I. GENERAL PROVISIONS
RULE 101 – SCOPE of the FEDERAL RULES:
o scope covers all civil and criminal trials. does not apply in grand jury proceedings, miscellaneous trials, and when judge is making a 104 determination (question of fact)
RLUE 102 – PURPOSE AND CONSTRUCTION:
o purpose of the rules is to secure fairness, eliminate unjustifiable expense or delay, promote truth and justice.
Rule 103 – RULINGS ON EVIDENCE:
o effect of erroneous ruling – there is no error unless a substantial right of the party is affected AND
o (1) OBJECTION – timely objection or motion to strike is preserved in record
o (2) OR – OFFER OF PROOF – substance of ev. made known to the court through an offer of proof
a. made out of presence of jury, allow detailed description of inadmissible evidence into the record to preserve for appeal.
b. a successful appeal is predicated upon:
i. the timely objection
ii. established that trial court ruling is in error
iii. must be a REVERSIBLE or PREJUDICIAL error.
c. MOTIONS IN LIMINE – if you are denied on a motion in limine, you do not have to renew your objection at trial if a DEFINITIVE RULING was previously made.
i. not sure what “definitive” is, so renew objection anyway.
d. if only one co-plaintiff objects, this is usually good enough to preserve for both (some courts split)
ii. (B) Record of offer and ruling – court may add anything else it wants to the offer of proof.
iii. (C) Hearing of jury – inadmissible evidence should not be heard by the jury, to the extent practicable
iv. (D) PLAIN ERROR – nothing in this rule precludes an appeal based on PLAIN ERROR affecting SUBSTANTIAL RIGHTS, even if not objected or brought to attention of the court.
1. less likely to find plain error when no objection or offer of proof, because there is nothing to look at in the record.
b. Rule 104 – PRELIMINARY QUESTIONS:
i. (A) Questions of admissibility GENERALLY – qualifications of persons to be a witness, privileges, admissibility of evidence, is DETERMINED BY THE COURT and NOT SUBJECT TO THE RULES OF EVIDENCE, except those relating to privileges.
ii. (B) relevancy conditioned on FACT – when the relevancy of evidence depends on fulfillment of fact, the court can admit it subject to evidence fulfilling this condition.
1. these are appropriate questions for JURIES to decide.
iii. (C) hearing of jury – hearings on the admissibility of confessions shall be conducted outside of the hearing of the jury. also any hearings where justice requires it.
iv. (D) Testimony by accused – accused is not subject to cross on other matters when testifying on a preliminary matter
v. (E) Weight and credibility – this rule does not limit the right of a party to introduce credibility evidence
c. RULE 105 – evidence admissible to one party for one purpose and inadmissible to another party for a different purpose shall be restricted to its proper scope and the jury instructed accordingly.
i. party must ASK for a limiting instruction, does not come automatically.
ii. judge will weigh similar to 403…probative value is substantially outweighed by prejudice.
iii. court does not have to make the instruction at the time, it can wait until jury discharged.
d. RULE 106 – REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS – when a writing or recorded statement is admitted, any other part of it that should be considered in fairness should also be admitted.
i. don’t want to take writings or recordings out of context.
e. DISCOVERY RULES – also govern evidence. FRCP 26 – discovery is limited to what is reasonably calculated to lead to the discovery of admissible evidence.
II. JUDICIAL NOTICE
a. judicial notice is like a shortcut for the courtroom, almost like stipulation, fact is to be presumed true by the jury. There are FOUR TYPES OF FACTS in the courtroom: ADJUDUCATIVE FACTS, LEGISLATIVE FACTS, BASIC FACTS, LAW. Rule 201 only governs adjudicative facts.
i. Rule does NOT govern LEGISLATIVE FACTS – facts which have relevance to legal reasoning, or the lawmaking process, and not to the particular case.
ii. also does not govern BASIC FACTS – the sun is yellow, the earth is round, etc. there is no need to ask for judicial notice of these facts.
iii. evidence does NOT have to be ADMISSABLE in order to be judicially noticed.
b. RULE 201 – JUDICIAL NOTICE OF ADJUDICATIVE FACTS:
i. (A) SCOPE – only governs adjudicative facts
1. only who, what, when, where, and how type questions of the particular case.
ii. (B) KINDS OF FACTS – judicially noticed fact MUST NOT BE SUBJECT TO REASONABLE DISPUTE. it must be
1. generally known within the territorial jurisdiction of the trial court.
a. ex: 4th street intersects 5th avenue in Manhattan. an NY court would take jud. notice of this, but an out of state court would not.
2. OR capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned
a. ex: an almanac book, facts on the weather of a certain day. other scientific tests or records that are generally indisputable.
3. 11 A – 845 – Dry Pavement – guy wants court to take judicial notice that road was dry, gives weather report as proof that it did not rain. other guy objects. court could jud. notice no rain, but NOT that road was dry. could be wet for another reason. reasonable dispute.
4. 11 C -846 – Interstate Call – two facts for judicial notice: driving time from CT to RI is more than 15 min, and Lauro knew call was out of state. NEITHER should be noticed. driving time OUTSIDE jur of court, and call issue is PERSONAL mens rea.
