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FEDERAL RULES OF EVIDENCE
ARTICLE I. GENERAL PROVISIONS
RULE 103. RULINGS ON EVIDENCE
Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
RULE 104. PRELIMINARY QUESTIONS
Questions of admissibility generally. Preliminary questions concerning
shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.
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.
Although the Jury must ultimately determine if the condition is satisfied, it is the Judge who must determine whether the proof is enough for the jury to be able to make the determine.
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.
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.
Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
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.
If the risk is too great that the jury would use the evidence to prove the fact for which it is not admissible, then the Judge may exclude the evidence under rule 403 or some other limiting rule such as Due Process.
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.
The rest of the letter could be introduced:
RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
Scope of rule. This rule governs only judicial notice of adjudicative facts.
Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
When discretionary. A court may take judicial notice, whether requested or not.
When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
“Adjudicative facts” are facts that are specific to a particular litigation, such as whether a certain street is in a business or residential district.
“Legislative facts” refer to more general facts about society and human nature that are not available for judicial notice such as whether business districts usually have more pedestrian traffic than residential districts.
“Communicative facts” refer to the ordinary meaning of language and words essential to the understanding of testimony at trials.
“Evaluative facts” refer to facts that involve ordinary knowledge of the world such as Lori loves Frank.
RULE 301. PRESUMPTIONS IN GENERAL IN 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 non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.
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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.
Direct Evidence – if believed by the jury proves the fact
Circumstantial Evidence – if believed by the jury provides an inference of the facts.
Evidentiary Hypothesis – Common sense suggests [xxx] therefore, testimony that [yyy] would tend to support the fact that [zzz].
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.
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
If Probative value of the evidence is substantially outweighed by one of the dangers, then it will be excluded.
Prejudicial effect >> Probative Value -- DO NOT ADMIT
RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as
provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
RULE 405. METHODS OF PROVING CHARACTER
On cross-examination, inquiry is allowable into relevant specific instances of conduct.
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.
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.
RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
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.
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.
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:
However, such a statement is admissible
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.
RULE 412. SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIM'S PAST SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION
Evidence offered to prove that any alleged victim engaged in other sexual behavior.
Evidence offered to prove any alleged victim's sexual predisposition.
RULE 413. EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES
RULE 414. EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES
any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;
any conduct proscribed by chapter 110 of tide 18, United States Code;
contact between any part of the defendant's body or an object and the genitals or anus of a child;
contact between the genitals or anus of the defendant and any part of the body of a child;
deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or
an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).
RULE 415. EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL ASSAULT OR CHILD MOLESTATION
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 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testily 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.
RULE 603. OATH OR AFFIRMRMATION
Before testifying, every witness shall be required to declare that the witness will testily 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.
RULE 607. WHO MAY IMPEACH
The credibility of a witness may be attacked by any party, including the party calling the witness.
There are five basic ways to impeach a witnesses’ credibility:
Bias (including Animus, sympathy, motive and corruption)
Defect in Sensory or mental capacity
Bad Character for Truthfulness
iii) Reputation or opinion evidence (FRE 608(a))
Prior inconsistent Statement (FRE 613)
Contradiction (by other evidence or testimony)
RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.
RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
Probative Value >= Prejudicial Effect to the accused = ADMIT
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
Probative Value >> Prejudicial Effect to the accused = ADMIT
RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION
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:
if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to
have the writing produced at the hearing,
to inspect it,
to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the testimony of the witness.
If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall
Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.
If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
RULE 613. PRIOR STATEMENTS OF WITNESSES
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
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
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 testily thereto in the form of an opinion or otherwise.
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 reason-ably 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.
RULE 704. OPINION ON 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.
RULE 801. DEFINITIONS
The following definitions apply under this article:
Statement. A "statement is
if it is intended by the person as an assertion.
Declarant. A "declarant" is a person who makes a statement.
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.
Statements which are not hearsay. A statement is not hearsay if-
was given under oath subject to the penalty of perjury at a
trial, hearing or other proceeding, or in a deposition, or
recent fabrication or
improper influence or
improper motive, or
the party's own statement, in either an individual or a representative capacity or
a statement of which the party has manifested an adoption or belief in its truth, or
a statement by a person authorized by the party to make a statement concerning the subject, or
a statement by the party's agent or servant concerning a matter within the scope of the agency of employment, made during the existence of the relationship, or
a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subparagraph (C), the agency or employment relationship and scope thereof under subparagraph (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subparagraph (E).
