FRE

Question 1

FRE 104(a): Preliminary Questions In General

Answer 1

(a) Court must decide any preliminary question about WIT qualification/EV Admissibility.
Not bound by evidence rules.

POTE

Question 2

FRE 104(b): Conditional Relevance

Answer 2

(b) If relevance depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the fact does exist.
May admit on condition that proof will be introduced later.

POTE

Question 3

FRE 401: Test For Relevant Evidence

Answer 3

Evidence is relevant if:
CEC: any tendency in reason to make a significant fact more or less likely

Question 4

CEC 780: Ways of Attacking/Defending Witness Credibility (includes DEF)
(DCCOHBCIEAA)

Answer 4

CEC: any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (DCCOHBCIEAA)
(a) demeanor (b) character of testimony. (c) capacity (d) opportunity to perceive any matter about which he testifies. (e) honesty/veracity (f) bias/interest/motive. (g) PCS (h) PIS (i) existence of fact testified to (j) Attitude. (k) Admission of untruthfulness.

Question 5

FRE 402: General Admissibility of Relevant Evidence

Answer 5

Relevant evidence is admissible unless any of the following provides otherwise:
Some Law

Irrelevant evidence is not admissible.

Question 6

FRE 403: Excluding Relevant Evidence for (PCMDWC)

Answer 6

Exclude relevant evidence if PV value substantially outweighed by risk of:
(1) prejudice,
(2) confusing,
(3) misleading,
(4) delay,
(5) wasting time,
(6) cumulative.

Question 7

FRE 404: Character Evidence; Other Crimes, Wrongs, or Acts

Answer 7

(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Question 8

FRE 404(a): Character Evidence

Answer 8

(1) Character generally inadmissible

(2) CRIM DEF/VIC: DEF can open door but Pros can then rebut;
- (subject to Rape Shield(412) if about VIC)
- Can bring in for VIC in self defense

(3) WIT character can be brought in under 607-609

Question 9

FRE 404(a)(3): Character Evidence, Exceptions to attack/rehabilitate WIT (607-609)

Answer 9

(3) Exceptions for a Witness. WIT character may be admitted under 607-609
607: Any Party Can Impeach
608(a): Reputation/Opinion can rehab WIT, but only if attacked first
608(b): EXCEPT under 609(crim conviction WIT impeachment), extrinsic evidence only on cross for truthfulness of WIT/other WIT.
609(a): CRIM Convictions
(1)For attacking WIT credibility,
(A) Felony must be admitted under 403 (substantial outweigh), if WIT!=DEF; and
(B) CRIM: Must be admitted when WIT=DEF, if the probative value of the evidence outweighs prejudicial effect; and
(2) Any crime must be admitted if dishonest.
(b) No Evidence After 10 Years from conviction or release.
admissible only if: (1) PV substantially outweighs its PE; and (2) Notice.
(c) Crime Not admissible if: (1) Pardon with no subsequent felony; or (2) pardon because innocent.
(d) Juvenile Adjudications. Juvie admissible only if: (1) CRIM; (2) WIT!=DEF; (3) adult conviction admissible; and (4) necessary to fairly determine guilt or innocence.
(e) Appeals don’t matter

Governed by 405

Question 10

FRE 404(b): Other Crimes, Wrongs, or Acts (MOIPPKIMA)

Answer 10

(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Character to show the person acted in accordance therewith.
(2) Permitted Uses. Another purpose, such as proving motive/opportunity/intent/preparation/plan/knowledge/identity/absence of mistake/lack of accident.

Governed by 405

Question 11

FRE 405: Methods of Proving Character

Answer 11

(a) If character/trait is admissible, can prove with reputation/opinion. On cross of character WIT, can use specific instances.
(b) If charactercha/racter trait essential element, may use specific instances on direct.

Governs 404

Question 12

FRE 406: Habit; Routine Practice

Answer 12

Habit or Organization Routine may be admitted to show they acted in accordance it.

Question 13

FRE 407: Subsequent Remedial Measures (NCDW)
(OCF)

Answer 13

Subsequent remedial measures inadmissible for
negligence;

culpable conduct;

a defect in a product or its design; or

a 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.
CA: Can bring in for strict liability cases (product defect)

Question 14

FRE 408: Compromise Offers and Negotiations
(BUO)

Answer 14

(a) Prohibited Uses. Offer/Conduct/Statement not admissible to prove validity/amount of a disputed claim or to impeach with PIS
(b) Exceptions. WIT bias/prejudice, disproving undue delay, or proving obstruction of criminal investigation/prosecution.

