Evidence

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Rulings on Evidence (Rule 103)

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1. An evidentiary ruling is grounds for error only if: 1) prejudicial error exists, and 2) a proper objection or an offer of proof is made.

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Preliminary Questions (Rule 104)

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1. The party seeking admission of evidence has the burden of establishing preliminary facts such as competency, qualification of witnesses, unavailability, or privilege by a preponderance of the evidence. The trial judge makes a preliminary factual determination of admissibility of evidence, the jury then determines the weight and credibility of the evidence.
2. If the relevance of a particular piece of evidence depends on a particular finding of fact by the jury, the court will admit the evidence, as long as the judge determines that a reasonable jury could find the necessary fact, with the instruction to the jury to disregard the evidence absent a finding of the required fact.

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Limited Admissibility (Rule 105)

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1. If evidence is admitted as to one party or for one purpose, but is inadmissible as to another party or for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
2. Counsel must request limiting instruction.

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Remainder of or Related Writings or Recorded Statements (Rule 106)

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1. If one party introduces a writing or recorded statement, or part thereof, the adverse party may require the introduction at that time of any other part or any other writing or recorded statement that ought, in fairness, to be considered contemporaneously with it.

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Judicial Notice (Rule 201)

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1. Judicial notice is a substitute for evidence whereby the court accepts certain matters as true without requiring formal proof. A judicially noticed fact must be on that is not subject to reasonably dispute, because it is generally known within the territorial jurisdiction of the court, or capable of accuracy and ready determination by resort to sources whose accuracy cannot be questioned.
2. As a general rule, once a fact is judicially noticed, no contradictory evidence is permitted on the issue, a civil jury will be told they must accept the facts as true, a criminal jury will be instructed that it may, but is not required to accept as conclusive.

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Presumptions in Civil Actions and Proceedings (Rule 301)

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1. A presumption is a procedural device that shifts the burden of going forward to the opposing party. A presumption may be defined as an inference that may be drawn when one set of facts establishes a very high probability of the existence of another set of facts, absent a contrary showing. Upon introduction of this contrary evidence, the presumption disappears at this point and the burden of persuasion shifts back to the original party.
2. Conclusive Presumptions are those that are conclusively established once a set of basic facts is proven. The presumption is then treated as a rule of substantive law rather than a presumption.

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Relevant Evidence (Rule 402)

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1. Evidence tending to make the existence of any fact more probable or less probable than it would be without the evidence.
2. All relevant evidence is admissible, unless excluded for some reason.

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Relevant Evidence Excluded for Some Reason (Rule 403)

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1. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
2. Rule 403 sets a low bar for admissibility, and will only exclude evidence that is significantly more prejudicial than probative.

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Character Evidence is Not Admissible to Prove Conduct (Rule 404)

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1. The general rule is that evidence of a person's character is inadmissible to prove that he has acted in conformity with that character.
2. If the accused introduces evidence of character traits inconsistent with the crime charged, then the door to character evidence has been opened by the defendant, and the prosecutor may rebut evidence that has been admitted.
3. Courts generally permit an accused to introduce evidence of a victim's character when the asserted defense makes it relevant. Under FRE 405(a) both opinion and reputation testimony are allowed. And when the accused presents testimony of the victim's character traits, the prosecutor may cross examine the reputation or opinion witness and may present witnesses of his own.
4. Character evidence is admissible where a person's character is an ultimate issue, which includes defamation, deceit, negligent entrustment. Reputation, opinion and specific acts are also admissible to prove that one person knew or should have known of the character of another in cases where the knowledge of the character of another is in issue, such as in cases of negligent entrustment or self-defense.

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Previous Acts

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1. May use circumstantial evidence of other crimes, wrongs or acts for the purpose of proving, motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident.