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.
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.
the activities of the office or agency, or
matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or
in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE
A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
Simply stated, FRE 804 hearsay exceptions may only be used if the person is unavailable to testify. A person is unavailable when:
Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered. or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be his impending death.
Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or propnetary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement tinless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Statement of personal or family history.
Other exceptions. Abrogated by Rule 807.
Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
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.
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
But a statement may not be admitted under this exception unless its proponent 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 proponents intention to offer the statement and the particulars of it, including the name and address of the declarant.
For the hearsay evidence to be admissible under the catch all exception, it must be:
RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
Non-expert opinion on handwriting. Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if
Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
Ancient documents or data compilation. Evidence that a document or data compilation, in any form,
is in such condition as to create no suspicion concerning its authenticity,
was in a place where it, if authentic, would likely be, and
has been in existence 20 years or more at the time it is offered.
Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.
RULE 902. SELF-AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
A final certification may be made by a secretary of embassy or leganon, consul general, consul, vice consul, or consular agent of the United States. or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic with-out final certification or permit them to be evidenced by an attested summary with or without final certification.
RULE 1001. DEFINITIONS
For purposes of this article the following definitions are applicable:
Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same marrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original.
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.
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.
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-
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.
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.
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 or oral admission, without accounting for the non-production of the original.
How to Answer the Evidence Essay
Determine number of statements (Williamson).
Characterize statements as hearsay or non-hearsay and state why.
If the statement is hearsay, is there an applicable exception?
If so, define the exception and apply the instant facts.
Repeat (D) and (E) for each statement.
Determine if there is a confrontation clause issue.
Is there necessity for Judicial Notice?
Is there a presumption issue?
Best Evidence Rule
A. Does the best evidence rule apply to this type of evidence?
Admissibility of Settlements, Payments, or Pleas (or Offers to Make Them) and Related Statements and Conduct
State v. Chappel
Facts: A trial court admitted inflammatory evidence which was not probative of any contested issue in the case.
Rule: Inflammatory evidence should not be admitted if not probative of any contested issue in the case. See FRE 403.
People v. Collins
Facts: In the People’s suit against Collins for second-degree armed robbery, Collins contended that testimony admitted into evidence at trial as to the mathematical probability that Collins committed the crime unduly influenced the jury and infected the case with fatal error.
Rule: Applications of mathematical techniques in the proof of facts in a criminal case must be critically examined in view of the substantial unfairness to the defendant which may result.
Wright v. Doe d. Tatham
Facts: Tatham contended letters written to the testator Marsden were admissible to prove the mental capacity of Marsden at the time his will was made.
Rule: Hearsay statements offered to establish a fact based upon the opinion of the declarant are inadmissible.
Cain v. George
Facts: A trial court admitted evidence of a lack of prior complaints about an allegedly defective heater.
Rule: Evidence regarding complaints is not hearsay.
United States v. Check
Facts: In a prosecution based on possession of cocaine, the State attempted to circumvent the hearsay rule by suggesting what an unavailable declarant said.
Rule: The hearsay rule cannot be circumvented by framing testimony so as to suggest what an unavailable declarant said.
Facts: Sazenski raised a hearsay objection to the introduction of evidence of conduct not intended as an assertion.
Rule: Evidence of conduct not intended as an assertion of fact is not made inadmissible by the hearsay rule.
United States v. Pacelli
Facts: Pacelli raised a hearsay objection to the introduction of statements implying facts asserted to prove their own truth.
Rule: Testimony regarding statements which imply facts presented to prove their own truth in hearsay.
Betts v. Betts
Facts: In a custody hearing, the court admitted testimony regarding statements by the child which were relevant whether or not they were true.
Rule: Statements which are relevant whether or not they are true do not implicate the hearsay rule.
State v. Smith
Facts: A sworn statement by assault victim Conlin was admitted as an inconsistent statement after she refused, at trial, to identify Smith as her attacker, as she had earlier done.