Question 15

FRE 409: Offers to Pay Medical and Similar Expenses

Answer 15

Offer to pay inadmissible for liability, but admission of fault is
CA: Can’t admit admission of fault

Question 16

FRE 410: Pleas, Discussions, and Related Statements

Answer 16

NOTE FROM DEC 8 REVIEW: PIS in plea hearing can’t be used at trial, but can be subsequently prosecuted for perjury in FEDERAL system, but PIS in plea hearings can be heard in California.

Question 17

FRE 411: Liability Insurance
(NW)
(BPAOC)

Answer 17

Insurance not admissible for:
Negligently/acted wrongfully.

May admit for another purpose such as: bias/prejudice/agency/ownership/control

Question 18

FRE 412: Sex-offense Cases: The Victim Different in CA [SCC]

Answer 18

(a) Not admissible for other sexual behavior or predisposition
(b) Except
Criminal May admit (subject to 352/403)
1. Source
2. Consent
3. Exclusion would violate Due Process/Confrontation

Civil: Probative value substantially outweighs danger of harming VIC and unfair prejudice to any party. Reputation can be admitted if Victim placed it in controversy.

(c) Procedure: (Motion, Notice, Hearing)

Question 19

FRE 413: Similar Crimes in Sexual-Assault Cases [AA]

Answer 19

(a) Permitted Uses. CRIM may admit 1. Any other Sexual Assault. 2. For any relevant matter
(b) Disclosure

Question 20

FRE 414: Similar Crimes in Child Molestation Cases [AA]

Answer 20

(a) Permitted Uses. CRIM may admit 1. Any other Child Molestation. 2. For any relevant matter
(b) Disclosure

Question 21

FRE 415: Similar Acts in CIVIL Cases Involving Sexual Assault or Child Molestation [AA]

Answer 21

(a) Permitted Uses. CIVIL 1. Any other sexual assault/child molestation. 2. Any relevant matter
(b) Disclosure

Question 22

CEC 1109: Elder Abuse [DEC;A] (DISCLOSE)

Answer 22

1. DV
2. Elder Abuse and
3. Child Abuse

admissible.

Disclosure needed.

Question 23

FRE 601: Competency to Testify in General

Answer 23

Every person is competent unless rules show otherwise. In state law civil claims, state competency governs.

Question 24

FRE 602: Need for Personal Knowledge

Answer 24

WIT may testify only if: evidence sufficient to show personal knowledge (include’s WIT’s own testimony, does not apply to experts)

Question 25

FRE 606: Juror’s Competency as a Witness

Answer 25

(a) At the Trial. JURORS CANT BE WITNESSES (b) Inquiry of Validity of a Verdict or Indictment. (1) Jury deliberations prohibited unless (A) Extraneous prejudice (B) outside influence (C) Mistake in entering the verdict

Question 26

FRE 610: Religious Beliefs or Opinions

Answer 26

WIT religion not admissible for credibility

Question 27

FRE 613: Witness’s Prior Statement Especially 613(b): ExEv if (E/D)

Answer 27

(a) Can examine prior WIT statement without showing but must show opposition on request *(b) ExEv of WIT PIS. admissible only if (1) Opportunity to explain/deny* AND opposition gets to examine WIT, (3) OR if justice so requires. Does not apply to an opposing party’s statement under Rule 801(d)(2).

Question 28

FRE 701: Opinion Testimony by Lay Witnesses [RHN]

Answer 28

If Lay WIT, opinion testimony limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to understanding testimony or determining a fact in issue; and (c) not specialized knowledge.

Question 29

FRE 702: Testimony By Expert Witness: Distilled from attack outline [BSCM]

Answer 29

Admissible if 1. beyond common experience -such that the opinion would help with a relevant fact or issue 2. special knowledge/training/experience 3. reasonably certain; and 4. methodology reliable (POTE by judge)-

Question 30

FRE 703: Bases of an Expert’s Opinion Testimony

Answer 30

May base opinion on: 1. Personally aware of/observed facts/data. 2. Field knowledge okay if admissible, 3. Or if PV substantially outweighs PE

Question 31

FRE 704: Opinion on an Ultimate Issue

Answer 31

(a) Not Automatically Objectionable. (b) Exception. CRIM expert can’t state Mens Rea or element opinions.

