145 terms


Authentication of Evidence; The Best Evidence Doctrine; Hearsay; Relevant/Character Evidence; Witnesses; Privileges; Evidentiary Substitutes; Judicial Notice
FRE 801(a-c)-Definition of Hearsay
An out of court statement offered for the truth of the matter asserted
FRE 801(a) Statement
a person's oral, or written assertion, or nonverbal conduct (if the person intended it as an assertion)
FRE 801(b) Declarant
the person who made the statement-no non-human declarants
FRE 801(c) Hearsay
an out of court statement made by a declarant for the truth of the matter asserted
Rationales for Hearsay Rules
1. Oath
2. Cross-examination (the engine of truth that makes the statements more reliable)
3. Demeanor-looking at the witness to see if they are lying
applies the Hearsay rationales to the person who made the statements to test 4 things
4 tests of hearsay risks-aka Testimonial Inferences
1. Misperception
2. Faulty Memory
3. Faulty Narration
4. Sincerity
Uses of the out of court statement, NOT offered for the truth of the matter asserted
Non-hearsay uses:
1. Impeachment
2. Verbal Act
3. Effect on the listener
4. Verbal Object
5. Circumstantial Evidence of state of mind
6. Circumstantial Evidence of memory or belief
Assertive Conduct
Non-verbal conduct that is intended to assert something to someone
Non-hearsay: 3.Effect on the Listener
Use of the statement to show what effect the declarant's statement had on a listener.
Non-hearsay: 2. Verbal Act
An operative legal fact, which can only be performed by only by uttering words. ex: defamation, oaths, fraud, or contracts.
FRE 802: The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides:
1. A federal statute;
2. these rules; or
3. other rules prescribed by SCOTUS
FRE 801(d) Statements That Are Not Hearsay-Hearsay Exclusions-Circumstantial Indicia of Reliability
A statement that meets the following conditions is not hearsay:
Conditions for 801(d)(1)(A-C) requirements
The declarant must be a witness at the current trial and is subject to cross about a prior statement
FRE 801(d)(1) A Declarant-Witness's Prior Statement
The declarant testifies and is subject to cross examination about a prior statement, and the statement:
FRE 801(d)(1)(A) Prior Inconsistent Statement
1. Declarant testifies at the trial and is the witness
2. Subject to cross regarding the statement
3. Testimony inconsistent with statement
4. Prior statement under oath
5. Statement made @ trial, hearing, deposition, or other proceeding
Definition of inconsistent (California split)
if a reasonable person could infer that the 2 statements are different in material respect (including silence,evasive answers or forgetfulness)-Lack of memory is inconsistent if and only if the lack of memory is feigned.
Definition of cross examinable
as long as you're in the stand, then you're deemed as cross examined
FRE 801(d)(1)(B) Prior Consistent Statement-STATEMENT MUST BE PRE-MOTIVE
1. Declarant testifies
2. Declarant subject to cross
3. Consistent with testimony
4. Offered to rebut express or implied charge of recent fabrication or improper motive
FRE 801(d)(1)(C) Prior Identification
1. Declarant testifies
2. Declarant subject to cross
3. Declarant makes ID after perception (seeing, hearing, or feeling if blind)
FRE 801(d)(2) An Opposing Party's Statement. THE ADMISSIONS SERIES
The statement is offered against an opposing party and:
FRE 801(d)(2)(A) Admissions by a Party Opponent
1. Statement by the party
2. Offered against that party
FRE 801(d)(2)(B) Adoptive (tacit) Admission
1. Statement about which party manifests an adoption or belief in truth
2. Offered against the party
FRE 801(d)(2)(C) Admissions by Speaking Agent
1. Statement by person authorized to speak on party's behalf
2. Offered against the party
*Can be construed as a verbal act if applicable.
