Evidence Rules (Michigan)

General Provisions

101 - Scope of Rules

- Rules govern proceedings in cts of MI w/ exceptions of Rule 1101. Statutes concerning evidence that do not conflict w/ these or other SCt rules are effective unless superseded by rule or decision of SCt.

> Rules do not preclude objections to the validity of a rule

> Rules apply to civil & criminal, jury & bench trials

> If statute or case law conflicts, MRE takes precedence

> Arbitration does not use MRE unless specified

Fed Rule 101 - Fed Rules govern all cts of US & magistrates & subject to applicability of FRE 1101. 2d sentence of MRE 101 not present.

102 - Purpose

- Rules intended to secure fairness in administration, elimination of unjustifiable expense & delay, & promotion of growth & development of the law of evidence to the end that the truth may be ascertained & proceedings justly determined.

Fed Rule 102- Identical

103 - Rulings on Evidence

(a) - Effect of erroneous ruling - Error is not created by a ruling that admits or excludes evidence unless a substantial right of the party is affect, &

(1) Objection - If ruling admits evidence, a timely objection or motion to strike is on the record, stating grounds for objection if not apparent from context; or

> If the basis of the objection is not stated, error is waived unless the reason for the objection is apparent from the context

(2) Offer of proof - If ruling excludes evidence, substance of evidence must be made known to ct by offer or was apparent from context w/in which questions were asked.

> To get in objected evidence, counsel must make proffer of evidence outside hearing of the jury.

(b) - Record of offer & ruling - Ct may add further statement showing character of evidence, the form in which it was offered, the objection made, & the ruling. Ct may direct making of an offer in question & answer form.

(c) - Hearing of jury - Inadmissible evidence must be protected from suggestion to the jury so statements or offers of proof or questions should be outside of the hearing of the jury.

(d) - Plain error - Ct is allowed to take notice of plain errors affecting substantial rights even if not brought to attention of the ct.

> 2 circumstances in which record must clearly reflect alleged error:

1) Error predicated on improper admission of evidence

2) Error predicated on improper exclusion of evidence

> A “substantial right” must be affected for error to operate as basis of appeal

Fed Rule 103 - Identical

Rule 104 - Preliminary Questions

(a) - Questions of admissibility generally - Prelim question on qualification of a person as a witness, existence of privilege, or admissibility of evidence is determined by ct, subject to (b). Ct is not bound by MRE except for privileges.

> Rule 104 = “laying a foundation” for the admission of evidence

> Judge makes determinations on admissibility of evidence

> Foundational evidence directed exclusively at the judge need not be admissible under the MRE (ex: hearsay is OK to lay a foundation for evidence)

(b) - Relevancy conditioned on fact - When relevance of evidence depends upon fulfillment of a condition of fact, ct shall admit it upon or subject to intro of evidence sufficient to support a finding of the fulfillment of the condition.

>Conditional relevancy - applies whenever the existence of one fact is necessary for the relevance of some connected fact - the 1st fact must be proven in satisfaction of 104(b) to enable trier of fact to use 2d fact as evidence.

(c) - Hearing of jury - Hearings on admissibility of confessions shall be out of hearing of jury. Hearings on other prelim matters should be out of hearing of jury when interests of justice require, or when accused is a witness & requests hearing.

(d) - Testimony by accused - Accused does not become subject to cross-exam as to other issues in the case by testifying upon a prelim matter.

(e) - Weight & credibility- 104 does not limit right of a party to intro b/f jury evidence relevant to weight or credibility.

Fed Rule 104 - Identical

105 - Limited Admissibility

- When evidence that is admissible to one party for one purpose but not admissible to another party or for another purpose is admitted, the ct, upon request, shall restrict the evidence to its proper scope & instruct the jury so.

> 105 provides “limiting instruction” from judge to prevent jury from misapplying evidence

> Limiting instruction can be requested by counsel when appropriate during trial (at sidebar) or in a pretrial motion

> Appropriate requests for limiting instructions are mandatory, ct may also issue limiting instructions w/out request

Fed Rule 105 - Identical

106 - Remainder of or Related Writings or Recorded Statements

- When party intros a writing or recorded statement or a part, adverse party may require intro at that time of any other part or other writing or recorded statement that should be considered contemporaneously out of fairness.

> Requires that complementary evidence be introduced at a time when it is needed to place the primary writing or recording into proper context or perspective

> Only applies to writings or recordings (including depositions)

> Adverse party does not have to wait until cross-exam or rebuttal to intro the writing or recording in order to prevent consideration of matters out of context

Fed Rule 106 - Identical

Judicial Notice

201 - Judicial Notice of Adjudicative Facts

(a) - Scope of rule - Only applies to judicial notice of adjudicative facts & not to legislative facts

> Judicial notice = ct takes recognition of a fact in absence of any formal proof; a substitute for formal proof where facts sought to be proved are reasonably beyond dispute

> “Adjudicative facts” = facts of the case that concern the immediate parties & are determinative of the outcome of the case

(b) - Kinds of facts - Judicially noticed fact must be one not subject to reasonable dispute in that it is either

(1) generally known w/in the territorial jurisdiction of trial ct or

(2) capable of verification by resort to a reasonably reliable authoritative source

> Authoritative sources include dictionaries & reference materials

(c) - When discretionary - Ct may take judicial notice whether or not requested & may require a party to supply necessary info

> Judicial notice is appropriate in ct’s discretion if requested by a party who supplies necessary info

> Ct may take judicial notice on its own initiative

(d) - Opportunity to be heard - Party is entitled upon timely request to a hearing on propriety of taking judicial notice & the matter noticed. Request may be made after judicial notice has been taken in absence of prior notification

(e) - Time of taking notice - Judicial notice may be taken at any stage of proceeding

