Exclusionary Rules of otherwise relevant evid.
Rule
404(a)
413415
412
404(b)
405
406
No
rule
407
408
409
411
410
Type of Evid.
Admissibility
Notes
Only in these situation is character evidence admissible to show action in conformity with
Character evid. –
(a) – Evid. is never admiss. to show action in conformity with unless 405(a)
person’s
(a)(1) – character of criminal D if
must be
propensity for a
- trait pertinent to the charge AND
proven
particular trait
- offered by D OR
through
(moral overtones,
- offered by pros. to rebut D’s character evid.
reputation
non-repetitive
(a)(2) – character of vic in criminal case if
or opinion
acts)
- trait pertinent to the charge AND
testimony
- offered by D OR
(but 413 –
- offered by pros. to rebut D’s character evid. - - OR offered by pros.
415
in homicide case to show vic.’s character for peacefulness
proven
(a)(3) – evid. of witness’s character for truthfulness and meets
through
impeachment rules (607-609)
past acts
413-415 – past sexual acts (see the rule below for specifics)
Maybe be curative admissiblility
Similar crimes of
- Only admiss. in criminal case were relevant or civil case of claim
- Must state
D’s past sexual
based on sexual assault or molestation
relevancy
assault or
- sexual assault = nonconsensual contact w/ D or vic’s genitals or
theory and
molestation
deriving sexual pleasure from inflicting pain/death on another
show 104(b)
- molestation = same but w/ vic. under 14 yrs. old
D culpable
Vic’s prior sexual
NEVER ADMISSIBLE except:
Must file
behavior in sexual Offered by D in criminal case to prove:
motion to
offense cases
- someone other than D was source of physical evid. or prior acts
seek admiss.,
sexual acts w/ D to show consent OR
ct. conduct
- would violate D’s constit. rights (impeaching vic. through bias)
hearing in
Offered by D in civil case and bases reverse 403 balancing
camera
Past acts are always admiss. to show something other than character (unless excluded by 403)
Admiss. past acts
404(b) – For purposes other than to prove character
Must state
in gen’l
- essential narrative element (motive, opportunity, preparation)
non-character
- must always
- relevant to state of mind (knowledge, intent, absence of mistake)
purpose (not
show opponent
- relevant to showing identity (modus operendi)
action in
was culpably
conformity
405(a) – Cross examining a reputation/opinion witness to impeach
involved in past
with)
the witness (to show didn’t know D or vic. well)
act
- past act must relate to the trait they testified about
405(b) – To prove an essential element of claim
Habit/Routine
- Must be a morally neutral and regularized activity to be habit rather Giving
than character evid.
receipts =
- Can prove through past acts, opinion but not reputation b/c hearsay\ habit, driving
- If business practice, must be training and checks on the practice
carefully =
character
Similar
3 Categories of admiss evid. to show action of business or agent in
Happenings
conformity with
- Past acts of organization (404(b) doesn’t apply to biz)
Past behavior of an object (404(b) doesn’t apply to objects)
- Past liability of business offered to establish an essential element
(prior violations to show notice – admiss. under 405(b))
Non happenings only admiss if similar conditions/significant number
Specific past acts are not admiss. to prove fault/liability
Subsequent
Inadmiss. to prove fault (but admiss. to prove ownership/feasibility)
If admiss. use,
Remedial
- includes hiring/firing employees, changing behavior/product
it needs to be
Measure
- doesnt include initial steps to determine if remedial measure needed contested
Compromise &
Settlements, settlement negotiations, statements made in negotiations Statements
Offers of Comp.
inadmiss. to prove liability or invalidity of claim (but admiss. to
admiss. to
show bias, knowledge, rebut charge of undue delay)
impeach
- Rule only applies if claim disputed (104(a) question)
- Crime cases can admit statement made in comp. during civil cases
Payment of
Offers to pay for medical/similar expenses inadmiss. to show fault
Rarely needed
Medical Expenses
- Unlike 408, statements made are admiss.
