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Evidence Outline – Federal Rules of Evidence Outline

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Federal Rules of Evidence Law School Supplements

Evidence Outline

 

ARTICLE IV. RELEVANCY AND ITS LIMITS

Rule 401. Definition of “Relevant Evidence”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probablethan it would be without the evidence.

  1. Direct Evidence is almost always probative on the point for which it is offered
  2. Challenge to relevancy may be challenging one or more of 3 things
    1. Evidence lacks probative value
    2. Evidence has probative value but not on an issue provable in the litigation
    3. That the evidence lacks both qualities
  3. “Opening the door”
    1. If one party introduced evidence on a topic the other party may introduce evidence to rebut that assertion, even if that evidence may not be relevant under 401
    2. AKA curative admissibility
  4. Generally admit evidence to show a consciousness of guilt
    1. Flight
    2. Resisting arrest
    3. Escape
    4. Use of aliases
    5. Wearing a disguise or otherwise concealing ID
    6. Fabricating evidence
    7. Destroying or concealing evidence
    8. Lying
    9. Subornation of perjury
    10. Bribing, threatening, or attempting to kill a witness
    11. Bribing a law enforcement officer
    12. Making false exculpatory statements
    13. Failing to raise defense of an alibi at an earlier date
    14. Refusing to comply with order to provide fingerprints or DNA
    15. Attempting suicide
  5. Jury instructions ultimately determine what is of “consequence to the determination of the action”
  6.  

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

  1. Evidence obtained by violating a Const. right is not admissible
    1. MIRANDA
    2. Mapp v. Ohio-illegal seizure
  2. In principle, no common law exclusionary doctrines are recognized under 402
  3. FRE 402 does NOT defer to state law (Erie problems)
    1. Unless the relevancy ruling implicates a significant state substantive policy, courts occasionally enforce a state provision- Hottle v. Beech Aircraft crop. Pg 170.
  4.  

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

  1. Strongly weighted toward admissibility
  2. “Clear abuse of discretion”- appellate standard of review for trial judges ruling on 403 balancing.
  3. Offers to stipulate or less prejudicial alternative evidence must be considered when balancing
  4. Additional considerations for balancing admissibility
    1. Centrality of the point to be proved
    2. The need for the particular evidence
    3. Availability of alternate sources of proof
    4. Likelihood that the jury will understand and follow a limiting instruction under FRE 105
  5. Unfair Prejudice
    1. The rule expects courts to distinguish between prejudice resulting from the reasonable persuasive force of evidence and prejudice resulting from excessive emotional or irrational effects that could distort the accuracy and integrity of the factfinding process
    2. Two types of unfair prejudice
      1. Injection of undue emotionalism arousing hostility, anger or sympathy
      2. Likelihood that the jury will misuse the evidence or give it undue weight

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution;

(2) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness – Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

  1. 404(a)
    1. NEVER used to show current crime was in conformity with character
    2. Counsel must provide timely notice if they intend to use character evidence for one of the acceptable reasons.
    3. 404(a)- MERCY RULE
      1. Defendant may present evidence of good character. Opens door for cross to present bad character.
    4. Reputation/Opinion only.
    5. Policy
      1. Efficiency- could waste a lot of time going over a person’s character.
      2. Reliability
        1. Jury members will over value the priors in evaluating whether the charged conduct was in conformity with character.
        2. OR jury won’t care whether he did the current offense or not and simply punish him for being bad.
    6. 404(a)3- WITNESSES
      1. Once someone takes the stand you can always go after their character for truthfulness and honesty
  2. 404(b)-
    1. may introduce previous acts (need not be a wrong/crime) so long as there is an acceptable reason for doing so. Must have a good faith basis to inquire into.
    2. Notice Provision
      1. One of very few times you must tell your opponent in advance what you plan to do
      2. Accused may ask the prosecution if they plan on presenting 404b evidence, and if so, of what nature.
    3.  

Rule 405. Methods of Proving Character

(a) Reputation or opinion.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

  1. Almost always reputation or opinion
    1. Specific instances on cross of witness. Must have a good faith basis for each question.
  2. Specific instances allowed if a person’s character is an essential element of a charge, claim or defense
    1. RARE. Entrapment, negligent entrustment, defamation.
  3.  

