Federal Rules of Evidence Flashcards
Rule 401
Test for relevance:
(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 402
Relevant Evidence is generally admissible; Irrelevant Evidence is Inadmissible
Rule 403
Relevant evidence may be excluded if its probative value is substantially outweighed by:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Rule 404 a
Character evidence is generally inadmissible.
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.
General exception: character evidence is admissible for character of the witness (607, 608, and 609) or some sex-nature cases (413, 414, and 415).
Criminal case exception: D/V pertinent trait and rebuttal
Rule 404
Evidence of other crimes, wrongs or acts is not admissible to prove the character of the person
Permitted use (Prime Minister Kilo Mip): preparation, prove motive, knowledge, intent, lack of accident, opportunity, plan, identity, or absence of mistake.
Criminal trial: P must give notice.
Rule 407
Subsequent remedial measures may not be used to prove:
negligence, culpable conduct, product defect, or need for warning
But may be used for impeachment, proving disputed ownership, or feasibility of precautionary measures.
Rule 408
Compromise, or attempts to compromise, may not be used to prove liability for a claim
General exceptions: witness bias, lack of undue delay, or obstruction of criminal investigation
Criminal exceptions: related to a claim by a public office in the exercise of its authority.
Rule 409
Evidence of offer or payment of medical expenses is barred to prove liability
Rule 410
Plea agreements are inadmissible.
General exception: to complete partial account of plea discussions
Criminal exception: in perjury prosecution if statement is made under oath, on record and in counsel’s presence
Rule 411
Liability insurance is inadmissible for proving negligence / wrongful action; but not to prove other things such as agency, ownership, or witness bias/prejudice.
Rule 701
Opinion Testimony by Lay Witnesses
Must be (1) based on rational perceptions of the witness, (2) helpful to determining a fact, and (3) not based on specialized knowledge
Rule 704
Opinion on an Ultimate Issue
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact
Criminal exception: an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
Rule 801
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
NOT hearsay:
(d) (1) A Declarant-Witness’s Prior Statement
(d) (2) An Opposing Party’s Statement
Rule 802
Hearsay is not admissible
Rule 803 (1)
Hearsay exception: present sense impression
Rule 803 (2)
Hearsay exception: excited utterance
Rule 803 (3)
Hearsay exception: then existing mental, emotional, or physical condition
Rule 803 (4)
Hearsay exception: statements for purposes of medical diagnosis or treatment
Rule 803 (5)
Hearsay exception: recorded recollection
Rule 803 (6) and (7)
Hearsay exception: (absence of) records of regularly conducted business activity
Rule 803 (8)
Hearsay exception: public records and reports
Rule 803 (9) and (10)
Hearsay exception: (absence of) records of vital statistics
Rule 803 (11)
Hearsay exception: records of religious organizations
Rule 803 (12)
Hearsay exception: marriage, baptismal, and similar certificates
Rule 803 (13)
Hearsay exception: family records
Rule 601
Every person is competent to be a witness except as otherwise provided
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. Evidence to prove personal knowledge may consist of the witness’s own testimony.
Exception: this rule does not apply to a witness’s expert testimony under Rule 703.
Rule 605
Judge presiding may not testify. A party need not object to preserve the issue.
Rule 606
Jurors may not testify
Rule 607
Who May Impeach a Witness
The credibility of a witness may be attacked by any party, including the party calling the witness
Rule 609
Impeachment by prior conviction
Generally, evidence that a witness other than the accused has been convicted of a crime shall be admitted subject to 403 if punishable by one year or more of imprisonment
Must be admitted when the crime required proving — or the witness’s admitting — a dishonest act or false statement.
Special cases: more than 10 years, pardon/annulment/cert of rehab, juvenile adjudication, and pending appeal.
