FRE Flashcards
FRE 104(a): Preliminary Questions In General
(a) Court must decide any preliminary question about WIT qualification/EV Admissibility.
Not bound by evidence rules.
POTE
FRE 104(b): Conditional Relevance
(b) If relevance depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the fact does exist.
May admit on condition that proof will be introduced later.
POTE
FRE 401: Test For Relevant Evidence
Evidence is relevant if:
CEC: any tendency in reason to make a significant fact more or less likely
CEC 780: Ways of Attacking/Defending Witness Credibility (includes DEF)
(DCCOHBCIEAA)
CEC: any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (DCCOHBCIEAA)
(a) demeanor (b) character of testimony. (c) capacity (d) opportunity to perceive any matter about which he testifies. (e) honesty/veracity (f) bias/interest/motive. (g) PCS (h) PIS (i) existence of fact testified to (j) Attitude. (k) Admission of untruthfulness.
FRE 402: General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
Some Law
Irrelevant evidence is not admissible.
FRE 403: Excluding Relevant Evidence for (PCMDWC)
Exclude relevant evidence if PV value substantially outweighed by risk of:
(1) prejudice,
(2) confusing,
(3) misleading,
(4) delay,
(5) wasting time,
(6) cumulative.
FRE 404: Character Evidence; Other Crimes, Wrongs, or Acts
(a) Character Evidence.
(1) Prohibited Uses. 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 or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a 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) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
FRE 404(a): Character Evidence
(1) Character generally inadmissible
(2) CRIM DEF/VIC: DEF can open door but Pros can then rebut;
- (subject to Rape Shield(412) if about VIC)
- Can bring in for VIC in self defense
(3) WIT character can be brought in under 607-609
FRE 404(a)(3): Character Evidence, Exceptions to attack/rehabilitate WIT (607-609)
(3) Exceptions for a Witness. WIT character may be admitted under 607-609
607: Any Party Can Impeach
608(a): Reputation/Opinion can rehab WIT, but only if attacked first
608(b): EXCEPT under 609(crim conviction WIT impeachment), extrinsic evidence only on cross for truthfulness of WIT/other WIT.
609(a): CRIM Convictions
(1)For attacking WIT credibility,
(A) Felony must be admitted under 403 (substantial outweigh), if WIT!=DEF; and
(B) CRIM: Must be admitted when WIT=DEF, if the probative value of the evidence outweighs prejudicial effect; and
(2) Any crime must be admitted if dishonest.
(b) No Evidence After 10 Years from conviction or release.
admissible only if: (1) PV substantially outweighs its PE; and (2) Notice.
(c) Crime Not admissible if: (1) Pardon with no subsequent felony; or (2) pardon because innocent.
(d) Juvenile Adjudications. Juvie admissible only if: (1) CRIM; (2) WIT!=DEF; (3) adult conviction admissible; and (4) necessary to fairly determine guilt or innocence.
(e) Appeals don’t matter
Governed by 405
FRE 404(b): Other Crimes, Wrongs, or Acts (MOIPPKIMA)
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Character to show the person acted in accordance therewith.
(2) Permitted Uses. Another purpose, such as proving motive/opportunity/intent/preparation/plan/knowledge/identity/absence of mistake/lack of accident.
Governed by 405
FRE 405: Methods of Proving Character
(a) If character/trait is admissible, can prove with reputation/opinion. On cross of character WIT, can use specific instances.
(b) If charactercha/racter trait essential element, may use specific instances on direct.
Governs 404
FRE 406: Habit; Routine Practice
Habit or Organization Routine may be admitted to show they acted in accordance it.
FRE 407: Subsequent Remedial Measures (NCDW)
(OCF)
Subsequent remedial measures inadmissible for
negligence;
culpable conduct;
a defect in a product or its design; or
a need for a 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.
