Introduction
1975—FRE effective date, passed by Congress & approved by Supreme Court
Rule 101.Scope
These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.
– 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)
o “Defendant” can be either civil or criminal case
o When the rule wants to make a provision applicable only to defendants in criminal actions, it will use the word “Accused”
Relevance
Rule 402.Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
– …except as otherwise provided by:
o Constitution of the U.S.
§ Search & seizure (4th Amendment)
§ 5th Amendment
§ 6th Amendment
o Acts of Congress
§ “immunizing” testimony for social policy/tradeoff reasons
o “by these Rules”
o Other Supreme Court Rules
– Evidence which is not relevant is not admissible. No exceptions to that.
o Not to say irrelevant evidence won’t be used; must be objected to and that doesn’t always happen.
Rule 401.Definition of “Relevant Evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
– Relevance has two components.
(1) Probative value. Must have tendency to make something slightly more or slightly less probable than it was before we heard the evidence.
a. Does not mean it must be “convincing.” All it has to do is make a slight change in the probability that something is true or false.
b. You can’t ask any given piece of evidence to convince you of the whole thing.
(2) Materiality. The thing it makes more or less probable must matter, must be “of consequence.”
– Might work in a “direct” evidence pattern or “circumstantial” evidence pattern.
(1) Direct. Whenever we can go directly from testimony to the juridical result, that is direct evidence. All we need is the jury to believe the testimony to reach the element of the crime. If the jury believes the witness, the jury has gotten all the way to the elements of the action.
(2) Circumstantial. The path from testimony to juridical result is inferential. “Intermediate Inference” must be used. E.g., “Δ ran away.” This requires a leap of inference from testimony to juridical result; must be taken in conjunction with other circumstances to reach a particular juridical result.
– Credibility of witnesses is always relevant.
– Part of knowing whether something is relevant is knowing when in the lawsuit something becomes relevant. In most states, sanity of the criminal Δ is not relevant during the state’s case in chief, because we are operating with a presumption of sanity at that point. Only if the Δ puts his sanity at issue during his case will it become relevant.
Rule 403.Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
– Sets up a balancing test committed to the discretion of the trial court.
o Probative Value of Evidence.
§ How necessary is the evidence? Does it carry much weight? Is it the sole piece of evidence, or is it one of many?
o “Extra Weight.” The trial concerns must substantially outweigh the probative value before the evidence will be excluded.
VS.
o Trial Concerns:
§ Unfair prejudice. All relevant evidence is prejudicial. The evidence is unfairly prejudicial when it carries with it the notion that the jury will use the evidence in a wrong way and decide the case on an irrational (usually emotional) basis that has nothing to do with the real issues of the case.
§ Undue delay. All evidence will cause some delay; the question is whether the delay is excessive or undue.
§ Confusion. Again, all evidence may present some confusion, so the question becomes whether the confusion is substantial or if it is unduly necessary.
§ [Before the FRE, there was a fourth concern: surprise. Surprise went out for a number of reasons, mostly because of the amount of discovery done now.]
– 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.
– The mere fact that parties stipulate two facts, does not mean that evidence regarding those facts is rendered irrelevant. The general rule is that you cannot prohibit the other side from putting in powerful evidence simply by stipulating the related facts.
Competency of Lay Witnesses
Four Categories of Testimonial Risks:
(1) Perception
(2) Memory
a. Time lapse between the event (at which point the witness may have been an accurate reporter) and the testimony (at which point the accuracy drops)
b. E.g., a police officer witness may have seen hundreds of additional accidents between the one in question and the testimony thereon, and he may get confused about the details, merge several accidents together in his mind.
(3) Narration (Ambiguity)
a. There is “slippage” between what the witness presents and what the jury hears.
b. E.g., A witness may state that a light was “green” when he meant to say “red,” and he thinks he did say “red.”
c. E.g., A witness may use a word that he believes means one thing, but the jury thinks it means something else.
(4) Sincerity
a. Simply put, some witnesses don’t tell the truth.
b. In some respects, this is the risk the law seems to be most concerned about. Rules about impeachment and cross-examination try to reach this risk.
Rule 601.General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these Rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
Presumption of Competency
– The early evidence law engaged the presumption of inadmissibility, requiring special proof that the evidence had a great reason of necessity.
– Today, there is a presumption of admissibility: evidence shall be admitted unless the other side can prove that there is some special reason not to do so.
– Every person is competent to be a witness unless there is something the other side can point to that would render that person incompetent.
Erie Doctrine Issues
– In diversity cases in federal court, competency laws are substantive law, and therefore, state law trumps federal.
– Most of the time, evidence rules are procedural. There are five or six rules of evidence that we view as substantive for purposes of the Erie dichotomy, competency being one of them.
Rule 602.Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
– The basic requirement of a layperson witness is given here: there must be some evidence that the witness directly observed (or heard, felt, sensed, etc.) the event.
– The standard of proof required is well below preponderance of the evidence.
– Before any testimony can be admitted, a foundation must be established: E.g., witness must be able to say why she has personal knowledge of the event (“I was standing at the intersection, watching the traffic, when the accident happened”).
Rule 603.Oath or Affirmation
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.
– A witness cannot testify unless he is willing to declare that he will tell the truth.
o We don’t have to believe him or be persuaded that he will tell the truth; the only requirement is that he so declare.
– It is a process by which the duty to tell the truth in court is impressed upon the witness
aterials which are specified
– The only grounds for resisting a validly served subpoena are:
(1) Immunity from service or being called
(2) The material being called for is privileged and do not have to be produced, or is oppressive in its scope.
Rule 611.Mode & Order of Interrogation & Presentation
611(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
611(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
611(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading question.
– No leading questions. The fear is that when witnesses are lead by the question, 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.” (We aren’t worried about leading questions when they are being presented by the other side; it is the “friendly questions” we worry about.)
– “Except as may be necessary to develop the testimony.” This is a rule about form and preference. We would prefer the witness not be led. But the rule doesn’t entirely prohibit them. When it becomes clear that nothing but leading questions are going to work, then they will be permitted. You just cannot start with them. You can use them when:
o Witness is forgetful, and you need to jar their memory
o The witness is nervous.
o The witness is young.
o The witness is hostile or unwilling.
o Preliminary or inconsequential matters (e.g., the witness’ name or address).
– What is a leading question? One which by its text suggests the desired answer.
o “Isn’t it a fact that X is left-handed?” Leading. “Do you know which hand X prefers to use?” is not leading.
o “Did you not go there at 10:00?” Leading (and it’s misleading too). “At what time did you go?” is not leading.
o “Did you call X or did X call you?” Not leading. Balanced question. “Did you call X?” is leading.
o “Did he seem really angry to you?” Leading; suggests one particular emotion to the witness. “What were his emotions at the time?” is not leading.
o “Did you see what happened next?” Not leading. “You saw more, didn’t you?” is leading.
Q&A vs. Narrative:
– The general rule is that on direct examination, the attorney may proceed by either Q & A or narrative format, but the other side may be able to object to narrative sin cases 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.
(1) Narrative allows witness to answer without a guided form to the answer; the questioner allows the witness to provide the answer in whatever format he sees fit.
a. Some witnesses aren’t trustworthy enough to be given that much latitude, because you don’t know what they’ll say.
