Rules of Evidence Flashcards
401
Test for relevant evidence
401(a)
probative (tending to prove) value; evidence is relevant if it has a tendency to make a fact more or less probable than it would be without
determining factors of probative value
how important the evidence is to the resolution of the case;
necessity of the evidence compared against prejudicial effect of other evidence;
remoteness…how far removed evidence is in space and time from the people, places, and things being litigated;
logical proximity of evidence to key disputes;
401(b)
evidence is of material fact, that it is of consequence in determining the (legal) action (made by either side)
402
GENERAL ADMISSIBILITY - (1) irrelevant evidence is not admissible, (2) evidence is admissible unless otherwise specified by either: the US Constitution; Midlands Case Law; other rules prescribed in Midlands, and (2) irrelevant evidence is not admissible, and (3) relevant evidence is limited to the information supplied by or reasonably inferred from the case materials supported by AMTA
403
WHEN TO EXCLUDE RELEVANCE TEST - relevant evidence is excluded when its probative value (tendency to support) is substantially outweighed by: (1) unfair prejudice, (2) confusing the issues or misleading the jury, (3) undue delay, wasting time, or needlessly presenting cumulative evidence.
unfair prejudice
interferes with the jury’s ability to reach a verdict impartially; undue tendency to suggest decision on an improper basis
confusing the issues or misleading the jury
presenting evidence that is relevant to an issue outside the scope of the trial
needlessly presenting cumulative evidence
repetitive evidence; already been established through similar evidence or the same issue
404
Character evidence, crimes, or other acts
404(a)(1)
Character evidence, prohibited uses
evidence of a person’s character (trait) is not admissible to prove that they acted in conformity with that trait on a particular occasion, except for specifics under 404(a)(2)
404(a)
establishes baseline rule that character evidence is generally not admissible in a criminal trial for the purpose of showing propensity, or making the argument that the way a person likely acted is consistent with a specific character trait on a particular occasion
404(a)(2)
Exceptions that allow the admissibility of character evidence when it’s a defendant or victim in a criminal case
404(a)(2)(A)
defense can offer evidence of defendant’s pertinent trait, and if admitted the prosecution can offer evidence to rebut it
404(a)(2)(B)
defendant may offer evidences of alleged victim’s pertinent trait (if admitted, prosecutor may offer evidence to rebut it, and offer evidence to the defendant’s same trait)
404(a)(2)(C)
homicide case only
prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the firs aggressor
404(a)(3)
Evidence of a witness’ character may be admitted under Rules 607, 608, 609
404(b)(1)
Prohibited uses of character evidence in crimes, wrongs, or other acts
Evidence of a crime is not admissible (cannot be used) to prove a person’s character (build a profile of their character for the jury) in order to show that on a specific occasion they acted in accordance with that said character
404(b)(2)
Permitted uses of character evidence in crimes; notice in a criminal case
Admissible for purposes of:
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
405
Methods of proving character
405(a)
Proving character by their reputation or opinion:
Evidence of person’s character (trait) is admissible when proved by testimony about the person’s reputation or by testimony in the form of an opinion.
On CX, the Court may allow inquiry into relevant specific instances of the person’s conduct.
405(b)
Proving character by specific instances of conduct:
when a person’s character (trait) is an essential element of charge, claim, or defense, the character (trait) may also be prove by relevant specific instances of the person’s conduct
406
Habit, routine practice:
evidence of a person’s habit our an organizations routine practice may be admitted to prove that on a particular occasion the person/organization’s routine was them acting normally
can be admitted regardless of whether it is corroborated or whether there was an eyewitness
602
NEED FOR PERSONAL KNOWLEDGE -
witness can’t testify to a matter unless evidence is introduced to support the finding that the witness has personal knowledge on the matter (they know what they’re talking about)
subject to 703, opinion testimony by expert witnesses
701
OPINION TESTIMONY BY LAY WITNESS -
If a witness is not testifying as an expert, testimony in the form of an opinion is limited (a)(b) and (c)
701(a)
rationally based on the witness’ perception
701(b)
helpful to clearly understanding the witness’ testimony or to determining the fact in an issue
701(c)
not based on scientific, technical, or other specialized knowledge within 702 (expert witness testimony)
702
Testimony by an expert witness and their qualifications based on knowledge, skill, experience, training, education
702(a)
the expert’s scientific, technical or other specialized knowledge will help to understand the evidence or determine a fact in issue
702(b)
the testimony is based on sufficient facts or data
702(c)
the testimony is the product of reliable principles and methods
702(d)
the expert has reliably applied the principles and methods to the facts of the case
703
BASES OF AN EXPERT”S OPINION TESTIMONY -
expert can base an opinion on facts or data they’ve been made aware of or personally observed;
admissibility of expert opinion not exclusive to the facts/data used to form an opinion when other experts in a particular field would reasonably rely on those same kinds of facts or data when forming their own opinions on the subject;
