Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

377 Cards in this Set

  • Front
  • Back
Klein's Four Principles
"1) It is the responsibility of the trial judge to make sure the proceedings are fair to all participants.
Rule 101. Scope
These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.
Application of Rule 101
Applies in all federal courts subject to exceptions in Rule 1101.
Rule 102. Purpose and Construction
"These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
Purpose of FRE (Klein's take on 102)
"Klein’s Federal Rule principles:
Rule 103. Rulings on Evidence
"(a) Effect of erroneous ruling.
FRE 103(a), Effect of Erroneous Ruling
"Substantial right affected
FRE 103(a)(1), Objections
An objection is required before admission of evidence can be appealed, UNLESS the admission amounts to plain error
When should you object?
"1) To get it on the record that this is something that should not be coming in - then if the trial judge lets it in, you’ve got your protest on record.
When should you not object?
FRE 103(a)(2), Offer of Proof
"Offer of proof must describe (1) the substance of the evidence, (2) what the evidence tends to show, and identify (3) the grounds under which the evidence may be offered.
FRE 103(d), Plain Error
"Appellate courts will reverse evidentiary rulings where no objection was made at trial only when there is a “plain error” which affected substantial rights of a party.
Rule 104. Preliminary Questions
"(a) Questions of admissibility generally.
Rule 104(a)
Trial judges shall rule on preliminary questions of fact concerning the admissibility of evidence, and in doing so they may consider inadmissible evidence and are not bound by FRE, except when it comes to respecting recognized privileges.
Rule 104(b)
Requires the judge to overrule the relevance objection and let the jury decide the existence of the preliminary fact, unless no reasonable jury could reach such a conclusion.
Rule 104(b) is used in what two ways?
Used in two situations: (1) Conditional Relevancy and (2) Connecting It Up
What is conditional relevancy?
"Conditional Relevancy – when a judge's admission of evidence under 104(b) is conditional and ""subject to the introduction of evidence sufficient to support a finding of the fulfillment of a the condition."" If it is key to the whole case, the evidence should be admitted and trier of fact should determine its relevancy.
Why are policy concerns about prejudice not the same with conditional relevancy?
If jury does not buy initial fact, then there is really no prejudice about them not accepting the other evidence – because they have decided it is not believable.
When should a judge admit evidence subject to conditional relevancy?
"Judge permits issue to proceed to the jury only if there is “evidence sufficient to support a finding” of the fact. Unless no reasonable jury could reach such a conclusion, the judge admits the evidence. Akin to burden of production analysis – whether there is sufficient evidence for a reasonable trier of fact to believe that it is more likely than not that the conditional fact is true.
May a judge consider inadmissible evidence under 104(a) and under 104(b)?
No. Under 104(a), judge can consider hearsay and inadmissible evidence to make a ruling. On 104(b) though, judge can only consider admissible evidence. Under 104(b), judge is deciding whether a reasonable juror could conclude the conditional fact is true. Jury will ONLY hear the admissible evidence. So judge should only consider what jury would hear.
What is "connecting up"?
"“Connecting Up” – When relevancy has not been shown or the evidence lacks adequate foundation, the judge may admit the evidence conditionally upon counsel's promise to ""connect it up later.""
If evidence meets 104(b) standard, is it therefore admissible?
Maybe. The evidence may still be excluded under 403 even if 104(b) is satisfied.
In what situations does 104(b) usually come up?
"FRE 901: ""conditional relevancy"" is applicable in authentication or identification matters.
Rule 105. Limited Admissibility
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Rule 106. Remainder of or Related Writings or Recorded Statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Rule 106
"Allows judge to require introduction of entire document or related documents upon complaint that admissible of a portion or a single document will be prejudicial
Rule 201. Judicial Notice of Adjudicative Facts
"(a) Scope of rule.
Court can take judicial notice of adjudicative fact when:
"(i) Generally known within the territorial jurisdiction of the trial court, OR
Adjudicative vs. Legislative Facts
"Judicial notice of an ADJUDICATIVE fact can be taken at any stage of a proceeding, even if no lawyer requests it.
Judicial notice in civil and criminal cases?
"Civil cases – judicially noticed fact is conclusive
Rule 301. Presumptions in General Civil Actions and Proceedings
In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
Rule 302. Applicability of State Law in Civil Actions and Proceedings
In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.
Proposed Rule 303. Presumptions in Criminal Cases
"(a) Scope. Except as otherwise provided by Act of Congress, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.
Three main degrees of proof
(1) preponderance of the evidence, (2) beyond a reasonable doubt, and (3) clear and convincing.
Preponderance of the Evidence
"Also know as ""more likely than not.""
Beyond a Reasonable Doubt
"Most arduous standard of proof.
Clear and Convincing
"Between ""preponderance"" and ""reasonable doubt.""
Burden of Persuasion
"The obligation of a party to introduce evidence that persuades a fact-finder to a specific degree of belief that a particular proposition of fact is true.
Burden of Production
"The requirement of ""going forward with the evidence"" or of 'making out a prima facie case.""
What is a presumption?
"A rule providing that the proof of a designated fact has a predetermined effect in establishing the existence of another fact.
Three different kinds of presumptions
"1) Irrebuttable presumption
Irrebuttable Presumption
"Also called conclusive presumption
Rebuttable Presumption
"Also called true presumption.
Permissive Inference
"A factual conclusion that a factfinder may choose to infer from other facts. You are allowed to draw a conclusion either way.
A party seeking to rebut a presumption may:
"1) Offer NO evidence challenging the existence of either the foundational facts or presumed fact
Presumptions in Criminal Cases
Sandstrom v. Montana and Francis v. Franklin make clear that presumptions are unconstitutional when a reasonable juror could interpret them as conclusive or irrebuttable, or as relieving the burden of persuasion from the prosecution on an element of the offense.
"If a proponent presents evidence that raises a presumption, then only the burden of production (not persuasion) shifts to the opposing party. If the opposing party presents evidence to overcome that burden of production (i.e. evidence adequately supports a finding that the presumed fact is not true), then the presumption disappears completely & the jury is free to decide the issue.
Morgan-McCormick Theory
Once a presumption is raised by proof of foundational facts, the burden of persuasion regarding the existence of the presumed fact shifts to the opposing party.
What is "opening the door"?
When the initiating party offers admissible evidence and as a result, the other party may offer previously inadmissible evidence
What kind of admissible evidence "opens the door"?
"(i) Expansion of the issues
What is a motion in limine?
"A Motion in Limine is a pre-trial motion addressing the admissibility of evidence at trial. It may be used to:
Three categories of motion in limine
"(1) issues that cannot be ruled on pretrial
Rule 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence 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.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
When is evidence considered relevant?
To be relevant, evidence must (1) have probative value (any tendency to make it more or less probable), (2) material, regard a fact of consequence (related to an issue of the case).
How is FRE definition of relevance different from common law?
"FRE is more liberal than common law. FRE 401 looks for “any” tendency to make something more or less likely true.
What is the difference between logical relevancy and legal relevancy?
"Logically relevant – evidence that has any tendency in logic to establish a proposition
If evidence is logically relevant to the case, is it admissible?