Rule 406. Habit; Routine Practice

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

  1. Hallmarks of habit
    1. Particular – stimulus specific response
    2. Recurring situation
    3. Automatic or semi-automatic
    4. Large enough sample to determine pattern of behavior
    5. Uniformity of response to stimuli
    6. Consistent behavior
  2. Habit more likely to be predictive of conformity with present charged offense
  3.  

Rule 407. Subsequent Remedial Measures

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Remedial Measures FRE 407.

  1. AFTER an injury or harm allegedly caused by an event (timing)
    1. Must have made the harm/injury less likely to occur
  2. Not admissible to show negligence, culpable conduct, a defect in product, a defect in a product’s design, or a need for warning or instruction.
  3. Doesn’t exclude if introduced to show ownership, control, or feasibility of precautionary measures, if controverted, or impeachment
  4. Policy
    1. You want people fixing things. If admissible people wouldn’t improve/repair the situation if they thought it was admissible.
      1. External policy consideration. Has nothing to do with improving the trial process in some way.
    2. Just because you can make something safer, doesn’t mean that it wasn’t safe before.
      1. Standard is reasonable care, not utmost care.
  5. Nothing in the rule limits it to civil actions
    1. Covers changing the procedure for responding to sexual harassment, firing an employee for their conduct at work.
    2. Think of it in the broadest term… remedial measure.

Rule 408. Compromise and Offers to Compromise

(a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party, 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:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

FRE 408: Compromise and Offers to Compromise (Civil Compromise)

  1. Compromise/settlement negotiations inadmissible
    1. The fact that there were negotiations or statements made during such negotiations.
  2. Policy
    1. Encourage settlement in civil cases.
    2. Isn’t really all that relevant. Doesn’t show culpability
      1. Maybe a trial was more expensive. Maybe they just wanted it over and done with.
  3. Not admissible for
    1. Proving liability,
    2. Invalidity or amount
    3. Impeach through a prior inconsistent statement
  4. Admissible uses (not exhaustive)
    1. Proving a witness’s bias or prejudice
    2. Negate a contention of undue delay,
  5. Evidence that is not allowed
    1. Offering or accepting a deal
  6. Prerequisite
    1. MUST be a claim. Legal claim.
      1. Lawsuit doesn’t have to be filed

Statements at the scene of an accident will almost never be compromise negotiations

Rule 409. Payment of Medical and Similar Expenses

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

FRE 409: Good Samaritan Rule

  1. Offering to pay medical bills occasioned by an injury not admissible to prove liability for the injury.
    1. Broader: don’t need a claim

Narrow: doesn’t protect statements made about culpability or liability

Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

FRE 410: Pleas and Plea Discussions (Criminal Compromise)

  1. Evidence not admissible in CIVIL or criminal proceeding against the defendant
    1. Plea of guilty later withdrawn
      1. Just means the defendant is going to trial. Doesn’t make sense that you can then admit the withdrawn plea.
    2. Plea of nolo contendere;
      1. Defendant doesn’t admit guilt, but doesn’t contest the charges any farther.
        1. In the FEDERAL system, cannot be used in a civil suit.
    3. Statement made in sentencing regarding either of the previous please
    4. Any statement made in the course of plea discussions with an attorney for the prosecuting authority which did not result in a plea of guilty or which result in a plea of guilty later withdrawn.
    5. Prosecutor not protected by this rule
      1. Use 403 to argue that it would be unduly prejudicial.
  2. IS admissible (only two exceptions)
    1. In any proceeding where another statement made in the course of the same plea discussion has been introduced and the statement ought in fairness be considered contemporaneously with it; (Completeness Rule) OR
      1. Defendant offers part of the statement by the prosecuting authority, then prosecutor can introduce contradictory statements made during the plea bargaining.
    2. In a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

FRE 411: Liability Insurance

  1. Evidence that a person was or was not insured is not admissible to on whether a person acted negligently/wrongfully
  2. Can introduce to show
    1. Proof of agency, ownership, control, or
    2. Bias or prejudice of the witness
  3. Policy
    1. People will give greater verdicts if the person doesn’t have to personally pay for it
    2. Or the inverse, people will not really hit someone if they don’t have insurance.

Rule 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition

(a) Evidence generally inadmissible.

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual predisposition.

(b) Exceptions.

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.  Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subdivision (b) must —

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.

