THE RULES: REWRITTEN Rule 101. Scope The rules apply to all US proceedings, except for those mentioned in rule 1101. Rule 102. Purpose and Construction When in doubt, construe these rules in a manner that promotes justice and fairness. Rule 611. Mode and Order of Interrogation and Presentation (a) Control by the court The court shall exercise reasonable control over the mode and interrogation of witnesses and presenting evidence. (b) Scope of Cross Examination Cross-examination is limited to the scope of the direct examination and witness credibility, unless permitted by the court in its discretion. Rule 1101. Applicability of Rules (a) Courts and Judges These rules apply to practically everyone who might fall under US jurisdiction (b) Proceedings Generally The rules apply to all actions, except those in which the court may act summarily, and title 11 cases. Rule 103. Ruling on Evidence (a) Effect of Erroneous Ruling Error is not eversible unless it affects a substantial right, and one of the following has occurred. (1) Objection There must be a timely objection or motion to strike on the record, stating the grounds, if not apparent from context; or (2) Offer of Proof If there was an erroneous exclusion of evidence, an offer of proof must be on the record. After the ruling has been made, either before or at the trial, there need not be a renewal to preserve a claim for error. (3) Record of Offer and Ruling The offer may be done in question and answer form. The court may add any other or further statement to show the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.
1
(4) Hearing of Jury Precautions should be taken so that the jury does not hear inadmissible evidence. This may be done through sidebars. (5) Plain Error Plain error does not require objection and preservation. Rule 104. Preliminary Questions (a) Questions of Admissibility, Generally Preliminary questions concerning the qualifications of a person to be a witness, privileges, or admissibility is for the judge to decide, unless it involves relevancy conditioned on fact. The court is not bound by the rules, except with regard to privileges. (b) Relevancy Conditioned of Fact When the relevancy of evidence depends on 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. Rule 1101. Applicability of Rules (d) Rules inapplicable. The rules (other than with respect to privileges) do not apply in the following situations (1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104. (2) Grand Jury. Proceedings before grand juries. (3) Miscellaneous proceedings. a. Proceedings for extradition or rendition b. Preliminary examinations in criminal cases c. Sentencing, granting, or revoking probation d. Issuance of warrants for arrest, criminal summonses, and search warrants e. Proceedings with respect to release on bail or otherwise Rule 901. Requirement of Authentication or Identification (a) General Provision These requirements are satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims. (b) Illustrations The list is illustrative, and not exhaustive with regard to methods that conform to the requirements of the rule:
2
(1) Testimony of Witnesses with Knowledge Testimony that a matter is what it is claimed to be (2) Nonexpert Opinion on Handwriting A layperson may offer an opinion as to the genuineness of handwriting, provided the familiarity was not acquired for litigation purposes. (3) Comparison by Trier or Expert Witness Comparison by the trier of fact or by expert witnesses with specimens that have been authenticated. (4) Distinctive Characteristics and the Like Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the 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 When dealing with a person, there must be evidence that the call was made to the number assigned at the time by the phone company and circumstances, including self-authentication, show the person answering to be the one called. When dealing with a business, the evidence must show that the call was made to the number assigned at the time by the phone company, and the conversation related to business reasonably transacted over the telephone. (7) Public Records or Reports Evidence that a document authorized by law to be recorded or filed, and actually done so, or a purported public record, report, statement, or data compilation, in any form, is from the office where items of this nature are kept (8) Ancient Documents or Data Compilations Evidence that a document or data compilation in any form, is in such condition as to create no suspicion concerning its authenticity, was in a place where it, if authentic, would likely be, and has been in existence 20 years or more at the time it was offered. (9) Data 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.
3
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 Domestic federal, state, and local documents that are signed and sealed. (2) Domestic Public Documents Not Under Seal A document which claims to have the signature of a (1) person but no seal, must be certified under seal by a public officer, who states that the signer has the official capacity and that the signature is genuine. (3) Foreign Public Documents Foreign public documents are self-authenticating (4) Certified Copies of Public Records A copy of an official record or entry therein, or of a document authorized to be recorded and filed and actually done so, offered with a certificate that falls under (1), (2), or (3). (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 Notarized documents are allowed. (9) Commercial Paper and Related Documents Commercial paper and that in compliance with UCC regulations. (10) Presumptions Under Acts of Congress Any signature, document, or other matter declared by Act of Congress to be presumptively prima facie genuine or authentic. (11) Certified Domestic Records of Regularly Conducted Activity Uhhhhhhhh…? Rule 903. Subscribing Witness’ Testimony Unnecessary The testimony of the 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.
