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Evidence
University of Wyoming School of Law
Selig, Joel L.

MAKING THE RECORD; TRIAL OBJECTIONS:  
FED R. 103 Rulings on Evidence:
(a) Error may not be predicated upon a ruling which admits or excludes evidence (UNLESS) a substantial right of the party is affected (AND) (1) if ruling admits evidence, a timely objection or motion to strike appears in the record stating the specific ground for objection if the specific ground wasn’t apparent from the context (OR) if ruling excludes evidence, the substance of the evidence was made known to the court by offer or was apparent from the context.
*Once the court makes a definitive ruling on the record admitting/excluding evidence, a party doesn’t need to renew the objection or offer proof to preserve claim on appeal.
(c) In jury cases, proceedings shall be conducted…so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
FED R. 105: Limited Admissibility:When evidence is admissible as to one party or purpose but not admissible for another party or purpose, the court shall restrict the evidence to its proper scope and instruct the jury accordingly (403)
FED R. 106:When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered with it.
RELEVANCY AND ITS LIMITS:
Relevance: Relationship between the evidence you are trying to get into evidence and what you are trying to prove (speculative & remote evidence = not admissible)
1. Give your theory of relevance and if it makes sense;
2. Look under 403 if the probative value outweighs the prejudice to the defendant.
FED R. 401: Def. of “Relevant Evidence”
“Relevant Evid.” = having any tendency to make the existence of any fact that is of consequence to determination of the action more probable or less probable than it would be without the evidence (standard: more probable than not; “a brick is not a wall) [403] Statistical Probability: when substantially unfair and questionable techniques that confuse the jury is not relevant (Collins); Blood Type: can be relevant (Mountain); Paternity Statistics: are relevant and do not violate Def.’s due process rights (Kammer);    
FED R. 402:relevant evid. is admissible except…[403] irrelevant evid. = not admissible.
FED R. 403:Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of: (1) unfair prejudice (2) confusion of issues (3) misleading the jury (OR BY) (4) undue delay (5) waste of time (6) needless presentation of cumulative evidence. FED R. 404: Character Evidence: (403 Applies to All)
(a) Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity with it on a particular occasion (EXCEPT)
(1) Character of Accused: In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same (OR) if evidence of character trait of the alleged victim of the crime is offered by an accused and admitted, evidence of the same trait of character of the accused offered by the prosecution.
(2) Character of Victim: In a criminal case, (subject to rule 412) evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same (OR) evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor .
(3) Evidence of character under rules 607, 608 (Poor reputation for truth), 609 (prior felony conviction).
(b) Evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. IT MAY (HOWEVER) be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (PROVIDED) that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial. (Plan = larger continuing plan, conspiracy) (modus operandi or method of carrying out crime) (extrinsic evidence can be used to show under (b) (104(b).
Party Using the Evidence: gets to the jury on the question of guilt of second crime once it has enough evidence that a reasonable jury could decide in its favor (Huddleston)   
FED R. 405: Methods of Proving Character:
(a) Reputation or Opinion: In all cases in which character evidence is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. (On cross-exam, questioning is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct: In cases in which character or a trait of character of a person is an essential element of the charge or claim or defense, proof may also be made of specific instances of that person’s conduct.
FED R. 406: Habit, Routine, Practice:Evidence of the habit of a person or of the routine practice of an organization, (whether corroborated or not and regardless of the presence of eyewitnesses) is relevant to prove that the conduct of the person or org. on a particular occasion was in conformity with the habit/routine/practice. (A.C. Notes: He “usually” does something isn’t the same is he “always” does something. (“Invariable Regularity” is what we are looking for).
FED R. 407: Subsequent Remedial Measures: When after the injury or harm allegedly caused by an event, measures are taken that if previously taken would have made the injury or harm less likely to occur, evidence of subsequent measures is not admissible to prove negligence, culpable conduct or a defect in the product. This does not require the exclusion of evidence of subsequent measures when offered for another purpose such as (ownership, control / or feasibility of precautionary measures: only if controverted / or impeachment).
(403)(A.C. Notes: requirement that the other purpose be controverted calls for automatic exclusion unless a genuine issue be present and allows the opposing part to lay the groundwork for exclusion by making an admission) (Also subject to 403)
-(Evidence of measures taken prior to the event are not admissible)   
FED R. 408: Compromise/ Offers to Compromise
(a) Prohibited Uses: Evidence of following is not admissible by any party when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount (or) to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish (OR) accepting or offering or promising to accept – a valuable consideration in compromising or attempting to (AND) (2) conduct or statements made in compromise negotiations regarding the claim (EXCEPT) when offered in a criminal case (AND) the negotiations related to a claim by a public office or agency in the exercise of regulatory / investigative / enforcement authority. (104)(a)
(A.C. Notes: 408 doesn’t apply when a debtor tries to induce a creditor to settle an admittedly due about for a lesser sum).
(b) Permitted Uses: If § (a) doesn’t prohibit it, the evidence can be offered to prove other purposes such as: (proving a witness’s bias/prejudice, negating a contention of undue delay, proving an effort to obstruct a criminal investigation or prosecution).
