Evidence (Final) Flashcards

FRE Specific Flashcards

Rule 102

Purpose These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

Rule 104(b)

Preliminary Questions - Relevance That Depends on Fact When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Rule 401

Test for Relevant Evidence Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

Rule 402

General Admissability of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.

Rule 403

Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 404(a)(1)

Character Evidence Character evidence is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Rule 404(a)(2)

Exceptions for a Defendant or Victim in a Criminal Case The defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it. The defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it and offer evidence of the defendant’s same trait. In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

Rule 404(b)

Other Crimes, Wrongs, or Acts Evidence of a crime, wrong, or other act is not admissible to prove a person’s character to show that on a particular occasion the person acted in accordance with the character. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Rule 405(a)

Methods of Proving Character By reputation or opinion. When character evidence is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

Rule 405(b)

By Specific Instances of Conduct When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Rule 406

Habit; Routine Practice Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.

Rule 407

Subsequent Remedial Measures When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. But the court may admit this evidence for another purpose.

Rule 408

Compromise Offers and Negotiations Evidence of the following is not admissible on behalf of any party: furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and conduct or statements made during compromise negotiations about the claim.

Rule 409

Offers to Pay Medical and Similar Expenses Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Rule 410

Pleas, Plea Discussions, and Related Statements (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Rule 411

Liability Insurance Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

Rule 412

Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition Evidence offered to prove that a victim engaged in other sexual behavior; or evidence offered to prove a victim’s sexual predisposition is generally not admissible except under specific exceptions.

Rule 413

Similar Crimes in Sexual-Assault Cases In a criminal case in which a defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault.

Rule 414

Similar Crimes in Child-Molestation Cases In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation.

Rule 415

Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation In a civil case involving a claim for relief based on sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.

Rule 501

Privileges in General The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.

Rule 502

Attorney-Client Privilege and Work Product The rule that protects confidential communications between a client and attorney when made for the purpose of obtaining or providing legal assistance, including limitations, scope, and waiver principles.

Rule 503

Proposed Rule 503 as included in the packet describing a privilege for communications between psychotherapist and patient, with details on scope, exceptions, and definitions as provided in the proposed text.

Rule 504

Husband-Wife Privilege Proposed rule providing communications privileges between spouses, including confidential marital communications and testimonial privileges, with defined exceptions.

Rule 505

Religious Privilege Proposed rule recognizing privilege for confidential communications made to clergy members for spiritual advice or confession, with exceptions and scope defined.

Rule 506

Political Vote Privilege This rule protects the confidentiality of a person's vote unless the vote was cast illegally.

Rule 511

Privilege Waiver by Voluntary Disclosure If the holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter, the privilege is waived.

Rule 602

Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

Rule 607

Who May Impeach A witness’s credibility may be attacked by any party, including the party that called the witness.

Rule 608

A Witness’s Character for Truthfulness or Untruthfulness Rules and restrictions governing the use of opinion, reputation, and specific instances to attack or support a witness’s character for truthfulness.

Rule 609

Impeachment by Evidence of a Criminal Conviction Specific conditions under which a witness’s prior criminal convictions may be used to impeach credibility, including time limits and balancing tests.

Rule 610

Religious Beliefs or Opinions Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Rule 611

Mode and Order of Examining Witnesses and Presenting Evidence The court controls the mode and order of examining witnesses to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.

Rule 612

Writing Used to Refresh a Witness’s Memory If a witness uses a writing to refresh memory either while testifying or before testifying, an adverse party is entitled to certain inspection and cross-examination rights.

Rule 613

Impeachment by Witness’s Prior Statement When examining a witness about a prior statement, a party need not show the statement to the witness, but must show it to opposing counsel on request. Extrinsic evidence of a prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny it.

Rule 614

Court’s Calling or Examining a Witness The court may call or examine a witness and each party may cross-examine the witness.

Rule 615

Excluding Witnesses At a party’s request, the court must order witnesses excluded so they cannot hear other witnesses’ testimony, with specific exceptions.

