Evidence Rules

General Guidelines
103(a) Error must effect a substantial right of the party
- Would change the outcome of the case

Objection must be TIMELY and SPECIFIC

103(d)
Judge can give limiting instruction

Relevance

401 – definition of Evidence is relevant if:

relevance a. Has any tendency to make a fact more or less probable than it
would be without the evidence
b. Is of consequence in determining the action
a. Goes to elements of cause of action? Show motive?
b. Goes to the weight of the evidence (CREDIBILITY)
-
104(a) – Procedures for Judge initially decides issues of relevance, and Public Policy v. Probative
Deciding the Value:
Admissibility of Evidence - the existence of a dispute or compromise negotiations sufficient to
invoke Rule 408;
- whether a defendant offered to pay “medical, hospital, or similar
expenses” excluded under Rule 409;
- whether plea discussions occurred that would shield statements
under Rule 410;
- and whether a questioner has a good faith belief for questions
posed on cross-examination under Rule 608 or Rule 405.
FRE 104(b) – Relevance
that Depends on Fact that will be relevant based on another fact that hasn’t been
Existence of a Fact presented yet
(Conditional Relevance) Burden of Proof
- Proof must be introduced sufficient to support a finding (very low
standard)
o If jury could resolve factual dispute either way, judge
should let jury decide

403 – Exclusion of
evidence / BACK-POCKET
RULE
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/duplicative evidence.

Probative Value v. Public Policy

407 – SUBSEQUENT When measures are taken that would have made an earlier injury or
REMEDIAL MEASURES - harm less likely to occur, not admissible to prove:
What party CAN’T use - negligence;
- culpable conduct;
- a defect in a product or its design; or
- a need for a warning or instruction.

407 – Subsequent
remedial measure is
admissible to prove: - DISPUTED ownership / control / feasibility (only if DISPUTED)
- Impeachment

408(a) – Compromise Must occur

Offers and Negotiations - During compromise negotiations
NOT ADMISSIBLE FOR - After a claim had arise
- In connection with a claim that was disputed
To:
- Prove validity or amount of disputed claim
- Disprove that validity or amount
- Impeach a witness through inconsistency
408(b) Exceptions – Admissible to:
Admissible if - Prove bias
- Impeachment of witness showing bias
o CAN’T USE TO SHOW INCONSISTENCY
 - Undue delay
- Effort to obstruct criminal prosecution
409 – Offers to Pay
Medical Expenses not Paying, promising to pay, or offering to pay hospital/medical/similar
admissible expenses from injury is not admissible
- Only excludes med statements – anything else goes

410(a) – PROHIBITED In CIVIL and CRIMINAL evidence of these are not admissible:
USES of Pleas, Plea - (1) a guilty plea that was later withdrawn;
Discussions, and Related - (2) a nolo contendere plea;
Statements - (3) plea colloquy
- (4) a statement made during plea discussions with an attorney for
the prosecuting authority if the discussions did not result in a
guilty plea or they resulted in a later-withdrawn guilty plea.

410(a) – What two-tiered approach:

determines plea (a) the defendant displayed “an actual subjective expectation
discussion? to negotiate a plea” and
(b) that expectation was “reasonable given the totality of the
objective circumstances.”

410(b) – EXCEPTIONS May admit plea colloquy or statement made during plea discussions if:
- If statement previously introduced ought to be considered in
entirety
o Rule 106
- in a criminal proceeding for perjury or false statement, if the defendant
made the statement
o under oath,
o on the record, and
o with counsel present
411 – Liability Insurance

Can’t use liability insurance to prove whether the person acted

negligently or wrongfully / can’t use to PROVE FAULT

411 - Exceptions

Can use to
- prove a witness’s bias/prejudice
- prove agency, ownership, or control
- ANY other proof other than to prove person was at fault
 Requirements / Restrictions on Witnesses

601 - Competency General presumption of competency

State law governs if competency disputed

602 – Need for Personal Evidence must support that witness has personal knowledge of the
Knowledge matter
- Witness’s own testimony suffices
- What they have seen, heard or otherwise sensed THEMSELVES
603 - Oath
Witness must give oath before testifying. Form of oath must show
that witness understands duty to tell the truth

