Flashcards in Federal Rules of Evidence Deck (144)
Mode and Order of Examining Witnesses and Presenting Evidence
Assumes Facts not in Evidence
Asked and Answered
Lack of Foundation
Calls for Hearsay
Calls for Speculation
Calls for Legal Conclusion
Calls for Narrative
Outside the Scope
Misstates the Evidence
Lack of Corpus
Objections form of Answer:
No Personal Knowledge
No Question Pending
Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or 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, or needlessly presenting cumulative evidence.
FRE 101 & Rule 1101
The scope of the Rules
Rules apply in lots of federal venues (even Guam) but they apply only to proceedings (basically testimony at trial), except rules of privilege always apply
Rule 103 (a) (e)
Objections: Timely, Precise, Complete
Offers of Proof: Make a Clear Record
Exception: Egregious and affects a substantial right
Evidence admissible against one party but not others in the same action, or;
Evidence admissible for one person but not others
Test for Relevant Evidence:
The 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.
***WEAKEST OBJECTION, strong lean towards admissibility***
Facts of Consequence
AKA Facts of Controversy
Opening the Door
Allows the opposing party to bring in evidence because of a lawyer or witness mistake
Allows the judge to jump in and MAY exclude relevant evidence if its probative value is SUBSTANTIALLY OUTWEIGHED by a danger of one or more of the following:
Confusing the Issues
Misleading the Jury
Needlessly Presenting Cumulative Evidence
Subsequent Remedial Measures
Policy: Encourage parties to take measures to keep more people safe without fear of punishment or liability because of remedial measures.
Only subsequent remedial measures taken by a party are protected by rule 407. If a 3rd person takes the measures, those measures may be used.
Things to look for:
1) Feasibility: Ex. "It Couldn't have been safer"-BUT it could have been because you made it safer.
3) Limiting Instructions under Rule 105
*Not admissible if offered to prove liability or fault
*But may be admissible for other purposes like impeachment or if disputed ownership/control
Civil Compromise Offers and Negotiations
Policy: If more cases went to trial the system would collapse, the system wants to encourage settlement conversations, therefore, we must protect settlement conversations.
The rule protects statements and conduct (offers/admissions/gestures)
What are the limitations:
1) Matter must have matured into a claim for 408 to apply.
2) Claim must be Disputed
3) Statement or Conducrt Must Occur during "Compromise Negotiations"
4) Statements offered to prove validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction (?)
-Excludes Settlement Discussions by 3rd Parties
5) Other Purposes---Admissible
ex. Rebut allegation of undue delay making a claim
ex. Bias or Prejudice
Tricky Quirk (Martha Stewart Exception):
1) When dealing with a government agency that has prosecutorial and enforcement duties
2) Offer/Acceptance is still protected but admissions are admissible in a subsequent criminal case
***Cannot shelter pre-existing evidence by draggong it into compromise negotiations***
Elements Under Rule 408
Plea Bargaining & Rule 410
1) Factual Basis Plea- Run through Factual Basis Supporting the Crime. Under Oath, transcribed, both attorneys present.
2) Then goes to trial, if the Defendant denies statements from factual basis plea, the prosecutor cannot bring in the information in unless a proceeding for perjury/false statement.
4 Capacities of a Witness
1) Perception (602)
2) Memory (602)
3) Narration (611)
4) Understanding the difference between truth and untruth (603)
Generally not allowed except:
2) With an adverse (hostile) witness
3) Preliminary Pedigree Questions
Judges Permitted to ask Questions and Call Witnesses
Anybody can impeach a witness, you can even impeach your own witness
Methods of Impeachment
Attack Narrative Capacity (highlight ambiguities)
a) Show Prejudice, Bias, Interest or Corruption
b) Witness's testimony is improbable
c) Compare testimony to her prior inconsistent statements
d) Contradict with established facts
e) Show the witness has an untruthful character
2 Types of Prior-Inconsistent Statements
-Matter of Consequence
-Nothing to do with a matter of consequence
ex. When I went to the scene of the murder I had red socks (versus blue socks)
Must show Inconsistence in 1 of 2 Ways:
1) Directly-See if the witness will admit inconsistency or
2) Prove Inconsistency with Extrinsic Evidence
Must Show the other side the prior statement (can be in the moment, but must make opposing council aware)
Must Confront the witness with the statement, and allow the witness to explain or deny it.
--If still denying, you may bring in the extrinsic evidence.
You may not use extrinsic evidence to prove the collateral matter.
--Inconsistent Statements pertain to credibility but not to persuade the jury to accept the prior inconsistent statement.
*613 is not an exception to the hearsay rule
Prior Consistent Statements
*Courts may allow evidence of consistent statements if OP can demonstrate motive to lie (very rare in practice).
*May not be used generally to bolster credibility
Rule 404 (a) (1)
Evidence of a person's character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character trait.
Character Evidence may NOT be used to prove propensity.
Exception Rule 608 (b)(1)
Rule 608 (B) (1)
Court may allow questions pertaining to a witness's truthfulness or untruthfulness in order to assess the witness's credibility.
***On Cross Exam Only
***TRUTHFULNESS OR UNTRUTHFULNESS (NOT EVERY NEGATIVE CHARACTER TRAIT)
***May NEVER be proven by extrinsic evidence
Using a Criminal Conviction to Impeach a Witness:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) 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.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies 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:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) 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.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
609 (a) (1) (a)
*Applies to felony convictions less than 10 years old
*Any witness other than the Defendant in a Criminal Case
*Felony Convictions must be admitted subject to Rule 403 (tilts towards admission)
609 (a) (1) (b)
*Applies to felony convictions less than 10 years old
* Witness on the stand is a defendant in a criminal case
* Altered 403 Test:
Admitted if the probative value OUTWEIGHS the prejudicial effect to defendant (a little more protection to defendants)
609 (a) (2)
Crimes Involving Lying:
*Applies to any Crime, felony or misdemeanor, less than 10 years old.
*Elements require proving/admitting dishonest fact or false statement
*MUST be admitted
Ex. Perjury, Embezzlement, Fraud, Counterfeiting
*Applies to convictions more than 10 years since conviction or since final release from custody (parole time doesn't count because it isn't custody)
*Probative Value substantially outweighs the prejudicial effect
*Proponent must give advanced notice to opposing side