Evidence Rules

  1. 104(a)
    Judge rules on admissibility of facts under a preponderance of the evidence standard
  2. 104(b)
    • Conditional Relevancy:
    • fulfillment of facts through ESSF
  3. 401
    • Relevant Evidence
    • 1. evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more porbable or less probable
  4. 402
    Rlevant evidence generally admissible; irrelevant evidence inadmissible
  5. 403
    although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence
  6. 404(a)(1)
    • Character Evidence Not Admissible to Prove Conduct
    • 1. Character of Accused: in a criminal case, defendant may offer evidence of his character to prove his evidence
    • a. shown by reputation or opinion
    • 2. once defendant offered character evidence the prosecutor can use specific instances to rebut on cross
    • 3. if defendant offers evidence of victim's character prosecution may respond by offering evidence concerning the same trait of the defendant's character
  7. 404(a)(2)
    • in Criminal cases the defendant may offer evidence of the alleged victim's character to prove his innocence
    • -once the defendant has done this the prosecutor can rebut the evidence by cross-examining (specific) the witness or calling own witness to show alleged victim's character(rep or opinion)
  8. 404(b)
    • Other Crimes, Wrongs, Acts
    • not admissible to prove the character of a person to show action in conformity therewith
    • admissible for motive, oportunity, intent, preparation, plan, knowledge, identity, absence of mistake
  9. 405(a)
    • Reputation or Opinion of Character
    • Reputation: witness must have sufficient knowledge of the person's community reputation
    • Opinion: opinion must be rationally based on perception
  10. 405(b)
    • Specific Instances of Character
    • can only be offered in cross-examination or if character is an issue
  11. 406
    • Habit, Routine, Practice
    • Evidence of a person to repeatedly act in a certain manner in a specific situation
    • evidence supporting a conclusion of virtually invariable conduct of a person
    • Includes the routine practice of an organization
  12. 407
    • Subsequent Remedial Measures
    • Event Causing injury or harm
    • After the event measures are taken that if taken before would have prevented the harm (not post sale, pre injury)
    • measures taken by a party in the suit, not third party
    • Can use the SRM to show ownership, control, impeachment
  13. 408
    • Compromise or Offer to Compromise
    • 1. must be a claim
    • 2. claim must be disputed
    • Rule applies when the evidence is offered to prove liability or invalidity of the claim or amount or to impeach through inconsistent statements
  14. 409
    • Payment of Medical and Similar Expenses
    • does not require that the person making the offer was involved in the accident
    • only applies to medical or related expenses
    • does not have to be a disputed claim
    • evidence is excluded only if offered to prove liability
    • does not exclude conduct or incidental statements accomanying offer
  15. 410
    • Inadmissibility of Pleas, Plea Discussions, and Related Statements
    • defendant can offer statements, prosecutor cannot offer, even to impeach
    • Guilty plea later withdrawn
    • Nolo-Govt gives up right to use the plea
    • Statements made at hearing to enter plea
    • Statements made in the course of plea bargaining
    • 1. statement must be made to attorney with prosecuting authority
  16. 411
    • Liability Insurance
    • Evidence of a person or company being insured is inadmissible to prove negligence or other wrongful conduct
    • 1. But, if a party contests ownership, then evidence of insurance may be used to prove the ownership
  17. 412
    • Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition
    • Only available to show specific instances of sexual behavior that prove person other than defendant is source of semen or other physical evidence
    • Consent
    • CIVIL case-admissible if the probative value substantially outweighs the danger of harm
  18. 413
    • Evidence of similar crimes in sexual assault cases
    • evidence of a smilar crime or the possiblity of another sex act is admissible
  19. 414
    • Evidence of similar crimes in child molestation
    • all evidence of child molestation crimes are admissible
  20. 415
    • Evidence of similar acts in civil cases concerning sexual assault or child molestation
    • In a civil case, when claim of damages is predicated on a party's alleged commssion of conduct constituting an offense of sexual or child assault, evidence of other offenses is admissible
  21. 601
    • General Rule of Competency for Witness
    • every person is competent to be a witness
  22. 602
    • Lack of Personal Knowledge
    • Witness can have personal knowledge only if
    • 1. perceives the facts with one or more senses
    • 2. must be able to comprehend, remember, and communicate what was perceived
    • Conditional relevancy under 104(b); ESSF
  23. 603
    • Oath or Affirmation
    • Witness must take an oath or affirmation that they will tell the truth
  24. 607
    • Who May Impeach
    • Credibility of a witness may be attacked by any party
    • 1. untruthful character
    • 2. Bias
    • 3. Prior Inconsistent Statement
    • 4. Defects of Capacity
    • 5. Contradiction
  25. 608(a)
    • Reputation and Opinion
    • Regulates teh admissibility of opinion and rep evidence for the witness' character for truthfulness or untruthfulness (allows extrinsic evidence)
    • Evidence for Truthfulness
    • only admissible after the character for truthfulness of the witness has been attacked
  26. 608(b)
    • Conduct Probative of Truthfulness (specific instances)
    • Cannot be provided by extrinsic evidence
    • if witness denies conduct, it cannot be proved through other evidence
    • Must be probative of truthfulness
  27. 609(a)
    • Impeachment by Evidence of Conviction of a Crime
