Rules of Evidence

Question 1

Rule 106

Answer 1

Remainder of or Related Writings or Recorded Statements

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.

Comment: This rule of completeness applies only to material provided in the case packet. This rule does not reference any material not provided in the case packet.

Question 2

Rule 401

Answer 2

Test for Relevant Evidence

Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.

Question 3

Rule 403

Answer 3

Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other
Reasons

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 4

Rule 404 (a)

Answer 4

Character Evidence; Crimes or Other 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.

Question 5

Rule 602

Answer 5

Need for Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

Question 6

Rule 611 (b)

Answer 6

Mode and Order of Examining Witnesses and Presenting Evidence

(b) Scope of Examinations. The initial cross examination is not limited to matters discussed on direct examination. Re-direct and re-cross examination are permitted. But any re-direct or re-cross examination may not go beyond the subject matter of the examination immediately preceding it and matters affecting the witness’s credibility.

Question 7

Rule 611 (c)

Answer 7

Mode and Order of Examining Witnesses and Presenting Evidence

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily the court should allow leading questions:
(1) on cross- examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Question 8

Rule 701

Answer 8

Opinion Testimony by Lay Witnesses

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 9

Rule 702

Answer 9

Testimony by Expert Witnesses

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) 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 has reliably applied the principles and methods to the facts of the case.

Question 10

Rule 703

Answer 10

Bases of an Expert’s Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Question 11

Rule 801 (c)

Answer 11

(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.

Question 12

Rule 805

Answer 12

Objection hearsay within hearsay

hearsay within hearsay

hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statement confirms with an exception to the rule

Question 13

Rule 801 (d)

Answer 13

statements that are not hearsay

1. declaring witness’s prior statement: the declarant testifies and is subject to cross examination about a prior statement, and the statement
   a. is inconsistent with the declarants testimony and was given under penalty of perjury at trial, hearing or depo
2. an opposing party’s statement. the statement is offered against an opposing party and:
   a. was made by the party in an individual or representative capacity
   d. was made by the party’s agent or employee on a matter within the scope of that relationship while it existed

Question 14

Rule 801 (d) (1)

Answer 14

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not
hearsay:
(1) A Declarant-Witness’s Prior Statement. 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 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
(C) identifies a person as someone the declarant perceived earlier.

Question 15

Rule 801 (d) (2)

Answer 15

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(2) An Opposing Party’s Statement. 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 16

Rule 803 (1)

Answer 16

Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant Is
Available as a Witness

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Question 17

Rule 803 (2)

Answer 17

Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant Is
Available as a Witness

(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.

Question 18

Rule 803 (3)

Answer 18

Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant Is
Available as a Witness

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

Question 19

Rule 803 (4)

Answer 19

Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant Is
Available as a Witness

4) Statement Made for Medical Diagnosis or Treatment. 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 20

Rule 803 (5)

Answer 20

Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant Is
Available as a Witness

(5) Recorded Recollection. 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 21

Rule 803 (6)

Answer 21

Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant Is
Available as a Witness

(6) Records of a Regularly Conducted Activity. 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 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) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Question 22

Rule 803 (8)

Answer 22

Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant Is
Available as a Witness

(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) neither the source of information nor other circumstances indicate lack of
trustworthiness.