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Flashcards in Federal Rules Of Evidence Deck (95)
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Two ways FREs can be amended

1) act of Congress
2) promulgation by the Supreme Court through its statutory rule-making authority


When do FREs apply

All federal courts before all federal judges and all types of cases


When don’t the FREs apply

- Preliminary questions of fact (admissibility)
- grand jury
- miscellaneous proceedings

BUT privilege rules always apply


Preliminary hearings outside the jury. When?

1) confessions
2) justice requires
3) defendant witness asks


Is irrelevant evidence admissible?



Is relevant evidence admissible?

Presumption that relevant evidence is admissible unless...


What does relevant mean?

Material: fact of consequence in determining the action (pleadings)

Pro active Value: any tendency to make a fact more or less probable than without the evidence


If something is privatize and material is it admissible?

Maybe. Presumptively unless...


How does a judge determine something is material?

Look to the law and the pleadings.


How does a judge determine something is probative?

Judge’s own experience. Your duty to inform that experience


FRE 403 Test

Although relevant, evidence may be excluded if it’s probative value is substantially outweighed by:
- the danger of unfair prejudice
- confusion of the issues
- misleading the jury
- undue delay
- waste of time
- cumulative evidence


If 403 is considered, what else must be?

A limiting instruction. Court should consider the probably effectiveness.


What is the rule of completeness?

When a writing/recorded statement is introduced an adverse party may introduce at that time any other part or other writing or recorded statement which ought in fairness to be considered contemporaneously with it.


What showing must be made to satisfy the authentication requirement?

Could a juror reasonably conclude evidence is authentic

Excluded only if no rational juror could find the evidence is authentic


What is the standard by which the showing must be made for authentication?

Preponderance even in criminal cases


Authentication : if evidence is unique, readily identifiable, resistant to change

authenticate by calling witness who saw it before and have witness testify that she recognizes it


Authentication: if evidence is not readily identifiable or if it is susceptible to alteration

Chain of custody


Ways to authenticate written documents

- eye witness to creation of document
- non-expert familiar with handwriting but can’t be familiar because of litigation
- expert witness
- comparison by trier of fact
-distinctive characteristics (content, language, appearance, reply doctrine)


Authenticate photos

- personal knowledge of the scene
- silent witness: based on reliability of process
- content and circumstances


Authentication audio recordings

- witness with knowledge plus voice identification
- silent witness plus voice identification
- jury identification


Is character evidence allowed?

No character evidence by direct or indirect means if offered to prove conformity or propensity.


Exceptions to no character evidence

- d’s pertinent trait offered by d, or offered by p to rebut in criminal cases
-v’s pertinent trait offered by d, or p to rebut same trait in criminal cases
- witnessed pertinent trait for civil or criminal cases
- admissible for other purposes: motive, opportunity, intent, preparation, plan, knowledge, identity, lack of mistake in criminal or civil cases (moippkial)
- when character is an element of a charge, claim or defense (ex. Defamation) in criminal or civil and specific acts are allowed


Rape shield


1) evidence offered to prove the victim’s sexual predisposition and

2) evidence that the victim engaged in other sexual behavior

Applies in all criminal or civil proceedings involving alleged sexual misconduct

Sex crime need not be charged


Subsequent remedial measures

Forbidden for proof of negligence, culpable conduct, defect, need for warning

Exceptions: ownership, control, feasibility (if contested), impeachment


Settlement offers

Prohibited uses: when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction

No impeachment

In civil and criminal cases

Exceptions: witness’s bias or prejudice, negating undue contention of delay, proving obstruction in criminal case


Medical expenses: furnishing, offering, promising to pay medical or similar expenses

Prohibited use: proof of liability for the injury

Exceptions: none listed


Liability insurance (proof or lack of)

Prohibited use: proof of negligence, or wrongful conduct

Exceptions: agency, ownership, control, or witness’s bias or prejudice


Withdrawn plea, nolo contenders, statement during plea hearings/ negotiations

Forbidden purpose: to establish guilt or impeach credibility

Exceptions: to counter plea statement offered by d, perjury or false statement proceedings


Witness Personal Knowledge Requirement

Witnesses must observe the matter about which they are testifying through 5 senses.


Personal knowledge doesn’t apply when?

1) 703 expert testimony

2) some hearsay rules