"According to Rule 402, just because something is logically relevant, it may be barred.
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
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 the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Under rule 403, on what grounds can relevant evidence be excluded?
Even if relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of (1) unfair prejudice, (2) waste of time, or (3) confusion of issues.
What is the balancing test of 403?
"403 has a balancing test but it is a rule of INCLUSION – evidence comes in unless unfair prejudice SUBSTANTIALLY outweighs relevance.
What evidence is subject to the 403 balancing test?
"Everything is subject to 403 balancing test, EXCEPT when evidence impeaches a witness with a conviction for a crime of dishonesty, FRE 609 mandates admission without balancing.
Is rule 403 a "first line of defense" argument?
No. It is a fall-back rule. When all other attempts to exclude evidence fail, go to Rule 403, then rule 105 (limiting instruction).
What considerations should judge make when ruling under 403?
"First, the judge needs to decide whether the disputed evidence raises a danger of unfair prejudice (or confusion of the issues or misleading the jury, etc.)
What deference is a judge's determination under 403 given?
Judge's ruling is subject only to an "abuse of discretion" standard. He has wide discretion in making his ruling. Trial judge’s decision to admit or exclude evidence may not be reversed unless it is “arbitrary and irrational.”
What rules govern character evidence?
"Rule 404(a) is concerned with use of character evidence to show conformity.
What is the general rule on character evidence?
Evidence of character is not admissible for the purpose of proving propensity or action in conformity with that character. With exceptions.
What are the exceptions to the general ban on character evidence?
"(1) Defendant: Rule 404(a)(1). In criminal cases, Accused may introduce evidence of his or her own pertinent character. Then, prosecution may introduce rebuttal evidence.
When is evidence of specific acts admissible to prove character?
"(1) Essential Element of Claim or Defense. Cannot show character through specific instances of conduct unless character is an essential element of the claim or defense.
After the accused offers evidence of good character, how else can the prosecution respond besides cross examining the D's character witnesses?
The prosecution may also respond by calling prosecution witnesses to testify to bad opinions or bad reputation in regard to the character of the accused
When is Character Evidence not admissible?
Not admissible at the initiative of the prosecution if the sole purpose is to show Criminal Disposition in order to infer Guilt from disposition
May the prosecution use CE as impeachment evidence if the D does not try to show his good character, but only takes the stand to deny his involvement in the crime?
Yes. See cards on impeachment.
In a case involving sexual mis conduct, how is defense evidence of the victim's sexual history to prove consent limited?
"1. no opinion or reputation
Character evidence is not admitted unless and until…
"the accused is permitted to offer evidence of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence.
In civil cases involving sexual misconduct, when is evidence of the sexual disposition or behavior of the alleged victim admissible?
"Only if the probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
May a character witness for the D testify that weeks before the victim was shot, the W told the D about the victim's violent disposition?
Yes, this goes toward the D's state of mind during the fight with the victim
What trait of character must be proved?
Can't just prove general, must be specific (ex. larceny: honesty or dishonesty)
What methods can a D use to prove his good character?
"Call a W to testify on his behalf in the form of opinion or reputation, but not testimony.
When may evidence relevant to show motive, intent, identity and common scheme be excluded by the judge?
If the trial judge believes that probative value is substantially outweighed by the danger of unfair prejudice
When are prior crimes or prior acts of uncharged conduct admissible at the initiative of the prosecution?
When the misconduct is relevant to prove a material fact other than character or disposition such as motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident
What are the 4 preliminary questions to ask regarding character evidence?
"1. the purpose of offer of CE
How can the prosecution respond when the accused attacks the victim's character?
By showing good reputation or opinion concerning the victim or by showing the bad reputation or a bad opinion concerning the acused himself
When is Character Evidence admissible in a civil case?
"Character evidence is NOT permitted in civil cases – except for IMPEACHMENT of witnesses (404a)
How may the prosecution respond after the accused offers evidence of good character?
The prosecution may respond by inquiry on cross examination of the accused's good character witness about any Specific Acts which would tarnish the accused's reputation or which would affect the opinion of the W
May the prosecution show a D's criminal background to prove a violent disposition if the D does not try to show his good conduct, but takes the stand and denies his involvement in the crime?
Rule 404(a), Character Evidence not admissible to prove conduct; Exceptoins
"(a) Character evidence generally
Rule 405. Methods of Proving Character
"(a) Reputation or opinion.
What are the methods or techniques to prove Character?
"1. specific acts of conduct
When may which methods be used to show character?
When character is in issue, ALL three methods (reputation, opinion, specific conduct) may be used. When character is used circumstantially as permitted under an exception to 404(a), ONLY reputation/opinion evidence may be used.
What must be established for foundation of reputation witness?
Reputation Witness must have personal knowledge, as shown by sufficient acquaintance with (1) person, (2) community he has lived or worked, and the circles in which he has moved, and (3) reputation in the community (what other people in community think of this person).
Can a reputation witness testify if the target witness actually has no reputation?
Yes. Silence can speak. Absence of bad reputation - witness who testifies to being acquainted w/ people who know the D and is in a position to hear derogatory statements if any were made, is permitted to testify about not having heard anything unfavorable.
Is testimony about a witness's reputation hearsay?
Yes. But it is admissible. Evidence of reputation, when used to show character, is evidence of out-of-court statements offered from the truth of the matter asserted – so it is hearsay, but Rule 803(21) gives special hearsay exception for reputation testimony.
What must be establisehd to show a witness is qualified to give opinion about another's character?
Opinion Witness must have sufficient familiarity with the person, but doesn’t have to have knowledge of person’s reputation. Can be expert or lay opinion about a person’s traits.
On cross-examination, can you ask an opinion or reputation witness about specific conduct of the target witness?
"Yes. A reputation or opinion witness who has testified about character on direct may be asked on cross about relevant SPECIFIC INSTANCES of the target person’s conduct. Prosecution must have good-faith basis for asking about these specific instances: (1) that the incident occurred, (2) that the incident is one likely to become matter of general knowledge or reputation in the community, (3) that the incident is relevant to character traits involved at trial. Questions should be general only - ""Have you heard...?"" But you can NOT ask a hypothetical question asking the witness if her opinion would change if she assumed the D was guilty of the crime charged.
If a witness claims ignorance about specific instances of conduct, can you offer extrinsic evidence about the conduct?
No. No Extrinsic Proof on Cross! If the witness answers in the negative about a specific instance of conduct, neither the act nor the witness’s knowledge of it may be shown by extrinsic evidence. Cross-examiner must abide by the witness’s answer. Perjury protects against the witness. Also we don’t want mini-trials about whether this conduct really happened.
If a defendant offers reputation/opinion testimony about his character, can the prosecution rebut with specific conduct evidence?
No. Even if D offers reputation/opinion testimony about his character under 404(a)(1), prosecution’s rebuttal is likewise limited to reputation/opinion evidence. Where character is NOT an essential element of a charge, claim or defense, 405a restricts proof to reputation or opinion evidence. May NOT include proof of particular instances of conduct (Ex: prior convictions).
When is specific conduct evidence admissible to show character?
"Evidence of specific instance of conduct may be offered when character is an ESSENTIAL element of charge, claim or defense.
