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Course: Evidence Rules (Michigan)
School: unknown
Year: 2003
Professor: unknown
Course Outline provided by Legalnut.com

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 Statutes concerning evidence that do not conflict w/ these or other SCt rules are effective unless superseded by rule or decision of SCt.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 calling party.

(b) - Compensation - Appointed experts are entitled to reasonable compensation in amount ct will allow. The fixed compensation is payable from funds which may be provided by law in criminal cases & civil actions & proceedings involving just compensation under 5th Amend. In other civil actions the compensation must be paid by the parties in such proportion & at such time as the ct directs & charged as other costs.

(c) - Disclosure of appointment - Ct has discretion to authorize disclosure to the jury of the fact that the ct appointed the expert witness.

(d) - Parties’ experts of own selection - Parties are not limited by this rule in calling their own expert witnesses.

 

> Expert must consent to appt

> Both parties are allowed to cross-examine appointed expert

 

Fed Rule 706 - Identical

 

 

707 - Use of Learned Treatises for Impeachment

- Statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the expert witness or by other expert testimony or by judicial notice, are admissible for impeachment purposes only & to the extent called to the attention of an expert witness during cross-exam. If admitted, the statements may be read into evidence but may not be received as exhibits.

 

> Learned treatise must be shown to be reliable in one of 3 ways:

1) testimony or admission of the expert being cross-examined

2) testimony of other experts

3) judicial notice

> Statements from learned treatises may only be used for impeachment & not as substantive evidence

> Learned treatise may only be read to the jury & not admitted into evidence

 

Fed Rule 707 - Similar except MRE permits use of learned treatises as an exception to hearsay only for impeachment & not as substantive evidence.

 

 


Hearsay

 

801 - Definitions

(a) - Statement - “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

 

> Sign language is an example of nonverbal conduct w/ assertive intent

 

(b) - Declarant - “Declarant” is a person who makes a statement.

 

> A dog barking is not hearsay b/c a dog cannot be a declarant since not a person; machine or animal statements cannot be hearsay

 

(c) - Hearsay - “Hearsay” is

1) a statement other than one made by the declarant while testifying at the trial

2) offered in evidence to prove the truth of the matter asserted

 

> Hearsay = an out-of-court statement

> Out-of-court statements are inadmissible if offered to show the truth of the matter

> An out-of-court statement that is relevant in a manner not dependent upon the truth of the statement is not hearsay. Statements which are not offered for their truth, & consequently are non-hearsay out-of-court statements, generally fall into certain patterns. These patterns include:

1) statements offered for the effect on a listener

2) verbal acts or operative facts

3) state of mind

4) prior inconsistent statements used for impeachment

 

(d) - Statements which are not hearsay - A statement is not hearsay if-

(1) Prior statement of witness - The declarant testifies at the proceeding & is subject to cross-exam concerning the statement, & the statement is

(A) inconsistent w/ the declarant’s testimony, & was given under oath subject to the penalty of perjury at a proceeding or deposition or

 

> Relates exclusively to prior inconsistent statements used in conjunction w/ the impeachment technique of self-contradiction

> Where the out-of-court statement is inconsistent w/ the witness’s trial testimony & was given under the penalty of perjury, the prior statement may be considered for its truth & as substantive evidence upon which the jury can base its verdict. Prior statement can be used for impeachment as well as substantive evidence.

 

(B) consistent w/ the declarant’s testimony & is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive or

 

> Applies to prior statements to rehabilitate a witness

> This exception is only triggered where there has been an inference of fabrication, fraud or improper motive of such a nature that a prior consistent statement would be probative to negate such an inference

 

(C) one of identification of a person made after perceiving the person; or

 

> Applies to the situation where a witness is present at trial & a prior out-of-court identification made by that witness is offered into evidence

> This exception is available where a witness testifies to earlier statements made by him or her as to the identity of a particular person

 