Liability Ins.
Evid. of Ins. not admiss. to prove neg’l (admiss. to show agency,
bias, prejudice)
Withdrawn
Withdrawn pleas and statements made during negotiations inadmiss
Doesn’t apply
Guilty, No contest in civil and criminal cases against the D who made the statement
to statements
pleas, negotiations - statement must be made to prosecuting atty or agent (judged from
outside
D’s reasonable perspective)
negotiations
Exclusionary Rules on otherwise relevant IMPEACHMENT EVID.
Rule
Type of Evid.
Admissibility
Notes
607
Gen’l rule – any pty can impeach any witness (even their own) with relevant evidence
Witness’s character of truthfulness (specifically excluded from 404 and 405 limitations if impeachment purpose)
608(a) Opinion and
- Can impeach a witness w/ evid. opinion or reputation of the
- Can’t be
reputation evid. of witness’s character for UNTRUTHFULNESS (but not whether W1
gen’l
witness’s
is testifying truthfully on this particular occasion
character
character for
- Can bolster witnes’s character of truthfulness if character first
evid
truthfulness
attacked (but just emphasizing strength of testimony is not bolstering
608(b) Past acts by
- Can question witness about own past acts if relevant to truthfulness
FRE only
questioning
(but must have good faith belief and bound by what witness says)
– No
witness on stand
- Can question a witness testifying to the character of another witness attack
about the other witness’s past acts (this is used to show the witness
needed for
testifying isn’t really familiar w/ the other witness’s character)
bolstering
609
Convictions of a
(b) Conviction occurred w/in last 10 yrs. (measured by most recent
Only
crime of witness
date of conviction or release) AND
impeach
(D must testify if
- can occur greater than 10 yrs. ago if reverse 403 met
rule that
using against him) (a)(1) The crime was a felony (punishable >1 yr. prison) OR
allows
- reverse 403 balancing if offered against criminal D testifying
extrinsic
(a)(2) The crime involved having to prove an element of dishonesty
evid.
or false statement
- mandatory to admit if this met, no 403 balancing
Limitations on Prior Inconsistent Statements (not offered for their truth)
613(a) Prior statement
- On request, opponent must be given opportunity to examine
613(b) Extrinsic Evid. of
Extrinsic evid. of the prior statement NOT ADMISS. unless:
These
prior inconsistent
- Witness given opportunity to explain the statement AND
limitations
statements
- Opponent given opportunity to explore statement w/ witness (can
can be
admit prior consistent statement to explain) AND
waived by
- Subject to 403 balancing (lower prob. V if statement uncontested or ct.
collateral, high risk could be used for truth if prejudicial)
- collateral = not relevant for any purpose other than to impeach
Other Admiss. Impeachment Devices
401 Bias
Admiss. to ask about witness’s specific partiality or hostility to pty
403
- Extrinsic evid. admiss. if: witness denies bias (must articulate why
shows bias rather than character)
- bais = specific corrupt intent for pty or cause, character = gen’l
corrupt character
Mental/Sensory
Admiss. to introduce evid. of how well witness sees, hears,
Incapacity
remembers
Contradiction
Admiss. to ask on cross exam to show witness wrong about one thing
could be wrong about others
- Extrinsic evid. admiss unless collateral matter (test – evid. relevant
to show something other than mere contradiction)
Limits on opinion testimony
Lay Opinions
Rule
701
Type of Evid.