(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard.  The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

FRE 412 : Rape Shield Statute

  1. Not admissible in Civ/Crim proceeding
    1. Victim engaged in other sexual behavior;
    2. Evidence of Victim’s sexual predisposition
  2. How is this different from 404(a)2
    1. Criminal defendant may bring in evidence of his own good character or the victims bad character.
      1. This prevents it if the character is sexual in nature.
  3. Policy
    1. Protect the victim. Don’t want the victim’s sexual history to be put on trial
      1. Underreporting of crime
    2. Evidence of victim’s sexual conduct with someone other than the defendant isn’t very probative to the conduct with the defendant.
      1. Don’t want the jury to believe the victim was not entitled to protection
    3. Search for truth: try to bring more cases in to court
  4. EXCEPTIONS
    1. Criminal case
      1. Specific instances of sexual behavior by V to prove someone other than accused was the source of semen, injury, or other physical evidence
        1. NOTE: semen can usually be ruled out by testing
      2. Specific instances of sexual behavior by V with ACCUSED offered by ACCUSED to prove consent or by prosecution
        1. 404/405 only allow reputation or opinion evidence
        2. 412 ONLY allows specific instances.
      3. Evidence the exclusion of which would violate Defendant’s constitutional rights.
    2. Civil Case
      1. When PROBATIVE VALUE substantially outweighs the danger of harm to V and unfair prejudice to any party
        1. Compare with 403: leans towards exclusion. Expressly covers harm to victim AND parties.

Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, “offense of sexual assault” means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved–

(1) any conduct proscribed by chapter 109A of title 18, United States Code;

(2) contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person;

(3) contact, without consent, between the genitals or anus of the defendant and any part of another person’s body;

(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

  1. 413-415
    1. In a case in which Defendant is accused of sexual assault/child molestation, evidence of D’s commission of another sexual assault/child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
      1. Expressly allows in character evidence of D outside of Mercy Rule
      2. Allows specific instances (instead of rep/op evidence.)
    2. P shall disclose to D at least fifteen days before trial.
    3. Policy
      1. External. We really really despise sex crimes.
    4. 403 still applies
      1. You can always attack the probative value (because we know it is prejudicial)
        1. Long time ago. Different victim, different circumstances)
    5. These rules allow the evidence in on the weakest of cases, because cases where the evidence is actually probative will come in under a 404(b) theory.

Rule 414. Evidence of Similar Crimes in Child Molestation Cases

(a)  In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, “child” means a person below the age of fourteen, and “offense of child molestation” means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved–

(1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;

(2) any conduct proscribed by chapter 110 of title 18, United States Code;

(3) contact between any part of the defendant’s body or an object and the genitals or anus of a child;

(4) contact between the genitals or anus of the defendant and any part of the body of a child;

(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or

(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).

Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation

(a) In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

Rulings on Evidence

Rule 104. Preliminary Questions

(a) Questions of admissibility generally.

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact.

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(c) Hearing of jury.

Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

(d) Testimony by accused.

The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(e) Weight and credibility.

This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

104- Preliminary Questions

  1. 104(a) Judge is the keeper of the evidence rules
    1. Judge decides if it is relevant, unfairly prejudicial, exception to hearsay etc….
    2. Sometimes involves a factfinding element
      1. Excited utterance: judge must find that the statement was in fact spontaneous or excited.
    3. In making the requisite findings
      1. Judge not bound by evidence rules
        1. decision.
          1. IE: you must hear a statement in order to determine whether it falls into a hearsay exception
    4. Judge applies a preponderance of the evidence standard in determining admissibility
      1. Even in a criminal case.

 

 

104(b) Relevancy conditioned on fact

  1. IE: when Notice is at issue, it matters that the person heard the statement in order to have notice.
    1. Mark in the doorway— must establish the mark was actually made by a bullet.
  2. Judge has limited power in determining conditional relevancy
    1. Judge MUST admit the evidence if there is sufficient admissible evidence for the jury to find the condition of fact by a preponderance of the evidence.
    2. No credibility determinations made by the judge here.
    3. Standard is very low
  3. Note: just because it is admitted into evidence does not mean the jury will give it any weight

 

104 Con’td

  1. Judge primary actor in determining admissibility. (keeper of the rules)
    1. Preponderance of the evidence.
  2. Judge has must less power if the evidence is conditionally relevant.
    1. Don’t want to overuse conditional relevancy argument.

Rule 105. Limited Admissibility

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Impeachment

Rule 607. Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

Notes

Rule 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character.

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct.

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

Notes

Rule 609. Impeachment by Evidence of Conviction of Crime

(a) General rule.