FRE 801(d)(2)(D) Admission by Employees:
1. Statement made by party's agent/employee
2. Concerning matter within scope of agency or employment
3. Made during existence of agency/employment
4. Offered against the party
FRE 801(d)(2)(E) Co-Conspirator Exclusion
1. Existence of conspiracy
2. ∆ part of conspiracy
3. Declarant part of the conspiracy
4. Statement was made during the conspiracy
5. Statement made in furtherance of the conspiracy
6. Offered against the party:
a. Can be verbal acts if the statement is a crime
b. Doesn't have to be alleged in the complaint
c. Applied to civil trials
FRE 803. Exceptions to the Rule Against Hearsay-Regardless of Whether the Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
FRE 803(1) Present Sense Impression-Oral
1. Statement describing or explaining event or condition
2. Made while or immediately after declarant perceived it. (relates to all senses)
FRE 803(2) Excited Utterance-Oral
1. Statement relating to startling event or condition;
2. Made while declarant under stress of excitement of event or condition
FRE 803(3) Then-Existing Mental, Emotional or Physical Condition-Oral
1. Then-Existing Physical Condition;
2. Then-Existing mental or emotional condition;
3. Subsequent conduct (Hillmon);
4. Can't be about a memory or belief, unless it relates to the validity of facts about a will
FRE 803(4) Medical Treatment/Diagnosis Exception-Oral
1. Made for purpose of medical treatment/diagnosis; AND
2. Reasonably pertinent to diagnosis/treatment
FRE 803(5) Past Recollection Recorded
1. Memorandum or record;
2. Concerning matter about which witness once had knowledge;
3. Now knowledge insufficient to testify fully & accurately;
4. Statement made or adopted by witness;
5. While fresh in witness's memory; AND
6. Accurately reflects witness's once fresh knowledge
FRE 803(6) Business Records
A. Made at or near time by, or from information transmitted by, a person with knowledge (by someone with knowledge, or recorded in a document by another person from someone with knowledge);
B. Record kept in the ordinary course of business
C. Made in regular course of business (can come from multiple parties in the course of business, but they all MUST be related to the course of business);
D. As testified to or by custodian or otherwise qualified person (or by certification that complies with 902(11) or (12); and
E. Must be trustworthy (Opponent's burden-except in CA, burden stays with proponent to prove trustworthiness)
*Record of business can be in any form (including legal, illegal and non-profit, but NO personal records)
FRE 803(8) Public Records-Can't use Exclusionary Rules to circumvent
A record or statement of a public office if:
FRE 803(8)(A)
It sets;
(i) the office's activities;
(ii) Matter observed and reported pursuant to duty, excluding reports by "law enforcement personnel" in criminal cases
(iii) Factual findings from investigations pursuant to legal authority (can't be used against a defendant in a criminal case); AND
FRE 803(8)(B)
Must be trustworthy
FRE 803(9) Public Records of Vital Statistics
A record of birth, death, or marriage, if reported to a public office in accordance with a legal duty.
FRE 803(18) Learned Treatise, Periodicals, or Pamphlets
A statement contained in a treatise, periodical or pamphlet if:
FRE 803(18)(A)
The statement is called to the attention of an expert witness on cross or relied on by the expert on direct; AND
FRE 803(18)(B)
The publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.
FRE 803(23) Judgments Involving Personal, Family or General History or Boundary
A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if matter:
FRE 803(23)(A)
was essential to the judgment
FRE 803(23)(B)
could be proved by evidence of reputation
FRE 804. Exceptions to the Rule Against Hearsay-When the Declarant is Unavailable as a Witness
(a) Criteria for being Unavailable:
1. Privilege
2. Refusal to testify
3. Lack of memory
4. Dead or infirm
5. Unavoidable absence-Absence can't be procured by the proponent
FRE 804(b) The Exceptions.
The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
FRE 804(b)(1) Former Testimony
Testimony that:
A. Was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; AND
B. is offered against a party (or in a civil case-whose predecessor in interest) had an opportunity to cross
FRE 804(b)(2) Dying Declaration
1. Declarant unavailable
2. In homicide or civil action
3. Declarant makes statement while believing death imminent
4. Statement concerns cause or circumstances surrounding death
FRE 804(b)(3) Declarations Against Interest
1. Declarant unavailable
2. Statement, at time of making, was so far contrary to declarant's pecuniary, proprietary, or penal interest, or so tended to harm civil claim
3. Reasonable person would not make unless true
4. Supported by corroboration clearly indicating trustworthiness in criminal cases
FRE 804(b)(4) Personal and Family History
A. Declarant's own: birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal family history.
B. Corroboration needed under (B) b/c it's about someone else's blood, but not under (A)
FRE 804(b)(6) Forfeiture
1. Statement offered against a party;
2. That caused or acquiesced in causing the declarant's unavailability as a witness; &
3. Did so intending that result
FRE 807. Residual Exception/Catchall
1. Circumstantial guarantees of trustworthiness equivalent to other exceptions
2. Offered as evidence of a material fact
3. More probative on the point for which offered than other evidence reasonably available
4. Interests of justice served
Confrontation Clause
In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witness against him.
