Procedural guidelines on how extrinsic evidence can be introduced/used.
What does Rule 404(a) cover?
Generally prohibits character evidence, but there are exceptions.
What does Rule 608(b) cover?
Specific instances of conduct to show a witness's character (for cross-examination purposes only - no evidence submission).
What does Rule 609 cover?
Evidence of a witness's prior criminal convictions.
PART IV: WITNESSES
What FRE applies to General Rule of Competency?
applies to general rule of competency
What FRE applies to Personal Knowledge?
applies to personal knowledge
What are the elements of FRE 602?
Under FRE 602:
1. Witness must have personal knowledge
2. Personal knowledge should be based on seeing, hearing, or otherwise sensing.
3. FOUNDATION REQUIREMENT for personal knowledge. There must be evidence of personal knowledgeBEFORE the witness can testify.
4. EXCEPTION. "Experts" can testify without personal knowledge.
What is the foundation requirement for personal knowledge?
Under FRE 602:
"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."
Which Federal Rules of Evidence apply to witnesses?
Which FRE applies to Mode and Order of Interrogation and Presentation?
applies to Mode and Order of Interrogation and Presenation
What are the elements of FRE 611(a)?
Under FRE 611(a) Control by Court,
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to
(1) make the interrogation and presenation effective for ascertainment of the truth,
(2) avoid needless consumption of time, and
(3) protect witnesses from harassment OR undue embarrassment.
On direct examination, are leading questions allowed?
YES, on direct examination, leading questions are allowed:
1) when necessary to develop witness's testimony and
2) for a hostile witness or adverse party.
Which FRE applies to leading questions?
applies to leading questions
What are the elements for FRE 611(c)?
FRE 611(c) Leading Questions.
Leading questions should NOT be used on direct examination of a witness
EXCEPT as may be necessary
(1) to develop the witness's testimony . . .
(2) when a party calls a hostile witness
(3) an adverse party
Are leading questions ALWAYS allowed on cross-examination?
NO, leading questions are NOT ALWAYS allowed on cross-examination.
FRE 611(c): "Ordinarily leading questions should be permitted on cross-examination"
Under FRE what are the limitations to cross-examination?
Cross-examination under FRE is limited to subject of direct exam and credibility.
Which FRE applies to Scope of Cross-Examination?
applies to scope of cross-examination
What are the elements of FRE 611(b)?
Under FRE 611(b) Scope of Cross-Examination
cross-examination should be limited to
1) subject matter of direct examination and
2) matters affecting crediblity of the witness.
The court may use discretion to permit inquiry into add'l matters as if on direct examination.
What are additional elements of FRE 611(b)?
Under FRE 611(b) Scope of cross-examination.
A witness may be cross-examined on any matter relevenat to ANY issue in the case, including credibility.
In the interest of justice, the judge may limit cross-examination with respect to matters NOT testified to on direct examination.
How does MRE 611(c) differ from FRE?
MRE 611(c) has a limited scope of "cross" if witness is your client OR a representative thereof.
What is FRE 614?
FRE 614 is Calling and Interrogation of Witness by Court.
What are the effects of FRE 614?
1) Judge may call witness (rare)
2) Judge may question witnesses (often)
3) The attorney must object to calling of witness by the court as soon as jury is not present to preserve objection for appeal.
What rule addresses the exclusion of witnesses?
FRE 615 addresses the exclusion of witnesses.
What are the effects of FRE 615?
Under FRE 615: Exclusion of Witnesses,
1) the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and
2) the court may make the order of its own motion.
EXCEPT . . . the court cannot exclude:1) parties to the case
2) representative of a corporation or organizational party
3) witness essential for preparation
PART V: IMPEACHMENT
Which rule allows for refreshing witnesses's memory?
allows for refreshing witness's memory
Witness may refresh recollection from . . .