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Methods of Proving Character (Rule 405)

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1. Rule 405 controls the form the character evidence takes at trial, not its admissibility. If character evidence is admissiblility for any reason, it may be proven in the form of reputation testimony or opinion testimony. If character is not at issue in the case, then specific instances of conduct may only be addressed during cross-examination to test the validity of the reputation of opinion testimony.
2. Specific acts may also be admitted to show character if character is an essential element of a charge, claim, or defense.

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Habit: Routine Practice (Rule 406)

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1. A habit is a regular response to a given situation that is done without a high degree of forethought. Habit evidence does not need to be corroborated.
2. Evidence of the habit of a person or a routine practice of an organization, is admissible to show that conduct on a particular occasion was in conformity with the habit. A habit may be proved by testimony in the form of an opinion, or by specific instances of conduct sufficient to show that the habit existed or the practice was routine.

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Subsequent Remedial Measures (Rule 407)

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1. Evidence of remedial measures taken subsequent to an injury or harm is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for warning or instruction.
2. Evidence of remedial measures may be admitted for another purpose, such as proving ownership, control, feasibility, of precautionary measures, if controverted, or impeachment.

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Compromises and Offers to Compromise (Rule 408)

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1. Evidence of an offer to settle a claim, and any statements or conduct accompanying the offer is not admissible to prove liability or the amount of the claim if disputed as to liability or amount. Such evidence may not be used for impeachment through a prior inconsistent statement, either.
2. May use this evidence for proving bias or prejudice, negating a contention of undue delay, and proving an effort to obstruct a criminal investigation or prosecution.

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Payment of Medical and Similar Expenses (Rule 409)

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1. Evidence of offering or promising to pay medical, hospital, or similar expenses caused by an injury is not admissible to prove liability for the injury.
2. Unlike statements made in conjunction with an offer to compromise, under the Federal Rules an admission made in connection with offers to pay medical or hospital expenses is admissible and may be severed from the offer itself.

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Inadmissibility of Pleas, Plea Discussions, and Related Statements (Rule 410)

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1. Pleas of guilty that are withdrawn, a plea of no contest, or any statements made in plea discussions that do not result in a guilty plea or is later withdrawn.
2. Such statements are admissible where other statements from plea agreements are introduced and in fairness the plea statement ought to be considered as well, and in a criminal proceeding for perjury or false statement, if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

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Liability Insurance (Rule 411)

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1. Evidence that a person was or was not insured against liability is not admissible to show he acted negligently or otherwise wrongfully.
2. Evidence of insurance against liability may be admitted for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

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Sexual Conduct (Rule 412)

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1. Evidence is inadmissible to show that an alleged victim engaged in other sexual behavior, or any alleged victim's sexual predisposition.
2. In criminal cases specific instances of sexual behavior may be used if offered to show that the source of the semen or injury was a source other than that of the accused. It may be offered to show consent, or the exclusion of the evidence would violate a constitutional right.
3. Sexual behavior or predisposition is admissible in a civil case if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed into controversy by the victim.

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Similar Crimes in Sexual Assault (Rule 413/414/415)

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1. If accused of sexual assault, child molestation in both civil or criminal cases, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

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Privilege Generally (Rule 501)

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1. Federal courts must apply state privilege law in actions arising from a state created right or defense. In a federal court case arising under a federal right or defense, the court may make individual determinations regarding privilege using its reason and experience.

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Lawyer-Client Privilege

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1. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.
2. A communication is confidential if not intended to be disclosed to third persons. The privilege is limited to communications in which the client either expressly made confidential or could reasonably assumed under the circumstances would be understood by the attorney as so intended.
3. The client is holder of the privilege. Thus, the power to waive is his, and only he, or his attorney or agent acting with his authority, may exercise this power.
4. There is no privilege if the attorney's services are used to commit or plan to commit a crime, if it is relevant to an issue between parties who claim through the same deceased, communications relevant to breach of duty by the lawyer, if it is of common interest by two or more clients, and it was to a lawyer retained in common.

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Physician/Psychotherapist Privilege

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1. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction.
2. A communication is confidential if it is not intended to be disclosed to third persons, except persons reasonably necessary for diagnosis.
3. Examinations made in preparation for litigation or by court-appointed attorneys do not fall within the privilege. Autopsy reports are likewise not privileged.