(2) Admission by party-opponent - The statement is offered against a party & is

(A) the party’s own statement (as individual or a representative), except statements made in connection w/ a guilty plea to a misdemeanor motor vehicle violation or an admission or responsibility for a civil infraction regarding motor vehicles or

(B) a statement of which the party has manifested an adoption or belief in its truth or

 

> An out-of-court statement may be attributable to a party through express or implied adoption

> Further foundational testimony must show that the party comprehended the statement & that he either expressly acknowledged the truth of the statement or remained silent where a reasonable person would have denied the statement

> Silence is inadmissible in criminal cases for constitutional reasons

 

(C) a statement by a person authorized by the party to make a statement concerning the subject or

 

> Vicarious admissions

> Foundational evidence is necessary to establish that the declarant was an agent of the party opponent & that the declarant had “speaking authority” to make declarations on behalf of the party opponent.

 

(D) a statement by the party’s agent concerning a matter w/in the scope of the agency & made during the existence of the relationship or

 

> To utilize this hearsay exception, the proponent of evidence must

1) establish a foundation that the declarant was an employee or agent of the party against whom the statement is offered &

2) the statement must merely “concern” a mater w/in the scope of the agency or employment (no speaking authority is needed) &

3) it must be established that the statement was made while the employment or the agency existed

 

(E) a statement by a coconspirator of a party during the course & in furtherance of the conspiracy on independent proof of the conspiracy

 

> Proponent must establish that there was a conspiracy, that both the declarant & the party against whom the statement is offered were members of the conspiracy, & that the statement, in fact, furthered or advanced the conspiracy

 

> Out-of-court statements that fail to satisfy accepted standards of reliability are excluded

> Hearsay is unreliable b/c it lacks the safeguards of cross-exam, oath, & observation of the demeanor of the witness

 

Fed Rule 801 - Substantially similar except MRE does not classify traffic offenses as party admissions. FRE 801(d)(2)(C) & (D) - the out-of-court statements can be used to show that declarant was an agent.

 

 

802 - Hearsay Rule

- Hearsay is inadmissible except where allowed by these rules.

 

> Once the evidence is established as hearsay, it is inadmissible unless the proponent of the declaration can bring it w/in an exception of the MRE (801(d), 803, 804) or a constitutional imperative.

 

Fed Rule 802 - Essentially similar

 

 

803 - Hearsay Exceptions; Availability of Declarant Immaterial

- The following are not excluded by the hearsay rule, even though declarant is available as a witness:

(1) Present sense impression - A statement describing the event or condition made while declarant was perceiving it or immediately after

 

> No necessity of a startling event

 

(2) Excited utterance - A statement relating to a startling event or condition made while declarant was under the stress caused by the event

(3) Then existing mental, emotional, or physical condition - A spontaneous statement of declarant’s then existing state of mind, emotion, sensation, or physical condition but not memory or belief to prove the fact remembered unless it concerns questions about the execution or other matters of declarant’s will

(4) Statements made for purposes of medical treatment or medical diagnosis in connection w/ treatment - Medical treatment or diagnosis statements made in connection w/ treatment & describing medical history or past or present symptoms or the character of the cause

 

> The out-of-court declarant must subjectively believe that the statement is being made in anticipation of treatment or diagnosis

 

(5) Recorded recollection - Record concerning a matter about which witness once had knowledge but now cannot remember & cannot testify fully & accurately, shown to have been made by witness when matter was fresh & correctly reflected witness’s knowledge. Record may be read into evidence if admitted but cannot be an exhibit unless offered by adverse party.

 

 

> Only appropriate where a document fails to revive the recollection of a witness

 

(6) Records of regularly conducted activity - Record in any form of acts made at or near that time by a person w/ knowledge if kept in the course of regularly conducted business & if it was the regular practice of that business activity to make the record as shown by testimony of the custodian, unless the source of info or preparation indicate lack of trustworthiness.

