Evidence

FRE 103 Rulings on Evidence

(a) A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

FRE 601: competency to testify in general

Every person is competent to be a witness unless these rules provide otherwise. Civil case, state law governs the witness’s competency.

FRE 602 Need for Personal Knowledge

A witness may testify to a matter only if evidence can support a finding that the witness has personal knowledge of the matter.

• before testifying, a witness must give an oath to testify truthfully

  • Witness must have seen what they are testifying to themself;

FRE 603 Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully.

FRE 606 Juror’s Competency as Witness

(a) A juror may not testify as a witness before the other jurors. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

(b) During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations.

(c) Exceptions . A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

FRE 201 Judicial Notice of Adjudicative Facts

(b) The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

• Civil case: the court must instruct the jury to accept the noticed fact as conclusive

• Criminal case: the court must instruct the jury that it may or may not accept the noticed fact as conclusive

FRE 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.

FRE 402 General Admissibility of Relevant Evidence 

Relevant evidence is admissible unless statutes/rules provides otherwise:

Irrelevant evidence is not admissible.

FRE 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. Character Evidence Rule

(a) Character Evidence.

(1) Evidence of a person’s character is not admissible to prove that the person acted in accordance with the character or trait.

Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts

(1) Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving

• motive

• opportunity,

• preparation,

• intent,

• plan,

• knowledge,

• identity,

• absence/lack of mistake.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

Rule 405. Methods of Proving Character

(a) When evidence of a person’s character is admissible, it may be proved by testimony about the person’s reputation or one’s opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

(b) When a person’s character is an essential element of a charge, claim, or defense, the character may also be proved by relevant specific instances of the person’s conduct.

Rule 406. Habit; Routine Practice

Evidence of a person’s habit may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Rule 104. Preliminary Questions

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.

(b) 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.

Rule 412. Sex-Offense Cases: The Victim

Evidence of a victim’s sexual behavior or sexual predisposition is not admissible in a civil or criminal sexual misconduct case.

Rule 412. Sex-Offense Cases: The Victim Exception Criminal

(1) Criminal Cases the court may admit:

(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of the physical evidence;

(B) evidence of specific instances of a victim’s sexual behavior with the ∆ to prove consent or if offered by the prosecutor

Rule 412. Sex-Offense Cases: The Victim Exception Civil

(2) Civil Cases . In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior/predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party

Rule 413. Similar Crimes in Sexual-Assault Cases

(a) Criminal case: if ∆ accused of sexual assault, may admit evidence that ∆ committed other sexual assault

(b) If the prosecutor uses this evidence, the prosecutor must disclose it to the defendant at least 15 days before trial, including witnesses’ statements or a summary of the expected testimony.

Sexual Assault Definition

(d) “sexual assault” means a crime under federal law or under state law involving:

(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;

(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;

(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).

Rule 414. Similar Crimes in Child Molestation Cases

(a) Criminal case: if ∆ is accused of child molestation, may admit evidence that ∆ committed other child molestation.

(b) If the prosecutor intends to offer this evidence, the prosecutor must disclose it at least 15 days before trial to the defendant, including witnesses’ statements or a summary of the expected testimony.

Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

(a) Civil case: if ∆ accused of sexual assault or child molestation, may admit evidence of ∆s prior sexual assault or molestation

(b) To use this evidence at least 15 days before trial, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony.

Rule 407. Subsequent Remedial Measures

When ∆ takes measures 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, such as impeachment or — if disputed — proving ownership, control, or the feasibility (practicable or possible) of precautionary measures.

Rule 408. Compromise Offers and Negotiations

(a) Evidence of the following is not admissible to either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

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.

Except: may admit statement in criminal case if ∆ made statement under oath, on record, with counsel present

Rule 410. Pleas, Plea Discussions, and Related Statements

(a) 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, 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. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Rule 608. A Witness’s Character for Truthfulness or Untruthfulness

(a) A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

Testimonial qualities

• Sincerity

• Narration

• perception/experience

• Memory

Types of Evidence

1. Testimony

2. Tangible items

1101 SCOPE

• Applies in federal court 

• Applies in civil & criminal cases

• Exceptions

  • Grand-jury proceedings

  • Miscellaneous proceedings (extradition, issuing an arrest warrant, summons or a search warrant, bail, probation, etc.)

Probative Value

• Comparative weight of evidence

• Also called materiality

Unfair Prejudice

undue tendency to suggest decision on an improper basis, like an emotional one

403 Analysis

1. Evidence is relevant

2. Dangers

   1. Unfair prejudice

   2. Confusion of issues

   3. Misleading jury

   4. Undue delay/waste of time/cumulative

3. Substantially outweighed

4. Burden is on opposing party

404(b) Character Rule Exception

Criminal Case:

(A) ∆ may offer evidence of ∆ pertinent trait , then prosecutor may offer evidence to rebut

(B) ∆ may offer evidence of victim’s pertinent trait, then prosecutor may offer evidence of victim/∆’s same trait to rebut

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.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609 .

Similar Happenings

Evidence of prior accidents is only admissible if the accidents occurred under circumstances substantially similar to those at issue in the case at hand.

Lack of Similar Happenings

Trial courts may admit testimony regarding the absence of prior similar claims in negligence or products liability cases.

Rule 609. Impeachment by Evidence of a Criminal Conviction

• for a crime that, was punishable by death or imprisonment >1 year, the evidence:

  • must be admitted, when the witness is not a defendant; and

  • must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

• For any crime, the evidence must be admitted if the elements of the crime required a dishonest act or false statement.

