Rules of Evidence

Question 1

Rule 106

Answer 1

Rule of Completeness - when a writing or a recorded statement is introduced by a party, an adverse party may require the introduction of any other part which in fairness ought to be considered contemporaneously with it

Question 2

Rule 401

Answer 2

Relevance - having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence

Question 3

Rule 403

Answer 3

Prejudice - Relevant evidence may be excluded under Rule 403 only when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence

Question 4

Rule 404(b) Generally

Answer 4

Other Crimes Evidence - evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith

Question 5

Rule 404(b) Exception

Answer 5

Evidence of other crimes, wrongs, or acts are admissible for proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident

Question 6

Rule 404(b) Requirements by the Government - United States v. Troya (11th Cir. 2013)

Answer 6

The rule permits the introduction of evidence of a prior or uncharged act if the government can demonstrate:
(1) a proper purpose for introducing the evidence;
(2) that the prior act occurred and that the defendant was the actor; and
(3) that the probative value of introducing the evidence outweighs any prejudicial effect the evidence might have. CASE

Question 7

Rule 404(b) Notice

Answer 7

The government must provide pre-trial notice to the defendant of its intent to introduce evidence of other crimes, wrongs, or acts - must only provide notice of the “general nature” of the extrinsic act evidence

Question 8

Rule 404(b) Jury Instruction - United States v. Gonzalez (11th Cir. 1992)

Answer 8

Trial Court committed reversible error by failing to give a limiting instruction to the jury relating to evidence under 404(b). CASE

Question 9

Rule 404(b) Intent or Motive - United States v. Barrington (11th Cir. 2011)

Answer 9

Prior offenses may be admitted to prove intent if:
(1) the extrinsic offense requires the same intent as the charged offense and the jury could conclude that the defendant committed the extrinsic offense; and
(2) the court finds that the probative value of he evidence weighs more heavily than the prejudice the defendant would sustain if admitted. CASE

Question 10

Rule 404(b) Identity - United States v. Phaknikone (11th Cir. 2010)

Answer 10

When extrinsic evidence is introduced to prove identity the likeness of the offenses is the crucial consideration; the physical similarity must be such that it marks the offenses as the handiwork of the accused. CASE

Question 11

Rule 404(b) Inextricably Intertwined - United States v. Wells (11th Cir. 1993)

Answer 11

Evidence of an uncharged offense, which is offered on the theory that the conduct was “inextricably intertwined” with the charged offense is not offered under 404(b). Rather, the evidence is offered as proof of the charged crime itself. Thus, evidence of a defendant’s possession of a substantial quantity of cocaine, on a date within the time frame of a charged conspiracy, is admissible as being inextricably intertwined with the charged offense. CASE

Question 12

Defense Use of 404(b) - United States v. Cohen

Answer 12

Nothing in the rule suggests that it is only available to the prosecution or only applicable to prior conduct of the defendant; prosecution’s witness’s prior criminal acts and misconduct were introduced by the defense to show a motive for the witness to lie and to show that he had the capacity to commit a crime without the aid of the defendants, whom he testified were his confederates in this offense

Question 13

Rule 405 Character Evidence

Answer 13

Two types of evidence that are frequently referred to as character evidence:
(1) character evidence which relates to specifically the credibility of a witness (evidence relating to the character of a witness for truthfulness) which is governed by Rules 608 and 609; and
(2) character evidence relates to a defendant’s good character or a trait of character that is relevant at trial (regardless of whether the defendant testifies) which is governed by rules 404(a) and 405

Question 14

Rule 406 Habit

Answer 14

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice

Question 15

Rule 408 Compromise and Offers to Compromise

Answer 15

Evidence of furnishing valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount - 11th Circuit held that this rule applies in criminal cases

Question 16

Rule 410 Plea Negotiation Statements

Answer 16

Statements made by a defendant during the course of plea negotiations are inadmissible as evidence at trial; statements made to law enforcement officer are not covered by this rule, unless the agent has been given authority to negotiate a plea regarding the charges