When can character evidence be admitted?
"For an ultimate issue.
Distinguish putting character in issue vs. character being in issue
"Well, be careful how you phrase that. Character evidence, including evidnece of specific acts, is admissible if character is an ultimate issue in the case.
What restrictions are on a defendant when he offers character evidence about himself?
"A criminal D may offer evidence of his good character to support an inference that he acted in conformity w/ that good character and thus didn’t commit the crime.
Once a defendant offers character evidence about himself, what may the prosecution do?
"Once D presents evidence of his good character, he “opens the door” for prosecution to rebut. Prosecution may (1) cross-examine accused’s reputation/opinion witnesses, (2) call other character witnesses. Or if D took the stand to talk about his own character, he can be impeached for truthfulness under 608.
How is the accused limited in his attack on the character of a victim?
"Accused may offer evidence of the alleged victim’s character (in reputation or opinion testimony) to show that the alleged victim acted in conformity with his character. The evidence must relate to a character trait that is PERTINENT to the charge
How may the prosecution rebut an attack on a victim's character?
"If D offers evidence of victim’s character, prosecution may rebut by (1) showing victim’s peaceable character (in reputation/opinion testimony), (2) offer evidence that accused has same character trait.
Can the character of a witness be attacked?
Yes. Generally, you can attack, and in response to an attack, support the character of a witness, but limited to character evidence concerning truthfulness/untruthfulness. See Rules 607-609
Do rules 404 and 405 apply to witnesses?
Rules 404 and 405 apply to parties only. Rule 608 applies to witnesses who can only be impeached/rehabilitated regarding truthfulness. Note the witness may be a party, the defendant, the victim, or just a general witness.
Rule 608. Evidence of Character and Conduct of Witness
"(a) Opinion and reputation evidence of character.
Can a witness be impeached for having bad character?
Only as regards to the witness's truthfulness. Can only attack for Untruthful character, can only defend for truthful character.
How may a witness be impeached for truthful/untruthful character?
"Impeachment may take THREE forms:
Can a party support the veracity of a witness by bringing in a character witness?
"1) Rule 608(a)(1): Evidence may only refer to character for truthfulness/untruthfulness.
What are the limits on bringing character evidence under 608?
608 operates the same as 404 – on direct, it is limited to reputation or opinion, must be limited to the character trait of truthfulness, must have personal knowledge, must be very general – can only say what opinion/reputation is, can not explain why the reputation is that way.
Can a witness's veracity be challenged with evidence of specific conduct?
Under Rule 608(b), a witness may be cross-examined about specific instances of his conduct that did not result in conviction but that bear on his truthful/untruthful nature (608b governs only the use of specific acts that did not result in convictions; convictions are governed by 609). At the court’s discretion, can cross-examine about specific acts that are probative of the witness’s character for truthfulness or untruthfulness.
What are the limits on cross-examining a witness for veracity?
Operates same as 404 – conduct must be probative of truthfulness, may ask the witness about the conduct but can not give extrinsic evidence (you’re bound by the witness’s answer) and you can not ask whether the witness was arrested or charged for the act, must have good faith basis for making inquiry. Goal is to discredit the character witness (not the fact witness) as poor judge of character or lacking full knowledge of fact witness.
If specific act evidence serves a purpose other than character, can it be admitted?
"Rule 608 does NOT apply and evidence of specific acts is ADMISSIBLE if it (also) serves a purpose OTHER than character:
Rule 406. Habit; Routine Practice
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.
How is habit evidence different from character evidence?
"Evidence of habit, unlike character, is freely admissible.
How do you prove a practice is routine or habit?
"Proponent must show (1) type of conduct is regular, even “semi-automatic”, and (2) rate of conduct is very high (near 100% of the time).
Does rule 406 only allow evidence of habits of natural persons?
No, it also allows evidence of the routine practice of organizations like corporations.
Rule 404(b), Other Crimes
"(b) Other crimes, wrongs, or acts
Can specific instances of conduct be used for another purpose, even if it could also reflect on character for propensity?
"Although specific instances of conduct can’t be used to show propensity and bad character, except in a very narrow context, it may be used for numerous purposes under Rule 404(b). Rule 404(b) is a rule of INCLUSION. Bad acts evidence comes in as long as a reasonable juror could believe this. Though the evidence could be misused for character, it has a valid purpose because it shows an event that is directly related to the crime, so it is allowed.
Hypo: D is charged with robbery. He committed a robbery last year. Can prosecution offer into evidence the fact that he committed robbery last year?
"No. Evidence would be barred by rule against character evidence – it is evidence of a general disposition to show conduct in conformity with “bad character”, does not fall within exception to character evidence because it describes a specific act and character may only be proved by reputation or opinion testimony.
If evidence of a bad act is offered under 404(b), must you prove the act happened beyond a reasonable doubt?
No. Even when the defendant does not testify, even if the conduct was not criminal, even if the conduct occurred AFTER the event in issue, even if the conduct did NOT lead to a conviction, even if crime resulted in acquittal, the defendant’s misconduct may be admissible as SUBSTANTIVE evidence of guilt if offered for a proper purpose. There may not have been evidence to prove beyond a reasonable doubt, but standard is preponderance (104b).
How should 404(b) evidence be offered by prosecution and considered for admissibility by judge?
"1) Notice: In a criminal trial, upon request by accused, prosecution must give notice of intent to use other crimes evidence in advance of trial (or later if good cause).
What are permissible other purposes for offering evidence of uncharged misconduct under 404(b)?
"KIPPOMMIA: Knowledge, Identity, Plan, Preparation, Opportunity, Motive, Modus Operandi, Intent, Absence of mistake or accident.
Describe other specific purposes for which evidence of other acts would be admissible under 404(b).
"1) Knowledge. Comes up often in stolen goods cases – where you have to prove D had knowledge the item was stolen, or had special knowledge that enable him to do the crime (how to disable security system). There has to be relative similarity between past bad act and current charged act.
If evidence is intrinsically related to the charged offense, or offers background on the charged offense, is it admissible?
Is evidence of prior similar crimes admissible?
Evidence of other bad acts is admissible under 404(b) to show modus operandi. Look for “signature quality.” Two crimes must share distinctive characteristics (brides in bath). If they share features that are generic to the type of crime, that is not sufficient (bank robbery with mask).
Rule 407. Subsequent Remedial Measures
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Is evidence of subsequent remedial measures admissible to show negligence?
"No. Evidence that after an accident the defendant made repairs or took other remedial measures that, if taken before the accident, would have made the accident less likely to occur, is not admissible to prove negligence or other culpable conduct. Rule 407 is a rule of EXCLUSION.
When is evidence of subsequent remedial measures admissible?
"(1) Other purpose than showing negligence/culpable conduct: Evidence of remedial measures CAN be admitted to prove (1) ownership, (2) control, (3) feasibility of precautionary measures, or (4) for impeachment. But ONLY if evidence is CONTROVERTED.
Is timing of remedial measures relevant?
Yes. Though there is a split of authorities on whether to measure after accident or after purchase, the rule is clear that it only applies to remedial measures taken AFTER the event at issue in the case.
Rule 408. Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a 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. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
What evidence does rule 408 preclude from admission?
