EDIT - Mock Trial: Rules of Evidence III

Rule 401

Definition of Relevant Evidence - Evidence is relevant if:

1. it has any tendency to make a fact more or less probable than it would be without the evidence; and

2. the fact is of consequence in determining the action.

Rule 402

Relevant Evidence is admissible unless these rules provide otherwise. Irrelevant evidence is not admissible.

Rule 403

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 404

Character Evidence; Crimes or Other Acts

Character Evidence

1. Prohibited Uses. 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.

2. Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

a. a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecution may offer evidence to rebut it;

b. a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted the prosecution may:

I. offer evidence to rebut it; and

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

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

3. Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.prohibits using character evidence to prove conduct on a specific occasion, with certain exceptions for criminal cases.

Rule 405

Methods of Proving Character

1. By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

2. By Specific Instances of Conduct. 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.

Rule 406

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

Rule 407

Subsequent Remedial Measures - 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:

1. negligence;

2. culpable conduct;

3. a defect in a product or its design;

4. a need for a warning of 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.

Rule 408

Compromise Offers and Negotiations

1. Prohibited Uses. Evidence of the following is not admissible – on behalf of any party – 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 – or accepting, promising to accept, or offering to accept – a valuable consideration in compromising or attempting to compromise the claim; and

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

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

Rule 409

Offers to Pay Medical and Similar Expenses - Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Rule 410

Pleas, Plea Discussions, and Related Statements

1. 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:

a. a guilty plea that was later withdrawn;

b. a nolo contendere plea;

c. a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

d. a statement made during plea discussion with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

2. Exceptions. The court may admit a statement described in Rule 410 1.c. or d.:

a. in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

b. in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Rule 411

Liability Insurance (civil cases only) - Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or proving agency, ownership, or control.

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;

2. communications between attorney and client;

3. communications among grand jurors;

4. secrets of state; and

5. communications between psychiatrist and patient.

Rule 601

General Rule of Competency - Every person is competent to be a witness.

Rule 602

Lack of Personal Knowledge - 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. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703. See Rule 3.

Rule 607

Who May Impeach - Any party, including the party that called the witness, may attack the witness's credibility.

Rule 608

Evidence of Character and Conduct of Witness

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

2. 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:

a. the witness; or

b. another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Rule 609

abbreviate

Rule 610

Religious Beliefs or Opinions - Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Rule 611

Mode and Order of Interrogation and Presentation

1. Control by Court; Purposes. The Court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

a. make those procedures effecting for determining the truth;

b. avoid wasting time; and

c. protect witnesses from harassment or undue embarrassment.

2. Scope of cross-examination. The scope of 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.

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

a. on cross-examination; and

b. when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

4. Redirect/Recross. 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 on recross, but such questions must be limited to matters raised on redirect examination and should avoid repetition. For both redirect and recross, attorneys are limited to two questions each.

5. Permitted Motions. The only motion permissible is one requesting the judge to strike testimony following a successful objection to its admission.

Rule 613

Witness’s Prior Statement

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

2. Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision 2. does not apply to an opposing party’s statement under Rule 801 4.b.

Rule 701

Opinion Testimony by Lay Witness - If the witness is not testifying as an expert, testimony in the form of opinion is limited to one that is:

1. rationally based on the witness’s perception;

2. helpful to clearly understand the witness’s testimony or to determining a fact in issue; and

3. not based on scientific, technical, or other specialized knowledge with the scope of Rule 702.

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 in the form of an opinion or otherwise. See Rule 40.

Rule 703

Bases of Opinion Testimony by Experts - 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.

Rule 704

Opinion of Ultimate Issue

1. In General – Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

2. Exception. In a criminal case, an expert 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.