Federal Rules of Evidence Flashcards
(43 cards)
103: Preserving a Claim of Error
Lists the ways in which a party may preserve their right to appeal because generally appellate courts have extremely limited jurisdiction over evidentiary rulings.
105: Limiting Evidence
If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
401: Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Note: The existence of a concession (i.e. a stipulation or confession) does not make evidence regarding that matter irrelevant however it can go to show opposing counsel is only offering it to prejudice the jury.
403: Excluding Evidence for Prejudice, Waste of Time, 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
- Needlessly Cumulative
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
- Defective Product or Design
- The 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.
408: Compromises & Negotiations
Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
409: Offers to Pay Medical Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
However, it may be offered for any other purpose besides liability.
410: Plea Bargaining
Evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
- A guilty plea that was later withdrawn;
- A nolo contendere plea
- A statement made during a proceeding related to 1 or 2. Where defendant had an actual subjective expectation of negotiating a plea and the expectation was reasonable given the totality of the objective circumstances
- A statement made during plea discussions with a prosecutor, if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
Exceptions. The court may admit a statement described in #3 or #4:
(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
411: Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.
Designed to encourage the purchase of liability insurance & generally has low probative value.
Rules for Testifying
Who can testify? Rules 601, 602, 605, and 606
How do Witnesses Testify? Rules 603, 604, 611, 612, 614, 615
Impeaching WItnesses: Rules 607-610, 613
602: Need for Personal Knowledge
o Witness must have personal knowledge
o Not necessarily direct eyewitness knowledge
o information can be based on seeing, hearing, or otherwise sensing
Does not apply to experts under 703.
603: Oath or Affirmation to Testify
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
Capacity to Testify: Every witness needs 4 capacities to testify:
1) narration
2) Understanding the importance of telling the truth
3) Memory
4) Perception
614: Court
Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
Examining. The court may examine a witness regardless of who calls the witness.
Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.
615: Excluding Witnesses
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
- A party
- Party Representative
- Essential Persons (expert witnesses)
- Those authorized by statute
612: Refreshing Recollection
- Witness says she cannot recall.
- Identify the “memory jogger” and ask witness if it would refresh their memory.
- Show the document to opposing counsel.
- Show the document to the witness.
- Take document away.
- Ask witness to testify from memory.
613: Impeaching with Prior Inconsistent Statements
- May ask the witness about prior statement without showing it to the witness.
- But must show the statement to the opposing counsel on request.
- If you use extrinsic evidence of prior statement, the witness must have an opportunity to explain or deny.
- And opponent must have the opportunity to question the witness about the inconsistencies.
Impeachment by Showing a Propensity for Dishonesty
- Cross-examine witness on prior inconsistencies of dishonesty but no extrinsic evidence (Rule 608(b))
- offer extrinsic evidence of criminal convictions to show witness is dishonest (Rule 609)
- call character witness who will testify that witness is untruthful character (Rule 608(a))
608: Attacking Witness’ Credibility
Witness was dishonest before → Witness has dishonest character traits → so she is dishonest on the stand
Under rule 608(b),
- “Good Faith Belief” is usually probable cause for warrants
- Judge has discretion
- Extrinsic evidence is not admissible to prove character or conduct
608: Attacking Witness’ Credibility
Witness was dishonest before → Witness has dishonest character traits → so she is dishonest on the stand
Under rule 608(b),
- “Good Faith Belief” is usually probable cause for warrants
- Judge has discretion
- Extrinsic evidence is not admissible to prove character or conduct
3 Layers of Judicial Control over Witness Examinations
608(b) gives judges discretion.
611: Mode and Order of Examining Witnesses and Presenting Evidence
403: exclude if unfair prejudice substantially outweighs probative value
609: Impeachment by Evidence of Criminal Conviction
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
- The crime must be punishable by imprisonment for more than a year. And:
a. It must be admitted per 403 in a civil case or a criminal case where the witness is not the defendant.
b. It may be admitted in a criminal case where the defendant is a witness only if the probative value outweighs the prejudicial effect.
c. For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement. - If more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
a. Its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
b. the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
Evidence of a conviction is not admissible if the person was pardoned. A conviction that is pending appeal is admissable however so is the fact that it is pending appeal.
Evidence of a juvenile adjudication is admissible under this rule only if it is offered:
- In a criminal case and the witness against whom it is being offered is not the defendant.
- The crime must be one for which an adult’s conviction for that offense would be admissible.
- Admitting the evidence must be necessary to fairly determine guilt or innocence.
ble.
610: Religious Beliefs
Religious beliefs are not admissible to show a witness’s character or untruthfulness or lack thereof.
406: Habit
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.
Habit is defined as: • Specific conduct • Indistinctive situation • On a regular basis • With a lack of moral overtones
412: Rape Shield Law
Precludes evidence of victim’s prior sexual conduct or predisposition.
Exceptions:
1) Explanations of physical evidence 2) prior sexual conduct with the defendant (defendant: to show consent and plaintiff: to show any other reason) 3) constitutional catch-all (attack the credibility of the victim)