Crawford v. Washington
The purpose of the Confrontation Clause was intended to restrict a prosecutor's ability to offer "testimonial" hearsay statements as evidence.
Testimonial statements
solemn declaration for the purpose of proving a fact.
3 Formulations or Definitions of Testimonial
1. Ex Parte in-court testimony or its functional equivalent
2. Extrajudicial statements-contained in formalized testimonial materials
3. Statements made that would reasonably be believed to used later in trial
3 ways to admit a CC Statement
1. Call Declarant as a witness
2. Demonstrate that the declarant is unavailable, and that the defendant had a prior opportunity to cross the declarant
3. Demonstrate that the defendant cause the declarant to be unavailable.
Rules that automatically satisfy CC
801(d)(1)(A-C); 801(d)(2)(A-B)
General Provisions: The 100s
FRE 101-Scope and Definition
Applies to proceedings in the US-specific courts and proceedings to which the rules apply and exceptions set out in 1101.
FRE 1101-Applicability of the rules
1. To Courts and Judges
2. Cases and proceedings
3. Rules on privileges
4. Exceptions
FRE 1101(d)-Exceptions
1. Court's determination under 104(a)
2. Grand jury proceedings; and
3. Miscellaneous proceedings
FRE 102-Purpose-To ascertain the truth and securing a just determination
1. to administer every proceeding fairly,
2. eliminate unjustifiable expense and delay, and
3. promote the development of evidence law
FRE 103(d) Preventing the witness from hearing inadmissible evidence
Where practicable the court must conduct a jury trial so inadmissible evidence is not suggested to the jury by any means.
FRE 103(a) Preserving a claim of error done by objection
a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
FRE 103(a)(1)
if the ruling admits evidence, a party, on the record:
(A) Timely objects or moves to strike; AND
(B) states the specific ground, unless it was apparent from the context; OR
FRE 103(a)(2)
If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, UNLESS the substance was apparent from the context.
Categories of Error
1. Ordinary→Waived unless:
i. You object
ii. Make an offer of proof→preserving the record so the court of appeal would know what would have happened
2. Plain→Everybody knows that it was a screw up...don't have to have objected
3. Constitutional (like a plain error, both can be harmless)
4. Reversible→affect the outcome
5. Harmless→because the error admitted was:
i. Cumulative
ii. Overwhelming weight
iii. Curative instruction
FRE 104(a). Preliminary Questions-In General
The COURT must decide any preliminary question whether a witness is:
i. Qualified
ii. A privilege exists
iii. Admissibility of Evidence
iv. The court is NOT bound by evidence rules except those that are privileged.
FRE 104(b) Relevance That Depends on a Fact
When relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later
The 900s-Tangible Objects; Writings using and Telephone Conversations
FRE 901(a)-In General
Must lay a foundation that gives the judge reason to believe that the evidence is what you say it is:
Judge's discretion provided by FRE 104(a)→judge determines the relevance of the proposed item based on whether the evidence is what you say it is
FRE 901(b) Examples of Evidence that Satisfy 901(a)
(1) Testimony of witness with knowledge
(2) Non-expert opinion about handwriting→doesn't establish the writing is definitely the handwriting, allows the jury to hear it
(3) Comparison by an expert witness of the trier of fact→comparing items to an authenticated specimen
(4) Distinctive Characteristics and the like→reason to believe the item is what you say it is based on those characteristics
(5) Opinion about a voice→can occur during the litigation
(6) Evidence about a telephone conversation→only relates to calls to a particular person, or a related business concerning business related to that particular business
(7) Evidence about public records
(8) Ancient documents or data compilations
(9) Process or system
(10) Methods provided by statute or rule
FRE 903. Subscribing Witness's Testimony
Necessary to authenticate a writing only if required by the law of the jx.
