Rules Flashcards
Extrinsic evidence of a prior inconsistent statement on a purely collateral matter
- Rules 403 & 611 prohibit extrinsic evidence of a prior inconsistent statement on a purely collateral matter
- Evidence of this nature causes delay & confusion that substantially outweighs its probative value (R 403) and disrupts the orderly presentation of evidence (R 611)
- Collateral matter = it is only relevant to impeach a witness
Mode and Order of Examining Witnesses and Presenting Evidence - Rule 611
Judge must control mode/order of examining witnesses & presenting evidence as to:
- Make procedures effective for truth
- Avoid wasting time and
- Protect witnesses from harassment or undue embarrassment
Scope of cross exam
- Cannot exceed matters covered in direct & matters affecting creditability of witnesses
- Allows leading questions
Privilege must meet three criteria
1) The rel must be one that society wants to foster
2) Confidential communications must be essential to maintaining the rel
3) Injury to the rel from disclosure must be greater than benefit to the truth seeking process from that disclosure
* all are subjective
Three exceptions to attorney client privilege - Rule 502
1) Crime Fraud Exception = services of lawyer to enable or aid anyone to commit/plan what client knew or reasonably should have known was a crime or fraud
§ Client is committing or intending to commit a fraud or crime & attorney-client communications are in furtherance of that crime/fraud
2) Breach of duty to lawyer/client - can disclose info if necessary to defense against malpractice or if claiming ineffective counsel
3) Joint clients - if joint rep ends and now suing each other any client may disclose communications that occurred during rep
General admissibility of Relevant evidence - Rule 402
Relevant evidence is admissible unless any of the following provides otherwise:
1) Constitution
2) Federal statute
3) These rules
4) Other rules prescribed by the supreme court
Common Issues with Preliminary Questions Rule 407 versus Rule 104 Remedial Measures
Remedial measures do not affect relevance so the court decides the issues without deference to the jury
Writing used to refresh a witness’s memory - Rule 612
a. Any document can be used as long as the witness states that it will help them remember the necessary information
b. Allows for both while testifying or before testifying if the judge decides justice requires
c. Gives adverse parties right to inspect any writing the witness uses to refresh recollection, cross-examine witness on the writing, and introduce relevant portions of the writing into evidence
§ AP can introduce writing even if it would otherwise not be admissible but jury cannot use this as evidence
§ Judges can limit instructions to use document only to assess credibility
Pleas, Plea Discussions, and Related Statements WHAT IS A PLEA - Rule 410
D displayed “an actual subjective expectation to negotiate a plea” and
that expectation was “reasonable given the totality of the objective circumstances”
Factors:
i. Involvement of prosecutor or defense attorney
ii. Charges already filed
iii. Specific terms are discussed
iv. Govt expressed interest in D’s offer
v. Absence of caveat statements
Limits to Rule 606b - Juror’s Competency as a Witness
1) Rule does not come into play until after the jury reaches a verdict
2) Allows evidence of external inferences - attempts to bribe, coerce, or otherwise improperly influence
3) If a non juror who obtains through personal knowledge information about either internal jury process or external influences they can testify
Common Issues with Preliminary Questions Rule 404(b) versus Rule 104
- Rule 404(b) often raises questions of preliminary factual contests - admit fact evidence as long as a reasonable jury could find the factual condition that makes evidence relevant
Excluding Witnesses - Rule 615
- Allows judge to exclude a witness from courtroom during testimony of others either on own or by motion from a party
- But parties as well as witnesses whose presence is essential cannot be excluded under this- Essential = often to acquire foundation for expert testimony
§ Also cannot exclude: party who is natural person, an officer or employee of a party that is not a natural person after being designated as rep, person authorized by statute
Common Issues with Preliminary Questions Rule 406 versus Rule 104
Rule 406 raises repeated conduct is propensity or a habit and are a mixed question of law & fact
