FRE - Rule Flashcards

R 102

FRE Policy - rules should be construed to administer proceedings daily, eliminate unjustifiable expense/delay, and promote development of evidence law to ascertain the truth and promote just determination (Costantino v. Herzog)

R 103

Objections must be timely, precise, and specific. Vague/overbroad objections will not preserve an issue on appeal

• motion to strike follows an objection

• objection must be on the right grounds to preserve the issue (United States v. Gomez-Norena)

R 106 - Rule of Completeness

A party who a fragmentary statement is introduced against may demand that any other part would be admitted to explain or clarify the portion admitted to avoid misleading impressions. (United States v. Glover)

R 106 Admissibility

Test for 106 admissibility:

1. Is it relevant?

2. Does additional evidence explain the evidence already admitted?

3. Does it place the admitted evidence in the proper context?

4. Does admission serve to avoid misleading the trier of fact? AND

5. Does admission ensure a fair and impartial understanding of all evidence

R 201

Judicial notice allows the judge to take notice of a fact and instruct a jury accordingly:

• criminal law - may consider the fact to be conclusively established as substitute proof of something

• civil law - must consider the fact to be conclusively established in a trial as a substitute for proof of something

There is wide discretion to take judicial notice at any stage in the proceeding (Dippin' Dots, Inc. v. Frosty Bites Distribution, LLC)

R 301

If a base is established, the fact is presumed true and the party against whom a presumption is directed has the opportunity to rebut

Mandatory - rule of law (ex. statute says those under 17 cannot consent to sex)

Rebuttable -

• bursting bubble - opponent has burden of production to introduce evidence to rebut or meet presumption, the presumption will disappears and be replaced by a permissive interference if the bubble is burst (any evidence bursts the bubble) (federal question is bursting bubble unless statute says otherwise)

• morgan rule - impose a burden of production and persuasion on the opposing party. this requires more than an objection and some evidence

If a presumption disappears or is rebutted, the sides will go back to fighting over the facts

R 401

in theory any evidence connected to a case is relevant so long as an advocate has an explanation of how the evidence fits in with the overall theory of the case

• just has to make a legally significant fact more probable than it would be without the evidence

R 402

There is presumptive admissibility for relevant evidence. Relevance depends on a number of factors: cause of action, procedural posture of the case, theory of the case, and party that bears the burden of persuasion

RELEVANCE IS ONLY 1 FACTOR TO BE CONSIDERED FOR ADMISSIBILITY

• relevant evidence can be excluded if Constitution, statute, FRE, or another rule indicates

• for evidence to be relevant it must be probative of the proposition it is offered to prove and the proposition to be proved must be one that is of consequence to the determination of the action

R 403

Presumptive Admissibility - presumed admissible unless the 403 balancing test indicates there would be substantial impact on integrity of fact finding

Weighs evidence against: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence

R 404(a) Character Evidence

Three types of Character Evidence

1) reputation - how others in a shared community perceive a reputation trait the person has, relaying it to the jury

2) opinion - a witness who knew the person for X amount of time relating an opinion of their character, relaying it to the jury (NO SPECIFIC ACTS ALLOWED)

3) specific acts - only when the trait is an element of the claim, charge, or defense at bar

Not admissible to claim that they acted in accordance with that trait

In a homicide case, the prosecutor can offer evidence of the victim’s trait of peacefulness to negate self defense claims

404(b) Evidence of Past Criminal Act

Evidence of other crimes or acts are not admissible to prove a person’s character, but can be used to prove knowledge of something (Huddleston v. United States)

• Court should assess under 104(b) to determine when the relevancy of evidence depends on the fulfillment of a condition of fact, the court should admit it on or subject to the introduction of evidence sufficient to support fulfillment of condition

404(b) evidence requires noticed and an enhanced 403 balancing test to see if the proponent can show a proper, non-character use for evidence and provide proof that uncharged acts were actually committed (if entered it has a limiting instruction)