4
Rule 1001. Definitions (1) Writing and Recordings Letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, Photostatting, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (2) Photographs Stills, X-ray films, video tapes, and motion pictures (3) Original The writing or recording itself or any counterpart intended to have the same effect by a person executing it or issuing it. The negatives or any prints are included. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately. (4) Duplicate 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 that accurately reproduces the original. Rule 1002. Requirement of Original To prove the content of a writing, recording, or photograph, the original is required, except as otherwise provided for in these rules or by Act of Congress. Rule 1003. Admissibility of Duplicates A duplicate is admissible to the same extent as the original unless a genuine question is raised as to the authenticity of the original, or in the circumstances, it would be unfair to admit the duplicate in lieu of the original. 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 destroyed, unless the proponent lost or destroyed them in bad faith (2) Original Not Obtainable No original can be obtained by any available judicial process or procedure. (3) Original in Possession of Opponent When the opponent had control of the original, and was put on notice, yet still did not produce the original.
5
(4) Collateral Matters The writing, recording, or photograph at issue is not closely related to a controlling issue. Rule 1005. Public Records Although certified public records are admissible, if a copy that complies with the specifications cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. Rule 1006. Summaries Large voluminous writings, recordings, or photographs, which cannot conveniently be examined in court, may be presented by chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying by other parties at a reasonable time and place. The court may order that they be produced in court. Rule 1007. Testimony or Written Admission of Party Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the opposing party, or by their written admission, without accounting for their nonproduction at trial. Rule 1008. Functions of Court and Jury When admissibility depends on the fulfillment of a condition of fact, the question of whether the condition has been fulfilled is ordinarily for the court to determine under rule 104. The issue goes to the jury when it concerns whether the asserted writing ever existed, or whether another writing, recording, or photograph produced at the trial is original or whether other evidence of contents correctly reflects the contents. 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 or less probable than it would be without the evidence. Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as provided by the Constitution, Act of Congress, these rules, or by other rules prescribed by the SC pursuant to statutory authority. Evidence which is not relevant is not admissible.
6
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: 1. Unfair Prejudice 2. Confusion of the issues 3. Misleading the jury 4. Considerations of undue delay 5. Waste of time 6. Needless presentations of cumulative evidence FOUR CATEGORIES FOR STATEMENTS OFFERED FOR NON-HEARSAY PURPOSES Impeachment The use of a statement to undercut the credibility of W is not hearsay. Verbal acts Statements that have independent legal significance are not hearsay. Verbal Parts of Acts Where the physical act is ambiguous, but the words that accompany it resolve the ambiguity, the statement is not hearsay. Effect on Listener or Reader If the statement is offered to prove the effect that the statement, whether true or false, had or should have had on the listener, it is not hearsay. Circumstantial Evidence of State of Mind A statement offered to show circumstantial evidence of what was in the mind of DL is not hearsay. 801(a) Statement. 1. Oral or written assertion or 2. Nonverbal conduct of a person, 3. If it is intended by the person as an assertion 801(b) Declarant. A person who makes a statement Elements of 801(c) - Hearsay Definition 1. Statement 2. Made out of court 3. Offered to prove the truth of the matter asserted
7
Elements of 801(d)(1)(A) - Prior Inconsistent Statements 1. DL testifies 2. Subject to XE concerning the prior statement 3. The statement must be inconsistent with the present testimony 4. Statement must have been made under oath Elements of 801(d)(1)(B) - Prior Consistent Statements 1. DL testifies 2. Subject to XE 3. Statement consistent w/testimony 4. Statement offered to rebut express or implied charge of a. Recent fabrication; or b. Improper influence or motive Elements of 801(d)(1)(C) – Prior Statements of Identification: 1. DL testifies 2. Subject to XE 3. Statement is one of identification by DL after perceiving the person Elements of 801(d)(2)(A) – Admission by Party-Opponent 1. Statement made by a party 2. Statement offered against a party Elements of 801(d)(2)(B) – Adoptive Admissions 1. Statement in which party manifests an adoption or belief in it’s truth 2. Statement offered against party Elements of 801(d)(2)(C) – Admission by Speaking Agent 1. Statement by person authorized to speak on party’s behalf concerning the subject 2. Statement offered against party a. (the contents of the statement may be considered, but are not alone sufficient to establish DL’s authority) Elements of 801(d)(2)(D) – Admissions by Employees and Agents 1. Statement made by party’s agent or servant (employee) 2. Concerning matter within the scope of employment 3. Made during existence of agency or employment 4. Statement offered against party a. (the contents of the statement may be considered, but are not alone sufficient to establish DL’s authority)