- Admissibility depends on if the proponent has laid sufficient factual foundation to satisfy rule 406 if the foundation is lacking the jury should not hear evidence
A witness’s character for truthfulness or untruthfulness - 608(b) exception from Rule 404
i. May ask witness about specific instances of conduct on cross exam to suggest the witness has an untruthful character
ii. Attorneys must limit these questions to actions that are probative of the witness’s character or truthfulness or untruthfulness
iii. The court can prohibit this conduct
iv. Bars proof of these specific instances with extrinsic evidence
- Before asking a witness about a specific incident suggesting untruthfulness, an attorney must have a good faith belief that the incident occurred
Impeaching a Witness - Rule 607
Any party - including the one that called the witness - may attack a witnesses credibility
Religious beliefs or opinions - Rule 610
a. Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility
b. Only prohibits evidence to use for witness credibility - does not preclude evidence of religious beliefs when they are relevant to other matters such as damages or motive
Methods of Proving Character - Rule 405
- When evidence of a persons character/trait is admissible it may only be provided in opinion
*On cross exam the court may allow an inquiry into specific instances - But when their character/trait is an essential element of a charge/claim then there may be relevant specific instances of the persons conduct
Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons STIPULATIONS - Rule 403
i. Balancing test requires courts to view unfair prejudice and probative value in context of all the evidence including the availability of alternative evidence - including stipulations
ii. Probative value of a stipulation usually cannot match the descriptive richness and coherent narrative of conventional courtroom testimony
iii. If probative value evenly matches prejudice the rule favors admissibility
Subsequent remedial measures WHEN THEY ARE ADMISSIBLE - Rule 407
1) Impeachment in some cases if:
- Witness makes a specific representation that conflicts with the subsequent remedial measure
- Witness makes an absolute declaration like the product was perfectly safe
- Witness was personally involved with implementing the remedial measure
Witness can make general statements of safety without invoking exception
2) IF DISPUTED proving ownership, control, or feasibility of precautionary measures
Feasibility = Party claims it was not possible to remedy because of economic, physical or other constraint
Internal Workings of Jury expanded 606(b) - Juror’s Competency as a Witness
- Allegations of physical or mental incompetence of a juror is an internal working of the jury and therefore barred under rule 606(b)
- To be admitted it must come from OUTSIDE the jury room rather than originating with the jurors themselves
a) Tanner court suggests they will stretch to label ambiguous processes as internal rather than external
b) Prohibits inquires into coercion within jury, and evidence jurors misunderstood instructions or improperly calculated damage award - Does allow evidence that jury was reading media accounts, considering outside research or investigation, reviewing documents not admitted into evidence or contact between juror and any outsider
Admissibility of Other Evidence of Content when OG is not req - Rule 1004
An original is not required if:
a) All originals are lost or destroyed and not by the proponent acting in bad faith or
b) The original cannot be obtained by any available judicial process or
c) The party against whom the original would be offered had control of the original, was at that time put on notice by pleadings or otherwise, that the original would be a subject of proof at trial or hearing and fails to produce it
d) The writing, recording, or photograph is not closely related to a controlling issue
Compromise Offers & Negotiations LIMITS - Rule 408
1) Only for disputed claims
2) Must have occured during settlement discussions
3) Only to exclude for these purposes:
a) Prove validity of an amount of a claim
b) Disprove validity or amount
c) Impeach a witness testimony through prior inconsistent statement or contradiction (does allow to show bias tho)
Prior convictions of a crime involving dishonest or false statement - Rule 609
a. 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
*Intended this subsection to encompass a narrow set of crimes like perjury, criminal fraud, etc.