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

(b) Time limit.

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation.

Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of 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 juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal.

The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

FRE 609(a)(1): Felonies

  1. Criminal Defendant
    1. For the purpose of attacking the character for truthfulness…
    2. Admissible if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice to the accused
      1. Probative value outweighs prejudice
      2. Inference: someone who is capable of committing a felony is capable of lying on the stand.
      3. Compare with 403: evidence not admitted unless probative value outweighs prejudicial event.
  2. All other Witnesses
    1. Subject to 403. Evidence is admitted unless probative value substantially outweighed by prejudicial effect

609(a)(2): Crime of dishonesty or false statement

  1. Elements of the crime required proof or admission of an act of dishonesty or false statement by the witness
    1. Theft is not enough.
    2. Automatically admissible
      1. Judge has no discretion in whether to admit
    3. Perjury
    4. Subornation of perjury
    5. Embezzlement
    6. Falsification
    7. Etc.

609(b): TIME LIMIT

  1. Applies to (a)(1) and (a)(2)
  2. More than ten years from the date of conviction or release from confinement for conviction, whichever is later.
  3. When does the 10 years end?
    1. Date of indictment or complaint controls.
      1. Prevents witnesses from prolonging the case to avoid the 10 year rule
  4. If over 10 years old, generally not admissible, unless probative value substantially outweighs prejudicial effect
    1. Proponent must give written notice if conviction is over 10 yrs old

 

609(c): Pardons

  1. Evidence of conviction not admissible if
    1. Formal finding of rehabilitation or pardon

609(d): Juvenile Adjudications

  1. Generally inadmissible, however, court has discretion to admit,
    1. In a criminal case
    2. A witness other than the defendant
    3. An offense otherwise admissible to impeach an adult
    4. Necessary for fair determination of guilt or innocence.

Notes

Rule 610. Religious Beliefs or Opinions

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

Rule 613. Prior Statements of Witnesses

(a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

Rulings on Evidence

Rule 103. Rulings on Evidence

(a) Effect of erroneous ruling.

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. – In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. – In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(b) Record of offer and ruling

The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury

In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error

Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

Effect of Erroneous Ruling

  1. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.
    1. Error– reversal , unless it probably did not affect the judgment.
    2. Question is whether the error is bad enough to grant a new trial

FRE 103

  1. Error likely affecting judgment AND
    1. Opponent makes timely objection or motion to strike, stating specific ground; OR
      1. If it cannot be cured by objection or motion to strike, move for a mistrial.
      2. Always state specific grounds, CYA.
    2. Proponent makes offer of proof
      1. Formal offer of proof
        1. Your honor, I’d like to make a formal offer of proof
          1. Judge dismisses jury. Examine witness to see how the testimony goes.
      2. Informal offer of proof
        1. If the witness were allowed to testify, they would testify as to….and it is relevant because….
  2. Motion to exclude must be at or before trial
    1. Motions in limine
    2. Critical evidentiary problems
  3. Outside hearing of jury

 

6/29/10

Plain error: so obvious it would be a miscarriage of justice if it wasn’t overturned. Doesn’t matter if there was an objection or not.

 

Standard for appeal of evidentiary issues

  1. Reverse unless it probably did not affect the judgment.
  2. Crim case: beyond a reasonable doubt the error did not affect the judgment.

 

Rule 106. Remainder of or Related Writings or Recorded Statements

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

FRE 106: Rule of completeness

  1. When a party introduces a writing or statement, the other party may introduce other part of the statement which ought in fairness to be considered contemporaneously with it
    1. WRITING or recorded statement
    2. Adverse party MAY, if it fits their strategy, introduce at that time
    3. Don’t need to wait for your case in chief in order to introduce the beneficial portion of the testimony

Authentication

Rule 901. Requirement of Authentication or Identification

(a) General provision.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations.

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

  1. Examples are not exhaustive, developed from the common law
  2. Most common manner of authentication is 901(b)1- testimony of the witness that it is what it is claimed to be.
  3. Telephone conversations
    1. If you call a number assigned to a particular individual by the phone company and the person self identifies as that person, it is authenticated.
    2. If someone calls YOU and self identifies does not authenticate the identity of the caller.
  4. Ancient documents
    1. 20 years or older
      1. If there is nothing suspicious about the document, and is found where that type of document should be found, it should be admitted.
  5. Process or System

 

Foundation questions template, in this order:

  1. Do you recognize it?
  2. What is it?
  3. How do you recognize it?
  4. Is it in the same or substantially the same condition as it was when you recovered it?

