LOGICAL RELEVANCE AND LEGAL RELEVANCE.
Relevant evidence is admissible UNLESS any of the following provides otherwise:



The United States Constitution;
A federal statute (including the Federal Rules of Evidence); OR
Other rules prescribed by the Supreme Court.
Irrelevant evidence is NOT admissible.
Fed. R. Evid. 402.
In other words, relevance is the first hurdle that any evidence must get over to be admitted into court.
Logical Relevance (FRE 401)
Under Rule 401, evidence is relevant if:
1. It has any tendency to make a fact more or less probable than it would be without the evidence
(i.e., the evidence is probative); AND
2. The fact is of consequence in determining the action (i.e., the evidence is material).
Fed. R. Evid. 401.
Legal Relevance (FRE 403)
Under Rule 403, the court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following:






Unfair prejudice;
Confusing the issues;
Misleading the jury;
Undue delay;
Wasting time; OR
Needlessly presenting cumulative evidence.
Fed. R. Evid. 403.
CHARACTER EVIDENCE.
Character evidence is generalized information regarding a person’s behavior (e.g., “I think he is a violent
person”).
Methods of Proving Character (FRE 405)
Generally, there are two methods of proving character:
1


By reputation or opinion; OR
o (e.g., “He has a violent reputation in our community.”)
o (e.g., “Having known him for 10 years, in my opinion, I think he is violent.”)
By specific instances of conduct.
o (e.g., “I think he is violent, because I saw him get into a bar fight last week.”)
Fed. R. Evid. 405.
Character Evidence Offered to Show Propensity in Civil Cases
In a civil case, character evidence is NOT admissible for propensity purposes (to prove that on a
particular occasion the person acted in accordance with the alleged character or alleged character
trait), UNLESS:


Character is an essential element of the claim or defense; OR
o If character is an essential element of a claim or defense, it may be shown by
reputation/opinion testimony OR specific instances of conduct. Fed. R. Evid. 405.
The case involves a claim for relief based on the defendant’s alleged sexual assault or child
molestation.
o In a civil case involving a claim for relief based on a party’s alleged sexual assault or child
molestation, the court may admit evidence that the party committed any other sexual
assault or child molestation. Fed. R. Evid. 415.
Evidence of the Victim’s Character in Sexual Misconduct Civil Cases
In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual
predisposition if its probative value substantially outweighs the danger of harm to any victim and of
unfair prejudice to any party (reverse 403 balancing test). The court may admit evidence of a victim’s
reputation only if the victim has placed it in controversy. Fed. R. Evid. 412.
Character Evidence Offered to Show Propensity in Criminal Cases
In a criminal case, the prosecution CANNOT introduce evidence of a defendant’s negative character to
prove that the defendant had the propensity to commit the crime in question. Fed. R. Evid. 404.
However, the defendant may “open the door” and present positive character evidence so long as it is:
1. Pertinent to the crime charged; AND
2. Through reputation/opinion testimony (NOT specific instances of conduct).
Fed. R. Evid. 404(a)(2)(A).
If the defendant opens the door by presenting evidence of positive character, the prosecution may then
introduce negative character evidence, so long as it relates to the same character trait in question, to
rebut the defendant in two different ways:

The prosecution can call its own character witness; OR
2
If the prosecution calls its own character witness, the witness is limited to
reputation/opinion testimony (NOT specific instances of conduct).
The prosecution can cross-examine the defendant’s character witness.
o On cross-examination, the prosecution can introduce evidence of specific instances of
conduct so long as it relates to the same character trait in question. Fed. R. Evid. 405.
o

Fed. R. Evid. 404(a)(2)(A).
Evidence of the Victim’s Character in Criminal Cases
A criminal defendant may introduce reputation/opinion testimony of the victim’s character if it is
relevant to one of the defenses asserted.
If the defendant does so, the prosecution may rebut by presenting evidence that:


