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Summary of Evidence Rules [KangarooKort.com]
DIR By: kangaroo
Date: January 25, 2011, 4:46 pm
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KangarooKort.com
Summary of Evidence Rules
Scope & Applicability
Rule 101
SCOPE
These rules govern proceedings in the courts of the United
States and before the United States bankruptcy judges and United
States magistrate judges, to the extent and with the exceptions
stated in Rule 1101.
2) Applies ONLY to federal courts
1.) Remember: The FRE is ONLY a “model.” Although many states
follow these rules, others have excluded or added rules as they
have deemed appropriate.
Rule 1101
(a)
APPLICABILITY OF RULES
(a) Courts and judges. These rules apply to the U.S. district
courts, the District Court of Guam, the District Court of the
Virgin Islands, the District Court for the N. Mariana Islands,
the U.S. courts of appeals, the U.S. Claims Court, and to U.S.
bankruptcy judges and U.S. magistrate judges, in the actions,
cases, and proceedings and to the extend hereinafter set forth.
The terms “judge” and “court” in these rules shall include U.S.
bankruptcy judges and the U.S. magistrate judges.
(b)
(b) Proceedings generally. These rules apply generally to civil
actions and proceedings, including admiralty and maritime cases,
to criminal cases and proceedings, to contempt proceedings
(except those in which the court may act summarily), and to
proceedings and cases under title 11, U.S.C.
proceedings
2) Criminal cases & proceedings
3) Proceedings and cases under title 11
(c)
(c) Rule of privilege. This rule w/ respect to privileges
applies at all stages of all actions, cases, and proceedings.
1) “Privilege” – Confidential & should be Inadmissible
a) Civil & Criminal
(d)
(d) Rules inapplicable. The rules (other than w/ respect to
privileges) do not apply in the following situations:
rules do NOT apply in these situations:
(1) Preliminary questions of fact. The determination of
questions of fact preliminary to admissibility of evidence when
the issue is to be determined by the court under rule 104.
Prelim Q’s of fact
(2) Grand jury. Proceedings before grand juries.
Jury
(3) Miscellaneous proceedings. Proceedings for extradition
or rendition; prelim exams in criminal cases; sentencing, or
granting or revoking probation; issuance of warrants for arrest,
criminal summonses, and search warrants; and proceedings w/
respect to release on bail or otherwise.
rendition; prelim exams; sentencing, granting, revoking
probation; issuance of warrants; criminal summonses; search
warrants; release on bail
(e)
(e) Rules applicable in part. In the following proceedings
these rules apply to the extent that matters of evidence are not
provided for in the statutes which govern procedure therein or
in other rules prescribed by the U.S.S.C. pursuant to statutory
authority: the trial of . . . (rule of criminal procedure may
apply instead or as well)
1) Evidence rules may apply in total, in part, or NOT at all
1.) The FRE do NOT Apply:
a.) Preliminary Q’s of Fact (See Rule 104)
b.) Grand Jury
Purpose & Construction
Rule 102
PURPOSE & CONSTRUCTION
These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense and delay,
and promotion of growth and development of the law of evidence
to the end that the truth may be ascertained and proceedings
justly determined.
1) This is a “Rule of Interpretation/Construction”
1.) Objectives:
a.) Fairness in Administration
b.) Elimination of Unjustifiable Expense & Delay
c.) Promotion of Growth & Development of the Law of
Evidence to Justly Determine Truth
Stages of a Trial & Types of Evidence
Л's “Direct” Case → ∆’s
“Direct” Case → Л's “Rebuttal” Case
→ ∆’s “Surrebuttal” Case
This expresses ALL the
Л introduces into evidence at trial
This expresses ALL
∆ introduces into evidence
at trial
Л refutes ∆’s “direct” case
(NOT required)
∆ refutes Л’s “rebuttal” case
(sometimes allowed)
Л presents A, B, C, & D
∆ presents evidence on A, B, C, D, E, and F
Л can present evidence
on E & F
∆ can present evidence
on E & F
1.) Types of Evidence:
a.) Testimony
1.) Direct Examination → Cross-Examination
→ Redirect → Re-Cross
b.) Exhibits
1.) Real Evidence
a.) Tangible items actually involved in the
litigated event
1.) e.g. The “gun” used to rob the bank and
the getaway “car.”
2.) Demonstrative Evidence
b.) Tangible items that were NOT involved in the litigated
event, but used to help the jury understand the testimony or
illustrate the testimony
1.) e.g. “Diagram” of a building; “items” used for comparison
Limited Admissibility
Rule 105
LIMITED ADMISSIBILITY
When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.
Evidence may be limited (1) as to one party, and (2) for
different purposes
1.) Limiting the Use of Evidence:
a.) Evidence can be limited to use by one party AND
evidence can be limited to use for one purpose
Making the Record
Rule 103
(a)
RULINGS ON EVIDENCE
(a) Effect on erroneous ruling. Error may not be predicated
upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, AND
must be based on a SUBSTANTIAL RIGHT of a party . . . AND
(1) Objection. In case of ruling is one admitting
evidence, a timely objection or motion to strike appears of
record, stating the specific ground of objection, if the
specific ground was not apparent from the context; OR
(1) Timely Objection stating a specific ground
(a) Motion to strike if necessary
(2) Offer of proof. In case the ruling is one excluding
evidence, the substance of the evidence was made known to the
court by offer or was apparent from the context within which
questions were asked. Once the court makes a definitive ruling
on the record admitting or excluding evidence, either at or
before trial, a party need not renew an objection or offer of
proof to preserve a claim of error on appeal.