FRE 902→Evidence that doesn't require extrinsic evidence (don't need a witness to explain) of authenticity
1. Public documents with a seal and are signed
2. No seal, but signature, and certification
3. Foreign Public Docs
4. Copy of a public (official) record→need certification
5. Official Publication→Gov't Documents
6. Newspaper and Periodicals→Rationale-if printed regularly, easy to dispute a fake
7. Trade inscriptions and the like
8. Acknowledged Documents→Notarized documents
9. Commercial Paper and related documents
10. Presumption under federal statute→ This is a catch all-can be changed by law
11. 2 ways to authenticate public records w/notice and the custodian certifies that the record is authenticate:

i. 902(11) Certified domestic records of a regularly conducted activity
ii. 902(12) Certified foreign records of a regularly conducted activity.
The 1000s-The Best Evidence Doctrine
FRE 1002→ General Rule of Best Evidence
Requirement of the Original-An original writing, recording or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise
FRE 1001→Terms Defined
(a) "Writing"-letters, words, numbers, or there equivalent
(b) "Recording" consists of letters, words, numbers, or their equivalent recorded in any manner
(c) "Photograph"-a photographic image or its equivalent stored in any form
(d) "Original" of a writing or recording-the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued.
a. For electronically stored info, original-any printout or other output readable by sight if it accurately reflects the info.
b. Original photo-includes the negative or a print from it
(e) "Duplicate"-a counter part produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original
FRE 1003→Admissibility of Duplicates
Admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate. Anything that recreates the original
FRE 1004→Admissibility of other evidence of content
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) Lost or destroyed and not acting in bad faith
(b) Just can't get the original; outside the jx of the court
(c) The other party won't give it to you, if you put them on notice that you need it; OR
(d) Collateral to the dispute
FRE 1005→Copies of Public Records to Prove Content
Proponent can use a copy to prove the content of an official record, or of a document that was recorded or filed in a public office (authorized by law) and if these requirements are met then:
1. The copy is certified as correct under 902(4); OR
2. Is testified to by a witness to be correct who has compared it with the original.
3. If no such copy is available then proponent can use other evidence to prove the content.
FRE 1006→Summaries to Prove Content
Proponent may use a:
1. Summary, chart, or calculation to prove the content of voluminous writings, recordings or photographs that can not be conveniently examined in court.
2. Originals must be made available for examination by other parties at a reasonable time or place.
3. The court may order the proponent to produce the originals in court.
FRE 1007→Testimony or Admission of a Party to Prove Content
The proponent may prove the content of a writing, recording, or photograph by:
1. The testimony deposition, or written statement of the party against whom the evidence is offered.
2. The proponent need not account for the original.
FRE 1008→Functions of the court and jury
Ordinarily the court determines whether the proponent has fulfilled the factual conditions for admitting evidence under 1004-05. But in a jury trial, the jury determines under 104(b) any issue regarding:
(a) whether an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; OR
(c) other evidence of content accurately reflects the content.
The 400s-Relevance
FRE 401. Test for Relevant Evidence
Evidence is relevant if:
(a) It has any tendency to make a fact more or less probable than it would be w/o the evidence; AND
(b) The fact is of consequence in determining the action.
FRE 402. Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
a. The Constitution;
b. A federal statute;
c. These rules; OR
d. Other rules prescribed by SCOTUS
FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
a. Unfair prejudice;
b. Confusing the issues;
c. Misleading the jury;
d. Undue delay;
e. Wasting time; OR
f. Needlessly presenting cumulative evidence
1. If the probative value is greater than, equal to, or slightly outweighed by→ADMITTED (Judge makes this determination under 401→the greater the "any tendency" then the greater the probative value)
FRE 407-Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
a. Negligence;
b. Culpable conduct;
c. A defect in a product or its design; OR
d. A need for a warning or instruction.
FRE 408-Settlement Negotiations
Compromise Offers and Negotiations
a. Can't use settlement for impeachment
b. If you plead guilty most jx demand allocution and that would be admissible in a civil case
c. Can't negotiate yourself out of criminal cases (financially)-These statements are not excluded.
d. Doesn't preclude testimony
FRE 409-Proof of payment of medical expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
a. Want to encourage others to help.
b. Does not include statements in conjunction with the desire to help, "I ran the red light, I'll pay for your medical bills.)
