Federal Rules Of Evidence Flashcards
Two ways FREs can be amended
1) act of Congress
2) promulgation by the Supreme Court through its statutory rule-making authority
When do FREs apply
All federal courts before all federal judges and all types of cases
When don’t the FREs apply
- Preliminary questions of fact (admissibility)
- grand jury
- miscellaneous proceedings
BUT privilege rules always apply
Preliminary hearings outside the jury. When?
1) confessions
2) justice requires
3) defendant witness asks
Is irrelevant evidence admissible?
Never.
Is relevant evidence admissible?
Presumption that relevant evidence is admissible unless…
What does relevant mean?
Material: fact of consequence in determining the action (pleadings)
Pro active Value: any tendency to make a fact more or less probable than without the evidence
If something is privatize and material is it admissible?
Maybe. Presumptively unless…
How does a judge determine something is material?
Look to the law and the pleadings.
How does a judge determine something is probative?
Judge’s own experience. Your duty to inform that experience
FRE 403 Test
Although relevant, evidence may be excluded if it’s probative value is substantially outweighed by:
- the danger of unfair prejudice
- confusion of the issues
- misleading the jury
- undue delay
- waste of time
- cumulative evidence
If 403 is considered, what else must be?
A limiting instruction. Court should consider the probably effectiveness.
What is the rule of completeness?
When a writing/recorded statement is introduced an adverse party may introduce at that time any other part or other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
What showing must be made to satisfy the authentication requirement?
Could a juror reasonably conclude evidence is authentic
Excluded only if no rational juror could find the evidence is authentic
What is the standard by which the showing must be made for authentication?
Preponderance even in criminal cases
Authentication : if evidence is unique, readily identifiable, resistant to change
authenticate by calling witness who saw it before and have witness testify that she recognizes it
Authentication: if evidence is not readily identifiable or if it is susceptible to alteration
Chain of custody
Ways to authenticate written documents
- eye witness to creation of document
- non-expert familiar with handwriting but can’t be familiar because of litigation
- expert witness
- comparison by trier of fact
- distinctive characteristics (content, language, appearance, reply doctrine)
Authenticate photos
- personal knowledge of the scene
- silent witness: based on reliability of process
- content and circumstances
Authentication audio recordings
- witness with knowledge plus voice identification
- silent witness plus voice identification
- jury identification
Is character evidence allowed?
No character evidence by direct or indirect means if offered to prove conformity or propensity.
Exceptions to no character evidence
- d’s pertinent trait offered by d, or offered by p to rebut in criminal cases
- v’s pertinent trait offered by d, or p to rebut same trait in criminal cases
- witnessed pertinent trait for civil or criminal cases
- admissible for other purposes: motive, opportunity, intent, preparation, plan, knowledge, identity, lack of mistake in criminal or civil cases (moippkial)
- when character is an element of a charge, claim or defense (ex. Defamation) in criminal or civil and specific acts are allowed
Rape shield
Bars:
1) evidence offered to prove the victim’s sexual predisposition and
2) evidence that the victim engaged in other sexual behavior
Applies in all criminal or civil proceedings involving alleged sexual misconduct
Sex crime need not be charged
Subsequent remedial measures
Forbidden for proof of negligence, culpable conduct, defect, need for warning
Exceptions: ownership, control, feasibility (if contested), impeachment
Settlement offers
Prohibited uses: when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction
No impeachment
In civil and criminal cases
Exceptions: witness’s bias or prejudice, negating undue contention of delay, proving obstruction in criminal case
Medical expenses: furnishing, offering, promising to pay medical or similar expenses
Prohibited use: proof of liability for the injury
Exceptions: none listed
Liability insurance (proof or lack of)
Prohibited use: proof of negligence, or wrongful conduct
Exceptions: agency, ownership, control, or witness’s bias or prejudice
Withdrawn plea, nolo contenders, statement during plea hearings/ negotiations
Forbidden purpose: to establish guilt or impeach credibility
Exceptions: to counter plea statement offered by d, perjury or false statement proceedings
Witness Personal Knowledge Requirement
Witnesses must observe the matter about which they are testifying through 5 senses.
Personal knowledge doesn’t apply when?
1) 703 expert testimony
2) some hearsay rules
Cross exam should be limited to:
- subject of direct examination
- matters affecting witness credibility
Leading questions should not be used on direct examination except:
- as necessary to develop the witnesses testimony
- hostile witness
- child witness/adult with problems
- forgetful witness
- preliminary undisputed matters
Leading questions on cross exam
Fine on cross exam except buddy witness and beyond the scope of direct
Refreshing recollection
Need foundation, must show failure of memory. Can use anything to refresh. The witness’s testimony, not the writing is the evidence.
If a writing is used to refresh recollection while testifying
Opposing counsel can have the writing produce, inspect it, to question witness about it, and to introduce into evidence other portions
What is the difference between writing used to refresh while testifying versus a writing used to refresh before testifying.