Some examples of permissible non-character uses: intrinsic uncharged act, motive, opportunity, intent, preparation, common plan/scheme, knowledge of absence of mistake/accident, identity, doctrine of chances

R 406

Habit and Routine - information may be admitted to prove that on a particular occasion a person or organization would have acted in accordance with habit/routine

• Habit - proving that a person is a semi-automatic action, almost an unconscious response to a specific set of circumstances (ex. putting on a watch)

• Routine - showing the customs, practices, and rules in an organization

R 407

Common Law Exclusion - remedial measures cannot be used to prove negligence, culpability, defective product/design, or need for warning/instruction (Wood v. Morbark Industries)

• Not an absolute bar, can be admitted for purposes of impeachment, proving ownership, control, or the feasibility of precautionary measures

Social policy - you can make a fix without being concerned about fault

R 408

Common Law Exclusion - compromises and offers to compromise cannot be entered into evidence (Orr v. City of Albuquerque)

Social policy - encourages parties to settle disputes without concern that either their or their opponent’s offers, conduct, or statements would be used against them at trial

R 409

Common Law Exclusion - offers to pay medical expenses are not admissible, but any statements of fault that accompany them are

Social policy - These may arise from a humanitarian impulse, rather than feelings of liability and causation. They may also be made via insurance, but are not a statement of liability.

R 410

Common Law Exclusion - evidence of guilty pleas, no contest pleas, statements made during a proceeding related to either plea, or statements made during a plea discussion with an attorney that do not result in a plea or result in a withdrawn plea are excluded (US v. Olson)

• does NOT protect a non-party witness (ex. gov’t witness can be impeached by introducing evidence of a withdrawn or rejected plea)

Social policy - Designed to promote and encourage plea negotiations and bargaining

R 411

Common Law Exclusion - Whether someone has liability insurance is excluded from evidence (Palmer v. Krueger)

R 412 Rape Shield

Generally prohibits evidence of an alleged victim’s prior sexual behavior or predisposition. (including use of contraceptives, illegitimate children, STDs, etc and evidence of sexual fantasies one may have)

• neither party can introduce the information (can’t bolster a “good” reputation)

• Exceptions apply

  • crim - allowed to prove someone else caused the injury or that there was previous sexual activity between parties (United States v. Pumpkin Seed)

  • civil - Evidence of a victim’s sexual behavior/disposition may be admitted if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to the party (Rodriguez-Hernandez v. Miranda-Velez)

Needs 14 days notice to enter 412 evidence (can be waived for good cause) and a closed hearing will occur so the judge can determine if it is admissible

R 413/414

In cases with sexual assault of child molestation, prosecution can introduce into evidence prior instances of sexual assault or molestation committed by the accused.  They can also use the evidence for its bearing on any matter to which it is relevant including character and propensity.

Needs 15 day notice (can be waived for good cause)

R 415

In civil cases with sexual assault or molestation, the rule allows use of specific acts evidence for prior sexual misconduct even if not essential to a charge, claim, or defense

Needs 15 day notice (can be waived for good cause)

R 501

Privileges - the legal right to not introduce some evidence in a trial when the evidence is otherwise valid

Can be:

• voluntary - holder tells court they want to waive

• informal - holder disclose information without concern for continued confidentiality (disclosure to one person is disclosure to all)

Examples:

• spousal - witnesses can refuse to testify against a spouse in a criminal trial only

• therapist-client

• priest-penitent

R 502

There are limits on waiving attorney-client privilege. It cannot be inadvertent, when the holder took reasonable steps to prevent disclosure, and where the holder reasonably took steps to rectify the error
Attorney-client privilege continues after death (Swidler & Berlin v. US)

R 601

Every person is competent to be a witness unless otherwise provided. Witness credibility is for the jury, but a judge decides if they are competent to testify. (United States v. Ramirez)

• civil -  state law governs the witness’s competency regarding a claim/defense for which the state law supplies the rule of decision

Witness is competent if they will be able to appreciate the duty to testify truthfully and has at least some capacity to observe, recall, and communicate events

• You could be incompetent for reasons such as age, religion, conviction of a crime, personal interest, and mental capacity

Presumption of competency extends to children (United States v. IMM)

R 602

A 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.  