8
Elements of 801(d)(2)(E) – Co-Conspirator Statements 1. Existence of a conspiracy 2. DL was part of conspiracy 3. D was part of conspiracy 4. Statement was made during course of conspiracy (pendency) 5. Statement was made in furtherance of conspiracy (furtherance) 6. Statement offered against party a. (the contents of the statement may be considered, but are not alone sufficient to establish DL’s authority) Elements of 803(1) – Present Sense Impressions 1. Statement describing or explaining event or condition 2. Made while DL is perceiving the event or condition or immediately thereafter Elements of 803(2) – Excited Utterances 1. Statement relating to a startling event or condition 2. Made while DL was under stress of excitement caused by event or condition Elements of 803(3) – State of Mind 1. Then-existing physical condition 2. Then-existing mental or emotional condition 3. Subsequent conduct or intent 4. Facts concerning a will Elements of 803(4) – Statements to Physicians 1. Statement made for purposes of medical treatment or diagnosis; and a. Statement describes medical history; or b. Statement describes past symptoms, pain, or sensations; or c. Statement describes inception or general character of the cause or external source; and 2. Statement reasonably pertinent to diagnosis or treatment Elements of 803(5) – Past Recollection Recorded 1. A memorandum or record 2. Concerning a matter about which witness once had knowledge 3. Now knowledge is insufficient to testify fully & accurately 4. Statement made or adopted by witness 5. Made while fresh in witness’ memory 6. Statement correctly reflect witness’ once-fresh knowledge
9
Elements of 803(6) – Business Records 1. A record of a business in any form 2. Record concerns acts, events, conditions, opinions, or diagnoses 3. Record made at or near time by, or from information transmitted by, a person with knowledge 4. Made in ordinary course of business 5. Kept in ordinary course of business 6. (Foundation) As testified to by custodian or qualified person a. (Unless not trustworthy) Elements of 803(8) – Public Records 1. Records of a public office or agency setting forth a. Activities of office or agency b. Matters observed and reported pursuant to duty, excluding reports by police or other law enforcement personnel in criminal cases c. Factual findings from investigations pursuant to legal authority, except against criminal defendants 2. Unless untrustworthy Elements of 804(a) – Unavailability Requirement 1. Privilege 2. Refusal to Testify 3. Lack of Memory 4. Dead or Infirm 5. Unavoidable Absence a. Unless availability caused or procured by proponent wrongfully Elements of 804(b)(1) – Former Testimony 1. Declarant unavailable 2. Testimony given at a hearing or deposition in same or different case 3. Offered against party who had similar motive and opportunity to examine DL in a prior proceeding a. If in civil proceeding, predecessor in interest must have had a similar motive Elements of 804(b)(2) – Dying Declarations 1. DL unavailable 2. Civil case or criminal homicide trial 3. DL’s statement made while believing death to be imminent 4. DL’s statement concerns the cause or circumstances of what DL believes to be impending death 5. Personal knowledge
10
Elements of 804(b)(3) – Declarations Against Interest 1. DL unavailable 2. Statement, at the time made, so far contrary to pecuniary, or proprietary interest, or so tended to subject DL to civil or criminal liability that 3. Reasonable person in DL’s position would not have made it unless statement was true a. When there is a statement offered to expose DL and exculpate the accused, the statement is not admissible unless there are corroborating circumstances indicating the trustworthiness of the statement. Elements of 804(b)(4) – Statements of Family or Personal History 1. DL unavailable 2. Statement is about DL’s own family history OR 3. That of relatives or other intimate associates Elements of 805 – Hearsay W/In Hearsay Hearsay w/in hearsay is inadmissible unless an exception can be found for each layer Elements of 807 – The Catchall Exception 1. Circumstantial guarantees of trustworthiness equivalent to other exceptions 2. Offered as evidence of material fact 3. More probative on point for which offered that other evidence reasonably available 4. Interests of justice served by admission 5. Pre-trial notice given to opposing party Rule 404. Character Evidence Rule 404(a) Character Evidence Generally Character evidence is not admissible for the purpose of proving action in conformity therewith on a particular occasion Rule 404(a)(1) Character of Accused Admissible 1. Pertinent trait 2. Offered by accused; or 3. Offered by prosecution; either a. For rebuttal; or b. To show same trait of accused after the accused offers evidence of victim’s character Rule 404(a)(2) Character of Alleged Victim Admissible 1. Pertinent trait of alleged victim 2. Offered by accused; or 3. Offered by prosecution to rebut; either a. The same b. Evidence that victim was the first aggressor i. In a homicide case ii. Through character evidence of victim’s peacefulness
