Pavel Wonsowicz, Evidence: A Context and Practice Casebook (3rd edition 2022; ISBN 978-1-5310-2265-5)
Relevance (see flowchart on p52)
FRE 401. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.”
FRE 403. “The court may exclude relevant evidence if its probative value is substantially out-weighed 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.”
Balancing Test: probative value vs. unfair prejudice (FRE 403)
Specialized Evidence Rules:
FRE 407: Subsequent remedial measures
Measures which would have made an earlier harm less likely.
Only applies to remedial measures taken after the event that caused injury/harm
Not useable to prove: negligence, culpable conduct, defect in product or design, need for warning/instruction
Useable for impeachment or to prove ownership, control, or feasability of precautionary measures
FRE 408: Compromise offers
Not permitted to prove validity or amount of disputed claim or to impeach.
May be admitted to prove a witness’s bias or prejudice, an effort to obstruct a criminal investigation or prosecution, or
to negate a contention of undue delay.
FRE 409: Offers to pay medical costs
Not admissible to prove liability for the injury
Any other statements made in connection are admissible: e.g. “I’m so sorry I hit you, let me pay your medical bill”
FRE 410: Withdrawn pleas and statements in plea talks
Inadmissible: withdrawn guilty plea, nolo contendere plea, any statement made during proceeding on those pleas, or
statement made during plea discussions if they did not result in a guilty plea or guilty plea was later withdrawn
Exceptions: if another statement from the plea discussions has been admitted and in fairness both should be considered
together, or in a criminal proceeding for perjury or false statement if defendant made the statement under oath, on the
record, nd with counsel present
FRE 411: Liability insurance
Evidence that a person was or was not insured is not admissible to prove/disprove negligence or wrongful action
May be admitted for another purpose: e.g. proving witness’s bias or prejudice, proving agency/ownership/control
Character Evidence (p139)
FRE 404(a)(1) “Evidence of a person’s character or character trait is not admissible to prove that on a particular occaision
the person acted in accordance with the character or trait.”
FRE 404(b)(1) “Evidence of another crime, wrong, or act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character.”
FRE 404(b)(2) “The evidence may be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
FRE 404(b)(3) “In a criminal case, the prosecutor must: (A) provide reasonable notice of any such evidence . . . (B)
articulate in the notice the permitted purpose . . . and (C) do so in writing before trial - or in any form during trial if the
court, for good cause, excuses lack of pretrial notice.”
Criminal Exceptions:
FRE 404(a)(2)(A) “a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it.”
FRE 404(a)(2)(B) “. . . a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted,
the prosecutor may: (I) offer evidence to rebut it; and (ii) offer evidence of the defendant’s same trait”
FRE 404(a)(2)(C) “in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to
rebut evidence that the victim was the first aggressor.”
Sex Crime Exceptions:
FRE 413 “In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the
defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.”
Prosecutor must disclose to defendant at least 15 days before trial.
FRE 414 “In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the
defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.”
Prosecutor must disclose to defendant at least 15 days before trial.
FRE 415 “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. The evidence may be
considered as provided in Rules 413 and 414.”
Party offering evidence must disclose to opposing party at least 15 days before trial.
Methods of Proving Character:
FRE 405 (a) “When evidence of a person’s character or character traits is admissible, it may be proved by testimony about
the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court
may allow an inquiry into relevant specific instances of the person’s conduct.”
FRE 405(b) “When a person’s character or character trait is an essential element of a charge, claim, or defense, the character
or trait may also be proved by relevant specific instances of the person’s conduct.”
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. The court may admit this
evidence regardless of whether it is corroborated or whether there was an eyewitness.”
e.g. always putting on a seatbelt
Requires a large sample; two or three instances probably does not prove habit
Impeachment
Two basic approaches: impeach specific testimony or impeach general trustworthiness
Specific Testimony
Inconsistency with prior statement from same witness (self-contradiction)
Contradict with extrinsic evidence
General Trustworthiness
Bias
Defect (mental or sensory)
Character
FRE 404(a)(3) “Evidence of a witness’s character may be admitted under Rules 607, 608, 609.”
FRE 607 “Any party, including the party that called the witness, may attack the witness’s credibility.”
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.”
FRE 608(b) “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. But the court may,
on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or
untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified
about.”
FRE 609 “(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a
criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year,
the evidence:
(A) 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
(B) 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; and
(2) 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.”
If the later of conviction or release from prison was more than 10 years ago, the evidence is admissible only if the
probative value substantially outweigh prejudicial effect AND reasonable written notice is given to witness.
Evidence of conviction is not admissible if subject to pardon, annulment, etc. based on a finding of innocence.
Evidence of conviction is not admissible if subject to pardon, annulment, etc. based on rehabilitation and person has not
been convicted of a later crime punishable by more than one year of imprisonment.
Exceptions for juvenile adjudications (609(d))
Pending appeal does not affect admissibility.
FRE 412(a) “The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual
misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove
a victim’s sexual predisposition.”
FRE 412(b)(1) “The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a
victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or
other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior with respect to the person
accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C)
evidence whose exclusion would violate the defendant’s constitutional rights.”
FRE 412(b)(2) “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. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.”
FRE 412(c) Procedure to Determine Admissibility
Hearsay (p271)
FRE 801(c) “‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”
FRE 801(d) “A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior
statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other
proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper
influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or
scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).”
Adoption by inaction or silence FRE 801(d)(2)(B): (p313)
The party heard and understood the statement
The circumstances naturally called for a reply
The party had the opportunity to deny the statement; and
The party either remained silent or made an evasive or equivocal reply.
FRE 805 “Hearsay within hearsay is not excluded by the rule against hearsay is each part of the combined statements
conforms with an exception to the rule.”
FRE 807: A hearsay declarant is a witness who can be impeached (p411)
Exceptions:
FRE 803: Exceptions Regardless of Whether the Declarant is Available as a Witness (p333)
FRE 804: Exception When the Declarant is Unavailable as a Witness (p377)
FRE 807: Residual Exception
General exception for evidence not covered under 803 or 804.
FRE 612: Writing Used to Refresh a Witness’s Memory
Confrontation Clause (p413) (Flowchart on p477)
"[I]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.” (VI
Amendment)
Criminal cases only.
Only applies to evidence offered against defendant.
Summary on p475 (Flowchart on p477)
1. Is the statement testimonial?
Police interrogations: addressing ongoing emergency vs investigation
2. If yes: Is the declarant available for cross-examination?
3. If no: Did the defendant have a prior opportunity for cross-examination?
Lay and Expert Opinion (p513)
FRE 701 “If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
FRE 702 “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
FRE 704: An expert opinion may “embrace an ultimate issue”
Exception: In a criminal case an expert may not state an opinion about whether defendant did or did not have a mental
state that constitutes an element of the crime or defense.
FRE 703: An expert opinion may be based on facts or data. If the facts/data would otherwise be inadmissible then the expert
may only disclose them if the probative value outweighs the prejudicial effect.
Facts may be: (1) within expert’s personal knowledge, (2) presented to expert at trial, (3) presented to expert outside
court.
FRE 705: An expert may give an opinion without disclosing the underlying facts or data, but may be required to disclose
them on cross-examination.
Test: (?) (p544)
1. Expert based opinion on sufficient facts or data
2. Opinion grounded in reliable principles and methods
3. Expert must apply principles and methods to facts of the case in a reliable manner
Daubert (1993) (p545)
Factors (p559)
Technique or theory can be (and has been) tested
Technique or theory has been subjected to peer review and publication
Known or potential error rate of technique or theory
General acceptance of technique or theory within relevant scientific community