Compromise Offers & Negotiations WHAT IT CAN BE USED FOR - Rule 408
a) Proving a witness bias or prejudice
b) Negating a contention of undue delay or
c) Proving an effort to obstruct a criminal investigation or prosecution
Test for Relevant Evidence: Opening the Door - Rule 401
Once irrelevant evidence becomes relevant because other party brought it up and the claim must be rebutted
Impeaching a Witness Through Prior Statement - Rule 613
1) Attorney must disclose the statement to opposing counsel if the opponent requests the disclosure
- need not to show witness prior
2) If judge permits E.E of a prior inconsistent statement, the party offering the evidence must give:
a) affected witness an oppt to explain or deny statement and
b) opposing counsel a chance to examine the witness about the statement
§ or may introduce E.E if justice so requires
Prior felony conviction used to impeach any witness other than D in crim trial - Rule 609
- Prior felony convictions are generally admissible to impeach witnesses other than criminal defendants
- Judge still retains discretion to exclude under R 403 if the unfair prejudice will substantially outweigh its probative value
Character evidence; other crimes, wrongs or acts DEF./CRIM EXCEPTION - Rule 404(a)(2)
i. D can offer evidence of their pertinent trait & if admitted prosecutor may offer evidence to rebut it
ii. D may introduce evidence of a victims pertinent trait & if admitted the prosecutor may
1) Offer evidence to rebut it and
2) Offer evidence of the D’s same trait and
§ In trial of homicide the prosecutor may offer evidence of the victims trait of peacefulness to rebut evidence the victim was the first aggressor
Rules Regarding Proof of acts for non-propensity purposes
i. Rule 404(b) often allows this type of evidence
ii. Could prove someone had the knowledge necessary to accomplish the crime
Compromise Offers & Negotiations - Rule 408
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 contradiction:
a) 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
b) Conduct or a statement made during compromise negotiations about the claim
Offers to Pay Medical and Similar Expenses - Rule 409
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
- Similar expenses = all kings of medical treatment, physical rehab etc
- Does not protect any other types of statements made during convos about offers to pay
- Can use this evidence to prove anything other than liability
Authenticating or Identifying Evidence - Rule 901
- Does not have to prove beyond a reasonable doubt that document is authentic only that it is “sufficient to support a finding” of authenticity
- As long as a reasonable juror could find it authentic then it is admissible
Ways to authenticate evidence:
1) Distinctive features
2) Chain of custody
3) Hand writing
4) Voice identification
5) Photos/Videos
6) Emails, Texts & Social Media
Through appearance, contents, substance, patterns or other distinctive characteristics of the item taken together with all circumstances
- As long as a reasonable juror could find it authentic then it is admissible
Rules regarding Proof of a witnesses’ propensity to lie or tell the truth
- Rule 608 & 609 allows parties to introduce evidence related to a witness’s character for untruthfulness
- Rule 608 allows parties to rebut this evidence with proof of a witness’s truthful character
Propensity reasoning from character evidence consists of two steps:
(1) an assumption that someone with a particular character tends to act in a particular way, and
(2) a conclusion that the person acted consistently with that tendency on a particular occasion
Character evidence; other crimes, wrongs or acts - Rule 404
- Evidence of a persons character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait
Character Evidence - Other Crimes, Wrongs, or Acts: Rule 404(b)
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.
Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons - Rule 403
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following
1) Unfair prejudice
2) Confusing the issues, misleading the jury
3) Undue delay, wasting time, or needlessly presenting cumulative evidence
- Substantially outweighed = firm tilt towards admission of evidence
- Unfairly prejudicial = evidence lures the fact finder into declaring guilt or liability on a ground different from proof specific to the offense charged
E.E of Prior Inconsistent Statement on Collateral Matters - Rule 403 & Rule 611
- Rules 403 & 611 prohibit extrinsic evidence of a witness’s prior inconsistent statement on a purely collateral matter
a. Evidence of this nature causes delay & confusion that substantially outweighs its probative value (R 403) and disrupts the orderly presentation of evidence (R 611)
*Collateral matter = is relevant to the case solely because it impeaches a witness
Explain Rule 606b - Juror’s Competency as a Witness
After a verdict or indictment a juror may not testify during an inquiry into validity of a verdict or indictment about:
- Statement made or incident that occurred during jury deliberation
- Effect of anything on that jurors vote or another jurors vote or
- Any jurors mental process concerning the verdict/indictmen
Criminal Case Exception Rule 606b - Juror’s Competency as a Witness
If one or more jurors made statements exhibiting overt racial basis that casts serious doubts on the fairness and impartiality of the jury’s deliberations and resulting verdict