Rule 611
Mode and Order of Examining Witnesses and Presenting Evidence
a) Control by the Court: Court should ensure that these procedures are effective for determining the truth, avoid wasting time; and protect witnesses from harassment or undue embarrassment.
b) Scope of Cross-Examination: Cross should be limited to the subject matter of the direct exam
c) Leading questions are allowed on cross, but not direct
Rule 612
Written documents may be used to refresh the memory of the witness
Rule 613
Witness’ prior statement
Showing or disclosing the statement during examination: When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
Extrinsic evidence of a prior inconsistent statement: not admissible unless the witness is afforded an opportunity to explain
Rule 702
Testimony by an expert witness (SKEET)
A witness who is qualified as an expert by skill, knowledge, experience, education, or training may testify in the form of an opinion or otherwise if:
(a) the expert’s 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 expert has reliably applied the principles and methods to the facts of the case.
Rule 703
Bases of an Expert’s Opinion Testimony
The facts in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.
Experts can express opinions based on inadmissible evidence but that evidence may not be disclosed unless the probative value substantially outweighs their prejudicial effect.
Rule 805
Hearsay within hearsay
Rule 901
Requirement of authentication or identification of evidence.
The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Rule 406
Habit, routine, or practice
Evidence of habit/routine of a person or an organization, even w/o corroboration, is relevant to prove that conduct of person/org on a particular occasion was in conformity with the habit/routine practice.
Rule 801
Statement: (1) an oral or written assertion or (2) nonverbal conduct if intended by person as an assertion
Declarant: person who makes a statement
Hearsay: an out-of-court statement offered to prove the truth of the matter asserted
NOT hearsay: (1) declarant-witness prior statement or (2) opposing party statement,
Rule 802
Hearsay is generally not admissible
Rule 804
Hearsay Exceptions; Declarant Unavailable
Exceptions: former testimony, statement under belief of imminent death, statement against interest, statement of personal or family history, against party that wrongfully caused the declarant’s unavailability.
Rule 806
Declarant credibility
Only allow impeachment of witnesses, but when a hearsay statement has been admitted into evidence, the credibility of the declarant may be attacked (and if attacked may be supported) by any evidence which would be admissible for those purposes if declarant had testified as a witness.
Rule 807
Residual Exception for hearsay
Statement not covered by 803/804 is admissible if (A) supported by sufficient guarantees of trustworthiness and/or evidence (totality of circ), (B) more probative on the point for which it is offered than any other evidence that the proponent can obtain through reas efforts.
Rule 902
Evidence that is self-authenticating.
Extrinsic evidence of authenticity NOT req’d for certain categories of documents e.g. newspapers.
Rule 1001
Best evidence: definitions
Original: writing/recording itself OR anything intended to have same effect as an original
Duplicate: A counterpart produced that accurately reproduces the original.
Rule 1002
An original writing, recording, or photograph is required in order to prove its content unless otherwise stated.
Rule 1003
Admissibility of Duplicates
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
Rule 1004
Admissibility of Other Evidence of Content
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) Original is lost/destroyed (unless proponent lost or destroyed them in bad faith); (b) Original not obtainable by process; (c) Original in possession of opponent and after notice, didn’t make it available; (d) The writing/recording/photo is of a collateral matter.
Rule 608
A Witness’s Character for Truthfulness or Untruthfulness
A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
Generally not allowed to attack specific instances (just reputation or opinion), but see 609.
Rule 705
Disclosing the Facts or Data Underlying an Expert
Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
Rule 102
Purpose
These rules should be construed so as to (1) administer every proceeding fairly, (2) eliminate unjustifiable expense and delay, (3) and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
Rule 103
Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
Rule 614
Court’s Calling or Examining a Witness
(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
Excluding Witnesses
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 1101
Applicability of the Rules
(a) To Courts and Judges
(b) To Cases and Proceedings
(c) Rules on Privilege
(d) Exceptions
Rule 104(b)
Preliminary Questions
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
Rule 201
Judicial Notice of Adjudicative Facts
Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
Rule 301
Presumptions in Civil Cases Generally
In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.
Rule 105
Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
Primary tabs
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.
Rule 412
Rape Shield
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy
Rule 413
Similar Crimes in Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
Rule 414
Similar Crimes in Child Molestation Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
Rule 415
Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim for relief based 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. The evidence may be considered as provided in Rules 413 and 414.
(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.