Question 17

Rule 412 Rape Shield Law - United States v. Sarras

Answer 17

Evidence offered to prove that an alleged victim engaged in other sexual behavior or to prove an alleged victim’s sexual disposition is not admissible in any criminal proceeding involving alleged sexual misconduct. CASE

Question 18

Rule 413 Other Acts Evidence in a Sexual Assault Case

Answer 18

In a case involving charges of sexual assault, evidence of a defendant’s commission of another sexual assault offense is admissible

Question 19

Rule 414 Other Acts Evidence in a Child Molestation Case

Answer 19

In a criminal case in which a defendant is accused of an offense of child molestation, the court may admit evidence that the defendant committed any other child molestation. Evidence may be considered on any matter to which it is relevant - this includes child pornography offenses.

Question 20

Rule 601 General Rules of Competency

Answer 20

Every person is competent to be a witness. Nevertheless, a court has the power to rule that a witness is incapable of testifying and in an appropriate case it has the duty to hold a hearing to determine that issue.

Question 21

Rule 602 Lack of Personal Knowledge

Answer 21

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.

Question 22

Rule 603 Oath

Answer 22

An oath to God is no longer required in order to testify and that a witness may affirm rather than swear an oath. The Rule requires only that a witness declare that the witness will testify truthfully, by oath or affirmation, administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.

Question 23

Rule 606 Juror’s Competency as Witness

Answer 23

Jurors are not competent witnesses to testify about the contents of the jury’s deliberations.

Question 24

Rule 606(b)(2) Exception to Juror’s Competency as a Witness

Answer 24

A juror is competent to testify relating to extraneous information improperly brought to the jury’s attention; an outside influence that was improperly brought to bear on any juror; and a mistake in entering the verdict on the verdict form.

Question 25

Rule 607 Who May Impeach

Answer 25

The credibility of a witness may be attacked by any party, including the party calling the witness.

Question 26

Rule 608(a) Witness’s Credibility

Answer 26

Permits a party to rehabilitate a witness after the witness’s character for truthfulness has been attacked by opinion or reputation evidence. The rehabilitation evidence may also be in the form of opinion, or reputation evidence. The Rule does not permit a party to offer otherwise inadmissible opinion evidence simply because it corroborates the witness’s testimony. United States v. Marshall (11th Cir. 1999)

Question 27

Rule 608(b) Specific Instances of Conduct

Answer 27

Specific instances of conduct, if probative of truthfulness or untruthfulness, may be inquired into on cross-examination of a witness. The foundation for the Rule is that the evidence of specific acts relating to the truthfulness of a witness are admissible, whereas specific acts of prior misconduct that are not relevant to assessing credibility are not admissible.

Question 28

Rule 609 Prior Convictions

Answer 28

The introduction of evidence of convictions of any witness for offenses punishable by more than one year is permitted, assuming the evidence passes the test of Rule 403 (evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, etc.). (a)(2) permits the introduction of any conviction, regardless of the length of the possible sentence, if the crime involved dishonesty or false statement. Crimes such as theft, robbery, or shoplifting do not involve dishonesty or false statement within the meaning of (a)(2)

Question 29

Rule 601 Religious Beliefs or Opinions

Answer 29

Evidence of a witness’s religious belief or opinions is not admissible to attach or support the witness’s credibility. This does not prohibit a party from asking a witness to certain events about the witness’s occupation, even if the witness is a chaplain. United States v. David (11th Cir. 2015).

Question 30

Rule 612 Refreshing Recollection

Answer 30

If a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions that relate to the testimony of the witness.

Question 31

Rule 613 Prior Inconsistent Statements - United States v. Billue (11th Cr. 1993)

Answer 31

If a witness has denied making a statement or failed to remember it, the making of the statement may be proved by another witness. CASE

Question 32

Rule 702 Testimony by Experts

Answer 32

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

Once qualified as an expert, the witness’s testimony may include hearsay that forms the basis of his opinion. United States v. Elkins (11th Cir. 1989).