Lay opinions
702
Expert Opinions
admiss if:
703,
705
Basis for expert
opinion
Admissibility
Admiss. if rationally based on their perceptions and helpful to jury
- excluded only if too conclusory or not based on sensory perception
Expert Opinions
Based on scientific technical, specialized knowledge
- helpful to jury b/c not kind of knowledge they posses AND
- must be reliable: testing, peer review, known rates of error, gen’l
acceptance in the field (Daubert/Frye)
- expert has experience/training in field (no book knowledge needed)
703 – Expert can base on inadmiss. evid. if type reasonably relied on
705 – Expert may be required to disclose basis for opinion on cross
Possible resolutions to the conflict of inadmiss. evid. getting b/f jury:
- don’t let jury hear (no good b/c 705)
- limit type of evid. expert can rely on (no good b/c 703)
- anything goes (Kuhns likes b/c 702, 703, 403 still impose some limits
- limiting instruction to jury (this is way ct.’s are moving
Notes
Common
sense test
- 104(a)
question
- Judge
has wide
discretion
Foundation Requirements
Foundation for witness
Rule
601
Type of Evid.
Competency
602
603
Personal
knowledge
Oath
901(a)
Standard
901(b)
Real Evid (played
a role in the
litigated event)
Demonstrative
exhibits (depict
persons, objects,
scenes)
Recordings
Written docs
Business docs
Computerized
data retrieval
Public Records
Ancient Docs
Electronic
writings
902
Docs so likely to
be auth. no
foundation needed
1002
Originals
(Definitions are
from 1001)
1003 1006
Exceptions
1008
Fact Finding
Rule
104(a)
104(b)
Admissibility
Standard
Everyone competent to testify. Judge may still exclude under:
104(a)
- 603 if witness incompetent to understand oath
- 601 judge retains discretion to disqualify an incompetent witness
Proponent must prove that witness has personal (first hand
104(b)
knowledge) of the matter to which testifying
All witness must take oath to testify truthfully
Physical Objects/Exhibit Foundation
Authentification required b/f admiss.
Judge decides using 104(b) standard
(b)(1) Witness who recognizes item b/c of distinctive characteristics
(b)(4) Chain of custody through a readily identifiable characteristic (tag, label, ext.)
- complete chain of custody (testimony of all ppl. who handled) not always needed to
satisfy 104(b) so long as jury can reasonable infer
- chain of custody can also shows unchanged condition of item
Authenticated by person who created it (must testify to accuracy)
- has to be helpful to jury in understanding evid. it supports
- must est. similarity to actual event (re-enactments) or predictability (for comp.
simulations)
- Authenticated by percipient witness who was there at actual event
- If no percipient witness (x-rays) by proof of reliability/chain of cust
403 dangers: unfair prejudice if gruesome, misleading if overestimate prob.
V/similiarities, confusion of issues if distraction
Testimony that identifies author of source. Specific ways to do that:
- (b)(1) observation of the act of signing
- (b)(2) familiarity w/ handwriting
- (b)(3) jury or expert can compare signatures w/ already authenticated doc
- (b)(4) distinctive contents or circumstances which it was found
(b)(4) matching letterhead, testimony about routine business practices in generating
such records, testimony by custodian about how file was retrieved and from where
(b)(4) same as above AND must show
(b)(9) computerized system produces accurate results
(b)(7) custodian testimony or certificate of authenticity that record from pub. office
(b)(8) doc 20+ yrs. old and in place where likely be if authentic
No specific rule – look to analogy of other rules
- emails, internet postings: content or reply function
- reply ltr doctrine: reply to your emails/phone call is proof of addressee authorship
Self Authenticating Docs
Brightline categories that are self authenticating
Includes: Public docs/records, certified docs/records, congressional acts, official
publications, newspapers, commercial papers business inscriptions,
Best Evidence Rule
Original of any writing, recording is required to prove its content only
- writing, recording (very broad) = letters, words, numbers, equivalent (ex. letters,
photos, videos, drawings, data compilations, , x-ray, ect)
- original = anything intended to have same effect (carbon copy, negatives,
printouts, photo prints)
- Duplicates can be used unless authenticity disputed or duplicate incomplete
(anything that accurately reproduces original – includes photos of original)
- Secondary evid. used if original lost, unobtainable, or in possession of opponent
- Summary/chart used if evid. voluminous but must make originals available
104(a) is standard. 104(b) only if: issue whether a writing ever existed, dispute
whether doc. is original, whether secondary evid. correctly reflects original
Fact Finding
When applied
Judge decides most preliminary questions
- can consider inamiss. evid in making determination
- opponent can still admit counter evid. to reduce prob. V/credibility
ex. almost all foundational facts including hearsay
Judge screens then submits to jury to ultimately decide
- only used if relevancy based on a disputed fact
- judge may only consider evid. admiss. to jury ( but not credibility)
ex.: identification, basis for expert opinion, whether D culpably involved
in prior act
Standard
Preponderance of evid.