(2) Offer of Proof makes “substance” of evidence known to the
court
(a) “why” counsel sought to admit evidence
(b)
(b) Record of offer and ruling. The court may add any other or
further statement which shows the character of the evidence, the
form in which it was offered, the objection made, and the ruling
thereon. It may direct the making of an offer in question and
answer form.
might have been offered
(c)
(c) Hearing of jury. In jury cases, proceedings shall be
conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury by any
means, such as making statements and offers of proof or asking
questions in the hearing of the jury.
evidence from reaching the jury (≠ want it to consider
impermissible evidence)
(d)
(d) Plain error. Nothing in this rule precludes taking notice
of plain errors affecting substantial rights although they were
not brought to the attention of the court. (“catch all”)
is used when an objection was NOT made but should’ve been made.
1.) Appealing an Erroneous Ruling:
a.) Substantial Right must be affect; AND
1.) Harmless error is NOT enough
b.) Objection or Offer of Proof must be made
1.) The “specific ground for objection” must be stated OR the
“reason the evidence was offered” must be demonstrated and
appear on the record
a.) ALL the “grounds” OR “substance” should be stated
Relevance
Rule 401
DEFINITION OF “RELEVANT EVIDENCE”
“Relevant evidence” means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action ↑ or ↓ probable than it
would be without the evidence.
consequence to the action) and Logical Relevance (inductive and
deductive reasoning)
Rule 402
RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE
INADMISSIBLE
Class Notes:
All relevant evidence is admissible, except as otherwise
provided by the Constitution of the U.S., by Act of Congress, by
these rules, or by other rules prescribed by the U.S.S.C.
pursuant to statutory authority. Evidence which is not relevant
is not admissible.
≠ Admissible
Exceptions include other FRE, U.S. Constitution, other Acts of
Congress
1.) Definition:
a.) “Relevant Evidence” – moves the needles ↑ or ↓
regarding a fact that is of consequence to the determination of
the action
1.) Relevant Evidence = Materiality + Logic
a.) Material – the fact is of consequence to the action; this
will depend upon controlling substantive law
1.) EXAM: Look for . . .
a.) SL action where the ∆ is claiming
a “defense” (e.g. W/C action)
1.) Although it may seem as though a fact relating to a defense
would be “relevant” to the C of A, it actually is NOT relevant
because it is NOT material to the determination of the C of A
a.) Remember, in SL, the ∆ is liable w/o fault, so facts
relating to a defense are “irrelevant”
b.) Remember SUBSTANTIVE LAW of each state applies
1.) e.g. CoA: Breach of K
a.) Offeror says, “I know I said the words, but I was only
kidding.” (subjective intent)
b.) If a state follow the “objective theory of K”, this info was
be inadmissible because of the substantive law
1.) The subjective intent of the offeror is NOT material to the
C of A
c.) Evidence of “consciousness of guilt”
is usually admissible
1.) e.g. Refusal to take DUI test
2.) A fact may be “material” to the dispute just because it
helps the jury in understanding the issue(s)
b.) Logical – consider how far attenuated the connection is and
the # of inferences required
1.) The probability of one fact must flow from another
(inductive reasoning)
a.) Use common sense, precedent, etc. to connect the
inferences
b.) The ↑ inferences required, the ↓ the
“probative force”
c.) The ↑ attenuated each link, the ↓
the “probative force”
2.) Some facts will follow another fact w/ certainty
(deductive reasoning)
c.) Direct v. Circumstantial Proof
1.) Direct – need only 1 inference to the proposition
which it is offered
a.) e.g. W: “I saw ∆ stab V.”
1.) Only “inference” required is that W is
telling the truth
2.) Circumstantial – need ↑ than 1 inference to
reach to proposition
a.) e.g. W: “I saw ∆ running w/ a blood knife at the time
of the murder.”
1.) Inference required is that W is telling the truth;
AND
2.) Inference required that ∆ was at the scene of
the crime.
2.) Rules:
a.) Relevant = Inadmissible; Irrelevant ≠
Admissible
1.) A piece of evidence = “brick” NOT a “wall”
a.) Although one brick may NOT be able to withstand a DV, the
cumulative effect of a few bricks taken together may be very
strong
Conditional Relevance & Preliminary Questions
Rule 104
(b)
(b) Relevancy conditioned on fact. When the relevancy of
evidence depends upon the fulfillment of a condition of fact,
the court shall admit it upon, OR subject to, the introduction
of evidence sufficient to support a finding of the fulfillment
of the condition.
