Evidence rules

First question

Criminal or civil?

Second Question

What trial phase?

Third Question

What evidence is being offered?

Fourth Question

Who is on the stand?

Fifth Question

What is the evidence trying to prove?

Rule 101

Rules of evidence apply to proceedings in United States courts

Rule 1101

U.S. district courts, bankruptcy courts, magistrate judges, court of appeals, court of federal claims, and district courts of Guam, Virgin Islands, and Northern Mariana islands

Rule 1101(b)

Privilege rules apply to all stages of a proceeding

Types of evidence

Witness testimony, real evidence, documents, demonstrative evidence

Oral testimony by witnesses

Fact witness, expert witness, character witness

Real evidence

Physical evidence that a party claims to have played a direct role in the dispute

Documents

Any type of writing or recording of information

Demonstrative evidence

Sometime physical, but not an object that played a role in the dispute. Explains certain events or concepts to the jury

Broad Categories of evidence

Direct or circumstantial

Direct evidence

Requires no inferential bridge; directly establishes a fact

Circumstantial evidence

Requires an inference

Stipulation

If both parties agree that a fact is true for purposes of the litigation

Rule 201: Judicial Notice

Judge can accept facts that are generally known

Motions in limine

Pretrial motion to exclude certain evidence or request permission to introduce evidence

Motion to suppress

Usually in criminal case; move to remove certain evidence because it was obtained illegally

Rule 103

Objections are necessary to preserve an a record for appeal. Otherwise they are waived. Objections must be timely and specific

Motions to strike

If evidence is admitted, party must timely object on the record or move to strike

Offer of proof

Party seeking to present evidence must offer evidence to appeal the trial judge’s ruling

Sustain

Judge AGREES with evidentiary objection

Overrule

Judge DISAGREES with an evidentiary objection

Rule 401

Evidence is relevant when it has any tendency to make a fact more or less probable and the fact is of consequence

Rule 402

Irrelevant evidence is not admissible

Relevance is a ___ but not ___ condition to admissibility

necessary, sufficient

Relevance Probability prong

Does the evidence have any tendency to make a fact more or less probable than it would be without it?

Consequence Prong

Is the fact of consequence to the determination of the action?

Rule 403

A court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, wasting time, or needlessly cumulative

A court ___ exclude relevant evidence if its probative value is ___ by a danger of ___ prejudice

may, substantially outweighed, unfair

Unfair prejudice

Suggests decision on an improper basis. Usually emotional

Rule 407

Subsequent remedial measures are not admissible to prove negligence, culpable conduct, a product defect or need of warning

When can srm be admitted?

To impeach a witness or prove ownership/control/feasibility of measures if disputed

What is a subsequent remedial measure?

Measures taken that would have made an earlier injury or harm less likely to occur

Rule 105

If the court admits evidence admissible against a party for one purpose, but not a different purpose or party, jury is instructed to restrict evidence only to its proper scope

Rule 408

Compromise offers and negotiations are not admissible by either party to prove or disprove validity or amount of disputed claim or to impeach a witness by a prior inconsistent statement or contradiction

Compromise offers may be admissible…

to prove a witness’s bias or prejudice, negate a contention of undue delay, or proving an obstruction to criminal processes

For Rule 408 to apply, there must be an ___ ___ that is disputed

existing claim

Two categories of evidence covered in rule 408

Compromise offers or acceptances (furnishings, considerations) and conduct or statements made during negotiation about the claim

For a compromise negotiation, ___ parties must be involved and speak.

Both

Criminal case exception to rule 408

Conduct or statement made during negotiations with a public office exercising regulatory, investigative, or enforcement authority is admissible in any subsequent criminal trial

Rule 409

Offers to pay medical and similar expenses are not admissible to prove liability for the injury. May be admissible for other reasons

Rule 409 - ONLY the offer is not admissible

statements or conduct not part of the offer may be admissible. Analyze evidence statement by statement.

Rule 410(a)

Following evidence is not admissible against a DEFENDANT who made or participated in plea discussions…

Rule 410(a)(1), (2)

Cannot admit a guilty plea later withdrawn or a nolo contendre plea

Rule 410(a)(3)

Statement made during a proceeding for a withdrawn guilty plea or a nolo contendre plea

Rule 410(a)(4)

Statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or a guilty plea that was withdrawn later

Rule 410(b)

Court may admit statements made during plea discussions if another statement in the discussion is introduced if in fairness the statements should be considered together; or if it was a criminal proceeding for perjury where the defendant made the statement under oath, on the record, and with counsel

Plea bargaining

Discussion where defendant seeks to obtain concessions from government in return for a plea. MUST BE a bargaining with DA or US attorneys office.

