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Evidence
West Virginia University School of Law
McDiarmid, Marjorie A.

OUTLINE: EVIDENCE

McDiarmid – Fall 2015

For Final:

Assume federal rules apply

If WV rules apply, she will indicate it in question

Can explain difference between WV & Fed for extra points

Format

Fact Pattern, Specific Question, Discuss

Specific Question = 1 point

Discussion = 4 points

Explain why rule is what it is OR use authority

Outline, Bullet Points acceptable in time crunch

3 Hours

18-21 Questions

Table of Contents

General Provisions

Rule 101 – Scope & Definitions

Rule 102 – Purpose

Rule 103 – Rulings on Evidence

Rule 104 – Preliminary Questions

Rule 105 – Limiting Evidence that is not Admissible

Rule 106 – Remainder of or Related Writings or Recorded Statements

Judicial Notice

Rule 201 – Adjudicative Facts

Presumptions

Rule 301 – Presumptions in Civil Cases, Generally

Rule 302 – Applying State Law to Presumptions in Civil Cases

Relevance

Rule 401 – Test for Relevant Evidence

Rule 402 – General Admissibility

Rule 403 – Excluding Relevant Evidence

Rule 404 – Character Evidence; Crimes or Other Acts

Rule 405 – Methods of Proving Character

Rule 406 – Habit; Routine Practice

Rule 407 – Subsequent Remedial Measures

Rule 408 – Compromise Offers & Negotiations

Rule 409 – Offers to Pay Medical & Similar Expenses

Rule 410 – Pleas, Plea Discussions, & Related Statements

Rule 411 – Liability Insurance

Rule 412 – Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition

Rule 413 – Similar Crimes in Sexual-Assault Cases

Rule 414 – Similar Crimes in Child-Molestation Cases

Rule 415 – Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

Privileges

Rule 501 – Privileges in General

Rule 502 – Attorney-Client Privilege and Work Product; Limitations on Waiver

Witnesses

Rule 601 – Competency to Testify in General

Rule 602 – Need for Personal Knowledge

Rule 603 – Oath or Affirmation to Testify Truthfully

Rule 604 – Interpreter

Rule 605 – Judge’s Competency as a Witness

Rule 606 – Juror’s Competency as a Witness

Rule 607 – Who May Impeach a Witness

Rule 608 – A Witness’s Character for Truthfulness or Untruthfulness

Rule 609 – Impeachment by Evidence of a Criminal Conviction

Rule 610 – Religious Beliefs on Opinions

Rule 611 – Mode and Order of Examining Witnesses and Presenting Evidence

Rule 612 – Writing Used to Refresh a Witness’s Memory

Rule 613 – Witness’s Prior Statement

Rule 614 – Court’s Calling or Examining a Witness

Rule 615 – Excluding Witnesses

Experts

Rule 701 – Opinion Testimony by Lay Witnesses

Rule 702 – Testimony by Expert Witnesses

Rule 703 – Bases of an Expert’s Opinion Testimony

Rule 704 – Opinion on an Ultimate Issue

Rule 705 – Disclosing the Facts or Data Underlying an Expert’s Opinion

Rule 706 – Court-Appointed Expert Witnesses

Hearsay

6th Amendment – Confrontation Clause

Rule 801 – Definitions That Apply to this Article; Exclusions from Hearsay

Rule 802 – The Rule Against Hearsay

Rule 803 – Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant is Available as a Witness

Rule 804 – Exceptions to the Rule Against Hearsay — When the Declarant is Unavailable as a Witness

Rule 805 – Hearsay Within Hearsay

Rule 806 – Attacking & Supporting the Declarant’s Credibility

Rule 807 – Residual Exception

Authenticity/Identification

Rule 901 – Authenticating or Identifying Evidence

Rule 902 – Evidence that is Self-Authenticating

Rule 903 – Subscribing Witness’s Testimony

Writings, Recordings, Photograph Contents

Rule 1001 – Definitions that Apply to this Article

Rule 1002 – Requirement of the Original

Rule 1003 – Admissibility of Duplicates

Rule 1004 – Admissibility of Other Evidence of Content

Rule 1005 – Copies of Public Records to Prove Content

Rule 1006 – Summaries to Prove Content

Rule 1007 – Testimony or Statement of a Party to Prove Content

Rule 1008 – Functions of the Court & the Jury

ARTICLE 1

GENERAL PROVISIONS

Rule 101 – Scope & Definitions

Rule 102 – Purpose

Rule 103 – Rulings on Evidence

Rule 104 – Preliminary Questions

Rule 105 – Limiting Evidence that is not Admissible

Rule 106 – Remainder of or Related Writings or Recorded Statements

Rule 101

Scope; Definitions

(a) Scope. These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules appl

x

Issue ONE: Substantial Right

See Flow Chart
Is a substantial right infringed upon?

If no, you will lose on appeal

Issue TWO: Timing

Objections are generally made at trial, but there are issues that are raised before trial (i.e. motions in limine).

There are some types of evidence that is so bad that if the jury hears it, they will be prejudiced by it

E.g. 609 Prior Convictions, 400s affecting client’s reputations, and photographs

(a)(1)(A) “timely objects” means between the question and answer

Cannot wait until the answer has been given to object

(a)(1)(A) “timely . . . moves to strike” means that the objection was made after the answer was given

This arises when question did not call for inadmissible evidence, but the witness offers an answer that imports inadmissible evidence.
You are asking the court to tell the jury to disregard the improper part of the answer

You have to ask yourself, “Was the question or answer inadmissible?”

If the question was inadmissible, object & state grounds
If the answer was inadmissible, move to strike & state grounds

A general objection without statement of grounds is useless if there is any other grounds that could be used to appropriately admit the evidence

(a)(2) if the judge excludes evidence, you have to offer proof

This tells the appellate court what the evidence would have been
In , this is called “vouching the record”
This needs to be done out of the jury’s hearing, meaning ask for a sidebar
Offer of proof is not necessary if the substance is clear

Don’t rely on the substance being clear though!

(b) Not Needing to Renew an Objection or Offer of Proof

Keyword in this part is “definitively”

You should renew your objection if anything happened to change the judge’s mind
You may want to renew your objection anyways, just to cover bases
Always watch for changed circumstances