- Must show that the racial animus was a significant motivating factor in the jurors vote to convict
Remainder of or related writings or recorded statements - Rule 106
1) If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time
Four Req:
1) Litigant may invoke this rule to offer clarifying portions of a writing or recorded statement at the same time as the jury hears the opponents evidence
2) Rule only applies to writings and recorded statements
3) They can use to introduce portions of a single writing or recording or use it to introduce whole writings/recordings
4) Flexible standard of “fairness principle”
Liability Insurance - Rule 411
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 witness bias/prejudice or
Proving agency, ownership, or control
Privilege in general - Rule 501
Common law governs a claim of privilege unless any of the following provide otherwise:
- Constitution
- Federal Statute
- Supreme Court
Compromise Offers & Negotiations CRIM TRIALS - Rule 408
a) Continues to prohibit evidence of civil settlement offers, promises, and acceptances in criminal proceedings
b) Can introduce other statements in any subsequent criminal trial made during settlement discussions during civil regulatory, investigative, or enforcement action conducted by a gov agency
Impeachment by evidence of a criminal conviction - Rule 609
Only applies when a party uses a criminal conviction to suggest that a witness has an untruthful character
1) Jury may consider the conviction only to assess the witness’s character for truthfulness
Three major uses expanded in later cards:
1) Prior felony conviction used to impeach any witness other than D in crim trial
2) prior felony used to impeach D in criminal case who is a witness
3) Prior convictions of a crime involving dishonest or false statement
Prior felony used to impeach D in criminal case who is a witness - Rule 609
- Prior felony convictions are admissible against a criminal defendant who takes the stand only if the judge makes a distinctive finding that probative value outweighs prejudicial effect
Balancing test:
- Impeachment value of the former crime
- Timing of the prior conviction & subsequent criminality
- Similarity between prior crime & charged crime
- Centrality of creditability
Rule 103 - Rulings on Evidence
Parties raise evidentiary challenges through objections or motions to strike either way it must be timely & specific
- Timely = Once ground for obj is known or reasonably should have been known
- Specific = Enough for the basis of obj to be known for judge/opposing counsel
Rulings on evidence cannot be an error unless substantial right has been affected and nature of error was called to attention of judge to alert to proper course of action & enable opposing counsel to take proper corrective measures
Subsequent remedial measures - Rule 407
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:
1) Negligence
2) Culpable conduct
3) Defect in a product or its design
4) Need for a warning or instruction
Measures = Not only changing condition/product but also taking products off market or issuing recalls, policy changes, firing or discipling an employee
Subsequent = Measures taken after an earlier injury/harm
Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons BALANCING TEST - Rule 403
1) Extent to which evidence will arouse emotions or irrational prejudices among the jurors - judges are more likely to exclude evidence that causes emotion
2) Extent to which the jury might overvalue the evidence - give evidence that is only slightly relevant an undue weight
3) Strength of the connection between evidence & elements of the case - more likely to admit evidence that is closely related to essential elements of a case even when that evidence is highly emotional
4) Whether it would be possible to reduce prejudice or other harm from introducing the evidence - if a judge can redact prejudicial components or instruct juror from improper use of evidence they are more likely to admit it
5) Evidence that damages one case or is highly persuasive for the other side is not unfair prejudice
6) Photos/Videos - only if they show new evidence or a key piece of the case
Admissibility of Duplicates - Rule 1003
Duplicates are admissible to the same extent as the original unless:
A genuine question is raised about the originals authenticity or
Circumstances make it unfair to admit the duplicate
Pleas, Plea Discussions, and Related Statements - Rule 410
In a civil or criminal case evidence of the following is not admissible against the D who made a plea or participated in plea discussions:
- Guilty plea later withdrawn
- Nolo contendere plea
- Statement made during a proceeding on either of those pleas under FRCP11 or comparable state procedure
- Statements made during plea discussions w/ attorney who is prosecuting authority if disc. did not result in plea or resulted in a later drawn plea
Impeachment by evidence of a criminal conviction LIMITATION - Rule 609
§ If more than 10 years have passed (either from conviction or time served) it is only admissible if:
- Probative value outweighs prejudicial effect and proponent gives adverse party notice of intent & fair opp. to contest it
Rules Regarding Character or Reputation as elements
i. Legal claims or defenses that require proof of character or reputation to establish an element are rare, but a few exist.
ii. When parties offer evidence of character or reputation to establish an element in this manner, Rule 405 allows that evidence.