"A settlement offer or settlement agreement is generally NOT admissible if used to prove a claim’s (1) validity OR (2) value.
Does rule 408 protect business negotiations from admission?
"Rule 408 only applies to compromise negotiations – business negotiations are not sufficient.
Does rule 408 protect all statements exchanged during compromise negotiations?
"Not all evidence exchanged during compromise negotiations will be protected, Rule 408 does not exclude evidence that is (1) otherwise discoverable, (2) offered for another purpose than to prove disputed validity or value of claim. Of course, evidence is still subject to 403.
Rule 409. Payment of Medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
When are payments of medical expenses admissible to prove liability?
"Never. Rule 409 renders INADMISSIBLE the payment and offers to pay medical, hospital, or
Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
"Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
What four categories of evidence related to pleas are inadmissible under rule 410?
"Rule 410 renders inadmissible, in any civil or criminal proceeding:
If a defendant admits he is guilty and enters a guilty plea, can his admission be entered into evidence?
"Yes. If guilty plea is NOT withdrawn, it is admissible as an admission.
If a defendant admits culpability in a plea discussion, then later lies about his culpability on the stand, can his statements from the plea discussion be used to impeach?
"No. Even if a defendant is lying through his teeth on the witness stand, the prosecution may not use the defendant's plea discussion statements to impeach the defendant on cross-examination in that criminal proceeding.
If a statement is made to a law enforcement officer during the course of plea discussions, is it inadmissible under rule 410?
"If statements are not made (1) during course of plea discussions (2) with an attorney for the prosecution, they are not covered by the rule.
What are the two exception to rule 410 on pleas?
"(1) Perjury - If statement was made by D under oath, on the record, and in presence of counsel, the statement may be admitted in a criminal proceeding for perjury or false statement.
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Is evidence of liability insurance admissible to show negligence?
Evidence about a person's liability insurance may be introduced (subject to Rule 403's balancing test) EXCEPT when used to prove that person's negligence or carelessness or when intended to affect the measure of damages to be awarded.
Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition
"(a) Evidence generally inadmissible.
What is the rape shield provision?
Rule 412(a) says evidence of the (1) sexual behavior or (1) predisposition of an alleged victim of sexual misconduct is NOT admissible in a civil or criminal case.
When is evidence of a victim's past sexual conduct admissible in a criminal trial?
"Rule 412 renders such evidence generally inadmissible. However, there are exceptions. Such evidence is admissible
When is evidence of a victim's past sexual conduct admissible in a civil trial?
"Rule 412 renders such evidence generally inadmissible. However, there are exceptions. Such evidence is admissible if
For the trial of a D charged with a sex crime, in what three ways can evidence of similar crimes committed by the D might come to light?
"1) FRE 404(b): evidence of other crimes for non-character purpose. Such as showing motive, plan, or preparation, or identifying the D as the perpetrator by showing that he committed prior “signature” crimes using the same modus operandi.
If D is charged with a sex crime, may you admit evidence of similar sexual crimes to show propensity?
"Yes. FRE 413 (sexual assault) and 414 (child molestation) allow evidence of similar sexual crimes as an exception to the ban on character evidence under rule 404(b).
To admit evidence of evidence of similar sexual crimes, what must you establish?
"You must:
Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
"(a) In a criminal case in which the defendant is accused of an offense of sexual assault, 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.
Rule 414. Evidence of Similar Crimes in Child Molestation Cases
"(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
"(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.
Rule 501. General Rule (Privileges).
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
Do the federal rules of evidence outline applicable privileges?
"No. FRE 501 provides says federal privilege law is common law interpreted in light of rason and experience.
Proposed Rule 502. Required Reports Privileged by Statute
A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if the law requiring it to be made so provides. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if the law requiring it to be made so provides. No privilege exists under this rule in actions involving perjury, false statements, fraud in the return or report, or other failure to comply with the law in question.
Is a public officer required to turn over a statutorily mandated report?
"If the law requiring the report so provides, privilege of non-disclosure may be invoked by (1) creator of report, (2) public officer or agent to whom the report was made.
Proposed Rule 503. Lawyer-Client Privilege.
"(a) Definitions.
When does the attorney client privilege apply?
"When legal advice is sought from a professional legal advisor, the communications relating to that purpose, made in confidence, by the client or the lawyer, are at the client’s instance permanently protected from disclosure by the client or legal advisor, unless waived by the client.
Who holds the attorney-client privilege?
The client. But an attorney may invoke/waive privilege on behalf of client.
What is NOT protected under the attorney-client privilege?
"Underlying facts (not facts contained in communication)
Test for corporate clients?
"Control Group Test - most restrictive standard and trend is moving away from this. The only constituents covered are officers and directors who are in control of the action of the corporation.
Procedure for attorney-client privilege?
"(1) Burden of proof is on person asserting privilege, asserting exception
Waiver of attorney-client privilege?
"(1) Client Waives - holder of privilege. If client shares conversation with non-protected party, it’s waived. Not waived by eavesdropping except in some mean courts.
Proposed Rule 504. Psychotherapist-Patient Privilege.
"(a) Definitions.
What is the psychotherapist-patient privilege?
"Federal law recognized psychotherapist-patient privilege in Jaffee v. Redmond. Patient holds the privilege and it protects confidential communications with a pscyhotherapist (including licensed social worker) for the purpose of treatment.
What about physician-patient privilege?
"No proposed rule about it. Common law didn't recognize it, but just about every state it with lots of exceptions.
Proposed Rule 505. Husband-Wife Privilege.
"(a) General rule of privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him.
Can a spouse testify against her accused-spouse?
Under common law, no. But now courts recognize two distinct privileges, (1) testimonial and (2) communications.
When does a spouse have a testimonial privilege?
"Spouse of an accused may NOT be compelled to testify against the accused spouse when: (1) Criminal case, (2) testimony is adverse to D-spouse (not neutral or favorable), (3) valid and viable marriage.
When does a spouse have a communications privilege?
"Communications privilege protects (1) intended confidential (2) communications made (3) during viable marriage, (4) in civil and criminal cases.
Proposed Rule 506. Communications to Clergyman.
"(a) Definitions. As used in this rule:
What is the clergy privilege?
"Provides a privilege for (1) confidential communications made (2) to a clergyman (3) in his capacity as a spiritual advisor.
Proposed Rule 507. Political Vote.
Every person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot unless the vote was cast illegally.
What is the political vote privilege?
"Not recognized by federal courts
Proposed Rule 508. Trade Secrets.
A person has a privilege, which may be claimed by him or his agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by him, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.
Do courts recognize privilege for trade secrets?
Courts recognize a QUALIFIED privilege. A trade secret may consist of any formula, pattern or device which is used in one’s business and can be used to obtain an advantage over competitors who do not know or use it.
When is a trade secret not protected?
(1) generally known, (2) readily ascertainable, and (3) one that constitutes an individual’s personal or professional skills.
What protections are avilable if trade secret is ordered disclosed?
"(1) in camera testimony
Proposed Rule 509. Secrets of State and Other Official Information.
"(a) Definitions.
What is the state secrets privilege?
"Absolute privilege, cannot be overcome by showing of necessity.