While testifying: adverse party is automatically entitled to see the writing
Before testifying: adverse party may be entitled to see the writing if need outweighs the risks
Every person is competent to be a witness except:
1) in civil actions where state law supplies the rule of decision, state competency law governs
2) presiding judge
3) jurors in the case or regarding most matters related to deliberations
When can jurors testify?
1) external influence (bribe, reading news)
2) mistake in entering verdict onto verdict form (scrivener’s error)
Lay witnesses can testify about opinion when:
It is rationally based on perception, helpful, and not based on scientific, technical, or other specialized knowledge
What if judge sustains objection to your offer of lay opinion?
Elicit underlying facts then try to introduce opinion again
Expert testimony Prerequisites:
1) qualification as expert
2) reliability of testimony
3) helpfulness to jury
Qualification of an expert
Scientific, technical, or other specialized knowledge will help truer of fact to understand the evidence a witness qualified as an expert by knowledge, experience, training or education may testify in the form of an opinion
3 paths to attack an expert on cross exam
Attack
1) the person (qualifications)
2) the product (data)
3) the process (methodology)
How to qualify as an expert
Establish educational background and experience as well as the witness’s familiarity with the lawsuit
What can opposing counsel do about qualifying an expert
Offer to stipulate or challenge qualifications
Don’t accept stipulation from opposing counsel , hearing experience is persuasive for the jury
Who decides that an expert is qualified?
The judge
Reliability of expert testimony
Frye or Daubert year: peer review, methodology testable, known rate of error, generally accepted in the field
Do facts or data relied on by experts need to be admissible?
No, as long as of the type reasonably relied on by experts in the particular field
Bases for Expert Testimony
1) first hand observation
2) testimony heard by the expert at trial
3) hypothetical question given at trial
4) outside data before trial
Expert data: facts or data otherwise inadmissible shall not be disclosed to the jury unless
The court determines that their probative value substantially outweighs their prejudicial effect (reverse 403)
Opinion on ultimate issue
Excluded in criminal cases with expert opinion about the D’s men’s rea
Can the court appoint experts?
Yes. Both sides can still call their own experts.
Who has the burden to prove a privilege?
The claimant
Attorney client privilege
When legal advise sought from acting legal adviser. Communications made in confidence by client are permanently protected from disclosure unless waived.
Duty of confidentiality
Broad, applies everywhere (judicial and non-judicial), extends to things other than communications, cannot prevent court ordered disclosures
Future crime fraud exception
1) client engaged in or planning from/fraudulent conduct when sought advice or client committed a crime or fraud after advice and
2) attorney’s help sought to further criminal/fraudulent activity
Courts can review communications to which a claim of privilege has been made
True
Can attorney waive attorney client privilege?
Not without client consent. Attorney can’t waive intentionally but can waive negligently
Scope of a/c or w/p waiver
Inadvertent: can never result in waiver beyond what was disclosed
Intentional disclosure: extension only if same subject matter and fairness
Marital confidence privilege
Covers only confidential communications not observations, doesn’t cover before marriage, works in all types of cases, both spouses hold the privilege, survives death, divorce etc
Adverse spousal testimony privilege
Covers all types of testimony including non-confidential, covers things pre-marriage, criminal cases and civil cases tethered to criminal cases only, only witness spouse holds the privilege, does not survive death or divorce
Best evidence rule
To prove contents of writing, photo or recording the original is required unless:
-unavailable and unavailability not due to proponent bad faith
When is a duplicate not admissible as original?
1) genuine question raised as to the authenticity of the original
2) it would be unfair, under the circumstances, to admit the duplicate in lieu of the original
For public records, is a duplicate admissible?
Certified copy is ok without accounting for the original but a duplicate is not admissible as an original. If original is lost a certified copy is preferred over the original.
When can BER summaries be used?
- the court finds the underlying documents too voluminous
- underlying documents available to opposing party for inspection
- underlying documents are admissible
- summary must be accurate
- must be properly introduced
What is the role of the jury for BER?
When the issue is whether:
- the asserted writing, recording, or photo ever existed
- another WRP produces at trial is the original
- other evidence of contents correctly reflects the contents
Hearsay is not admissible unless:
Federal statute, FREs or other rules prescribed by the Supreme Court says differently
What is a declaring?
The person who makes the statement
What is a statement?
An oral or written assertion or nonverbal conduct if it is intended as an assertion
Why is hearsay excluded?
- faulty perception
- faulty memory
- faulty communication
- insincerity
Is hearsay within hearsay inadmissible?
Not if each part confirms with an exception.
Is computer stored data entered by a human hearsay?
Yes, but if generated by the computer itself without assistance or input of a person, not hearsay
To prove the truth of the matter asserted, five common categories of non- hearsay uses of statements
1) impeachment
2) effect on hearer or reader (notice)
3) verbal acts (forming a contract)
4) state of mind
5) verbal objects (bumper stickers used to identify a car/object)
Are implied assertions hearsay?
No, only assertions are hearsay.
Who has the burden on proving that conduct (or silence) is an assertion?
The party claiming the intention existed.
How are ambiguous/doubtful cases resolved?