5. 11 D – 846 – Football Fan – TV guide jud. notice proof that no football game was on. up to the judge, but other side should object, there could be changes, etc.
6. whenever there is evidence on BOTH sides, and an issue has ANY reasonable dispute, JUDICIAL NOTICE IS NOT APPROPRIATE.
iii. (C) WHEN DISCRETIONARY – court can take judicial notice whether requested or not (sua sponte)
iv. (D) WHEN MANDATORY – a court SHALL take judicial notice if requested by a party and supplied with the necessary information.
v. (E) OPPORTUNITY TO BE HEARD – a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice. this can also happen AFTER the judicial notice has been taken, if there was no prior notification.
vi. (F) TIME OF TAKING NOTICE – judicial notice can be taken at ANY stage of the proceeding.
vii. (G) INSTRUCTING JURY – In a CIVIL action, jury shall accept judicially noticed facts as CONCLUSIVE. In a CRIMINAL case, the court shall instruct the jury that it MAY but is not REQUIRED to accept as conclusive any fact judicially noticed.
1. defendant can argue AGAINST a judicially noticed fact in a criminal case, but not in a civil case.
c. VIRGIN ISLANDS v GEREAU – judge takes judicial notice that one person is telling the truth over another. bases on personal emotion and knowledge. this is NOT appropriate for judicial notice. no personal knowledge from court can be the basis for JN.
i. NEVER appropriate for judge to use his personal knowledge to base decision.
d. US v JONES – judicial notice CAN be taken for the first time on appeal under 201 F. guy was acquitted because gov did not prove phone company was a “common carrier.” normally, appeals court could take judicial notice, but since it is a CRIMINAL charge, rule 201 g applies, and jury could have disregarded.
i. so in a CRIMINAL case, judicial notice CANNOT be taken for first time on appeal.
e. JUDICIAL NOTICE OF LEGISLATIVE FACTS: FRE’s do NOT govern, so the CRIMINAL exception in 201 g is NOT present with legislative facts
i. MULLER v OREGON – a statute remains constitutional because the court takes all the legislative debate leading up to its adoption as fact.
ii. US v GOULD – judge instructs jury tha
e allowed to testify. although she did not know what perjury was, she swore to tell the truth, demonstrated difference between truth and lie. court found her competent.
g. US v FOWLER – Tax protester was not given the right to testify because he did not swear to tell the truth, but only said “I am a truthful man.” This is not good enough. Rule 603 is clear. need some form of oath.
h. ALL COMPETENCY REQUIREMENTS DECIDED BY JUDGE – RULE 104 A DETERMINATION
i. RULE 604 – INTERPRETERS – all interpreters on the stand are subject to these same rules.
j. CERTAIN CATEGORIES CANNOT BE WITNESSES:
i. RULE 605 – COMPETENCY OF JUDGE AS WITNESS – judge presiding over a trial CANNOT be a witness. don’t even need to object to this to preserve it.
ii. What about lawyers? PR Rules govern, not evidence, general rule: NO LAWYER TESTIMONY, even another L from same firm. other professionals (paralegals, secretaries, etc.) may be able to testify.
iii. RULE 606 – COMPETENCY OF JUROR AS WITNESS:
1. (A) – at trial – member of the jury may not testify as a witness in that trial.
2. (B) – inquiry into validity of verdict or indictment – NO testimony as to occurrences in normal deliberations! CAN testify to EXTRANEOUES influences on the jury.
a. three things jury can testify to:
i. extraneous prejudicial information
ii. outside influence
iii. pre and post deliberative conflict
b. rationale:
i. freedom of deliberation
ii. finality and stability of verdict
iii. protection of jurors from embarrassment.
3. TANNER v US – party jury – coke, pot, alcohol, but the SC still says this is INTERNAL jury actions. we still want to shield jury deliberations from the public.
4. 6 C – 554 – 800K Jury Error – jury awards 800K more for misinterpreting judge instruction. would 606 B allow an affidavit from a jury? no. this is barred by 606B, however, additur/remitter or judgment notwithstanding verdice would be appropriate here.
5. 6 D – 554 – The Jury View – two jurors go on a “Factfinding” mission to get evidence about a car crash. no good. this testimony would NOT be barred under 606B since it is an EXTRANEOUOS influence.
h. DEAD MAN’S STATUTES:
a. State statutes that block testimony from witnesses regarding transactions with deceased.
b. RATIONALE – survivors have interest in testifying falsely, makes them incompetent witnesses. controversial statutes
c. FRE – allowed under rule 601 – all witnesses presumed competent SUBJECT TO STATE LAW IF APPLICABLE. (Erie doctrine possibility)
i. PREVIOULSY HYPNOTIZED WITNESSES:
a. General rule – this goes to CREDIBILITY of witness, not subject to EXCLUSION completely. witness should be cross examined and the JURY should decide whether the testimony is credible. don’t automatically exclude.
b. ROCK v ARKANSAS – State statute prevented ALL testimony that was hypnotically refreshed. lady shot husband, was hypnotized to refresh. subsequently she remembered it was an accident. pros. wanted it excluded. SC says no. DUE PROCESS concern. accused has a right to the stand. no PER SE rule against hypno.
j. RULE 614 – CALLING AND INTERROGATION OF WITNESSES BY COURT:
