Mock Trial Rules of Evidence
0.0(0)
Learn
Practice Test
Spaced Repetition
Match
FlashcardsCard Sorting
1/105
There's no tags or description
Looks like no tags are added yet.
Study Analytics
Name | Mastery | Learn | Test | Matching | Spaced |
|---|
No study sessions yet.
106 Terms
1
New cards
Rule 101.
Scope:
These Mock Trial Rules of Evidence govern the trial proceedings of Iowa Mock Trial.
These Mock Trial Rules of Evidence govern the trial proceedings of Iowa Mock Trial.
2
New cards
Rule 102.
Purpose and Construction:
These Rules are intended to secure fairness in administration of the trials, eliminate unjust delay, and promote the laws of evidence so that the truth may be ascertained.
These Rules are intended to secure fairness in administration of the trials, eliminate unjust delay, and promote the laws of evidence so that the truth may be ascertained.
3
New cards
Rule 103.
Harassing Not Permitted:
Harassing a witness is not permitted on direct or cross-examination.
Harassing a witness is not permitted on direct or cross-examination.
4
New cards
Rule 104.
Narration:
Witnesses shall not be permitted to give narrative testimony. Testimony of witnesses must proceed by question and answer.
Witnesses shall not be permitted to give narrative testimony. Testimony of witnesses must proceed by question and answer.
5
New cards
Rule 201.
Judicial Notice:
The court may take judicial notice of facts which are capable of easy determination from a source whose accuracy cannot reasonably be questioned. This includes, but is not limited to, calendar events.
The court may take judicial notice of facts which are capable of easy determination from a source whose accuracy cannot reasonably be questioned. This includes, but is not limited to, calendar events.
6
New cards
Rule 401.
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 more probable or less probable than it would be without the 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 more probable or less probable than it would be without the evidence.
7
New cards
Rule 402.
Relevant Evidence Generally Admissible:
Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by these Rules. Evidence which is not relevant is not admissible.
Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by these Rules. Evidence which is not relevant is not admissible.
8
New cards
Rule 403.
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
9
New cards
Rule 404. (A) (1)
Character Evidence Not Admissible to Prove Conduct
10
New cards
Exceptions
11
New cards
Other Crimes
(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. In a criminal case, 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 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
(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. In a criminal case, 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 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
12
New cards
13
New cards
Rule 404 (A) (2)
Character Evidence Not Admissible to Prove Conduct
14
New cards
Exceptions
15
New cards
Other Crimes
(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:
(2) Character of alleged victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait 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
(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:
(2) Character of alleged victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait 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
16
New cards
17
New cards
Rule 404 (A) (3)
Character Evidence Not Admissible to Prove Conduct
18
New cards
Exceptions
19
New cards
Other Crimes
(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:
(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.
(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:
(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.
20
New cards
Rule 404.
Character Evidence Not Admissible to Prove Conduct
21
New cards
Exceptions
22
New cards
Other Crimes
(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 conforms to character. 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.
(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 conforms to character. 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.
23
New cards
Rule 405. (A)
Methods of Proving Character
(a) Reputation or opinion. 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 crossexamination, questions may be asked regarding relevant, specific conduct.
(a) Reputation or opinion. 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 crossexamination, questions may be asked regarding relevant, specific conduct.
24
New cards
Rule 405. (B)
Methods of Proving Character
(b) Specific instances of conduct. 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.
(b) Specific instances of conduct. 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.
25
New cards
Rule 406.
Habit, Routine Practice:
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.
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.
26
New cards
Rule 407.
Subsequent 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 less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
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 less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
27
New cards
Rule 408 (A) (1)
Compromise and Offers to Compromise
(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim
(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim
28
New cards
and
29
New cards
Rule 408 (A) (2)
Compromise and Offers to Compromise
(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
30
New cards
Rule 408 (B)
Compromise and Offers to Compromise
(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice
(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice
31
New cards
negating a contention of undue delay
32
New cards
and proving an effort to obstruct a criminal investigation or prosecution.