Rules regarding Proof of conduct by propensity
Rule 404(a) bars most attempts to prove conduct by propensity but there are some exceptions
i. Parties argue that just as witnesses testify consistently with their character for truthfulness or untruthfulness, people act in ways that are consistent with other character traits
EX: Violent acts –> violent character —> tendency to assault —> assaulted this person
Test for Relevant Evidence - Rule 401
Evidence is relevant if:
1) It has any tendency to make a fact more or less probable than it would be without the evidence and
2) The fact is of consequence in determining the action
§ Any tendency = evidence that can shift a fact viewers view even a little bit is admissible
§ More or less probable = Piece can be admissible even if it doesn’t establish a fact on its own, evidence = bricks
§ Of consequence = Fact itself must be related to the cause of action, a fact that matters to someone who is trying to decide the case - It does not need to be as strong as “material”
When members of a corporation are clients for ACP - Rule 502
- The managers provided information directly to the company’s counsel to help the company secure legal advice
- The managers knew this was the purpose of supplying the information
- They provided this information in response to a superior’s request
- The communications related to matters within the scope of the managers’ duties
- Other employees could not provide this information to counsel
- All parties treated the communications as highly confidential
Preliminary Questions - Rule 104
- Judge decides preliminary questions related to admissibility
*Judge should let a jury decide if enough evidence exists that a rational jury could resolve the issue either way - When relevance of evidence depends on whether a fact exists then proof must be introduced sufficient to support a finding that the fact does exist
- Court has to conduct hearing outside jury if: hearing involves admissibility of confession or D in a criminal case is a witness & so requests or Justice so requires
- By testifying to a preliminary question in a criminal case the D doesn’t become subject to cross exam
- Even if judge admits under this rule parties can still dispute at trial
Common Issues with Preliminary Questions Rule 403 versus Rule 104
Judges often resolve factual issue under 104 at the same time as 403
Courts combine 104 with rule 403 balancing - if sufficient evidence exists to support a finding of a prior act the weakness of that evidence may argue in favor or exclusion under Rule 403
Evidence That Is Self-Authenticating - Rule 902
a. Domestic Public Documents that are sealed and signed
*Allows party to introduce an original public document from any federal, state or local gov if the document bears both a signature attesting to the authenticity and the official seal of the unit
b. Domestic public documents that are not sealed but are signed & certified
c. Foreign Public Documents
d. Certified copies of Public Records
e. Official Publications
f. Newspapers and periodicals
g. Trade inscripts and the like
h. Acknowledged documents
i. Commercial paper and related documents
j. Presumptions under a federal statute
k. Certified domestic records of a regularly conducted activity
l. Certified foreign records of a regularly conducted activity
m. Certified records generated by an electronic process or system
n. Certified data copied from an electronic device, storage medium or file
Definitions for Original//Duplicate Rule 1001
OG = The writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it
Duplicate = means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original
Reputation or Opinion Evidence - 608(a)
- 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
Requirement of the Original - Rule 1002
Proving Content = because it has independent legal significance aka controls some facet of the litigation
The item falls into one of the categories as a convenient option for proving some fact
Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes - Rule 105
If a court introduces evidence that is admissible against one party or for a purpose but not against the other party or purpose the court MUST restrict evidence to proper scope & instruct jury accordingly
(AKA limiting instructions)
Pleas, Plea Discussions, and Related Statements EXCEPTIONS - Rule 410
- If another statement was admitted within the same plea dis & if in fairness statement ought to be considered together
- In a criminal proceeding for perjury or false statement if the D made the statement
under oath, on
the record & with
counsel present
Compromise Offers & Negotiations FACTORS FOR DET. IF DURING COMPROMISE NEG - Rule 408
i) Whether the statement was unilateral or occurred during bilateral discussions
ii) Whether either party made a concrete offer
iii) Whether attorneys were involved in the discussions
iv) Whether the party used phrases common in settlement discussions
Lawyer Client Privilege/WP Doctrine - Rule 502
- The attorney-client privilege has five components: a client, an attorney, a communication, confidentiality, and a purpose of facilitating professional legal services to the client