Question 32

FRE 705: Disclosing the Facts or Data Underlying an Expert’s Opinion

Answer 32

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Question 33

FRE 801(a): Definitions; Statement

Answer 33

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Question 34

FRE 801(b): Definitions; Declarant

Answer 34

(b) Declarant. “Declarant” means the person who made the statement.

Question 35

FRE 801(c): Definitions; Hearsay

Answer 35

(c) Hearsay. “Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Question 36

FRE 801(d) and 803: Hearsay Exceptions (DEC available) Listed in Syllabus [POPEEDRPA]

Answer 36

(d) Statements That Are HEARSAY EXCEPTIONS FOR THE PURPOSE OF THIS CLASS. A 801(d)(1) A Declarant-Witness’s Prior Statement. 801(d)(2) An Opposing Party’s Statement. 803(1) Present sense impression 803(2) Excited Utterance 803(3) Then Existing Mental/Emotional/Physical Condition 803(4) Made for Diagnosis/Treatment 803(5) Recorded Recollection 803(8) Public Records 803(10) Absence of Public Record

Question 37

FRE 804(b) Hearsay exceptions (DEC unavailable) [FDIW]

Answer 37

DECLARANT UNAVAILABLE: 804(b)(1) Former Testimony 804(b)(2) Dying Statement 804(b)(3) Statement Against Interest 804(b)(6) Statement offered against party that wrongfully caused DEC’s unavailability intentionally

Question 38

Confrontation Clause Flowchart Rules (CPNWD)

Answer 38

If Hearsay (801(c)) that fits within an exception, offered against DEF in CRIM case; inadmissible under Confrontation Clause unless DEC appears for cross-examination at trial DEC unavailable but DEF had past chance to cross examine Non-testimonial statement DEC unavailable because DEF wrongful act Dying Declaration (maybe) Then it just depends on FRE 403 Probativeness/Prejudice

Question 39

FRE 801(d)(1): Not Hearsay (TREAT AS EXCEPTION); A Declarant-Witness’s Prior Statement [IP;CRR;I]

Answer 39

(1) DECWIT’s Prior Statement. IF The declarant 1. testifies and 2. crossex about a prior statement, and the statement: (A) PIS + Under penalty of perjury (B) PCS + used to (i) Rebut fabrication or improper influence/motive in so testifying; or (ii) rehabilitate DEC when attacked on another ground; or (C) identifies a person as someone the declarant perceived earlier.

Question 40

FRE 801(d)(2): Not Hearsay (TREAT AS EXCEPTION), an Opposing Party’s Statement admissible if Made by [IAAAC]

Answer 40

(2) An Opposing Party’s Statement (PIS). Statement offered against an opposing party and made by: [IAAAC] (A) individual/representative; (B) manifested adoption/belief; (C) person authorized; (D) agent/employee; or (E) coconspirator.

Question 41

FRE 802: The Rule Against Hearsay

Answer 41

Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court.

Question 42

FRE 803(1): Present Sense Impression [DW]

Answer 42

(1) Present Sense Impression. A statement 1. describing or explaining an event or condition, 2. made while or immediately after the declarant perceived it. CA mixes 803(1) and (2) excited utterance test (primary difference is “under the stress” instead of “while or immediately after”)

Question 43

FRE 803(2): Excited Utterance [SS]

Answer 43

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. This is also the CALIFORNIA test for (1) (Act/condition/event perceived 2. Made under stress)

Question 44

FRE 803(3): Then-Existing Condition (Includes motive/intent/plan)

Answer 44

(3) Then-Existing Mental, Emotional, or Physical Condition. DEC’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),

Question 45

FRE 803(4): Statement for Diagnosis or Treatment [DD]

Answer 45

(4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Question 46

FRE 803(5): Recorded Recollection [KFA]

Answer 46

(5) Recorded Recollection. A record that: 1. Knew (past tense) 2. Fresh (was) 3. Accurate to WIT’s knowledge

Question 47

FRE 803(8): Public Records [S(AM/{FL})]

Answer 47

(8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

Question 48

FRE 803(10): Absence of a Public Record [P(E/(ON)]

Answer 48

(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if: (A) the testimony or certification is admitted to prove that (i) the record or statement does not exist; or (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and (B) CRIM, Prosecutor provides NOTICE and DEF does not object

Question 49

FRE 804(a): Hearsay Exceptions; Declarant Unavailable If [PRFD; AF,A/(A/T)]

Answer 49

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) Priveliged; (2) Refuses; (3) Forgot; (4) death/infirmity/physical illness/mental illness; or (5) DEC absent and the statement’s Proponent failed reasonably to procure: (A) Attendance, if under 804(b)(1) Former testimony, or 804(b)(6) Wrongfully caused unavailability; or (B) Attendance or testimony, under Rule 804(b)(2), (3), or (4). (dying dec, against interest, family history) (a) Does not apply if the Proponent wrongfully caused the DEC’s unavailability.