 

> “Business record exception”

> Data compilations are included = any info stored on a computer in any form

 

(7) Absence of entry in records kept in accordance w/ the provisions of paragraph (6) - Evidence not included in business records to prove the nonoccurrence or nonexistence of the matter if that matter would have been recorded, unless sources of info indicate lack of trustworthiness

(8) Public records & reports - Records of public offices setting forth

(A) activities of the office or

(B) matters observed pursuant to duty imposed by law where there was duty to report, excluding in criminal cases matters observed by law enforcement

(9) Records of vital statistics - Records of births, deaths, or marriages if made to a public office

(10) Absence of public record or entry - To prove absence of record or nonoccurrence or nonexistence of a matter of which record was regularly made by public office, evidence in form of a Rule 902 certification or testimony, that diligent search failed to disclose the record

(11) Records of religious organizations - Records of births, marriages, divorce, death, legitimacy, ancestry, relationship or family history contained in record of religious organization

(12) Marriage, baptismal, & similar certificates - Statements of fact contained in certificate that ceremony was performed by clergy or public official authorized to do so & issued at the time or w/in reasonable time after

(13) Family records - Statements of fact of personal or family history contained in family Bibles, genealogies, crypts, tombstones, etc

(14) Records of documents affecting an interest in property - Record of document purporting to establish or affect a property interest, as proof of the content of the original recorded document & delivery & execution if record is in public office

(15) Statements in documents affecting an interest in property - Statement in document purporting to affect a property interest if the matter was relevant to the purpose of the document, unless further dealings w/ the property have been inconsistent w/ the truth of the statement of the document

(16) Statements in ancient documents - Statements in documents existing for 20 yrs or more & authenticated

 

> Authenticated by 901(b)(8)

> Applies only to writings

 

(17) Market reports, commercial publications - Market quotes, directories, or published compilations generally used & relied upon by public or persons in particular occupations

 

> Phonebooks, newspaper stock quotes, etc

 

(18) Deposition testimony of an expert - Testimony given as a witness in a deposition in the same proceeding if ct finds the deponent is an expert witness & is not a party to the proceeding

 

> Don’t have to show unavailability of witness

 

(19) Reputation concerning personal or family history - Reputation among family or associates or in community regarding person’s birth, adoption, marriage, divorce, death, legitimacy, familial relationship, ancestry, or personal or family history

(20) Reputation concerning boundaries or general history - Reputation in community arising b/f the controversy as to boundaries & reputation as to general history important to the community where lands are located

(21) Reputation as to character - Reputation of character among associates or in the community

(22) Judgment of previous conviction - Evidence of final judgment of guilty of crime punishable by death or over 1 yr prison, to prove any fact essential to sustain the judgment, but not including judgments against other persons when offered by state for reasons other than impeachment. Pendency of an appeal may be shown but does not affect admissibility

(23) Judgment as to personal, family, or general history, or boundaries - Judgments as proof of these matters when essential to the judgment if this info would be provable by reputation

 

> Elements of the exception:

1) the judgment pertains to matters of personal, family, or general history or boundaries

2) the matter was essential to the judgment

3) res judicata or collateral estoppel does not take the matter out of the realm of proof &

4) the matter is one which could also be proved by the reputation exceptions of 803(19) & 803(20)

 

(24) Other exceptions - Statement not specifically covered by exceptions but has equivalent circumstantial guarantees of trustworthiness, if ct determines that

(A) statement is offered as evidence of a material fact

(B) statement is more probative than any other evidence that proponent can procure through reasonable efforts &

(C) the general purposes of these rules & interests of justice will best be served by admission of the statement.

Statement may not be admitted under this exception unless proponent makes known to adverse party in advance of proceeding to provide adverse party w/ fair opportunity to prepare to meet it, & name & address of declarant.

