Evidence

What FRE governs making an objection?

FRE 103

What is required for making an objection?

1. An objection must be timely OR you must move to strike the offending portions of the testimony.

2. State the specific grounds for the objection and the particular part of the question OR testimony the objection is directed to.

What is required for responding to an objection?

A party must

(a) provide an offer of proof detailing what the evidence entails;

(b) make a counterargument as to why the evidence is admissible

What is a timely objection?

The question elicits testimony that gives rise to an objection OR reasonably should be known

What FRE governs Preliminary Questions?

FRE 104(a)

What is the "easy test" for FRE 104 preliminary questions?

1. Does the evidence rule you're applying explicitly identify factual criteria for admissibility.

2. If it does, then the judge should apply Rule 104(a) in deciding whether those criteria are satisfied.

3. If it doesn't, then you've probably got a relevancy question.

When is a preliminary question not required?

If the jury believes that the fact did not occur they are not going to assign weight to it so this would be a relevancy issue not a 104(a) issue.

What does preliminary questions decide?

The judge evaluates the relevant evidence and makes a finding for herself as to whether the fact exists.

What is the "hard test" for FRE 104 preliminary questions?

1. Would permitting the jury to resolve the preliminary question undercut the very policies the rule is trying to promote?

2. If it would, then the judge should resolve the question herself under Rule 104(a).

3. If it doesn't, then you've probably got a relevancy question.

What FRE Governs Conditional Relevancy?

FRE 104(b)

What is conditional relevancy?

The Judge just decides whether the proponent of the evidence has introduced evidence "sufficient to support a finding" that the fact exists.

What FRE governs limiting instructions?

FRE 105

What is a FRE 105 limiting instruction?

A party asks the court timely to give a limiting instruction to the jury to tell them to only use the evidence for its admissible/permissible purpose and not for another purpose (i.e. an impermissible purpose).

What FRE governs relevant evidence?

FRE 402

What FRE governs the test for relevant evidence?

FRE 401

What is the test for relevance?

All evidence is relevant if it has ANY TENDENCY to make a fact of consequence more or less probable than it otherwise would be without the evidence.

What is the inferential chain for relevant evidence?

What is the rule of Old Chief

If a fact is relevant, it may be introduced to the jury in rich detailed form.

What FRE governs impeachment?

FRE 402 because it has the ability to make a fact of consequence more or less probable.

What are the types of impeachment?

1. Bias or interest

2. Sensory/Mental incapacity

3. Character for truthfulness

4. Prior inconsistent statement

5. Contradiction

What is impeachment by a prior inconsistent statement?

The truth does not matter, what matters is that the witness said different things is therefore unreliable.

What is impeachment by contradiction?

Impeachment by contradiction brings the inference that the witness was wrong about one thing, so they may be wrong about other things.

contradicting statement MUST BE TRUE

What is the collateral matters rule?

A party may not present extrinsic evidence to impeach a witness by contradiction on a collateral matter.

What FRE is the collateral matters under?

FRE 403

What is the application of the collateral matters rule?

If all the answers to the flowchart are yes then you exclude it... if any of them are no the collateral matters rule does not apply.

What is extrinsic evidence?

ANYTHING other than the testimony being elicited from the witness who is being impeached.

When is a fact non-collateral?

1. it impeaches a witness through bias or incapacity OR

2. It has substantive relevance to a fact of consequence in the case

What is the FRE for pragmatic relevancy?

FRE 403

What is the rule for pragmatic relevancy?

Relevant evidence is excluded if the probative value is substantially outweighed by its prejudicial impact.

What is the application of pragmatic relevancy?

A. Calculate the evidence's probative value

1. strength of the inferential chain

2. Need for the evidence

B. Calculate the prejudicial impact

1. evoke emotion reaction in jurors

2. lure the jury into stupid inferences

3. lure the jury into prohibited inferences

4. distract or confuse

5. Attention spans of jurors

6. Effect of limiting instruction

C. Balance the probative value and the prejudicial impact

What is the FRE for character evidence?

FRE 404

What is the rule for character evidence?

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

What is the inferential chain for character evidence?

Evidential fact -> Character Trait -> Action in conformity with trait

What is the application of character evidence?

What are the doctrine chances under FRE 404(b)

The doctrine of chances inference does not make use of propensity. It just hinges on the improbability that the events are attributable to coincidence.

What are the exceptions to the general rule for character?

1. 404(a)(2) Showing defendants' or victims' propensity in a criminal case

2. 413-414: Defendant's prior sex assaults, sex abuse

3. 608(a): Impeachment with reputation or opinion testimony

4. 608(b)(1): Impeachment with specific instances of untruthful conduct

5. 609: Impeachment with prior convictions

What are character rules that resemble an exception but are not really an excpetion

1. 404(b)(2): Requires proponent of prior act evidence to introduce evidence sufficient to support a finding that the act occurred.

