BLH+KAC FRE Rules

104(a)

104(a)

The court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege

104(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. The court may admit the proposed evidence on the condition that the proof be introduced later.

401

Evidence is relevant if:

It makes a fact of consequence more or less probable

401.6

Material evidence is evidence offered to establish a matter that is an issue

A “fact of consequence” is an ultimate fact because it is a substantive element of a charge, claim or defense

403

The judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

1. Unfair prejudice

2. Confusing the issues

3. Misleading the jury

4. Undue delay

5. Wasting time

6. Needlessly presenting cumulative evidence

403.7

Rule 105 provides for a limiting instruction from the trial judge, and a limiting instruction is frequently used as the second line of defense when trial counsel has unsuccessfully attempted to exclude evidence under 403.

105

The court may admit evidence for a limited purpose

404(a)(1)

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

404(a)(2)(A)

In a criminal case a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

404(a)(2)(B)

In criminal trials subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(iii) offer evidence of the victim's prior sexual behavior.

404(a)(2)(C)

In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

404(a)(3)

Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

404(b)(2)

This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

404(b)(3)

In a criminal case, the prosecutor must:

Provide reasonable notice in writing of any such evidence that the prosecutor intends to offer at trial and the reasoning that supports the purpose, so that the defendant has a fair opportunity to meet it;

405(a)

When character evidence is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.

405(b)

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

406

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove 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.

406.2

A habit is defined as one’s regular response to a repeated situation with a specific type of conduct.

406.4

Evidence of business custom or routine practice offered to prove conforming conduct is generally admissible.

407

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;

• culpable conduct;

• a defect in a product or its design; or

• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures, such issues must be controverted in the case.

407.2

This Rule doesn’t apply to remedial measures undertaken by a third party

407.5

Subsequent remedial measures may not be used to prove either the existence of a defect in a product or in it’s design or the necessity for a warning or instruction to accompany the product.

408

(a) conduct or a statement made during settlement negotiations are inadmissible — 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. Any theory of relevance is permissible provided the evidence is not offered to establish liability for, or invalidity of, the claim or its amount

408 Example

If a defense lawyer reveals during settlement talks that the clients brakes had failed a recent inspection before the accident, Rule 408 would not allow that lawyers statement to be admitted at the trial, but those facts about the brakes and the inspection would still be admissible as long as they were proved in some other way.

409

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.

410 (Criminal Counterpart to 408)

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) plea discussions that didn’t lead to a settlement

412(a)

Evidence of a victim’s sexual behavior and predispositions are inadmissible

412(b)(1)

Exceptions.

(1) Criminal Cases. The court may admit the following evidence in a criminal case: evidence of specific behavior if offered to prove the defendant was not the source of the physical evidence, to prove consent, or if the exclusion would violate the defendant’s constitutional rights

(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if it does not violate 403 or if the victim placed it in controversy

413

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

413.1

The rule is not limited to convictions; thus it provides for the admissibility of any evidence, including mere allegations, of other offenses of sexual assault committed by the defendant.

601

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

601.2

No requirement for a preliminary examination to determine competency under Rule 104, but it is advisable in any case in which the trial judge has reason to believe that the witness’s testimony might be impaired by infancy, mental or psychological condition, or chemical influence

601.3

The court should determine the witness’s ability to state correctly matters that have come within his or her perception, whether the witness can communicate to the jury; the witness’s ability to tell the difference between truth and falsity; and the likelihood that the witness will be subject to effective cross-examination.

602

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

602.2

The party offering the witness must establish a foundation “sufficient to support a finding” that the witness possesses first hand knowledge of the facts to which they will testify.

701

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.

702

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.

901

(a) In General. 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.

(b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge.

(2) Nonexpert Opinion About Handwriting.

(3) Comparison by an Expert Witness or the Trier of Fact.

(4) Distinctive Characteristics and the Like.

(5) Opinion About Identifying a Voice.

(6) Evidence a Telephone Conversation Was Made.

(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Evidence About Public Records.

(8) Evidence About Ancient Documents or Data Compilations.

(9) Evidence a Process or System is accurate.

(10) Methods Provided by a Statute or Rule.

901.6

If more than 1 person has had custody, identification may involve establishing a chain of custody. Pursuant to this technique testimony is provided by each person who had custody of the item from the time it was taken from it’s relevant setting in the operative facts of the case until the time it is offered at trial. Establishing such a chain of custody authenticates an item by showing the improbability “that the original item has either been exchanged with another or been contaminated or tampered with.”

*In a criminal proceeding not everyone needs to testify you only need to show the item is in substantially the same condition as when the crime was comitted.

901.19

Reply doctrine example: Must show a letter was written to a particular person, and that the letter being offered into evidence is purported to be written by another person in timely response to the communication of the first person, the second letter’s authenticity may be established by virtue of it’s unique contents. The proponents of the purported reply must establish that the first letter was actually sent to the person whose reply communication was sought to be authenticated

902 (902.1)

902 eliminates the requirement of an extrinsic foundation for certain types of documents. If the document is admissible, it will be admitted without any testimony or other evidence of its genuineness

1001

(d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.

(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

1001.1

The essence of the Best evidence Rule is that in proving the contents of a writing, recording, or photograph, the original is preferentially required; but if the original is unavailable through no fault of the proponent of evidence, secondary evidence may be admitted.

1001.10

A “duplicate original” is a distinguishable concept from that of a “duplicate,” for example where parties to a bilateral contract intend that each should have an executed original.

1001.14

The Rule provides that carbon copies are duplicates

1002

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

1008

But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

612

(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.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial.

614

(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

(b) Examining. The court may examine a witness regardless of who calls the witness.

(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

703

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.

703.5

An expert may, within the court’s discretion, rely upon hearsay evidence.

704

(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. (Remember they updated this exception to the rule recently)

705

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

607

Any party, including the party that called the witness, may attack the witness’s credibility.

607.5

“The collateral matter doctrine” provides that a party may not present extrinsic evidence to contradict a witness on a collateral matter. Substantive issues in the case are clear examples of issues that are not collateral; they are relevant to impeach a witness and are admissible as substantive proof

608

Reputation or Opinion Evidence. Evidence of a witness’s truthful character is admissible only after the witness’s character for truthfulness has been attacked.

608(b)

Specific Instances of Conduct. 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.

801

(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.

801(d)(1)(A)

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

is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

801(d)(1)(B)

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

is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or

801(d)(1)(C)

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

identifies a person as someone the declarant perceived earlier.

802(d)(2)(A)

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

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

802(d)(2)(B)

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

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

801(d)(2)(C)

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

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

801(d)(2)(D)

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

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

801(d)(2)(E)

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

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

803(1)

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

803(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.

803(3)

Then-Existing Mental, Emotional, or Physical Condition. A statement describing the declarant's then-existing state of mind, emotion, or physical condition.

803(4)

Statement made for medical diagnosis or treatment.

1. A statement that is made for the purpose of receiving medical care and

2. pertains to the declarant's medical history, symptoms, or cause of injury.

803(5)

Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

803(6)

Business Records. A record made at or near the time of an event by a person with knowledge, kept in the course of a regularly conducted activity, and it is the regular practice of that activity to make such a record.