Rules: A sworn statement inconsistent with courtroom testimony maybe substantively introduced if reliable.
Tome v. United States
Facts: Tome, convicted of felony sexual abuse of a child, appealed, contending that he trial court abused its discretion by admitting out-of-court consistent statements made by his daughter to six prosecution witnesses who testified as to the nature of Tome’s sexual assault on his daughter.
Rule: FRE 801(d)(1)(B) permits prior consistent statements to be used for substantive purposes after the statements are admitted to rebut the existence of an improper influence or motive.
State v. Motta
Facts: Motta was convicted of robbery after a composite sketch was admitted into evidence.
Rule: A composite sketch is not made inadmissible by the hearsay rule.
Bruton v. United States.
Facts: The Government contended that Bruton’s robbery conviction based upon the confession of a co-conspirator was valid.
Rule: The conviction of a defendant at a joint trial must be set aside despite a jury instruction that a co-defendant’s confession incrimination the defendant must be disregarded in determining his guilt or innocence.
United States v. Hoosier
Facts: A witness at Hoosier’s armed robbery trial was permitted to testify to certain statements Hoosier’s girlfriend had made in Hoosier’s presence and to which he had offered no denial.
Rule: Where one of the parties to the action has manifested his adoption of or belief in the truth of a statement that would otherwise constitute hearsay, it is admissible under an exception to the hearsay rule for admissions by a party opponent.
Doyle v. Ohio
Facts: The prosecution attempted to impeach drug offense defendant Doyle’s exculpatory story by noting his failure to tell the same story upon arrest.
Rule: A state may not impeach a defendant’s exculpatory story by noting his failure to tell the same story upon arrest.
Mahlandt v. Wild Candid Survival & Research Center, Inc.
Facts: The trial court hearing Daniel Mahlandt’s civil action against the Center refused to let into evidence certain conclusionary statements against interest made by an employee of the Center.
Rule: Federal Rule of Evidence 801(d)(2)(D) makes statements made by agents within the scope of their employment admissible and there is no implied requirements that the declarant have personal knowledge of the facts underlying his statement.
Bourjaly v. United States
Facts: Bourjally contended that the trial court erred in considering statements by an accomplice in determining whether a conspiracy existed as such a finding was a prerequisite to determining the admissibility of the statements.
Rule: A court may, in determining whether a conspiracy existed, consider the out-of-court statements which themselves are the subject of the inquiry into admissibility.
Facts: Nuttall attempted to introduce statements made by her late husband during a telephone conversation with his employer.
Rule: In an action based on forcing an ill employee to work, testimony regarding the employee’s conversations with the employer may be admissible.
United States v. Iron Shell (Part 1)
Facts: Iron Shell appealed from conviction of assault with intent to rape on the basis tat statements made to police officers were improperly admitted at trial because they were hearsay not within the exception defined in FRE 803(2).
Rule: Providing that the declarant remains in a continuous state of excitement, statements made in response to an inquiry approximately one hour after a startling event or condition can still qualify as an excited utterance under FRE 802(2).
Mutual Life Insurance Co. v. Hillmon
Facts: Mutual contended that letters written by the person it claimed was the actual defendant and indicating that person’s intention to accompany Hillmon, the purported decedent and insured, were relevant and admissible to prove a conspiracy theory that Hillmon had not died and therefore his wife was not entitled to the insurance proceeds.
Rule: Whenever an intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.
United States v. Pheaster
Facts: Incisco claimed that it was error for the trial court to have admitted into evidence statements of intention made by the party that he and others, including Pheaster, had allegedly conspired to kidnap.
Rule: Hearsay evidence of statements in which the declarant has stated his intention to do something with another person are admissible under the state of mind exception to the hearsay rule to show that he intended to do it, from which the trier of fact may draw the inference that he carried out his intention and did it.
United States v. Iron Shell (Part 2)
Facts: Iron Shell objected to the admission at his trial of statements made to an examining physician by the nine-year-old girl he allegedly tried to rape.
Rule: Under FRE 803(4) an exception to the hearsay rule is created that permits admission of statements made for purpose of medical diagnosis or treatment.
Ohio v. Scott
Facts: Scott objected to the introduction, at his criminal trial, of a witness’ prior written statement to the police as a record of past recollection.