(evidence) is NOT probative/relevant UNTIL the 1st fact
(evidence) is proven
1.) Definition:
a.) Conditional Relevancy – when a piece of evidence is
NOT relevant until another fact is 1st proven
1.) When the “relevance” of a piece of evidence will
depend upon some other fact being true
a.) e.g. Piece of paper w/ a signature on the bottom is NOT
relevant unless it was written by a particular person
1.) Authentication of the signature on the paper is require
before the paper is relevant
a.) This is because the paper is NOT relevant unless written by
a particular person
b.) e.g. Tire rim found 185 feet from the scene of a car
accident; location would be used to show fault fell on a
particular party
1.) The rim is ONLY relevant if it came from one of the vehicles
in the accident
a.) The rim is NOT relevant if it did NOT come from
either car
2.) Admissibility
a.) The judge = “gatekeeper” who determines whether the
evidence is admissible (merely “screens”)
1.) There only needs to be sufficient evidence for a
R juror to find the fulfillment of condition
a.) If there is conflicting evidence, the judge
should give it to the jury to determine
1.) e.g. Shorts Case → Was it “blood”
OR “paint”?
Rule 104
(a)
PRELIMINARY QUESTIONS
(a) Questions of admissibility generally. Preliminary questions
concerning the qualifications of a person to be a witness, the
existence of a privilege, OR the admissibility of evidence shall
be determined by the court, subject to the provisions of
subdivision (b). In making its determination it is NOT bound by
the rules of evidence except those w/ respect to privileges.
(DISCRETION)
1.) Qualifications of a W
2.) Existence of Privilege
a.) Bound by FRE
3.) Admissibility of Evidence
(b)
(b) Relevancy conditioned on fact.
(c)
(c) Hearing of jury. Hearings on the admissibility of
confessions shall in ALL cases be conducted out of the hearing
of the jury. Hearings on other preliminary matters shall be so
conducted when the interest of justice requires, OR when an
accused is a witness and so requests.
impermissible evidence from reaching the jury
(d)
(d) Testimony by accused. The accused does NOT by testifying
upon a preliminary matter, become subject to cross-examination
as to other issues in the case.
“cross” on prelim matters when he testified, unless he raises
the matter
(e)
(e) Weight and credibility. This rule does NOT limit the right
of a party to introduce before the jury evidence relevant to
weight or credibility.
Counterweights of Relevance
Rule 403
EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE,
CONFUSION, OR WASTE OF TIME
Class Notes:
Although relevant, evidence MAY be EXCLUDED IF its probative
value is “substantially” outweighed by the (1) danger of unfair
prejudice, (2) confusion of the issues, OR (3) misleading the
jury, OR by considerations of (4) undue delay, (5) waste of
time, OR (6) needless presentation of cumulative evidence.
(“Balancing Test”)
likely to be reversed unless there was an “abuse of discretion”;
this is NOT an even balance
1.) Rule: May EXCLUDE “relevant” evidence IF “probative value”
is SUBSTANTIALLY OUTWEIGHED by:
a.) Danger of Unfair Prejudice
1.) e.g. ↑ grotesque and graphic photographs
of a scene of a crime; overly-enlarged size of photo
a.) The claim is that the decision will be made
on an improper basis (i.e. emotions)
b.) Confusion of Issues
c.) Misleading Jury
d.) Undue Delay
e.) Waste of Time
f.) Needless Presentation of Cumulative Evidence
• The judge has a lot of discretion is making this
determination.
2.) Rule: As long as the evidence does NOT fail Rule 403, a
party can prove its case however it wants (Old Chief)
a.) A party can NOT stipulate its way out of the full
evidentiary force of the case
Problems in Circumstantial Proof
1.) Circumstantial Evidence of Fault – These all tend to
show “consciousness of guilt”
a.) Flight
1.) Non-Flight is NOT admissible to show
“consciousness of innocence”
b.) Concealment of Identity
c.) Changing Appearance
d.) Attempting to Bribe (Police Officer or Witness)
e.) Attempting to Kill a Witness
f.) Resisting Arrest
g.) Giving a False Alibi (False Exculpatory Statement)
h.) Destruction of Evidence (“Spoliation”)
i.) Procuring the Absence of a W
* Whether these matters tend to show “consciousness of
guilt” is a Q for the jury
2.) Demographic Characteristics – These should NOT be
allowed to show a person is ↑ or ↓ likely be
liable/guilty
a.) e.g. Charge: Shoplifting
1.) The prosecution can NOT show the ∆ was
poor & unemployed (in trying to prove ∆s guilt)
a.) Excluded under Rule 403
3.) Rule: As long as the needle moves a least a little bit
through each fact, then “piling an inference on an inference” is
permitted
a.) e.g. Evidence that large amounts of money are missing from a
bank teller´s drawer may be admissible on the issue of whether
the person committed suicide
1.) When the inferences are too far attenuated, the
needle will stop moving
Statistical Proof
1.) Scientific & Mathematical Proof
a.) Risks
1.) The trier will exaggerate the reliability of the scientific
or mathematical proof
2.) Jury may misunderstand the meaning of the figures and simply
use them as evidence of the probability of guilty
3.) Jurors may give ↓ weight to other evidence, once they
are presented w/ a mathematical expression which seems to
dramatically ↑ the likelihood of guilt
4.) Jury may overlook the soft variables in the case
b.) “Product Rule of Probability Theory” (applied to
evidence of identification)
1.) The product rule involves assessing the separate
probability of the occurrence of each of a # of independent
events and, then, because these events allegedly occurred,
multiplying these individual probabilities
a.) The “product” represents the probability of “joint”
occurrence of these separate events or characteristics
b.) Requirements:
1.) Foundation for the Probabilities
a.) The probability must be reliable to get an
accurate result
2.) Independent Variable (“Mutually Exclusive”)
2.) e.g. Charge: Assault
a.) If a W says the perpetrator was a white, bald-headed,
one-armed man, the mathematical odds of all these factors being
true is fairly low ↓
1.) If a man in the area that met these characteristics was
arrested by the police, it would seem very likely that this man
= perpetrator
a.) The only problem is that if the W was incorrect in his
perception, then the result may be incorrect
c.) Rule: It is NOT enough that mathematically the chances
somewhat favor a proposition to be proved
1.) A proposition is proved by a preponderance of evidence if
it is made to appear ↑ likely or probable in the sense
that actual belief in its truth, derived from the evidence,
exists in the mind or minds of the tribunal notwithstanding any
doubts that may still linger there.