- personal notes
- official reports
- any writing
Who may introduce in evdience a writing used ONLY to refresh recollection?
an adverse party
The jury may use a writing introduce under Rule 612 . .
a) to access credibility
b) to establish a controverted fact
c) to establish liability
d) for any purpose
a) to access credibility
When refreshment occurs before testifying, the adverse party may examine the materials . . .
a) when the interests of justice require
d) if the witness is hostile
When refreshment occurs before testifying, theadverse party may examine the materials . . .
a) when then interests of justice require
What are 4 testimonial "qualities" a jury can use to access a witness?
1) narration - witness accurately described what she perceived
2) sincerity - witness is truthfully describing what she perceived
3) memory - witness accurately remembers what she perceived
4) perception - witness was able to accurately perceive the event
What FRE address who may impeach?
FRE 607 is titled Who May Impeach.
What are the effects of FRE 607?
FRE 607: Who May Impeach states that:
any party may attack the credibility of any witness.
When would you attack your own witness?
You would attack your own witness if:
1) witness is hostile
2) witness changes story
3) to "draw the sting"
Which FRE addresses Using Prior Statements to Impeach?
addresses using prior statements to impeach a witness
define extrinsic evidence
extrinsic evidence is any evidence other than testimony from the witness currently on the stand
NOTE for extrinsic v. non-extrinsic evidence
1) take MORE TIME to present and
2) causes MORE distractions
define collateral matter
collateral matter is relevant to the case solely because it impeaches a witness
define non-collateral matter
non-collateral matter proves a fact in consequence other than impeachment
evidence is non-collateral if a piece of evidence BOTH: 1) proves a fact in consequence AND
2) impeaches a witness
Potential uses for prior inconsistent statements?
Potential uses for prior inconsistent statements:
1) For impeachment;
2) As substantive evidence (for the truth)
Which impeachment methods can you use?
C. A, B, & C
1) Ask witness about the note
2) Introduce the letter in evidence
3) Call the sister as a witness
Why does the "extrinsic" distinction matter for prior inconsistent statements?
1) Asking questions is quicker than introducing extrinsic evidence.
2) If the inconsistency involves a fact of consequence, the judge will take time for extrinsic evidence.
3) If the inconsistency involves a collateral issue, the judge probably will limit exploration to questions.
What does Rule 613(a) allow?
1. Rule 613(a) - allows that attorney
Which rule addresses the scope of the federal rules?
In front of whom do the FREs apply?
○ All United States courts.
○ U.S. bankruptcy judges.
○ U.S. magistrates.
What are the goals of the FRE, under Rule 102?
Secure fairness in:
• Elimination of unjustifiable expense and delay.
• Promotion of growth and development of the law of evidence.
Which FRE addresses the applicability of rules?
What does FRE 1101 address?
Applicability of rules in:
Courts and judges.
Rule of privilege.
Rules inapplicable in:
• Preliminary questions of fact.
• Grand jury.
• Miscellaneous proceedings.
How does MRE 1101 differ from FRE 1101?
The Maine Rule makes the Rules of Evidence inapplicable to juvenile proceedings (except for privilege, which is applicable).
What does FRE 103 cover?
Effect of erroneous ruling.
• Offer of proof.
Record of offer and ruling.
Hearing of jury.
Which FRE addresses the limited admissibility of evidence?
What does FRE 105 address?
The limited admissibility of evidence.
What are three types of pre-trial motions?
○ Motions in limine.
○ Motions to suppress.
○ Motion for summary judgment.
FRE 103 addresses which four aspects of evidentiary disputes?
○ Raising objectings.
○ Defending evidence.
○ Maintaining objections.
○ Shielding the jury.
Most evidentiary missteps constitute...
When is an objection preserved for appeal?
When there is a definite ruling (FRE 103(a)).
What is the Maine rule regarding objections?
They must be timely renewed at trial unless the court states on the record, or the context clearly demonstrates, that a ruling on the objection or proffer is final.
Which FRE addresses limited admissibility?
What does FRE 105 address?
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose.
The court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
How does MRE 105 differ from FRE 105?