What is the official information privilege?
"Qualified privilege, only applied to “predecisional” communications.
What is the privilege against self-incrimination?
"5th Amendment of Constitution
Procedure for privilege against self-incrimination?
"Witness asserts (based on reasonable cause to apprehend danger)
How can a defendant waive his privilege against self-incrimination?
"(1) explicit waiver
Can prosecution comment on D's claim of privilege in criminal case?
"(1) Prosecution may NOT allude to defendant's failure to testify
Does the privilege against self-incrimination apply in civil cases?
"This privilege generally is against self-incrimination that could lead to criminal liability but witnesses in civil cases also may exercise the privilege to refuse to answer on the grounds of self-incrimination to avoid possible criminal liability. But:
Proposed Rule 510. Identity of Informer.
"(a) Rule of privilege.
What is the privilege of informer identity?
"Protects IDENTITY, contents of communications only protected if would disclose identity
How can you waive informer identity privilege?
"(1) if informant’s identity is disclosed, then privilege is waived – whether informant or government reveals identity;
Proposed Rule 511. Waiver of Privilege by Voluntary Disclosure.
A person upon whom these rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication
How is a privilege waived?
"Privilege is terminated if holder destroys confidentiality by (1) voluntary or intentional disclosure, of (2) by failure to protect against disclosure, EVEN IF holder was unaware of legal effect of disclosure.
How might a waiver be implied?
"(1) Failure to timely object (big one)
What if matter is partially disclosed?
"Depends on how it came about:
What if matter is inadvertently disclosed?
"Strict rule is privilege is waived.
Proposed Rule 512. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege
Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was (a) compelled erroneously or (b) made without opportunity to claim the privilege.
When there is loss of confidentiality of privileged matter, what happens?
"Usually waiver. BUT if the disclosure was (a) compelled erroneously or (b) made without opportunity to claim the privilege, the matter is not admissible.
Proposed Rule 513. Comment upon or Inference from Claim of Privilege; Instruction
"(a) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
Can counsel or judge comment on claim of privilege?
"No. Claim of privilege is NOT a proper subject of comment by judge or counsel in a criminal proceeding.
Rule 601. General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
Rule 601. General Rule of Competency
"Rejects common law approach
Application of state competency law?
"Only in civil cases, where state law is used to consider element of claim or defense.
When can a witness be found incompetent?
"1) STATUS: everyone is considered competent except judges and jurors
Rule 602. Lack of 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' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
Foundation for personal knowledge?
Personal knowledge may be established by: (1) the witness' own testimony that personal knowledge exists; or (2) inferred from the circumstances.
Standard for determining whether witness has personal knowledge?
If a reasonable juror can find the testimony is more likely than not based on firsthand knowledge (witness had ability and opportunity to perceive fact testified about), then judge will permit testimony.
Does an expert have to speak from personal knowledge?
No, rule 703 is an exception to rule 602. Personal knowledge requirement doesn’t apply to experts.
Rule 603. Oath or Affirmation
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.
May a witness give testimony without swearing "so help me God"?
A witness who refuses to take an oath or affirmation to be truthful is not eligible to testify. But the form of the oath may vary. Oath must be sufficient to “awaken a witness's conscience.” Judge must be satisfied that person understands import and seriousness of oath.
Rule 604. Interpreters
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.
When is an interpreter qualified to interpret in court?
Interpreter (1) needs to be an expert under 702, and (2) they need to take oath under 603 that the translation is correct.
Rule 605. Competency of Judge as Witness
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
Competency of judge as witness?
"Presiding judge may NOT testify in trial as witness.
Rule 606. Competency of Juror as Witness
"(a) At the trial.
When can't a juror testify as a witness?
"Juror can not testify as witness for the trial in which he sits.
When can a juror testify as a witness?
"A juror may testify or submit affidavits if
Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including the party calling the witness.
What are the types of impeachment?
"1) Bias
When is extrinsic evidence admissible during impeachment?
"Always for bias, defects in capacity, prior conviction - if relevant.
Things to watch out for on impeachment
"Is evidence offered to show untruthful character?
Can you impeach a witness for untruthful character?
"Yes, with some limitations. See Rule 608
How could you impeach a witness for defect of capacity?
"No specific rule, just based on common law.
How could you impeach a witness for contradiction?
"No specific rule, just based on common law.
How could you impeach a witness for bias?
"No specific rule, just based on common law.
Can you rehabiliate an impeached witness?
"Allowed to rehabilitate for truthful character or prior convictions.
Rule 609. Impeachment by Evidence of Conviction of Crime
"(a) General rule.
Under Rule 609
"Ask yourself
May a person be impeached for a crime of dishonesty?
"Yes! Rule 609(a)(2) – a witness may be impeached by showing that he has been convicted of a crime involving dishonesty or false statement – regardless of the punishment. But must be in last ten years. Note, this is the only rule that 403 does NOT apply to!
May a person be impeached for a crime not involving dishonesty?
"Maybe. Rule 609(a)(1) – authorizes impeachment by crime convictions IF (1) witness has been convicted for serious crime (punishable by death or imprisonment of 1+ years), and (2) prejudice under balancing test (a) for D the test is probative value outweighs prejudice, (b) for other witnesses it is rule 403 plus five factors.
Is the timing of the crime imporant?
"Yes! Look closely at time.
What if the crime was committed as a juvenile? Is it still admissible?
"Never against the accused, but maybe against non-accused. Under rule 609(d), such evidence is generally NOT admissible UNLESS:
What if the prior conviction was pardoned?
"Maybe. Rule 609(c) - evidence of conviction is NOT admissible if (1) conviction is subject of pardon, annulment, or certificate of rehabilitation AND witness has not committed a subsequent serious crime (punishable by 1+ years), (2) conviction was pardoned, acquitted, etc. based on finding of innocence (regardless of subsequent history).
What if the conviction is pending appeal?
If it meets the other criteria under 609, it is still admissible.
If prior conviction is admissible, what information about the conviction can be shared?
Impeaching party may establish nature, time and place, and punishment for each conviction based on cross-examination or public record. But can NOT show details!
Is a prior conviction admissible to show motive?
Rule 609 does NOT apply if offered for any purpose other than attacking witness’s credibility based on character.
Rule 610. Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.
Is evidence of a witness' religious belief admissible?
"Rule 610 precludes the use of a witness’s religious beliefs or opinions ONLY for the purpose of showing that the witness is a truthful or untruthful person (by impeachment, bolstering, rehabilitation).
Rule 611. Mode and Order of Interrogation and Presentation
"(a) Control by court.
Rule 611(a)
Court exercises reasonable control over order and presentation of evidence (1) to ascertain truth, (2) save time, (3) protect witnesses.
Rule 611(b)
Scope of cross-examination is limited to (1) subject matter of direct examination, (2) matters affecting witness credibility, and (3) additional matters permitted in court's discretion.
Different approaches to cross examination limitation?
"(1) The ""wide open"" common law rule permits cross-examination on any subject relevant to the dispute.
What to do if a witness has information on a topic outside the scope of the direct examination?
"(1) You may request that the judge allow you to question the witness on additional matters as if on direct examination under Rule 611(b)’s exception.
