FRE - Oates 2023

Question 1

104

Preliminary Questions, Conditional Relevance

Answer 1

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(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.

Question 2

104(b)

Huddleston Standard

Answer 2

The judge decides whether the jury can find by a preponderance of the evidence that the act occurred and that the defendant was the actor.

Occurs at the relevance stage of analysis.

Question 3

105

Limiting Instructions

Answer 3

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.

Question 4

401

Relevance Defined

Answer 4

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence (probative); and

(b) the fact is of consequence in determining the action (material).

Question 5

402

Relevance Requirement

Answer 5

Relevant evidence is admissible unless it is not; irrelevant evidence is not admissible.

Question 6

403

Excluding Relevant Evidence for Prejudice, Waste of Time, Etc.

Answer 6

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.

Question 7

404(a)

Exceptions, Defendant and Victim in Criminal Case

Answer 7

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.

Question 8

404(b)

Other Crimes, Wrongs, or Acts

Answer 8

(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.

Question 9

405

Methods of Proving Character

Answer 9

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

(b) By Specific Instances of Conduct. When a person’s character or character trait 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.

Question 10

406

Habit; Routine Practice

Answer 10

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Habit is not character!

Question 11

407

Subsequent Remedial Measures

Answer 11

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• 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.

Impeachment: think narrow, perfect conflict of testimony or close

Feasibility: think broad definition or advisable, NOT physically possible

Remember: not stuck with the exact list! Sometimes you could say excluding the evidence confuses the jury, and use 105 limiting instructions

Question 12

408

Compromise Offers and Negotiations

Answer 12

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Remember:
* Only bars use of this evidence to prove or disprove validity or amount, or to impeach*

• Negotiations must be after a CLAIM
• The rule is BROAD: anything related to negotiations, think building inspection.

Question 13

409

Offers to Pay Medical and Similar Expenses

Answer 13

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Does NOT bar apologies or admissions of guilt, it ONLY bars the offer to pay.

Question 14

410

Pleas, Plea Discussions, and Related Statements

Answer 14

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Remember: this rule does not cover cops/discussions with the police about a lighter sentence, defendants can make the mistake of thinking that a cop had the negotiating or prosecutorial authority

Question 15

411

Liability Insurance

Answer 15

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.

Remember: Joan/plaintiff cannot introduce evidence that Bob works for the insurance company. The bias exception is unlocked through the actual EVIDENCE of the witness being accused of bias, not general bias of the other party. Bob the claims adjuster recorded the plaintiff in the hospital, he did not just take notes or testify, which MIGHT get in under the exception, but still probably not.

Question 16

412

Sex-Offense Cases: The Victim (Rape Shield)

Answer 16

(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 (there’s a time limit here, it’s narrow);

(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. Very narrow—does not happen a lot.

(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.

And, like always, subject to 403! Which is particularly important in this context.

Question 17

413

Similar Crimes in Sexual Assault Cases

Answer 17

(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.

Subject to 403!

NO LABELING, the proponent simply can say that the other assault happened.

Question 18

414

Similar Crimes in Child Molestation Cases

Answer 18

(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.

Subject to 403!

NO LABELING, the proponent can simply say that the other molestation happened.

Question 19

415

Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

Answer 19

(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.

Subject to 403!

NO LABELING, proponent can simply say that the other assault or molestation happened.

Question 20

607

Who May Impeach a Witness

Answer 20

Any party, including the party that called the witness, may attack the witness’s credibility.

Question 21

608

A Witness’s Character for Truthfulness or Untruthfulness

Answer 21

(a) Reputation or Opinion Evidence. 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.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

Question 22

609(a)

Witness, General Impeachment by Past Crime

Answer 22

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal 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.

Question 23

609(b)

Witness, Ten Year Limit Impeachment by Past Crime

Answer 23

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.

Question 24

609(c)

Witness, Effect of Pardon, Annulment, or Certificate of Rehabilitation

Answer 24

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.

Question 25

609(d)

Witness, Juvenile Adjudications

Answer 25

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.

