FRE Flashcards
Standard used in determining whether an item has been properly authenticated
Court (not jury) determines:
Whether there is sufficient evidence to support a finding that the items are what the party claims them to be
104(b)
Court––not jury––determines any preliminary question about whether:
- Witness is qualified
- Privilege exists
- Evidence is admissible
103
Preserving a Claim of Error
Party who wishes to preserve right to challenge the admission of E on appeal must, on the record:
- Timely object or move to strike; and
- Unless apparent from context, state the specific ground for the objection or motion to strike
THEN –> if ruling excludes E, party can make an offer of proof to preserve the claim for appeal
When is use of Extrinsic E for impeachment allowed?
- W has a change to explain or deny
- OP can question W about statement on redx,recx
Cannot use extrinsic E after witness is off the stand!!
When is a PIS admissible as substantive E and not just impeachment E
When a hrsy exception/exclusion applies!!
Intrinsic E
questioning the W about their T
Extrinsic E
introduce E outside of W’s T to contradict what they said
Can only be used if W can explain/deny!
Only admissible if hrsy exception/exclusion applies
803(3)
Then existing mental, emotional, or physcial condition
- motive, intent, plan
- fear, bodily health
*this is forward/present looking; does not apply to past statements
“i did not want to commit that crime” post-arrest
Does a statement of memory or belief qualify under 803(3)
No, this is a reflection on prior event or belief
Inadmissible unless related to DC’s will
In a diveristy jdx case, does federal or state law regarding privilege apply?
State Law applies
Fed CL applies to all other claims in fed court (ie, fed Q)
Who decides if E is admissinble
104
Judge
Who decides weight + credibility of E
Jury
Preserving a claim of error
103
ruling affects a substantial right of a party, party must:
E is admitted –> Object
E is excluded –> offer of proof
Plain error
error that is obvious to a reviewing court
If a plain error affects a substantial right –> grounds for reversal (even w/o challenge)
Rule of Completeness
106
If a party only partially introduces an E, the OP can compel the intro of the omitted portion to help explain the admitted E
Judicial Notice
Court’s acceptance of a fact as true w/o requiring formal proof
Adjudicative facts – if the fact is generally known in the community; can easily be ascertained
if civil case, jury takes fact as conclusive; criminal, then jury can disregard
Instructing the jury –judicial notice
Civil case – jury must be intruscted to accept the noticed judicial fact as conclusive
Criminal case –jury must be intscted that they MAY OR MAY NOT accept the fact as conclusive
Who has control over the order of the witnesses/presentation of a case?
Judiciary – this is to be as effective as possible
611, court has broad discretion to exercise reasonable control over the mode & order of W
Can the judiciary question or call a witness
YES
Scope of CX
- scope of dx
- witness credibiltity
Scope of RDX and RCX
scope is up to the court’s discretion
Motion to strike
if a W’s answer is improper, then only the examining counsel can move to strike
Sequestration (exclusion) of Witnesses
615
At party’s request (or on own initiative), court must exclude/sequester the Ws
EXCEPT FOR:
1. party who is a natural person
- officer/employee of a party that is a corp
- person’s whose presence is essential (expert)
- persons permitted by law (ie victim)
Types of Burdens
Persuasion
- civil –POE
- criminal – BRD
Production –must produce enough E for each element of a claim
Destruction of E
raises a rebuttable presumption that the E would be unfavorable to the destroying party IF OP establishes
- destruction intentional
- E is relevant
- alleged V acted w/ due diligence as to the destroyed E
Relevance
401–402
E is relevant if it is probative and material
All relevant E is admissible, unless:
1. excluded by specific law/rule/constitution
2. fails 403 – prob substantially outweighed by unfair prejudice
403
- probative value
- substantially outweighed
- by unfair prejudice
unfair prejudice:
- misleading
- confusing
- undue delay
- wasting time
Character Evidence
Usually inadmissible; offered to show that D acted in conformity therewith
When is CE admissible in a civil case
character is an essential element of claim/defense
E can be SIC or reputation/opinion
- defamation;
- neg hiring/firing/entrustment;
- child custody
CE in Crim Cases – D’s character
π –CE not allowed
∆–allowed to introduce E of “good character” to show inconsistency w/ crime –> BUT must be pertinent to the crime charged + must be via reputation or opinion
- ∆ opens the door –> π can rebut
CE in Crim Cases – V’s character
∆ – D can introduce reputation/opinion E of V’s character when relevant
- E of V’s sexual conduct is v limited
π – can rebut once ∆ has introduced bad E
How to prove CE?
reputation
opinion
Impeaching w/ CE
CE of a W’s untruthfulness is admissible to impeach a W
CE offered for other reasons, bad acts
404(b)(2) MIMIC
Admissible to show:
- Motive
- Intent
- absence of Mistake
- Identity
- Common plan
When ∆ askes, π must give notice
When can SIC be used on CX
Character W can be asked about SIC committed by the person about whom W is testing
SIC in a crim case
SIC not admissible to show ∆’s propensity
When character is an essential element of crime/defense –> relevant SIC can be introduced
Habit
406
E of a person/org’s routine practice is admissible to prove they acted in accordance w/ that practice on a particular occasion!!