a.) Evidence of Mathematical Calculations
Admissible IF:
1.) The # of variables was limited to a
controlled situation; AND
2.) The statistics were NOT revived from a
random sampling
2.) The court will usually NOT let a party prevail on
purely statistical grounds
a.) The party must usually come forward w/ some
other form of proof
Categorical Rules of Exclusion
1.) Categorical Rules of Exclusion – These situations are NOT
dealt w/ on a case-by-case basis because they have occurred
enough that it has been determined these certain types of
evidence should be excluded
Rule 407
SUBSEQUENCT REMEDIAL MEASURES
When, AFTER an injury or harm allegedly caused by an event,
measures are taken that, if taken previously, would have made
the injury or harm ↓ likely to occur, evidence of
subsequent measures is NOT admissible to prove (1) negligence,
(2) culpable conduct, (3) a defect in a product, (4) a defect in
a product’s design, or (5) a need for a warning or instruction.
Excludes evidence of subsequent remedial measures when offered
to prove (1) negligence, (2) culpable conduct, (3) product
defect, (4) defective product design, (5) need for a
warning/instruction
Controverted  must be in contested/disputed, otherwise,
the rule would be circumvented every time
Note: this is NOT an exhaustive list
This rule does NOT require the exclusion of evidence of
subsequent measures when offered for another purpose, such as
proving (1) ownership, (2) control, or (3) feasibility of
precautionary measures, if controverted (in dispute), or (4)
impeachment.
2.) Subsequent Remedial Measures:
a.) Rule: AFTER an injury or alleged harm caused by an event,
evidence of subsequent remedial measures (if previously taken)
is NOT admissible to prove:
1.) Negligence
2.) Culpable Conduct
3.) Product Defect
4.) Defective Product Design
5.) Need for Warning/Instruction
* Subsequent Remedial Measures: Include subsequent repairs,
installation of safety devices, changes in company rules, and
discharge of EE’s (See Advisory Committee Notes)
* Policy: Encourages people to take (or at least NOT
discourage) steps in furtherance of added safety
b.) However, evidence of “subsequent remedial measures” may be
used for “other purposes”
1.) Includes: (this is NOT an exclusive list; other
things, such as “notice” may work)
a.) Ownership
b.) Control
c.) Feasibility of Precautionary Measures, (IF
controverted)
1.) Must be contested/disputed
d.) Impeachment
2.) Limiting Instruction:
a.) If the evidence is used for one of these purposes, the
∆ can ask for a limiting instruction (Rule 105)
c.) Rule: If the ∆ took action PRIOR to the event giving
rise to the injury, then the action does NOT fall w/I the
exclusion scope of the rule.
1.) In other words, evidence of action taken BEFORE the
injury is Admissible
d.) Rule: Subsequent remedial measures taken by 3rd parties are
Admissible
Rule 408
COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (1) furnishing or 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 NOT
admissible to prove liability for or invalidity of the claim or
its amount.
when offered to prove (1) liability for, or (2) invalidity of
“claim” OR “ amount”
Evidence of conduct or statement made in compromise
negotiations is likewise NOT admissible.
statement made in compromise negotiations
This rule does NOT require the exclusion of any evidence
otherwise discoverable merely because it is presented in the
course of compromise negotiations.
Exception: Admissible if . . .
1.) Evidence is otherwise discoverable
a.) e.g. Car Accident
∆ can’t just get out of the
car and say “too bad, I
had 10 beers.” Л could
call bartender to testify
This rule also does NOT require exclusion when the evidence is
offered for other purpose, such as (1) proving bias or prejudice
of a witness, (2) negativing a contention of undue delay, or (3)
proving an effort to obstruct a criminal investigation or
prosecution
3.) Compromise & Offers to Compromise:
a.) Rule: Evidence of “furnishing or offering or promising to
furnish” OR “accepting or offering or promising to accept,” a
valuable “C” in compromising or attempting to compromise a claim
that is DISPUTED as to either (1) its validity OR (2) its amount
is NOT admissible to prove . . .
1.) Liability; or
2.) Invalidity
b.) Rule: Evidence of conduct/statements during compromise
negotiations NOT admissible
c.) Rule: “Otherwise discoverable evidence is
admissible”
d.) Rule: Evidence MAY be offered for “other purposes”,
such as . . .
