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Course: Evidence
School: unknown
Year: 2004
Professor: unknown
Course Outline provided by Legalnut.com

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

 

  • the qualification of a person to be a witness,

  • the existence of a privilege, or

  • the admissibility of evidence

 

shall be determined by the court, subject to the provisions of subdivision (b). In making its determination 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:

 

  1. At the time of partial introduction,

  2. On cross examination (even if it goes beyond the scope of direct), and

  3. At the time of rebuttal.

 

 


ARTICLE II. JUDICIAL NOTICE

 

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:

 

  1. generally known within the territorial jurisdiction of the trial court or

 

  1. capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

 

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.


ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

 

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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ARTICLE IV. RELEVANCY AND ITS LIMITS

 

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

 

  • the danger of unfair prejudice, or

  • confusion of the issues, or

  • misleading the jury, or

  • by considerations of undue delay, or

  • waste of time, or

  • needless presentation of cumulative evidence.

 

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

 

  1. Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

 

 

 

  1. Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

 

  1. Character of victim.

 

  • Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or

  • evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

 

  1. Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609.

  1. Other crimes, wrongs, or acts.

 

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

 

  • proof of motive,

  • opportunity,

  • intent,

  • preparation,

  • plan,

  • knowledge,

  • identity, or

  • absence of mistake or accident,

 

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

 

  1. Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made

 

  • by testimony as to reputation or

  • by testimony in the form of an opinion.

 

On cross-examination, inquiry is allowable into relevant specific instances of conduct.

 

  1. Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's 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

 

Evidence of:

 

  1. furnishing or offering or promising to furnish, or

 

  1. accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount,

 

is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

 

This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

 

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:

 

  1. a plea of guilty which was later withdrawn;

 

  1. a plea of nolo contendere;

  2. any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

 

  1. 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

 

  1. in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or

 

  1. 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.

 

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

 

  1. Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

 

Evidence offered to prove that any alleged victim engaged in other sexual behavior.

 

Evidence offered to prove any alleged victim's sexual predisposition.

 

  1. Exceptions.

 

  1. In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

 

  1. evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;

 

  1. evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

  2. evidence the exclusion of which would violate the constitutional rights of the defendant.

 

  1. In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim 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 an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

 

  1. Procedure to determine admissibility.

 

  1. A party intending to offer evidence under subdivision (b) must –

 

  1. file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

 

  1. serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

 

  1. Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

 

RULE 413. EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES

 

  1. In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

 

  1. In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

 

  1. This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

 

  1. For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of tide 18, United States Code) that involved –

 

  1. any conduct proscribed by chapter 109A of title 18, United States Code;

 

 

  1. contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person;

 

  1. contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

 

  1. deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or

 

  1. an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

 

RULE 414. EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES

 

  1. In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

 

  1. In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow or good cause.

 

  1. This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

 

 
  1. For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of tide 18, United States Code) that involved –

 

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

 

  1. In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

 

  1. A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

 

  1. This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

 


ARTICLE VI. WITNESSES

 

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

  1. Prior bad acts showing dishonesty (FRE 608(b))

  2. Prior Criminal convictions (FRE 609)

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

 

  1. Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

 

  1. the evidence may refer only to character for truthfulness or untruthfulness, and

 

  1. evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

 

  1. Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness

 

  1. concerning the witness' character for truthfulness or untruthfulness, or

 

  1. concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

 

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

 

  1. General rule. For the purpose of attacking the credibility of a witness,

 

  1. evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if

 

  • the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and

 

  • evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

 

  1. evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

 

Probative Value >= Prejudicial Effect to the accused = ADMIT

 

 

  1. Time limit.

 

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

 

  1. Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if

 

  1. the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or

 

  1. the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

 

 

  1. Juvenile adjudication Evidence of juvenile adjudication is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

 

  1. Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

 

RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION

 

  1. Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to

 

  1. make the interrogation and presentation effective for the ascertainment of the truth,

 

  1. avoid needless consumption of time, and

 

  1. protect witnesses from harassment or undue embarrassment.

