Evidence Flowchart

Where and when?

-US district courts

-US bankruptcy & magistrate judges

-US courts of appeal

-US Court of Federal Claims

-district courts of Guam, the Virgin Islands and the Northern Mariana Islands

-SCOTUS

-federal administrative agency

-state courts

Do the rules apply?

1101

• rules apply only during main event: the trial
• many judges continue to follow FRE “loosely” in stages outside of trial
• rules of privilege are always followed

Evidence Relevancy

401

• facts in evidence prove facts of consequence
• very low standard
• evidence is relevant even when opposing party concedes to issue that evidence would prove
• trial lawyers should always be prepared to articulate a clean connection b/t evidence they offer and their legal theory

Is evidence relevant?

403

Raising Objections

How to Object

103

2 Mechanisms for Disputing Evidence @ Trial

1) by objections - registered before opponent introduces potentially inadmissible evidence

2) motion to strike - occurs after disputed evidence has already entered

• MTS examples:
• witness answered irrelevant question before opposing counsel objected
• witness answered relevant question w/ inadmissible information

• parties are required to challenge evidence in a timely manner
• object as soon as objection ground(s) is known or reasonably should be known
• counsel required to state “the specific ground” for any objection
• no specificity = no preserved challenge of denied objections
• multiple grounds = multiple explanations of specificity

"once trial counsel has made a specific & timely objection and judge rules definitely, issue is preserved for appeal"

Subsequent Remedial Measures

407

• encouragement of prompt action to dangerous conditions
• action taken after the injury
• actions taken by a 3rd party are not excluded here
• DOES NOT exclude evidence when used for:
• impeachment
• if disputed:
• ownership
• control
• feasibility

Subsequent Remedial Measures

407

Negotiations & Settlements

408

• to ensure that parties are not inhibited from making offers or statements during the settlement negotiation process
• precludes settlement discussions

1) claim that was

2) disputed and it occurred during

3) "compromise negotiations" and party is offering statement

4) liability purposes

Negotiations & Settlements

408

Offers to Pay Medical

409

Offers to Pay Medical

409

• "paying, promising to pay, or offering to pay medical (or similar) expenses
• similar expenses: all kinds of medical treatments & physical rehabilitation
• NOT: lost wages, automobile repairs, other economic or property damages

property damage (offer or promise of) payment does not fall in this rule of evidence

Plea Bargaining

410

-this rule applies in both civil & criminal trials

BARS:

• some evidence of offers to plead guilty
• statements made during plea bargaining process
• nolo contendere plea

ADMITS:

• final guilty plea - that's a conviction
• statement outside of a "plea discussion"
• statement introduced that goes against someone other than Δ
• statements against Δ when....

--needed for fairness from misleading statements

--used for perjury prosecutions

• use of any plea discussions DURING SENTENCING PHASE

Plea Bargaining

410

Liability Insurance

411

• only precludes evidence of liability insurance if offered to prove fault

• any purpose other than proof of liability is permissible as long as purpose is relevant to the dispute:
• proving a witness’s bias or prejudice
• proving agency, ownership, or control

Is the witness qualified?

Witness Qualifications

Lay Witness

701

Lay Witness

701

-rationally based on witness's perception.

-helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

-not based on specialized knowledge

Expert Witness 702

-not limited to the scientific and technical but extends to all specialized knowledge

Expert Witness

702

Common 611 Objections

Refreshing a Witness's Memory

Refreshing Witness's Memory

612

5 Steps of Refreshing

1) establish witness doesn't recall the answer to a question

2) describe writing W wishes to use & ask if writing would refresh

3) show W the writing

• W will examine writing & put it aside (usually giving it back to attorney)

4) ask W if writing has refreshed their recollection or helped W remember

• W should answer yes, then proceed to answer original question

5) either before or during this process, “refreshing” attorney must give opposing counsel a copy of writing

-any document can be used as "writing"

• whether W completed the document themselves
• as long as W states that it will help them remember
• examples: diary, audiotapes, photos, newspaper article

-W’s testimony doesn't need to be exactly the same as information contained in the writing

to “qualify” writing, witness must state...