Approach to determine if plea bargaining

Whether accused exhibited subjective expectation that plea negotiations were in progress and if expectation was reasonable

Rule 411

Evidence that a person was or was not insured is NOT admissible to prove whether the person acted negligently or wrongfully

Exceptions to rule 411

Court may admit evidence of insurance to prove witness bias or prejudice and to prove agency, ownership, or control

Rule 601

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

In civil cases, witness competency is governed by ___ ___ law.

substantive state’s

Rule 602

Witness must have personal knowledge of the matter to which the witness is testifying

Personal knowledge - rule 602

Witness had capacity and opportunity to perceive, memorize and recall the observations, and narrate them.

Rule 603

Witness must give an oath or affirmation to tell the truth (sincerity)

To be competent, a witness must

Have personal knowledge and give an oath

Rule 605

Presiding judge may not testify as a witness at the trial. Objection not needed

Rule 606

Juror may not testify as a witness in the case where he/ she is sitting as a juror about any statements made or incidents that occurred during the jury’s deliberations

Leading questions are generally ___ on ___ examination except as necessary to develop the witness’s testimony

prohibited, direct

Rule 615

At a party’s request, court must order witnesses excluded so that they cannot hear other witness’s testimony. Court may do this sua sponte

Cannot be excluded under rule 615

A party to the case, someone whose presence a party shows to be essential to presenting party’s claim, person authorized by statute to be there

Rule 611(b)

Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility

Refresh witness memory

Something can be used to refresh witness’s memory as long as it is genuinely calculated to revive the witness’s recollection at judge’s discretion

Rule 612 - Adverse party’s options when witness is refreshed

Adverse party may have the writing produced, inspect it, and cross examine witness about it. May introduce in evidence any portion that relates to witness testimony

Rule 106

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction of any other part that ought to be considered in fairness with the introduced part

“Introduce” is a term of art

Introducing into evidence!

Impeachment

Showing the witness isn’t believable

Rule 607

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

Extrinsic evidence

Impeachment evidence offered other than through the witness being impeached on the stand.

Non-extrinsic (intrinsic evidence)

Evidence obtained through the witness being impeached on the stand

Non-Collateral matters

Important or significant

Collateral matters

Not important

Impeachment with extrinsic evidence is generally only permitted for ___ matters

non-collateral

If matters are ___, witness’s testimony stands and witness’s answer is accepted

collateral

Impeachment evidence

Admitted solely to prove that a witness’s testimony is not believable

Substantive evidence

Helps a party to establish his/ her claim and satisfies burden of proof

___ (impeachment or substantive) has lower evidentiary threshold for admission

Impeachment - Hearsay rules and propensity character evidence is not barred

Rule 613

If one uses extrinsic evidence of prior statement to impeach a witness, the witness must have the opportunity to explain or deny the statement and opposing party must have opportunity to examine the witness

Propensity argument is…

Using a person’s character traits to determine their specific actions in a singular incident.

When can propensity arguments be allowed?

When it is about a witness’s truthfulness

Character evidence

Captures evidence related to the nature of a person, including their disposition in respect to a particular trait

Rule 404(a)(1)

Evidence of a person’s character cannot be used to prove that on a particular occasion the person acted in accordance with that trait (propensity evidence)

Rule 609

Rules about impeaching a witness with prior convictions

Categories of convictions which can be introduced

Felonies (punishable by death or imprisonment longer than one year) or crimes of dishonesty

If evidence must be admitted…

Always subject to rule 403

Felonies admissible (regular witnesses)

Must be admitted

Felonies admitted (in civil case)

Must be admitted

Felonies admitted (if criminal defendant)

Evidence must be admitted if its probative value outweighs its prejudicial effect (outweighs AT ALL)

crimes of dishonesty admitted

Always

If ten years have elapsed since witness’s conviction or release (whichever is later) evidence is only admissible…

If its probative value substantially outweighs its prejudicial effect and there was reasonable written notice that this info would be used

Effect of Pardons and Annulments on admissibility of criminal convictions

Evidence not admissible if pardon based on finding of rehabilitation and there are not other felonies or if the pardon was from a finding of innocence

Evidence of juvenile adjudication admissible only if…

(1) criminal case, (2) regular witness, (3) admissible for impeachment, (4) necessary to fairly determine guilt or innocence

When is evidence of juvenile adjudication admissible against a criminal defendant?

Never

When is evidence of juvenile adjudication admissible in a civil case?

Never

Pending appeals

Do not otherwise affect admissibility of an admissible conviction

Rule 608(a)

Witness credibility may be attacked or supported by testimony about witness’s reputation of truthfulness or untruthfulness. (Evidence about being truthful only admitted when character for truthfulness is attacked)