 

> “Catchall” provision

> 5 requirements:

1) the statement must posses “circumstantial guarantees of trustworthiness” which are “equivalent” to those supporting the specific hearsay exceptions

2) the evidence must be offered as evidence of a material fact

3) the hearsay statement must be “more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts”

4) the proponent must show that its admission would serve “the general purposes of these rules & the interests of justice”

5) the statement is not admissible unless the proponent notifies the opponent of his intention to offer it “sufficiently in advance of the trial or hearing to provide the adverse party w/ a fair opportunity to prepare to meet it”

 

Fed Rule 803 - Similar except catchall is now FRE 807

 

 

803A - Hearsay Exceptions; Child’s Statement About Sexual Act

- A statement describing an incident that included a sexual act performed w/ or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:

(1) declarant was under age 10 when statement was made;

(2) statement is shown to have been spontaneous & w/out indication of manufacture;

(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; &

 

> Excusable delay must be shown if statement is not immediate

 

(4) statement is introduced through the testimony of someone other than the declarant.

If declarant mad more than one corroborative statement about the incident, only the 1st is admissible under this rule.

A statement may not be admitted under this rule unless the proponent of the statement makes known to the adverse party the intent to offer the statement, & the particulars of the statement, sufficiently in advance of the trial or hearing to provide the adverse party w/ a fair opportunity to prepare to meet the statement.

Rule applies in criminal & delinquency proceedings only.

 

> the “Tender Years Rule” - permits hearsay, under certain circumstances, when contained in a statement by a child to another witness concerning a sexual act performed w/ or on the child

 

Fed Rules - No counterpart

 

 

804 - Hearsay Exceptions; Declarant Unavailable

(a) - Definition of unavailability - “Unavailability as a witness” includes situations in which the declarant -

(1) is exempted by court ruling b/c of privilege from testifying concerning the subject matter of the declarant’s statement; or

 

> Not just an assertion of privilege but also a ruling by the ct that privilege exists to excuse the testimony

 

(2) persists in refusing to testify concerning the subject matter of declarant’s statement despite a ct order to do so; or

(3) has a lack of memory of the subject matter of the declarant’s statement; or

(4) is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing & the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means, & in criminal case due diligence is shown.

Declarant is not unavailable as a witness if 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.

(b) Hearsay exceptions - Following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony - Testimony given as a witness at another hearing of the same or a different 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 & similar motive to develop the testimony by direct, cross, or redirect examination.

 

> Testimony must have been under oath

> 2 tests must be satisfied

1) “Opportunity test” - the party against whom the hearsay is offered must have had an opportunity to examine the declarant at the former hearing

2) “Similar motive test” - party against whom the hearsay is offered must have had a motive at the former proceeding in examining the declarant that is similar to the motive this party would have in examining the declarant if the declarant were now available at the instant trial.

 

 

(2) Statement under belief of impending death - In prosecution for homicide or a civil 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 impending death.

 

> “Dying Declaration” Exception

 

(3) Statement against interest - A statement which was at the time it was made so far contrary to the declarant’s financial or proprietary 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 unless believing it to be true. A statement tending to expose the declarant to criminal liability & offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history

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

(B) A statement concerning the foregoing matters, & death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated w/ the other’s family as to be likely to have accurate info concerning the matter.

(5) Deposition testimony - Testimony given as a witness in a deposition in the course of the same or another proceeding, if the party against whom the testimony is now offered, or , in a civil action, a predecessor in interest, had an opportunity & similar motive to develop the testimony by direct, cross, or redirect.

For this section, “unavailability” also includes:

(A) Where the witness is over 100 miles from the place of the trial or out of US, unless the absence of the witness was procured by the party offering the deposition; or

(B) On motion & notice, such exceptional circumstances exist as to make it desirable, in interest of justice, & w/ due regard to the importance of presenting the testimony of witnesses orally in open ct, to allow the deposition to be used.

(6) Other exceptions - A statement not specifically covered by a previous exception but having equivalent circumstantial guarantees of trustworthiness, if ct determines that

(A) statement is offered as evidence of a material fact,

(B) statement is more probative on that pt than any other evidence the proponent can procure through reasonable efforts, &

(C) general purposes of these rules & interest of justice will best be served by admission of the statement into evidence.

Statement may not be admitted under this exception unless proponent makes known to adverse party, sufficiently in advance of trial to provide adverse party w/ fair opportunity to meet it, the proponent’s intention to offer statement & particulars of the statement.