(f) - Instructing jury - Civil action- ct shall instruct jury to accept as conclusive any fact judicially noticed. Criminal case- ct shall instruct jury that it may but is not required to accept as conclusive any fact judicially noticed

> Civil - judicially noticed fact is conclusively established & adverse party may not intro contradictory evidence

> Criminal - B/c conviction may rest only upon finding each element proved beyond a reasonable doubt, where judicially noticed facts represent an element of the charged crime the jury may be instructed that judicial notice raises a rebuttable presumption as to the truth of the fact - jury may accept as conclusive any judicially noticed fact but does not have to

Fed Rule 201 - Identical except adds provision explaining that judicial notice is mandatory when a party requests it & provides the necessary info

202 - Judicial Notice of Law

(a) - When discretionary - Ct may take judicial notice w/out request of

(1) common law, constitutions, & public statutes in force in every state, territory, & jurisdiction of US

(2) private acts & resolutions of US Congress & MI legislature & ordinances & regulations of govtal subdivisions or agencies of MI

(3) laws of foreign countries

(b) - When conditionally mandatory - Ct must take judicial notice of each matter in (a) if a party requested it &

(1) furnishes the ct sufficient info to enable it properly to comply w/ the request &

(2) has given each opposing party sufficient notification to meet the response

No Fed Rule counterpart

Presumptions

301 - Presumptions in General in Civil Actions & Proceedings

- In all civil actions (unless otherwise provided for by statute or MRE), a presumption places a burden of rebuttal on the party against whom it is directed but the presumption does not shift the burden of proof on that party.

> The Thayer Approach

> Presumption = a procedural device that operates to shift the evidentiary burden of producing evidence to the party against whom the presumption is directed

> Inference = a conclusion that may be drawn from facts admitted in evidence as to a matter material to the case

> Prima facie evidence = evidence which is sufficient to meet the burden of production

> Conclusive presumption = once the facts giving rise to the conclusive presumption are established, there is no further evidentiary function involved

> Rebuttable presumption = exists only as a matter of law. If underlying facts giving rise to a presumption are offered into evidence, the presumption, as a matter of law, shifts the burden of proving the nonexistence of the presumed fact to the opposing party. Failure to rebut the presumption will justify a directed verdict.

Fed Rule 301 - Identical

302 - Presumptions in Criminal Cases

(a) - Scope - Criminal cases - presumptions against an accused (recognized at common law or created by statute including provisions that certain facts are prima facie evidence of other facts or of guilt) are governed by this rule.

(b) - Instructing the jury - When presumed fact against accused is submitted to jury, ct shall instruct jury that it may but need not infer the existence of the presumed fact from the basic facts & that the prosecution still bears burden of proof beyond reasonable doubt of all elements.

> Presumption only has the effect of being an acknowledged inference & jury is not bound by the inferred fact

> Prosecution is required to prove each & every element of the case beyond a reasonable doubt, including those elements subject to a presumption.

Fed Rules - no counterpart

Relevancy & its Limits

401 - Definition of “Relevant Evidence”

- “Relevant evidence” = 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 w/out the evidence

> In order for evidence to qualify for admissibility, the evidence must meet the threshold of relevancy

> Relevant evidence is presumptively admissible - Proponent of evidence must establish relevancy & opponent of evidence must try to establish inadmissibility by Rule 402

> Evidence can be relevant b/c it is direct or circumstantial

> Circumstantial evidence = of a quality that leads to an inference that a provable event did or did not occur

> A broad definition of relevancy - any tendency to make the fact more likely than not (restricted slightly by Rule 403 that excludes relevant evidence which is remote, misleading, or unfairly prejudicial)

> Material evidence = offered to prove a matter that is properly an issue in the case according to the substantive law applicable to a claim or defense - Hard to distinguish from relevancy so MRE doesn’t even try & “relevancy” refers to both “relevancy” & “materiality”

> Evidence may be objected to as irrelevant in 2 ways

1) evidence is directed at a fact not properly an issue under substantive law of the case (immaterial)

2) evidence fails to alter the probabilities of the existence or nonexistence of a fact in issue (irrelevant)

Fed Rule 401 - Identical

402 - Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

- All relevant evidence is admissible except as otherwise provided by US or MI Constitutions or SCt rules. Irrelevant evidence is inadmissible.

> Evidence which is relevant is admissible unless express reasons are invoked justifying exclusion

> If evidence may violate a constitutional right, the constitutional doctrine must be asserted by the opponent of the evidence. [Constitutional doctrines = unlawful search, seizure or incriminating statements, or the right of confrontation, Miranda rights, self-incrimination, due process]

Fed Rule 402 - Identical except does not include MI language

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

- Relevant evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

> Ct can compel use of an alternate method of proof that will not cause unfair prejudice or other 403 problems

> Judge has discretion to consider if a limiting instruction (Rule 105) would sufficiently diminish the danger of prejudice, etc.

> Excessively prejudicial evidence is excluded [ex: arouses jury’s emotional sympathies, evokes sense of horror, appeals to an instinct to punish]

> Where evidence may confuse the issues or mislead the jury it may be only partially inadmissible or admissible for one purpose & not for another [ex: evidence requires trier of fact to engage in intricate, extraordinary, or impossible mental gymnastics in order to comprehend the import of the evidence or to evaluate its weight]

> Evidence is subject to exclusion if jury would give excessive, unwarranted importance or weight to the evidence

Fed Rule 403 - Identical

404 - Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a) - Character evidence generally - Evidence of a person’s character or character trait is inadmissible for purpose of proving conformity on a particular occasion, except:

> “Propensity rule” = evidence of a person’s character is not admissible for the purpose of proving that such a person acted in conformity w/ his character on a particular occasion

> 404(a) only excludes character evidence for conforming conduct- character evidence for reasons other than conforming conduct is allowed, such as when character is “in issue”