It adds the following: "In a criminal casetried to a jury evidence inadmissible as to one defendant shall not be admitted as to otherdefendants unless all references to the defendant as to whom it is inadmissible have beeneffectively deleted."
Which rule defines relevant evidence?
What is meant by relevant evidence?
Evidence having any tendency to make the existence of any fact of consequence more probably or less probable than it would be without the evidence.
Which FRE addresses the general admissibility of evidence?
What does FRE 402 address?
Only relevant evidence is admissible.
Which FRE addresses the exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time?
What does FRE 403 do?
Allows evidence to be excluded if its probative value is substantially outweighed by the danger of:
○ Unfair prejudice
○ Confusion of the issues, or
○ Misleading the jury, or by considerations of:
○ Undue delay,
○ Waste of time, or
○ Needless presentation of cumulative evidence.
What are the three FRE 403 "considerations"?
Waste of time.
Needless presentation of cumulative evidence.
What are the three FRE 403 "dangers"?
Confusion of the issues.
Misleading the jury.
What are the factors affecting 403 determinations?
Extent to which the evidence will arouse emotions or irrational prejudices among the jurors.
Extent to which the jury might overvalue the evidence.
Strength of the connection between the evidence and the elements of the case.
Whether the advocate can prove the same facts through less prejudicial or confusing means.
Whether it would be possible to reduce prejudice or other harm once the evidence is introduced.
What is meant by the theory of relevance?
What are you trying to prove?
What is it called when two parties agree to a fact?
Which FRE addresses subsequent remedial measures?
What does FRE 407 address?
Subsequent remedial measures.
What are the effects of Rule 407?
Evidence that a defendant corrected the problem after the injury is inadmissible. It's not admissible to prove:
Product's design defect.
Need for a warning or instruction.
How does MRE 407 differ from FRE 407?
The Maine Rule also includes (b), which states that a written manufacturer's notice of efect is admissible against teh manufacturerr on the issue of existence of the defect (so long as it's relevant).
Which FRE addresses compromises and offers to compromise?
What does FRE 408 address?
Compromise and offers to compromise (i.e., negotiations).
What are the effects of FRE 408?
It prevents settlement offers and statements made during settlement discussions from being offered into evidence. E.g., it prevents admission of the negotiations to prove liability, invalidity, amount of the claim, or impeachment through inconsistent statement.
What are the exceptions to Rule 408 re: compromise?
(b) Settlement negotiations can be used:
• To prove a witness's bias or prejudice.
• To negate a contention of undue delay. and
• To prove an effort to obstruct a criminal investigation or prosecution.
Which types of cases are not covered by Rule 408 (settlement negotiations)?
What are the two key parts of FRE 408?
"Claim" that is "disputed" regarding it's validity or amount.
How does MRE 408 differ from FRE 408?
The Maine Rule doesn't include a "permitted uses" section.
Also, Maine Rule calls out mediation as being covered by this rule (i.e., inadmissible).
What does FRE 409 address?
Payment of medical and similar expenses.*
*Will probably not be on the exam.
What does FRE 106 address?
“Rule of Completeness”
Written or recorded statements, ensures that statements are not distorted from original meaning. Gives opposing counsel the right to offer the rest of the statement immediately.
What does FRE 411 address?
*Probably will not be on the test.
What does FRE 106 address?
“Rule of Completeness” Allows opposing counsel to offer rest of a written or recorded statement immediately to ensure that statements are not distorted from original meaning.
What does FRE 104 address?
What does FRE 104(a) address?
Questions of admissibilty generally: Governs resolution of preliminary factual issues that do not relate to relevance. Judges are not bound to FRE rules, except those relating to privilege.
What does FRE 104(b) address?
Relevancy conditioned on fact: When the relevancy of evidence is in question, the court shall make prima facie determination whether a jury could find the disputed fact by a preponderance of the evidence.
What does FRE 104(e) address?