 

> A “catch-all” provision

 

> Rule establishes a preference for in-ct testimony over hearsay & certain forms of hearsay over a total loss of evidence

 

Fed Rule 804 - MRE 804(b)(5) is in FRE 807. FRE 804(b)(6) added so a party cannot object to admission of statements made by an individual declarant whose unavailability for trial resulted from some deliberate wrongdoing engaged or acquiesced in by that party.

 

 

805 - Hearsay Within Hearsay

- Hearsay included w/in hearsay is not excluded under the hearsay rule if each part of the combined statements conforms w/ an exception to the hearsay rule.

 

> Multiple hearsay is admissible where each element or level of hearsay conforms to an exception to the hearsay rule.

> A problem w/ this rule is that the reliability of the evidence is diminished by each additional layer of hearsay.

 

Fed Rule 805 - Identical

 

 

806 - Attacking & Supporting Credibility of Declarant

- When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, & if attacked may be supported, by any admissible impeachment evidence as if declarant had testified as a witness. Declarant does not have to be given an opportunity to deny or explain evidence of a statement or conduct by the declarant at any time that is inconsistent w/ the declarant’s hearsay statement. Where a party calls as a witness the declarant whose hearsay has been admitted against him, that party is entitled to examine the declarant on the hearsay as if under cross-exam.

 

Fed Rule 806 - Identical

 


Authentication & Identification

 

901 - Requirement of Authentication or Identification

(a) - 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.

 

> The function of authentication is to establish a connection b/tw the evidence offered & the relevant facts of the case (connective relevance)

> 2 points:

1) the foundational evidence need not be absolutely conclusive as to whether the evidence in question connects to the facts of the case

2) once the judge determines that the threshold test of authentication or ID has been met & has submitted the evidence to jury, the jury need not accept the foundational evidence as truthful

 

(b) - Illustrations - By illustration only & not limitation, the following are examples of authentication or identification conforming w/ the requirements of this rule:

 

> These illustrations are merely suggestive of the means by which the threshold standard of 901(a) may be satisfied.

 

(1) - Testimony of witness w/ knowledge - Testimony that a matter is what it is claimed to be.

 

> the most common illustration used

> Can be used to authenticate a photograph

 

(2) - Nonexpert opinion on handwriting - Nonexpert opinion as to the genuineness of handwriting, based upon familiarity no acquired outside of the litigation.

(3) - Comparison by trier or expert witness - Comparison by trier of fact or expert witnesses w/ specimens which have been authenticated.

(4) - Distinctive characteristics & the like - Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction w/ circumstances.

 

> “the Reply Doctrine Technique” - the unique info revealed in the letter indicates that the author is replying to prior correspondence

> Custody, considered in conjunction w/ appearance, contents, & substance may be used to authenticate a business record

 

(5) - Voice identification - ID of a voice, whether firsthand or through mechanical or electronic recording, by opinion based upon hearing the voice at any time under circumstances connecting it w/ the alleged speaker.

(6) - Telephone conversations - Phone conversations, by evidence that a call was made to the # assigned at the time by the phone company to a particular person or business, if

 

> Pertains to outgoing calls

 

(A) for a person, circumstances (including self-ID) show the person answering is the one called, or

(B) for a business, the call was made to a place of business & the conversation related to business reasonably transacted over the phone.

(7) - Public records or reports - Evidence that a writing authorized by law to be recorded or filed & 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.

(8) - Ancient documents or data compilation - Evidence that a document or data compilation, in any form,

(A) is in such condition as to create no suspicion concerning its authenticity,

(B) was in a place where it, if authentic, would likely be, &

(C) has been in existence 20 yrs or more at the time it is offered.

(9) - Process or system - Evidence describing a process or system used to produce a result & showing that the process or system produces an accurate result.

(10) - Methods provided by statute or rule - Any method of authentication or identification provided by the SCt of MI or MI statute.