CA: Can bring in for strict liability cases (product defect)
FRE 408: Compromise Offers and Negotiations
(BUO)
(a) Prohibited Uses. Offer/Conduct/Statement not admissible to prove validity/amount of a disputed claim or to impeach with PIS
(b) Exceptions. WIT bias/prejudice, disproving undue delay, or proving obstruction of criminal investigation/prosecution.
FRE 409: Offers to Pay Medical and Similar Expenses
Offer to pay inadmissible for liability, but admission of fault is
CA: Can’t admit admission of fault
FRE 410: Pleas, Discussions, and Related Statements
NOTE FROM DEC 8 REVIEW: PIS in plea hearing can’t be used at trial, but can be subsequently prosecuted for perjury in FEDERAL system, but PIS in plea hearings can be heard in California.
FRE 411: Liability Insurance
(NW)
(BPAOC)
Insurance not admissible for:
Negligently/acted wrongfully.
May admit for another purpose such as: bias/prejudice/agency/ownership/control
FRE 412: Sex-offense Cases: The Victim Different in CA [SCC]
(a) Not admissible for other sexual behavior or predisposition
(b) Except
Criminal May admit (subject to 352/403)
1. Source
2. Consent
3. Exclusion would violate Due Process/Confrontation
Civil: Probative value substantially outweighs danger of harming VIC and unfair prejudice to any party. Reputation can be admitted if Victim placed it in controversy.
(c) Procedure: (Motion, Notice, Hearing)
FRE 413: Similar Crimes in Sexual-Assault Cases [AA]
(a) Permitted Uses. CRIM may admit 1. Any other Sexual Assault. 2. For any relevant matter
(b) Disclosure
FRE 414: Similar Crimes in Child Molestation Cases [AA]
(a) Permitted Uses. CRIM may admit 1. Any other Child Molestation. 2. For any relevant matter
(b) Disclosure
FRE 415: Similar Acts in CIVIL Cases Involving Sexual Assault or Child Molestation [AA]
(a) Permitted Uses. CIVIL 1. Any other sexual assault/child molestation. 2. Any relevant matter
(b) Disclosure
CEC 1109: Elder Abuse [DEC;A] (DISCLOSE)
- DV
- Elder Abuse and
- Child Abuse
admissible.
Disclosure needed.
FRE 601: Competency to Testify in General
Every person is competent unless rules show otherwise. In state law civil claims, state competency governs.
FRE 602: Need for Personal Knowledge
WIT may testify only if: evidence sufficient to show personal knowledge (include’s WIT’s own testimony, does not apply to experts)
FRE 606: Juror’s Competency as a Witness
(a) At the Trial. JURORS CANT BE WITNESSES
(b) Inquiry of Validity of a Verdict or Indictment. (1) Jury deliberations prohibited unless (A) Extraneous prejudice (B) outside influence (C) Mistake in entering the verdict
FRE 610: Religious Beliefs or Opinions
WIT religion not admissible for credibility
FRE 613: Witness’s Prior Statement
Especially 613(b): ExEv if (E/D)
(a) Can examine prior WIT statement without showing but must show opposition on request
(b) ExEv of WIT PIS. admissible only if (1) Opportunity to explain/deny
AND opposition gets to examine WIT, (3) OR if justice so requires.
Does not apply to an opposing party’s statement under Rule 801(d)(2).
FRE 701: Opinion Testimony by Lay Witnesses [RHN]
If Lay WIT, opinion testimony limited to one that is:
(a) rationally based on the witness’s perception; (b) helpful to understanding testimony or determining a fact in issue; and (c) not specialized knowledge.
FRE 702: Testimony By Expert Witness: Distilled from attack outline [BSCM]
Admissible if
1. beyond common experience
-such that the opinion would help with a relevant fact or issue
- special knowledge/training/experience
- reasonably certain; and
- methodology reliable (POTE by judge)-
FRE 703: Bases of an Expert’s Opinion Testimony
May base opinion on:
1. Personally aware of/observed facts/data.
- Field knowledge okay if admissible,
- Or if PV substantially outweighs PE
FRE 704: Opinion on an Ultimate Issue
(a) Not Automatically Objectionable.