1.) Proving PREJUDICE or BIAS
2.) Negativing a contention of undue delay
a.) e.g. Explaining reason for delay
3.) Proving an effort to “obstruct a criminal
investigation or prosecution”
a.) e.g. Paying off W’s in criminal case
e.) Policy: Promotion of compromise and settlement of disputes
and encourages people to speak freely during settlement
negotiations w/o fear of something going sour
* REMEMBER: If there is NO actual dispute over liability or
damages, the FRE 408 is inapplicable
* ALSO, FRE 408 bars settlements by 3rd-parties
Rule 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.
showing one party’s payment of (or promise to pay) another’s
medical, etc. expenses if offered to prove liability for injury
4.) Payment of Medical & Similar Expenses:
a.) Rule: Evidence of furnishing or offering to pay medical,
hospital, or similar expenses caused by injury NOT admissible to
prove . . . (a.k.a. “Good Samaritan Rule”)
1.) Liability
b.) Consider:
1.) e.g. After an accident between л and
∆, ∆ says to л “I’m sorry I ran the light.
Here’s $150.”
a.) “Here’s $100” = inadmissible
b.) “I’m sorry I ran the light” = admissible
Rule 410
INADMISSIBILITY OF PLEAS, OFFERS OF PLEAS, PLEA DISCUSSIONS, &
RELATED STATEMENTS
Class Notes:
Except as otherwise provided in this rule, evidence of the
following is NOT, in any civil or criminal proceeding,
admissible against the ∆ who made the plea or was a
participant in the plea discussions:
∆” who made a plea of . . . or participated in plea
discussions (criminal and civil)
(1)
(1) a plea of guilty which was later withdrawn;
plea withdrawn
(2)
(2) a plea of nolo contendere;
(3)
(3) any statement made in the course of any proceedings
under Rule 11 of the Federal Rules of Criminal Procedure or
comparable state procedure regarding either of the foregoing
pleas; or
3.) Rule 11 Criminal Procedure – statements made in the “course
of any proceeding”
(4)
(4) any statement made in the course of plea discussions
with an attorney for the prosecuting authority which do NOT
result in a plea of guilty or which result in a plea of guilty
later withdrawn.
4.) Other statements made other than guilty (and statements
withdrawing guilt) made in “plea discussions” w/ “prosecuting
authority” (does NOT cover “police”)
However, such a statement is admissible (i) in any proceeding
wherein another statement made in the course of the same plea or
plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it, or (ii) in a
criminal proceeding for perjury or false statement if the
statement was made by the ∆ under oath, on the record and
in the presence of counsel.
(ii) Perjury or false statement prosecution where plea, offer,
or related statement was made by the ∆ on the record,
under oath and in the presence of counsel
5.) Inadmissibility of Pleas, Offers of Pleas, Plea
Discussions & Related Statements:
a.) Rule: In civil and criminal cases, that following
are NOT admissible against the ∆:
1.) Guilty plea later withdrawn
a.) ∆ can withdraw between pleading and
sentencing
2.) Plea of No Contest
a.) N/C pleas can NOT be used in later suits
3.) Statements in Course of Proceeding under Rule 11
(Criminal Procedure)
a.) “Colloqy” – exchange w/ accused (plea of
guilty and statements associated w/ it)
4.) Statements made During Plea Discussions w/
Prosecutor
a.) This is the criminal analog of “offers to
settle” in civil cases
1.) e.g. Evidence that ∆ made an offer to plead guilty to
the crime charged or to a lesser charge is NOT admissible
b.) This does NOT cover statements to police
1.) e.g. If ∆ tried to plea w/ a cop,
this evidence would be admissible.
b.) Rule: (last ¶ of FRE 410)
1.) If ∆ offers some of his own statements at trial
(because they are helpful to him), then it is only “fair” to let
the other side offer statements on the other side
a.) “Rule of Completeness”
1.) Opposing party should get the opportunity to put
it into context
2.) If ∆ makes a guilty plea, some jurisdictions say
∆ has to be sworn under oath & admit the crime
a.) Basically, ∆ can NOT lie under oath and then
be protected from a perjury claim
c.) Rule: An agreement to WAIVE the exclusionary provisions of
the plea statement rule is VALID and ENFORCEABLE (Mezzanatto)
1.) Mere potential for “abuse” is NOT enough to deny
waiver
+ REMEMBER, a “guilty plea” is NOT conclusive,
but a “guilty conviction” is
Rule 411
LIABILITY INSURANCE
Evidence that a person was OR was NOT insured against liability
is NOT admissible upon the issue whether the person acted
negligently or otherwise wrongfully. This rule does NOT require
the exclusion of evidence of insurance against liability when
offered for another purpose, such as proof of agency, ownership,
or control, or bias or prejudice of a witness.
of liability insurance (or lack thereof) to prove negligence (or
wrongful)
6.) Liability Insurance:
a.) Rule: Evidence of liability insurance, or lack
thereof, is NOT admissible to prove . . .