 

Fed Rule 901 - Identical

 

 

902 - Self-Authentication

- Extrinsic evidence of authenticity as a condition precedent to admissibility is not required w/ the following:

(1) Domestic public documents under seal - A document bearing seal purporting to be that of the US or any state or territory, or of a political subdivision, dept, officer, or agency thereof, & a signature purporting to be an attestation or execution

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

(3) 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 & accompanied by a final certification as to the genuineness of the signature & official position

(A) of the executing or attesting person, or

(B) of any foreign official whose certificate of genuineness of signature & official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature & official position relating to the execution or attestation.

A final certification may be made by a secretary of embassy or legation, consul general, consul, etc, or a diplomatic official assigned to US. If reasonable opportunity has been given to all parties to investigate the authenticity & accuracy of official documents, the ct may, for good cause, order that they be treated as presumptively authentic w/out final certification or permit them to be evidenced by an attested summary w/ or w/out final certification.

 

(4) Certified copies of public records - A copy of an official record or report or entry therein, that is authorized by law to be filed in a public office, certified as correct by the custodian authorized to make the certification.

(5) Official publications - Books, pamphlets, or other publications purporting to be issued by public authority

(6) Newspapers & periodicals - Printed materials purporting to be newspapers or periodicals

(7) Trade inscriptions & the like - Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business & indicating ownership, control, or origin

(8) Acknowledged documents - Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other authorized official

(9) Commercial paper & related documents - Commercial paper, signatures thereon, & documents related thereto to the extent provided by general commercial law.

(10) Presumptions created by law - Any signature, document, or other matter declared by any law of US or MI to be presumptively or prima facie genuine or authentic.

 

Fed Rule 902 - Parallel

 

 

903 - Subscribing Witness’s Testimony Unnecessary

- Testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

 

Fed Rule 903 - Identical

 


Contents of Writings, Recordings, & Photographs

 

1001 - Contents of Writings, Recordings, & Photographs; Definitions

- Definitions

(1) Writings & recordings - Consist of letters, words, or numbers, or their equivalent, set down by handwriting, typing, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

 

> Includes data produced by a computer or other machine

 

(2) Photographs - include still photographs, X-ray films, video tapes, & motion pictures.

 

> Offering a photograph at trial will only involve the best evidence rule where the contents of the photograph itself are at issue. Proof of the appearance of the object of the photograph is not subject to the best evidence rule.

 

(3) 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.

(4) Duplicate - A counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements & miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques, which accurately reproduce the original.

 

Fed Rule 1001 - Identical

 

 

1002 - Requirement of Original

- To prove the content of a writing, recording, or photograph, the original is required, except as otherwise provided by these rules or statute.

 

> The “Best Evidence Rule” - the original is preferentially required to prove the contents of a writing, recording, or photograph & that secondary evidence may be admitted if the original is unavailable through no fault of the proponent of the evidence.

 

> Only applies where 2 conditions occur:

1) the evidence involves a writing, recording or photograph; &

2) the object of proof is the contents of that writing, recording or photograph

 

Fed Rule 1002 - Parallel

 

 

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.

 

> Duplicate may be used interchangeably w/ an original, unless the opponent of the evidence challenges the use of the duplicate on one of the grounds specified in the Rule. The duplicate is merely used in lieu of the original & will operate as the original unless appropriately challenged under the rule.

 

Fed Rule 1003 - Identical

 

 

1004 - Admissibility of Other Evidence of Contents

- Original is not required & 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

(2) Original not obtainable - No original can be obtained by any available judicial process or procedure; or

 

> Applies where the original is outside of the court’s jurisdiction or where a 3d party w/in the jurisdiction refuses to produce a document & where the object in question cannot be readily produced in the court (ex: writing on a tombstone)

 

(3) 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, & that party does not produce the original at the hearing; or

 

> Secondary evidence or the original’s contents will be admissible if offered by the opponent of the party in possession of the original if an adverse party:

1) possesses or controls an original;

2) has received notice that the contents of the original will be an issue at the hearing; &

3) fails to produce the original

 

(4) Collateral matters - The writing, recording, or photograph is not closely related to a controlling issue.