  • Note: if over 10 years have passed since conviction, it is admissible only if its probative value substantially outweighs its prejudicial effect AND the proponent gives the adverse party reasonable written notice

613 Impeachment by Evidence of a Criminal Conviction

• When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

• Extrinsic evidence of a witness’s prior inconsistent statement may not be admitted until after the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it.

1002: Best Evidence Rule

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise

1003: Best Evidence Rule Duplicate

A duplicate is admissible unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

1004: Original not Required

• An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

  • (a) all the originals are lost or destroyed;

  • (b) an original cannot be obtained by any available judicial process;

  • (c) the party against whom the original would be offered had control of the original and fails to produce it at the trial or hearing; or

  • (d) the writing, recording, or photograph is not closely related to a controlling issue.

1006: Lots of Evidence

 The court may admit as evidence a summary, chart, or calculation offered to prove the content of voluminous admissible writings, recordings, or photographs that cannot be conveniently examined in court, whether or not they have been introduced into evidence.

901: Authentication

• To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

  • Examples: testimony of witness with knowledge, nonexpert opinion about handwriting, expert opinion, opinion about a voice, etc.

902: Self-Authenticating Documents

• some forms of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted

  • Example: document with a seal of the United States, any state . . . ; certified copies of public records

FRE 801 Hearsay- Definitions

(c) Hearsay. “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 in the statement.

FRE 801(d) Hearsay- Exceptions

(2) An Opposing Party’s Statement . The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

FRE 802 The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides otherwise:

• a federal statute;

• these rules; or

• other rules prescribed by the Supreme Court.

Rule 803. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

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

(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.

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

(4) Statement Made for Medical Diagnosis of Treatment. A statement that:

1. Is made for – and is reasonably pertinent to – medical diagnosis or treatment; and

2. describes medical history; past or present symptoms or sensations; their inception; or their general cause

FRE 804(b)(1) Exception: Former testimony

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

FRE 804(b)(3) Exception: Statement against interest

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability

FRE 804(b)(2) Exception: Statement under belief of impending death

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

FRE 801(d)(1)(C) Exception: Prior Identification

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(C) identifies a person as someone the declarant perceived earlier.

FRE 803(5) Exception: Recorded Recollection

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(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 in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

FRE 803(6) Exception: Records of a Regularly Conducted Activity

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

• Record of business activity made at or near the time by someone who had personal knowledge

• Kept in course of regularly conducted business activity (not litigation)

• Regular practice of business to make record (“buisness duty”)

  • Each person participating in making the record is acting in routine of business

  • Custodian can lay foundation

  • Opposition can show it is not trustworthy. 

FRE 803(7) Exception: Absence of Records of a Regularly Conducted Activity

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

FRE 803(8)(9): Exception Public Records

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

The following are not excluded by the hearsay rule, even

though the declarant is available as a witness:

(C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(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.

FRE 803(10): Exception, Absence of Public Records

(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove that

(i) the record or statement does not exist; or

(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

FRE 805 Hearsay within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

Rule 807. Residual Exception

• (a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:

  • (1) the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and

  • (2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

• (b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant's name— so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

FRE 803(16) Statements in Ancient Documents

A statement in a document that was prepared before January 1, 1998 and whose authenticity is established

FRE 803(18) Statements in Learned Treatises, Periodicals, or Pamphlets

Statements in Learned Treatises, Periodicals, or Pamphlets . A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

FRE 806. Attacking and Supporting the Declarant

When a hearsay statement — or a statement described in Rule 801(d)(2) (C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

FRE 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 one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702

FRE 702 Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

FRE 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. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Daubert Factors

• Testability

• Subject to peer review/publication

• Error rate

• Standards to control technique’s operation

• General acceptance

• [others]

  • Whether research independent or for purposes of litigation

  • Whether expert has accounted for obvious alternative explanations

  • Whether field is known to reach reliable results

  • Novelty of process/relationship to other methods of analysis

  • Whether expert exercised appropriate care

FRE 501 Privilege in General

The common law 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. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

CA Exception: Crime or Fraud

There is no privilege if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud

Attorney-client privilege

Client, in confidence, seeks legal advice from lawyer, acting as lawyer. Communication relates to that purpose and the privilege is claimed/not waived

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

• (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:

  • (1) the waiver is intentional;

  • (2) the disclosed and undisclosed communications or information concern the same subject matter; and

  • (3) they ought in fairness to be considered together.

• (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

  • (1) the disclosure is inadvertent;

  • (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

  • (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).

• (d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.

Crawford Confrontation Clause

• No testimonial out-of-court statement may be offered for the truth of the matter asserted against a criminal ∆ unless

  • ∆ can now cross examine declarant or

  • Declarant is unavailable and ∆ had a prior opportunity to cross examine declarant regarding the testimonial statement

Davis, Crawford Exception

•  to determine if a statement is testimonial, look at primary purpose.

  • If primary purpose is to prove past events, that statement is testimonial

  • If a primary purpose is to resolve an ongoing emergency, it is not testimonial, and the confrontation clause does not apply

Michigan v. Bryan: factors to consider when deciding whether there is an emergency:

• Threat to the public

• Type of weapon

• Declarant’s condition

• formality/informality of the police encounter

• Statements and actions of both the declarant and the interrogators

• These factors should be evaluated objectively, the court should consider what a reasonable person would do in light of these factors and if it points towards a primary purpose of emergency or non-emergency. 

Forfeiture Confrontation Clause

• Criminal ∆ forefits confrontation rights when the ∆ intended to prevent the witness from testifying

Rule 612. Writing Used to Refresh a Witness

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.