Evidence Stensvaag (Spring 2018):
Rule Excluding Irrelevant Evidence
Relevance – 401
Relevance – 402
Preliminary Questions – 104 – (a)(b)(e)
Mode & Order of Examining W. & Presenting Evidence – 611 (a)
Authenticating/Identifying Evidence – 901
Self-Authenticating Evidence – 902
Rules Excluding Even Relevant Evidence
Competency & Personal Knowledge
Competency to Testify – 601
Personal Knowledge – 602
Oath to Testify Truthfully – 603
Religious Beliefs/Opinions – 610
Best Evidence Rule
Definitions – 1001
Requirement of Original – 1002
Admissibility of Duplicates – 1003
Admissibility of Other Evidence of Content – 1004
Copies of Public Records – 1005
Prejudice, Confusion, Waste of Time Rule
Prejudice, Confusion, Waste of Time – 403
Character Evidence/Traits – 404(a)
Proving Character – 405
Reputation of Character (HS Exception) – 803(21)
Definitions – 801
Hearsay Rule – 802
Declarant’s Prior Statement – 801(d)(1)
Opposing Party’s Statement – 801(d)(2)
Declarant Unavailable – 804
Definition Unavailable – 804(a)
Exceptions – 804(b):
Former Testimony (1)
Belief of Impending Death (2)
Statement Against Interest (3)
Forfeiture by Wrongdoing (6)
Regardless of Whether Declarant is Available – 803
Present Sense Impression – 803(1)
Excited Utterance – 803(2)
Then-Existing Mental, Emotional, or Physical Condition – 803(3)
Medical Diagnosis/Treatment – 803(4)
Recorded Recollection – 803(5)
Records Business Activity – 803(6)
Absence of Record of Business Activity – 803(7)
Public Records – 803(8)
Ancient Documents – 803(16)
Market Reports & Similar Commercial Publications – 803(17)
Learned Treatises & Periodicals/Pamphlets – 803(18)
Judgment of a Previous Conviction – 803(22)
Residual Exception – 807
Remainder of or Related Writings/Recorded Statements – 106
Limiting Scope of Evidence – 105
Writing Used to Refresh W’s Memory – 612
Record Definition – 101(b)(4)
Domestic Record of Regularly Conducted Activity – 902(11)
Rule Excluding Opinion (Expert Witnesses)
Character Evidence/Crimes, Wrongs, or Other Acts – 404(b)
Impeachment & Cross-Examination
Excluding Witnesses – 615
Who May Impeach a W. – 607
609 (a) & (b)
Rules Studied (Spring 2018):
Rule 104. Preliminary Questions (subject to the provisions of 104(b))
Voir dire possible
In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. [i.e. judge may consider inadmissible evidence]
No right to voir dire
Relevance That Depends on a Fact. When the relevance [not admissibility] of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
READ B BEFORE A!
Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
If the court admits evidence [doesn’t say that the court has to let it in] that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
Rule 106. Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.
Rule 401. Test for Relevant Evidence
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. [materiality]
Rule 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
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.
Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence. i.e. circumstantial evidence of conduct
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(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;
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. [repeats (a)(1)] Evidence of a crime, wrong, or other 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.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as pr
n 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.
Rule 610. Religious Beliefs or Opinions
Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
Rule 613. Witness’s Prior Statement
[rejects rule in Queen Caroline’s case]
Showing or Disclosing the Statement During Examination. 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.
Extrinsic Evidence of a Prior Inconsistent Statement. 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 and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).