R 603

Oath/affirmation to testify truthfully must be given to each witness in a form designed to impress the duty on the witness’s consciousness (needs to “prick” the consciousness)

R 604

Interpreters must be qualified and must give an oath/affirmation to make a true translation (familiar with english and witness’s language, unbiased, unaffiliated with parties, and must take an oath (does not need to be in front of the jury))

R 605

The presiding judge may NOT testify as a witness at a trial

R 606

A juror may NOT testify as a witness at a trial before other jurors

Testimony about juror misconduct is allowed. The jury cannot investigate the case independently, if a jury did a juror may testify about that. The same is true for racial bias in the jury room (Pena-Rodriguez v. CO)

R 607

Any party, including the one who called the witness, can impeach them

R 608

Character for truthfulness is the only trait that a witness can be attacked on under this rule. Must be limited to reputation or opinion testimony

• evidence of reputation for truthfulness only comes in after an attack (no bolstering)

Motivation/Bias impeachments - can be used to bring in relationships that could show bias like family, business, employment, sexual relations (with 412 restrictions), and shared membership in an organization (1st Amend Freedom of Association protects)

R 609

Impeachment by evidence of a criminal conviction so long as the crime is

• less than 10 years old

• either a crime with 1+ years in prison (felony) or elements of dishonesty (crimen falsi)

R 611

No leading questions on direct examination, except for foundational matters. 

Judges have the discretion to permit leading questions on direct to help develop witness testimony or when the witness to a party must call in its own case-in-chief is hostile or closely identified with the adverse party

Cross is limited to topics covered on direct

R 612

Procedural protections that permit the opponent of refreshed testimony to introduce into evidence other portions of writing that were used to refresh the witness’s testimony

• almost anything can be used (including a metallica song) (US v. Rappy)

• Writing does not have to be done by the witness, just something that would “stir the embers of cooling memory” (Baker v. State)

R 613

Impeachment by prior inconsistent statements

prior = made by the witness at trial (does not have to be made under oath)

inconsistent = exists if when comparing the two statements taken as a whole, either by what it says or omits, affords some indication that the fact was different from the testimony of the witness of who it seeks to contradict

• It is not inconsistent to forget something, unless it is feigned forgetfulness (United States v. Mitchell)

• Pre-Miranda silence may be used to impeach if the defendant testifies at trial (Jenkins v. Anderson)

Three ways to impeach

1) Intrinsic - commit to in-court testimony/validate with questions about the circumstances surrounding statement, in presence of jury, use prior inconsistent words that contradict the validated statement

2) Intrinsic for omission of info - credit/validate, confront with prior statement, ask where they said the statement they just made

3) Extrinsic proof - excuse witness subject to recall, offer extrinsic proof of prior inconsistent statement, allow witness to be recalled to defend themselves

R 614

Gives trial judges express authority to question witnesses called by parties or call witnesses under the court’s authority.  A judge may want a witness to clarify issues, explore factual matters not addressed by counsel, or help move the examination along if a witness is difficult.

R 701

Layperson testimony - A layman is one who is not a member of a profession or an expert on a particular subject their testimony does not depend on a professional license or access to a specialized body of knowledge.

• opinions be rationally based on perception of the witness, AND helpful to a clear understanding of the witness’s testimony or an important fact at issue in the case.  The opinion CANNOT be based on scientific, technical, or other specialized knowledge that is within the scope of 702 (expert testimony)

Only admissible to help jury understand the facts that the witness is testifying about, they CANNOT draw inferences about their observations only relay what they were (Plyler v. Whirlpool)

R 702

Expert Witnesses. To use, the proponent must establish:

• helpfulness of opinion (scientific, technical, or other specialized knowledge to help the trier of fact understand a fact in issue)