 

  1. Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

 

  1. Leading questions. Leading questions should not he used on the direct examination of a witness except as may he necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

 

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:

 

  1. while testifying, or

  2. before Testifying,

 

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

 

  • examine the writing in camera,

  • excise any portions not so related, and

  • order delivery of the remainder to the party entitled thereto.

 

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

 

 
  1. Examining witness concerning prior statement In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

 

  1. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party opponent as defined in rule 801(d)(2).

 

RULE 615. EXCLUSION OF WITNESSES

 

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of

 

  1. a party who is a natural person, or

 

  1. an officer or employee of a party which is not a natural person designated as its representative by its attorney, or

 

  1. a person whose presence is shown by a party to be essential to the presentation of the party's cause.

 


ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

 

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

 

  1. rationally based on the perception of the witness and

 

  1. helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

 

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

 

  1. Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

 

  1. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

 

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.

 


ARTICLE VIII. HEARSAY

 

RULE 801. DEFINITIONS

 

The following definitions apply under this article:

 

Statement. A "statement is

 

  1. an oral or written assertion, or

  2. nonverbal conduct of a person,

 

if it is intended by the person as an assertion.

 

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-

 

  1. Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

  1. inconsistent with the declarant's testimony, and

was given under oath subject to the penalty of perjury at a

trial, hearing or other proceeding, or in a deposition, or

 

  1. consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of

 

recent fabrication or

improper influence or

improper motive, or

 

  1. one of identification of a person made after perceiving the person; or

 

  1. Admission by party opponent. The statement is offered against a party and is

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.

 

  1. Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

 

  1. Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

 

  1. Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

 

  1. Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

 

  1. Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

 

 

 

 

  1. Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

 

  1. Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record. or data compilation was regularly made and preserved, under Rule 803 less the sources of information or other circumstances indicate lack of trustworthiness.

 

  1. Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth

 

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.

 

  1. Records of vital statistics. Not Covered on Exam.

 

  1. Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form or a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

 

  1. Records of religious organizations. Not Covered on Exam.

 

 
  1. Marriage, baptismal, and similar certificates. Not Covered on Exam.

 

  1. Family records. Not Covered on Exam.

 

  1. Records of documents affecting an interest in property. Not Covered on Exam.

 

  1. Statements in documents affecting an interest in property. Not Covered on Exam.

 

  1. Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

 

  1. Market reports, commercial publications. Not Covered on Exam.

 

  1. Learned treatises. Not Covered on Exam.

 

  1. Reputation concerning personal or family history. Not Covered on Exam.

 

  1. Reputation concerning boundaries or general history. Not Covered on Exam.

 

  1. Reputation as to character. Reputation of a person’s character among associates or in the community.

 

  1. Judgment of previous conviction. Evidence of a final judgment entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

 

  1. Judgment as to personal, family, or general history, or boundaries. Not Covered on Exam.

 

  1. Other exceptions. Not Covered on Exam.

 

RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE

 

  1. Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant-

 

  1. is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

 

  1. persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

 

  1. testifies to a lack of memory of the subject matter of the declarant's statement; or

 

 

 

  1. is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

 

  1. is absent from the bearing and the proponent of his statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b) (2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

 

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:

 

  1. Privilege not to testify

  2. Refusal not to testify

  3. Lack of memory

  4. Death or other illness

  5. Can’t find the person or unable to procure the person

 

  1. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

 

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.

 

  1. A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or

 

  1. a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

 

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

 

  1. the statement is offered as evidence of a material fact;

 

  1. the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts; and

 

  1. the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

 

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:

 

  1. Trustworthy

  2. Material

  3. Probative

  4. Necessary to serve justice

  5. Pre-trial notice must have been given regarding its use.


ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

 

RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION

 

  1. General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

 

  1. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

 

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

 

  1. in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or

 

  1. in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

 

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:

 

  1. Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

 

  1. Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

 

 
  1. Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position

 

  1. of the executing or attesting person, or

 

  1. of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation.