Rule 611©
"Leading questions are usually permitted on cross-examination and NOT permitted on direct examination.
Leading questions are permitted when?
"(1) Cross-examination
Rule 612. Writing Used to Refresh Memory
"Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--
Rule 613. Prior Statements of Witnesses
"(a) Examining witness concerning prior statement.
When can you impeach a witness by her prior statement?
"A witness can be impeached by a prior statement that is oral or written, sworn or unsworn, or even by prior silence. But NOT conduct!
Can you use hearsay of a prior statement to impeach?
Only if (1) under oath, (2) identification, (3) admission by party opponent, (4) non-statutory hearsay or hearsay exception
Do you have to show document to witness your impeaching prior to cross?
No, but his lawyer can ask to see it.
Rule 614. Calling and Interrogation of Witnesses by Court
"(a) Calling by court.
May a judge call a witness sua sponte?
Yes. Rule 614(a) permits the court to call witnesses sua sponte or at request of a party. All parties are then entiteld to cross-examine the witness.
May a judge interrogate a witness?
Yes. This is usually done to clarify a witness's testimony, sometimes done for ascertainment of truth. But a judge must maintain appearance of impartiality. Court should take steps to minimize prejudice to jury and be careful in questions he asks. When judge asks a question, jury puts greater importance on it and assumes that judge perceives something is more important.
If an attorney fails to object to a judge's calling a witness, does he waive his objection?
Not necessarily. Rule 615(c) provides that counsel may object to court’s calling or interrogation of a witness right away, or at next available opportunity when jury is not present. This is to avoid placing counsel in embarrassing position of questioning judge’s decision in front of jury.
Rule 615. Exclusion of Witnesses
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.
May a judge exclude a defendant from his trial?
No. But under rule 615, a party may request that judge exclude certain witnesses from the courtroom.
What person may a judge NOT exclude from the courtroom?
"There are FOUR categories of person who may not be excluded:
May a court prohibit a defendant from meeting with counsel overnight if cross-examination is extended to the next day?
No. The Supreme Court held an order prohibiting a criminal defendant from consulting with counsel overnight is unconstitutional, but a ban on communication during a brief recess is permissible.
Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Can a witness testify based on his opinion?
"Yes. But must be from personal knowledge unless an expert.
Rule 702. Testimony by Experts
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, 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.
When is an expert qualified to testify?
"Under 702, before admitting expert testimony, the court must be satisfied that
When is expert testimony considered sufficiently reliable?
"Under Daubert, judge is gatekeeper to expert testimony who must test for reliability.
Rule 703. Bases of Opinion Testimony by Experts
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 hearing. 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 in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Can an expert base his testimony on inadmissible facts?
"Yes. Expert may base opinion both on (1) facts obtained at trial, (2) inadmissible underlying facts
Rule 704. Opinion on Ultimate Issue
"(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
May an expert give his opinion on an ultimate issue?
"Yes. EXCEPT for opinions as to an accused’s mental state or condition, an expert’s opinion on a mixed question of law and fact is not rendered inadmissible merely b/c it goes to an ultimate issue.
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Do you have to lay foundation for an expert's opinion?
Don’t have to lay a factual foundation for expert opinion – though it can be explored on cross.
Rule 706. Court Appointed Experts
"(a) Appointment.
Everytime you have a hearsay issue, what four questions should you ask?
"1) Is there an out of court assertion?
Rule 801. Definitions (Hearsay)
"The following definitions apply under this article:
What is hearsay?
"Hearsay is an out-of-court assertion by a declarant offered solely for the truth of the assertion. Statement can be oral, written, or nonverbal conduct – key is if it is intended as an assertion.
Please give examples of statements that are not hearsay.
"1) Statement with relevancy apart from truth of matter it asserts. (i.e. “Help me!” is admissible to show the declarant was alive at the time the statement was made. In fact, “I’m alive!” would be acceptable for same reason because relevance of statement derives from its having been made, not its contents.)
Rule 801(d) Statements which are not hearsay.
"A statement is not hearsay if--
What is statutory non-hearsay?
"See Rule 801(d).
When is a prior inconsistent statement admissible?
"Under 801(d)(1)(A), Prior inconsistent statement may be admitted as substantive evidence where three conditions are met:
When is a prior consistent statement admissible?
Under Rule 801(d)(1)(B), Prior consistent statements are admissible for rehabilitation – prior statement does not have to be testimonial, it can be out-of-court statement, but it must be used to rebut an express or implied charge against witness of recent fabrication or improper influence or motive. Witness must be available for cross-examination. The prior consistent statement must have been made PRIOR to the alleged fabrication or motive.
When is a prior statement of identification admissible?
"Under Rule 801(d)(1)(C), Prior identification of a person - An out-of-court statement identifying a person is admissible and is not hearsay if the declarant testifies and is available for cross-examination about the statement.
What is an admission by a party-opponent?
"Under rule 801(d)(2)(A) – a party’s statement can be used against them. The statement does not have to be harmful to case, it could be a statement denying guilt – that would still be admissible against you.
How is an admission by a party-opponent different from a statement against interest?
Admission by party-opponent is Rule 801(d)(2). Do NOT confuse with 804(b)(3) Statements Against Interest. Unlike the declaration against interest, a statement by a party qualifies as an admission even if it was NOT against interest when made! But only the OTHER side can use the out-of-court statement.
What are the kinds of admissions by party-opponent?
"There are FIVE types.
What is an adoptive admission?
"Under Rule 801(d)(2)(B), Adoptive admissions – if another party makes a statement and the party has accepted the statement as true, both the statement and the party’s response (verbal, conduct, silence) is acceptable as an admission.
When is an agency admission admissible?
"Agency admissions are admissible if either (a) the agent was authorized to speak for the principal or (b) the agent was speaking about a matter within the scope of his employment.
When is an admission by a co-conspirator admissible?
"Under Rule 801(d)(2)(E), Admissions of a co-conspirator are admissible if (1) made by a co-conspirator of the party against whom it is being offered, (2) during the course of the conspiracy, and (3) in furtherance of the conspiracy. Judge makes a 104(a) determination on whether burden of production (preponderance standard) is met.
Rule 802. Hearsay Rule
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.
What are the exceptions to the hearsay rule?
Rules 803 (23 exceptions, availability immaterial), 804 (5 exceptions, declarant must be unavailalbe) and 807(catch-all) give exceptions.
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
Present sense impression?
"(1) Describing or explaining an event or condition,
Excited utterance?
"(1) Relating to a startling event,
What is the difference between present sense impression and excited utterance?
"1) Excited utterance has no time limitation (present sense must be simultaneous or “immediately” thereafter).
Statement of present condition?
"Exception for FOUR categories of statements: (1) present bodily condition, (2) present state of mind or emotion “in issue”, (3) present state of mind to prove subsequent conduct, and (4) state of mind of testator in will cases.
Statement of present bodily condition?
"4) Statements of present bodily condition – does NOT cover statements of past conditions, usually a spontaneous statement about pain (i.e. “My back hurts.”).
State of mind?
"(1) For state of mind that is element of claim/defense.
Statements for purpose of medical diagnosis/treatment?