Question 26

609(e)

Witness, Pendency of an Appeal

Answer 26

A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Question 27

610

Religious Beliefs or Opinions

Answer 27

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Question 28

612

Writing Used to Refresh a Witness

Answer 28

The party that produces the writing to refresh the witness CANNOT introduce it into evidence (show it to the jury). BUT the adverse party can cross examine, inspect, AND introduce into evidence.

Question 29

613

Witness’s Prior Statement

Answer 29

(a) 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.

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

Question 30

613

When is Silence an Adoption?

Answer 30

1) the adopted statement was heard and understood by the party against whom it is offered

2) the party was at liberty to respond

3) the circumstances naturally called for a reponse

4) the party failed to respond

Question 31

613

Miranda and Silence

Answer 31

• post-Miranda silence may not be used to impeach a defendant who takes the stand at trial
• post-Miranda silence is not an adoptive admission under 801
• In-custody silence may be used to impeach, BEFORE Mirandized
• There is a Circuit split on whether silencer may be an adoption under 801 in custody, BEFORE Mirandized

Question 32

701

Opinion Testimony by Lay Witness

Answer 32

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Question 33

702

Testimony by Expert Witness

Answer 33

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

WITNESS MUST BE QUALIFIED BY JUDGE FIRST!

(a) the expert’s scientific, technical, or other 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’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Question 34

801(d)(1)

Exceptions, Declarant Witness’s Prior Statement

Answer 34

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or

(C) identifies a person as someone the declarant perceived earlier.

Question 35

801(d)(2)

Exceptions, An Opposing Party’s Statement

Answer 35

The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Question 36

803

Exceptions Regardless of Declarant’s Availability

Answer 36

(1) Present Sense Impression

(2) Excited Utterance

(3) Then-Existing Mental, Emotional, or Physical Condition

(4) Statement Made for Medical Diagnosis or Treatment

(5) Recorded Recollection

(6) Records of a Regularly Conducted Activity

(7) Absence of a Record of a Regularly Conducted Activity

(8) Public Records

(9) Absence of a Public Record

(10) Judgment of a Previous Conviction

Question 37

803(1)

Present Sense Impression

Answer 37

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Question 38

803(2)

Excited Utterance

Answer 38

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Can be hours, maybe a day after! Judgment call.

Question 39

803(3)

Then-Existing Mental, Emotional, or Physical Condition

Answer 39

A statement of the declarant’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), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

“I plan to go to my office.”

Does NOT go backwards: “I intended to go to my office.”

Question 40

803(4)

Statement Made for Medical Diagnosis or Treatment

Answer 40

A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Question 41

803(5)

Recorded Recollection

Answer 41

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Question 42

803(6)

Business Records

Answer 42

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge; (So it doesn’t have to be the declarant with the knowledge, the declarant who wrote it down can learn it from someone else)

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Question 43

803(7)

Absence of Business Records

Answer 43

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

So this is used if you want to show the lack of a record is some evidence that something usually recorded was not recorded.

Question 44

803(8)

Public Records

Answer 44

(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.

So this focuses on a government entity, and (6) and (7) cannot be used to backdoor a public record because it has this own category

You can get a police report in in a civil case, or against the government in a criminal case, but not otherwise

Question 45

803(9)

Absence of Public Records

Answer 45

(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.

Question 46

803(22)

Judgment of a Previous Conviction

Answer 46

Evidence of a final judgment of conviction if:

(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;

(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;

(C) the evidence is admitted to prove any fact essential to the judgment; and

(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.

Question 47

804(a)

When is the Declarant Unavailable?

Answer 47

A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure

But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Question 48

804(b)

Exceptions, Declarant Unavailable

Answer 48

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

SOMEONE ELSE is cut out! “With John” is removed, because that is not against interest–it possibly reduces guilt.

(6) Statement Offered Against a Party That 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.

Question 49

805

Hearsay Within Hearsay

Answer 49

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.

Question 50

806

Attacking and Supporting the Declarant

Answer 50

When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.

AND if the party it was admitted against then actually calls the witness, they may examine as if on cross (meaning specific instances can be asked about!)

Question 51

807

Residual Exception

Answer 51

View this as a hail mary, it doesn’t really work often.

You must say that you have exhausted every other hearsay exception.

You must say you can’t prove the fact any other way, and you have tried everything.