11
Rule 404(a)(3) Character of Witness Evidence of the character of a witness as provided in rules 607, 608, and 609 Rule 404(b) Other Crimes, Wrongs, or Acts 1. Inadmissible to prove the character of a person in order to show action in conformity therewith 2. Admissible for other purposes: a. Proof of motive b. Opportunity c. Intent d. Preparation e. Plan f. Intent g. Knowledge h. Identity i. Absence of mistake 3. Reasonable pre-trial notice from prosecution in a criminal trial; or 4. During trial if court excuses PTN on good cause shown of the general nature of any such evidence it intends to introduce at trial 5. Offered for proper purpose* 6. Relevant for proper purpose* 7. Determination under 403* 8. Limiting Instruction* (* denotes element of Huddleston 4-part test) 405. Methods of Proving Character Rule 405(a) Reputation or Opinion 1. Allowed in all cases where evidence of a character or character trait is admissible 2. Specific instances may be inquired upon only on XE
Rule 405(b) Specific Instances of Conduct Allowed when character or character trait is an essential element of the charge, claim or defense Rule 412. Sex Offense Cases Rule 412(a) Evidence Generally Inadmissible 1. Evidence offered to prove that any alleged victim engaged in other sexual behavior 2. Evidence offered to prove any alleged victim’s sexual disposition
12
Rule 412(b) Exceptions Rule 412(b)(1)(A) Specific Instances of Sexual Behavior 1. In a criminal case 2. If otherwise admissible under these rules 3. Evidence of specific instances of sexual behavior by V 4. Offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence
Rule 412(b)(1)(B) Sexual Behavior with Respect to Accused 1. In a criminal case 2. If otherwise admissible under these rules 3. Evidence of specific instances of sexual behavior by V 4. With respect to person accused of sexual misconduct 5. Offered by accused 6. To prove consent 7. Or offered by prosecution Rule 412(b)(1)(C) Constitutional Rights of D 1. In a criminal case 2. If otherwise admissible under these rules 3. Evidence the exclusion of which would violate the constitutional rights of D Rule 412(b)(2) Civil Cases 1. In a civil case 2. Evidence offered to prove the sexual behavior or sexual predisposition of any V 3. If it is otherwise admissible under the rules 4. Probative value substantially outweighs danger of harm to any victim and unfair prejudice to any party 5. V’s reputation is admissible only if it has been placed in controversy by V Rule 413. Evidence of Similar Crimes in Sexual Assault Cases 1. Criminal case 2. D must be accused of an offense of sexual assault 3. Evidence of other offenses a. If Government intends to offer evidence, mandatory disclosure at least 15 days before trial or at such a later time as the court may allow for good cause Rule 414. Evidence of Similar Crimes in Child Molestation Cases 1. Criminal case 2. Child molestation must be charged 3. Evidence of other sexual offenses and child molestation offenses a. If Government intends to offer evidence, mandatory disclosure at least 15 days before trial or at such a later time as the court may allow for good cause
13
Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation 1. Civil Case 2. Claim for damages must be predicated on a party’s alleged commission of conduct constituting offense of sexual assault or child molestation 3. Evidence of similar offenses a. For party offering evidence, mandatory disclosure at least 15 days before trial or at such a later time as the court may allow for good cause Rule 406. Habit or Routine Practice 1. Evidence of habit of a person or routine practice of an organization 2. Whether corroborated or not 3. Regardless of eyewitnesses 4. Relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice Rule 407. Subsequent Remedial Measures 1. After an injury, or harm 2. Measures would have made harm less likely to occur 3. Inadmissible a. Negligence b. Culpable Conduct c. Product Defect d. Design Defect e. Warning Defect 4. Admissible (examples) a. Ownership - IC b. Control - IC c. Feasibility of precautionary measures - IC d. Impeachment (IC – in controversy)
14