FRE 410-Plea Bargaining-One way preclusion
a. Prohibited Uses-In civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
1. A guilty plea that was later withdrawn;
2. A nolo contender plea;
3. A statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; OR
4. A statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
FRE 410-Plea Bargaining (exceptions)
b. Exceptions-The court may admit a statement described in FRE 410(a)(3) or (4):
1. In any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; OR
2. In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
3. Mezzanatto waiver is a waiver that the prosecutor negotiates during a plea-bargain phase that allows the prosecutor to use statements during the plea bargain to impeach contradictory testimony in the event the plea bargain isn't reached. Must be waived in advance, otherwise the impeachment isn't allowed.
FRE 411-Proof of Insurance Coverage
Evidence whether a person was or was not insured against liability is not admissible to prove a person acted negligently or otherwise wrongfully. But it can be admitted to prove a witness's bias or prejudice, or proving agency, ownership, or control.
FRE 404(a)(1) Prohibited Uses of Propensity Evidence
Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
FRE 404(a)(2)(A) Exceptions to Prohibitions against Propensity Evidence
∆ can offer evidence of the ∆'s pertinent trait (a trait related to the crime the ∆ is being charged with), and if the evidence is admitted, the prosecutor may offer evidence to rebut.
FRE 404(a)(2)(B) Exceptions to Prohibitions against Propensity Evidence
∆ may offer evidence of an alleged victim's pertinent trait and if admitted, the pros may i. Offer rebuttal evidence; AND
ii. Offer evidence of the ∆'s same trait
FRE 405(a) Methods of Proving Character-By reputation or opinion
May be proved by testimony about the person's reputation or by testimony in the form of an opinion. Testimony of a specific instance is admissible to rebut testimony of character that was previously testified to.
FRE 404(a)(2)(C)-Exceptions to Prohibitions against Propensity Evidence-Homicide cases
Prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the 1st aggressor
FRE 404(b) -(Specific Instances)-Character Evidence for Non-propensity purposes
Crimes, Wrongs, or Other Acts
FRE 404(b)(1) Crimes, Wrongs, or Other Acts-Prohibited Uses
Evidence of crime, wrong, or other acts not admissible to prove a person's character to show on a particular occasion a person acted in accordance with the character.
FRE 404(b)(2) Crimes, Wrongs, or Other Acts (Specific Instances)-Permitted uses; Notice in a criminal case
This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) Provide reasonable notice of the general nature of any such evidence that the pros intends to offer at trial; AND
(B) Before trial, or during trial if the court, for good cause, excuses lack of pre-trial notice
4 ways we determine if it is 404(b) offered for proper purposes
(1) Is it offered for proper purposes?
(2) Is it the evidence relevant to that purpose? Does it tend to prove that proper purpose?
(3) 403→Is it substantially outweighed by improper purpose?
(4) Limiting Instruction (CEC §1101-Don't have to tell the ∆ in advance-differs also in rape shield)
FRE 412(a). Sex-Offense Cases-The Victim's Sexual Behavior or Predisposition-Prohibited Uses
The following is not admissible in civil or criminal proceeding involving alleged rape/sexual assault→Prior Sex Acts
FRE 412(b)(1). Sex-Offense Cases-The Victim's Sexual Behavior or Predisposition-Exceptions-Criminal Cases
i. (A) Evidence of S.I.C. of a victim's sexual behavior if offered to prove someone else other than the ∆ was the source of the semen, injury, or other physical evidence
ii. (B) Evidence of S.I.C. of victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the ∆ to prove consent or if offered by the pros; AND
iii. (C) Evidence whose exclusion would violate the ∆'s const. rights.
FRE 412(b)(2). Sex-Offense Cases-The Victim's Sexual Behavior or Predisposition-Exceptions-Civil Cases
Prob. value must substantially outweigh any danger of harm to the vic, and unfair prej to any party. Reputation ev may come in only if the vic has placed it in controversy
FRE 412(c)(1) Procedure to Determine Admissibility-Motion
If a party offers evid. under 412(b) the party must:
(A) File a motion that specifically describes the evid and states purpose for which it was offered.
