Rules of Evidence

Rule 401

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402

All relevant evidence is admissible, except as otherwise provided in these Rules. Irrelevant evidence is not admissible.

Rule 403

Relevant evidence may be excluded if its’ probative value is substantially outweighed by the danger of unfair prejudice, if it confuses the issues, if it is misleading, or if it causes undue delay, wastes time, or is a needless presentation of cumulative evidence.

Rule 404(a)

Evidence of a person's character or character trait, is not admissible to prove action regarding a particular occasion, except character of accused/victim/witness.

Rule 404(b)

Evidence of other crimes, wrongs, or acts is not admissible to prove character of a person in order to show an action conforms to character. It may be admissible for proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Rule 405(a)

In all cases where evidence of character or a character trait is admissible, proof may be made by testimony as to reputation, or in the form of an opinion. On cross, questions may be asked regarding relevant, specific conduct.

Rule 405(b)

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

Rule 406

Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization, on a particular occasion, was in conformity with the habit or routine practice. / Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

Rule 602

A witness may not testify to a matter unless the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, related to opinion testimony by expert witnesses.

Rule 608(a)

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence, or otherwise.

Rule 608(b)

Specific instances of conduct. -- Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the Court, if probative of truthfulness or untruthfulness, be asked on cross examination of the witness (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. Testimony, whether by an accused or by any other witness, does not operate as a waiver of the accuser’s or the witness' privilege against self-incrimination with respect to matters related only to credibility.

Rule 611(a)

The Court shall exercise reasonable control over questioning of witnesses and presenting evidence so as to (1) make the questioning and presentation effective for ascertaining the truth, (2) to avoid needless use of time, and (3) protect witnesses from harassment or undue embarrassment.

Rule 611(b)

The scope of cross examination shall not be limited to the scope of the direct examination, but may inquire into any relevant facts or matters contained in the witness' statement, including all reasonable inferences that can be drawn from those facts and matters, and may inquire into any omissions from the witness statement that are otherwise material and admissible.

Rule 611(c)

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

Rule 611(d)

After cross examination, additional questions may be asked by the direct examining attorney, but questions must be limited to matters raised by the attorney on cross- examination. Likewise, additional questions may be asked by the cross examining attorney on recross, but such questions must be limited to matters raised on redirect examination and should avoid repetition.

Rule 701

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are all of the following: (a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of a witness under Rule 702.

Rule 702

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise.

Rule 703

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion or inference substantially outweighs their prejudicial effect.

Rule 704(a)

Opinion or inference testimony otherwise admissible is not objectionable because it embraces an issue to be decided by the trier of fact.

Rule 704(b)

In a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.

Rule 705

The expert may testify in terms of opinion or inference and give reasons without prior disclosure of the underlying facts or data, unless the Court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Rule 801(a)

A "statement" is an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion.

Rule 801(b)

A "declarant" is a person who makes a statement.

Rule 801(c)

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Rule 801(d1)

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement and the statement is; (A) inconsistent with the declarant's testimony, and was given under oath, subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (C) one of identification of a person made after perceiving the person.

Rule 801(d2)

The statement is not hearsay if the statement is offered against a party and is; (A) the party's own statement in either an individual or a representative capacity; (B) a statement of which the party has manifested an adoption or belief in its truth; (C) a statement by a person authorized by the party to make a statement concerning the subject; (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or (E) a statement by a co-conspirator of a party during the course of furtherance of the conspiracy.

Rule 802

Hearsay is not admissible, except as provided by these rules.

Rule 803(1)

A statement describing or explaining an event or condition made while the declarant was observing the event or condition, or immediately thereafter, is admissible despite the hearsay rule, even if the declarant is available to testify.

Rule 803(2)

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is admissible despite the hearsay rule, even if the declarant is available to testify.

Rule 803(3)

A statement of the declarant's then-existing mental, emotional, or physical condition, such as intent, plan, motive, design, mental feeling, pain, or bodily health, is admissible despite the hearsay rule, even if the declarant is available to testify. This does not include a statement of memory or belief to prove the fact remembered or believed, unless it relates to the execution, revocation, identification, or terms of the declarant's will.