Question 33

Rule 703 Bases of Opinion Testimony by Experts

Answer 33

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the haring. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Question 34

Rule 704 Opinion on Ultimate Issue

Answer 34

No expert witness may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto.

Question 35

Rule 801 Hearsay

Answer 35

A statement, other than one made any declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Question 36

Rule 801(d)(1)(A) Prior Inconsistent Statement Made Under Oath

Answer 36

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding.

Question 37

Rule 801(d)(1)(B) Prior Consistent Statement - Tome v. United States (1995)

Answer 37

In order to introduce a prior consistent statement under the Rule, the statement must have been made prior to the time that the alleged incentive to fabricate occurred. A consistent statement which predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. CASE

Question 38

Rule 801(d)(1)(C) Identification Statements

Answer 38

This rule exempts from the hearsay rule prior statements of a witness, who appears at trial, which are of an identification of a person made after perceiving the person.

Question 39

Rule 801(d)(2)(A) Statement by Opponent

Answer 39

This rule exempts from the hearsay rule statements offered against a party which are the party’s own statement, in either an individual, or representative capacity.

Question 40

Rule 801(d)(2)(B) Adopted Admissions

Answer 40

When a statement is offered as an adoptive admission two criteria must be met:
(1) The statement must be such that an innocent defendant would normally be induced to response;
(2) There must be sufficient foundational facts from which the jury could infer that the defendant “heard, understood, and acquiesced in the statement”

Question 41

Rule 801(d)(2)(C) Authorized Statements

Answer 41

This rule exempts from the hearsay rule statements offered against a party which are made by a person authorized by that party to make a statement concerning the subject.

Question 42

Rule 801(b)(2)(D) Agent’s Statements - United States v. DeLoach (11th Cir. 2012)

Answer 42

A prosecutor’s closing argument in another case, which addressed the credibility of witnesses in that trial, was not admissible in a subsequent trial. CASE

Question 43

Rule 801(d)(2)(E) Co-Conspirator’s Statements

Answer 43

Statements that would otherwise be hearsay are admissible if they are made by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Question 44

For a declaration by one co-conspirator to be admissible against other defendants under this 801(d)(2)(E), the government must establish by a preponderance of the evidence:

Answer 44

(1) That a conspiracy existed,
(2) That the defendant and the declarant were members of the conspiracy; and
(3) That the statement was made during the course and in furtherance of the conspiracy

United States v. Magluta (11th Cir. 2005)

Question 45

Rule 803(1) Present Sense Impression

Answer 45

The out-of-court declaration describing the event or condition must be made while the declarant was perceiving the event or condition or immediately thereafter.

The underlying theory of this exception is that the substantial contemporaneousness of the event and the statement negate the likelihood of deliberate or conscious misrepresentation. CASE

Question 46

Rule 803(2) Excited Utterances

Answer 46

An excited utterance is an exception to the hearsay rule.

The totality of the circumstances dictates whether the declarant’s statement qualifies under this rule - not the length of time after the vent being described.

Question 47

Rule 803(3) State of Mind

Answer 47

An exception to the hearsay rule is a statement by the declarant that shows the declarant’s then state of mind.

Applicability of this exception is limited to instances where the declarant’s state of mind is relevant; thus, the declaration may not be offered to prove the truth of what the declarant said but rather to reveal the declarant’s state of mind at the time the statement was made.

Question 48

Rule 803(4) Statements Made in Connection with Medical Diagnosis

Answer 48

An exception to the hearsay rule is a statement by the declarant made for the purpose of medical diagnosis.

Question 49

Rule 803(5) Past Recollection Recorded

Answer 49

This rule requires that the party seeking to admit a witness’s past recorded statement demonstrate that the witness-declarant’s memory has faded so that he is no longer able to testify fully and accurately.

This does not violate the confrontation Clause because the declarant must appear at trial and be subject to cross-examination. United States v. Jones (11th Cir. 2010).

Question 50

Rule 803(6) Business Records

Answer 50

This exception provides that a record, if kept in the course of regularly conducted business activity, and if it was the practice of the business activity to make the record, is admissible unless circumstances indicate lack of trustworthiness.