604 - Interpreter
Interpreter must be qualified and give oath

605 – Judge’s
Competency as Witness
Judge can’t testify as witness at trial

606(a) – Juror’s
Competency as a Generally, juror may not testify as a witness in trial he is sitting in.
Witness - What happens during deliberation stays in the deliberation
room (what happens in Vegas stays in Vegas)

606(b) – Juror can testify Testify if testimony is about

if - (A) extraneous prejudicial information was improperly brought
to the jury’s attention;
o Juror brought newspaper in saying that defendant
pleaded he was guilty earlier
- (B) an outside influence was improperly brought to bear on any
juror; or
o Threats / bribes to juror
- (C) a mistake was made in entering the verdict on the verdict
form.
o filling out guilty rather than not guilty
o putting wrong damage amount down

Procedural Rules for Examining Witness

611(a) – Control by the
Court Court can control examination of witness to ensure
- determination of the truth
- avoiding wasting time
- protect witness from harassment/undue embarrassment

611(b) – Scope of Cross Cross exam limited to issues covered during direct examination
 May ask leading questions
611(c) – leading Not allowed on direct (unless necessary)
questions
Allowed:
- on cross
- if hostile witness
611(c) – When leading - To establish pedigree info
questions are allowed on o includes uncontested points like educational background
direct (when necessary) and occupation.
- To direct a witness's attention to A relevant Place and Time
o Now directing your attention to Monday, December 3rd,
did you attend the board meeting at the Chicago office
on that day?
- To help a witness who is hesitant, confused, or has trouble
recalling
o Judges allow lawyers to lead witnesses who have
difficulty testifying because of youth, nervousness,
illness, memory problems, or other characteristics.
- Hostile witness
o A “hostile witness” is any witness who is evading
questions or otherwise being uncooperative to such an
extent that it is interfering with the eliciting of testimony.
612. Writing Used to ANY document can be used to refresh a witness’s memory IF
Refresh a Witness’s - witness doesn’t remember the answer to question being asked
Memory and
- states that document will help remind her

Adverse party allowed to inspect and cross examine.

Document is not admissible / not read aloud

612 – Method for (A) Establish that the witness does not recall answer to a question
Introducing Doc to
Refresh (B) Describe writing she wishes to use to refresh witness's recollection
and ask if that writing would refresh the witness's recollection

(C) Show the writing to the witness. The witness will examine the
writing and put it aside (usually giving it back to the attorney).

(D) Ask whether the writing has refreshed the witness’s recollection or
helped her to remember. The witness should answer yes, and then
she can answer the original question from her refreshed recollection.

(E) Either before or during this process, the attorney must be sure to
give the opposing counsel a copy of the writing
614. Court’s Calling or
Examining Witness
(a) Court can call own witness subject to cross-examination by both
(b) Court can examine any witness called
(c) Party’s can object to Court’s examination

615 Excluding Witness

Party or court can exclude witness on motion

615 Witnesses who - Party who is natural person

Cannot be excluded o Party in civil or criminal dispute
- Non-natural person - government or corporation
o A designee
- a person whose presence a party shows to be essential to
presenting the party’s claim or defense; or
o expert witnesses
o investigators in criminal cases
- Person authorized by statute to be present
o Parent/guardian of sexually abused child

Methods of Impeachment – Attacking Credibility

Rule 607. Any Party May
Any party, including the party that called the witness, may attack the
Impeach a Witness
witness’s credibility

LIMIT: Cannot call the witness just to impeach

Rule 608(a) Witness’s Reputation or Opinion testimony about witness’s character for
Character for (un)truthfulness is admissible
Untruthfulness
Evidence of truthful character only after witness’s credibility has
already been attacked
Rule 608(b)(1) Extrinsic CANNOT ask witness questions about SPECIFIC INSTANCES on
Evidence of Specific DIRECT
Instances of Conduct to
Prove Character of On CROSS, court may allow inquiry into SPECIFIC INSTANCES if
Untruthfulness of THE - probative of truthful/untruthful character AND
WITNESS - have good faith belief of instance

Rule 608(b)(2) Specific On CROSS, parties can ask about specific instances of another fact
Instances of Conduct to witness’s behavior
Prove Character of
Untruthfulness of Other NO EXTRINSIC EVIDENCE
Witness - Must accept character witness’s denial

Rule 609(a)(1)(A) General

Admissibility of Prior Felony A felony CONVICTION with available penalty of (1) death or (2)
convictions in Civil and Crim upwards of one year IS ADMISSIBLE subject to 403 balancing test
Cases for WITNESS
OTHER THAN
DEFENDANT

Rule 609(a)(1)(B) General Prior felony MUST be admitted AGAINST THE ACCUSED if:
Admissibility of Prior Felony (1) CONVICTED of a crime
convictions in CRIMINAL o Can’t just be arrested for something
Cases against (2) Crime has to be punishable by death or imprisonment 1+ yr
(3) Probative value of evidence must outweigh its prejudicial
effect
Rule 609(a)(2) Crimes
involving Dishonest Acts
or False Statements – ANY conviction for a crime of dishonesty or false statement can
Any Witness be used to impeach ANY witness’s character for (un)truthfulness

Rule 609(b) Old

Conviction Exception – If conviction of crime is 10 years old, admissible only if:
Ten Year Requirement - Probative value SUBSTANTIALLY OUTWEIGHS prejudicial
value
- Gives adverse party notice of intent to use

Rule 609(c) Pardon

Exception Evidence of conviction is not admissible if
- Pardon/annulment/rehabilitation certificate showing
rehabilitation and no subsequent felonies AND not been
convicted of another felony

Rule 609(d) Juvenile Onlyadmissible if:

Convictions - offered in a criminal case
- To impeach a witness who is NOT the defendant
- An adult’s conviction for that offense would be admissible to
attack adult’s credibility
- Must be “necessary to fairly determine guilt”

Rule 609(e) Appeal

Pending If conviction satisfies rest of rule, then appeal is admissible

610 Religious Beliefs /

Opinions
Not admissible to attack/support witness’s opinion

Rule 613(a) Witness’s Prior

Inconsistent Statement – Can surprise the witness with prior inconsistent statement, but must
Procedure for Introduction disclose statement if opposing side requests

Rule 613(b) – Extrinsic Extrinsic evidence is admissible ONLY IF:

Evidence for Prior - Witness given opportunity to explain/deny statement
Inconsistent Statement - If justice so requires

Prior Statement must:

- Directly contradict prior statement;
- Be materially different from testimony;
o Has to be non-collateral
- Or omit something that would naturally have been mentioned
o Officer testifying and in report did not include possession of marijuana

Rule 613(b) – WTF is

Extrinsic Evidence Any evidence other than testimony from witness currently on stand

Non-collateral (proves a fact in consequence) evidence presentable

Character Evidence
Rule 608 A Witness’s
Can attack a witness’s credibility with testimony about the witness’s
Character for Truthfulness
reputation for having a character for untruthfulness, or opinion
or Untruthfulness
about that character

Rule 609 Impeachment by Can attack a witness’s character for truthfulness if:
Evidence of a Crim (1) Was a crime that was punishable by death/imprisonment for more
Conviction than one year
(2) Probative value of evidence outweighs prejudicial effect
(3) Or if establishing elements of crime require proving dishonest act
or false statement

Rule 404(a)(1) General Bar Evidence of ANY person’s character may NOT be introduced to support
on Propensity Evidence an inference that the person acted on a specific occasion in conformity
with that character

Rule 404(a)(2) Exceptions to Permitted evidence in crim case includes evidence of:
Propensity Rule for - Defendant can offer evidence of Defendant’s pertinent trait
Defendant and Victim in (trait related to charge against D)
- Victim’s pertinent trait
CRIMINAL Case
o Prosecutor can rebut w/ evidence
o Offer evidence of D’s same conduct
- Victim’s trait of peace TO REBUT allegation that victim was
first aggressor in homicide case
404(b)(2) Evidence of Character evidence/ SPECIFIC EVIDENCE may be admissible to
Crimes, Wrongs, or Other prove:
Acts (Past Bad Acts) - Motive
- Opportunity
- Intent
- Preparation
- Plan
- Knowledge
- Identity
- Absence of mistake

