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Evidence Rules - In Order Learned
Base Relevance Rules
1. Rule 402 - Admissibility of Relevant evidence a. "Relevant evidence is admissible unless any of the following provides otherwise:
i. the United States Constitution;
ii. a federal statute;
iii. these rules; or iv. other rules prescribed by the Supreme Court.
b. Irrelevant evidence is not admissible."
2. Rule 401 - Test for relevance a. "Evidence is relevant if:
i. (a) it has ANY TENDENCY to make a fact more or less probable than it would be without the evidence; and ii. (b) the fact is OF CONSEQUENCE in determining the action."
3. Rule 104:
a. (a) "Preliminary Questions -- In General. The court MUST decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is NOT bound by evidence rules, EXCEPT those on privilege."
b. (b) Relevance That Depends on a Fact. (Conditional Relevance)
i. When the relevance of evidence depends on whether a fact exists, proof
MUST be introduced sufficient to support a finding that the fact does exist. The court MAY admit the proposed evidence on the condition that the proof be introduced later.
4. **Rule 403 - Probative vs. Prejudicial a. The court MAY exclude RELEVANT evidence if its probative value is
SUBSTANTIALLY OUTWEIGHED by a danger of one or more of the following: UNFAIR prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.
1 Evidence Rules - In Order Learned
Specialized (Rule 403) Relevance Rules 407 to 411
5. Rule 407 - Subsequent Remedial Measures (Pretty much only CIVIL cases)
a. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the SUBSEQUENT MEASURES is not admissible to prove: (4 ABSOLUTES)
ii. Culpable conduct;
iii. A defect in a product or its design; or iv. A need for a warning or instruction.
b. BUT the court MAY admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures. (DISCRETIONARY)
i. Ex. Guardrail being put up after. If arguing it was negligent not to have a guardrail there, then you cannot introduce evidence of them putting a guardrail after the incident.
ii. If permitted, the judge MUST give a limiting instruction.
6. Rule 409 (More limited rule)
a. Evidence of furnishing, promising to pay, or offering to pay medical,
hospital, or similar expenses resulting from an injury IS NOT admissible to prove liability for the injury.
b. Rationale for Rule 409: we want to encourage - or at least not discourage -
people to make humanitarian offers of aid.
i. Peter has sued David over an accident that resulted in personal injury.
Immediately after the accident, David said to Peter: "I'm so sorry. I'll pay any medical bills you have."
ii. At trial, will Rule 409 prevent Peter from admitting evidence of
1. Partially yes and Partially no. Peter would not be able to introduce evidence of David paying for his medical bills but would be able to introduce him saying sorry.
7. Rule 408 (Evidence of trying to Settle a Claim)
a. (a) Prohibited Uses. Evidence of the following is NOT admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
i. (1) Furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and ii. (2) Conduct or a statement made during compromise negotiations about the claim — EXCEPT when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
b. Summary of rule - Evidence of offering to settle a disputed claim, evidence of actually agreeing to settle a disputed claim, statements made during settlement discussions of a disputed claim
2 Evidence Rules - In Order Learned i. None of that is used to prove or disprove the validity or amount of the disputed claim c. (b) Exceptions. The court MAY admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay,
or proving an effort to obstruct a criminal investigation or prosecution.
8. Rule 411 - Liability Insurance a. Evidence that a person was or was not insured against LIABILITY is NOT
admissible to prove whether the person acted negligently or otherwise wrongfully.
b. But the court MAY admit this evidence for another purpose, SUCH AS proving a witness's bias or prejudice or proving agency, ownership, or control.
c. An Important Note!
i. Rule 411 applies ONLY to evidence that someone is covered by
ii. The rule has NO IMPACT on admission of evidence of OTHER TYPES
of insurance (for example, life insurance, fire insurance, etc.).