> Character is “in issue” where it is not used as a basis for a further inference, but it is a terminal point of proof

(1) Character of the accused - Character trait offered by an accused or by prosecution in rebuttal

> the accused may seek to intro pertinent evidence of his good character in order to raise the inference that on a particular occasion involving the crime for which he is charged, he acted in conformity w/ his good character & did not commit the operative facts of the crime

> Only applies to the accused in a criminal matter

(2) Character of victim of a crime other than a sexual conduct crime - Character of victim offered by the accused or prosecution in rebuttal unless a CSC case. Evidence of peacefulness of the victim can be offered by prosecution in homicide case to rebut evidence that victim was the first aggressor

(3) Character of victim of sexual conduct crime - In CSC case, evidence of victim’s past sexual conduct w/ defendant & evidence of specific instances of sexual activity showing source of semen, pregnancy, or disease

> Included in Fed Rule 412 Rape Shield Laws

(4) Character of witness - Evidence of character of witness by Rules 607, 608, 609

> The character of a witness may be explored as to the witness’ trait of veracity or truth-telling

> Applies to the accused if he takes the stand on his own behalf

(b) - Other crimes, wrongs, or acts -

(1) Evidence of other crimes, wrongs, or acts is inadmissible to prove character of person to show action in conformity. It may be admissible for other purposes (such as motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when material) whether the other crimes, wrongs, or acts are contemporaneous w/, or prior or subsequent to the conduct at issue in the case.

> Other wrongs can be admitted for any other purpose but character or propensity (such as motive or modus operandi)

> The other acts can be at any time b/f, after, or during the act at issue

> A previous acquittal of criminal charges can be offered as other acts evidence b/c even though not proved beyond a reasonable doubt, a jury could reasonably conclude that defendant committed the act

(2) Prosecution in criminal case must provide reasonable notice in advance of trial (or during trial if pretrial notice is excused by ct on good cause shown) of general nature of the other wrongs evidence it intends to intro at trial & the rationale for admitting it. Defendant must be required to state theories of defense limited only by privilege against self-incrimination if so necessary to determine the admissibility of such other wrongs evidence.

> Prosecutor has to give notice b/f trial unless there is good cause not to do so

> Ct wants to know that the issue of limited admissibility is an issue that is in dispute in order to allow this evidence for a limited purpose

> Ct should be asked to give a limiting instruction that the prior act may not be used as an inference that the individual acted in conformity or indicated his propensity

Fed Rule 404- Identical for non-sex related offenses. No Fed counterpart for 404(b)(2) [Fed Rule 412 = Rape Shield, Fed Rules 413-415 allow propensity evidence of defendant in sexual assault or child molestation case]

405 - Methods of Proving Character

(a) - Reputation or opinion - Where evidence of character is admissible, proof may be made by testimony as to reputation or by opinion. On cross-exam, inquiry is allowed into reports of relevant specific instances of conduct.

> Reputation = the collective opinion of persons w/in the pertinent community

> On cross-exam of character witnesses, the witness may be asked about specific instances of conduct or reputation or opinion

(b) - Specific instances of conduct - Where character is an essential element, proof may also be made of specific instances of that person’s conduct.

> 3 ways to prove character:

1) Reputation w/in a pertinent community

2) Opinion of an acquaintance

3) Testimony of specific instances of conduct

> All 3 ways are available where character is “in issue”

> Where character is used circumstantially to establish conforming conduct, only reputation & opinion is available

> Where character is used to impeach the credibility of a witness, method of proof is governed by Rules 608 & 609

> 2 elements of character witness:

1) a member of some pertinent community in which the person characterized is known

2) member of that community for a reasonably extensive time period

> Character witness must also know the reputation of the person characterized & be prepared to testify to that reputation w/in the pertinent community

> Specific instances of conduct may be proven through a character witness or through the testimony of any person who has first-hand knowledge of the relevant specific acts of the person characterized

Fed Rule 405 - Identical

406 - Habit; Routine Practice

- Evidence of habit of a person or the routine practice of an organization, whether or not corroborated & regardless of presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity w/ the habit or routine practice.

> Habits of a person & routine practices of a business are equivalent

> Habit = a person’s regular practice of meeting a particular kind of situation w/ a specific type of responsive conduct, the tendency of a person to exhibit a regular response to a specific stimulus

> Where the form of propensity is general & represents a behavioral inclination, it is character (Rule 404); where the form of propensity is specific & connected w/ an identifiable prompting circumstance, it is habit (Rule 406)

> It must 1st be proven that the habit exists through testimony of a person having 1st-hand knowledge of the individual or business. This witness must testify that he is familiar w/ the person & that he invariably meets certain situations w/ the same response. The witness may testify that he has observed the person conform to the habit on several occasions.

> After the habit is established, the proponent of the evidence can then submit evidence to prove that the stimulus for the response occurred on the particular occasion through 1st-hand knowledge. the habit & stimulus having been established, the response will be inferentially indicated by the habit rule.

Fed Rule 406 - Identical

407 - Subsequent Remedial Measures

- Evidence of subsequent measures that would have made an event less likely to occur is inadmissible to prove negligence or culpable conduct in connection w/ the event that caused the injury. This does not require the exclusion of evidence of subsequent measures when offered for another purpose (ex: proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment).

> Applies to any subsequent corrective action including the repair of a mechanical device after that devices causes personal injury & the discharge of an employee subsequent to an accident or to a change in product design.

> Applies to any measure which, if taken prior to the accident, would have made the injury less likely to occur.

> In order for corrective actions to be admissible for means other than culpability, the issue must be generally controverted in the case & the remedial action must be probative of the controverted consequential fact.

> Judge has discretion to exclude evidence of corrective action where such is only minimally probative & would cause prejudice, confusion of the issues, or mislead the jury.

> Judge should provide a limiting instruction where remedial action is admitted on theory of relevance aside from negligence or culpability.

Fed Rule 407 - Extended to product liability actions & applies only to remedial measures taken after the event causing injury - Design changes occurring b/f injury may be admissible if risk of prejudice is low

408 - Compromise & Offers to Compromise

- Evidence of

(1) furnishing of offering or promising to furnish, or

(2) 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 inadmissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations are also inadmissible. Rule does not require the exclusion of any evidence otherwise discoverable merely b/c it comes up in the course of negotiations. Rule also does not require exclusion where the evidence is offered for another purpose (ex: proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution).

> Does not apply to undisputed claims - The amount of the claim must be in dispute, or alternatively, liability for the claim must be contested, in order for the exclusionary principle to apply.

> Applies to disputed claims as to liability, invalidity, or amount

> Statements made during compromise negotiations are immunized - Rule does not offer opportunities to immunize statements otherwise admissible by restating them as part of settlement negotiations

> Prohibited purposes are liability, validity or amount; all other purposes are OK (bias or prejudice of witness, other limited purposes)

> Discoveries of other evidence that results from negotiations is not tainted b/c of the negotiations

Fed Rule 408 - Identical

409 - Payment of Medical & 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.

> the “Good Samaritan” Rule

> Evidence of these payments can be used for other purposes besides liability or negligence (i.e., to prove ownership or control, etc)

> Do not need a dispute for this immunity to exist

> As long as you can show it fits under 408, it is not immunized under 409

> Statements made are not immunized as they are in settlement negotiations - Conduct or statements which are part of the act of furnishing, or offering, or promising to pay expenses is not inadmissible

> Payment of pain & suffering goes beyond the scope of 409 & applies to 408

> Express admissions of liability made in conjunction w/ offers to pay medical expenses are admissible, while the offer of payment is not

Fed Rule 409 - Identical

410 - Inadmissibility of Pleas, Offers of Pleas, & Related Statements

- Except where allowed by this rule, evidence of the following is not admissible in any civil or criminal proceeding against the defendant who made the plea or was a participant in the plea discussions:

(1) A plea of guilty which was later withdrawn

> 5th Amend considerations are protected

(2) A plea of nolo contendere, except that, to the extent that evidence of a guilty plea would be admissible, evidence of a plea of nolo contendere to a criminal charge may be admitted in a civil proceeding to support a defense against a claim asserted by the person who entered the plea

> Exception is when NC is used as a defense against the person who entered the plea

> Nolo contendere = plea where guilt is not contested but ct finds you guilty b/c you don’t contest (but you also don’t admit guilt)

(3) An offer to plead guilty or an offer to plead nolo contendere to a crime, or

(4) Any statement made in conjunction w/ or relevant to any of the identified pleas or offers to plead

> Limitation on use of statements made (Immunity if stated to prosecuting atty for the purpose of negotiating a plea)

> Statements made after the plea are admissible

Any of the above statements are admissible

(i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced & the statement ought in fairness be considered contemporaneously w/ it, or

(ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record & in the presence of counsel.

> Statements made in ct cannot be used against defendant for impeachment but can be used for perjury (i.e. defendant changes story after plea was w/drawn - can’t be used for impeachment but perjury charges can be brought)

> The criminal counterpart to Rule 408 for settlement negotiations

> A defendant can waive the exclusionary provisions of 410

Fed Rule 410 - Identical

411 - Liability Insurance

- Evidence that a person was or was not insured is inadmissible to establish whether a person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of liability insurance when offered for another purpose (ex: proof of agency, ownership, or control, if controverted, or bias or prejudice of a witness).

> Applies only where liability insurance is offered to establish negligence or culpability

> Use of insurance for a purpose other than negligence is subject to the issuance of a limiting instruction by the ct

Fed Rule 411- Identical

Privileges

501 - Privilege; General Rule

- Privilege is governed by the common law, except as modified by statute or ct rule.

> Privilege = a personal right to preserve the confidentiality of certain private communications

> A privilege may involve a refusal to testify, a refusal to disclose a matter during discovery, a refusal to produce real proof, or the right to prevent other persons from doing any of these things

> A privilege permits a person to resist any judicial or govtal process aimed at eliciting protected info w/out risk of contempt

> Applies to oral or written communications & maybe to nonverbal actions & to knowledge gained by means of observation

> A privilege will not apply where confidentiality is compromised by a showing that the communication was made in the presence of a 3d person who was not essential to the transaction or communication

> Only the holder of the privilege may assert a privilege in order to suppress relevant evidence & only the holder of the privilege may waive the right to the protection of the privilege

> Examples:

> Atty-Client Privilege - Holder is client; client can waive it but the privilege may be asserted by the atty or the client

- payment for legal services is not required for the privilege to be applicable

- the privilege survives the conclusion of the representation but may be waived under certain circumstances by the representative of the estate of a deceased

> Physician-Patient Privilege - Holder is the patient

- Privilege is waived

(1) when the patient places his medical condition in issue & calls as a witness a physician who had treated the patient for the medical condition that is the subject of the suit

(2) the personal representatives of a deceased patient will be deemed to have waived the privilege in an action contesting the admission of a will to probate

(3) the privilege may be waived by a deceased patient’s life insurance beneficiary or heirs at law for the purpose of providing documentation to a life insurer for a benefits claim examination

> Spousal Testimonial & Communications Privileges

> Spousal Testimonial - prohibits a spouse from testifying against a current spouse w/out that spouse’s consent

- applies to all kinds of testimony

- does not continue after the marriage has terminated

> Spousal Communications - prohibits any person from testifying as to communications made b/tw that person & a current or former spouse w/out the spouse’s consent

- survives the termination of the marriage by divorce or death

- testimony concerning 1st-hand knowledge of the actions of a spouse or a former spouse is not prohibited by the privilege

> News Reporter’s Privilege

- applies only in proceedings b/f criminal trials such as grand jury proceedings

- qualified when info from a informant is received pertaining to a crime punishable by life imprisonment when the info sought is essential & not available from other sources

> Accountant-Client Privilege - Holder is the client

> Minister-Confessor Privilege

> Psychologist-Patient Privilege - Holder is patient, patient may consent to waiver

> Teacher-Student Privilege

> Atty Work Product

Fed Rule 501 - Identical

Witnesses

601 - General Rule of Competency

- Every person is competent to be a witness (except where prohibited by these rules) unless after questioning the ct finds that the person lacks sufficient physical or mental capacity or sense of obligation to testify truthfully & understandably.

> Ct may determine under MRE 104(a) that a witness lacks the capacity to perceive, remember, or communicate in such a manner as to provide meaningful testimony

> Ct has the power to declare a witness incompetent if the witness lacks sufficient capacity to take an oath to impress upon the witness’s conscience the obligation to testify truthfully (MRE 603) - A witness who simply refuses to take a 603 oath will be deemed incompetent

> Supersedes the “dead man’s statute” that generally prohibited a party from testifying where the adverse party to a transaction was dead or incompetent

> Children 10 & over are treated as any other witness for competency

Fed Rule 601 - All witnesses are competent but in civil actions the state law of competency rules & questions as to the weight to be given to the testimony are for the jury

602 - Lack of Personal Knowledge

- Evidence that a witness has personal knowledge of a matter is required for a witness to testify on that matter. This evidence may, but does not have to, consist of the witness’ own testimony. Rule is subject to expert witness limitations of 703.

> Witness must have 1st-hand knowledge of the facts she will testify to

> 1st-hand knowledge is acquired by any of the senses

> No extrinsic foundational evidence is required if foundation is laid through witness’ own testimony

> Mistaken perceptions do not disqualify the witness from testifying based on personal knowledge b/c accuracy of perception is a matter of credibility & not competence

> A witness who testifies to hearsay is not disqualified if that witness has personal knowledge of the making of the statement but the witness is prevented by hearsay rules from testifying to the truth of the subject matter of the hearsay statement if he has no personal knowledge of it

Fed Rule 602 - Identical

603 - Oath or Affirmation

- Every witness is required to declare that they will testify truthfully b/f testifying by an oath or affirmation administered as to awaken the witness’ conscience & impress a duty on the witness’ mind

> Oath must be in presence of ct officer

> Rule applies to all witnesses - witnesses who refuse may be held in contempt

> Oath may be waived expressly or impliedly (ex: when an adverse party goes forward in the matter w/out inquiry or objection)

Fed Rule 603 - Identical

604 - Interpreters

- Interpreters are subject to the rules qualifying experts & oath or affirmation to make a true translation.

> Interpreters must meet the expert qualifications of Rule 702

> Determination of an interpreter’s qualifications is an issue w/in ct’s discretion

> Close relatives or friends of the witness are not precluded from serving as interpreters where they meet expert qualifications

> Interpreters are subject to an attack on credibility - the accuracy of the translation becomes an issue for the trier of fact. The credibility of the interpreter & his competence to translate become issues for the jury where the trial judge has determined that the interpreter meets the expert qualifications.

> Interpreters are required to take oaths & to translate to both the witness & the ct.

Fed Rule 604 - Identical

605 - Competency of Judge as Witness

- Presiding judge at a trial may not testify as a witness at that trial. No objection is required to preserve this error for appeal.

> Judge is not prevented from testifying at a later trial about matters occurring in the original trial (ex: trial judge is called as a witness in a hearing on petition for post-conviction relief from a previous judgment)

Fed Rule 605 - Identical

606 - Competency of Juror as Witness

- Jury member may not testify as a witness b/f the jury in the trial for which the juror is sitting. No objection is required to preserve the error for appeal.

> Any witness who is an impaneled jury member is declared incompetent for the case in question

Fed Rule 606 - Similar but FRE 606(a) requires an objection to preserve the error for appeal. FRE 606(b) provides that jurors may not testify upon inquiry into the validity of a verdict as to statements made during deliberations except as to whether extraneous prejudicial info was improperly brought to the jury’s attention or whether any outside influence was improperly brought on any juror.

607 - Who May Impeach

- Any party, including the calling party, may attack the credibility of a witness.

> A lawyer may attack the credibility of his own witnesses

> Rejects the common law rule that a lawyer could not impeach his own witnesses

Fed Rule 607 - Identical

608 - Evidence of Character & Conduct of Witness

(a) - Opinion & reputation evidence of character - Credibility of a witness may be attacked or supported by opinion or reputation evidence but subject to these limitations:

(1) evidence may refer only to the character for truthfulness or untruthfulness, &

(2) evidence of truthful character is admissible only after that truthful character has been attacked by opinion or reputation evidence.

(b) - Specific instances of conduct - Specific instances of conduct, other than conviction under MRE 609, may not be proved by extrinsic evidence for attacking or supporting credibility. They may, subject to ct’s discretion & if probative of truthfulness or untruthfulness, be inquired into on cross-exam

(1) concerning the witness’ character for truthfulness or untruthfulness, or

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

Giving of testimony by an accused or any other witness does not waive the privilege against self-incrimination when examined w/ respect to matters which relate only to credibility.

> Character witnesses are not allowed to testify to specific instances of untruthful conduct of the primary witness on direct exam (reputation or opinion of untruthful conduct is allowed on direct)

> Witness may be impeached on cross-exam by interrogation as to specific prior instances of conduct which are probative of untruthfulness. This cross-exam is limited by:

(1) only prior acts involving an element of dishonesty or deceit are appropriate for interrogation

(2) trial judge must exercise discretion b/f permitting cross-exam as to the prior acts

> Specific acts may not be established by extrinsic evidence

> Applies to both impeachment & rehabilitation

Fed Rule 608 - Identical

609 - Impeachment by Evidence of Conviction of Crime

(a) - General rule - For attacking witness credibility, evidence that the witness has been convicted of a crime is inadmissible unless that evidence has been elicited from the witness or established by public record during cross-exam &

(1) the crime contained an element of dishonesty or false statement or

> No factors need be weighed - this evidence is per se admissible

(2) the crime contained an element of theft &

(A) the crime was punishable by over 1 yr in prison or death under the law under which witness was convicted &

(B) the ct determines that the evidence has significant probative value on the issue of credibility & the ct determines that the probative value outweighs the prejudice if witness is a defendant in a criminal trial

(b) - Determining probative value & prejudicial effect - For (a)(2)(B) probative determination, ct shall consider only the age of the conviction & the degree to which a conviction is indicative of veracity. If determination of prejudice is required, ct must consider only the conviction’s similarity to the charged offense & the possible effects on the decisional process if admitting the evidence causes the defendant to elect not to testify. Ct must articulate on the record the analysis of each factor.

> Whenever such evidence is admitted, the affected party is entitled upon request to a limiting instruction

(c) - Time limit - Conviction evidence is inadmissible if conviction is over 10 yrs old or if witness was released from confinement for that conviction over 10 yrs prior, whichever comes later.

> If more than 10 yrs has elapsed since the date of conviction, or the termination or confinement, probation or parole, the conviction is inadmissible

(d) - Effect of pardon, annulment, or certificate of rehabilitation - Evidence of a conviction is inadmissible if

(1) the conviction has been pardoned, annulled, a certificate of rehabilitation has been issued, or other equivalent procedure based on finding of rehabilitation, & that person has not been convicted of a subsequent crime which was punishable by death or over 1 yr in prison or

(2) the conviction has been pardoned, annulled or other equivalent procedure based on a finding of innocence

> Evidence of the conviction is inadmissible for impeachment where a pardon, annulment, expungement, certificate of rehabilitation or other equivalent procedure is based upon a showing of rehabilitation or based upon a finding of innocence & where the witness has not subsequently been convicted of a felony

> the burden of proving that a witness’s prior conviction is inadmissible under 609(d) lies w/ the party who opposes the use of the conviction

(e) - Juvenile adjudications - Generally, juvenile adjudications are inadmissible except in subsequent cases against the same child in juvenile ct. The ct may, in a criminal case or juvenile proceeding against the child, allow evidence of a juvenile adjudication of a witness other than the accused if conviction would be admissible to attack the credibility of an adult & the ct is satisfied that admission is necessary for a fair determination of the case.

> Juvenile adjudications are generally inadmissible unless required by the confrontation clause & the juvenile conviction would be proper for impeachment of the credibility of the witness if that person had been an adult

(f) - Pendency of appeal - Pendency of an appeal does not render evidence of a conviction inadmissible. Also, evidence of the pendency of appeal is admissible.

> Matter of appeal is left to the trier of fact in evaluating the weight of the conviction in regard to credibility

> The evidence admitted by this rule is for the limited purpose of affecting a witness’s credibility, & when danger exists that the trier of fact may misuse the info, a limiting instruction is appropriate.

> Ct has discretion to limit questioning which asks anything more than the info that appears on the public record of conviction

> for rehabilitation of a witness, witnesses are usually allowed to explain extenuating circumstances of the conviction, however, no collateral evidence of these extenuating circumstances is permitted.

Fed Rule 609 - Similar (excludes language about ct weighing probative against prejudicial value)

610 - Religious Beliefs or Opinions

- Evidence of beliefs or opinions of witnesses on religion is inadmissible to show that a witness’ credibility is affected by their nature.

> Religious beliefs or opinions cannot be used to impeach or bolster a witness’ credibility b/c of unfair prejudice & minimal probative value

> Evidence of religious beliefs is not precluded where the evidence is relevant other than to show that the witness’ trustworthiness is affected by their belief.

> rule does not prevent evidence that tends to demonstrate bias or interest on behalf of a witness (ex: where the witness is affiliated w/ a church that is a party to the action)

Fed Rule 610 - Identical

611 - Mode & Order of Interrogation & Presentation

(a) - Control by court - Ct shall exercise reasonable control over the mode & order of interrogating witnesses & presenting evidence so as to

(1) make the interrogation & presentation effective for the ascertainment of the truth

(2) avoid needless consumption of time &

(3) protect witnesses from harassment or undue embarrassment

> Ct has discretionary power over decisions such as whether & to what extent to allow re-direct & re-cross-exam, whether a witness can be re-called, & whether a party may re-open its case, & reversal will take place only if there is an abuse of discretion

(b) - Scope of cross-examination - A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. Judge may limit cross-exam w/ respect to matters not testified to on direct exam.

> Cross-exam is permitted on all relevant issues as well as on matters relating to credibility

> for criminal defendants, constitutional rights come first

> Merely by testifying to a specific subject, the accused does not necessarily waive his or her right to assert the privilege against self-incrimination w/ regard to other relevant matters

(c) - Leading questions

(1) Leading questions should not be used on the direct exam of a witness except as may be necessary to develop the witness’ testimony

(2) Ordinarily leading questions should be permitted on cross-exam

(3) When a party calls a hostile witness, an adverse party, or a witness identified w/ an adverse party, interrogation may be by leading questions. It is not necessary to declare the intent to ask leading questions b/f the questioning begins or moves beyond prelim inquiries.