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Interspousal Privilege

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1. Spousal Privilege - it is an incapacity of one spouse to testify against the other in a criminal case. The witness spouse rather than the party spouse holds the privilege. The privilege extends to all communications made before or during a valid marriage. The privilege only lasts during the marriage and terminates upon divorce or annulment. There is an exception in cases of prosecution of the husband for violent offenses committed against the wife.
2. Marital Communications Privilege - in any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing a confidential communication made between the spouses while they were husband and wife. Protects all communications made during the marriage. It does not protect crimes against each other or their children, or joint participation in a crime.

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Fifth Amendment Privilege Against Self-Incrimination

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1. The accused has a fifth amendment privilege to refuse to take the stand. Testimony given at a preliminary hearing does not waive the privilege of the accused not to take the stand at trial.
2. The privilege against self-incrimination applies only to evidence that is testimonial in nature. Presentation of real and demonstrative forms of evidence are not protected. Where immunity has been granted, no Fifth Amendment privilege exists.
3. Transaction immunity prevents a witness from being prosecuted for any crime referred to in the testimony. Immunity from using the actual testimony of the witness and any evidence derived therefrom is sufficient to compel testimony without jeopardizing the fifth amendment privilege.

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General Rule of Competency (Rule 601)

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1. Unless otherwise provided in the Rules, every person is competent to be a witness.

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Lack of Personal Knowledge (Rule 602)

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1. A witness may only testify to matters about which he has personal knowledge.

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Competency of Judge as Witness Rule (Rule 605)

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1. A judge presiding at a trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

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Competency of a Juror as Witness (Rule 606)

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1. A juror may not testify as a witness before the jury of which he is a member. However, a juror may testify to: whether extraneous prejudicial information was improperly brought to the jury's attention, or whether any outside influence was improperly brought to bear upon any juror.

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Who may Impeach (Rule 607)

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1. The credibility of a witness may be attacked by any party, including the party calling him. A party may impeach the credibility of their own witness.

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Evidence of character and Conduct of Witness (Rule 608)

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1. A witness's credibility may be attacked by opinion or reputation evidence bearing on the witness's character for untruthfulness.
2. If and only if the witness's credibility for truthfulness is attacked may opinion or reputation evidence of the witness's character for truthfulness be introduced. Evidence of bias or interest does not constitute such an attack.
3. Specific instances of the conduct of the witness other than conviction of a crime as provided in Rule 609, are generally not admissible for attacking or supporting his credibility. But, specific instances may be used when such instances have been the subject of the witness's criminal conviction, and may be inquired into during cross examination concerning the witness's character for truthfulness or untruthfulness, or the character of another witness about whom the witness being cross examining has testified to the character of.
4. Counsel does not have the ability to prove the lie with extrinsic evidence and must accept the witness's answer.

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Impeachment by Evidence of Conviction of Crime (Rule 609)

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1. An opposing party may undermine a witness' credibility by bringing up past crimes. The crime must be punishable by death or imprisonment in excess of one year in the case of a witness, or in the case of the accused, the crime must be punishable by death or imprisonment for more than one year, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect on the accused -- if more than ten years has passed, then the court must determine that the probative value substantially outweighs its' prejudicial effect.
2. In the case of a witness or accused, the elements of the crime involving dishonesty or false statement, regardless of the penalty is admissible, unless more than ten years has elapsed, in which case the probative value must substantial outweigh prejudice.

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Mode and Order of Interrogation (Rule 611)

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1. Cross-examination should be limited tot he subject matter of the direct examination and matters affecting the credibility of the witness. The court may permit inquiry into additional matters.
2. Circumstances in which leading questions may be appropriate on direct examination include: 1) to establish preliminary background information about a witness, 2) to jog a witness' memory, 3) to lay a foundation, 4) to facilitate a young or timid witness, or 5) to question a hostile witness, an adverse party, or a witness identified with an adverse party.