Rule: The prior recorded statement of a witness in a criminal trial can be admitted under the exception to the hearsay rule for records of “past recollection recorded,” and such does not violate the defendant’s Sixth Amendment right of confrontation.
Petrocelli v. Gallison
Facts: A trial court excluded from evidence a passage from a hospital record because the source of the information contained therein was uncertain.
Rule: For a portion of a business record to be admissible, the source of the information contained therein must be known.
Lewis v. Baker
Facts: Lewis contended the trial court erred in admitting accident reports prepared by the Railroad after the accident in which his injuries occurred.
Rule: Accident reports regularly prepared and required by law are not rendered inadmissible by the hearsay rule.
Baker v. Elcona Homes Corp.
Facts: Baker, who sued to recover damages for a car accident with a truck driven by an Elcona employee, objected to the introduction of a police accident report into evidence.
Rule: When they result from an investigation made pursuant to authority granted by law, factual findings (including evaluations and opinions) in public records and reports are admissible unless the sources of information or other circumstances indicate lack of trustworthiness.
United States v. Oates
Barber v. Page
Lloyd v. American Export Lines, Inc.
Williamson v. United States
United States v. Dorian
Ohio v. Roberts
Idaho v. Wright
Chambers v. Mississippi
Flaminio v. Honda Motor Co.
Competency of Witnesses
United States v. Lightly
United States v. Fowler
Ricketts v. Delaware
Rock v. Arkansas
Tanner v. United States
Baker v. State
James Julian Inc. v. Ratheon Co.
Impeachment of Witnesses
United States v. Abel
Simmons, Inc. v. Pinkerton’s Inc.
United States v. Lipscomb
Luce v. United States
United States v. Webster
Harris v. New York
Jenkins v. Anderson
United States v. Havens
United States v. Medical Therapy Sciences
Opinion and Expert Testimony
Daubert v. Merrell Dow Pharmaceuticals, Inc.
State v. Moore
Burdens of Proof and Presumptions
Texas Department of Community Affairs v. Burdine
Patterson v. New York
Sandstrom v. Montana
County Court of Ulster County v. Allen
Government of the Virgin Islands v. Gereau
United States v. Jones
Muller v. Oregon
Houser v. State
United States v. Gould
United States v. Johnson
United States v. Howard-Arias
United States v. Bagaric
United States v. Biggins
United States v. Pool
The “Best Evidence” Doctrine
United States v. Duffy
Meyers v. United States
Sylvania Electric Products v. Flanagan
FEDERAL RULES OF EVIDENCE 1
ARTICLE I. GENERAL PROVISIONS 1
RULE 103. RULINGS ON EVIDENCE 1
RULE 104. PRELIMINARY QUESTIONS 1
RULE 105. LIMITED ADMISSIBILITY 2
RULE 106. REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS 2
ARTICLE II. JUDICIAL NOTICE 3
RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS 3
ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS 4
RULE 301. PRESUMPTIONS IN GENERAL IN CIVIL ACTIONS AND PROCEEDINGS 4
ARTICLE IV. RELEVANCY AND ITS LIMITS 5
RULE 401. DEFINITION OF "RELEVANT EVIDENCE" 5
RULE 402. RELEVANT EVIDENCE IS ADMISSIBLE; IRRELEVANT EVIDENCE IS NOT 5
RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE 5
RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT 5
RULE 405. METHODS OF PROVING CHARACTER 6
RULE 406. HABIT; ROUTINE PRACTICE 7
RULE 407. SUBSEQUENT REMEDIAL MEASURES 7
RULE 408. COMPROMISE AND OFFERS TO COMPROMISE 7
RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES 7
RULE 410. INADMISSIBILITY OF PLEAS & PLEA DISCUSSIONS 7
RULE 411. LIABILITY INSURANCE 8
RULE 412. SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIM'S PAST 8
RULE 413. EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES 9
RULE 414. EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES 10
RULE 415. EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEX 10
ARTICLE VI. WITNESSES 12
