taken by a party are protected by rule 407. If a 3rd person takes the measures, those measures may be used.
Things to look for:
1) Feasibility: Ex. “It Couldn’t have been safer”-BUT it could have been because you made it safer.
2) Impeachment
3) Limiting Instructions under Rule 105
- Not admissible if offered to prove liability or fault
- But may be admissible for other purposes like impeachment or if disputed ownership/control
Rule 408
Civil Compromise Offers and Negotiations
Policy: If more cases went to trial the system would collapse, the system wants to encourage settlement conversations, therefore, we must protect settlement conversations.
The rule protects statements and conduct (offers/admissions/gestures)
What are the limitations:
1) Matter must have matured into a claim for 408 to apply.
2) Claim must be Disputed
3) Statement or Conducrt Must Occur during “Compromise Negotiations”
4) Statements offered to prove validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction (?)
- Excludes Settlement Discussions by 3rd Parties
5) Other Purposes—Admissible
ex. Rebut allegation of undue delay making a claim
ex. Bias or Prejudice
Tricky Quirk (Martha Stewart Exception):
1) When dealing with a government agency that has prosecutorial and enforcement duties
2) Offer/Acceptance is still protected but admissions are admissible in a subsequent criminal case
Cannot shelter pre-existing evidence by draggong it into compromise negotiations
Elements Under Rule 408
1) Claim
2) Disputed
3) Negotiations
Plea Bargaining & Rule 410
1) Factual Basis Plea- Run through Factual Basis Supporting the Crime. Under Oath, transcribed, both attorneys present.
2) Then goes to trial, if the Defendant denies statements from factual basis plea, the prosecutor cannot bring in the information in unless a proceeding for perjury/false statement.
4 Capacities of a Witness
1) Perception (602)
2) Memory (602)
3) Narration (611)
4) Understanding the difference between truth and untruth (603)
Leading Questions
Generally not allowed except:
1) Cross-Examination
2) With an adverse (hostile) witness
3) Preliminary Pedigree Questions
Rule 614
Judges Permitted to ask Questions and Call Witnesses
Rule 607
Anybody can impeach a witness, you can even impeach your own witness
Methods of Impeachment
Attack Narrative Capacity (highlight ambiguities)
Attack Perception
Attack Memory
Attach Sincerity
a) Show Prejudice, Bias, Interest or Corruption
b) Witness’s testimony is improbable
c) Compare testimony to her prior inconsistent statements
d) Contradict with established facts
e) Show the witness has an untruthful character
2 Types of Prior-Inconsistent Statements
1) Non-Collateral
- Matter of Consequence
2) Collateral
- Nothing to do with a matter of consequence
ex. When I went to the scene of the murder I had red socks (versus blue socks)
Must show Inconsistence in 1 of 2 Ways:
1) Directly-See if the witness will admit inconsistency or
2) Prove Inconsistency with Extrinsic Evidence
Rule 613
Must Show the other side the prior statement (can be in the moment, but must make opposing council aware)
Must Confront the witness with the statement, and allow the witness to explain or deny it.
–If still denying, you may bring in the extrinsic evidence.
You may not use extrinsic evidence to prove the collateral matter.
–Inconsistent Statements pertain to credibility but not to persuade the jury to accept the prior inconsistent statement.
*613 is not an exception to the hearsay rule
Prior Consistent Statements
- Courts may allow evidence of consistent statements if OP can demonstrate motive to lie (very rare in practice).
- May not be used generally to bolster credibility
Rule 404 (a) (1)
Evidence of a person’s character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character trait.
Character Evidence may NOT be used to prove propensity.
Exception Rule 608 (b)(1)
Rule 608 (B) (1)
Court may allow questions pertaining to a witness’s truthfulness or untruthfulness in order to assess the witness’s credibility.
- **On Cross Exam Only
- **TRUTHFULNESS OR UNTRUTHFULNESS (NOT EVERY NEGATIVE CHARACTER TRAIT)
- **May NEVER be proven by extrinsic evidence
Rule 609
Using a Criminal Conviction to Impeach a Witness:
conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) 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.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies 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:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) 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.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule 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.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
609 (a) (1) (a)
- Applies to felony convictions less than 10 years old
- Any witness other than the Defendant in a Criminal Case
- Felony Convictions must be admitted subject to Rule 403 (tilts towards admission)
609 (a) (1) (b)
*Applies to felony convictions less than 10 years old
* Witness on the stand is a defendant in a criminal case
* Altered 403 Test:
Admitted if the probative value OUTWEIGHS the prejudicial effect to defendant (a little more protection to defendants)
609 (a) (2)
Crimes Involving Lying:
- Applies to any Crime, felony or misdemeanor, less than 10 years old.
- Elements require proving/admitting dishonest fact or false statement
- MUST be admitted
Ex. Perjury, Embezzlement, Fraud, Counterfeiting
609 (b)
Old Convictions:
- Applies to convictions more than 10 years since conviction or since final release from custody (parole time doesn’t count because it isn’t custody)
- Probative Value substantially outweighs the prejudicial effect
- Proponent must give advanced notice to opposing side
609 (c)
If anyone wants to pardon/annul/give a
certificate of Rehabilitation:
*Based on Innocence=May not be used
*Not Innocent= Only admissible if witness convicts another felony after the pardon
609 (d)
Juvenile Adjudications:
1) Admissible to Impeach ONLY in Criminal Cases
2) ONLY admissible against Witness NEVER Defendant
3) If Committed as an adult the offense would be a felony
4) Admission is NECESSARY to fairly determine guilt or innocence
609 (e)
Appeals
-May tell the jury conviction is on appeal
Old Chief v. United States
Evidence is NOT admissible under Rule 403 if its unfair prejudicial effect substantially outweighs its probative value.
