Evidence Rules

FRE 102

Rule about purpose; Should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law

FRE 401

Relevance Test

Evidence is relevant if:

• (a) Probativeness

  • It has any tendency to make a fact more or less probable

• (b) Materiality

  • The fact is of consequence in determining the action

FRE 402

General admissibilty of relevant evidence

• Relevant evidence is admissible unless any of the following provides otherwise:

  • US Constitution

  • Federal statute

  • Other FRE rules

  • Other rules prescribed by Supreme Court

Procedures for deciding the admissibility of evidence?

104(a) Questions of Law and 104(b) Conditional Relevance - Question of Fact

104(a)

Questions of Law

• Whether hearsay rules, privilege, etc. apply

• Judge finds the preliminary matter by a preponderance of the evidence

104(b)

Conditional Relevance - Question of Fact

• Judge decides there is sufficient proof to support a finding of the conditional fact and gives it to the jury

Conditional Relevance

= Evidence might be relevant only if some other condition is met or some conditional fact is true

FRE 403

The court may exclude evidence if its probative value is substantially outweighed by dangers such as:

1. Unfair prejudice

2. Confusing the issues

3. Misleading the jury

4. Undue delay

5. Wasting time

6. Needlessly presenting cumulative evidence

Steps on approaching 403 problem

1. Identify the evidence at issue

2. Determine its probative value

3. Identify the danger/prejudice it would create

4. Balancing

Myers Four-Factor Test for Flight Evidence Admissibility

1. Defendant’s behavior → Flight

2. Flight → Consciousness of guilt

3. Consciousness of guilt → Consciousness of guilt concerning crime at charge

4. Consciousness of guilt concerning crime at charge → Actual guilt of the crime charged

What are stipulations?

= When both parties agree to a fact; Can stipulate to a fact and introduce this as evidence

Rule 407

Subsequent remedial measures

= When measures are taken that would have made an earlier injury/harm less likely to happen, evidence of the subsequent measures is NOT admissible to prove:

(a) Negligence

(b) Culpable conduct

(c) A defect in a product or its design

(d) A need for a warning or instruction

Rule 407 exceptions

Evidence may be admitted for another purpose like impeachment or proving ownership, control, or feasibility of precautionary measures

Rule 408

Compromise offers and negotiations

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

(a) Furnishing, promising, or offering a valuable consideration in compromising or attempting to compromise the claim; and

(b) Conduct or a statement made during compromise negotiations about the claim

Rule 408 exceptions

• Conversations involving civil settlements with government agencies are admissible in court!

• Evidence can be admitted for another purpose such as proving a witness’s bias/prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution

Rule 409

= Evidence of promises/offers to pay medical, hospital, similar expenses resulting from injury is not admissible to prove liability for the injury; Applies only to offers and not statements!

Rule 410

= In a civil or criminal case, evidence of pleas is not admissible against the defendant who made the plea or participated in plea discussions

Rule 411

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

Rule 411 exceptions

May admit this evidence for another purpose such as proving a witness’s bias/prejudice or proving agency, ownership, or control

Rule 410 exceptions

These may be admissible:

• If another statement made during the plea discussions has been introduced, in fairness the statements ought to be considered together

• 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 404

Character Evidence

= Evidence of a person’s character or character trait is not admissible to prove that the person acted in accordance with the character/trait in committing the crime

Steps for approaching character evidence

1. Figure out the purpose. Is it for propensity?

2. If it is a propensity purpose, is it allowed under an exception?

3. Even if it can be admitted after a character evidence analysis, does it pass Rule 403?

What is a common place/scheme?