- Client is the one who can waive but lawyer may do so on behalf of client
- Disclosing to third party may waive the privilege
- Prevents disclosure of privileged information in any context: discovery, trial, grand jury, pretrial & every other stage of litigation
Rule 801 - Hearsay is a statement that:
Declarant does not make while testifying at the current trial or hearing and
Party offers in evidence to prove truth of the matter asserted in the statement
Rule 801 - Statements that are not hearsay Declarant-witness’s prior statement
Declarant-witness’s prior statement
1) Declarant testifies and is subject to cross exam about prior statement and
- Is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing, other proceeding or in a deposition;
- Is inconsistent with the declarants testimony and is offered
a. To rebut an express/implied charge that the declarant recently fabricated or acted from a recent improper influence or motive in so testifying or
b. To rehabilitate the declarants credibility as a witness when attacked on another ground or
- Identifies a person as someone the declarant perceived earlier
Rule 801 - Statements that are not hearsay An opposing party’s statement
1) Statement is offered against the 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
Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness Rules 803 1-8,10 Titles not descriptions
- present sense impressions
- excited utterance
- then existing mental, emotional, or physical condition
- statement made for medical diagnosis or treatment
- recorded recollection
- records of regularly conducted activity
- absence of a record of regularly conducted activity
- public records
- absence of public record
Rule 803 Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness: PRESENT SENSE IMPRESSIONS
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not: Present sense impressions :
Statement describing or explaining an event or condition made while or immediately after the declarant perceived it
Rule 803 Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness: EXCITED UTTERANCE
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not: Excited utterance
A statement relating to a startling event or condition made while the declarant was under the stress of excitement that it caused
Rule 803 Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness -Then existing mental, emotional or physical condition
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not:
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not:
A statement of the declarants then:
a. State of mind - motive, intent, or plan or
b. Emotional
c. Sensory
d. Physical condition - 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 declarants will
Rule 803 - Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness STATEMENT MADE FOR MEDICAL DIAGNOSIS OR TREATMENT
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not:
1) 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
Rule 803 Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness - RECORDED RECOLLECTION
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not:
1) 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 memory and
c. Accurately reflects the witness’s knowledge
If admitted it may be read but only received as an exhibit if adverse party offers
RULE 803 Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness - RECORDS OF REG CONDUCTED ACTIVITY
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not:
A record of an act, event, condition, opinion or diagnosis if
a. The record was made at or near the time by - or from information transmitted by - someone with knowledge
b. The record was kept in the course of regularly conducted activity of business, organizational occupation or calling - whether or not for profit;
c. Making the record was a regular practice of that activity;
d. All these conditions are shown by the testimony of the custodian or another qualified witness or by a certification that complies with Rule 902 and
e. Neither the opponent questions the source or circumstances of preparation indicate a lack of trustworthiness
Rule 803 Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness - ABSENCE OF A RECORD OF REG COND ACT
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not:
1) Evidence that a matter is not included in a record described above if
a. The evidence is admitted to prove the matter did not occur or exist
b. A record was regularly kept for a matter of that kind and
c. Neither the opponent questions the source or circumstances of preparation indicate a lack of trustworthiness
Rule 803 Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness - PUBLIC RECORDS
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not:
1) A record or statement of a public office if it sets out
a. The offices activities
b. Matter observed while under a legal duty to report but not including in a criminal case a matter observed by law enforcement personnel or
c. In a civil case or against the govt in a criminal case, factual findings from a legally authorized investigation and
2) Neither the opponent questions the source or circumstances of preparation indicate a lack of trustworthiness