Factors Judges may consider when deciding whether a statement occurred during Compromise Negotiations:
1) Whether the statement was Unilateral or occurred during bilateral discussions
2) Whether either party made a concrete offer
3) Whether attorneys were involved in the discussions
4) Whether the parties used phrases like “without prejudice” that are commonly used during settlement discussions
Rule 409
Offers to Pay Medical and Similar Expenses:
Policy: Allows potential defendants to pay medical expenses without worrying about plaintiffs using evidence of those payments against them at trial to prove liability.
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 a witness’s bias or prejudice or proving agency, ownership, or control.
*Encourages organizations and individuals to obtain liability insurance
Rule 601
Every person is competent to be a witness UNLESS the rules provide otherwise…
Rule 606
At the trial a juror may not testify as a witness before the other jurors at trial…if a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
Rule 602
Need for Personal Knowledge
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.
Rule 603
Oath or Affirmation to Testify Truthfully
Rule 604
Interpreter:
An interpreter must be QUALIFIED and must give an oath or affirmation to make a true translation.
Rule 611
(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.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
4 Contexts in which Judges most often allow attorneys to lead witnesses on direct examination:
1) To establish pedigree information
2) To direct a witness’s attention to a relevant place and time
3) To help a witness who is hesitant, confused, or had trouble recalling
4) Hostile Witnesses
Rule 614
(a) 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.
(b) Examining. The court may examine a witness regardless of who calls the witness.
(c) 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.
Rule 615
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:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.
Rule 612
Writing Used to Refresh a Witness:
(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial.
***Writing may be a journal entry, a scribble on a napkin, photograph, audio tape, etc.
5 Steps for Refreshing Witness’s Recollection:
1) Establish the Witness does not recall the answer
2) Describe the writing she wishes to use to refresh the witness and ask if the witness thinks the writing would help. Ask to approach the witness.
3) Show the writing to the witness, ask them to review silently.
4) Ask if the writing has refreshed the witness, the witness should answer yes. Re-ask original questions and continue.
5) The attorney must be sure to give the OP a copy of the writing.
Rule 608 (a)
1) The rule only allows general reputation or opinion evidence of character not testimony giving specific instances of conduct related to a witness’s truthfulness
2) Character witnesses may only offer reputation or opinion evidence related to truthfulness/untruthfulness
3) A party may introduce evidence of a witness’s truthful character ONLY AFTER that character has been attacked.
***Only used to assess the credibility of a witness NOT guilt or innocence.
Rule 608 (b) (2)
Cross-Examining the Character Witness:
Allows parties to ask character witnesses on cross-exam about specific instances of a “fact witness’s” behavior. The Opposing party may ask about specifics NOT the side who called the character witness.
The cross-examining attorney may NOT offer extrinsic evidence.
Rule 610
Religious Beliefs & Impeachment:
Rule 610 prohibits parties from using a witness’s religious beliefs to attack the witness’s credibility (or to enhance credibility).
The rule does not exclude evidence of religious beliefs when they pertain to matters other than credibility (ie. bias, damages, motive, etc.)
Rule 106
Rule of Completeness
Rule 106 establishes the rule of completeness, if one party introduces part of a document, the rule allows the opponent to immediately introduce other portions “that in fairness ought to be considered at the same time” as the first portion.
4 Important aspects of Rule 106:
1) Allows a party to introduce qualifying portions of a writing/recorded statement as soon as the opponent offers the first portion.
2) Applies only to writings and recorded statements (not all forms of evidence)
3) May be used to introduce whole writings or recordings
4) The rule uses a fairness principle; it admits portions of writings or recorded statements “that in fairness ought to be considered at the same time” as those offered by the opponent (flexible standard)
Character Evidence & The Rules
Definitions
Character Traits: Internal, we can’t see character traits directly but people seem to possess traits that incline them to act in particular ways
Reputation: External, it reflects what other people think about an individual. Reputation is not always a reliable guide to character.
Actions: Since we cannot see character, we deduce it from an individual’s actions.
In the courtroom, therefore, reputation and specific acts often appear as circumstantial evidence of character.
In general Rule 404 (a) (1) Prohibits Character Propensity Evidence
4 Categories of “Character Evidence”
1) Proof of a Witness’s propensity to lie or tell the truth
- Rules 608 & 609
- Depends on the notion of propensity
2) Proof of Conduct by Propensity
- Jurors likely overestimate the value of propensity evidence
- Rule 404 (a) bars most attempts to prove conduct by propensity
3) Proof of Character or Reputation as Elements
- Some crimes, civil claims or defenses require proof of character or reputation to establish an element of that claim or defense.
- Rule 405 allows this evidence.
4) Proof of Other Acts for Non-Propensity Purposes
- Evidence of a Person’s actions can establish facts other than character and can support inferences other than one based on propensity
- When parties offer evidence of an action for a purpose other than to prove character propensity, Rule 404 (b) often allows for that evidence.
Rule 402
In few instances a person’s character may be the element of the claim or defense. Rule 402 states that all relevant evidence is admissible unless otherwise provided, and evidence used to prove an element of the case easily meets the relevance definition of Rule 401.
Rule 405 (b)
When a person’s character 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.
4 Categories of cases that account for almost every lawsuit in which Character is an element:
1) Defamation
2) Child Custody Cases
3) Entrapment Defense
4) Negligent Entrustment Claims
Using Character Evidence to Prove Propensity
Rule 404 (a) (1) Broadly prohibits the use of character evidence when offered to show propensity.
Rule 404 (a) (2)
Establishes a series of exceptions to the rule against using character evidence to prove particular conduct through propensity reasoning.