1.) Negligence; or
2.) Wrongful
b.) However, proof of insurance against liability when
offered for “another purpose” may be admissible:
1.) Proof of Agency
2.) Ownership
3.) Control
4.) Bias or Prejudice of W
Character Evidence
Rule 404
CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS;
OTHER CRIMES
Class Notes:
(a)
(a) Character evidence generally. Evidence of a person’s
character or a trait of character is NOT admissible for the
purpose of proving action in conformity therewith on a
particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut
the same, or if evidence of a trait of character of the alleged
victim of the alleged victim of the crime is offered by an
accused and admitted under Rule 404(a)(2), evidence of the same
trait of character of the accused offered by the prosecution
(2) Character of alleged victim. Evidence of a pertinent trail
of character of the alleged victim of the crime offered by an
accused, or by the prosecution to rebut the same, or evidence of
a character trait of peacefulness of the alleged victim offered
by the prosecution in a homicide case to rebut evidence that the
alleged victim was the first aggressor;
(3) Character of witness. Evidence of the character of a
witness, as provided in rules 607, 608, and 609
(a) Character in this instance means reputation OR opinion
Rule 405
METHODS OF PROVING CHARACTER
(a)
(a) Reputation or opinion. In ALL cases in which evidence of
character or a trait of character of a person is admissible,
proof may be made by testimony as to reputation or by testimony
in the form of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct.
(a) When evidence is admissible under Rule 404(b), this is how
it can be proved: testimony of reputation or opinion; only on
cross-exam can counsel ask “relevant specific instances of
conduct”
(b)
(b) Specific instances of conduct. In cases in which character
or a trait of character of a person is an essential element of a
charge, claim, or defense, proof may also be made of specific
instances of that person’s conduct.
(b) If essential element, specific instances of conduct can be
used
1.) Character:
a.) Ways Character Arises:
1.) Character in Issue = character itself is an
element of a crime, claim, or defense
a.) Look for:
1.) Negligent Entrustment, Hiring, and
Retention
2.) Entrapment
3.) Custody
4.) Defamation, Slander, Libel
b.) Methods of Proof:
1.) Specific Instances of Conduct
2.) Reputation
3.) Opinion
2.) Propensity = action in conformity on a
particular occasion
a.) Methods of Proof: (where admissible)
1.) Reputation
2.) Opinion
# Only on “cross-exam” are specific
instances of conduct allowed to be discussed AND the Q’s are
asked by prosecution (NOT told by the W’s)
b.) Rule: Propensity evidence is inadmissible to show that a
person acted in conformity on a particular occasion (Zackowitz)
1.) Rationale → We judge the “act”, NOT the person
“who” is accused of committing the act.
a.) However, there are certain situations in which
“other acts” can be proven . . .
Rule 413
EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES
Class Notes:
(a)
(a) In a criminal case in which the ∆ is accused of an
offense of sexual assault, evidence of the ∆’s commission
of another offense or offenses of sexual assault is admissible,
and may be used for its bearing on any matter to which it is
relevant.
(a) This does NOT have to be a conviction; this is the opposite
of the “propensity rule” – (i.e. admissible) – however,
Huddleston probably applies
(b)
(b) In a case in which the Government intends to offer evidence
under this rule, the attorney for the Government shall disclose
the evidence to the ∆, including statements of witnesses
or a summary of the substance of any testimony that is expected
to be offered, at least fifteen days before the scheduled date
of trial OR at such later time as the court may allow for good
cause.
(b) Notice Requirement
1.) 15 days before trial; OR
2.) Later, if “good cause” is
shown
(c)
(c) This rule shall NOT be construed to limit the admission or
consideration of evidence under any other rule.
(c) This means Rule 403 STILL applies (“balancing test”)
(d)
(d) For purposes of this rule and Rule 415, “offense of sexual
assault” means a crime under Federal law or the law of a State
(as defined in § 513 of title 18, U.S.C.) that involved -
(d) Defines sexual assault
(1) any conduct proscribed by chapter 109A of title 18, U.S.C.;
(2) contact, without consent, between any part of the ∆’s
body or an object and the genitals or anus of anther person;
(3) contact, without consent, between the genitals or anus of
the ∆ and any part of another person’s body
(4) deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain on another
person; or
(5) an attempt or conspiracy to engage in conduct described in
¶’s (1) – (4).
Includes attempts and conspiracies
Rule 414
EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES
Class Notes:
(a)
(a) In a criminal case in which the ∆ is accused of an
offense of child molestation, evidence of the ∆’s
commission of another offense or offenses of child molestation
is admissible, and may be used for its bearing on any matter to
which it is relevant.
(a) This does NOT have to be a conviction; this is the opposite
of the “propensity rule” – (i.e. admissible) – however,
Huddleston probably applies
(b)
(b) In a case in which the Government intends to offer evidence
under this rule, the attorney for the Government shall disclose
the evidence to the ∆, including statements of witnesses
or a summary of the substance of any testimony that is expected
to be offered, at least fifteen days before the scheduled date
of trial OR at such later time as the court may allow for good
cause.
(b) Notice Requirement
1.) 15 days before trial; OR
2.) Later, if “good cause” is
shown
(c)
(c) This rule shall NOT be construed to limit the admission or
consideration of evidence under any other rule.
(c) This means Rule 403 STILL applies (“balancing test”)
(d)
(d) For purposes of this rule and Rule 415, “child” means a
person below the age of fourteen, and “offense of child
molestation” means a crime under Federal law or the law of a
State (as defined in § 513 of title 18, U.S.C.) that involved -
(1) any conduct proscribed by chapter 109A of title 18, U.S.C.,
that was committed in relation to a child;
(2) any conduct proscribed by chapter 110 of title 18, U.S.C.;
(3) contact between any part of the ∆’s body or an object
and the genitals or anus of a child;
(4) contact between the genitals or anus of the ∆ and any
part of the body of a child;
(5) deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain on a child;
(6) an attempt or conspiracy to engage in conduct described in
¶’s (1) – (5).