“sufficient” for reasonable
jury to support finding
(lower)
- only consider proponent’s
evid. to see if standard met
Types of Evidence
Rule
402
Language
All relevant evid. admiss.
unless barred by constit.,
congress, FRE
403
Discretion o exclude
relevant evid. b/c might
distract jury
Limiting instruction
105
Danger
Unfair Prejudice
Confusion of Issues
Misleading Jury
Undue delay, Waste of
Time, Cumulative evid.
Factors that lower or
increase Probative value
Rule
301
Purpose
When appeal
is appropriate
FRE
Inadmiss.
evidence
611
Ct. controls
mode of
interrogation
(form)
401 – 403 Relevancy Rules
Direct – belief evid. is what it claims to be is only inference needed to
connect to element of case
Circumstantial – chain of inferences is needed to connect evid. to case
Res Gestae – background evid. that helps jury understand case
Test
401 – evid. that has “any tendency” to make a fact of consequence to the
case more or less probable
- must be able to connect through inferential steps
- very low standard
Balancing test – danger must “substantially outweigh” probative value (if
probative value high, danger will never outweigh)
- FAVORS ADMISSIBILITY
Ct. can limit manner in which jury can use evid. (gets around 403 and
other dangers when evid. relevant for more than one purpose)
403 Exclusionary Rule Expansion
Examples
- Triggering an emotional response unrelated to FOC (“bad person” prejudice)
- Evid. used in impermissible manner, impermissible inference
- Focusing jury att’n on collateral issue/away from main issue
- Risk of drawing mistaken inference (facts taken out of context)
- Risk jury will give evid. more weight than it deserves (e.g, lie decector) (but be
careful b/c suggest jury not smart)
- Offered to prove stipulated or background evid. (Old Chief – prosecutor entitled to
narrative richness, not have to accept stipulation unless relates to D’s “status”)
- Repetitive testimony (but may be necessary if point disputed)
- Strength of underlying inference (more inferences does not mean lower prob. V)
- Certainty of the evidence (includes witness uncertainty, ambiguity of doc, BUT
NOT take into account witness credibility – job for jury)
- Need (how much evid. is disputed, alternatives ways of proving)
Objections/Appeal
Process
(a) – substantial right affected AND
- (1) if evid. admitted opponent must make timely objection and grounds on the
record (must make objection b/f question is answer, motion to strike after answered)
- (2) if evid. excluded, proponent must make offer of proof given on the record (what
evid. is and theory of admissibility
(d) – plain error (no objection need be made)
Types of objections
Must state basic reason from objection if not clear from context (“objection, hearsay)
- if get it wrong, not specific enough-judge can overrule and won’t preserve for
appeal
(b) scope of cross examination – limited to subject matter of direct exam unless ct.
uses discretion to expand
(c) leading questions – should only be used on cross exam or w/ hostile witness
Others – argumentative, vague/ambiguous, mischaracterizes evid., calls for narrative
response, asked and answered, assumes facts not in evidence
Curative Admissibility – Permits pty to introduce otherwise inadmiss. evid. in response to opponent’s introduction or
attempted introduction of inadmiss. evid. if:
- opponent’s evid. is particularly prejudicial
- timely object. to opponent’s evid. unlikely to correct unfairness