"Statements made (1) for purpose of medical diagnosis or treatment, (2) describing medical history, past or present symptoms, or cause or general character of source of problem, (3) reasonably pertinent to diagnosis/treatment.
Refreshing memory?
"Rule 612. Applies both when a writing is shown to a witness in an effort to refresh recollection while the witness testifies and before the witness testifies.
Procedure to refresh memory?
"1) Establish foundation – show that they can not remember, they have no recollection, their mind has some barrier such that they can’t remember and need to be refreshed.
Recorded recollection?
"(1) Witness cannot testify from present memory,
What is the difference between present memory refresh and past recollection recorded?
"1) Present recollection refreshed refers simply to the procedure by which counsel uses some item (any item that jogs memory) in an effort to trigger a witness’s faulty memory. If the effort is successful, the witness testifies from his now-revived memory. Therefore, the refreshing object is not evidence and may not be introduced as such by the refreshing party. The object does not have to be shown to be accurate.
Business records?
"Foundation for Business Record has four elements, KRAP: (1) Kept in regular course of business, (2) Regular, routine practice of business to make the record, (3) entry made At or near time of occurrence, (4) by a Person with knowledge or business duty to report. Foundation can be made by testifying witness or even affidavit.
What about hospital records?
Rule 803(6) specifically allows opinions and diagnoses in hospital records to come in from a person “with knowledge.” But watch out for double hearsay!! Statement by patient in medical record must still meet admissibility requirements (usually 803(4)).
Can evidence be admitted that an entry doesn't exist?
Yes. Under Rule 803(7), Absence of Entry. If establish KRAP foundation, and show diligent search to find record, the absence of an entry can be noted in trial. If there is something that would normally show up in the hospital records, and someone does a diligent search, and it is absent, the fact that it is missing says something in and of itself.
Public records?
"Rule does not embrace every document created by public agencies.
Are there limitations on admissibility of a public record in a criminal case?
Yes. Limitations in Criminal Cases – (1) “Matters observed” by police officers are usually excluded because we want police to take the stand, (2) “Factual findings” in investigative reports are not admissible against the accused.
How is a business record different from a public record?
"Foundation for Public Record is different from business record – not KRAP, just KP (does not have to be recorded with regularity, does not have to be at time of occurrence). No need for a foundation witness - need only establish document is authentic and that it contains one of the 3 types of matters specified in Rule 803(8). In government it doesn’t have to be a routine record, it can be a one time record. It also does not have to be at or near time of occurrence. The person making the initial entry still has to have personal knowledge though. Records based on information received from a person who had no duty to the public office are admissible when they qualify as “factual findings” under C (in contrast to business records that must be based on info received from persons with a business duty)
Absence of public record?
"Rule 803(10). Evidence that data was NOT contained in a public record is admissible, provided that certification or testimony shows that a diligent search was made.
Can a learned treatise be admitted?
"You can use relevant portions from a learned treatise under Rule 803(18), during cross or direct examination for substantive evidence.
Rule 804. Hearsay Exceptions; Declarant Unavailable
"(a) Definition of unavailability.
When is an out-of-court assertion admissible if the declarant is unavailable?
"Rule 804 creates FIVE exceptions:
How can unavailability of a declarant be proved?
"Burden of showing unavailability is on the proponent.
Former testimony by unavailable declarant?
"(1) Witness unavailable,
Dying Declaration?
"(1) Declarant Unavailable (usually shown by death but declarant didn't have to die for statement to qualify)
Declaration Against Interest?
"(1) Declarant unavailable (declarant does not have to be a party)
Declaration Against Penal Interest?
"Statements against Penal Interest need not be an outright confession of guilt – but must subject declarant to criminal liability to extent that no reasonable person would make the statement if it were true. A statement may qualify though made to a friend, confederate, cellmate or family member.
How is a declaration against interest different from admission by party opponent?
Admission against party-opponent must be used against party-opponent, need not be against interest when made, and party doesn’t have to be unavailable. Declaration against interest can be made by party or witness, but must be against interest when it is made and witness must be unavailable.
Statement of personal or family history?
"To remove silly objections. (“what is your name?” would technically be hearsay otherwise.)
Forfeiture by wrongdoing?
"Rule 804(b)(6) is a prophylactic rule to deal w/ abhorrent behavior “which strikes at the heart of the system of justice itself” by arranging the unavailability of a witness. If you do something and acquiesce in someone else doing something so declarant can not testify at trial, TOUGH. If declarant is unavailable as a result of your actions, it can be used against you. (You cut your own throat). It is really a fairness issue. Rule has been applied to admit statements by the victim in a homicide prosecution where the motive for the homicide was to silence a potential witness to other crimes.
Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
Is multiple hearsay admissible?
"Even what is often called “double” or “multiple” hearsay (statement within statement) may be admissible if an exception properly applies to EACH “layer” of hearsay.
How should multiple hearsay be analyzed?
"Look for magic words – said, told, indicated, wrote.
Rule 807. Residual Exception
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) 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 (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
Rule 807?
"Rule 807 is the “catch all” exception, a last resort. Trial court’s have wide discretion in applying this exception.
Rule 806. Attacking and Supporting Credibility of Declarant
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
Can you impeach an out-of-court declarant?
"Yes. You have the same right to impeach an out-of-court declarant as an in-court witness. Though, obviously, this only applies to 803 hearsay, since 804 hearsay is where witness is unavailable and couldn’t be impeached.
When is evidence of personal knoweldge not necessary?
"Personal knowledge is NOT required for
Can hearsay be admitted through an expert?
"No. Experts can rely on hearsay, but they shouldn't just be a conduit for entering inadmissible hearsay. Some trial judges allow experts to quote freely from others in support of their opinion in reliance on FRE 703 (allowing fact upon which expert rely to be based on hearsay). But the rule only allows experts to rely upon otherwise inadmissible evidence to form opinions, it does not say that experts may freely repeat hearsay. Testifying experts are permitted on direct to show that they did a careful job preparing their opinions but testimony by experts relating content of conversations is frequently objectionable.
What about the right of confrontation in a criminal case where hearsay is admitted?
"Even if hearsay testimony meets requirements of a hearsay exception, defendant’s last resort is to argue admitting testimony would violate 6th Amendment’s confrontation clause.
Ohio v. Roberts?
In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court established a two-pronged test for determining whether the introduction of hearsay violated confrontation clause: (1) declarant unavailable, (2) “adequate indicia of reliability.”
Crawford v. Washington?
"Crawford v. Washington, 124 S.Ct. 1354 (2004) adopted a new test for “testimonial” hearsay offered against a criminal defendant – only admissible if (1) declarant testifies at trial or (2) is unavailable and defendant had a prior opportunity to cross-examine the declarant.
What was Scalia's basis for changing the hearsay/confrontation clause analysis?
In Ohio v. Roberts, court was just looking for reliability substantively. And the Roberts rule was too unreliable - judges ruled very differently on what they though constituted reliabilty. Scalia says the focus has been wrong, it has nothing to do with reliability substantively, it has to do with reliability procedurally. Scalia says the confrontation clause existed long before we were dealing with hearsay evidentiary issues, it arose in response to Sir Walter Raleigh’s case – because he was not permitted to bring his accuser into court, he was sentenced to death. The confrontation clause was thus meant to make sure the accuser can be brought into court and subjected to cross-examination (unless the accuser was previously subject to cross-examination). So Scalia said the person making the statement has to be subject to cross-examination in the courtroom, if they are not available, then the procedural rights have not been satisfied.
