Comprehensive Study Guide to the Federal Rules of Evidence

Relevance and Its Hurdles (FRE 401 - 403)

Evidence must pass the threshold of relevance to be admitted into court. Under Rule $402$, relevant evidence is generally admissible unless the United States Constitution, a federal statute (including the Federal Rules of Evidence), or other rules prescribed by the Supreme Court provide otherwise. Conversely, irrelevant evidence is strictly not admissible.

According to Rule $401$, evidence is deemed relevant if it satisfies two specific criteria. First, it must have any tendency to make a fact more or less probable than it would be without the evidence, a property known as being probative. Second, the fact must be of consequence in determining the action, which means the evidence is material.

Even if evidence is relevant, Rule $403$ provides a balancing test where the court may exclude such evidence if its probative value is substantially outweighed by the danger of one or more of the following factors:

1. Unfair prejudice;
2. Confusing the issues;
3. Misleading the jury;
4. Undue delay;
5. Wasting time; OR
6. Needlessly presenting cumulative evidence.

Character Evidence and Propensity (FRE 404 - 406)

Character evidence consists of generalized information regarding a person’s behavior, such as stating, ‐I think he is a violent person.‐ Rule $405$ outlines the methods of proving character: by reputation or opinion (e.g., ‐He has a violent reputation in our community‐ or ‐In my opinion, I think he is violent‐) or by specific instances of conduct (e.g., ‐I think he is violent because I saw him get into a bar fight last week‐).

In civil cases, character evidence is generally not admissible for propensity purposes—to prove that on a particular occasion, a person acted in accordance with a trait. There are two exceptions: when character is an essential element of the claim or defense (provable by reputation, opinion, or specific instances under Rule $405$) or when the case involves a claim for relief based on the defendant’s alleged sexual assault or child molestation.

In criminal cases, the prosecution is prohibited by Rule $404$ from introducing negative character evidence to prove the defendant had the propensity to commit the charged crime. However, the defendant may ‐open the door‐ by presenting positive character evidence if it is pertinent to the crime charged and presented through reputation or opinion testimony (not specific instances). If the door is opened, the prosecution can rebut by calling its own character witness (limited to reputation/opinion) or by cross-examining the defendant’s witness. During cross-examination, the prosecution may introduce specific instances of conduct relating to the same character trait.

Regarding victims in criminal cases, a defendant may introduce reputation/opinion testimony of the victim’s character if relevant to an asserted defense. The prosecution may then rebut by showing the defendant possesses the same trait or the victim possesses a positive version of that trait. In homicide cases, Rule $404(a)(2)(C)$ allows the prosecution to offer evidence of the victim’s peacefulness to rebut any evidence that the victim was the first aggressor.

Non-propensity evidence, known by the acronym OKMIMIC, allows specific instances of conduct for purposes other than propensity. These include:

• Opportunity;
• Knowledge;
• Motive;
• Intent;
• Absence of mistake;
• Identity; OR
• A common plan or preparation.

Such evidence is admissible if there is sufficient evidence for a jury to find the defendant committed the prior act and the probative value is not substantially outweighed by unfair prejudice under Rule $403$.

Habit and Routine Practice (FRE 406)

Rule $406$ distinguishes habit from character. While character is a generalized disposition (e.g., honesty), habit is a specific, regular response to a repeated situation, such as ‐every time he gets into his car, he puts on his seat belt.‐ This rule applies to individuals and the routine practices of organizations (e.g., a business filing a purchase order receipt for every purchase). Evidence of habit may be used to prove that a person acted in accordance with that habit on a specific occasion.

Witness Competency and Juror Testimony (FRE 601 - 606)

Every person is generally competent to be a witness unless the rules state otherwise. Mental competence usually affects the weight of the evidence (for the jury) rather than admissibility. Non-expert witnesses must have personal knowledge of the matters they testify about, which can be established by their own testimony.

Rule $605$ prohibits the presiding judge from testifying as a witness. Rule $606(a)$ prevents a juror from testifying before other jurors at trial. Rule $606(b)(1)$ states that after trial, a juror may not testify about deliberations, the effect of anything on a vote, or mental processes. However, under Rule $606(b)(2)$, a juror may testify about whether:

1. Extraneous prejudicial information was improperly brought to the jury's attention;
2. An outside influence was improperly brought to bear on a juror; OR
3. A mistake was made in entering the verdict on the form.

Impeachment Methods and Bias (FRE 607 - 613)

Under Rule $607$, any party may attack a witness’s credibility. Impeachment occurs via examination (eliciting facts directly) or extrinsic evidence (evidence from other sources). Some grounds require a foundation to be laid during examination.

Bias can be used for impeachment, typically occurring when a witness has a favorable/hostile relationship with a party or a financial stake in the outcome. Most jurisdictions require a foundation on cross-examination before extrinsic evidence of bias is admissible.

Prior inconsistent statements (Rule $613$) allow a party to show the witness's story has changed. On request, the contents of the statement must be shown to the adverse party's attorney. Extrinsic evidence of the statement is admissible only if the witness can explain or deny it and the adverse party can examine the witness about it, unless it involves a hearsay declarant or an opposing party’s statement.