33
New cards
Rule 409.
Payment of Medical or 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.
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.
34
New cards
Rule 410.
Inadmissibility of Pleas, Plea Discussions, and Related Statements:
Evidence of the following is not, in any civil or criminal proceeding, admissible against a defendant who made the plea or was a participant in plea discussions:
(1) plea of guilty which was later withdrawn
Evidence of the following is not, in any civil or criminal proceeding, admissible against a defendant who made the plea or was a participant in plea discussions:
(1) plea of guilty which was later withdrawn
35
New cards
(2) plea of nolo contendere
36
New cards
(3) statement made in the course of any proceeding under Rule 11 of the FRCP or comparable state proceeding about either of the foregoing pleas
37
New cards
or
(4) statement made during plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or that results in a plea of guilty and is later withdrawn.
Admissible: (1) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and it ought, in fairness, be considered with it, or (2) in a criminal proceeding for perjury or false statement if it was made by the defendant under oath, on the record and in front of counsel.
(4) statement made during plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or that results in a plea of guilty and is later withdrawn.
Admissible: (1) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and it ought, in fairness, be considered with it, or (2) in a criminal proceeding for perjury or false statement if it was made by the defendant under oath, on the record and in front of counsel.
38
New cards
Rule 411.
Liability Insurance (civil case only):
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.
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.
39
New cards
Rule 501.
General Rule:
There are certain admissions and communications excluded from evidence on grounds of public policy.
Among these are:
(1) communications between husband and wife
There are certain admissions and communications excluded from evidence on grounds of public policy.
Among these are:
(1) communications between husband and wife
40
New cards
(2) communications between attorney and client
41
New cards
(3) communications among grand jurors
42
New cards
(4) secrets of state
43
New cards
and
(5) communications between psychiatrist and patient.
(5) communications between psychiatrist and patient.
44
New cards
Rule 601.
General Rule of Competency:
Every person is competent to be a witness.
Every person is competent to be a witness.
45
New cards
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 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. (See Rule 2.2)
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that 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. (See Rule 2.2)
46
New cards
Rule 607.
Who May Impeach:
The credibility of a witness may be attacked by any party, including the party calling the witness.
The credibility of a witness may be attacked by any party, including the party calling the witness.
47
New cards
Rule 608 (A)
Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character. 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.
(a) Opinion and reputation evidence of character. 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.
48
New cards
Rule 608 (B)
Evidence of Character and Conduct of Witness
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, 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 inquired into 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. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, 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 inquired into 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. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.
49
New cards
Rule 609 (A) (1)
Impeachment by Evidence of Conviction of Crime
(a) General rule. For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative v
(a) General rule. For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative v
50
New cards
Rule 609 (A) (2)
Impeachment by Evidence of Conviction of Crime
(a) General rule. For the purpose of attacking the character for truthfulness of a witness,
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
(a) General rule. For the purpose of attacking the character for truthfulness of a witness,
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
51
New cards
Rule 609 (B)
Impeachment by Evidence of Conviction of Crime
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
52
New cards
Rule 609 (C)
Impeachment by Evidence of Conviction of Crime
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
53
New cards
Rule 609 (D)
Impeachment by Evidence of Conviction of Crime
(d) Juvenile adjudication. Evidence of juvenile adjudication is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(d) Juvenile adjudication. Evidence of juvenile adjudication is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
54
New cards
Rule 610.
Religious Beliefs or Opinions:
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.
55
New cards
Rule 611 (A)
(a) Control by Court. The Court shall exercise reasonable control over questioning of witnesses and presenting evidence so as to:
(1) make the interrogation and presentation effective for ascertaining the truth,
(2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue embarrassment.
(1) make the interrogation and presentation effective for ascertaining the truth,
(2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue embarrassment.
56
New cards
Rule 611 (B)
(b) Scope of cross examination. The scope of the 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.