 

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.

 

  1. Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

 

  1. Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

 

  1. Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

 

  1. Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

 

  1. Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

 

  1. Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

 

  1. Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.

 


ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

 

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-

 

  1. Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

 

  1. Original not obtainable. No original can be obtained by any available judicial process or procedure; or

 

  1. Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

 

  1. Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

 

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

 

Relevancy

 

  1. Define Relevance.

  2. State Evidentiary Hypothesis applying instant facts.

  3. Does Rule 403 apply to the evidence (apply facts)?

  4. Is the offered evidence excluded by a special evidence rule?

 

Hearsay

 

Define Hearsay.

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?

 

Authentication

 

  1. Is there enough evidence for the judge to determine that the jury will be able to conclude that the evidence is authentic?

 

Best Evidence Rule

 

A. Does the best evidence rule apply to this type of evidence?

 

 

 

 

Charts

 

Admissibility of Settlements, Payments, or Pleas (or Offers to Make Them) and Related Statements and Conduct

 

 

 

Points of Comparison
Civil Settlements
Payments and Offers to pay Medical Expenses
 
Nolo Contendere and Withdrawn Guilty Pleas
Federal Rule
 
408
409
410
Must there be a dispute for rule to apply?
 
Yes
No
Implicitly
With whom must party with potential liability deal?
Anyone who can settle disputed claim
Anyone who can accept payment
Prosecutor (not Police)
Can offered or actual settlement payment or plea be admitted to show liability?
 
No
No
No
Can offered or actual settlement payment or plea be admitted for uses other than to show liability?
 
Yes
Yes
No
Can related statements or conduct be admitted to show liability?
 
No
Yes
No
Can related statements or conduct be admitted for uses other than to show liability?
Yes
Yes
To complete partial disclosures by defendant; also certain perjury cases.

 


Character Evidence Offered to Show Conduct in Conformity With that Character on a Specific Occasion

 

 

Evidence About
May be introduced by
Reputation or Opinion Proof Allowed
Extrinsic Specific Acts Proof Allowed
Defendant’s traits inconsistent with commission of charged crime
Defendant. FRE 404(a)(1)
Yes
No
Defendant’s traits consistent with commission of charged crime
Prosecution to rebut defendant’s character evidence. FRE 404(a)(1)
Yes
No
Defendant’s sex related traits in sex offense or child molestation case
Plaintiff, prosecutor or defendant. FRE 404(a)(1), 413, 414, 415
Yes, introduced by a criminal defendant or by the prosecution to rebut such proof. FRE 404(a)(1)
Yes, introduced by any party. FRE 413, 414, 415
Victim’s trait (usually trait of aggressiveness)
Defendant. FRE 404(a)(2)
Yes
No
Victim’s trait (usually trait of non-aggressiveness)
Prosecution to rebut defendant’s character evidence about victim or (only in homicide cases) other evidence that victim was aggressor. FRE 404(a)(2)
Yes
No
Victim’s traits in sexual assault case
Prosecutor or defendant in specific relatively rare instances. FRE 412
No
Yes

 


Cases

 

Relevance

 

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.

 

Hearsay

 

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.

 


United States v. Singer

 

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.

 

Hearsay Exceptions

 

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.

 


Nuttall v. Reading Co.

 

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

 


Relevance Revisited

 

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

 

Presenting Evidence

 

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

 

Judicial Notice

 

Government of the Virgin Islands v. Gereau

United States v. Jones

Muller v. Oregon

Houser v. State

United States v. Gould

 


Authentication

 

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

CHARTS 31

Admissibility of Settlements, Payments, or Pleas 31

Character Evidence Offered to Show Conduct in Conformity With that Character 32

CASES 33

Relevance 33

State v. Chappel 33

People v. Collins 33

Hearsay 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

Authentication 39

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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