• qualifications of expert, AND

• reliability of principals and methods used by the expert

  • judge must determine whether an expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand/determine a fact in issue (Dauber v. Merrell Down Pharmaceuticals)

R 703

Expert testimony is not limited in experience in forming their opinion and they can render opinions that help a fact-finder understand a difficult issue at trial that is outside an average person’s experience (can answer hypos, analyze data that it otherwise inadmissible, and render opinions on the testimony of other witnesses)

In deciding what an expert may use to develop their opinion:

• Permits expert witnesses to base their opinions on a variety of sources and information including ones that would not otherwise be admissible

• There is a barrier for the proponent disclosing otherwise inadmissible evidence through an expert witness through a reverse 403 balancing test

R 704

An expert cannot testify as to the ultimate issue in a case (United States v. Eff)

• If its a laywitness, they cannot give ultimate issue opinions relying on scientific, technical, or specialized knowledge

• The mental state of the defendant (mens rea) is often the ultimate issue in a criminal case. 704 does not allow experts to give testimony about a mental state of condition that constitutes an element of the crime charged or defense thereto 

R 705

Governs the timing for disclosing the bases for the expert’s opinion, placing the discretion for the disclosure in the hands of the opposing party on cross-examination 

• Makes it clear that experts can testify about their opinions without having to first reveal the underlying facts/data to give flexibility to base opinions on scientifically accepted information rather than trial-sanitized evidence

• Does not prevent the underlying data from being revealed in appropriate cases

R 706

Rarely under 706, the court can call an expert to counter the parties from shopping for an expert and induce experts to testify.

R 801 Hearsay Definitions

Statement - person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion (implied assertions are NOT hearsay)
Declarant = person who made the statement

Hearsay = statement that the declarant does not make while testifying at a current trial/hearing AND party offers in evidence to prove the truth of matter asserted in statement

It is NOT hearsay if not made by truth of matter asserted or if an exemption (801) or exception (803/804) applies

R 801 Hearsay Exemptions

Prior out-of-court identifications - permits proponent to introduce prior out of court identifications by a witness such as a lineup, photo array, or prior hearing

Prior consistent statement - establish the statement was consistent, then the proponent must show that the witness’s credibility has been offered by witnesses in court at the current hearing.  Next that the witness’s credibility was attacked in court at the hearing, this can be done in 1 of 3 ways (accuse of improper motive/influence during this or prior testimony, or attack credibility on another ground to require witness to prove their memory was not faulty)

Prior inconsistent statement - establish the statement is inconsistent with the one being offered at this hearing, then that the witness’s prior statement was given under the oath and at formal proceeding

Statement by co-conspirator made in furtherance of conspiracy (United States v. Garcia)

Made/adopted by opposing party

Made by authorized agent/employee in scope of employment (Simple v. Walgreen Co)

R 802

Hearsay is not admissible unless provided by statute, the rules, or SCOTUS rules.  There are many hearsay exceptions under 803, 804, 807

R 803(1)

Present sense impression

• temporal proximity to described event

• declarant must make a statement while actually perceiving an event or immediately after (even a few min could defeat the exception, look at whether the person had the time to make up/fabricate testimony(United States v. Blakey))

• declarant had personal knowledge of described event or condition

• SOME JURISDICTIONS require corroboration with additional evidence, independent of the statement itself, to prove the described event would have occured

explanation is strictly limited to a simple description of explanation of the observed event or condition

R 803(2)

Excited Utterance

• startling event

• defendant perceived event

• event must trigger stress of excitement in the declarant

  • to see if the declarant was under requisite stress when they made statement look at: lapse of time between event and declaration (important, but not dispositive), age of declarant, physcal/mental state, characteristics of event, and subject matter of statement (United States v. Golden)

• statement must relate to the startling event

R 803(3)

Then existing mental, emotional, or physical condition (does NOT include a statement of memory or belief to prove the fact recalled) when

• declarant’s bodily, emotional, or mental condition is at issue

• statement was made in present or contemporaneous time, not statement of past condition

• must be of declarant’s condition, not someone else

Used for:

• declarant’s present bodily condition

• declarant’s state of mind/emotion at the time statement was made

• declarant’s present intent (even about future conduct)

• statements of memory/belief made by the testator related to the execution, identification, etc of a declarant’s will

R 803(4)

Medical diagnosis/treatment

• statement related to cause of condition (NOT about causation)

• made for purpose of obtaining treatment, can be to a caregiver, family, medical professional, etc but it MUST be to receive treatment

R 803(6)

Business records exception

• contemporaneous recording from someone with knowledge (business duty to report)

• kept in course of regularly conducted activity

• made as part of regular practice

R 803(8)-(9)

Public records must fall into one of the categories below:

• activities of office - applies to records of the office’s activities like accounting records, dockets, journal entries of courts/legislatures/administrative tribunal, certificate of title/birth/death, etc

• matters observed under legal duty - simple, factual observations NOT a conclusion or opinion on the matter (no police reports in criminal cases UNLESS found to be of a routine and non adversarial nature)

• evaluative records/investigative reports - records with fact findings of a legally authorized investigation (watch out for bias in records)

  • look at: timeliness of investigation, special skill/experience of the official, whether a hearing was held/what level it was conducted, and possible motivation problems

  • public records with investigative reports should be construed broadly to ensure reports that contain opinions or conclusions are not automatically excluded from evidence. (Beech Aircraft v. Rainey)

R 803(7)

Failure to record regularly conducted activity that normally would have been to prove that an action occured

• evidence is admitted to prove the matter did not exist or occur

• relevant record is being offered to prove that a matter did not occur or exist

• opponent does not show that the possible source of the information and other circumstances indicate a lack of trustworthiness

R 803(10)

Absence of a public record

• testimony from a record custodian (or certification) that establishes the relevant record is the same as one that would have been created/maintained

• custodian shows that after diligent efforts to find it it was not located

CRIM - (10) requires 14 days notice of intent to use a certification rather than record custodian, then the opposing party has 7 days to respond

R 803(5)

Recorded Recollection

• grounds to introduce

  • witness has inability/unwillingness to fully/accurately recall

  • advocate attempts and fails to help refresh memory

  • advocate establishes the witness made/adopted the record of matter while fresh in their mind (no set time frame)

  • advocate must establish the recorded recollection correctly reflects the witness’ knowledge

• witness once had knowledge of matter

• witness made/adopted the record when the matter was fresh in their mind (ex. they wrote it down in a notebook after the event happened), AND

  • Something written by another party and adopted by the witness can work for 803(5) purposes (United States v Williams)

• record correctly reflects witness’s knowledge

R 804(a) Criteria for Unavailability

Privilege - witness must show up and claim a privilege

Refusal to Testify - will NOT be declared unavailable until after ordered to testify by judge and in-person refusal occur

Lack of Memory - must be established by testimony of the witness

Death or Illness - for illness, the judge will consider the duration, severity, and nature of illness (in some cases, the judge will delay trial or reorder witnesses rather than declare unavailable)

Unreachable by Process - if proponent can demonstrate efforts to procure attendance of declarant by process of reasonable means and they do not show up

CANNOT CAUSE UNAVAILABILITY AND CLAIM 804

R 804(b)(1) Exceptions to Hearsay

Former testimony -

• unavailability

• former testimony was under oath at a trial, hearing, or deposition

• offered against a party (or predecessor in interest)

• party or predecessor must have an opportunity and similar motive to direct, cross, or redirect examination

R 804(b)(2) Exceptions to Hearsay

Dying declaration -

• unavailability

• subjective belief that death was imminent (Lawrence)

  • proof of death not required

• statement related to cause or circumstance of what declarant believed was impending death

  • does NOT need to be spontaneous, can be in response to question

• based on first-hand knowledge of cause/circumstance

R 804(b)(3) Exceptions to Hearsay

Statement against interest -

• unavailability

• declarant has first-hand knowledge of factual matter in statement

• nature of statement is such that a reasonable person would not have made it unless believed it true

• at time of utterance, the statement was contrary to the declarant’s penal, pecuniary, or proprietary interest or must expose declarant to other civil liability

• if statement against a penal interest it must be supported by corroborating statements hat indicate trustworthiness

  • some will exculpate defendant and incriminate declarant

  • some will incriminate both defendant and declarant

804(b)(5) requires that the attorney in the past case and the present had the same motive for examination for former testimony to be entered (United States v. Vartanian)

R 804(b)(4) Exceptions to Hearsay

Document based exception when personal or family history is contained in certain family records.