Question 51

Title 18 U.S.C. Section 3505 Foreign Business Records

Answer 51

Allows for the admission of foreign records of regularly conducted activity if supported by an affidavit meeting specifically delineated standards.

Question 52

Rule 803(8) Public Records

Answer 52

Permits the introduction of various types of public records, including records that are made pursuant to a duty imposed by law. This Rule does not apply in criminal cases to reports made by law enforcement officers of matters they observe.

Question 53

Rule 804 Unavailable Declarant

Answer 53

The exceptions to the hearsay rules included in Rule 804 all require as a prerequisite a showing that the declarant is unavailable to testify at trial. The same definition of “unavailability” also applies when the out of court statement of a witness is challenged on Six Amendment confrontation Clause grounds.

Question 54

Criteria for Being Unavailable

Answer 54

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: (a) the declarant’s attendance, in the case of a hearsay exception under 804(b)(1) or (6); or (b) the declarant’s attendance or testimony, in the case of a hearsay exception under 804(b)(2), (3), or (4).

Question 55

Rule 804(b)(1) Former Testimony

Answer 55

The introduction of the prior testimony of a witness is permitted as long as the adversary had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Question 56

Rule 804(b)(2) Dying Declarations

Answer 56

A dying declaration may be admissible; exception applies in a prosecution for homicide, or in a civil action or proceeding, and requires that the statement be made by a declarant who believes his own death is imminent.

Question 57

Rule 804(b)(3) Statement Against Interest

Answer 57

Allows the admission of a hearsay statement, which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.

Question 58

Rule 804(b)(4) Family History

Answer 58

Excepts from the hearsay rule an unavailable declarant’s statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

Question 59

Rule 804(b)(5) Forfeiture by Wrongdoing; What is required by the Government

Answer 59

Permits the introduction of an out-of-court declaration if the declarant is unavailable. Statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

The government is only required to prove that the defendant procured the declarant’s unavailability by a preponderance of the evidence.

Question 60

Rule 806 Attacking and Supporting Credibility of Declarant

Answer 60

Allows a party to attack or support the credibility of a hearsay declarant “by any evidence which would be admissible for those purposes if the declarant had testified as a witness.”

Question 61

Rule 807 Residual Exception

Answer 61

If a trial court made certain preliminary findings, a statement not specifically covered by any of the other Rule 803 exceptions, but having equivalent circumstantial guarantees of trustworthiness, could be admitted.

Five conditions were required to be met to admit hearsay evidence pursuant to the rule: notice, guarantees of trustworthiness, materiality, probativeness, and a meeting of the interest of justice by introducing such evidence.

Question 62

Requirement for the Residual Exception

Answer 62

(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) The general purposes of these rules an the interest of justice will best be served by admission of the statement into evidence.

The party offering the hearsay statement must also provide pretrial, or prehearing notice to the opposing party including the name and address of the declarant.

Question 63

Rule 901 Authentication

Answer 63

The authentication requirement is satisfied by evidence sufficient to support a finding tat the matter in question is what its proponent claims.

Question 64

Requirements for Authentication

Answer 64

A party may authenticate documents through appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances.

Question 65

Rule 902 Self-Authentication

Answer 65

Provides that certain documents are self-authentication, meaning that no extrinsic evidence of authenticity is required as a precondition to admissibility.

The document must be executed by a proper official or the genuineness of the document must be attested to by a proper official. The document must also contain some indication that the proper official is who he purports to be.

Question 66

Rule 1001, et seq.

Answer 66

Provides that to prove the content of a writing, recording, or photograph, the original writing recording, or photograph is required, except as otherwise provided in the rules. The purpose of this rule is to prevent inaccuracy and fraud when attempting to prove the contents of a writing. however, where the original of a recording has been lost or destroyed, the original is not required and other evidence of its content is admissible, unless the proponent lost or destroyed the original in bad faith.

Question 67

Rule 1006 Summary Evidence

Answer 67

Provides that the contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.