Includes attempts and conspiracies
Rule 415
EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL
ASSAULT OR CHILD MOLESTATION
Class Notes:
(a)
(a) In a civil case in which a claim for damages or other relief
is predicated on a party’s alleged commission of conduct
constituting an offense of sexual assault or child molestation,
evidence of that party’s commission of another offense of sexual
assault or child molestation is admissible and may be considered
as provided in Rule 413 and Rule 414 of these rules.
(a) This does NOT have to be a conviction; this is the opposite
of the “propensity rule” – (i.e. admissible) – however,
Huddleston probably applies
(b)
(b) A party who intends to offer evidence under this Rule shall
disclose the evidence to the party against whom it will be
offered, including statements of witnesses or a summary of the
substance of any testimony that is expected to be offered, at
least 15 days before the scheduled date of trial or at such
later time as the court may allow for good cause.
(c)
(c) This rule shall NOT be construed to limit the admission or
consideration of evidence under any other rule.
(c) This means Rule 403 STILL applies (“balancing test”)
2.) Other Acts:
a.) Rule 404(b) “Other Purposes” (besides “propensity”)
1.) Motive
2.) Intent
3.) Absence of Mistake
4.) Identity – Modus Operandi (“Special Relevance
Rule”)
a.) Requires: ↑ degree of similarity
between the events
1.) e.g. Old Bomb and New Bomb
5.) Common Plan/Scheme
6.) Res Gestae (tells the rest of the story; fills
in gaps)
a.) This is admissible in evidence as an
“exception” to the hearsay rule
7.) Doctrine of Changes
a.) Require: So many incidents that it is objectively improbable
that to many accidents could befall one person
1.) e.g. Brides in the Bath; déjà vu case –
dead man on floor
* e.g. Even if it seems like “propensity”, see if there is
something, such as “knowledge” that it could be used for instead
3.) Reputation/Opinion:
a.) Criminally Accused
1.) Rule: ONLY ∆ can initiate the use of
reputation and opinion evidence (state ≠ do this!!!)
a.) However, once ∆ opens the door by calling “good
character” W’s (for a particular trait), the prosecution can . .
.
1.) Try to impeach the credibility of the ∆’s W’s on
“cross-exam” - - by asking about “prior acts” by ∆ - -
must be “good faith” basis to Q’s)
a.) Trying to show that ∆’s W’s have ↓
knowledge
b.) Testing the W’s standard of what “good character” is
* Prosecution MUST live w/ answers given by the W
2.) Bring its own “bad character” W’s (but still has to relate
to the pertinent trait)
b.) Character in Issue
1.) Rule: Opinion and Reputation and Specific
Instances of Conduct are permissible
a.) Can bring in “other act” evidence to show an
element of crime of defense
∆’s Character in a Criminal Case
Specific Acts
Reputation/Opinion
Prosecution Case-in-Chief
Rule 404(b) “other purposes” than propensity
Exception:
Propensity can be used in Rules 413 (sexual assault) and 414
(child molestation) cases
NO
Defense Case-in-Chief
NO
Good Character W’s of a pertinent character trait
Rule 404(a)(1); Rule 405(a)
Prosecution Cross-Exam
Can ask Q’s relating to specific acts by ∆ to ∆’s
character W’s – Rule 405(a) – but only w/ respect to the same
pertinent character trait as they testified to
of reputation/opinion
Prosecution Rebuttal
Rule 404(b) “other purposes” or Rules 413 (sexual assault) and
414 (child molestation) cases
Good Character W – Rule 404(a)(1) – but only w/ respect to the
same pertinent character trait as ∆’s Good Character W
testified to
Rule 412
SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIM’S PAST SEXUAL
BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION
Class Notes:
(a)
(a) Evidence generally admissible. The following evidence is NOT
admissible in any civil or criminal proceeding involving alleged
sexual misconduct except as provided in subdivisions (b) and
(c):
(a) Generally NOT admissible
(1) Evidence offered to prove that any alleged victim engaged in
other sexual behavior.
1.) V’s engagement in other
sexual behavior
(2) Evidence offered to prove any alleged victim’s sexual
predisposition.
2.) V’s sexual predisposition
(b)
(b) Exceptions.
(b) Exceptions
(1) In a criminal case, the following evidence is admissible, if
otherwise admissible under these rules:
1.) Admissible in
CRIMINAL CASES
(A) evidence of specific instances of sexual behavior by the
alleged victim offered to prove that a person other than the
accused was the source of semen, injury or other physical
evidence;
a.) To show another was
source of semen, or
injury, etc.
(B) evidence of specific instances of sexual behavior by the
alleged victim with respect to the person accused of the sexual
misconduct offered by the accused to prove consent or by the
prosecution; and
b.) To show prior acts
between ∆ and V - -
∆ alleges consent
(C) evidence the exclusion of which would violate the
constitutional rights of the ∆.
c.) Evidence if excluded
would violate ∆’s
const. rights
(2) In a civil case, evidence offered to prove the sexual
behavior or sexual predisposition of any alleged victim is
admissible if it is otherwise admissible under these rules and
its probative value substantially outweighs the danger of harm
to any victim and of unfair prejudice to any party. Evidence of
an alleged victim’s reputation is admissible ONLY IF it has been
placed in controversy by the alleged victim.