FED R. 409: Payment of Medical Expenses: Evidence of furnishing or offering or promising to pay medical, hospital, other expenses, occasioned by injury is not admissible to prove liability for the injury.
FED R. 410: Inadmissibility of Pleas: Except for otherwise in this rule, evidence of the following is not admissible (in any civil or criminal proceeding) against the Def. who made the plea (1) a plea of guilty which was later withdrawn (2) a plea of nolo contendere…(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty (OR) which result in a plea of guilty later withdrawn
(HOWEVER) such statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced (AND) the statement ought in fairness be considered along with it (OR) (ii) in a criminal proceeding for perjury or false statement if the statement was made by the Def. under oath or on record in presence of counsel. (104)(a)  
FED R. 411: Liability Insurance: Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or wrongfully (it is admissible for other purposes, such as proof of agency, ownership, control, or bias/prejudice of witness).
RELEVANCY IN SEX CRIMES:
FED R. 412 Sex Offense Cases
(a) The following evidence is not admissible: in any civil or criminal proceeding involving alleged sexual misconduct (EXCEPT) in sections (b) & (c).
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim’s sexual predisposition.
(b) Exceptions: (1) In criminal cases the following is admissible:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other that the accused was the source of the semen, injury or other physical evidence. (B) Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution (AND) (C) Evidence, which if excluded, would violate a constitutional right (i.e. Olden case: Def. in rape case had right to inquire into alleged victim’s cohabitation with another man to show bias).
(2) In a civil case: evidence offered to prove the sexual behavior or predisposition of alleged victim is admissible if it is otherwise admissible under these rules (AND) its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. (More than 403)Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim. (c) Procedure to determine admissibility: (1) before offering the evidence a party must: (A) file a written motion at least 14 days before trial (AND) (B) serve motion on all parties and notify the alleged victim (2) Before admitting evidence, court must conduct in camera hearing and victim and parties must be afforded right to attend this meeting.  
FED R. 413: In criminal sexual a

business, in the chain of record, acts outside of regular course of business = record not admissible, Lutz)
 (7) Absence of entry in records kept in accordance with reg. activity (#6): Evidence that a matter is not included in the memo, report, records, etc., in any form, kept in accordance with the provisions of (6), to prove the nonoccurrence or non-existence of the matter (IF) the matter was of a kind which a memo, report, records…was regularly made and preserved (UNLESS) the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public Records and Reports: Records, reports, statements or data in any form, of public offices or agencies, setting forth (A) the activities of the office/agency (OR) matters observed pursuant to duty imposed by law (excluding in criminal cases matters observed by police officers and other law enforcement personnel) (OR) (C) in civil actions and proceedings against the government in criminal cases, factual findings
resulting from an investigation made pursuant to authority granted by law (you cannot try to get reports, under B & C, in under another hearsay exception, Oates) (UNLESS) the sources of info. or other circumstances indicate lack of trustworthiness.
(9) Records of vital statistics: Records, data, in any form, of births, fetal deaths, deaths, or marriages (IF) the report was made to a public office pursuant to requirements of law.
(10) Absences of public records or entry: To prove absence of record, report, statement, data, in any form, or the nonoccurrence/nonexistence of a matter which a record, report, etc, was regularly made and preserved by a public office or agency (OR) testimony that diligent search failed to disclose the record, etc.
(11) Records of Religious Organizations: Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage or other similar facts of personal or family history contained in regularly kept record of religious organizations.
(12) Marriage, baptismal and similar certificates: Statement of fact in a certificate that the maker performed a marriage or other ceremony…made by a clergyman, public official or other authorized person, purporting to have been issued at the time of the act or within reasonable time afterward. (“Certified Copy” of a public record= 805 hearsay within hearsay: public record / official certificates)
(13) Family Records: Statements of fact concerning personal or family history contained in family bibles, genealogies, charts, engravings on family rings/portraits/urns/crypts, tombstones and the like.
(14) Records of documents affecting an interest in property: The record of a document purporting to establish or affect an interest in property, or copy (IF) the record is one of public office and an applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in documents affecting an interest in property: A statement contained in a document, purporting to establish or affect an interest in property (IF) the matter stated was relevant to the purpose of the document (UNLESS) dealings with the property since the document was made have been inconsistent with the truth of this statement or the purport of the document.
(16) Statements in ancient documents: Statements in documents, 20 years old or more, and the authenticity is established.
(17) Market reports, commercial publications: Market (information) used and relied upon by the public or by persons in particular occupations (incl. phone books)  
(18) Learned Treatises: Statements contained in published treatises, periodicals or a subject of history/medicine/arts & sciences, established as a reliable authority by the testimony of the witness or by other expert testimony or judicial notice.
(19) Reputation concerning personal or family history: Reputation among one’s family or among a person’s associates or in the community concerning a person’s birth adoption, marriage divorce, death, legitimacy…or other similar facts of his personal or family history.
(20) Reputation concerning boundaries or general history: of a community.
(21) Reputation as to character: Reputation of a person’s character among associates or in the community (only for hearsay purposes).  
(22) Judgment of previous conviction: Evidence of a final judgment