> Leading questions = suggest a particular answer by the form or substance of the interrogation

> Leading questions are allowed on cross b/c witness is less susceptible to the question’s suggestiveness since the question is posed by the opposing party

> Hostile witness = one who is so evasive or uncooperative on exam that his testimony is impeded

> Governs ct’s control over the mode & order of interrogating witnesses & presenting evidence, the scope of cross-exam, & the use of leading questions

Fed Rule 611 - FRE 611(b) generally prohibits cross-exam into factual matters not addressed on direct exam, & exam of a witness beyond the scope of direct inquiry is permissible only if authorized by the trial judge in the exercise of his or her discretion. FRE 611(c) does not state that lawyer may use leading questions w/ a hostile witness absent an announcement.

612 - Writing Used to Refresh Memory

(a) - While testifying - If a witness uses a writing or object to refresh memory while testifying, an adverse party is entitled to have the writing or object produced at trial, hearing, or deposition in which the witness is testifying.

(b) - Before testifying - If a witness uses a writing or object to refresh memory b/f testifying the ct has discretion to determine in the interest of justice if the adverse party is entitled to have the writing or object produced, if practicable, at the proceeding where witness is testifying.

(c) - Terms & conditions of production & use - A party that is entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness on it & to into in evidence for their bearing on credibility only unless otherwise admissible for another purpose, those portions which relate to the testimony of the witness. If production at proceeding is impracticable, ct may order it made available for inspection. If it is claimed that the writing or object contains matters not related to the subject matter of the testimony the ct shall examine the writing or object in camera, excise any portions not so related, & order delivery of the remainder to the party entitled to it. Any portion w/held over objections shall be preserved & made available to app ct for appeal. If a writing or object is not produced, made available for inspection, or delivered pursuant to order, ct shall make any order justice requires, except that in criminal cases where prosecution does not comply, the order shall strike the testimony or the ct has the discretion to declare a mistrial if justice requires.

> Recollection of a witness may be refreshed through use of a writing or object. Writing is used to revive the memory of the witness & it must provide sufficient stimulus that the witness has a present, independent recollection of the matter

> The writing is not evidence- the evidence is the refreshed recollection in the form of testimony. Hence the writing need not be admissible under the MRE.

> To utilize this technique, witness at trial must be incapable of recalling all of the pertinent facts as to which he or she has 1st-hand knowledge & as to which he or she has been called to testify. Witness silently reads the writing on the stand to refresh memory b/f continuing w/ testimony.

> When used during trial, the writing must be made available to opposing counsel. When used b/f trial, ct has discretion whether to order that the writing be made available to opposing counsel.

> Where a document fails to revive the recollection of a witness, the document may be admissible as “past recollection recorded” under rule 803(4).

> MRE provide 3-tiered preference for testimony:

1) the unaided testimony of a witness

2) if the unaided testimony is unavailable, the law prefers refreshed recollection

3) if recollection cannot be revived, the recorded recollection exception to the hearsay rule may be available to admit the document which contains the witness’s prior knowledge of the facts in question

Fed Rule 612 - Similar

613 - Prior Statements of Witnesses

(a) - Examining witness concerning prior statement - When examining witness concerning a prior written or oral statement made by the witness the statement does not have to be shown nor its contents disclosed to the witness at that time, but it must be shown on request to opposing counsel & the witness.

(b) - Extrinsic evidence of prior inconsistent statement of witness - Extrinsic evidence of a witness’s prior inconsistent statement is inadmissible unless

1) the witness is afforded an opportunity to explain or deny the statement &

2) the opposite party is given a chance to interrogate the witness on the statement or

3) the interests of justice require.

Rule does not apply to 801(d)(2) admissions of a party-opponent.

> A witness may be impeached through the intro of evidence of a statement made by that witness prior to trial that is inconsistent w/ the testimony he has provided at trial.

> Extrinsic evidence = documentary or testimonial evidence introduced after the witness leaves the stand

> A prior statement of a witness may be proved by extrinsic evidence only if a foundation is elicited during the examination of the witness & if the witness denies making the statement or claims that he cannot remember the statement

> Info about the content of the statement, time, place, & persons to whom statement was made must be disclosed to the witness prior to intro of extrinsic evidence

> Witness must be given opportunity to explain or deny the inconsistent statement prior to the intro of extrinsic evidence

> A prior inconsistent statement relating to a “collateral matter” may not be proved by extrinsic evidence.

> Collateral matter = a fact which is irrelevant to the substantive issues of the case & which does not demonstrate a motivation of the witness to favor a particular party w/ his or her testimony

> Where a prior inconsistent statement is offered for the purpose of impeachment, the jury may only consider the prior statement as substantive evidence where the prior statement is admissible hearsay. Where statement is not a hearsay exception, ct may provide a limiting instruction upon request.

Fed Rule 613 - Substantially similar but does not require showing to witness upon request but only to opposing counsel.

614 - Calling & Interrogation of Witnesses by Court

(a) - Calling by court - Ct may call witnesses on its own or at the suggestion of a party, & all parties are entitled to cross-examine witnesses called by ct.

(b) - Interrogation by court - Ct may interrogate witnesses that are called by itself or by a party.

(c) - Objections - Objections to ct calling or interrogation of witnesses may be made at the time or at the next available opportunity when jury is not present.

> Permits trial judge to call & interrogate witnesses in civil & criminal cases

> Where trial judge elects to call a witness, all parties are allowed to cross-examine that witness using leading questions

> Trial judge must maintain status as an impartial arbiter while interrogating witnesses & must not convey to the jury a personal appraisal of the credibility of the witness or the merits of the case. This would be an abuse of discretion.

> Objection to ct calling or interrogation is timely if made at the earliest opportunity outside of the hearing of the jury

Fed Rule 614 - Identical

615 - Exclusion of Witnesses

- At request of a party or on ct’s own motion, ct may order witnesses excluded so they cannot hear testimony of other witnesses. Rule does not authorize exclusion of

(1) a party who is a natural person or

(2) an officer or employee of a party which is not a natural person designated as its representative by its atty or

(3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause (ex: expert witness).