(b) Exception. CRIM expert can’t state Mens Rea or element opinions.
FRE 705: Disclosing the Facts or Data Underlying an Expert’s Opinion
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.
FRE 801(a): Definitions; Statement
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
FRE 801(b): Definitions; Declarant
(b) Declarant. “Declarant” means the person who made the statement.
FRE 801(c): Definitions; Hearsay
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
FRE 801(d) and 803: Hearsay Exceptions (DEC available) Listed in Syllabus
[POPEEDRPA]
(d) Statements That Are HEARSAY EXCEPTIONS FOR THE PURPOSE OF THIS CLASS. A
801(d)(1) A Declarant-Witness’s Prior Statement.
801(d)(2) An Opposing Party’s Statement.
803(1) Present sense impression
803(2) Excited Utterance
803(3) Then Existing Mental/Emotional/Physical Condition
803(4) Made for Diagnosis/Treatment
803(5) Recorded Recollection
803(8) Public Records
803(10) Absence of Public Record
FRE 804(b) Hearsay exceptions (DEC unavailable)
[FDIW]
DECLARANT UNAVAILABLE:
804(b)(1) Former Testimony
804(b)(2) Dying Statement
804(b)(3) Statement Against Interest
804(b)(6) Statement offered against party that wrongfully caused DEC’s unavailability intentionally
Confrontation Clause Flowchart Rules
(CPNWD)
If Hearsay (801(c)) that fits within an exception, offered against DEF in CRIM case; inadmissible under Confrontation Clause unless
DEC appears for cross-examination at trial
DEC unavailable but DEF had past chance to cross examine
Non-testimonial statement
DEC unavailable because DEF wrongful act
Dying Declaration (maybe)
Then it just depends on FRE 403 Probativeness/Prejudice
FRE 801(d)(1): Not Hearsay (TREAT AS EXCEPTION); A Declarant-Witness’s Prior Statement
[IP;CRR;I]
(1) DECWIT’s Prior Statement. IF The declarant 1. testifies and 2. crossex about a prior statement, and the statement:
(A) PIS + Under penalty of perjury
(B) PCS + used to (i) Rebut fabrication or improper influence/motive in so testifying; or (ii) rehabilitate DEC when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
FRE 801(d)(2): Not Hearsay (TREAT AS EXCEPTION), an Opposing Party’s Statement admissible if
Made by [IAAAC]
(2) An Opposing Party’s Statement (PIS). Statement offered against an opposing party and made by: [IAAAC]
(A) individual/representative; (B) manifested adoption/belief; (C) person authorized; (D) agent/employee; or (E) coconspirator.
FRE 802: The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
FRE 803(1): Present Sense Impression [DW]
(1) Present Sense Impression. A statement
1. describing or explaining an event or condition,
2. made while or immediately after the declarant perceived it.
CA mixes 803(1) and (2) excited utterance test (primary difference is “under the stress” instead of “while or immediately after”)
FRE 803(2): Excited Utterance [SS]
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. This is also the CALIFORNIA test for (1) (Act/condition/event perceived 2. Made under stress)
FRE 803(3): Then-Existing Condition (Includes motive/intent/plan)
(3) Then-Existing Mental, Emotional, or Physical Condition. DEC’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),
FRE 803(4): Statement for Diagnosis or Treatment [DD]
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
FRE 803(5): Recorded Recollection [KFA]
(5) Recorded Recollection. A record that:
1. Knew (past tense)
2. Fresh (was)
3. Accurate to WIT’s knowledge
FRE 803(8): Public Records [S(AM/{FL})]
(8) Public Records. A record or statement of a public office if:
(A) 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
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
FRE 803(10): Absence of a Public Record [P(E/(ON)]
(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) CRIM, Prosecutor provides NOTICE and DEF does not object
FRE 804(a): Hearsay Exceptions; Declarant Unavailable If
[PRFD; AF,A/(A/T)]
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) Priveliged; (2) Refuses; (3) Forgot; (4) death/infirmity/physical illness/mental illness; or
(5) DEC absent and the statement’s Proponent failed reasonably to procure:
(A) Attendance, if under 804(b)(1) Former testimony, or 804(b)(6) Wrongfully caused unavailability; or
(B) Attendance or testimony, under Rule 804(b)(2), (3), or (4). (dying dec, against interest, family history)
(a) Does not apply if the Proponent wrongfully caused the DEC’s unavailability.
