Rule 101.Scope
– Applicable only to federal cases, however, states began adopting FREs as rules of evidence for the state itself.
– Rules apply to both criminal & civil cases (see also Rule 1101, p. 215)
Relevance
Rule 402
– Relevant evidence admissible…except as otherwise provided by Constitution, Congress, the Rules, Supreme Court rulings.
– Credibility of witnesses is always relevant.
Rule 401.Definition of Relevant Evidence
– Must have probative value (make something slightly more or slightly less probable than it was before we heard the evidence), and must be material (the thing making it more or less probable must be “of consequence”).
– Direct evidence: go directly from testimony to the juridical result; circumstantial evidence: path from testimony to juridical result is inferential. “Intermediate Inference” must be used.
Rule 403.Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
– Sets up a balancing test committed to the discretion of the trial court.
o Probative Value of Evidence. + “Extra Weight.” The trial concerns must substantially outweigh the probative value before the evidence will be excluded.
VS.
o Trial Concerns (unfair prejudice, undue delay, & confusion)
– The first question you ask is, “Is the evidence relevant under Rule 401?”
– The last thing you ask is, “Is the evidence excluded under Rule 403?”
– The remainder of the course falls in between those two questions. Rule 403 is the opponent’s last chance to keep out the offered evidence.
Competency of Lay Witnesses
Testimonial Risks: Perception, Memory, Narration (ambiguity) & Sincerity
Rule 601.General Rule of Competency
– Presumption of competency & presumption of admissibility
– Erie Doctrine: competency laws are substantive law, and therefore, state law trumps federal.
Rule 602.Lack of Personal Knowledge
– Foundation must be laid before testimony admitted: some evidence that the witness directly observed (or heard, felt, sensed, etc.) the event. Standard is well below preponderance of the evidence.
Rule 603.Oath or Affirmation
– Witness must declare that he will tell the truth, by oath or affirmation of own conscience if for some reason (e.g., religion) the witness cannot take an oath.
Rule 604.Interpreters
– Must be qualified as an expert witness. Two problems: (1) Interpreter may interpret wrong, or may lie.
Rule 605.Competency of Judge as Witness
– The judge presiding at the trial may not testify in that trial as a witness. No objection needed to preserve point.
Rule 606.Competency of Jurors as Witnesses
Part (a): Lawyer can object outside hearing of jury so as to not anger the juror.
Part (b): Jurors are not competent to give testimony as to what went on in jury room. Protects internal deliberations, not extraneous or improper information brought into the jury room.
Some Differences between State and Federal Law:
– FRE: No minimum age for witnesses. Some states do (some as low as age 2 or 3).
– FRE: No set of criteria for giving competent testimony, except relevant, and presented by someone who is capable of perceiving, remembering, narrarating, and being sincere.
– “Dead Man Statute:” no such thing at the federal level. No testimony as to something you discussed with a person now deceased because that person is no longer around to give their own version. Now, issues regarding the death of one party will go to the weight of the evidence being presented by someone else, rather than the admissibility thereof.
– Lawyer as Witness: No rule of evidence, governed by state’s rules of professional conduct. Use a third party during the conversation between the attorney and whoever he is talking to (someone other than another attorney from that law firm) so that person may be called as a witness, should the need arise.
Direct Examination
Compelling Attendance of Witnesses: Subpoena (ad testificandum, order to appear, or duces tecum, order to appear and bring specified materials). Grounds for resisting validly-served subpoena: Immunity or materials requested are privileged, or subpoena is oppressive in scope.
Rule 611.Mode & Order of Interrogation & Presentation
611(a) Control by court. (1) Make interrogation & presentation effective for ascertaining truth; (2) avoid wasting time, and (3) protect Witness from harassment or undue embarrassment.
611(b) Scope of cross-examination. Limited to the subject matter of the direct examination and credibility. Court has discretion over allowing inquiry into additional matters.
611(c) Leading questions. Don’t use. The fear is that the testimony is being supplied by the questions themselves.
– The general rule is “no leading questions to a friendly witness, leading questions okay when you’re forced to call hostile or adverse witnesses.” “Except as may be necessary to develop the testimony.” When it becomes clear that nothing but leading questions are going to work, you can use them when: Witness is forgetful, and you need to jar their memory; nervous; young; hostile; unwilling; to get to preliminary / inconsequential matters (e.g., name and address).
– What is a leading question? One which by its text suggests the desired answer.
Q&A vs. Narrative:
– General rule: on direct, attorney may use either Q & A or narrative format. Other side may object to narratives where it can be demonstrated that the narrative is likely to include inadmissible evidence in such a way that it will not be clear when such information is being presented as part of the narrative.
Rule 612.Writing Used to Refresh Memory
– To refresh a witness’ recollection use (1) leading questions, (2) Rule 612 (paper itself not admitted), (3) Rule 803(5) (paper itself admitted into evidence).
– The only real requirement is that the writing must have the capability of reawakening a witness’ now-exhausted recollection.
– (1) Writing used while on the stand = other side can see it, no discretion for court. (2) Writing used prior to taking stand = other side may see it, discretion to court.
Hearsay: Definition
Refer to
the thing itself. Intrinsic authentication is “self-authentication” where the foundation comes from the thing itself.
901(a) General Provision. Evidence must be sufficient to support a finding that the matter in question is what its proponent claims.
901(b) Illustrations. Examples of authentication or identification:
901(b)(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. This will cover 90% of the terrain.
901(b)(2) Nonexpert opinion on handwriting. Laywitness only useful if familiar with the handwriting prior to the trial; they cannot be educated after-the-fact for purposes of testifying.
901(b)(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
901(b)(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
901(b)(5) Voice identification. Witness does not have to be familiar with the voice prior to the trial.
901(b)(6) Telephone conversations. (1) If you call a phone number from the phone book and the answerer identifies himself as the party listed in the book, that authenticates the voice as that party. (2) If you call a business, and you transact some business with them over the phone, that is sufficient to authenticate.
901(b)(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. Usually irrelevant as public records usually fit into Rule 902.
901(b)(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
901(b)(9) 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.
901(b)(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. Basically, anything which shows that this item is what it purports to be can be used.