TIP: needs to be “semi-automatic”
Do not need corroboration
Competence
person w/ knowledge is competent
no min age
mental abilities affect credibility; not competence
Impeachment – overview
- challenge
- to a W’s testimony
- based on:
- character for untruthfulness
- bias
- ability to perceive or T accurately
- contradictory prior statement
- another W
Witness’s Character for Truthfulness
- Cannot bolster W credibility unless truthful character is directly attached
- Can attack via reputation/opinion
- SIC is generally not allowed!!
- on CX, can use SIC, but once you get an answer, you have to accept it!!
Impeachment –Criminal Conviction
Can use conviction to impeach W’s character for truthfulness
Conviction Involving Dishonesty/False Statement
can always use to impeach a W for any conviction
Conviction NOT Involving Dishonesty/False Statement
admissible to impeach only if:
(a) crime punishable by death; or
(b) imprisonment of 1+ years
If W is ∆ –> admissible if prob value outweighs the prejudicial effect on that ∆ (NOTICE, does not need to be substantially outweighed)
Other W –> generally admissible
Conviction or Release After 10 Years
Admissible if:
- passes 403
- reasonable written notice of intent to use
When is a conviction NOT admissible
when subject to a pardon, annulment, or other action based on a finding of innocence
pending appeal does not prevent impeachment
Juvenile Adjudication – Impeachment
not admissible to impeach ∆
Can impeach other Ws if an adult conviction for that offense would be admissible + admitting it is necessary to determine guilt/innocence
Prior Inconsistent Statement –Impeachment
PIS can be used to impeach if inconsistent w/ W’s T
Extrinsic E is ONLY ALLOWED if the W has a chance to explain/deny and OP can examine the W about it
Impeachment of a HRSY DC
Credibility of a DC can be attached by any E admissible if DC has testified as a W
If DC called as a W –> can be CX’d
How to rehabilitate a W
- explain/clarify on RDX
- offer opinion/reputation E of W’s truthfulness (only if character attached on that ground)
- Offer PCS to rebut express/implied charge that W lied due to improper motive
Can you use religious belief to impech
NO
Can you impeach on collateral issues
If you want to use Extrinsic E, then NO
Present Recollection Refreshed
- W states cannot remember
- Ask if anything will jot their memory
- Give W doc/object that will help
- Take doc/object back
- Re ask the Q
E is not admissible, unless OP enters it!
Past Recorded Recollection
803(5)
- W cannot remember
- After showing them doc/memo, still cannot remember
- Can read relevant portion into record
NOT admitted into E, unless OP offers it
Lay Witness
701
- rationally based on W’s perception
- helpful to clear understanding of W’s T
- Not based on scientific, technical, or specialized knowledge
Expert W
702
W who is qualified by knowledge, skill, experience, training, education––can T in the form of opinion if:
- based on sufficient facts & data
- based on reliable principles & methods
- Principles & methods applied reliably to facts in case
- will help trier of the fact
Ultimate Issue
704
Civil – not automatically objectionable
Crim – Expert CANNOT state an opinion about whether ∆had the requisite mental state
Bases of Expert Opinion
703
can base on inadmissible facts if:
- normally would rely on it in the field
- made aware of
- personally observed
When is a lawyer prohibited from paying a witness to…
prohibited when
- payment is more than necessary for travel/work
- contingent on result
- otherwise prohibited by law
When can an expert be paid
appearance fee
travel allowance
Which witnesses can testify about an 803(6) that are NOT the custodian
Any witness w/ personal knowledge
Do the FRE apply to GJ proceedings/
NO, only way to keep info out is if it is privileged
When are negotiations re settlement inadmissible
- to prove content
- to impeach via PIS
NOTE: you can use the settlements to impeach via bias
Public Records Exception
Public record that sets out:
- activities of a public office/agency;
- matters observed pursuant to a legal duty to report––excluding observations of PO in criminal cases; OR
- factual findings from authorized investigation offered in a (1) civil case or (2) against govt in criminal case
NOTE: Statements of TPs in the reports are NOT admissible here!!
When do the FRE not apply?
Preliminary Question determiantions
GJ proceedings
Bail & other release hearings
Probation/Parole
Sentencing hearings
Search/arrest warrant determiantions
Preliminary examinations in crim cases
When is a W unavailable
- Privilege
- Refuses to T
- Lapse of Memory
- Dead or ill
- Cannot be found
804 Exceptions
W needs to be unavailable:
- Former T
- Dying Declaration
- Statement against interest
- Personal/family history
- Offered against a party that wrongfully caused absence
801(d)(2)(e) – Coconspirator
Statement needs to be made in futherance of conspiracy––it needs to be made while trying to commit crime
If statement was said to TP outside of actively committing crime, that does not apply
- Here, if the statement is incriminating, and W is unavailable, then look at Statement against interest
How to impeach with PIS
Intrinsic E – CX the W about the statement
Extrinsic E –can use EE if:
(1) W has opp to explain/deny
(2) OP can question the W
HYPO: During ∆ case, ∆’s GF said ∆ was with her. π cx’d her with a PIS that she told PO he was not with her till late at night. She denies it. She gets off stand. During rebuttal, π calls PO to T that GF said ∆ was with her in the morning. Is this allowed
YES, only an impeachment E
Allowed bc the EE requirement is satisfied since she was crossed on it, so now π can rebut with EE
Note: I think you cannot rebut with SIC but can with PIS