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Writing Used to Refresh Memory (Rule 612)

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1. Any writing, photograph, further questioning, or other form of evidence will suffice. After the memory has been refreshed the witness may testify without having the refreshing evidence present.

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Prior statement of Witness (Rule 613)

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1. In examining a witness concerning his prior statement, whether written or not, the statement need not be shown nor its contents disclosed at that time, but on request must be shown or disclosed to opposing counsel.
2. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afford an opportunity to explain or deny the evidence and the opposing party is afford an opportunity to interrogate him thereon, or the interest of justice otherwise require. This does not apply to party opponent admissions.

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Exclusion of a Witness (Rule 615)

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1. The court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, this is at the request of the other party, or at the court's discretion. This rule does not allow the exclusion of a party or its representative, or a person whose presence is shown to be essential to the party's cause.

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Opinion Testimony by Lay Witnesses (Rule 701)

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1. If a witness is not testifying as an expert, any testimony he gives that is an opinion or an inference must be: 1) rationally based on the perception of the witness, 2) helpful to a clear understanding of his testimony, or to the determination of a fact in issue, and 3) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.
2. Opinions as to truthfulness are not allowed.

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Expert Testimony (Rule 702)

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1. 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 in the form of an opinion or otherwise, if: 1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.

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Opinion Testimony by Expert (Rule 703)

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1. The expert may rely upon facts or data that are not themselves admissible as evidence in forming his opinion or inference, as long as the facts or data relied upon are the type reasonably relied upon by experts in his field.
2. If the facts are admissible into evidence, the may be disclosed to the jury by the proponent only if their probative value in assessing the expert's opinion substantially outweighs the risk of prejudice. The opponent may bring out these facts, however, without balancing.

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Opinion on Ultimate issue (rule 704)

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1. Testimony is not objectionable merely because the testimony touches the ultimate issue. An expert in a criminal case testifying to the mental state or condition of the defendant may not state an opinion or inference as to whether or not the defendant possessed a mental state or condition constituting an element of or a defense to a crime; such determinations are reserved for the trier of fact.

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Disclosure of facts or Data Underlying Expert Opinion (Rule 705)

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1. The expert may testify in terms of opinion or inference without stating the facts and data upon which they are based, but the court may required the expert to disclose that information.
2. Experts may be properly cross examined as to 1) qualifications, 2) subject matter and basis of an opinion, and 3) compensation.

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Hearsay

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1. An oral or written assertion, or nonverbal conduct of a person, if it is intended by the person as an assertion, offered in evidence to prove the truth of the matter asserted. This is for a statement made by someone other than the declarant in court.

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Non-Hearsay

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1. If words are used for some non-truth purpose it is not hearsay. Where words themselves have legal significance apart from their truth, the fact of independent probative value makes them non-hearsay, the two main categories are: 1) tortious words, including the actual words of slander or libel in defamation actions, and 2) transactional words, including the actual words of offer and acceptance in a contract, or the words of intent in a donative transfer, sale, will or deed.
2. Explanatory words that accompany ambiguous physical actions are termed verbal acts. As such, their legal significance is independent from their truth.
3. Statements offered to prove a relevant attitude, belief or intent of either the declarant or the listener are admissible circumstantially as non-hearsay.
4. Statements of the witness offered merely to challenge credibility or show perjury are nonhearsay.

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Present Sense Impression (Rule 803)

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1. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

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Excited Utterance (Rule 803)

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

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Then existing mental, emotional, or physical condition (Rule 803)

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1. A statement about the declarant's then existing state of mind, emotion, sensation, or physical condition, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of declarant's will.

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Statements for purposes of Medical Diagnosis or Treatment (rule 803)

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1. Statements made for the purposes of medical diagnosis or treatment and describing medical history or past or present symptoms, pain, or sensation or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment. The wording of the rule is broad enough to admit statements made to a physician consulted for the purpose of enabling him to testify, even if no treatment is contemplated.

