RELEVANCE RULES
1. Direct, Cross-Examination, Objections and Preliminary Determinations
1) First-hand Knowledge Rule – once determined competent (FRE 606- competence is governed by state law; 606(a) – jurors aren’t allowed to testify), a witness must have first-hand knowledge in order to testify:
· 611(a) (Mode/Order of Interrogation) – Judge has discretion as to how interrogation takes place in his/her courtroom.
o During DX, leading questions are inadmissible b/c they tell W what to say. However, during CX LQs are okay.
o 611(c) – LQs are admissible during DX towards hostile parties, witness is identified with the adverse party, and adverse parties.
· 701 (Lay Witness Opinion) – can give opinion testimony but (a) must limited to rational perception (personal knowledge) of witness and (b) must help the trier of fact in understanding the witness’s testimony, otherwise it will be inadmissible. (Example: admissible to say the witness can identify the defendant at trial and he robbed the bank; inadmissible to say it was your opinion to think car was speeding because it crashed, even when you didn’t really see it.)
o W doesn’t have to perfect, but must aid the tier of fact in determining a fact of issue.
o Ex) W can’t testify to D being drunk, however, in PK of such circumstances, he/she may formulate a lay opinion and infer (not conclude) that D was drunk.
Note: 105 (Limited Admissibility) – When evidence which is admissible as to one party but inadmissible to the other, the court upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. This may dangerous, however, as juries misuse evidence and overestimate or underestimate the PV of such evidence.
Note: 602 (Lack of Personal Knowledge) – W can’t testify unless he/she has PK. W may only testify to what he /she heard, saw, or otherwise perceived, but not scientific knowledge. FRE 602 is subject to FRE 703 (Expert Opinion).
There are two exceptions to this (see more below in its own section):
· 702 (Determining a witness is an expert) – If the implications of facts in the evidence can’t be understood w/o scientific, technical, or special knowledge, experts are allowed to tell the jury how the facts should be interpreted.
· 703 (Expert Witness Testimony) – Expert W is admissible if it may help the trier in fact.
2) Preliminary Determinations:
· 104(a) – Preliminary Hearing – judge makes decisions as to whether evidence is admissible or not in his/her court, whether privilege exists, and what the qualifications of the witness are. (Example: may want to argue act was in furtherance of conspiracy, but must make 104 determination first to see if conspiracy existed.) Rule is subject to FRE 104(b). Questions of admissibility/quality of evidence are for the court to decide.
Exception:
· 104(b) – Conditional Relevance – this occurs when you want to introduce testimony that is not relevant but is relevant to prove testimony you connect it to. If you do not wind up connecting the evidence, judge will give instruction to disregard (limiting instruction) to the jury. (Example: want to use testimony B, which is not relevant, but is relevant to connect to A to show how A occurred.)
o Ex) A + B. A, in conjunction w/ B, is relevant evidence. Judge may permit A under 104(b) b/c A is conditionally relevant on B. If A conditioned on B’s admissibility and it B isn’t admissible, then A must be stricken.
3) Cross-Examination – on CX, you are limited to the scope of direct examination. You may use leading questions. Once re-direct, you are limited to cross, and on re-cross you are limited t
ret Matrix
· Jury feels less guilty sending a an ex-criminal/bad person to jail for a crime that they didn’t do rather than misusing evidence or analyzing the facts presented to them without any bias.
4. Subsequent Remedial Measures – FRE 407
-Subsequent remedial measures – a) measures that are taken, b) after the harm had occurred, c) that would have made the harm less likely to have occurred. SRM have little PV and might prevent socially beneficial post-accident precautions.
· 407 – Evidence of the subsequent remedial measures is inadmissible to prove (PDFNC):
ü Negligence;
ü culpable conduct;
ü a defect in a product or its design;
ü or a need for a warning or instruction.
ü However, subsequent remedial measures may be used for another purpose such as proving ownership, control, feasibility of precautionary measures if controverted, or for impeachment purposes (COPI).
ü Analysis:
o 1) Is it subsequent?; 2) Is it a remedial measure?; 3) Is it admissible?
ü Hypo: Joe falls through a wooden stair. The next day, landlord and replaces the rotting stair. This is a subsequent event, since it occurred after Joe fell. It is also remedial measure b/c if on the day before Joe fell LL replaced the stair, it makes is more unlikely that Joe would’ve fell through the stair. Thus, it is a subsequent remedial measure.
NY Rule (Subsequent Repairs) – inadmissible to prove any strict liability except for manufacturing defect and product defect.