Fed – just have to present SUFFICIENT evidence

Fla. – Clear and Convincing evidence
Judge can bar with 403 – what D will have to argue
404(b)(3) – Notice in Crim If Prosecutor intends to use past wrongs for another purpose he must
Case notify defendant before trial in writing
Rule 405(a) Methods of
Admissible character evidence may be proved by testimony about
Proving Character - By reputation or in form of opinion
Reputation or Opinion - On cross-exam, can go into specific instances of person’s conduct
o Cannot introduce extrinsic evidence on cross

Rule 405(b) Methods of When a person’s character or character trait is an essential element of
a charge claim, can use relevant specific instances of the person’s
Proving Character – By
conduct
Specific Instances of
Conduct Cases where character is essential element:
- Defamation
- Child custody
- Entrapment
- Negligent entrustment

Rule 406 Evidence of Habit

or Routine Practice Evidence of habit/routine practice may be admitted to show they acted in
accordance with that habit on specific instance

SEXUAL OFFENSE CRIMES – RAPE SHIELD

412(a) – Evidence of Victim’s

Sexual Evidence of VICTIM’S OTHER sexual behavior / sexual predisposition is
Behavior/Predisposition NOT ADMISSIBLE

412(b) – EXCEPTIONS for - Evidence that someone else was source of physical evidence
CRIM CASES – admissible (semen / bruising)
if: - Evidence of specific instances bw victim and accused TO PROVE
CONSENT
- Exclusion would violate D’s constitutional rights

412(b) – EXCEPTIONS for

CIVIL CASES – admissible - Probative value must substantially outweigh danger of harm to
if: victim/unfair prejudice

412(c) - Procedure
File a motion 14 days b4 trial describing evidence and purpose for
evidence
413 – similar crimes in
sexual assault crimes If charged with sexual assault, may admit evidence of other sexual
assaults. Must be RELEVANT

414 – similar crimes in child-

molestation cases If previously accused of child molestation, then previous child
molestation is admissible if relevant

415 – Similar acts in civil

cases for sex assault and Any other sexual assault or child molestation can be admitted if that is
child mol what you are on trial for
Hearsay
801 – Definitions
- (a) Statement – oral, written, non-verbal assertion
- (b) Declarant – person who made statement
- (c) Hearsay – out of court statement offered to prove truth of
matter asserted

801(c) – TRUTH OF THE

MATTER ASSERTED
- Is the statement only relevant if true? = hearsay

EXCLUSIONS- D must
1. Testify at trial
2. Be subject to cross
examination
801(d)(1)(A) – Prior In order to not be hearsay, statement must satisfy three conditions:
Inconsistent Statements (1) It is inconsistent with the witness’s current testimony;
(2) Prior statement was made under penalty of perjury or under oath;
(3) Occurred at a trial, hearing, deposition, or other proceeding;

801(d)(1)(B) – Prior To introduce prior consistent statement, a party must show:

Consistent Statement (1) that the witness’s credibility has been attacked, and
a. Offered to rebut an express or implied charge of recent
fabrication or improper influence/motive
(2) that the prior consistent statement has probative value in
rehabilitating credibility
Statements must be made before alleged fabrication or
improper influence/motive
801(d)(1)(C) - Identification
If identification is at issue, then witness’s prior statement of
identification is not hearsay

Statements by Party Opponent (801(d)(2))

Don’t require witness to be subject to cross

801(d)(2)(A)
Any statement made by an opposing party offered against an
opposing party is admissible
801(d)(2)(B) – Statement A party will be considered to adopt a statement if:
Adopted by Party 1) Heard and understood statement
2) Was able to respond if he wanted
3) Circumstances naturally called for a response
4) No response, or response that did not deny or disavow

801(d)(2)(B) – Adoption by A party will be deemed to have adopted a statement if:

1) one would expect a person to make a denial if statement
Silence
were untrue
2) Whether probable human behavior would have produced a
response rather than silence

801(d)(2)(C) – Statement by
authorized person Any statement by a person whom party authorized to make a statement
on the subject is admissible