1) they do not remember the answer to the question being asked; and

2) seeing the writing will “refresh her recollection”

Judicial Witnesses

614

• authorizes judge to call his own witnesses & interrogate witnesses other parties call
• counsel must object to preserve error
• may wait until next time the jury isn't in the courtroom to object to a judge’s question or witness

Judicial Witnesses

614

Witnesses Vacating the Courtroom

615

Witnesses Vacating the Courtroom

615

• upon request, judge must exclude witnesses out of the courtroom until it is their time to testify

1) can be invoked by either party or by judge

2) gives the judge no discretion (almost always excluded)

3) does NOT apply to...

• criminal Δs (COTUS right)
• expert witnesses (observe other witnesses for their own testimony)

Completeness

106

• allows a party to introduce qualifying portions of a writing/recorded statement as soon as the opponent offers first portion
• may be used to introduce other whole writings or recordings when necessary to understand document in question

INCLUDES: writings & recorded statements

DOESN'T INCLUDE: oral conversations, photographs, & physical objects

Completeness

106

Truthful or Untruthful Character

Truthful & Untruthfulness

608

608(a) reputation or opinion

-allows general reputation or opinion evidence of a character

-admits testimony of general truthfulness on those individuals that testify at trial only after that character has been attacked

-only applies to witnesses (must take the stand)

-not an attack to show bias

608(b) specific instances of conduct

-party may ask about "specific instances of untruthful conduct" on cross to suggest W is untruthful

-judge has discretion to limit to prevent/limit this questioning

-proof of the instances by extrinsic evidence is barred

(if W lies about untruthful instances, attorney is out of luck)

-truthful instances admitted if truthfulness has been "challenged"

truthfulness; not generosity, messiness

EXCEPTION: Rule 609 criminal convictions

Criminal Conviction

609

• admits W’s prior criminal convictions to impeach in certain scenarios
• W need not receive such a sentence; just be convicted of a crime that could be

ADMITS: pending appeal of prior conviction &/OR evidence

BARS: pardons, annulments, & certifications of rehab

Criminal Conviction

609

Religious Beliefs & Opinions

610

Religious Beliefs & Opinions

610

• INADMISSIBLE when offered to attack or rebut W’s testimony
• ADMISSIBLE when relevant to prove bias, damages, or motive
• damages: loss of consortium, lost wages, pain & suffering

When is character an element?

• defamation, child custody, entrapment, negligent entrustment

Witnesses Prior Statements

613

Witnesses Prior Statements

613

extrinsic evidence: any evidence other than current W's testimony on stand

collateral matter: matter relevant to case solely b/c it impeaches W

non-collateral matter proves a fact of consequence besides impeachment

(proves a fact in consequence and impeaches W? it's non-collateral )

• introducing party may surprise W with inconsistent statement but adverse party must be able to cross & examine contradictory document
• considerable freedom to ask witnesses about prior inconsistent statement
• more restrictive to introduce extrinsic evidence of a prior inconsistent statement

character evidence

404(a)

-prohibits use of “character” to suggest that that person is acting in accordance to that character

in criminal cases

-bars admission of evidence to prove a person’s personality trait only if used for a propensity purpose (implying that other purposes okay)

character

404(a)

criminal only

crimes, wrongs, & other

404(b)

-often allows evidence for purpose other than to prove character & propensity to act in a particular way in criminal & civil cases

-requires PQ to provide reasonable notice in criminal trials

-no bar if character is an element

crimes, wrongs, & other

404(b)

criminal/civil

Proving Character

405

(a) allows W to offer their opinion of a person THEN

on cross, court may allow counsel to ask about specific instances of the person's conduct

proving character

405

(b) explicitly allows that specific instances of conduct are admissible to prove character as an element of a crime, claim or defense

habit

406

religious beliefs & opinions

610

Hearsay w/in Hearsay

805

• separate the each "level" of hearsay
• each level must fulfill an exemption or exception