 

Notes

Rule 902. Self-authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.

(11) Certified domestic records of regularly conducted activity.  The original or a duplicate of a domestic record of regularly conducted activity that would be admissible underRule 803(6) if accompanied by a written declaration of its custodian  or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

(12) Certified foreign records of regularly conducted activity.  In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian  or other qualified person certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a  manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Notes

Rule 903. Subscribing Witness’ Testimony Unnecessary

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

BEST EVIDENCE RULE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001. Definitions

For purposes of this article the following definitions are applicable:

(1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.

(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original”.

(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

Notes

Rule 1002. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

Notes

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Notes

Rule 1004. Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if–

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

  1. Original not required if
    1. Original is lost or destroyed (other than in bad faith)
    2. Original not obtainable (by process)
    3. Original in possession of the opponent
    4. Collateral matter
  2. Rule does not say you MUST use a duplicate if you have one. If the original is not obtainable under the above criteria you as the advocate may select the evidence that would be most effective.
    1. NOTE: Says “copy” and not duplicate.

Notes

Rule 1005. Public Records

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

FRE 1005

  1. Public records may be proved by copy as certified as correct in accordance with FRE 902 or testified to be correct by a witness who compared it with original
  2. Only if such a copy cannot be obtained, may other evidence of the contents be given.
    1. ONLY if copy isn’t available may you use other evidence, as compared with 1004 where if the original isn’t there you may use any evidence

Notes

Rule 1006. Summaries

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

Notes

Rule 1007. Testimony or Written Admission of Party

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.

Notes

Rule 1008. Functions of Court and Jury

When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

HERESY

ARTICLE VIII. HEARSAY

Notes

Rule 801. Definitions

The following definitions apply under this article:

(a) Statement.

A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant.

A “declarant” is a person who makes a statement.

(c) Hearsay.

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay.

A statement is not hearsay if–

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A)inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B)consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(d)(1)(B)-consistent statement must have been made before motive or influence existed.

A+B-May only be introduced for ToM if previous statement was under oath. If not, they may only be used for impeachment.

(2)Admission by party-opponent. The statement is offered against a party and is

(A) the party’s own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Notes

Rule 802. Hearsay Rule

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

Notes

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

803(1)-present sense impression- OUTSIDE limit is 15 minutes.

  1. 803(1) really meant to be a concrete description .
    1. Very tight connection between event and description
    2. Thinking goes that you are describing it as you see it, therefore it is more likely to be accurate.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

803(2)- Excited utterance

  1. Must have a startling event or condition
  2. Statement must relate to startling event or condition
  3. Statement must be made while under the stress of startling event or condition
    1. Shock makes it true. Either clarifies thought, or precludes opportunity to think about the reaction
    2. No strict time component. As long as the state of excitement lasts.
      1. More time = less likely to be excited.
  4. Bar seems to be pretty low for ‘startling event’
    1. Subjective standard

(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

803(3)- state of mind exception. Must be a very direct assertion of state of mind.

  1. State of mind and Physical
  2. Always present sense or forward looking statements, never backward looking
    1. Rationale is that backward looking statements more self serving.
  3. Cover’s forward looking statements of intent to prove action in conformity
    1. IE: I’m going to the mall, in order to prove someone went to the law
      1. Rationale- jurors are already inherently mistrustful of people’s intentions or planned actions, but may be more likely to believe memories are accurate…
  4. Exception to the exception
    1. Not including statements of memory or belief to prove the fact or belief.
      1. Rationale- would swallow the hearsay rule
        1. Ie: I believed the light was red

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) Records of regularly conducted activity.  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(19) Reputation concerning personal or family history. Reputation among members of a person’s family by blood, adoption, or marriage, or among a person’s associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

(21) Reputation as to character. Reputation of a person’s character among associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(24) [Other exceptions.][Transferred to Rule 807]

Notes

Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) Definition of unavailability.

“Unavailability as a witness” includes situations in which the declarant–

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant’s statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.

(5) [Other exceptions.][Transferred to Rule 807]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Notes

Rule 805. Hearsay Within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

Notes

Rule 806. Attacking and Supporting Credibility of Declarant

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Notes

Rule 807. Residual Exception

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

 

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