57
New cards
Rule 611 (C)
(c) Leading questions. 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 should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
58
New cards
Rule 611 (D)
(d) Re-direct/Re-cross. 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 or re-cross, but such questions must be limited to matters raised on redirect examination and should avoid repetition
59
New cards
Rule 611 (E)
(e) Permitted motions. The only motion permissible is one requesting the judge to strike testimony following a successful objection to its admission.
60
New cards
Rule 612.
Writing Used to Refresh Memory:
If a written statement is used to refresh the memory of a witness either while testifying or before testifying, the Court shall determine that the adverse party is entitled to have the writing produced for inspection. The adverse party may cross examine the witness on the material and introduce into evidence those portions which relate to the testimony of the witness.
If a written statement is used to refresh the memory of a witness either while testifying or before testifying, the Court shall determine that the adverse party is entitled to have the writing produced for inspection. The adverse party may cross examine the witness on the material and introduce into evidence those portions which relate to the testimony of the witness.
61
New cards
Rule 613 (A) and (B)
Prior Statements of Witnesses
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
62
New cards
Rule 701.
Opinion Testimony by Lay Witness:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
63
New cards
Rule 702.
Testimony by Experts:
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 thereto in the form of an opinion or otherwise.
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 thereto in the form of an opinion or otherwise.
64
New cards
Rule 703.
Bases of Opinion Testimony by Experts:
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 shall 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 substantially outweighs their prejudicial effect.
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 shall 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 substantially outweighs their prejudicial effect.
65
New cards
Rule 704 (A) and (B)
Opinion on Ultimate Issue:
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
66
New cards
Rule 705.
Disclosure of Facts or Data Underlying Expert Opinion:
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to 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.
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to 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.
67
New cards
Rule 801 (A) (B) (C)
Definitions: (of Hearsay)
The following definitions apply under this article:
(a) Statement. A "statement" is an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "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.
The following definitions apply under this article:
(a) Statement. A "statement" is an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "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.
68
New cards
Rule 801 (D) (1)
(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. 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
(1) Prior statement by witness. 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
69
New cards
or
70
New cards
Rule 801 (D) (2) (A, B, C, D)
(d) Statements which are not hearsay. A statement is not hearsay if:
(2) Admission by party-opponent. The statement is offered against a party and is
(A) the party's own statement in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
(D) a statement by the party's agent or servant concerning a matter within scope of the agency or employment, made during the existence of the relationship, or
(2) Admission by party-opponent. The statement is offered against a party and is
(A) the party's own statement in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
(D) a statement by the party's agent or servant concerning a matter within scope of the agency or employment, made during the existence of the relationship, or
71
New cards
Rule 801 (D) (2) (E)
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
72
New cards
Rule 802.
Hearsay Rule:
Hearsay is not admissible except as provided by these Rules.
Hearsay is not admissible except as provided by these Rules.
73
New cards
Rule 803 (1)
Hearsay Exceptions, Availability of Declarant Immaterial:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
74
New cards
Rule 803 (2)
Hearsay Exceptions, Availability of Declarant Immaterial:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited utterance. 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.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited utterance. 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.
75
New cards
Rule 803 (3)
Hearsay Exceptions, Availability of Declarant Immaterial:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then existing mental, emotional, or physical conditions. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then existing mental, emotional, or physical conditions. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
76
New cards
Rule 803 (4)
Hearsay Exceptions, Availability of Declarant Immaterial:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
77
New cards
Rule 803 (5)
Hearsay Exceptions, Availability of Declarant Immaterial:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
78
New cards
Rule 803 (6)
(6) Records of regularly conducted activity. A memo, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from info transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memo, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of info or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. For purposes of Mock Trial, police reports created in the regular course of the officer's duties may be entered as a record of regularly conducted activity if the report otherwise meets the requirements of this rule.