FRE 804(b)(1): DEC unavailable; The Exceptions; Former Testimony
[A(O/M)]
(1) Former Testimony. Testimony that:
(A) given as WIT at ANY TRIAL; and
(B) Adversary had Opportunity/Motive to cross-examine
FRE 804(b)(2): DEC unavailable; The Exceptions; Deathbed Statements
[BC(CA:A)]
Dying Declaration: Homicide/Civil
Declarant 1. Believed his death was imminent, 2. Statement concerned the cause of his “impending doom” CA:3. DEC actually died
FRE 804(b)(3): DEC unavailable; The Exceptions; Statement Against Interest [C(PP{CA:S}CL)+C]
(3) Statement Against Interest.
(A) Reasonable person would have made only if belief in truth, because so contrary to DEC’s
- Proprietary
- pecuniary or
- SOCIAL(CA) interest
- DEC’s legal claim(s)
- Liability for DEC
(B) CRIM: corroborating circumstances
FRE 804(b)(6): DEC unavailable; the exceptions; wrongful cause of unavailability
(6) Offered Against a Party, Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
FRE 805: Hearsay Within Hearsay
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.
FRE 806: Attacking/Supporting DEC
If Hearsay has been admitted, DEC can be attacked or supported exactly like a witness in 608/609
FRE 901(a): Authenticating or Identifying Evidence
(a) To Authenticate: evidence sufficient to support a finding that the item is what the proponent claims it is. (POTE, up to jury)
FRE 901(b) Examples of Authenticating Evidence
(b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.
(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.
FRE 902: Evidence that is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: (Generally speaking any sort of signed documents that are 1. Public, Certified 4. Newspapers/Trade/Commercial 5. Electronic).
FRE 1001: Definitions That Apply to This Article ORIGINAL and DUPLICATE
Original = Original
Duplicate = Reproduction via accurate technique
FRE 1002: Best Evidence Rule
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
ACN: WIT of event can testify that document accurately depicts it
Effectively irrelevant under FRE 1003 and 1004
(CA: (CA: Written Notes of Original OK)
FRE 1003: Duplicate Override of BER
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.
FRE 1004: Exceptions to BER
Original is not required and other evidence about contents admissible if:
(a) all originals gone;
(b) originals cannot be obtained;
(c) Adversarial party had original/notice, and failed to produce; or
(d) tnot closely related to a controlling issue.
Procedural Rules
613(b) is really what is relevant (extrinsic evidence of witness’s prior statement)
405(a) reputation/opinion on direct, specific instances on cross 405(b) specific instances if character trait is “essential element” (need to review exactly what that means, I know it is limited to very few situations)
608, links to 404(a)(3), (witness character)
Documents give me a R.A.S.H.
Relevance (is the document relevant?)
Authentication
Secondary Evidence (duplicates, oral testimony about content of writing)
Hearsay (is it hearsay or does it fit hearsay exception
Crawford summary slide - Gilly says solves 90% of CC questions
CRAWFORD
1. Declarant available and subject to cross-ex?
- No crawford issue
2. DEC unavailable but prior testimony subject to cross?
- No Crawford issue
3. DEC unavailable, no cross?
a. Depends on
i. Testimonial (Crawford Issue)
- Generally, means police and other governmental agents
ii. Non testimonial
- Hearsay law governs
- Random statement from a random person