RULE 601. GENERAL RULE OF COMPETENCY 12
RULE 602. LACK OF PERSONAL KNOWLEDGE 12
RULE 603. OATH OR AFFIRMRMATION 12
RULE 607. WHO MAY IMPEACH 12
RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS 12
RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME 13
RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION 14
RULE 612. WRITING USED TO REFRESH MEMORY 15
RULE 613. PRIOR STATEMENTS OF WITNESSES 15
RULE 615. EXCLUSION OF WITNESSES 15
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY 17
RULE 701. OPINION TESTIMONY BY LAY WITNESSES 17
RULE 702. TESTIMONY BY EXPERTS 17
RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS 17
RULE 704. OPINION ON ULTIMATE ISSUE 17
RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION 17
ARTICLE VIII. HEARSAY 18
RULE 801. DEFINITIONS 18
RULE 802. HEARSAY RULE 19
RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL 19
RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE 21
RULE 805. HEARSAY WITHIN HEARSAY 23
RULE 807. RESIDUAL EXCEPTION 23
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION 25
RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION 25
RULE 902. SELF-AUTHENTICATION 26
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS 28
RULE 1001. DEFINITIONS 28
RULE 1002. REQUIREMENT OF ORIGINAL 28
RULE 1003. ADMISSIBILITY OF DUPLICATES 28
RULE 1004. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS 28
RULE 1005. PUBLIC RECORDS 29
RULE 1006. SUMMARIES 29
RULE 1007. TESTIMONY OR WRITTEN ADMISSION OF PARTY 29
HOW TO ANSWER THE EVIDENCE ESSAY 30
Admissibility of Settlements, Payments, or Pleas 31
Character Evidence Offered to Show Conduct in Conformity With that Character 32
State v. Chappel 33
People v. Collins 33
Wright v. Doe d. Tatham 33
Cain v. George 33
United States v. Check 33
United States v. Singer 34
United States v. Pacelli 34
Betts v. Betts 34
Hearsay Exceptions 34
State v. Smith 34
Tome v. United States 34
State v. Motta 34
Bruton v. United States. 35
United States v. Hoosier 35
Doyle v. Ohio 35
Mahlandt v. Wild Candid Survival & Research Center, Inc. 35
Bourjaly v. United States 35
Nuttall v. Reading Co. 36
United States v. Iron Shell (Part 1) 36
Mutual Life Insurance Co. v. Hillmon 36
United States v. Pheaster 36
United States v. Iron Shell (Part 2) 36
Ohio v. Scott 37
Petrocelli v. Gallison 37
Lewis v. Baker 37
Baker v. Elcona Homes Corp. 37
United States v. Oates 37
Barber v. Page 37
Lloyd v. American Export Lines, Inc. 37
Williamson v. United States 37
United States v. Dorian 37
Ohio v. Roberts 37
Idaho v. Wright 37
Chambers v. Mississippi 37
Relevance Revisited 38
Flaminio v. Honda Motor Co. 38
Competency of Witnesses 38
United States v. Lightly 38
United States v. Fowler 38
Ricketts v. Delaware 38
Rock v. Arkansas 38
Tanner v. United States 38
Presenting Evidence 38
Baker v. State 38
James Julian Inc. v. Ratheon Co. 38
Impeachment of Witnesses 38
United States v. Abel 38
Simmons, Inc. v. Pinkerton’s Inc. 38
United States v. Lipscomb 38
Luce v. United States 38
United States v. Webster 38
Harris v. New York 38
Jenkins v. Anderson 38
United States v. Havens 38
United States v. Medical Therapy Sciences 38
Opinion and Expert Testimony 38
Daubert v. Merrell Dow Pharmaceuticals, Inc. 38
State v. Moore 38
Burdens of Proof and Presumptions 38
Texas Department of Community Affairs v. Burdine 38
Patterson v. New York 38
Sandstrom v. Montana 38
County Court of Ulster County v. Allen 38
Judicial Notice 38
Government of the Virgin Islands v. Gereau 38
United States v. Jones 38
Muller v. Oregon 38
Houser v. State 38
United States v. Gould 38
United States v. Johnson 39
United States v. Howard-Arias 39
United States v. Bagaric 39
United States v. Biggins 39
United States v. Pool 39
The “Best Evidence” Doctrine 39
United States v. Duffy 39
Meyers v. United States 39
Sylvania Electric Products v. Flanagan 39
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