Glazier_Evidence_Spring 2014
Relevant Evidence
Rule 103 (how to object to evidence)
A. Timely
B. States a specific ground for objection
Rule 402 (relevant evidence is admissible unless another rule kicks it out (by another rule, law or statute)
· Constitution states
· Federal statute
· FRE rules
· Other rules prescribed by the supreme court
****irrelevant evidence is not admissible ******
Rule 401 test for relevant evidence ;
a. Any tendency to make a fact of consequence more or less probable than it would be without the evidence
1. Any tendency – does not have to prove the facts alone. But can go along with
2. Fact of consequence in determining the action – must relate to the elements of cause of action or creditability of the witness
3. More or less probable
a. As long as the evidence makes the fact more probable or less probable than without the evidence, it is sufficient to be relevant.
Rule 403 Balancing test to exclude relevant evidence
· The court may exclude relevant evidence if its probative value is substantially outweighed by the danger of counterweights.
1. Unfair prejudice
2. Confusing the issues, misleading the jury
3. Undue delay, wasting time or needless presenting cumulative evidence
a. Having multiple people testify about the same thing.
Probative Value
1. Similarity to other act evidence
a. Prior act will show the jury that the Δ knew
2. Reliability
3. Need for the evidence
a. The prosecutor doesn’t have any other evidence
b. To show MIAMI KOPP
c. Nobody saw what happen and this is the only thing we have to prove
Unfair Prejudice
1. Degree to which the evidence is of a heinous nature
2. Time the act occurred
3. The jury will use for the wrong purpose
Rule 105
If evidence is admitted for a purpose outside of the law then limiting instruction can be given to the jury to limit the evidence to its proper scope
Relevant Evidence Excluded by Policy
Rule 407: Subsequent Remedial Measures [SRM] Inadmissible
General Rule: subsequent remedial measures are NOT admissible to prove fault or liability for:
****By the parties: does not count if a third party fixes the issue****
· Exceptions: A SRM is admissible for another purpose not prohibited by the rule, IF to show:
1. Ownership and Control (when ownership or control is disputed, at issue, or in controversy)
2. Feasibility of Precautionary Measures (when its disputed, at issue, or in controversy)
a. No way to make product safer but they did
3. Impeachment à process of discrediting a witness
a. often 2&3 overlap & both argued.
b. Can always argue this so court states
i. It must be a specific representation that conflicts with the SRM
4. Any other purpose that is not prohibited
a. Knowledge or notice
Rule 408: Settlement Offers – Inadmissible
General Rule: 408(a) evidence of settlement negotiations in civil cases are NOT admissible by ANY party
a. prove or disprove liability amount of damage of a disputed claim OR to impeach through prior inconsistent statements or contradictions, including:
b. Except
1. Bias or prejudice
2. Negating a contention of undue delay
i. to rebut an allegation that a party is causing undue delay or obstruction.
3. Proving an effort to obstruct a criminal investigation or prosecution
c. Requirements
1. Claim
2. Disputed
3. Statement made during compromise negotiations
Rule 409: Payment for Medical Expenses – Inadmissible
General Rule: payments, offers to pay, and attempts to pay medical, hospital, or other similar expenses are NOT admissible to prove liability for an injury.
Exception:
· not stated in rule but may be admissible for other non-prohibited purposes
o knowledge
o bias
o Ownership or control
o Impeachment
· If an admission of fact accompanies an offer to pay hospital or medical expenses, the admission may be admissible.
Rule 410: Plea Bargain Agreements in Criminal Cases –
General Rule: FRE 410 excludes the following plea bargain agreements from being used against the defendant in both civil and criminal proceedings:
Withdrawn pleas of guilty
Pleas of nolo contendre (“no contest”)
Statements made during a proceeding about 1&2
Statements made by the defendant during plea negotiations in the course of discussions with the prosecutor or trial judge that do not result in guilty verdict
Exceptions: when you can use it.
Fairness Exception: if a Δ introduces one statement made during the same plea negotiations or a plea hearing, another party may introduce any additional statements from the same session when fairness requires it to clear up any misleading impressions.
Perjury Prosecution Exception: In perjury or false statement prosecutions, if the defendant made a statement under oath, on the record, and with counsel present, it can be later used when necessary to prosecute the defendant for perjury or false statement, even though it would otherwise be protected by 410.
Waiver: prosecutors may refuse to participate in plea negotiations unless ∆ waives their rights under 410.