79
New cards
Rule 803 (8)
Hearsay Exceptions, Availability of Declarant Immaterial:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(8) Public records. A record or statement of a public office or agency if it sets out (A) its regularly conducted and regularly recorded activities
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(8) Public records. A record or statement of a public office or agency if it sets out (A) its regularly conducted and regularly recorded activities
80
New cards
(B) matters observed while under a legal duty to report
81
New cards
or (C) factual findings from a legally authorized investigation. This exception does not apply if the opponent shows that the source of the information or other circumstances indicate a lack of trustworthiness
82
New cards
Rule 803 (18)
Hearsay Exceptions, Availability of Declarant Immaterial:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
83
New cards
Rule 803 (21)
Hearsay Exceptions, Availability of Declarant Immaterial:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(21) Reputation as to character. Reputation of a person's character among associates or in the community.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(21) Reputation as to character. Reputation of a person's character among associates or in the community.
84
New cards
Rule 803 (22)
Hearsay Exceptions, Availability of Declarant Immaterial:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused.
85
New cards
Rule 804 (A) (1, 2, 3, 4, 5)
Declarant Unavailable:
(a) Definition of unavailability. "Unavailability as a witness" includes situations which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying on subject matter of declarant's statement
(a) Definition of unavailability. "Unavailability as a witness" includes situations which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying on subject matter of declarant's statement
86
New cards
or
(2) refusing to testify on the subject matter of declarant's statement despite a court order
(2) refusing to testify on the subject matter of declarant's statement despite a court order
87
New cards
or
(3) testifies to a lack of memory of subject matter of declarant's statement
(3) testifies to a lack of memory of subject matter of declarant's statement
88
New cards
or
(4) is unable to be present or to testify at the hearing due to death or then existing physical or mental illness or infirmity
(4) is unable to be present or to testify at the hearing due to death or then existing physical or mental illness or infirmity
89
New cards
or 9 ISBA CL & CE,
(5) is absent from the hearing and the proponent of a statement has been unable to get the declarant's attendance by process or other reasonable means a Declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
(5) is absent from the hearing and the proponent of a statement has been unable to get the declarant's attendance by process or other reasonable means a Declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
90
New cards
Rule 804 (B) (1)
(b) Hearsay exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
91
New cards
Rule 804 (B) (2)
(b) Hearsay exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
92
New cards
Rule 804 (B) (3)
(b) Hearsay exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
93
New cards
Rule 804 (B) (4)
(b) Hearsay exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated
(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated
94
New cards
(B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as likely to have accurate information concerning the matter declared.
95
New cards
Rule 804 (B) (5)
(b) Hearsay exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(5) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
(5) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
96
New cards
Rule 805.
Hearsay within Hearsay:
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.
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.
97
New cards
Rule 901.
Necessity of Authentication:
Evidence, other than testimony offered under oath, must be authentic. Foundation evidence offered for authentication is sufficient if it shows that the evidence is what it is purported to be.
Evidence, other than testimony offered under oath, must be authentic. Foundation evidence offered for authentication is sufficient if it shows that the evidence is what it is purported to be.
98
New cards
Rule 1000.
Fair and Accurate Copy Required:
If the content of any writing or photograph is offered into evidence, the original document or photograph or a fair and accurate copy of the original must be used.
If the content of any writing or photograph is offered into evidence, the original document or photograph or a fair and accurate copy of the original must be used.
99
New cards
Rule 1101.
Argumentative/Badgering:
Any question that is essentially an argument to the trier of fact is improper. Badgering the witness is not allowed.
Any question that is essentially an argument to the trier of fact is improper. Badgering the witness is not allowed.
100
New cards
Rule 1102.
Asked and Answered:
Questions that have been responsively answered may not be re-asked of the same witness by the same attorney. The cross-examiner may ask the same questions previously asked during the direct examination.
Questions that have been responsively answered may not be re-asked of the same witness by the same attorney. The cross-examiner may ask the same questions previously asked during the direct examination.
Note 
Flashcards (81)