Flashcards Midlands Rules Of Evidence!

Rule 104. (b)

Preliminary Questions

Relevance That Depends on a Fact. 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.

Rule 106

Remainder of or Related Writings or Recorded Statements If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part - or any other writing or recorded statement - that in fairness ought to be considered at the same time.

Rule 401. (a)

Test for Relevant Evidence

Evidence is relevant if: it has any tendency to make a fact more or less probable than it would be without the evidence

Rule 403

Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

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. (a)(1)

Character Evidence

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.

Rule 404. (a)(3)

Character Evidence

Exceptions for a Witness.

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

Rule 404. (b)(1)

Crimes, Wrongs, or Other Acts.

Prohibited Uses.

Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

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:

- 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.

Rule 602

Need for Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness's own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

Rule 608. (a)

A Witness's Character for Truthfulness or Untruthfulness

Reputation or Opinion Evidence.

A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character 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.

Rule 701

Opinion Testimony by Lay Witnesses

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.

Rule 702

Testimony by Expert Witnesses

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:

(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 has reliably applied the principles and methods to the facts of the case

Rule 704. (a)

Opinion on an Ultimate Issue

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

Rule 801. (a)

Definitions That Apply to This Article; Exclusions from Hearsay

Statement.

"Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Rule 801. (c)

Definitions That Apply to This Article; Exclusions from Hearsay

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.

Rule 801. (d)(2)

Statements That are Not Hearsay:

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

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

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

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

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

(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

Rule 803. (1)

Present Sense Impression.

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

Rule 803. (2)

Excited Utterance.

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Rule 803. (3)

Then-Existing Mental, Emotional, or Physical Condition.

A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

Rule 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. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party

Rule 803. (6)

Records of a Regularly Conducted Activity.

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by - or from information transmitted by - someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Rule 803. (7)

Absence of a Record of Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

Rule 803. (8)(A)

Public Records.

A record or statement of a public office if: it sets out:

(i) the office's activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation;

Rule 803. (18)

Statements in Learned Treatises, Periodicals, or Pamphlets.

A statement contained in a treatise, periodical, or pamphlet if:

the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.

Rule 803. (21)

Reputation Concerning Character.

A reputation among a person's associates or in the community concerning the person's character.

Rule 1002

Requirement of the Original

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