Rule 411: Liability Insurance – Inadmissible
General Rule: evidence that a person does or does not have liability insurance is not admissible to show whether an insured person acted negligently, or otherwise wrongfully (i.e. ability to pay)
Exceptions: it is admissible for other purposes (usually strictly construed):
Agency, ownership, or control
One or more must be disputed
To impeach by showing bias, interest, or motive to lie
Who Can Testify
· must be competent
· must have personal knowledge
· must take a oath
601—General Rule 1: Every witness is presumed to be competent to testify unless the rules provide otherwise.
3 Exceptions: the following are considered “non-competent” to testify
1. Presiding Judges (& their clerks/employees) cannot testify in that trial. –FRE 605
2. Jurors cannot testify as a witness in a trial they are sitting on. –FRE 606(a)
3. Jurors cannot testify as to any matter or statements made during jury deliberations, including . à 3 exclusions –FRE 606(b)
~ Extraneous prejudicial info was improperly brought to the jury’s attention
o ex. juror reads a newspaper article about trial.
~ Whether any outside influence was improperly brought to bear on any juror
o ex. bribed by an outsider
~ Whether there was a mistake in entering the verdict onto the verdict form.
FRE apply to all civil trials in fed. ct’s, whether those claims are based on state (i.e. diversity cases) or federal law (i.e. fed. Q cases)
Exception: In a civil case, whenever state law supplies the elements of a civil claim or defense (which occurs most often in diversity cases), the court MUST determine competency rules under that STATE’S LAW
Rule 602 2HAVE PERSONAL KNOWLEDGE~~[Rule 602]
· a witness must haveknowledge of a matter
· relevant with at least one of their 5 senses
· foundation must be laid of personal knowledge b/4 s/he can testify
· Exception – FRE 703: Expert witnesses do not have to have personal knowledge in order to testify.
Rule 603 TAKE AN OATH OR AFFIRMATION~~[Rule 603]
Explanation: there is no “standard oath;”
· instead, the court merely has to be persuaded that the witness appreciates the duty to be truthful/not lie/commit penalty of perjury
Rule 604 Interpreter
· must be qualified and must take a oath
How a witness can testify
611(a) – Control of the Courtroom: the judge should exercise reasonable control over the mode & order of examining witnesses and presenting evidence to
1. Make procedures effective for determining the truth,
Avoid wasting time, and
Protect witnesses from harassment or undue embarrassment.
611(b)
prejudicial effect to that Δ
1. The value of his prior conviction is going to be outweighed by the jury, the jury will look at Δ’s record as them being a liar
a. Court likely to kick out the evidence
2. Any crime dishonest act or false statement shall be admitted without any discretion
b) Limit on Using Evidence after 10 years since the date of release or conviction
1) Unless it meets the reverse of 403
i. If the probative value of the evidence substantially outweighs the unfair prejudicial effect to that defendant
1. Pior conviction is going to show dishonesty that it will be unfair to the Δ
a. Example: perjury
2) reasonable written notice is given to opposing party
c) Effect of a Pardon, Annulment or Certificate of Rehabilitation
1) If a witness’s prior conviction was pardoned,
i. Based on a FINDING OF INNOCENCE or
ii. If not based on innocence, the conviction will still NOT be admissible, as long as
iii. there has been NO SUBSEQUENT FELONIES
d) Juvenile Adjudications
1) Prior juvenile convictions are NEVER admissible against the accused (D)
2) Generally, also not admissible to impeach the character of any other witness
i. admissible to attack the credibility of an adult, AND
ii. the court determines it is necessary to fairly determine guilt or innocence.
e) Pendency of an Appeal
1) It is allowed as long as it meets the standards
2) And give notice to the court that it is on appeal8;
Rule 610: Witness’s Religious Beliefs→ (religion doesn’t show credit or discredit)
· Evidence of religious beliefs or opinions are NOT admissible to show that for that reason, the witness’s credibility is impaired or enhanced.
EXCEPTION
1. to show bias or some other purpose that is not prohibited under FRE 610
2. To show it relates to fact of consequence ALLOWED. i.e. bias
Rule 106: Rule of Completenessà You took my statement out of context!
General Rule: If a party introduces a part of writing or recorded statement, the other party may immediately require that any other part of the writing or recording be introduced as well, that in
Balancing Test (difference)
· Rule 403
o the probative value is substantially outweighed by the danger of one or more of the counterweights
§ allows prior convictions
· probative value is more than unfair prejudice
· Special Stricter test 609 a 1 b and
o the probative value equal to the unfair prejudice
§ probative value is equal or outweighs the unfair prejudice to Δ
· 10 year rule
o probative value of the evidence substantially outweighs its prejudicial effect to
§ probative value less than unfair prejudice