R 805 Hearsay within Hearsay

Each statement MUST be subject to an exemption or exception

R 806

An out of court declarant is subject to impeachment just like one testifying at trial would be.  806 allows a party to attack the credibility of hearsay by any evidence that would be admissible for the purposes if the declarant testified as a witness (Rodrigues-Berrios)

It is not reasonable to conclude that attacks on credibility of the speaker’s statement are excluded merely because the statement was made by a party opponent (806).  A party opponent can always have their credibility attacked at trial. (Goldwire)

• If you can use the rule of completeness to introduce the rest of the statement, rule 806 is triggered and hearsay declarant’s character for truthfulness is at issue

• 806 allows you to set the other side up and bring in out-of-court statements to impeach a declarant 

R 807

Residual hearsay - allows the development of laws of hearsay and acts as a catch-all for out-of-court statements made for truth of the matter asserted that do not meet any exceptions or exemptions, but the party wants it admitted nonetheless.  THIS IS RARE AT TRIAL

Requires: (Sanchez-Lima)

• notice to opposing party to provide fair opportunity for adverse party to prepare

• guarantee of trustworthiness on the same level of 803/804 exceptions

  • several factors for trustworthiness such as a declarant’s motive to speak truthfully or not, spontaneity of statement, whether the statement was elicited by leading questioning, time lapse between events and the statement, whether declarant was subject to cross examination, relationship between declarant and person to whom the statement was made, whether the declarant recanted/reaffirmed the statement, whether it was recorded/video taped, and whether declarant’s first hand knowledge was clearly demonstrated 

  • A common method to prove trustworthiness is to compare it to foundational requirements of an existing hearsay exception 

• Offered as proof of material fact

• More probative that other evidence that could be entered or procured on this point

• Serves the general purposes of the federal rules and interests of justice

R 901 Authentication

Evidence falls into two categories:

• Fungible - freely interchangeable with other items of the same kind, not identifiable characteristic.  MUST establish a chain of custody accounting for evidence from the time it was seized until appearance in court

• Nonfungible - distinguishing characteristics, the key is that the item is in the same/substantially similar condition to time of accident

Tangible objects become admissible in evidence only when proof of their original acquisition and subsequent custody forges their connection with the accused and criminal offense.  The government must prove that the item is what the government claims it is. (United States v. Mitchell)

R 901(b)(1)

items of evidence commonly require a witness to authenticate them.  These witnesses are foundation witnesses and will testify as to the authenticity of an item based on personal knowledge/experience with the item/process

To establish the foundation, show the evidence is relevant AND is what it purports to be.

R 901(b)(4)

authenticating voices - witness who identifies the voice must have personal knowledge prior to or after the incident in question (includes listening to voice samples after the recording)

R 901(b)(5)

authentication of incoming phone call - self-identification is NOT enough, so voice identification must be based on contents of conversation (see above)

R 901(b)(6)

outgoing calls - showing that a number was assigned by a phone company, the witness called the number, ad the person who answered identified himself as the one called

R 901(b)(7)

public records - proponent needs only show that the document was retrieved from the correct place of custody.  Must be authorized to be recorded/filed AND actually recorded/filed

R 901(b)(8)

ancient documents - in a condition that does NOT create suspicion about authenticity, in a place where the authentic would likely be, a minimum of 20 years old

R 901(b)(9)

authentication with wiretap sound, surveillance videos, x-rays, and computer outputs - requires:

• Establish the equipment was in good working order

• Operator was qualified to operate it and did so properly

• No changes were made to the recording, AND

• Process used produces a certain type of result and did so here

R 901(b)(10)

any method of authentication of identification allowed by a federal statute/rule prescribed by the supreme court is allowed to be used to authenticate these include:

• Nonexpert opinions - ex. Someone familiar with handwriting of another, familiarity CANNOT be based on litigation (no police or inspectors)

• Comparison by trier of fact/expert - allows authorship to be established by having the trier of fact or expert witness compare the writing to a sample

• Distinctive characteristics - method of proof involves using circumstantial evidence to determine authorship of writing, there are several types of evidence used for this (content (ie language), reply letters, letterheads, related to discovery (ie seized in someone’s basement))

R 902

Self authenticating evidence (does NOT need a foundation witness).  Includes:

• Domestic public documents that are signed and sealed or not sealed but signed and certified, foreign public documents, certified copies of public records, official publications, newspapers/periodicals, trade inscriptions and the like, acknowledged documents, commercial paper/related documents, presumptions under a federal statute, certified domestic records of a regularly conducted activity, certified foreign records of regularly conducted activity, certified records from electronic process or system, certified data copied from electric device or storage, etc

These documents are hard to forge, signed/sealed, government publications, etc.  They can be authenticated by merely showing a certificate from the custodian or other person responsible for attesting to the authenticity of attached documents

R 1002

Best evidence rule - the original of a writing, recording, or photo is required to prove its contents

• Original - writing or recording whose contents are to be proved regardless of whether one was written before or after another, copied from another, or itself used to make copies.

• Includes prints of info stored on a computer

Rule 1002 does not apply in situations where the mere existence of an independent factual condition is sought to be proved, even if the condition is contained in or effectuated through a writing. (Heinsohn v. Carabin & Shaw, P.C.)

R 1003

Duplicates - admissible to the same extent as the original unless there is a genuine question of authenticity of the original or would be unfair to admit the duplicate in lieu of original

R 1004

Best evidence rule is trumped if the original writings, recordings, etc are lost, destroyed, unobtainable, in possession of an opponent, or so unrelated to the central issue of litigation as to be insignificant

• Instead, the party can introduce other evidence of the contents of an exhibit, usually containing the testimony of a witness with knowledge of the exhibit but can also be other types of proof like hand-made copies the parties certify to be accurate, a transcript of a recording, etc

If evidence was destroyed in bad faith by the proponent, they cannot use secondary evidence to prove its contents.  

R 1005

Can use copy of an official record if the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original

R 1006

Permits the use of charts, summaries, or calculations provided the source documents are made available for examination and copying by other parties.  Not available unless there are writings, recordings, or photos that are voluminous and cannot be examined conveniently in court

R 1007

The proponent of evidence does not have to produce an original writing, recording, or photograph if the other party has already testified concerning its contents at a proceeding or in a deposition

R 1008

judge must decide whether a condition precedent exists to permit secondary evidence to prove the contents of a writing, recording, or photograph but the jury must decide the ultimate factual issues pertaining to original documents:

• Whether it existed

• Whether another document produced at trial is actually the original

• Whether secondary evidence correctly reflects the original

Confrontation Clause

In a criminal trial, use the Crawford-Davis analysis

• Does the clause apply

  • criminal trial

  • for hearsay purpose

  • testimonial statement (circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution)

• Is the statement admissible?

  • If the clause DOES apply, the proffered statement will not be admitted unless the declarant is unavailable and the accused has the opportunity to confront

    • testimonial hearsay statement will NOT be admitted if declarant is available for trial but has not been produced as a witness for cross.  Declarants with memory loss are considered available and MUST be produced for cross on their lack of memory. 

    • if the clause applies that declarant’s testimonial hearsay will not be admissible unless the accused has had an opportunity to conduct cross-examination.  The declarant already had been deemed unavailable for trial in most cases this means that the prosecution will be barred from presenting the declarant’s hearsay statement due to inability of accused to confront the witness.