9. Rule 410 - Pleas, Plea Discussions, and Related Statements a. (a) Prohibited Uses. In a civil or criminal case, evidence of the following is
NOT ADMISSIBLE AGAINST THE DEFENDANT who made the plea or participated in the plea discussions:
i. (1) a guilty plea that was later withdrawn;
ii. (2) a nolo contendere plea; (No Contest Plea)
iii. (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or iv. (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
b. (b) Rule 410(b) Exceptions. The court MAY admit a statement described in
Rule 410(a)(3) or (4): (MAY BE ON THE BAR)
i. (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or ii. (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
c. Very Important Point!
i. If a DEFENDANT PLEADS GUILTY and IS NOT ALLOWED TO
WITHDRAW THE PLEA, Rule 410 DOES NOT APPLY!
ii. Both the guilty plea and the resulting conviction - plus any statements the defendant made during the plea discussions - MAY be admissible against the defendant in later cases.
3 Evidence Rules - In Order Learned
Character Evidence; Crimes or Other Acts and Exceptions
10. Rule 404 - Character Evidence; Crimes or Other Acts a. General Rule: You cannot use evidence of a person's character or other acts to show - through propensity reasoning - how that person acted on a particular occasion.
b. (a) Character Evidence.
i. (1) Prohibited Uses. Evidence of a person's character or character trait is NOT admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
ii. (2) EXCEPTIONS for a DEFENDANT or VICTIM in a CRIMINAL
Case. The following exceptions apply in a criminal case:
1. (A) Defendant. A DEFENDANT MAY offer evidence of the
DEFENDANT'S PERTINENT trait, and if the evidence is admitted, the prosecutor MAY offer evidence to rebut it.
a. MUST be PERTINENT
i. The evidence must relate to a character trait that is pertinent to the charge the defendant is facing.
b. It is the defendant's choice i. The defendant must "open the door" to use of evidence regarding the defendant's character.
ii. The prosecution can't be the first to offer evidence of the defendant's bad character.
2. (B) Subject to the limitations in Rule 412, a DEFENDANT MAY
offer evidence of an alleged VICTIM'S PERTINENT TRAIT,
and if the evidence is admitted, the prosecutor MAY:
a. (i) offer evidence to rebut it; and b. (ii) offer evidence of the DEFENDANT'S SAME
i. This is true even if the defendant has introduced no evidence of his own character.
c. MUST be PERTINENT
d. Defendant must attack the victim's character before the prosecution can support the victim's character.
i. EXCEPTION: You cannot bring Victim's character into question in a RAPE case.
e. Limiting instruction necessary.
iii. (3) Impeaching a witness's character.
1. Exceptions for a Witness. Evidence of a witness's character MAY
be admitted under Rules 607, 608, and 609.
a. Applies to any witness in any case (Criminal or Civil)
c. (b) Crimes, Wrongs, or Other Acts.
i. (1) Prohibited Uses. Evidence of a crime, wrong, or other act (Before or After the crime charged) is NOT admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
4 Evidence Rules - In Order Learned ii. (2) Permitted Uses; Notice required in a CRIMINAL Case. This evidence MAY be admissible for another purpose, SUCH AS proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. [Requirement of prior notice to defendant in criminal cases.]
1. For example, that the evidence is admissible only to show that defendant had the necessary know-how to commit the crime, not to show that he is the sort of person to commit a crime like this.
2. If judge brought in, there MUST be a LIMITING
3. If the judge doesn't think this instruction is likely to be effective,
she MAY exclude the evidence under Rule 403.
11. Rule 406 - Habit; Routine Practice. (Be wary of using Habit)
a. Evidence of a person's habit or an organization's routine practice MAY be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court MAY admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
i. Habit does not show that someone tends to act one way, it shows they
ALWAYS act one way.
12. Rule 404(a)(2) added above
13. Rule 405 - Methods of Proving Character a. (a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it MAY be proved by testimony about the person's reputation or by testimony in the form of an opinion. On crossexamination of the character witness, the court MAY allow an inquiry into
RELEVANT specific instances of the person's conduct.
i. Does NOT allow defendant to use evidence of specific acts to prove defendant's (or the victim') character b. (b) By Specific Instances of Conduct. When a person's character or character trait is an ESSENTIAL ELEMENT of a charge, claim, or defense, the character or trait MAY also be proved by relevant specific instances of the person's conduct.
i. This Rule ONLY applies when a character trait is DIRECTLY tied to the type of crime.