2.) Admissible in
CIVIL CASES
(c)
(c) Procedure to determine admissibility.
(c) Procedure
(1) A party intending to offer evidence under subdivision (b)
must -
1.) What party offering
evidence must do:
(A) file a written motion at least 14 days before trial
specifically describing the evidence and stating the purpose for
which it is offered unless the court, for good cause requires a
different time for filing or permits filing during trial; and
A.) File written note (at
least 14 days before
trial . . . unless “good
cause” shown)
(B) serve the motion on all parties and notify the alleged
victim or, when appropriate, the alleged victim’s guardian or
representative.
B.) Serve motion on ALL
parties, including “V”
(2) Before admitting evidence under this rule the court must
conduct a hearing in camera and afford the victim and parties a
right to attend and be heard. The motion, related papers, and
the record of the hearing must be sealed and remain under seal
unless the court orders otherwise.
2.) Before admitting, court
must conduct ‘n camera’
hearing
4.) Victim’s Character (Rape Shield Laws)
a.) CRIMINAL CASES:
1.) NOT admissible to show . . .
a.) V’s engagement of other sexual behavior in
the past
b.) V’s sexual predisposition
2.) Admissible to show . . .
a.) Another was source of semen, injury, or
physical evidence
b.) Prior sexual acts between ∆ and V to
show “consent”
c.) Evidence if excluded would violate ∆’s
constitutional rights
b.) CIVIL CASES:
1.) Admissible to show . . .
a.) Another was source of semen, injury, or
physical evidence
b.) Prior sexual acts between ∆ and V to
show “consent”
c.) Evidence if excluded would violate ∆’s
constitutional rights
2.) But, only if . . .
a.) PV substantially outweighs the danger of harm to any V and
of unfair prejudice to any party
* Evidence of an alleged V’s
reputation is admissible only if it has been placed in
controversy by the alleged V.
* Notice must be given to the V and
all parties
Rule 404
CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS;
OTHER CRIMES
Class Notes:
(a)
(a) Reputation and opinion.
(b)
(b) Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is NOT admissible to prove the character of a
person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at
trial.
5.) Civil Cases
a.) Rules:
1.) The ∆ in a civil case can NOT bring in
“good character” W’s
a.) e.g. Teacher in a civil suit can NOT bring in evidence of
in reputation or opinion witnesses of his “good character”
2.) The л can NOT try to bring in evidence that ∆
acted in conformity w/ a particular trait
b.) Summary:
1.) In civil cases, “propensity evidence” can NOT be used
(neither reputation nor opinion), unless . . .
a.) Character is in Issue
b.) “Other Purposes”
1.) Includes:
a.) Motive
b.) Opportunity
c.) Intent
d.) Preparation
e.) Plan
f.) Knowledge
g.) ID
h.) Absence of Mistake or Accidence
Rule 406
HABIT; ROUTINE PRACTICE
Evidence of habit of a person OR of the routine practice of an
organization, whether corroborated or not AND regardless of the
presence of eyewitnesses, is relevant to prove that the conduct
of the person or organization on a particular occasion was in
conformity w/ the habit or routine practice.
↑ly persuasive proof of conduct on a particular occasion
Determined by judge on a case-by-case basis (Method of Proof)
* Only specific acts can be used to corroborate – never opinion
or reputation
6.) Habit (basically, this is NOT made inadmissible by Rule
404(a) – “propensity”)
a.) What is the difference between “habit” and
“character”?
1.) Character = generalized description of one’s
disposition w/ respect to a general trait
2.) Habit/Routine Practice = describes one’s regular
response to a repeated specific situation
a.) e.g. Habit of taking the steps 2 at a time
* Compare: Evidence that a party is an “habitual drinker” is
NOT admissible to show that a party was drunk on a particular
occasion, BUT can be used to show that every day at a certain
time a party has drinks
b.) Requirements:
1.) Regularity
2.) Specificity
3.) Semi-Automatic/Non-Reflective
* Note: Under FRE, “habit” does NOT have to be
“corroborated” – it would be helpful, but it is NOT fatal (e.g.
doctor who always does the same prep before an operation)
Examination of Witnesses
Rule 601
GENERAL RULE OF COMPETENCY
Every person is competent to be a witness except as otherwise
provided in these rules (criminal actions). However in civil
actions and proceedings, with respect to an element of a claim
or defense as to which State law supplies the rule of decision,
the competency of a witness shall be determined in accordance
with State law.
2nd sentence – civil actions  competency may be
determined by State law
1.) Competency of Witnesses
a.) GR: Anyone is competent to be a W, unless the rules
say a person is NOT
1.) Under Rule 104(a), a judge decides the
preliminary Q of competence
b.) Testimonial Capacities:
1.) Memory
2.) Narration (Clarity)
3.) Perception (Observation)
4.) Sincerity (Honesty)
c.) Concern: The ∆’s ability to “cross-examine”
the W
Rule 602
LACK OF PERSONAL KNOWLEDGE
A witness may NOT testify to a matter UNLESS evidence is
introduced sufficient to support a finding that the witness has
personal knowledge on the matter. Evidence to prove personal
knowledge may, but need not, consist of the witness’ own
testimony. This rule is subject only to the provisions of Rule
703, relating to opinion testimony by expert witnesses.
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