801(d)(2)(D) – Statement by
party’s AGENT or An employee’s statement can be admissible against employer if
EMPLOYEE statements fall within the job responsibilities (fall within scope of
relationship)

801(d)(2)(E) – Statements by
(1) Statement must be made by a coconspirator
co-conspirator (2) Statement must be in furtherance of conspiracy
(3) Statement must occur during the conspiracy

Rule 803 Exceptions

803(1) – Present Sense A statement describing or explaining an event or condition, made while
or immediately after the declarant perceived it
Impression - FRE
FRE Reqs:
(1) Must describe or explain an event or condition
a. Cannot refer to previous action / analyze the event
i. Analysis would mean you had time to think through
it
(2) Must be contemporaneous and spontaneous
(3) Declarant need not be excited

FEC (Florida Evidence FEC Reqs:

Code) 90.803(1) (1) Must describe or explain an event or condition
(2) Must be contemporaneous and spontaneous
(3) Declarant need not be excited
(4) Exclude if circumstances suggest a lack of trustworthiness

803(2) – Excited Utterances A statement relating to a startling event or condition made while the
 declarant was under the stress of excitement caused by event or
condition
Requirements
(1) Relates to a startling event
a. excited utterance may move beyond description by
analyzing or interpreting the event.
(2) Made while under stress or excitement caused by event
a. NOT THE STRESS OF TELLING ABOUT IT

803(3) Statements Express A statement of the declarant’s

- then-existing state of mind
Declarant’s State of Mind
1) (such as motive, intent, or plan) or
- emotional, sensory, or physical condition
1) (such as mental feeling, pain, or bodily health),

NOT a statement of memory or belief to prove fact remembered or

believed
- UNLESS concerns declarant’s will
803(4) – Statements about Requirements: Statements must be
Symptoms or Causes of Med (1) made for a medical diagnosis or treatment
Conditions a. Subjective requirement – patient must actually be seeking
med care
(2) reasonably pertinent to diagnosis or treatment.
a. Objective
(3) fit within one of the three categories listed by the rule
a. (1) accounts of medical history;
b. (2) descriptions of past or present symptoms or sensations;
or
c. (3) reports about the “inception” of the condition or its
“general cause.”

803(5) – Recorded Hearsay exception when:

(1) A witness once had knowledge of a matter in a record, but now
Recollection
cannot remember it well enough “to testify fully and accurately;”
(2) The record was made or adopted by the witness when the matter
was “fresh in the witness’s memory;” and
(3) The record accurately reflects the witness’s knowledge at the
time.

Six Requirements
1) Out-of-court statement memorialized in some way
2) Witness testifying is either declarant who made the record or
person who saw record and agreed it was true
3) Declarant/witness testified that they once knew info in record, and
made record when they had knowledge
4) Witness made/adopted when knowledge was fresh – at or near
time of event
5) Witness must testify the record it accurately reflected the
knowledge they had at the time
6) Witness must no longer recall info well enough to testify fully and
accurately
803(6) Business Record Business record is admissible if
(1) It was kept in course of regularly conducted activity
(2) Business’s regular practice to keep record
(3) Recorded by an indvl with personal knowledge
(4) Source of info or method of documentation DOES NOT indicate a
lack of untrustoworthiness
803(8) Public Records Statement of a public office is not hearsay if it sets out:
1. Documentation of all the activities engaged in by public agency
2. Matters agency has duty to observe and record
3. Factual findings from legally authorized investigation
a. Includes opinions and conclusions of investigator
b. Can’t be used AGAINST criminal defendant
803(7) Absence of Regular When evidence is not included in a business record, it is admissible if:
Conducted Activity 1. The records containing the omission are kept in accordance with
803(6)
2. The absence relates to a matter about which business regularly
kept records

803(10) Absence of a Public Must show that

Record 1. The absent record relates to a matter for which public office
regularly kept records
2. Witness testified that a diligent search was made/doc certifies that
diligent search failed to yield the particular document

803(16) Statements in
Ancient Docs 1. Document must have been created before Jan 1, 1998
2. Party offering the document must establish its authenticity