Declarant-Witness's Prior Statements

801(d)(1)

Declarant-Witness's Prior Statements

801(d)(1)

Opposing Party Statement

"party-opponent"

801(d)(2)

• a party should not be allowed to object to the admission of her own statement on the grounds that the statement is unreliable
• any statement by a party is exempt from the hearsay rule when offered against that party
• any: inculpatory, exculpatory, or neutral
• in other words: "use someones words against them"

• this exemption does not require personal knowledge

Opposing Party Statement

801(d)(2)

Present Sense Impression

(1) Present Sense Impression

1) exception applies only to description or explanation of an event,

• not to more complex analysis or interpretations
• no complex mental process can be used

2) declarant must make it while perceiving the event or “immediately after” the event

Excited Utterance

(2) Excited Utterance

1) declarant must speak while excited by a startling event

• subjective standard: the particular Δ must have been excited by the event
• some: extensive shock after witnessing a startling situation
• professionals: typically more controlled
• stress is not equated to excitement (sudden is more closely related to excitement)

2) must “relate to” the startling event

• the statement may be a description, explanation, analysis, or interpretation of an event
• unrelated comments aren't admissible under this even if still "excited"

State of Mind

• state of mind is only applicable if the statement is describing a current state of mind
• not if the comment is about a past condition

• AR: allows parties to introduce state of mind referring to future actions of another Hillmon Doctrine

(3) State of Mind

Medical Treatment

(4) Medical Treatment

1) statement must be made for medical diagnosis or treatment [by a non-doctor]

• subjective requirement: patient must actually be seeking medical care

2) statements must be reasonably pertinent to diagnosis or treatment

• objective requirement

3) statements must fit within one of the rule’s categories:

• accounts of medical history
• descriptions of past or present symptoms or sensations
• reports about the “inception” of the condition or its “general cause”
• statements of blame are not okay, this must be direct
• slight inference is still okay

**doctor to patient professional statements do not enter under this exception b/c of doctor-patient privilege

Recorded Recollection

1) a record;

• "a memorandum, report, or data compilation" 101(b)(4)
• not limited to a "writing"

2) witness made or adopted;

3) where witness once had a personal knowledge;

4) adopted the record when that knowledge was fresh ;

5) testifies that information was then and is now accurate; and

• witness has forgotten

(5) Recorded Recollection

Business Records

1) exception applies to any “record”

• no format restrictions

2) information must have been recorded by…

• person w/ personal knowledge of the data; or
• person who received information from someone w/ personal knowledge in organization
• timing must also be “at or near the time” that the data arose (*low standard)

3) organization must have made the record in the course of a regularly conducted business activity & organization must have a regular practice of keeping such records

4) a qualified witness must introduce the record into evidence (very broadly interpreted)

• any person w/ necessary knowledge to lay a proper foundation for document is qualified
• often record’s “custodian”

(6) Business Records

Who is a business?

any “business, organization, occupation, or calling, whether or not for profit”

Big Caveat

-some regular business records lack the indicia of reliability

(ex: routine safety checks, b/c self-serving in injury liability suits)

What is a record?

-any “memorandum, report, or data compilation”

-further includes an “act, event, condition, opinion, or diagnosis"

Public Records

• allows parties to admit public records into evidence for the truth of the matter asserted
• public office: any public agency

(8) Public Records

Unavailability

804(a)

• only if the declarant is unavailable will the statement meet the exceptions under this rule

Wrongdoing Caveat

• to prevent improper behavior by parties
• party offering a witness’s out-of-court statement cannot cause unavailability through wrongful means
• don’t kill (or order a hit on) W…

Unavailability

804(a)

Former Testimony

Former Testimony

804(b)(1)

1) declarant is unavailable

2) prior statement was given at a trial, hearing, or deposition

• formal setting
• could be in a different lawsuit (careful w/ #4)

3) opponent had opportunity to develop [predessor's] testimony

• no need for actual development, just a chance to

4) opponent had similar motive to develop testimony

• prior questioning substitutes adequately for the absence of cross examination in the current case