Rule 803 Exceptions to the rule against hearsay - regardless of whether the declarant is available as a witness - ABSENCE OF A PUBLIC RECORD
Following are not excluded by the rule of hearsay regardless of whether the declarant can testify or not:
1) Testimony - or certification under Rule 902 - that a diligent search failed to disclose a public record or statement if the testimony or cert is admitted to prove that
a. The record/statement does not exist or
b. A matter did not occur/exist, if a public office regularly kept a record or statement for a matter of that kind and
- In a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the D does not object in writing within 7 days of receiving notice - unless the court sets a different time for notice or objection
Hearsay within hearsay Rule 805
Hearsay within hearsay is not objectionable if it is subject to a hearsay exception
Opinion testimony by lay witness Rule 701
If a witness is not testifying as an expert, testimony in the form of opinion is limited to one that is:
a. Rationally based on the witness’ perception
b. Helpful to clearly understanding their testimony or determining a fact in issue and
c. Not based on scientific, technical, or other specialized knowledge
Testimony by expert witness Rule 702
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:
a. Experts scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
b. Testimony is based on sufficient facts or data
c. 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
Opinion on an ultimate issue Rule 704
a. In general an opinion is not objectional-able just because it embraces an ultimate issue
b. An exception arises in a criminal case - an expert witness must not state an opinion about whether the D did/did not have the mental state or condition that constitutes an element of the crime charged or of a defense
Exceptions to the rule against hearsay - when declarant is unavailable as a witness Rule 804 a, b1-3 & 6 - CRITERIA FOR BEING UNAVAILABLE
i. A privilege applies
ii. Refuses despite a court order requiring
iii. Death or a then-existing infirmity, physical or mental illness
iv. Statements proponent has not been able, by process or other reasonable means to procure
1) Declarants attendance (For Rules 804(b)(1), or (6)) or
2) Declarants attendance or testimony (For Rules 804(b)(2), (3) or (4))
Exceptions to the rule against hearsay - when declarant is unavailable as a witness - Rule 804 a, b1-3 & 6 - EXCEPTION CATEGORIES ONLY
1) Former testimony 804b1
2) Statement under the belief of imminent death 804b2
3) statement against interest 804b3
4) Statement offered against a party that wrongfully caused the declarants unavailability 804(b)(6)
Exceptions to the rule against hearsay - when declarant is unavailable as a witness - Rule 804 a, b1-3 & 6 WHEN A DECLARANT IS NOT CONSIDERED UNAVAIL.
A declarant is not considered unavailable if the statements proponent procured or wrongfully caused the declarants unavailability as a witness to prevent declarant from attending or testifying
Exceptions to the rule against hearsay - when declarant is unavailable as a witness FORMER TESTIMONY 804b1
1) Testimony that was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one and
2) Is now offered against a party who had - or if civil whose predecessor - an opportunity and similar motive to develop it by direct, cross or redirect exam
Exceptions to the rule against hearsay - when declarant is unavailable as a witness - STATEMENT UNDER THE BELIEF OF IMMINENT DEATH 804b2
1) In a prosecution for homicide or in a civil case
2) A statement that a declarant made while believing death to be imminent
3) Made about its cause or circumstances
Exceptions to the rule against hearsay - when declarant is unavailable as a witness STATEMENT AGAINST INTEREST 804b3
1) A statement that a reasonable person in the declarants position would have made only if the person believed it to be true because
a. when made it was so contrary to the declarants propriety or pecuniary interest or
b. Great tendency to invalidate the declarants claim against someone else or
c. Expose them to civil or criminal liability and
2) Is supported by corroborating circumstances to indicate its truth worthiness
a. If offered in criminal case then one that tends to expose individual to criminal liability
Exceptions to the rule against hearsay - when declarant is unavailable as a witness STATEMENT OFFERED AGAINST A PARTY THAT WRONGFULLY CAUSED DECLARANTS UNAVAIL 804b6
1) Statement offered against a party that wrongfully caused or helped in wrongfully causing
2) The declarants unavailability as a witness and
3) Intended that result
Residual exception (Rule 807)
Under the following conditions these statements are not excluded under hearsay rule if:
i. Not already admissible under 803 or 804
ii. Supported by sufficient guarantees or trustworthiness after considering the totality of circumstances and
iii. It is more probative on the point it is offered for than any available evidence the proponent could obtain through reasonable efforts and
iv. Adverse party has reasonable notice of intent to offer statement