Rule 408. Compromise and Offers to Compromise 1. Evidence of furnishing or offering or promising o furnish, or 2. Accepting or offering or promising to accept 3. A valuable consideration in compromising (or attempting) a claim which was disputed as to validity or amount 4. Inadmissible a. Liability for claim b. Invalidity c. Conduct or statements made in negotiations 5. Admissible a. Otherwise discoverable evidence made during the course of compromise negotiations b. bias or prejudice of W c. Negativing a contention of undue delay d. An effort to obstruct a criminal investigation or prosecution Rule 409. Payment of Medical and Similar Expenses Evidence of furnishing or offering or promising to pay medical, hospital or similar expenses is not admissible to prove liability for the injury Rule 410. Inadmissibility of Pleas, Offers of Pleas, Plea Discussions, and Related Statements 1. Inadmissible in criminal or civil proceedings a. Guilty plea later withdrawn b. Nolo contendre plea c. Any statement made in the course of proceedings under FRCP 11 (or sim. St. rule) d. Any statement made in the course of plea discussions with an attorney for the prosecuting authority which did not result in a plea or resulted in a later withdrawn plea 2. Admissible a. Another statement already introduced, so fairness requires b. Criminal proceeding for perjury or false statement, if statement was made under oath, on the record, and in the presence of counsel Rule 411. Liability Insurance 1. Evidence that a person did or did not have liability insurance inadmissible on the issue of whether person acted negligently or otherwise wrongfully. 2. Admissible a. Agency b. Ownership c. Control d. Bias or prejudice of W 601. General Rule of Competency Every person is competent to be a witness except as otherwise provided by the rules.
15
602. Lack of Personal Knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that W had personal knowledge. Evidence may consist of W’s own testimony. 603. Oath or Affirmation 1. Before testifying 2. Every W 3. Shall be required to declare that the W will testify truthfully 4. By oath or affirmation calculated to awaken W’s conscience and impress W’s mind with the duty to do so. 604. Interpreters An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. 605. Competency of Judge as W The judge presiding at trial may not testify in that trial as W. No objection need be made in order to preserve the point. 606. Competency of Juror as W 606(a). At the trial. A member of the jury may not testify as a W before that jury in the trial of the case in which the juror is sitting. If the juror is called to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. 606(b). Inquiry into the validity of verdict or indictment. Don’ts 1. Juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations 2. Juror may not testify to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment 3. Juror may not testify concerning the his mental processes in connection therewith 4. Neither a juror’s affidavit nor evidence of any statement by the juror concerning a mater about which the juror would be precluded from testifying be received for these purposes. Do’s 1. Juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear on any juror Rule 607. Who May Impeach The credibility of a witness may be attacked by any party, including the party calling the witness.
16
Rule 611. Mode and Order of Interrogation and Presentation (4) Leading Questions Leading questions cannot be used in direct examination, except to develop witness’ testimony. It is reserved for cross-examination, unless the party calls a hostile witness, an adverse party, or a witness identified with an adverse party. Rule 612. Writing Used to Refresh a Memory 1. If W uses a writing to refresh memory for the purposes of testifying either 2. While testifying or 3. Before testifying, if the court in it’s discretion determines it is necessary in the interests of justice 4. An adverse party is entitled to have the writing produced at the hearing, to inspect it, and to XE W thereon, and introduce into evidence those portions which relate to W’s testimony If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order the delivery of the remainder the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice so requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony, or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. Rule 615. Exclusion of W’s (The Rule) 1. At the request of a party or on its own motion 2. Court shall order W’s excluded so they cannot hear testimony of other W’s 3. Exceptions: (a) A party who is a natural person (not a corporation) (b) An officer or employee of a party which is not a natural person designated as its representative by its attorney (c) A person whose presence is shown by a party to be essential to the party’s cause; or (d) A person authorized by statute to be present
17
Rule 608. Evidence of Character and Conduct of Witnesses Rule 608(a). Opinion And Reputation Evidence Of Character 1. Credibility may be attacked or supported 2. Through evidence of opinion or reputation 3. Limitations: (1) Evidence may refer 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