(B) 14 days before trial unless court allows different time for good cause
(C) serve all parties
(D) notify victim or victim's guardian/rep.
FRE 413. Similar Crimes in Sexual-Assault Cases. (Against the ∆)
a. Permitted uses-in crim cases where ∆ is accused of sex. ass. the court may admit evid that the ∆ committed any other sex. ass.
b. Disclosure to the ∆. If pros intends to offer the evid, must disclose to the ∆ at least 15 days prior, or at a different time if the court allows.
d. Definition of "Sexual Assault." Crime under federal or state law
FRE 414. Similar Crimes in Child Molestation Cases
Same as 413
FRE 415. Similar acts in civil cases involving sexual assault or child molestation
Same as 413
FRE 406. Habit; Routine Practice
Evidence of a person's habit or an organization's routine practice may be admitted to prove on a particular occasion the person or organization acted in accordance with the habit or routine practice. The evidence does not require corroboration or eyewitness
Definition of Habit
A regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances
1. Sufficiently predictable to be admissible
2. Includes routine practices of an organization
FRE 601. Competency to testify in general
Every person is competent to be a witness unless:
a. These rules provide otherwise
b. In civil case→state law governs the competency regarding a claim or defense.
FRE 602. Need for personal knowledge
Just have to testify that one has personal knowledge of what is being testified to
FRE 603. Necessity for Witness to Testify Under Oath
Oath or affirmation to testify truthfully. Before testifying, a witness must give an oath or affirmation to testify truthfully. Must be in a form designed to impress that duty on the witness's conscience
FRE 606(a). Juror's Competency as a Witness-At trial
Juror's can't testify at trial in front of other jurors at the trial. If a juror is called to testify the court must give an adverse party an opportunity to object outside the jury's presence
FRE 606(b)(1). Juror's testifying as a Witness-after trial
Can't ask a juror to testify after the fact about the validity of a verdict
FRE 606(b)(2) Exceptions to Juror's testifying as a Witness
A juror can testify whether:
(A) Extraneous prejudicial information was improperly brought to the jury's attention
(B) An outside improper influence was brought to bear on any juror; OR
(C) A mistake was made in entering the verdict on the verdict form
FRE 605. Judge's as witnesses
The presiding judge may not testify as a witness at the trial, but can AFTER the trial. Party doesn't need to object to preserve the issue.
a. FRE 614(a) The judge can call his own witness and anyone can examine the witness
FRE 611(c)-Leading Questions
Allowable for:
a. Background on direct;
b. Expert witnesses
c. On cross examination; OR
d. Hostile witness
1. If the witness doesn't remember:
i. FRE 612 Writing Used to refreshed a witness's memory
FRE 612 Writing Used to refreshed a witness's memory
(a) Scope
(b) Adverse Party's Option's Deleting Unrelated Matter
(c) Failure to produce or deliver the writing
FRE 607. Who may impeach a witness
Any party, including the calling party, may attack the witness's credibility
FRE 608(a). A Witness's Character for Truthfulness or Untruthfulness-Reputation or Opinion
A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness, or untruthfulness or by testimony in the form of an opinion about that character. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked (only on re-direct)
FRE 608(b). A Witness's Character for Truthfulness or Untruthfulness-Specific Instances of Conduct
Except for criminal conviction under 609, extrinsic evidence is not admissible to prove SIC. On Cross, the court may allow inquiry of truthfulness or untruthfulness of:
1. The witness; OR
2. Another witness whose character the witness being crossed has testified about
i. By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony relates only to the witness's character for truthfulness
FRE 609(a). Impeachment by evidence of a criminal conviction-In General.
The following rules apply to attacking a witness's character truthfulness by evidence of a criminal conviction:
1. For a crime that, was punishable by death or by imprisonment for more than one year (Felony), the evidence:
(A) Bias is for admission in criminal or civil case (subject to 403)-The witness is not the ∆.
(B) Bias is against admission in a criminal case where the witness is the ∆, (subject to 403); AND
2. No distinction of the kind of witness or the type of crime committed and the evidence if it is a crime of dishonesty, comes in.