= Prosecutorial argument that the prior act is part of a larger project or course of conduct

Rule 413

= In a criminal case in which a defendant is accused of sexual assault, the court may admit evidence of prior acts of SA

404(a)(2)(A)

= Defendant may offer evidence of their own pertinent trait; Opens door for prosecution to rebut defendant’s evidence with their own character evidence of defendant

404(a)(2)(B)

= Defendant may offer character evidence of alleged victim’s pertinent trait; Opens door for prosecution to rebut with character evidence of victim’s trait OR defendant’s same trait

404(a)(2)(C)

= In a homicide case, the government may offer character evidence of alleged victim’s trait of peacefulness to rebut defendant’s evidence that victim was first aggressor

• Only triggered by defendant describing or providing evidence of victim as first aggressor, doesn’t necessarily have to be character evidence

Rule 414

= In a criminal case in which a defendant is accused of SA of minors, the court may admit evidence of prior acts of SA of minors

Rule 415

= = In a civil case in which a defendant is accused of sexual assault or child molestation, the court may admit evidence of prior acts of SA/child molestation

Rule 405(a)

Methods of proving character:

• When evidence of a person’s character/character trait is admissible, it may be proved by testimony about the person’s reputation or testimony by opinion

  • On witness cross examination, court may allow questions about defendant’s specific prior acts

Rule 405(b)

= When person’s character/character trait is an essential element of a charge, claim, or defense, it may be proved by defendant’s specific prior acts

Rule 405(b) scenarios:

1. Entrapment

2. Defamation

3. Custody disputes

4. Negligent hiring

Rule 405(b) entrapment?

= When defense raises entrapment as a defense; Defendant was allegedly not predisposed to doing it before being contacted by government agency

Rule 405(b) defamation?

= When defense uses character evidence to prove the truth of a statement

Rule 405(b) custody disputes?

= Character of the parent is essential to determine the best interest of the child

Rule 405(b) negligent hiring?

= When defense uses character evidence of driving history, for example, to establish a company’s negligence in hiring

3 forms of character evidence?

1. Reputation

2. Specific Acts

3. Opinion

FRE 406

= Evidence of a person’s habit or a organization’s routine practice may be admitted to prove that on a particular occasion the person or org acted in accordance with the habit or routine practice.

→ Court can admit evidence regardless of whether it is corroborated or whether there was an eyewitness

FRE 601

= Every person is competent to be a witness unless rules provide otherwise

FRE 615

= At a party’s request, the court must order witnesses excluded so they can’t hear each other’s testimony

FRE 615 does NOT exclude 4 types of people…

1. A party who is a natural person

2. An officer or employee of a party that’s not a natural person, after being designated as party’s representative by attorney

3. A person whose presence a party shows to be essential to presenting the party’s claim or defense

4. A person authorized by statute to be present

FRE 606

Juror’s Competency as a Witness

A juror may not testify as a witness before the other jurors at the trial.

Rule ___ prohibits jury from testifying about…

606

1. Any statement or incident that occurred during jury’s deliberations

2. Effect of anything on that juror or another juror’s vote

3. Any juror’s mental processes concerning the verdict or indictment

4. Cannot give affidavit or evidence of a juror’s statement on these matters

FRE 606 exceptions?

Juror may testify about:

1. Extraneous prejudicial info improperly brought to jury’s attention

2. An outside influence improperly brought to bear on any juror

3. Mistake made in entering the verdict on the verdict form

FRE 602

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

4 capacities for witness to testify:

1. Narration

2. Understanding the importance of telling the truth

3. Memory

4. Perception

4 methods of attacking witness testimony (impeachment):

1. Attack narrative capacity (ambiguities in testimony)

2. Attack memory

3. Attack perception

4. Attack sincerity

3 categories of undermining a witness’s credibility (impeachment):

1. Witness is mistaken (non-character)

2. Witness is lying now (non-character)

3. Witness has a general character of being a liar and is lying now (character)

FRE 607

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

FRE 608(a)

Witness character for truthfulness or untruthfulness

= Witness’s credibility may be attacked or supported by character testimony for truthfulness/untruthfulness.

Evidence of truthful character is admissible only after witness’s character for truthfulness has been attacked.

FRE 608(b)

= Extrinsic evidence is not admissible to prove specific instances of a witness’s conduct to attack/support their character for truthfulness.

May be allowed to be inquired into on cross-examination if they are probative of character for truthfulness/untruthfulness for witness OR another witness whose character they have testified about.