2. 405(b): Character as an essential element

means that the probative values does not rely upon a propensity inference so it is not a real exception

What claims is character an essential element?

1. Defamation

2. Child Custody

3. Reckless/Negligent Entrustment

4. Entrapment

What is the FRE for methods or proving character?

FRE 405

What are the methods of proving character on direct examination?

1. Reputation or Opinion testimony

2. Specific instances of conduct ONLY WHEN character is an essential element

What are the methods of proving character on cross examination?

A prosecutor may rebut by using specific instances of conduct.

What is the standard for character opinion testimony allowed on direct examination?

Based on the witness's direct personal experience. Rule 701 permits a layperson to provide opinion testimony about matters "rationally based on the witness's perception."

What is the FRE for Habit/ Routine of Practice Evidence?

FRE 406

What is the rule for Habit/Routine of Practice Evidence?

A habit is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit.

A group is designated having done "routine practice" instead of using habit.

What is the inferential chain for Habit/Routine of Practice Evidence?

Evidential Fact -> Habit/Routine Practice -> Action in conformity with Habit/Routine Practice

What are the Rape Shield FRE's?

FRE 412-415

What is the rule for FRE 412?

FRE 412 has three exceptions when you can bring in evidence of the victim's sexual behavior or predisposition.

1. Specific instances of sexual behavior to prove someone else is the source of the evidence (i.e. DNA/Semen)

2. Specific instances with the defendant to prove consent

3. Evidence whose exclusion would violate the defendant's constitutional rights.

What is the analysis for FRE 412?

1. Is it criminal or civil involving sexual misconduct

2. Does it relate to the victim's prior sexual behavior or predisposition

3. Does the evidence fit into one of the exceptions for criminal cases or for civil cases the victim must "open the door" for any evidence to be admissible

4. Balance the probative value

What is the rule for FRE 413?

1. is it a criminal case for sexual assault

2. Is the prior act a "sexual assault"

3. 404 balancing

What is the rule for FRE 414?

1. Is it a criminal case for child molestation

2. Is the prior act child molestation

3. 403 balancing

What is the rule for 415?

1. Is it a civil case involving sexual assault or child molestation

2. Does the prior act qualify

3. 403 balancing

Does the defendant have to be convicted of a prior sexual assault or Child Molestation for the Rape Shield rules to apply?

No it can also be uncharged conduct.

What FRE governs competency?

FRE 601

What is the default rule for competency?

As long as a witness is able to take an oath or affirmation and has personal knowledge, the witness will be competent to testify.

What is the rule for competency for civil cases?

In civil cases, state law governs a witness's competency.

What is the FRE for personal knowledge?

FRE 602

What is the rule for personal knowledge?

1. Witnesses can only testify to what they have seen, heard, or otherwise senses themselves.

2. A lawyer must lay the foundation by showing the witness has personal knowledge

3. Requires the proponent of testimony to introduce evidence "sufficient to support a finding" that the witness has personal knowledge.

What kinds of witnesses are exempt from personal knowledge?

Experts are exempt from personal knowledge.

See FRE 703

What FRE governs Oaths and Affirmations?

FRE 603

What is the rule for Oaths or Affirmations?

If a judge believes that a witness cannot understand what being truthful or what truthfulness is they will not have satisfied this rule.

What FRE governs who may impeach a witness?

FRE 607

What is the rule for who may impeach?

Any party even the the party who called the witness may impeach.

What FRE governs a witness's character for truthfulness or untruthfulness?

FRE 608

What is the rule for a witness's character for truthfulness or untruthfulness?

1. 608(a): Authorizes character witness to provide opinion or reputation testimony about fact witness's character

2. 608(b)(1): Authorizes cross-examination of the witness herself about specific instances of conduct bearing on here character for truthfulness

What are the inferential chains that authorize cross examination about specific instances of conduct?

Permits cross-examination about specific instances of misconduct that are "probative of... character for untruthfulness."

1. Less probative of character for truthfulness -> not admissible

2. More probative of character for truthfulness -> admissible

What is the FRE that governs Impeachment by Evidence of a Criminal Conviction?

FRE 609

What is the rule for impeachment by evidence of a criminal conviction?

Authorizes introduction of witness's prior conviction for crimes of dishonesty or felonies.

What are the requirements for FRE 609(a)

Makes the admissibility of a criminal conviction depend mostly on crime's seriousness, but crime's relationship to character for untruthfulness still matters

* Requires reverse 403 analysis; the evidence probative value substantially outweighs its prejudicial effect

What are the factors under Rule 609(a)(1)(B) if the witness is the defendant

1. impeachment value of the former crime

2. Timing of the prior conviction and subsequent criminality

3. Similarity between the prior crime and the past one

4. Important of the defendant's testimony

5. Centrality of credibility

What is the exclusive vehicle reading for FRE 608 & 609?