 

> If one of the exceptions applies, any form of secondary evidence may be used to prove the contents of the original

 

Fed Rule 1004 - Identical

 

 

1005 - Public Records

- The content of an official record or document authorized to be recorded or filed & actually recorded or filed may be proved by copy, certified as correct or testified to be correct by a witness who has compared it w/ the original. If a copy which complies w/ the foregoing cannot be obtained by reasonable diligence, then other evidence of the contents may be given.

 

> Preempts Rule 1003’s general provision that duplicates are admissible as originals b/c authenticated copies of official records are preferred over any other secondary evidence to prove the contents of a public record

> Supersedes Rule 1004 b/c it creates a mandatory preference for the use of certified copies over other types of secondary evidence & certified copy can be used w/out any showing that original is lost, destroyed, unobtainable, or pertinent to a collateral matter.

> Examples of application of this rule:

1) Birth & death certificates, marriage records

2) Recorded deeds

3) Police records

4) Workers’ compensation files

5) Rolls of SCt, Medical Board or other licensing agencies

6) Records of the Treasurer’s & Auditor’s office to show amount of taxes or assessments

7) US Veterans’ Bureau records

8) Statistical data

9) Court files

10) Reports or returns required by law to be filed w/ a govt agency

 

Fed Rule 1005 - Identical

 

 

1006 - Summaries

- The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in ct 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 & place. Ct may order that they be produced in ct.

 

> Exception to best evidence rule that where writings are voluminous, summaries, abstracts, or schedules may be admitted into evidence

> 3 conditions must be satisfied for this exception:

1) writings, recordings, or photographs must be voluminous

2) a proper foundation must be established for the introduction of the summary

3) the originals or duplicates must be made available to all litigants for examination or copying at any reasonable time & place

> Summaries may not include information not contained in or computed from the originals

 

Fed Rule 1006 - Identical

 

 

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 admission, w/out accounting for the nonproduction of the original.

 

> Shortcuts the best evidence rule by allowing an opponent’s admission either in writing or by testimony or deposition

 

Fed Rule 1007 - Identical

 

1008 - Functions of Court & Jury

- When the admissibility of other evidence of contents of writings, recordings, or photographs depends upon fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance w/ Rule 104. However, when an issue is raised

(a) whether the asserted writing ever existed, or

(b) whether another writing, recording, or photograph produced at the trial is the original, or

(c) whether other evidence of contents correctly reflects the contents,

the issue is for the tier of fact to determine as in the case of other issues of fact.

 

> The trier of fact is allowed to disregard evidence in which the conditional relevancy question is not adequately established

 

Fed Rule 1008 - Identical

 

 

Miscellaneous Rules

 

1101 - Applicability

(a) Rules applicable - These rules apply to all actions & proceedings in cts of MI except as provided by (b)

(b) Rules inapplicable - Rules other than those w/ respect to privileges do not apply in the following situations & proceedings

(1) Preliminary questions of fact - The determination of question of fact preliminary to admissibility of evidence when the issue is to be determined by the ct under Rule 104(a)

(2) Grand jury - Proceedings b/f grand juries

 

(3) Miscellaneous proceedings - Proceedings for extradition or rendition; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, & search warrants; & proceedings w/ respect to release on bail or otherwise

(4) Contempt proceedings - Contempt proceedings in which the ct may act summarily

(5) Small claims - small claims division of the district ct

(6) In camera custody hearings - In camera proceedings in child custody matters to determine a child’s custodial preference

(7) Juvenile court proceedings - Proceedings in juvenile court wherever the MRE do not apply.

 

Fed Rule 1101 - Parallel

 

 

1102 - Title

- Michigan Rules of Evidence, cited as MRE.

Notes drafted by the chair & reporter of the committee which drafted the proposed rules of evidence for the benefit of the bench & bar & are not authoritative constructions by the ct.

 

Fed Rule 1102 – Parallel

 

 

 

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