if facts/data otherwise inadmissible, then proponent of opinion (expert on either side) may disclose them to the jury only if probative value substantially outweighs prejudicial effect;
801(a-c)
Definitions of statement, declarant, hearsay
801(a)
Statement: person’s oral assertion, written assertion, nonverbal conduct if intended as an assertion
801(b)
Declarant: person who made the statement
801(c)
Hearsay means a statement that (1) the declarant does not make while testifying in the current trial or hearing, and (2) a party offers in evidence to prove the truth of the matter asserted in the statement
801(d)
STATEMENTS THAT ARE NOT HEARSAY
801(d)(1)(A)
Prior inconsistent statement
801(d)(1)(B)
prior consistent statements; using consistency as corroboration that they are telling the truth
801(d)(2)(C)
statement of prior identification
801(d)(2)
OPPOSING PARTY’S STATEMENT
801(d)(2)(A)
statement made by the party in an individual or representative capacity; prosecution and criminal defendant in criminal, the plaintiff and civil defendant are each other’s party opponents
801(d)(2)(B)
is one the party manifested that it adopted or believed to be true
801(d)(2)(C)
was made by a person whom the party authorized to make a statement on the subject
801(d)(2)(D)
was made by the party’s agent or employee on a matter within the scope of that relationship while it existed
801(d)(2)(E)
was made by the party’s coconspirator during and in furtherance of the conspiracy
802
RULE AGAINST HEARSAY -
Hearsay is not admissible unless the exceptions either specified in Rule 803 or by the Midlands Supreme Court
803
EXCEPTIONS TO RULE AGAINST HEARSAY -
included in the rule against hearsay
803(1)
PRESENT SENSE IMPRESSION -
a statement describing or explaining and event or condition made while or immediately after the declarant perceived it
803(2)
EXCITED UTTERANCE -
statement relating to a startling event or condition, made while the declarant was under the stress of excitement that event/condition caused
803(3)
THEN-EXISTING MENTAL, EMOTIONAL, or PHYSICAL CONDITION -
statement of the declarant’s then-existing state of mind (motive, intent, plan) or emotional, sensory, or physical condition (mental feeling, pain, bodily health) but not including a statement of memory or belief the fact remembered or believed unless it relates to the validity or terms of the declarant’s will
803(4)
STATEMENT MADE FOR MEDICAL DIAGNOSIS OR TREATMENT -
statement that is (A) made for and reasonably pertinent (applicable) to medical diagnosis or treatment, and (B) describes medical history, past or present symptoms or sensations, their inception, or their general cause
803(5)
RECORDED RECOLLECTION -
(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;
(C) accurately reflect the witness’ knowledge
803(6)
RECORDS OF A REGULARLY CONDUCTED ACTIVITY -
record of an act, event, condition, opinion, or diagnosis
803(6)(A)
record was made at or near the time by someone with knowledge or from information transmitted by someone with knowledge
803(6)(B)
made or adopted by the witness when the matter was fresh in the witness’ testimony
803(6)(C)
making the record was a regular practice of that activity
803(6)(D)
conditions shown by the testimony of the custodian or another qualified witness or by certification that complies with 902(11) or (12)
803(6)(E)
neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness
803(7)
absence of a record of regularly conducted activity
803(7)(A)
evidence is admitted to prove that the matter did not occur or exist
803(7)(B)
a record was regularly kept for a matter of that kind
803(7)(C)
neither the possible source of the information nor other circumstances indicate a lack of trustworthiness
803(8)
Public records, qualifies if: it sets out office’s activities, and a matter observed while under a legal duty to report, and factual findings from a legally authorized investigation in a civil case or against the government in a criminal case
803(9)
Public records of vital statistics: birth, death, marriage, anything reported to a public office in accordance with legal duty
Exhibit 12, Reece Campbell’s Medical Certificate saying he has to wear corrective lenses
803(10)
Absence of a public record
804
DECLARANT UNAVAILABLE - one exception to rule against hearsay
804(a)
(1) exempted from testifying due to privilege (inapplicable)
(2) refuses to testify despite court order (inapplicable)
(3) testifies not remembering (bad idea)
(4) cannot be present due to death or from an existing infirmity, physical or mental illness (potentially statements by Morgan Felder or Reese Campbell)
(5) we cannot procure a witness’ unavailiablilty (make the argument they are not available) by not calling them; attendance 804(b)(1) and 804(b)(2) or (3) for hearsay
804(b)(1)
Former testimony that was given as a witness at a trial, hearing, or deposition, (different or current proceeding) that is now offered against a party whose predecessor in interest had a similar motive to develop it by direct, cross, or re-examination
804(b)(2)
Statement under belief of imminent death: (made by declarant believing their death imminent, or that they were made aware about its cause or circumstances)
Example: Exhibit 17(a) text messages between Ari and Morgan Felder
804(b)(3)
STATEMENT AGAINST INTEREST
804(b)(3)(A) Statement against interest that
a reasonable person in the declarant’s position would have made a statement against their interest only if they believed it to be true, because it was so contrary to the declarant’s proprietary or pecuniary interest, or because it had a great tendency to invalidate the declarant’s claim against someone else or expose the declarant to civil or criminal liability
804(b)(3)(B) Statement against interest that
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
805 Hearsay within Hearsay
hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements confirms with an exception to hearsay