803(17) Market Reports and

1. Doc must be one of market quotations, lists, directories, or other
Similar Commercial compilations
Publications 2. doc is generally relied on by the public or by persons in particular
occupations

803(18) Learned Treatises Scientific or academic books and journals that ALL practitioners rely on
are admissible if:
1. only in connection with expert’s testimony
2. read into evidence but not received as an exhibit
3. treatise must be reliable authority
4. encompass any field of study

Declarant’s Unavailability - 804

804(a) – Five Types of 1. privilege

Unavailability 2. refusal to testify
3. lack memory
4. death/physical or mental disabled
5. Absent (cannot be found/don’t have jurisdiction)
 i. Must show every attempt was made to get declarant
to testify
804(b)(1) – Former - Declarant must be unavailable
- Former testimony must have been made under oath, subject to
Testimony
penalty for perjury
- Opposing party must have had opportunity to develop testimony
in prior proceeding
- Must have similar motive in prior hearing as in current
o Same type of case (civil/criminal)?

804(b) – Former Testimony

in CRIMINAL CASE Same as above and
- Opposing party must have appeared in prior proceeding and had
opportunity to develop witness’s testimony

804(b) – Former Testimony

in Civil Same as above but opposing party can be predecessor in interest
- Someone who had prior interest in property subject to litigation or
in privity with a party

804(b)(2) – Dying
1. Declarant is unavailable
Declarations 2. Must be civil case or HOMICIDE
3. Declarant believes death is imminent
4. Statement concerns cause or circumstances of declarant’s death

804(b)(3) – Statement 1. Declarant is unavailable

2. Declarant’s statement was against his interest when made
Against Declarant’s Interest
3. Declarant’s statement is contrary to pecuniary or proprietary
interest
4. In criminal cases, corroborating circumstances must not lack
trustworthiness
804(b)(6) – Forfeiture – 1. Declarant is unavailable
2. Opposing party must have wrongfully caused or acquiesced in
wrongfully causing
declarant’s unavailability
declarant’s unavailability
3. Opposing party must have specifically intended to make
declarant unavailable
o Motivated by desire to silence the witness

Lay and Expert Opinion Testimony

701 Opinion Testimony by

Lay witness may offer opinion/inference if it is:
Lay Witness (1) Rationally based on witness’s perceptions
(2) Helpful
(3) Not based on scientific, expert knowledge
702 Expert Testimony – Expert can testify if:
QUALIFYING WITNESS (1) witness qualifies as an expert through knowledge, skill,
experience, training, or education
(2) Expert’s specialized knowledge helps trier of fact/”fits” the
facts of the case

702 Expert Testimony –

Expert’s testimony must be:
when sufficient to give (1) based upon sufficient facts or data
testimony (2) the product of reliable principles and methods, and
REASONABLE METHOD applied to case

702 – Expert Testimony – - Whether the theory or technique has been tested
- Whether it has been subject to peer review and publication
DAUBERT RELIABILITY
- The technique’s error rate
FACTORS
- The existence of standards controlling the technique’s application
- Theory or technique generally accepted (Frye)
- Whether principle, technique or methodology existed before
litigation began
703 – Bases of an Expert’s Expert’s testimony may derive from
- Personal knowledge or things they were made aware of (at trial)
Testimony
- Info learned in preparation for testimony
- Training and study

Can rely on inadmissible info so long as it is type of info experts in the

field routinely rely on
704 – Opinion on Ultimate
Issue Experts/lay witnesses may testify on ultimate issue
In CRIM CASE, expert cannot testify as to D’s mens rea

705 – Disclosing Facts or

Data Underlying an Expert’s Can state conclusory opinion without testifying to underlying facts/data
Opinion - Must disclose on cross

Authentication

901
Parties must make a sufficient showing that a reasonable jury could find
the tangible thing presented as evidence to be authentic
901 – General Methods of
- Direct testimony
Authentication - Chain of custody
- Expert comparison
- Distinctive characterisitcs

902 – Self Authentication No extrinsic evidence needed to prove certain items, such as
- Official domestic and foreign public documents signed, sealed or
certified
- Official publications by public authority
- Printed newspapers/periodicals
- Trade inscriptions, signs, tags, label