> Ct has discretion to deny requests to separate witnesses

> A party may not be subject to an exclusion order

> Rule applies to persons at counsel table who may also be witnesses & it does not apply to persons who will not be witnesses (i.e. co-counsel, investigators, clerks, or secretaries)

Fed Rule 615 - Identical except that ct does not have discretion to exclude upon request, it must do so.

Opinions & Expert Testimony

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

(a) rationally based on the perception of the witness &

(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

> 2 circumstances must exist b/f an opinion from a lay witness is permitted

1) opinion must be rationally based upon 1st-hand perceptions of the witness &

2) opinion must facilitate an understanding of the witness’ testimony

> Opinion testimony is permitted in more complex circumstances where the opinion will facilitate a more complete understanding of the witness’ testimony (ex: identity of a person, elements of a person’s health, age, or appearance)

> Lay witness is permitted to give opinion testimony under controlled circumstances in relation to sanity or intoxication but a foundation is necessary to establish that the witness has had sufficient perceptions to form an opinion based upon those perceptions of the witness.

> The degree to which a witness may give an opinion is predicated in part upon whether & the extent to which the witness has sufficient life experiences to permit making a judgment as to the matter involved.

> Judge has considerable discretion in determining whether lay opinion testimony will be helpful to the jury. Judge can also exclude lay opinion testimony where the probative value is outweighed by prejudice.

Fed Rule 701 - Identical

702 - Testimony by Experts

- If ct determines that recognized 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 testify by opinion or otherwise.

> Expert testimony is OK if it is to assist & not just if it is necessary

> Rule 702 has 4 functions

1) expressly authorizes use of expert testimony

2) establishes standards to be applied in determining whether expert testimony should be admitted in a particular case

3) provides criteria to be applied in determining whether an individual qualifies as an expert

4) governs the form of expert testimony

> Expert may testify not b/c of 1st-hand knowledge but b/c of special expertise which will assist the trier of fact in interpreting the facts of the case

> Ct has substantial discretion in determining whether to permit expert testimony - standard of review is abuse of discretion

> Witness may qualify as expert by reason of knowledge, skill, experience, training or education

> Expert may provide relevant scientific, professional, technical or other principles as a basis for an application of those principles to the relevant issues to be considered by the trier of fact

> Qualification factors of expert for med mal due to Tort Reform Act

1) educational & professional training of the expert witness

2) area of specialization of the expert witness

3) length of time the expert witness has been engaged in the active clinical practice or instruction of medicine, osteopathic medicine or surgery or dentistry &

4) relevancy of the expert witness’s testimony

> Davis-Frye Requirement = Scientific theory or technique must be shown to have gained general acceptance in the relevant scientific community by disinterested members of that community

> Tests excluded for failing to meet Davis-Frye Requirement:

- Truth Serums

- Voice Prints

> Admissible tests:

- Bite-Mark Analysis

- Speed Radar

- Drug Analysis

- Metallurgical Analysis

- Comparison of Hair Samples

- Origin of Fire

- Fingerprint Comparison

- Comparison Identification

Fed Rule 702 - Similar except FRE does not expressly state that ct has the responsibility to determine the qualifications & appropriateness of expert testimony.

703 - Bases of Opinion Testimony by Experts

- Expert may base opinion or inference on facts or data perceived by him or made known to him at or b/f the hearing. Ct may require that the underlying facts or data essential to an opinion or inference be in evidence.

> 3 permissible sources of facts or data which expert may base his opinion or inference

1) 1st-hand knowledge

2) facts admitted in evidence at the proceeding (e.g. use of a hypothetical question or having expert witness present in ct to hear & observe the evidence admitted at trial) or

3) facts or data made known b/f the hearing (e.g. depositions, medical reports, etc)

> Ct has discretion to require an on-the-record disclosure of the underlying acts or data b/f an opinion based on the facts or data is given

Fed Rule 703 - FRE provides that if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions the facts or data need not be admissible in evidence.

704 - Opinion on Ultimate Issue

- Admissible opinion or inference testimony is not objectionable b/c it embraces an ultimate issue to be decided by the trier of fact.

> Testimony in the form of an opinion is not subject to exclusion solely b/c it addresses the ultimate issue in the case

> Applies both to lay & expert testimony

> B/c an expert opinion is vital when the unaided jury is unable to reach the ultimate opinion, an ultimate issue opinion from a properly qualified expert should not be excluded, except in the extreme case where the expert opinion is inherently misleading or unfairly prejudicial

Fed Rule 704 - Identical except FRE 704 adds a 2d section that an expert witness testifying w/ respect to the mental state or condition of the defendant in a criminal case may not draw an opinion on whether the defendant had a certain mental state at the time of the crime & this determination is an “ultimate issue” left to the trier of fact.

705 - Disclosure of Facts or Data Underlying Expert Opinion

- Expert may give opinion or inference testimony & give reasons for such w/out prior disclosure of the underlying facts or data unless the ct requires. Expert may be required to disclose the underlying facts or data on cross-exam.

> Used to eliminate the necessity of using a hypothetical question in direct exam. If ct requires prior disclosure, the hypothetical question is appropriate. Examiner may use the hypothetical question at his option.

Fed Rule 705 - Identical

706 - Court-Appointed Experts

(a) - Appointment - Ct may on own motion or of party enter order to show cause why expert witnesses should not be appointed & may request parties to submit nominations. Ct may appoint any expert witnesses agreed upon by the parties & may appoint expert witnesses of its own selection. Expert witness shall not be appointed by ct unless witness consents to act. An appointed expert must be informed of his duties by the ct in writing, w/ a copy filed w/ the clerk, or at a conference where all parties have opportunity to participate. Appointed expert must advise the parties of his findings; deposition may be taken by any party; & witness may be called to testify by ct or any party. Witness must be subject to cross-exam by each party, including calli