    • Death or imprisonment in excess of 1 year and within 10 years of conviction or release
    • Court must determine (104(a)) that the probative value outweighs the prejudicial effect to the accused
    • Evidence that a witness has been convicted of a crime shall be admitted if an element of the crime required proof of an act of dishonesty
    • No prohibition of extrinsic evidence for proving conviction
  28. 609(c)
    • Effect of Pardon, Annulment, or Cert. of Rehab
    • not admissible unless person has been subsequently convicted of a crime where death or 1+ years of imprisonment
  29. 609(e)
    Pendency of appeal does not render evidence of conviction inadmissible, but can be mentioned
  30. Gordon Factors
    • In relation to 609(a)
    • 1. Nature of the prior Offense (is crime related to truthfulness)
    • 2. Recency/Remoteness(more recent is more probative)
    • 3. Similarity to crime charged (more similar more prej)
    • 4. Extent/Nature of the witness' overall record
    • 5. Importance of the Credibility
    • 6. Importance of Defendant's Testimony (the more important, higher prejudicial effect of admitting evid)
  31. 610
    • Religious Beliefs or Opinions
    • Inadmissible to show that the opinions effect the witness' credibility
  32. 611
    • Mode and Order of Interrogation
    • (a) court should keep the time and order of questioning and keep witness' from being harrassed
    • (b) Cross-examination should be limited to the subject matter of direct and matters affecting credibility of witness
    • (c) Leading questions on cross, only on direct to develop witness' testimony or if the witness is hostile or adverse party
  33. 612
    • Writing Used to Refresh Memory
    • Will be admitted pursuant to any inspection or limitation by the opposing party
  34. 613(a)
    • Examining Witness Concerning Prior Statement
    • When examining a witness concerning a prior statement, the statement need not be shown to witness, but on request shall be shown to opposing counsel
  35. 613(b)
    • Extrinsic Evidence of Prior Inconsistent Statement of Witness
    • Not admissible unless the witness is afforded an opportunity to explain or deny the same
  36. 701
    • Opinion Testimony by Lay Witness
    • (a) rationally based on the perception fo the witness
    • (b) helpful to understand witness' testimony or determination of a fact in issue
    • (c) not based on scientific or other specialized knowledge
  37. 702
    • Expert Opinion
    • Specialized knowledge will assist the trier of fact to understand evidence or to determine a fact in issue
    • 1. the testimony is based upon sufficient facts or data
    • 2. the testimony is the product of reliable principles and methods
    • 3. the witness has applied the principles and methods reliably to the facts of the case
  38. 801
    • Hearsay Definitions
    • Statement
    • Declarant
    • Hearsay
  39. 801(d)(1)
    • Statements Which are Not Hearsay
    • (1) Prior Statement by Witness
    • Declarant testifies a tthe trial or hearing and is subject to cross concerning the statement
    • (A) inconsistent with the declarant's testimony, and was given under oath subject to penalty of perjury
    • (B) consistent with declarant's testimony and offered to rebut an express or implied charge of recent fabrication
    • (C) one of identification of a person made after perceiving the person
  40. 801(d)(2)
    • Admission by Party-Opponent (not hearsay)
    • Statement offered against a partyand is
    • (A) the party's own statement in either an individual or a representative capacity
  41. 801(d)(2)
    • (B) a statement of which the party has manifested an adoption or belief in its truth
    • (C) a statement by a person authorized by the party to make a statement concerning the subject
    • The contents of the statement alone are not enough to establish the declarant's authority
  42. 803
    Hearsay Exceptions; Availability of Declarant Immaterial
  43. 803(1)
    • Present Sense Impression
    • 1. event or condition
    • 2. statment describes event or condition
    • 3. declarant must have made the statement while perceiving the event or condition or immediately thereafter
  44. 803(2)
    • Excited Utterance
    • 1. startling event or condition
    • 2. statement must "relate" to that event or condition
    • 3. declarant must have been under the stress of excitement caused by the event or condition when she made the statement
  45. 803(3)
    • Then existing mental, emotional, or physical condition
    • 1. condition must exist at time statement is made
    • 2. must be declarant's condition (not someone else's)
    • 3. cannot be a statment of memory or belief (backward looking)
    • statement of intention to do something in the future to prove that another person acted with that same intention is ok
  46. 803(4)
    • Statements for Purposes of Medical Diagnosis or Treatment
    • 1. statement made for purposes of med diagnosis or treatment
    • 2. describe medical history, pain or sensations
    • 3. reasonably pertinent to diagnosis or treatment
  47. 803(5)
    • Recorded Recollection
    • 1. witness once had knowledge of the matter
    • 2. present knowledge is insufficient
    • 3. record of witness' knowledge must have been made or adopted by the witness when the matter was fresh in the witness' memory
    • 4. record must reflect the witness' prior knowledge accurately
  48. 803(6)
    • Records of Regularly Conducted Activity
    • 1. record made and kept in course of regularly conducted activity
    • 2. regular or routine practicew
    • 3. record made at or near time of event
    • 4. record made by a person with knoledge or information was received from a person with knowledge
    • 5. trustworthy source or method
  49. 803(7)
    • Absence of Entry in Records
    • 1. must show that the record would have been sufficient under 803(6)
    • 2. custodian should testify that a diligent search failed to disclose the matter
  50. 803(8)
    • Public Records and Reports
    • 1. Internal workings of an agency (payroll, etc.)
