Federal Rules Of Evidence

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Article I

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General

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Article II

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Judicial Notice

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Article III

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Presumptions

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Article IV

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Relevancy

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Article V

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Privileges

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Article VI

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Witnesses

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Article VII

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Opinions & Expert Testimony

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Article VIII

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Hearsay

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Article IX

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Authentication & Identification

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Article X

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Writings & Recordings

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Article XI

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Miscellansous

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Rule 101

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Scope

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Rule 102

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Purpose and construction

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Rule 103

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Rulings on Evidence
a) Error may not be predicated upon a ruling unless a substantial right of the party is affected and (1) the party timely objects, or (2) the substance of the evidence was made known to the court.

b) The court may enter the character of the evidence into the record.

c) Inadmissible evidence shall be discussed outside the hearing of the jury.

d) Does not preclude a finding of plain error affecting a substantial right.

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Rule 104

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Preliminary Questions

a) Shall be determined by the court, and is not bound by the rules of evidence, except privileges.

b) Conditional. Evidence may be admitted subject to the fulfillment of a condition.

c) Hearing of the jury.

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

e) Does not limit the right of a party to introduce evidence relevant to weight or credibility.

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Rule 105

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Evidence admissible for a limited purpose for one party, but not for the other purpose, may be admitted and limited in scope by jury instruction.

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Rule 106

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Remainder of or Related Writings or Recorded Statements

- An adverse party may require the introduction of the remainder of a writing or recorded statement which ought in fairness to be considered contemporaneously with it.

- For example, the admitted portion was taken out of context

- Even if the writing is hearsay.

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Rule 201

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Judicial Notice

a) Only adjudicative facts
b) Kinds of facts: fact not subject to reasonable dispute, 1) generally known within jurisdiction, or 2) capable of accurate and ready determination by sources whose accuracy cannot reasonably be questioned.
c) Court may take judicial notice, whether requested or not.
d) Court shall take judicial notice if requested by a party and supplied with the necessary information.
e) Opportunity to be heard: Party is entitled to be heard on the propriety of taking judicial notice.
f) Judicial notice may be taken at any stage of the proceeding.
g) Civil Jury MUST assume fact conclusive. Criminal jury MAY accept fact as conclusive.

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Rule 301

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Presumptions in General in Civil Actions and Proceedings

A presumption imposes the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof

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Rule 302

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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 accourdance with State law.

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Rule 401

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Definition of Relevant Evidence

- Evidence having any tendency to make a fact of consequence more probable or less probable than it would be without the evidence.

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Rule 402

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Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

- Unless precluded by law, all relevant evidence is admissible.

- Evidence which is not relevant is not admissible.

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Rule 403

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Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time

Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion or misleading or be considered an undue delay, waste of time or needless presentation of cumulative evidence.

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Rule 404

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Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
a) Generally - not admissible for the purpose of proving conforming action, except for reputation and opinion for:
1. Character of accused (criminal) - evidence of a pertinent trait may be introduced by defendant and rebutted by prosecution.
2. Character of alleged victim (criminal) - evidence of a pertinent trait may be introduced by defendant and rebutted by prosecution. Evidence of peacefulness of homicide victim to rebut accusation that victim was first aggressor, subject to limitations of Rule 412 (rape shield law).
3. Character of witness - as provided in R 607-609.
b) Other crimes, wrongs or acts - not admissible to prove character in order to show action in conformity therewith, except as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request prosecution gives notice.

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Rule 405

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Methods of Proving Character
a) Reputation or opinion ( criminal)
i. If character evidence is admissible, testimony may be accepted as to reputation or opinion. On cross, inquiry may be made into specific instances of conduct.
b) Specific instances of conduct (civil)
i. If character is an essential element of a charge, claim, defense proof may be made of specific instances of conduct.

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Rule 406

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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.
- Habit must be almost reflexive
- Routine office procedure: "this is what we always do"

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Rule 407

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Subsequent remedial measures

Not admissible to prove negligence, culpable conduct, product defect, or need for a warning or instruction. Does not prevent introduction of subsequent remedial measures to prove ownership, control, feasibility of precautionary measures (if controverted), or impeachment.

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Rule 408

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Compromise and Offers to Compromise
a) Prohibited uses - may not be offered to prove liability, invalidity, amount of a claim, impeachment through a prior inconsistent statement or contradiction:
1) Offering consideration in compromising or attempting to compromise the claim
2) Conduct or statements in compromise negotiations, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative or enforcement authority.
b) Permitted uses - Does not exclude evidence offered for purposes not prohibited by (a). Such as, proving a witness's bias or prejudice; negating a contention of undue delay, proving an effort to obstruct a criminal investigation or prosecution.

Explained: 408 is used under 403 balancing. 408 cannot be used to shield some statements. Civil settlement may be used in criminal prosecution.

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Rule 409

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Payment of Medical and Similar Expenses
Evidence of payment or offering to pay for medical expenses is not admissible to prove liability.

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Rule 410

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Inadmissibility of Pleas, Plea Discussion and Related Statements
Except as otherwise provided in this rule, the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
1) A plea of guilty which was later withdrawn
2) A plea of nolo contendere (no contest)
3) Any statement made in the course of any proceedings under Rule 11 of the Fed. R. Civ. P.
4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn
However, such a statement is admissible:
i) When another statement made in the course of the same plea or plea discussions has been introduced and the statement out in fairness be considered contemporaneously with it, or
ii) In a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
Can be waived.

A plea of no contest cannot be used in a subsequent civil matter.

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Rule 411

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Liability Insurance

- Evidence that a person was or was not insured against liability is not admissible upon the issue of negligence, but is not excluded for other purposes.
- Backdoor: During voir dire, ask jurors if they have ever worked for an insurance company.

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Rule 412

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Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition
a) Generally inadmissible in any civil or criminal proceeding
1) Evidence of other sexual behavior
2) Evidence of victim's sexual predisposition
b) Exceptions
1) In a criminal case the following is admissible:
A) Evidence of specific instances of sexual behavior offered to prove that one other than the accused was the source of semen, injury or other physical evidence.
B) Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct to prove consent
C) Evidence the exclusion of which would violate the constitutional rights of the defendant.
2) In a civil case evidence offered to prove the sexual behavior or sexual predisposition is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of victim's reputation is admissible only if it has been placed in controversy by the alleged victim

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Rule 413

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Evidence of Similar Crimes in Sexual Assault Case
a) In a criminal case in which defendant is accused of sexual assault, evidence of another offense or offenses is admissible and may be considered for any relevant matter.
b) Government shall provide notice 15 days prior.

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Rule 414

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Evidence of Similar Crimes in Child Molestation Cases
a) In a criminal case in which defendant is accused of child molestation, evidence of another offense or offenses is admissible and may be considered for any relevant matter.
b) Government shall provide notice 15 days prior.

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Rule 415

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Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
a) Evidence of another offense or offenses is admissible and may be considered for any relevant matter.
b) Must give 15 days notice

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Rule 501

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Privileges

- Privilege shall be governed by common law
- FRE: Civil action privilege shall be determined by state law.
Unless involving federal question, then federal common law.
- State cases are governed by state law.

Federal Privileges:
1) Attorney-client
2) Marital
3) Psychotherapist-Patient

Federal Marital Privilege: Privilege of testifying spouse, terminates upon divorce, annulment or death. May be waived by testifying spouse.