608(b): exclusively handles misconduct that did not lead to a conviction

609: exclusively handles misconduct that led to convictions

What is the extrinsic reading for FRE 608 & 609?

1. FRE 609 is an exception to the rule in FRE 608(b) about banning extrinsic evidence

2. You can still cross-examine about the prior misconduct under FRE 608(b), even if there was a conviction

3. FRE 609 just allows you to bring in the conviction itself as extrinsic evidence

What is the FRE for writing used tor refresh the witness's memory?

FRE 612

What is the rule for writing used to refresh the witness's memory?

1. Foundation required to refresh recollection

2. Rights of adverse parties to inspect the writing, cross-examine the witness on the writing, and introduce the relevant portions of the writing

What is the FRE for a witness's prior statement?

FRE 613

What is the rule for witness's prior statement?

The steps on how to impeach:

1. show adverse counsel the statement that is being used to impeach the witness

2. Extrinsic evidence of a prior inconsistent statement is admissible only if the witness is given the opportunity to explain or deny the statement

What kind of witness is not required to have an opportunity to explain or deny an inconsistent statement?

A defendant under 801(d)(2)

What FRE governs Opinion Testimony by a Lay witness?

FRE 701

What is the rule for opinion testimony by a witness?

(A) Based on the witnesses rationally based perception

(B) Helpful to understand the witness's testimony or determining a fact in issue

(C) NOT scientific, technical, or based on specialized knowledge

What is "based on the witnesses rationally based perception" look like for FRE 701?

Personal knowledge where an a reasonable person could form an opinion from the underlying facts.

It contains NO hearsay, speculation, or irrational reasoning.

What is the helpfulness requirement for FRE 701?

1. If the jury can be put into a position of equal vantage with the witness for drawing the opinion, then the witness may not give an opinion.

2. A lay opinion may fulfill this role by capturing nuances that purely factual details lack.

What FRE governs testimony by experts?

FRE 702

What is the rule for testimony by experts?

Expert testimony must satisfy three requirements

1. qualification

2. Reliability

3. Helpfulness

What does the "helpfulness" element require before Daubert?

Expert testimony is "unhelpful" when the jury doesn't really NEED the expert's help,

i.e., when the jury can perfectly well decide for itself what inferences to draw.

What does the "helpfulness" element require after Daubert?

Expert testimony is "unhelpful" when the jury needs MORE help than the expert is providing.

i.e., the inferences drawn by the expert don't go far enough to bridge the inferential divide.

What is the Daubert Test for Experts?

1. Applies to all expert testimony, both scientific and non-scientific

2. Applies even to long-accepted methodologies

3. Requires the court itself to evaluate the reliability of the expert's work

4. Extends both to general principles and methodologies and to their application

What are the factors bearing on reliability under Daubert?

This list is non-exhaustive

1. Whether the theory or technique has been or can be tested

2. Whether it has been subjected to peer review and publication

3. The known or potential rate of error

4. The existence of standards governing the operation or application of the technique

5. The degree of acceptance in the scientific community

What is the FRE that governs the based of Expert Opinion Testimony?

FRE 703

What is the rule for the bases of Expert's Opinion Testimony?

Experts must satisfy (1) the evidentiary norms of the field in which they are experts; and (2) the requirement that experts use "reliable principles and methods."

True or False

May an expert base and opinion on facts or data in the case that the expert has been made aware of or personally observed?

True

True or False

May an expert rely on evidence that wouldn't be admissible in court, including hearsay?

True

True or False

Are experts bound by FRE 602 Personal Knowledge?

False

What is the rule for an expert to use inadmissible hearsay during their testimony?

A reverse 403 balancing test - "It must be SUBSTANTIALLY probative than it is prejudicial."

What view of an out-of-court statement does the court reject regarding expert testimony?

Evidential Fact -> Nonhearsay Use -> Fact of Consequence

SCOTUS rejected this in Smith v. Arizona

What does SCOTUS hold in Smith v Arizona?

If an expert for the prosecution conveys an out-of-court statements in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts.

What FRE governs opinion on an ultimate issue?

FRE 704

What is the rule for opinion on an ultimate issue?

Experts in a criminal case may NOT give an opinion about the mental state of the defendant.

What is the FRE that governs disclosing facts or data underlying an experts testimony?

FRE 705

What is the rule for disclosing the facts or data underlying an experts testimony?

On direct examination the expert do not need the underlying facts or date of their opinion however, on cross-examination the attorney may elicit that testimony.

What is the FRE that governs Hearsay?

FRE 801

What kinds of statements are there under hearsay?

1. Verbal Assertion

2. Non-Verbal Assertion