    • 2. Records made when there was a duty to report (weather records)
  51. 804
    • Exceptions; Declarant Unavailable
    • Unavailability includes
    • 1. exempt by ruling of the court on the ground of privilege from testifying
    • 2. persists in refusing to testify
    • 3. testifies to a lack of memory
    • 4. unable to testify due to death or mental illness
    • 5. absent from hearing and all court intrumentalities have been exhausted
  52. 804(b)(1)
    • Former Testimony
    • 1. declarant is unavailable
    • 2. testimony given at hearing or deposition (oath)
    • 3. declarant was subject to cross with same or similar motive
  53. 804(b)(2)
    • Dying Declaration
    • 1. declarant must be unavailable (not necessarily dead)
    • 2. civil action or homicide proceeding
    • 3. made by declarant while believing that death was imminent
    • 4. concerning the cause or circumstances of what the declarant believed to be impending death
  54. 804(b)(3)
    • Statements against interest (104(a))
    • 1. unavailable
    • 2. when made statement must be contrary to an interest of declarant
    • 3. reasonable person would not have made the statement without believing it
    • 4. declarant must have had personal knowledge of the facts in the statement
  55. 804(b)(6)
    • Forfeiture by Wrongdoing
    • 1. any type of statment
    • 2. declarant must be unavailable
    • 3. party against who statement is offered engaged in wrongdoing that was intended to procure the declarant's unavailability
  56. 807
    • Residual Exception
    • 1. statement is evidence of material fact
    • 2. more probative than other evidence
    • 3. interest of justice will be served by admittance
    • 4. not specifically covered by 803 or 804
    • 5. equivalent guarantees of trustworthiness
    • 6. notice is given to adverse party
  57. 901
    • Authentication or Identification of Evidence
    • condition precedent to admissibility is satisfied by ESSF that matter in question is what its proponent claims
  58. 901(b)(1)
    Testimony of Witness with Knowledge
  59. 901(b)(2)
    • Nonexpert opinion on handwriting
    • 1. familiarity of handwriting for purposes not associated with the litigation
  60. 901(b)(3)
    Comparison by Trier or Expert Witness
  61. 901(b)(4)
    • Distinctive Characteristics and the Like
    • distinctive characteristics taken in conjunction with circumstances
  62. 901(b)(5)
    • Voice Identification
    • can be heard firsthand or through mechanical or electronic transmission or recording
  63. 901(b)(6)
    • Telephone Conversations
    • call was made to the number assigned at the time by the telephone company to person or business
    • (A) person: circumstances including self-identification showing the one answering to be the one that was called
    • (B) business: call was made to a placeof business and the conversation realted to business reasonably transacted over the telephone
  64. 901(b)(8)
    • Ancient Documents or Data Compilation (need all 3)
    • 1. document is in such condition as to create no suspicion concerning its authenticity
    • 2. was in a place, if authentic, it would likely be
    • 3. has been in existence 20 years or more when offered
  65. 901(b)(9)
    • Process or System
    • describing a process or system used to produce a result and showing that the process or system produces an accurate result
  66. 902
  67. 902(1)
    Domestic Public Docs under Seal
  68. 902(2)
    Domestic Public Docs not Under Seal
  69. 902(3)
    Foreign Public Documents
  70. 902(4)
    Certified Copies of Public Records
  71. 902(5)
    Official Publications
  72. 1001(1)
    • Contents of Writings, Recordings, and Photographs
    • Writings and recordings consist of letters, words, or numbers, set down by any type of data compilation
  73. 1001(2)
    • Photographs
    • Include still photos, x-rays, video tapes, and motion pictures
  74. 1001(3)
    • Original
    • writing or recording itself or any counterpart intended to have the same effect
    • original of photograph is a negative or any print therefrom
    • if data stored on a computer any printout or other output readable by sight, shown to reflect the data accurately, is an "original"
  75. 1001(4)
    • Duplicate
    • duplicate is a counterpart produced by the same impression as the original by means of photography or mechanical or electronic recording or by other equivalent techniques which accurately reproduce the original
  76. 1002
    • Requirement of Originals
    • original writing, recording, or photograph is required except as otherwise provided
  77. 1003
    • Admissibility of Duplicates
    • Duplicate admissible to same extent as original unless
    • 1. a question is raised as to the authenticity of the original, or
    • 2. in the circumstances it would be unfair to admit duplicate in lieu of original
  78. 1004
    • Admissibility of Other Evidence of Contents
    • Original not required if
    • 1. original lost or destroyed; in good faith if by opponent
    • 2. Original not obtainable
    • 3. Original in Possession of opponent
    • 4. Collateral matters: original is not closely related to a controlling issue
Card Set
Evidence Rules
Evidence Bitches