Question 50

FRE 804(b)(1): DEC unavailable; The Exceptions; Former Testimony [A(O/M)]

Answer 50

(1) Former Testimony. Testimony that: (A) given as WIT at ANY TRIAL; and (B) Adversary had Opportunity/Motive to cross-examine

Question 51

FRE 804(b)(2): DEC unavailable; The Exceptions; Deathbed Statements [BC(CA:A)]

Answer 51

Dying Declaration: Homicide/Civil Declarant 1. Believed his death was imminent, 2. Statement concerned the cause of his “impending doom” CA:3. DEC actually died

Question 52

FRE 804(b)(3): DEC unavailable; The Exceptions; Statement Against Interest [C(PP{CA:S}CL)+C]

Answer 52

(3) Statement Against Interest. (A) Reasonable person would have made only if belief in truth, because so contrary to DEC’s 1. Proprietary 2. pecuniary or 3. SOCIAL(CA) interest 3. DEC’s legal claim(s) 4. Liability for DEC (B) CRIM: corroborating circumstances

Question 53

FRE 804(b)(6): DEC unavailable; the exceptions; wrongful cause of unavailability

Answer 53

(6) Offered Against a Party, Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

Question 54

FRE 805: Hearsay Within Hearsay

Answer 54

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

Question 55

FRE 806: Attacking/Supporting DEC

Answer 55

If Hearsay has been admitted, DEC can be attacked or supported exactly like a witness in 608/609

Question 56

FRE 901(a): Authenticating or Identifying Evidence

Answer 56

(a) To Authenticate: evidence sufficient to support a finding that the item is what the proponent claims it is. (POTE, up to jury)

Question 57

FRE 901(b) Examples of Authenticating Evidence

Answer 57

(b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. (2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact. (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. (5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker. (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to: (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone. (7) Evidence About Public Records. Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept. (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it: (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered. (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result. (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.

Question 58

FRE 902: Evidence that is Self-Authenticating

Answer 58

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: (Generally speaking any sort of signed documents that are 1. Public, Certified 4. Newspapers/Trade/Commercial 5. Electronic).

Question 59

FRE 1001: Definitions That Apply to This Article ORIGINAL and DUPLICATE

Answer 59

Original = Original Duplicate = Reproduction via accurate technique

Question 60

FRE 1002: Best Evidence Rule

Answer 60

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise. ACN: WIT of event can testify that document accurately depicts it Effectively irrelevant under FRE 1003 and 1004 (CA: (CA: Written Notes of Original OK)

Question 61

FRE 1003: Duplicate Override of BER

Answer 61

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Question 62

FRE 1004: Exceptions to BER

Answer 62

Original is not required and other evidence about contents admissible if: (a) all originals gone; (b) originals cannot be obtained; (c) Adversarial party had original/notice, and failed to produce; or (d) tnot closely related to a controlling issue.

Question 63

Procedural Rules

Answer 63

613(b) is really what is relevant (extrinsic evidence of witness’s prior statement) 405(a) reputation/opinion on direct, specific instances on cross 405(b) specific instances if character trait is “essential element” (need to review exactly what that means, I know it is limited to very few situations) 608, links to 404(a)(3), (witness character)

Question 64

Documents give me a R.A.S.H.

Answer 64

Relevance (is the document relevant?) Authentication Secondary Evidence (duplicates, oral testimony about content of writing) Hearsay (is it hearsay or does it fit hearsay exception

Question 65

Crawford summary slide - Gilly says solves 90% of CC questions

Answer 65

CRAWFORD 1. Declarant available and subject to cross-ex? - No crawford issue 2. DEC unavailable but prior testimony subject to cross? - No Crawford issue 3. DEC unavailable, no cross? a. Depends on i. Testimonial (Crawford Issue) - Generally, means police and other governmental agents ii. Non testimonial - Hearsay law governs - Random statement from a random person