In favor of not intent and therefore admissibility
Merchandise, bills or other similar documents
Are not introduced for the truth of what they assert. Instead for the inferences that can be drawn from where they were found to link a defendant to a particular place
AKA implied assertion: not hearsay
Statutorily defined non- hearsay prior inconsistent statement
Declarant Must testify and be subject to cross-exam,
Setting: formal oath/transcript/ other proceeding doesn’t count as police interrogation
Can be I don’t remember
Statutorily defines non hearsay prior consistent statement
Must testify and be subject to cross exam,
Setting: any setting (don’t have to be under oath)
Other reqs: response to attack of improper motive or to rehabilitate credibility
Statutorily defines non hearsay prior statements of identification
Declarant must testify at trial and be cross examinable and the identification was made after perceiving the person
Statutorily defines non hearsay opposing party statements
Declarant need not testify or be subject to cross examination, the statement need not have been made in a formal setting
Can it be invoked by a party to get her own statement or of agent or co conspirator admitted
Don’t need personal knowledge
Types of opposing party statements
- Individual (express admissions)
- adoptive admissions (express, silence, possess written statement plus)
- agents and employees (statement during existence of relationship, matter within scope of agency, relates to the declarant’s duties)
- co-conspirators (a conspiracy existed, statement was made during conspiracy, in furtherance of the conspiracy and offered against party) (burden of proof is a preponderance) (confessions, narratives, idle chatter not in furtherance)
What are unrestricted hearsay exceptions?
The declarant need not testify at trial and be subject to cross examination. Need not prove unavailability.
PSI, excited utterance, medical diagnosis/treatment, then existing state of mind, past recollection recorded (need declarant), business records, public records
Present sense impression
Subject matter: statement must describe or explain the event or condition perceived
Perception: the declarant must have personally perceived the event or condition described
Timing: the statement must be made contemporaneously with the event or immediately after
Excited utterance (unrestricted)
1) starting event/condition
2) personal knowledge: declarant must personally observe event
3) excitement: must still be under stress when statement is made
4) subject matter: statement need only relate to exciting event/condition( broader than psi)
Statement for medical diagnosis (unrestricted)
Statement must be made for the purpose of medical diagnosis or treatment (must be reasonably pertinent for diagnosis or treatment) (motive+content( of a type reasonably relied by a physician)
- can be made to someone other than a physician
- blame casting is not admissible
Statements of them existing state of mind (unrestricted)
Then existing physical or mental condition or proof of subsequent future conduct.
- only applies to present pain. Reference to cause of condition is not admissible.
- ex. Criminal D’s own prior statements, victim’s prior statements
- if backward looking probably inadmissible
Past recollection recorded (unrestricted but witness must read into evidence)
1) a record (writing, audio recording)
2) witness had prior personal knowledge
3) witness has insufficient recall
4) made or adopted by the witness
5) made when natter was fresh in witness’s memory
6) accurate when made
- must read record into evidence
- if prepared by multiple, every author must testify
Business record exception (unrestricted)
- a record
- made at or near time
- by/ from a person with knowledge
- made and kept in regular course of business and
- opponent does not show it to be untrustworthy (burden on opponent)
- outsider statements contained in business records are not admissible
- can use certified documents to avoid authentication
- if unusual can use absence of records (must have testimony of search)
Public records (unrestricted)
- activities of office
- matters observed under duty to report excluding in criminal cases matters observed by law enforcement
- but in civil cases and against the government in criminal cases, factual findings resulting from an investigation pursuant to authority granted by law
- opponent doesn’t establish untrustworthiness (they are presumed trustworthy)
- if trustworthy, no foundation witness needed
- doesn’t cover records filed with an agency only those generated by the agency
- can show absence
What does unavailable mean for restricted hearsay exceptions?
Privilege, refusal to testify, lack of memory, death/infirmity, unable to procure
Exclusion: can’t use these exceptions if unavailability was due to wrongdoing of proponent and proponent had intent to prevent the declarant from attending/ testifying
Former testimony exception (restricted)
Declarant must be unavailable at current trial, prior proceeding must have cross exam (no grand jury), opposing party had prior opportunity and similar motive to develop testimony
So: unavailable, opportunity to develop testimony, and similar motive
- how do you get it in? Witness who observed prior testimony or transcript but need (past recollection recorded, psi, public record)
Dying declarations restricted hearsay exception
Unavailability required
Type of cases: can only be invoked in prosecution for homicide or in a civil action
State of mind of the declarant: declarant must believe death is imminent
Subject matter of statements: only applies to statements concerning the cause or circumstances of what the declarant believed to be impending death, can identify perpetrator but can’t say things about past events
Personal knowledge: have to have personal knowledge
Statement against interest restricted hearsay exception
Declarant must be unavailable and Must be a statement against declarant’s pecuniary/proprietary or penal interest
- declarant must have personal knowledge
- can be offered by and against any party
- must be self inculpatory not exculpatory and no blame shifting
- in criminal cases must have corroborating circumstances and trustworthiness
Hearsay catchall exception
6 requirements 1) not specifically covered 2) equivalent circumstantial guarantees of trustworthiness 3) materiality 4) necessity 5) interest of justice 6 advanced notice (pre trial) - very very rare