Weight and Credibility: FRE 104 does not limit the right of a party to introduce evidence relevant to weight or credibility.OPPOSITION MAY ALWAYS DISPUTE EVIDENCE WEIGHT AT TRIAL
What standard must the court use to decided factual issues under FRE 104(a)&(b)
All preliminary factual issues are decided by a preponderance standard
What are the four reasons courts prefer first hand testimony?
1.Reduce risks of error 2.Assess credibility 3.Cross-examination 4.Oath and formality
What are the four concerns regarding the quality of hearsay provided by the book?
Perception, Memory, Clarity, and Sincerity
What does FRE 802 address?
Blank inadmissibilty of Hearsay. EXCEPT as provided by the FRE, by other rules presecribed by the supreme court or, by congress
What is hearsay under FRE 801?
A statement other than the one made by the declarant while testifying at trial or hearing, offered for the truth of the matter asserted.
Name at least two instances, where out of court statements are not offered for truth of the matter asserted?
Knowledge of the speaker, Notice to the listener, Publication in defamation case, Effect on the listener, Legally binding statements.
Under FRE 801(a) a statement is?
An oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion
Are Prior Inconsistent Statements hearsay, when used to impeach?
Not hearsay when used to impeach witness, The statement isn’t offered for the “truth of the matter asserted.” It’s offered to show that the testimony has inconsistancies.
What is needed for a 801(d)(1)(A): Prior Inconsistent Statement by Witness exception?
1.Declarant testifies at trial 2.Declarant/witness is subject to cross at trial 3.Prior statement is inconsistent with courtroom testimony 4.Prior statement was given under oath 5.Prior statement was given during proceeding
What is needed for a 801(d)(1)(B): Prior Consistent Statement exception?
1.Declarant testifies at trial 2.Declarant/witness is subject to cross 3.Prior statement is consistent with courtroom testimony 4.Offered to rebut charge of fabrication 5.Prior statement made before motive to lie arose
What is needed for a 801(d)(1)(C): Prior Identification exception?
1.Declarant testifies at trial 2.Declarant/witness is subject to cross at trial 3.Prior statement was identification of person.
List four categories of hearsay exceptions
1.Rule 801(d): Exemptions (“Not hearsay”) 2.Rule 803: Availability Immaterial 3.Rule 804: Declarant Not Available 4.Rule 807: Residual Exception
What is needed for a FRE 803 (1) Present Sense Impression exception?
1. Description of an event 2. Made while perceiving the event or immediately thereafter
What is needed for a FRE 803(2) Excited Utterance exception?
1. Declarant perceived a startling event 2. Declarant spoke while still excited by the event 3. Statement related to the event
What are the FRE 803(3) Then Existing Mental, Emotional, or Physical Condition requirements?
1. Statement expresses declarant’s then-existing state of mind, emotion, sensation or physical condition
2. Cannot include memory or belief to prove the fact remembered or believed.
What are the FRE 803(4) Statements for Medical Treatment or Diagnosis requirements?
1. must be made for purpose of medical diagnosis or treatment. 2. may describe medical history, past or present symptoms, pain, or sensations. 3. may describe cause of medical condition, but only as reasonably pertinent to diagnosis or treatment
What are the FRE 803(5) Recorded Recollection requirements?
1. Memorandum or record 2. Witness once had personal knowledge 3. But Witness has now forgotten 4. Witness made or adopted that record 5. When that knowledge was fresh 6.Witness testifies that info was accurate
Under FRE 803(5) may the record become an exhibit?
If admitted, the memorandum or record may be read into the record but may not be received as an exhibit, unless offered by an adverse party.
What are the FRE 803(6) Business Record Exception requirements?
1. Business, or similar organization.
2. Need a qualified witness or certification
3. Lay foundation that (record was made by a person with knowledge, At or near the time of the act, event. In the course of a regularly conductedactivity. It was regular practice to make record.)
What are the Rule 803 hearsay exceptions?
Present Sense Impression.
State of Mind.
What are the elements of a "Present Sense Impression" hearsay exception [Rule 803(1)]?
Immediately after OR while
What are the elements of an "Excited Utterance" hearsay exception [Rule 803(2)]?
elated to Event.