Rule 701

Opinion Testimony by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to those opinions that are: (a) rationally based on the witness’s perception; (b) helpful to understanding the witness’s testimony or determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.

Rule 702

Testimony by Expert Witnesses A witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if certain reliability and relevance conditions are met.

Rule 703

Bases of an Expert’s Opinion Testimony An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.

Rule 704

Opinion on an Ultimate Issue An opinion is not objectionable just because it embraces an ultimate issue. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime.

Rule 705

Disclosing the Facts or Data Underlying an Expert’s Opinion Unless the court orders otherwise, an expert may state an opinion without first testifying to the underlying facts or data. The expert may be required to disclose those facts or data on cross-examination.

Rule 706

Court-Appointed Expert Witnesses On a party’s motion or on its own, the court may appoint an expert witness.

Rule 801

Hearsay Definition Hearsay means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted.

Rule 802

The Rule Against Hearsay Hearsay is not admissible unless these rules provide otherwise or federal law provides otherwise.

Rule 803(1)

Present Sense Impression A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Rule 803(2)

Excited Utterance A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Rule 803(3)

Then-Existing Mental, Emotional, or Physical Condition A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition.

Rule 803(4)

Statement Made for Medical Diagnosis or Treatment A statement that is made for—and reasonably pertinent to—medical diagnosis or treatment.

Rule 803(5)

Recorded Recollection A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh; and (C) accurately reflects the witness’s knowledge.

Rule 803(6)

Records of a Regularly Conducted Activity A record of an act, event, condition, opinion, or diagnosis if certain foundational requirements are met.

Rule 803(7)

Absence of a Record of a Regularly Conducted Activity Evidence that a matter is not included in a record may be admissible to prove the matter did not occur or exist.

Rule 803(8)

Public Records A record or statement of a public office if it sets out certain matters observed under a legal duty, or factual findings from legally authorized investigations, subject to trustworthiness limitations.

Rule 803(9)

Public Records of Vital Statistics A record of a birth, death, or marriage if reported to a public office in accordance with a legal duty.

Rule 803(10)

Absence of a Public Record Testimony or certification that a diligent search failed to disclose a public record may be used to prove that the record does not exist or that a matter did not occur.

Rule 803(11)

Records of Religious Organizations Concerning Personal or Family History Statements of personal or family history contained in regularly kept records of a religious organization.

Rule 803(12)

Certificates of Marriage, Baptism, and Similar Ceremonies Statements of fact contained in a certificate that the maker was authorized by law to make.

Rule 803(13)

Family Records Statements of personal or family history contained in family bibles, genealogies, charts, engravings, or similar records.

Rule 803(14)

Records of Documents That Affect an Interest in Property The record of a document that purports to establish or affect an interest in property, if the record is admitted to prove the content of the original.

Rule 803(15)

Statements in Documents That Affect an Interest in Property A statement contained in a document that purports to establish or affect an interest in property.

Rule 803(16)

Statements in Ancient Documents A statement in a document that is at least 20 years old and whose authenticity is established.

Rule 803(17)

Market Reports and Similar Commercial Publications Market quotations, lists, directories, or other published compilations generally relied on by the public or by persons in particular occupations.

Rule 803(18)

Learned Treatises, Periodicals, or Pamphlets Statements in a treatise, periodical, or pamphlet if the publication is established as a reliable authority.

Rule 803(19)

Reputation Concerning Personal or Family History A reputation among a person's family by blood, adoption, or marriage—or among a person's associates or in the community—concerning personal or family history.

Rule 803(20)

Reputation Concerning Boundaries A reputation in a community—arising before controversy—concerning boundaries or general history of land or customs.

Rule 803(21)

Reputation Concerning Character A reputation among a person’s associates or in the community concerning the person's character.

Rule 803(22)

Judgment of a Previous Conviction Evidence of a final judgment of conviction if certain conditions are met.

Rule 803(23)

Judgments Involving Personal, Family, or General History, or Boundaries Certain judgments admitted to prove matters of personal, family, or general history.