The defendant possesses the same character trait; OR
The victim possesses a relevant positive character trait.
o If this is done on cross-examination, the prosecution may introduce specific instances of
conduct to rebut.
in a homicide case, the prosecution may offer evidence of the alleged victim’s trait of peacefulness to
rebut ANY evidence that the victim was the first aggressor. Fed. R. Evid. 404(a)(2)(C).
In a criminal case involving sexual misconduct, evidence offered to prove a victim’s sexual behavior or
predisposition is NOT admissible UNLESS:



Evidence of specific instances of a victim’s sexual behavior is offered to prove that someone other
than the defendant was the source of semen, injury, or other physical evidence;
Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of
the sexual misconduct is offered by the defendant to prove consent or if offered by the
prosecutor; OR
The defendant’s constitutional rights would be violated if the evidence was excluded.
Fed. R. Evid. 412(b)(1)(A)-(C).
Non-Propensity Evidence (M.I.M.I.C.)
Specific instances of conduct are generally not admissible to show propensity, but may be admissible for
non-propensity purposes, which includes but is not limited to “M.I.M.I.C.”:





Motive or opportunity;
Intent;
Absence of mistake;
Identity; OR
A common plan or preparation.
Specific instances of conduct are admissible for non-propensity purposes if:
3


There is sufficient evidence to support a jury finding that the defendant committed the prior act
(i.e., cannot “fish” for prior acts without proof); AND
The probabtive value is NOT substantially outweighed by the danger of unfair prejudice.
Habit and Routine Practice Distinguished (FRE 406)
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a
particular occasion the person or organization acted in accordance with the habit or routine
practice. Fed. R. Evid. 406.



Character is a generalized description of one’s disposition, or of one’s disposition in respect to a
general trait. (e.g., honesty, temperance, peacefulness, etc.).
Habit is more specific. It describes one’s regular response to a repeated specific situation (e.g.,
“every time he gets into his car, he puts on his seat belt.”). Routine practice refers to systematic
practices of an organization or group (e.g., “His business files and stores a purchase order receipt
every time they make a purchase.”)
“ALWAYS’ OR “EVERYTIME” USUALLY INDICATOR IT IS A HABIT OR ROUTINE, NOT CHARACTER
EVIDENCE. Under 406.
Exclusions of Relevant Evidence for Public Policy
Reasons (FRE 407-411)
Subsequent Remedial Measures (FRE 407)
When measures are taken that would have made an earlier 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 or its design; or
A need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed —
proving ownership, control, or the feasibility of precautionary measures.
Fed. R. Evid. 407.
Compromise Offers and Negotiations (FRE 408)
Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the
validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a
contradiction:
1. Furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a
valuable consideration in compromising or attempting to compromise the claim; AND
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2. Conduct or a statement made during compromise negotiations about the claim — except when
offered in a criminal case and when the negotiations related to a claim by a public office in the
exercise of its regulatory, investigative, or enforcement authority.
The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice,
negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or
prosecution.
Fed. R. Evid. 408.
Offers to Pay Medical and Similar Expenses (FRE 409)
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the injury. Fed. R. Evid. 409.
Contrary to Rule 408, dealing with offers of compromise, Rule 409 does not extend to conduct or
statements not a part of the act of furnishing or offering or promising to pay (i.e., admissions of fact that
accompany an offer to pay medical expenses are generally admissible to prove liability for the injury).
Pleas, Plea Discussions, and Related Statements (FRE 410)
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the
plea or participated in the plea discussions:




A guilty plea that was later withdrawn;
A nolo contendere plea (i.e., pleas of no contest);
A statement made during a proceeding on either of those pleas under Federal Rues of Criminal
Procedure 11 or a comparable state procedure; OR
A statement made during plea discussions with an attorney for the prosecuting authority if the
discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
The court may admit the statements described above:


In any proceeding in which another statement made during the same plea or plea discussions has
been introduced, if in fairness the statements ought to be considered together; OR
In a criminal proceeding for perjury or false statement, if the defendant made the statement under
oath, on the record, and with counsel present.
Fed. R. Evid. 410.
Liability Insurance (FRE 411)
Evidence that a person was or was not insured against liability is not admissible to prove whether the
person acted negligently or otherwise wrongfully. But the court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. Fed. R.
Evid. 411.
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Witnesses and Testimonial Evidence
Competency to Testify in General (FRE 601)
Every person is competent to be a witness unless the Federal Rules of Evidence provide otherwise. But in
a civil case, state law governs the witness’s competency regarding a claim or defense for which state law
supplies the rule of decision. Fed. R. Evid. 601.
Generally, questions of mental competence go to the weight of the evidence (jury finding) rather than the
admissibility of the evidence.
Need for Personal Knowledge (FRE 602)
A non-expert witness may testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may
consist of the witness’s own testimony. This rule does not apply to an expert witness’s testimony under
Rule 703. Fed. R. Evid. 602.
Oath or Affirmation to Testify Truthfully (FRE 603)
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form
designed to impress that duty on the witness’s conscience. Fed. R. Evid. 603.
Interpreters (FRE 604)
An interpreter must be qualified and must give an oath or affirmation to make a true translation. Fed. R.
Evid. 604.
Judge as Witness (FRE 605)
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the
issue. Fed. R. Evid. 605.
Juror as Witness (FRE 606)
At Trial
A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the
court must give a party an opportunity to object outside the jury’s presence. Fed. R. Evid. 606(a).
After Trial
During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement
made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or
6
another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may
not receive a juror’s affidavit or evidence of a juror’s statement on these matters. Fed. R. Evid. 606(b)(1).
However, a juror may testify about whether:



Extraneous prejudicial information was improperly brought to the jury’s attention;
An outside influence was improperly brought to bear on any juror; OR
A mistake was made in entering the verdict on the verdict form.
Fed. R. Evid. 606(b)(2).
Impeachment (FRE 607-609, 611, 613)
Who May Impeach a Witness (FRE 607)
Any party, including the party that called the witness, may attack the witness’s credibility.
Fed. R. Evid. 607.
Extrinsic Evidence and Laying a Proper Foundation
A witness may be impeached by either:


Examination (usually cross-examination); OR
o This method involves eliciting facts directly from the witness that discredit his own
testimony.
Extrinsic Evidence
o This method involves putting forth evidence from any other source than the witness being
impeached (usually calling other witnesses) to discredit his testimony.
Certain grounds for impeachment require that a proper FOUNDATION be laid during examination of the
witness before extrinsic evidence can be introduced to attack his credibility. Other grounds for
impeachment bar the use of extrinsic evidence entirely for impeachment purposes.
Bias (United States v. Abel)
A party may impeach a witness by presenting evidence that the witness is biased. There are two main
categories of bias — when:


The witness has a favorable or hostile relationship with a party to the action; AND/OR
The witness has a stake in the outcome of the action (usually financial).
7
Most jurisdictions require that a foundation be laid on cross-examination before extrinsic evidence of
bias is admissible (i.e., the examiner must question the witness about his alleged bias to be permitted to
present evidence of the bias from another source.)
Sensory Defects
A party may impeach a witness by presenting evidence that the witness is unable to observe, recall, or
relate information effectively (e.g., blurry vision, memory loss, a loud construction project temporarily
impaired the witness’s ability to hear, etc.).
Extrinsic evidence of sensory defects is generally admissible (even without laying a foundation) subject
to a FRE 403 balancing test.
Prior Inconsistent Statements (FRE 613)
A party may impeach a witness by presenting evidence that the witness made prior statements that are
inconsistent with his present testimony.
When examining a witness about the witness’s prior statement, a party need not show it or disclose its
contents to the witness. But the party must, on request, show it or disclose its contents to an adverse
party’s attorney. Fed. R. Evid. 613(a).
Generally, extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness
is given an opportunity to explain or deny the statement (BEFORE or AFTER the prior inconsistent
statement is admitted) and an adverse party is given an opportunity to examine the witness about it, or if
justice so requires.
However, this does not apply:


When the prior inconsistent statement impeaches a hearsay declarant; OR
To an opposing party’s statement under Rule 801(d)(2).
Fed. R. Evid. 613(b).
Untruthful Character (FRE 608-609)
Reputation/Opinion Testimony (FRE 608(a))
A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for
having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about
that character. But evidence of truthful character is admissible only after the witness’s character for
truthfulness has been attacked.
Fed. R. Evid. 608(a).
Specific Instances of Conduct (FRE 608(b))
8
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific
instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.
However, specific instances of conduct may be admissible if:
1. The evidence is introduced on cross-examination;
2. The conduct is probative of the character for truthfulness or untruthfulness; AND
3. A good faith basis for the inquiry exists.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for
testimony that relates only to the witness’s character for truthfulness.
Fed. R. Evid. 608(b).
Criminal Convictions (FRE 609)
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal
conviction:


For ANY crime regardless of the punishment, the evidence must be admitted if the court can
readily determine that establishing the elements of the crime required proving — or the witness’s
admitting — a dishonest act or false statement.
For a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment
for more than one year, the evidence:
1. Must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the
witness is NOT a defendant; AND
2. Must be admitted in a criminal case in which the witness is a defendant, if the probative
value of the evidence outweighs its prejudicial effect to that defendant.
 This test adds more protection for the criminal defendant than a standard 403
balancing test.
Fed. R. Evid. 608(a).
HOWEVER, if more than 10 years have passed since the witness’s conviction or release from
confinement for it (whichever is later), evidence of the conviction is admissible only if:
1. The probative value of the criminal conviction, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect (reverse 403 balancing test); AND
2. The proponent gives an adverse party reasonable written notice of the intent to use it so that the
party has a fair opportunity to contest its use.
Fed. R. Evid. 609(b).
ALSO, evidence of a criminal conviction is NOT admissible if:

The conviction has been the subject of a pardon, annulment, certificate of rehabilitation,
or other equivalent procedure based on a finding that the person has been rehabilitated, and the
person has not been convicted of a later crime punishable by death or by imprisonment for more
than one year; OR
9