1. Primarily NEGLIGENCE (Reason to Know) &
5 Evidence Rules - In Order Learned
Witnesses and Impeachment
14. Rule 607 - Who May Impeach a Witness **Rule 404 Witness Exception**
a. Any party, including the party that called the witness, MAY attack the witness's credibility.
i. [One minor limitation we'll talk more about later]: it's impermissible for a prosecutor to call a witness solely for the purpose of impeaching that witness with prior inconsistent statements.
15. Rule 611 - Mode and Order of Examining Witnesses and Presenting Evidence a. (c) Leading Questions. Leading questions should NOT be used on DIRECT
examination EXCEPT as necessary to develop the witness's testimony.
Ordinarily, the court should allow leading questions:
i. (1) on CROSS-EXAMINATION; and ii. (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
1. Leading Questions are generally fine on Cross-examination
2. Rule 611(c) is framed in permissive terms; it gives discretion to the trial court in deciding whether to allow leading and how much leading to allow.
16. Rule 404(a)(3) added above
17. Rule 608 - A Witness's Character for Truthfulness or Untruthfulness (Comes up very often) **Rule 404 Witness Exception**
a. (a) Reputation or Opinion Evidence. A witness's credibility MAY be attacked or supported by testimony about the witness's REPUTATION for having a character for TRUTHFULNESS OR UNTRUTHFULNESS, or by testimony in the form of an OPINION about that character. But evidence of truthful character is admissible ONLY after the witness's character for truthfulness has been attacked.
i. There must be an attack on a witness's character for truthfulness before a litigant may support the witness's character.
ii. But recall that Rule 607 allows either party (including the party who called the witness) to initiate a character-based attack on truthfulness.
iii. Proof of a witness's character is limited to reputation and opinion testimony, EXCEPT on cross examination of the witness.
b. (b) Specific Instances of Conduct. EXCEPT for a CRIMINAL CONVICTION
under Rule 609, extrinsic evidence is NOT admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court MAY, on CROSS-EXAMINATION,
allow them to be inquired into if they are probative of the character for
TRUTHFULNESS or UNTRUTHFULNESS of:
i. (1) the witness; or ii. (2) another witness whose character the witness being cross-examined has testified about.
6 Evidence Rules - In Order Learned
18. Rule 609 - Impeachment by Evidence of a CRIMINAL Conviction **Rule 404
a. (a) In General. The following rules apply to attacking a WITNESS'S
CHARACTER for TRUTHFULNESS by evidence of a CRIMINAL
i. (1) For a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
1. (A) MUST be admitted, subject to Rule 403, in a CIVIL case or in a CRIMINAL case in which the witness is NOT a defendant;
2. (B) MUST be admitted in a CRIMINAL case in which the witness IS a defendant, IF the PROBATIVE VALUE of the
EVIDENCE OUTWEIGHS its PREJUDICIAL EFFECT to that defendant.
a. Gordon: 5 factors to examine under 609(a)(1) when
WITNESS IS DEFENDANT (NEED TO KNOW BY
i. The nature of the crime. (Against Admission)
ii. The time of conviction and defendant's subsequent criminal history. (Supports
iii. The similarity between the past crime and the charged crime. (Against Admission)
iv. The importance of the defendant's testimony.
(May Weigh Against Admission)
v. The centrality of the credibility issue. (May
Weigh For Admission)
3. The actual sentence imposed is irrelevant.
4. But the possible sentence has to be more than one year.
ii. (2) Crime of Dishonesty or False Statement. For any crime regardless of the punishment, the evidence MUST be admitted IF the court can readily determine that establishing the elements of the crime required proving — or the witness's admitting — a dishonest act or false statement.
1. This rule is NOT subject to Rule 403!****
b. (b) Older Convictions. Governs admission of evidence of a conviction if MORE
THAN 10 years have passed since the witness's conviction or release from confinement for it, whichever is later.
i. Evidence of an older conviction is admissible ONLY IF:
1. (1) its PROBATIVE value (AS TO TRUTHFULNESS),
supported by specific facts and circumstances,
SUBSTANTIALLY OUTWEIGHS its PREJUDICIAL effect,
2. (2) the proponent gives sufficient written notice of its intent to offer such evidence.
a. Applies ONLY to a PROCECUTION WITNESS
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