Dying Declaration

Dying Declaration

804(b)(2)

1) declarant is unavailable unavailable

• dying declarant may recover

2) only applies in homicide trials and civil proceedings

• recognizes criminal Δ’s right to confront witnesses
• avoids policy concerns of secondhand statements to convict Δ

3) declarant must believe that death is imminent when statement is made

• subjective requirement: declarant must believe death will happen...
• very soon (w/in a few hours) and
• it is inevitable

4) statement's contains cause or circumstances of declarant’s death

• only a statement describing cause or circumstance of death counts as a “dying declaration” for hearsay purposes

Statements Against Interest

1) declarant unavailable

2) statement was against interest

3 ways a statement is against interest

a) contrary to party's proprietary or pecuniary interest

b) invalidate party's claim against another person

c) declarant is exposed to civil or criminal liability

3) at the time in was made

4) in criminal cases, corroboration for statements against penal interest

Statement Against Interest

804(b)(3)

Forfeiture

Forfeiture

804(b)(6)

1) declarant is unavailable

2) other party engaged or acquiesced in wrongdoing

3) intended to cause unavailability

4) wrongdoing caused the unavailability

-persuasion & begging aren't wrongdoing

statement that…

-is made under circumstances which would lead an objective witness reasonably to believe that statement would be available for use at a later trial

-has a primary purpose of creating an out-of-court substitute for trial testimony

-is to establish or prove past events potentially relevant to later criminal prosecution

• formal statements during litigation
• sworn statements before grand juries, at pretrial hearings, during trial, & at post-trial
• statements responding to conventional police interrogations

statement that…

-does not bear against the accused in the same way that a crime report does

• business records
• statements in furtherance of a conspiracy
• Δ’s own statements
• statements admitted to prove a point other than the truth of matter asserted

1) Is proffered statement testimonial?

no: not subject to CC

yes: go to #2

statement that...

-is made to law enforcement outside traditional interrogation →(use objective primary purpose test)

• primary purpose is to establish or prove past events potentially relevant to later criminal prosecution statement
• wife fills out a battery affidavit in her living room shortly after battery occurred statement
• wife’s 911 call during physical altercation “described ongoing emergency”, questions needed to resolve present emergency statement
• lab reports
• satisfies both “targeted individual” test Williams & formality line Justice Thomas statement
• satisfies either test statement
• fails both “targeted individual” test Williams & formality line Justice Thomas statement
• statements among private parties

Testimony Supporting Factors Clark

1) whether the interrogator was a law enforcement official

2) absence of “ongoing emergency”

3) situation’s formality

4) whether similar evidence is regularly admitted evidence “at the time of founding”

5) declarant's age

6) absence of other indications as "primary purpose of conversation was to gather evidence for prosecution”

Chart

2) Is declarant available for

cross-examination?

no: go to #3

yes: CC satisfied

Chart

3) Can PQ establish that declarant is unavailable AND Δ had prior opportunity to cross-examine declarant?

no: go to #3

yes: CC satisfied

403's Balancing Test

• balancing test requires court to evaluate unfair prejudice and probative value in the context of full evidentiary record
• stipulations do effect balancing test but don’t bar admissibility

403's Balancing Test

5 Influential Factors in Rule 403 Decision

1) extent to which evidence will arouse emotions or irrational prejudices of jurors

• likely to exclude those likely to trigger strong emotional reactions

2) extent to which jury might overvalue this evidence

• evidence slightly relevant but unduly given importance (dramatic)

3) strength of connection b/t the evidence and the elements of the case

• very strong connection may override strong emotional reaction

4) whether there are less prejudicial, alternative means advocate can use

• alternatives available to prove fact of consequence = evidence is inadmissible

5) whether it's possible to reduce prejudice/harm from introducing evidence

• redacted efforts, limited jury instruction

Limiting Instructions

105

• counsel may request a limiting instruction when evidence meant to be used for a specific party or purpose
• "don't think about a pink elephant" danger
• judge does not have discretion here
• is requested by a party, judge must provide limiting instructions