Perceived startling event.
What are the elements of a "State of Mind" hearsay exception [Rule 803(3)]?
STEEPS in belief, not truth.
tate of mind.
Note: Not to be used for the truth of the matter asserted.
What are the elements of a "Medical Diagnosis or Treatment" hearsay exception [Rule 803(4)]?
iagnosis or treatment.
Not limited to doctors (i.e., family members or other professionals conveying information for medical treatment count).
What are the elements of a "Recorded Recollection" hearsay exception [Rule 803(5)]?
WAR PAFF ("war path")
Adopted or made.
Personal knowledge - declarant had personal knowledge when record was made.
Fresh - record was made when memory was fresh.
Forgotten - information now forgotten by witness-declarant.
What are the elements of a "Business Records" hearsay exception [Rule 803(6) - aka "Records of regularly conducted activity"]?
oundation - must be laid by qualifying witness before records can be entered.
Opponents need to review for objections.
Real knowledge at time of act - declarant must have had knowledge.
egular conduct - record must have been made during the course of declarant's regular conduct.
egular practice - keeping such records must be a regular practice of the business.Qualifying witness.
What are the elements of a "Public Record" hearsay exception [Rule 803(8)]?
FORMAT, not PI for criminals.
bservations pursuant to duty.
inisterial law enforcement records.
but, the following excluded from criminal cases (if offered by the State):
nvestigations by agencies.
What are the elements of Rule 804(a) Unavailability?
ack of memory.
What are the elements of the "Former Testimony" exception [Rule 804(b)(1)]?
resence of opponent - opponent was present when the previous testimony was offered.
imilar Motive - opponent had a similar motive to develop testimony in the previous hearing, deposition, etc.
ath - prior statement was given under oath at a hearing or deposition.
pportunity to Develop - opponent had an opportunity to develop the testimony at the previous hearing, deposition, etc.
What are the elements of the "Dying Declaration" hearsay exception [Rule 804(b)(2)]?
urder - can be used in homicide cases.
navailable - declarant is unavailable at the time of trial (even if he didn't actually die).
ubjective belief that death was Imminent - declarant subjectively believed that death was imminent when the statement was made.
ivil - can be used in civil cases.
bout - statement was about the cause or circumstance of the attack.
What are the elements of the "Statement Against Interest" hearsay exception [Rule 804(b)(3)]?
orroboration for Criminal cases - corroboration of statement is required in criminal cases.
gainst interest at the Time it is made - statement goes against the declarant's own interests at the time it was made.
navailable - declarant is unavailable.
When would the "Statement Against Interest" hearsay exception apply [Rule 804(b)(3)]?
ivil or Criminal Liability.
nvalidates a claim - declarant has another claim that will be invalidated (extinguished) by the statement.
ecuniary or Proprietary.
What are the elements of the "Forefeiture by Wrongdoing" hearsay exception [Rule 804(b)(6)]?
ntent - opponent had the intent to cause the declarant's unavailability as a witness.
Caused - opponent's efforts actually caused the unavailability.
pponent's - opponent took the action or caused it to be taken.
What are the elements of the "Statement Against Party-Opponents" hearsay exception [Rule 801(d)(2)]?
OPA! ASS SAC
ffered - offered against declarant party.
arty - party-opponent is the declarant.
dopted - statements adopted by party-opponent.
Agents or Servants.
o-conspirator - statements made by party-opponent's co-conspirator, in furtherance of the conspiracy.
What are the elements of the "Residual" hearsay exception [Rule 807]?
aterial - evidence is material to the case.
quivalent - equivalent level of trustworthiness, when compared to evidence that falls within other hearsay exceptions.
early misses - evidence comes close to falling into another hearsay exception category.
Probative - it's more probative than other evidence being offered.
nterest of justice - the judge deems it necessary (in the interest of justice) to have the evidence admitted.
otice - opponent had notice of the evidence.
Flashcards for Evidence (re: various rules and objections).