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Recorded Recollection (rule 803)

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1. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopts by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

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Records of Regularly Conducted Activity (rule 803)

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1. A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time, by or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation.

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Absence of Entry in Records (rule 803)

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1. To prove the nonoccurence or non-existence of a matter, if the matter was a kind of which a memorandum, report, record or data compilation was regularly made and preserved, unless the source of information or other circumstances indicate lack of trustworthiness.

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Public Records and Reports (rule 803)

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1. Records, reports, statements, or data compilations in any form, of public offices or agencies setting forth the agencies activities, matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases, matters observed by police officers and other law enforcement personnel (can be used in civil cases unless there are circumstances indicating lack of trustworthiness).

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Learned Treatises (rule 803)

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1. To the extent called to the attention of an expert witness upon cross-examination, or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by testimony or admission of the witness, or by other expert testimony or judicial notice. If admitted, the statements may be read into evidence, but may not be received as exhibits.

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Witness Unavailability

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1. Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement
2. Persists in refusing to testify concerning the subject matter of a statement despite a court order to do so
3. Testifies to a lack of memory of the subject matter of the statement
4. Is unable to be present to testify at the hearing because of death or then existing physical or mental illness or infirmity
5. Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means

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Former Testimony (Rule 804)

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1. Testimony given as a witness, or in a deposition, if the party against whom the testimony is now offered, or in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination.

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Statements under Belief of Impending Death (Rule 804)

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1. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death, in a homicide or civil proceeding.

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Statements Against Interest (Rule 804)

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1. A statement that was at the time of its making so far contrary to the declarant's pecuniary or propietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.

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Authentication or Identification (Rule 901)

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1. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponents claim.
2. Authentication is accomplished by laying a foundation of preliminary evidence sufficient to sustain a finding that the matter is what it purports to be. In addition to direct identification or testimony to authenticate a writing, circumstantial evidence is also admissible.
3. Physical objects may be authenticated by testimony of personal knowledge showing familiarity with the object, by distinctive markings or characteristics, or by chain of custody.
4. Documents may be authenticated by testimony of a witness with knowledge, non-expert opinion on the genuineness of the handwriting, comparisons with specimens that have been authenticated, distinctive characteristics, hearing the voice on prior occasions, evidence that the call was made, original or duplicate that is admissible under Rule 803(6).

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Requirement of Original (Rule 1002)

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1. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Congress.
2. The "Best Evidence Rule" applies only where the contents of a writing are at issue. When a witness without personal knowledge introduces the contents of a document into evidence as proof of what it says, the rule applies. It also applies in situations where the content of the writing directly affects legal rights that are at issue in the case. If witness testimony is reliant on the writing the best evidence rule applies.
3. When first hand testimony, rather than the record of the event is used to prove the content of the record, the best evidence rule does not apply. this result follows where the event is in issue, not the record of it. But if the plaintiff seeks to introduce the findings of a medical report, and does not have first hand knowledge, then the best evidence rule applies.

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Admissibility of Duplicates (Rule 1003)

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1. A duplicate is admissible to the same extent as an original, unless a genuine question is raised as to the authenticity of the original, or it would be unfair to admit the duplicate in lieu of the original.

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Admissibility of Other Evidence of Contents (Rule 1004)

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1. The original is not required and other evidence of the contents of the writing, recording, or photograph is admissible if: all originals are lost or destroyed, unless proponent caused this in bad faith, no original can be obtained by any available judicial process or procedure, the writing, recording or photograph is not closely related to the controlling issue, or the original was under the control of the party against whom it is offered, he had notice, and does not produce the original.
2. Where the original is unavailable the rules permit any form of secondary evidence.

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Public Records (Rule 1005)

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Official record or a document authorized to be recorded or filed and actually filed if otherwise admissible may be proven by copy, certified as correct under Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy complies with the foregoing, and a copy can't be obtained by reasonable diligence, other evidence of the contents may be admitted.