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15 Cards in this Set

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PRELIMINARY QUESTIONS

RULE 104(a): Questions of admissibility generally.
Preliminary questions concerning:

- the qualification of a person to be a witness,

- the existence of a privilege,

- or the admissibility of evidence

shall be determined BY THE COURT,

subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
This is the preliminary question of whether the judge or the jury should determine the admissibility of the evidence. This rule specifies that the judge makes the rule unless it's a question of fact, part (b), to be determined by the jury.
PRELIMINARY QUESTIONS

RULE 104(b): Relevancy conditioned on fact
When the relevancy of evidence depends upon the fulfillment of a condition of fact,

the court shall admit it upon, or subject to,

the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
CHK. I think this is where a jury decides.
PRELIMINARY QUESTIONS

RULE 104(c)-(e): Hearing of Jury, Testimony by Accused, Weight & Credibility
(c) Hearing of jury.

Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

(d) Testimony by accused.

The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(e) Weight and credibility.

This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
CHK if we covered this.
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.
If you introduce a single statement from a letter, the party against whom it is admitted can ask for the whole letter to be produced for the sake of context.
RELEVANCE

RULE 401: Definition of Relevance
"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.
Basically, it's relevant if it makes the fact in question more or less probable.
RELEVANCE

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.
Remember, "relevance" is the tendency to make a fact of consequence more or less probable.

If it's relevant, it's admissible...except when some other authority says it's not.

If it's not relevant, it's not admissible.
RELEVANCE

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

o the danger of unfair prejudice,

o confusion of the issues,

o or misleading the jury,

or by considerations of
x undue delay,
x waste of time,
x or needless presentation of cumulative evidence.
Even if it's relevant, the court won't let it in if the weight of what it reveals is less than the probability that it'll cause UNFAIR prejudice.

If it's relevant and it's probably going to CONFUSE people or MISLEAD the jury, the court will keep it out.

If you tick off the judge by using relevant evidence to delay the process, waste the court's time, or beat a point into the ground over and over, the judge can shut you up by not letting it in.
HEARSAY

RULE 801(a): Definition of "Statement"
The following definitions apply under this article:

(a) Statement.

A "statement" is

(1) an oral or written assertion or

(2) nonverbal conduct of a person,

if it is intended by the person as an assertion.
You can say it, you can write it...

...or you can nod/shake your head/draw with your hands, etc. AS LONG AS you intend those nonverbal acts to be ASSERTIONS.

Scratching your ear is nonverbal, but it doesn't count as a statement unless you intended to assert something by it. That's where all this gets finicky.
HEARSAY

RULE 801(b): Definition of "Declarant"
(b) Declarant.

A "declarant" is a person who makes a statement.
I do declare...what a deep, thought-provoking definition.
HEARSAY

RULE 801(c): Definition of "Hearsay"
(c) Hearsay.

"Hearsay" is

- a statement,

- other than one made by the declarant while testifying at the trial or hearing,

-offered in evidence to prove the truth of the matter asserted.
Here's the punch line. It's hearsay if it's an OUT-OF-COURT STATEMENT (see above) that you use to prove what that statement itself says.

"He told me the truck ran the light," offered to prove that the truck ran the light, is hearsay.

It's nice that he told you that, but we're trying to figure out whether it really DID run the light!

"And how do you know he stole the gold?"

"Paul said he stole the gold."

"Right, okay, he said that, but how can you actually PROVE it?"
HEARSAY

RULE 801(d)(1)(a): Statements Which Are Not Hearsay

*Prior Statement By Witness*

-inconsistent w/prior statement under oath-
A statement is not hearsay if--

(1) Prior statement by witness.

The declarant testifies at the trial or hearing

and is subject to cross-examination concerning the statement,

and the statement is

(A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or
It's NOT hearsay if:

the declarant is at the trial, testifies, and is subject to cross-examination...

...and the prior statement in question was made under oath...

...but is inconsistent with the current testimony.
RULE 801(d)(1)(b): Statements Which Are Not Hearsay

*Prior Statement By Witness*

-consistent with prior testimony and used to rebut recent fabrication or improper motive-
A statement is not hearsay if--

(1) Prior statement by witness.

The declarant testifies at the trial or hearing

and is subject to cross-examination concerning the statement,

and the statement is

(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or
It's NOT hearsay if...

the declarant is at trial, testifies, and is subject to cross-examination...

...and wants to show that what she said before is consistent with what she's saying now

and she's offering it to rebut the idea that she recently had reason to start lying or was recently influenced by something improper (bribery, threat, etc.).
RULE 801(d)(1)(c): Statements Which Are Not Hearsay

*Prior Statement By Witness*

-ID of a person after perception-
A statement is not hearsay if--

(1) Prior statement by witness.

The declarant testifies at the trial or hearing

and is subject to cross-examination concerning the statement,

and the statement is

(C) one of identification of a person made after perceiving the person; or RULE 801(d)(2)
It's NOT hearsay if...

the declarant is at the trial, testifies, and is subject to cross-examination...

...and the prior statement in question is one of the declarant identifying a person when she saw him/her.
RULE 801(d)(2)(A): Statements Which Are Not Hearsay

*Admission By Party Opponent*
(2)Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or
RULE 801(d)(2)(B): Statements Which Are Not Hearsay

*Admission By Party Opponent*
(2)Admission by party-opponent. The statement is offered against a party and is



(B) a statement of which the party has manifested an adoption or belief in its truth, or