FRE 609(b). Impeachment by evidence of a criminal conviction. Limits on Using the evidence after 10 years
Applies if more than 10 years have passed since the witness's conviction OR release from confinement for it, whichever is later. Evidence is admissible ONLY IF:
(1) Probative value supported by specific facts and circumstances, SUBSTANTIALLY outweighs its prejudicial effect; AND
(2) Proponent gives written notice of the intent to use it so the opposition has an opportunity to contest it.
Gordon Factors: Factors in weighing probative value v. prejudice
i. Nature of the conviction
ii. Recency or remoteness
iii. Similarity to charged offense (the more similar the more prejudicial and the less likely it is to come in)
iv. Record otherwise clean (if the witness has a ton of other convictions, this one is likely to come in, especially if the crimes occurred while the convictions happened close to the trial)
v. Importance of credibility in the case
vi. Importance of the ∆'s testimony
FRE 609(c) Evidence of conviction is not admissible if
1. The person has been rehabbed AND the person has not been convicted of a later felony or crime punishable by death.
2. The person was found innocent.
FRE 609(d) Juvenile adjudications
Crimes adjudicated as a juvenile come in. (607, 608, and 609 are subsections of 404(a)(3)
FRE 609(e) Pendency of an Appeal
A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible
FRE 613. Witness's Prior Statement
Specific Impeachment: Prior Inconsistent Statements
FRE 613 (a)- Showing or disclosing the statement during examination
when examining a witness about the prior statement, don't need to show the contents to the witness, but must show it to an adverse party's atty.
FRE Rule 610-Forbidden Attacks-Religious Beliefs or Opinions
Evidence of a witness's religious belief or opinion is not admissible to attack or support the witness's credibility.
FRE 613(b) Extrinsic Evidence of a prior Inconsistent Statement
Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. The subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2)
FRE 701. Lay Opinion.
If the witness is not testifying as an expert testimony in the form of an opinion is limited to that which is:
1. (a) Rationally based on perception of witness; AND
2. (b) Helpful to clear understanding of witness's testimony or determination of fact at issue
a. FIRST use FRE 602→
FRE 704(a). Opinion on an Ultimate Issue:
In General-Not automatically objectionable. An opinion is NOT objectionable b/c it embraces an ultimate issue
FRE 704(b). Opinion on an Ultimate Issue
Exception. Expert witness CANNOT testify as to whether the ∆ did or did not have a mental state or condition that constitutes an element of the crime. For the trier of fact.
FRE 702. Testimony by Expert Witness
An expert witness (with necessary knowledge, skill, experience, training or education) may testify in the form of an opinion or otherwise if:
(a) helps the trier of fact understand the evidence or fact at issue;
(b) based on sufficient facts or data;
(c) product of reliable principles and methods; AND
(d) the expert has reliably applied the principles and methods to the facts of the case.
FRE 703. Bases of an expert's opinion testimony
1. Personally Observed (examining the actual facts→ex. Brake testing in a case where brake failure is at issue)
2. Learned at the trial (Allowed to be in court by The Rule: 615)
3. Outside data-information learned from other sources before trial
FRE 705. Disclosing the facts or data underlying an expert's opinion
Unless otherwise stated, an expert may state an opinion-and give the reasons for it-without 1st testifying to the underlying facts of data. But the expert may be required to disclose those facts on cross-examination
FRE 706. Court-Appointed Expert Witness
(a) Appointment Process-On a party's motion or on its own the court may appoint any expert that the parties agree on and of its own choosing. But only an expert who consents.
FRE 501-Privilege in General
Common law governs in federal court, state law governs in civil cases
FRE 503-Lawyer-Client
Definitions. As used in this rule:
a. Client-person, public officer or corp-public or private that receives prof legal serivces
b. Lawyer-a person authorized or reasonably believed to be authorized to practice law
c. A rep of the lawyer-one who assists the lawyer in rendering prof services
d. Confidential-not intended to be disclosed to a 3rd person in the furtherance of legal services
FRE 503(d) Exceptions to Privilege
There is no privilege under this rule:
FRE 503(d)(1) Furtherance of crime or fraud
Privilege doesn't extend to a crime or fraud that will happen in the future (I'm thinking about robbing a bank) At the time the statements are made, the statements are not privileged. Statements made about crimes in the past ARE privileged. Doesn't matter when the communication is sought.