Rule 608(b). Specific Instances Of Conduct 1. Inadmissible through extrinsic evidence except for conviction of crime under 609 2. Exception (a) Court’s discretion (b) Probative on truthfulness or untruthfulness (c) On XE (1) Concerning W’s character for truthfulness or untruthfulness (2) Concerning the character for truthfulness or untruthfulness of another as to which character the witness being XE has testified Rule 609. Impeachment By Evidence Of Conviction Of A Crime Rule 609(a)(1) General Rule for W’s 1. For purpose of attacking credibility of W 2. Evidence that W 3. Has been convicted of a crime punishable by death or imprisonment for more than one year 4. If W is other than the accused, subject to rule 403 (favors admissibility) 6. If W is the accused, court must determine that probative value outweighs the prejudicial effect to accused (favors exclusion) Rule 609(a)(2) General Rule Any W 1. Any W 2. Convicted of a crime 3. If it involves dishonesty or false statement 4. Regardless of the punishment Rule 609(b) Time limit 1. More than 10 years since date of conviction or release, whichever is later 2. Unless court determines probative value of conviction outweighs prejudicial effect 3. Inadmissible (a) Unless proponent gives PTWN and opponent has fair opportunity to contest
18
Rule 609(c) Effect Of Pardon, Annulment, Or Certificate Of Rehabilitation 1. Conviction is not admissible if (a) There is pardon, annulment, or certificate of rehabilitation or equivalent based on finding of rehabilitation (b) Person has not been convicted of subsequent felony (death/ more than 1 year); or (c) There is pardon, annulment, or equivalent procedure based on finding of innocence Rule 609(d) Juvenile Adjudications 1. Generally inadmissible 2. Exception (a) Criminal case (b) Juvenile adjudication of W (c) Other than accused (d) If conviction of the offense would be admissible to attack the credibility of an adult; and (e) Court is satisfied that admission is necessary for a fair determination of the issue of guilt or innocence Rule 609(e) Pendency of Appeal 1. Pendency of appeal does not make evidence of conviction inadmissible 2. Evidence of pendency of appeal is also admissible Rule 613. Prior Statements of Witnesses Rule 613(a) Examining W’s Concerning Prior Statement 1. 2. 3. 4. Statement need not be shown Whether written or not Nor its contents disclosed to W at that time But on request it shall be shown or disclosed to opposing counsel
Rule 613(b) Extrinsic Evidence of Prior Inconsistent Statement of W 1. Inadmissible unless W is afforded an opportunity to explain or deny it and 2. Opposite party is afforded an opportunity to interrogate witness about it 3. Or the interests of justice otherwise require 4. This provision does not apply to admissions of a party opponent under 801(d)(2)
Rule 610. Religious Beliefs or Opinions Beliefs or opinions of W on matters of religion is not admissible for showing that by reason of their nature, W’s credibility is impaired or enhanced
19
Rule 614. Calling and Interrogation of W’s by Court 614(a) Calling by Court The court may, on its own motion or on suggestion of a party, call W’s, and all parties are entitled to XE the witnesses thus called 614(b) Interrogation by Court The court may interrogate W’s whether called by itself or a party
614(c) Objections Objections to the calling of W’s by the court or to interrogation made by it may be made at the time or at the next available opportunity when the jury is not present
701. Opinion Testimony by Lay W’s 1. Opinions or inferences 2. Not an expert 3. Rationally based on W’s perception 4. Helpful to clear understanding of W’s testimony or determination of a fact in issue 5. Not based on scientific, technical, or other specialized knowledge 704. Opinion on Ultimate Issue 1. You may testify to an ultimate issue 2. Unless it has to do with the insanity context 702. Testimony By Experts 1. Specialized knowledge, skill, experience, or training 2. Testimony in the form of opinion or otherwise 3. Helps the trier of fact understand evidence or determine facts in issue IF a. The testimony is based on sufficient facts or data b. The testimony is the product off reliable principles and methods c. W has applied the principles and methods reliably to the facts of the case 703. Bases of Opinion Testimony by Experts 1. Facts or data must be of a type reasonably relied upon by experts in a particular field a. Learned before hearing b. Learned at hearing c. Learned from outside source 1. Facts or data reasonably relied upon need not be admissible for the opinion or inference to be admitted 2. The inadmissible facts or data may not be disclosed to the jury unless the court finds that the probative value outweighs their prejudicial effect.
20
705. Disclosure of Facts or Data Underlying Expert Opinion 1. The expert need not give reasons for opinion unless the court requires otherwise – No foundation is necessary 2. The expert may be required to disclose the underlying facts or data on XE.
501. General Rule for Privilege The CL rules of privilege prevail. In civil actions and proceedings, with respect to an element of a claim or defense in which State law supplies the rule of decision, state law prevails.
21