Impeaching Character for Truthfulness (FRE 608 - 609)

Rule $608(a)$ allows a witness’s credibility to be attacked by reputation or opinion testimony regarding their character for truthfulness. Evidence of truthful character is only allowed after the witness's character for truthfulness has been attacked. Rule $608(b)$ allows specific instances of conduct on cross-examination if they are probative of truthfulness (relating to dishonesty). Denials must be dropped, and the examiner must have a good faith basis for the inquiry.

Rule $609$ governs impeachment by criminal conviction:

• Crimes involving a dishonest act or false statement must be admitted regardless of punishment.
• Felonies (punishable by death or imprisonment > $1$ year) must be admitted in civil cases or criminal cases where the witness is not the defendant (subject to Rule $403$). If the witness is the defendant, it is admitted only if the probative value outweighs the prejudicial effect.
• The $10$-year Rule: If more than $10$ years have passed since conviction or release, the evidence is admissible only if its probative value substantially outweighs its prejudicial effect (reverse $403$) and written notice is provided.
• Convictions are not admissible if they were subject to a pardon based on rehabilitation (and no subsequent felony occurred) or a finding of innocence.

Opinion Testimony: Lay and Expert (FRE 701 - 706)

Lay witness opinions (Rule $701$) must be rationally based on the witness's perception, helpful to the trier of fact, and not based on specialized knowledge. Examples include appearance, emotional state, sense recognition (smelling alcohol), voice/handwriting identification, and speed of a moving object.

Expert witness opinions (Rule $702$) require the witness to be qualified by knowledge, skill, experience, training, or education. The testimony must help the trier of fact, be based on sufficient facts/data, and be the product of reliable principles and methods. Rule $703$ allows experts to rely on inadmissible data if experts in the field would reasonably do so.

Reliability is assessed using the Daubert factors:

1. Whether the technique/theory can be or has been tested;
2. Whether it has been subject to peer review and publication;
3. The known or potential rate of error;
4. The existence and maintenance of standards and controls; AND
5. General acceptance in the scientific community.

Authentication of Tangible Evidence (FRE 901 - 902)

Rule $901$ requires the proponent to produce evidence sufficient to support a finding that an item is what it is claimed to be.

• Photographs/Video: Authenticated via the ‐Pictorial Communication‐ theory (witness with firsthand knowledge) or the ‐Silent Witness‐ theory (process/system producing accurate results).
• Oral Statements: Authenticated by voice identification or distinctive characteristics.
• Telephone Calls: Authenticated by calling a number assigned to a person (if they identify themselves) or a business (if related to business transacted).
• Handwriting: Authenticated by a non-expert with prior familiarity or an expert/trier of fact comparison with a specimen.
• Ancient Documents: Authenticated if they create no suspicion, were in a likely place, and are at least $20$ years old.

Rule $902$ lists self-authenticating documents requiring no extrinsic evidence, including: sealed/signed domestic public documents, certified copies of public records, official publications, newspapers, trade inscriptions, acknowledged (notarized) documents, commercial paper, and certified records of regularly conducted activities (domestic or foreign).

The Best Evidence Rule (FRE 1001 - 1004)

Rule $1002$ requires an original writing, recording, or photograph to prove its content, particularly when the event is a written transaction (contracts) or the witness’s knowledge comes solely from the document. A duplicate is admissible to the same extent as an original unless authenticity is questioned or admission is unfair.

Hearsay and Exceptions (FRE 801 - 804)

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. A statement must be an assertion by a human (oral, written, or nonverbal conduct). Items that are NOT hearsay include statements offered for their effect on the listener, the declarant’s mental state, impeachment, or verbal acts of independent legal significance (e.g., contracts, bribes).

Rule $801(d)$ exclusions (Not Hearsay):

1. Declarant-Witness’s Prior Statements: Requires the declarant to testify and be subject to cross. Includes prior inconsistent statements made under penalty of perjury, prior consistent statements (to rebut fabrication or rehabilitate), and prior identifications.
2. Opposing Party's Statements: Offered against an opposing party and made by the party, their agent, or a co-conspirator in furtherance of a conspiracy.

Exceptions where unavailability is NOT required (Rule $803$):

• Present Sense Impression: Statement describing an event made during or immediately after.
• Excited Utterance: Statement relating to a startling event made while under stress.
• Then-Existing Condition: State of mind, emotion, or physical condition.
• Medical Diagnosis: Statements pertinent to treatment/diagnosis.
• Recorded Recollection: Record made when memory was fresh that the witness now cannot recall.
• Business Records: Records kept in the regular course of business made at or near the time.

Exceptions where unavailability IS required (Rule $804$):

• Former Testimony: Given at a trial/deposition where the party had an opportunity/motive to develop it.
• Dying Declaration: Statement about the cause of death made while believing death was imminent (Homicide or Civil cases only).
• Statement Against Interest: Statement a reasonable person would only make if true because it is contrary to their proprietary/pecuniary interest.
• Forfeiture by Wrongdoing: Statement offered against a party who wrongfully caused the declarant’s unavailability.

Constitutional Limitations: The Confrontation Clause

The $6$-th Amendment ensures a defendant the right to confront witnesses. An out-of-court statement violates this if: the action is criminal, the declarant is unavailable, the defendant had no prior opportunity to cross-examine, and the statement is testimonial. A statement is testimonial if the primary purpose of making it to police was to collect evidence for future prosecution, whereas statements made to assist in an ongoing emergency are not testimonial.