Rule 803(4)

A statement made for the purpose of medical diagnosis or treatment is admissible despite the hearsay rule, even if the declarant is available to testify.

Rule 803(5)

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately is admissible despite the hearsay rule, even if the declarant is available to testify, provided the record was made or adopted by the witness when the matter was fresh in their memory and reflects that knowledge correctly.

Rule 803(6)

A memorandum, report, record, or data compilation made at or near the time of acts, events, conditions, opinions, or diagnoses, by or from information transmitted by someone with knowledge, is admissible despite the hearsay rule, even if the declarant is available to testify. This applies if the record was made in the course of a regularly conducted business activity, and it was the regular practice of that business to create such records, with the authenticity shown through testimony from the custodian or a qualified witness, unless the source of the information or the method of preparation suggests unreliability.

Rule 803(6m)

A patient’s health care records are admissible despite the hearsay rule, even if the declarant is available to testify, as long as the records are certified by the custodian and provided to the parties at least 40 days before the trial or hearing, or are made available for inspection and copying. Billing statements or invoices related to patient health care records are presumed to state the reasonable value of the services provided and that they are reasonable and necessary for the patient’s care.

Rule 803(7)

Statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or another science or art, are admissible despite the hearsay rule, even if the declarant is available to testify, when they are relied upon by an expert witness in direct examination or brought to the attention of the expert during cross-examination, provided the treatise is established as a reliable authority through the testimony or admission of the witness, expert testimony, or judicial notice.

Rule 803(8)

A statement regarding a person’s reputation for character among their associates or in the community is admissible despite the hearsay rule, even if the declarant is available to testify.

Rule 803(9)

A judgment finding a person guilty of a crime punishable by death or imprisonment in excess of one year is admissible despite the hearsay rule, even if the declarant is available to testify, to prove any fact essential to sustain the judgment. This does not include judgments against persons other than the accused when offered by the government in a criminal prosecution, except for impeachment purposes.

Rule 804(a1)

"Unavailability as a witness" includes situations in which the declarant is excused from testifying about the subject matter of their statement due to a judge’s ruling based on privilege.

Rule 804(a2)

"Unavailability as a witness" includes situations in which the declarant refuses to testify about the subject matter of their statement despite a judge’s order to do so.

Rule 804(a3)

"Unavailability as a witness" includes situations in which the declarant testifies that they have no memory of the subject matter of their statement.

Rule 804(a4)

"Unavailability as a witness" includes situations in which the declarant is unable to be present or testify at the hearing because of death or a current physical or mental illness or infirmity.

Rule 804(a5)

"Unavailability as a witness" includes situations in which the declarant is absent from the hearing, and the party offering the declarant’s statement has been unable to secure the declarant’s attendance through subpoena or other reasonable means.

Rule 804.5(1)

Former testimony is not excluded by the hearsay rule if the declarant is unavailable as a witness. This applies to testimony given as a witness at another hearing, whether in the same or a different proceeding, or in a deposition taken in compliance with the law during another proceeding. The testimony must have been given at the instance of or against a party who had an opportunity to develop the testimony through direct, cross-, or redirect examination, with a motive and interest similar to those of the party against whom it is now being offered.

Rule 804.5(2)

A statement is not excluded by the hearsay rule if it is not made in response to the instigation of someone engaged in investigating, litigating, or settling a claim. It must narrate, describe, or explain an event or condition recently perceived by the declarant, made in good faith, and not in contemplation of pending or anticipated litigation, while the declarant’s recollection was still clear.

Rule 804.5(3)

A statement made by a declarant while believing that their death was imminent is not excluded by the hearsay rule if it concerns the cause or circumstances of what the declarant believed to be their impending death.

Rule 804.5(4)

A statement not specifically covered by the previous exceptions may still be admissible if it has comparable circumstantial guarantees of trustworthiness.

Rule 805

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statement conforms with an exception to the hearsay rule provided in these rules.