The conviction has been the subject of a pardon, annulment,
or other equivalent procedure based on a finding of innocence.
Fed. R. Evid. 609(c).
Evidence of a juvenile adjudication is admissible only if:
1.
2.
3.
4.
It is offered in a criminal case;
The adjudication was of a witness other than the defendant;
An adult’s conviction for that offense would be admissible to attack the adult’s credibility; AND
Admitting the evidence is necessary to fairly determine guilt or innocence.
Fed. R. Evid. 609(d).
A conviction that satisfies FRE 609 is admissible even if an appeal is pending. Evidence of the pendency
is also admissible.
Fed. R. Evid. 609(e).
Opinion Testimony: Lay Witnesses and Expert
Witnesses (FRE 701-706)
Opinion Testimony by Lay Witnesses (FRE 701)
If a witness is NOT testifying as an expert, testimony in the form of an opinion is limited to one that is:
1. Rationally based on the witness’s perception;
o Firsthand Knowledge Rule: A witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.
This rule does not apply to a witness’s expert testimony under Rule 703. Fed. R. Evid. 602.
 In many cases, the firsthand knowledge rule and hearsay rule overlap. For example,
if a witness’s testimony that the defendant committed murder is based only on the
statement of another person, both rules are violated. The witness has no personal
knowledge of the murder and is merely repeating the out-of-court declarant’s
statement (violates Rule 801).
 However, a different result is reached when the witness has personal knowledge of
the making of an admissible out-of-court statement. While Rule 602 would prevent
the witness from testifying to the subject matter of the statement (the witness has
no personal knowledge of the subject matter), the witness could testify to hearing
the statement so long as the out-of-court statement is not inadmissible hearsay.
 E.g., A witness personally hears a defendant confess to committing murder
out of court. The witness can only testify to the confession itself — not the
subject matter of the murder — because the witness only has personal
10
knowledge of the confession. The out-of-court statement is not hearsay,
because it is a statement of a party opponent under Rule 801(d)(2).
2. Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; AND
3. Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
o Generally admissible opinions of lay witnesses that are not based on scientific, technical, or
other specialized knowledge include:
 General condition or appearance of a person (e.g., “he appeared sick”)
 State of emotion (e.g., “he seemed sad”)
 Matters involving sense recognition (e.g., “he smelled of alcohol”)
 Voice identification under FRE 901(b)(5) (e.g., “I think that is Johnny’s voice”)
 Handwriting identification under FRE 901(b)(2) (e.g., “that looks like Johnny’s
handwriting”)
 Speed of a moving object (e.g., “the car was traveling no more than 20 mph”)
 Value of own services (e.g., “I would charge around $500 for that project”)
 Rationality of another’s conduct (e.g., “he was acting bizarre”)
Fed. R. Evid. 701.
It is best to view Rule 701 as a rule of preference as to the form of opinion testimony by lay witnesses
more so than a rule of exclusion. Primary sensory impressions are preferred to opinions, conclusions, or
inferences. Exclusion is usually only implemented to bring forth more concrete testimony when possible
to do so.
Opinion Testimony by Expert Witnesses (FRE 702)
An expert may testify in the form of opinion or otherwise if:
1. The witness is qualified by possessing sufficient knowledge, skill, experience, training, or
education;
2. The witness’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
3. The testimony is based on sufficient facts or data;
o An expert may base an opinion on facts or data in the case that the expert has been made
aware of OR personally observed. If experts in the particular field would reasonably rely on
those kinds of facts or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially outweighs their
prejudicial effect. Fed. R. Evid. 703.
o Unless the court orders otherwise, an expert may state an opinion — and give the reasons
for it — without first testifying to the underlying facts or data. But the expert may be
required to disclose those facts or data on cross-examination. Fed. R. Evid. 705.
4. The testimony is the product of reliable principles and methods; AND
o Rule 702 has been amended in response to Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), and to the many cases applying Daubert, including Kumho Tire Co.
v. Carmichael, 119 S.Ct. 1167 (1999).
o Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability
of scientific expert testimony. The specific factors explicated by the Daubert Court are:
 Whether the expert’s technique or theory can be or has been tested—that is,
whether the expert’s theory can be challenged in some objective sense, or whether it
11
is instead simply a subjective, conclusory approach that cannot reasonably be
assessed for reliability;
 Whether the technique or theory has been subject to peer review and publication;
 The known or potential rate of error of the technique or theory when applied;
 The existence and maintenance of standards and controls; AND
 Whether the technique or theory has been generally accepted in the scientific
community.
o The Court in Kumho held that these factors might also be applicable in assessing the
reliability of nonscientific expert testimony, depending upon “the particular circumstances
of the particular case at issue.” 119 S.Ct. at 1175.
5. The expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
Court-Appointed Expert Witnesses (FRE 706)
On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses
should not be appointed and may ask the parties to submit nominations. The court may appoint any
expert that the parties agree on and any of its own choosing. But the court may only appoint someone
who consents to act. Fed. R. Evid. 706(a).
The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy
filed with the clerk or may do so orally at a conference in which the parties have an opportunity to
participate. Fed. R. Evid. 706(b).
The expert:
1.
2.
3.
4.
Must advise the parties of any findings the expert makes;
May be deposed by any party;
May be called to testify by the court or any party; and
May be cross-examined by any party, including the party that called the expert.
Fed. R. Evid. 706(b).
The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as
follows:


In a criminal case or in a civil case involving just compensation under the Fifth Amendment, from
any funds that are provided by law; and
In any other civil case, by the parties in the proportion and at the time that the court directs —
and the compensation is then charged like other costs.
Fed. R. Evid. 706(c).
The court may authorize disclosure to the jury that the court appointed the expert. Fed. R. Evid. 706(d).
Rule 706 does not limit a party in calling its own experts. Fed. R. Evid. 706(e).
12