Dealing with Crawford on exam:
"Is it a criminal case? 6th amendment only applies in criminal case.
What is testimonial hearsay?
"Crawford decision did not specifically define “testimonial” but listed various kinds of hearsay utterances. Basically its prior testimony like preliminary hearing, hearing before grand jury, and police interrogations (not formal interrogations, but interrogations in colloquial sense).
What three questions should you ask every time you have a document, writing, or recording?
"1) Is it what the proponent says it is (authenticity)?
Rule 901. Requirement of Authentication or Identification
"(a) General provision.
What steps must you take to enter an exhibit into evidence?
"1) Ask court’s permission to have clerk mark the exhibit for identification
What are the three types of evidence?
"(1) real evidence, (2), tangible property, and (3) demonstrative aid (NOT evidence).
Who makes a determine whether a piece of evidence is authentic?
"The jury. Judge makes a 104(b) determination about authenticity – can a reasonable juror determine this is in fact authentic. Authenticity is just what the judge determines to see if it can come in. Authentic is something the jury decides.
How may a document be authenticated?
"Rule 901(b) lists examples of authentication techniques. This is not an exclusive list.
Authentication by testimony of witness with knowledge?
"Rule 901(b)(1), Testimony of Witness with Knowledge – 99% of the time this is how something is authenticated, by a straight 602 analysis of personal knowledge.
Authetnication by distinctive characteristics?
"Rule 901(b)(4), Distinctive Characteristics, contents taken in conjunction with circumstances – 2nd most popular because it’s a CATCH ALL
Authentication by nonexpert opinion on handwriting?
Rule 901(b)(2), Nonexpert Opinion on Handwriting – layperson should explain (1) personal familiarity with writing (not just acquire familiarity for litigation), (2) distinctiveness of handwriting
Authentication by comparison by trier or expert witness?
"Rule 901(b)(3), Comparison by Trier or Expert Witness –
Authentication by Voice Identification?
Rule 901(b)(5), Voice Identification – look for “minimal familiarity” acquired “at any time” including in anticipation of litigation, could be one time if voice is distinctive
Authentication by telephone call?
"Rule 901(b)(6), Telephone Calls –
Authentication by public document?
Rule 901(b)(7), Public records and reports – if not self-authenticated under 902, need to establish it was in fact recorded and came from that public office
Authetnication of ancient document?
"Rule 901(b)(8) Ancient documents – a document is admissible if
Authentication by process or system?
Rule 901(b)(9), Process or System (2nd catch-all) – like X-Ray, MRI, cell phone technology, security camera picture – someone has to explain process/system used and how it produces an accurate result.
What is the process for entering an exhibit?
"1) Ask court’s permission to have clerk mark the exhibit for identification
Rule 902. Self-authentication
"Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
Can a document be self-authenticating?
"Yes. Rule 902 lists several categories of documents which require no extrinsic evidence to authenticate (but may be inadmissible for other reasons!). If a document falls into one of the listed categories, the proponent is not required to present any authenticating evidence in order to introduce it. But opponent may still challenge the genuineness of the document. If opposing evidence is sufficient to support a finding that the document is not authentic, the question goes to the jury.
What documents are self-authenticating?
"902(1) Domestic public documents under seal of public official/agency.
Rule 903. Subscribing Witness' Testimony Unnecessary
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.
Does a witness who signed the document have to testify about their subscription?
Under 903, attesting witness is required only if the law governing the validity of the document so requires – like a will (in some states).
Rule 1001. Definitions (Writings…)
"For purposes of this article the following definitions are applicable:
What is the best evidence rule?
Contents of the writing are what’s relevant – it only applies if contents of document must be proved or if someone tries to prove a relevant issue in the case by use of contents in document. THEN the original document must be supplied, UNLESS one of the exceptions fits in, (i.e. it’s a public record).
What is an original?
"Original – original writing, recording or any counterpart that is INTENDED to be an original (like when 3 copies of contract are made and intended to be considered originals)
What is a duplicate?
"Duplicate – any mechanically created reproduction by a technique which “accurately reproduces the original” is a duplicate
Rule 1002. Requirement of Original
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 Act of Congress.
When is an original required?
"Rule 1002 is the best evidence rule – The rule applies when
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
When is a duplicate admissible?
"Rule 1003 provides an exception to Best Evidence Rule: Duplicate is admissible just like the original UNLESS (1) question is raised as to authenticity of original or (2) would be unfair to admit duplicate in lieu of original. Bottom Line: Duplicate as defined in 1001 (not handwriting) is the SAME THING as the original
Rule 1004. Admissibility of Other Evidence of Contents
"The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--
When is secondary evidence admissible to prove the contents of a document?
"Rul3 1004 provides another exception to Best Evidence Rule: When original unavailable, let substitute in. If any of the four conditions listed in rule1004 is established, the proponent is then free to prove the contents of a writing, recording, or photograph by any secondary evidence he chooses (no gradation of types of secondary evidence).
Rule 1005. Public Records
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
Must the original of a public record be admitted?
Rule 1005 provides that production of the original of a public record is never required because removing them from their usual place of keeping would be attended by serious inconvenience to the public and to the custodian. Instead of the original, proponent must offer a certified or “compared” copy. Copy need not be duplicate – a certified or compared copy may or may not be a duplicate as defined in Rule 1001(4); that is immaterial. Only if such a copy cannot be obtained by the exercise of reasonable diligence may other evidence of contents be offered.
Rule 1006. Summaries
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. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
Is a summary of evidence admissible?
"Can use summaries as evidence of the contents of documents too voluminous to be conveniently presented in their entirety. Summary itself can be admitted into evidence. Underlying materials need not be introduced or produced in court. Underlying materials must be:
Rule 1007. Testimony or Written Admission of Party
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original.
Can you prove the contents of a document by offering an out-of-court statement?
"Rule 1007 is an exception to Best Evidence Rule: Allows proof of the contents of a writing by the opposing party’s testimony, deposition or written admission, but NOT by an oral out-of-court admission. With oral admissions, we get into spin.
Rule 1008. Functions of Court and Jury
When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.
Who determines compliance with the best evidence rule?
Rule 1008 allocates authority between judge and jury to make fact determinations concerning Best Evidence Rule. Allocation is equivalent to 104 – majority of fact issues are for judge to resolve (like 104a) but three areas go to merits of the controversy and are therefore a jury determination (104b): (1) whether asserted writing ever existed, (2) whether another writing produced at trial is the original, or (3) whether other evidence of contents correctly reflects contents.
Klein's Four Principles
"1) It is the responsibility of the trial judge to make sure the proceedings are fair to all participants.
Rule 101. Scope
These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.
Application of Rule 101
Applies in all federal courts subject to exceptions in Rule 1101.
Rule 102. Purpose and Construction
"These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
Purpose of FRE (Klein's take on 102)
"Klein’s Federal Rule principles: