Evidence Rules & Notes
Evidence Rules & Notes
102 Purpose These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the (1) fair administration (2) efficentcy (3) promote development
develiopment of evidence law, to the end of ascertaining the truth and securing a just determinmation
104 Preliminary Questions (a) In Genneral. The court must decide any prelimianry question about whether a witness is qualified, a privilge exists, or evidence is Conditional Relevance: Important notes
admissible. In so deciding, the court is not bound by evidence rules, except those on privledge (1) This rule is rarely invoked. 401 is more common and more straight forward
(b) Relevance that Depends on Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficent to (2) There is no bright line between when to use 104(b) and 401, but if it's labeled as
support a finding that the fact does exist. The court mya admit the propposed evidence on the condition that the proof be introduced later "conditional evidence" then it must be analyzed under 104(b)
(c) This portion is in the box below because it was called out specifically on the syllabus (3) Not much turns on the distinction between 401 and 104(b)
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not
become subect to cross-examination on other issues in the case
(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party's riht to introduce before the jury evidence taht is relevant
to the weight or credibility of other evidence
104(c) Conducting a Hearing So That the The court musc onduct any hearing on a preliminary question so that the jury cannot hear it if:
Jury Cannot Hear It (1) the hearing involves the admissibility of a confession;
(2) a defendant ina criminal case is a witness and so requests; or
(3) as justice so requires
105 Limiting Evidence That Is Not If the court admits evidence that is admissible against a party or for a purpose -- but not against another party or foranother purpose -- the
Admissible Against Parties or for court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
Other Purposes
106 Remainder of or Related Statements If a party introduces all or party of a statement, an adverse party may require the introduction, at that time, of any other part -- or any other
statement -- that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.
201 Judicial Notice of Adjudicative (a) Scope. This rule governs judicila notice of an adjudicative fact only, not a legislative fact Can be noticed if:
Facts (b) Kinds of Facts that May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute becasue it: (1) it is generally known within the court's territorial jurisdiction; or
(1) is generally known within the trial court's territorial jurisidction; or (2) it can be accurately determined by sources that are not reasonably disputed
(2) can be accurately and redily determined from sources who accuracy cannot reasonably be questioned.
(c) Taking Notice. The court: Examples: scientific facts (like the sun rises in the east), matters of geography, matters of policitcal
(1) may take judicial notice on its own; or history (like who was president in 1984)
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information
(d) Timing. The court may take judicial notice at any stage of the proceeding. Examples of what it's not: A politician's unoffical conduct, anything that is a private experience
(e) Oppurutnity to be heard. On timely request, a party is entitled to be heard on the propriety of taking judical notice and the nature of the or personal observation
fact to be noticed. If the court takes judicial notice before notifiying a party, the party, on request, is still entitled to be heard.
(f) Instructin ghte Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court The court cannot go conduct it's own research and rely on that research that fails to meet the
must instruct the jury that it may or may not accept that noticed fact as conclusive 201 standard. In the Matter of Rokowiski & Rokowiski, page 15
403 Excluding Relevant Evidence for The court may exclude relevant evidence if its probabitve value is substantially outweighed by a danger of one or more of the following: More Prejudicial than Probative
Prejudice, Confusion, Waste of unfair prejudice, confusing issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumualtive evidence
Time, or Other Reasons The rules lean in favor of admissibility. Thus, the prejudicial value has to substantially outweigh
the probative value. This is a higer bar than what's in 401, but it's a bar nontheless
"Unfair prejudice" means: an undue tendency to suggest dcision on an improper basis, commonly,
though not necessarily, an emotional one
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agnecy; Scope of Waiver. When the disclosure is made in a
federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-produce protection, the waiver extends to
an undisclosed communicaiton or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or informatino concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosrue does not operate as a waiver in
a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectiy the error, including (if applicable) following the FRCivP 26 (b)(5)(B)
602 Need for Personal Knowledge A witness may testify to a manner only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the The witness must of personally observed the relevant fact(s) with their own senses and they have to
matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert be able to recall the event.
testimony under Rule 703.
607 Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness's credibility.
608 A Witness's Character for (a) Reputation or Opinion Evidence. A withness's credibility may be attacked or supported by testimony about the witness's reputation
Truthfullness or Untruthfullness for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about the character. But evidence of
truthful character is admissible only after the witness's character for truthfulness has been attacked.
(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 atatck or support the wtiness's character for turthfulness. But the court may, on cross-examination,
allow them to be inquired into if they are probative to the character for truthfullness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined testified about
By testifying on another matter, a witness does not waive any privilege against self-incimination for testimony that realtes only to the
witness's character for truthfulness
609 Impeachment by Evidence of a (a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction: If the evidence is being offered against the defendant, the following four factors are used to
Criminal Conviction (1) for a crime that, in the convicting jurisidiction, was punishable by death or imprisonment for more than one year, the evidence: balance it's probative and prejudical value:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not the defenant; and (1) The kind of crime involved - crimes of violence are less probative than theft, fraud, or other
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its lying crimes
prejudical effect to that defendant: and (2) When the conviction occurred - if it’s over 10 years old, it’s presumed to be more prejudicial
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the (3) The importance of the defendant’s testimony - the more evidence the defense can offer, the
elements of the crime required proving --- or the wtiness admitting --- a dishonest act or false statement less prejudicial the prior conviction is
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's (4) The importance of credibility of the defendant - for charges like fraud, theft, and similar
conviction or release from confinment for it, whichever is later. Evidence of the conviction is admissibly only if: cases, the defendant’s credibility will be more important than others
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudical effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opporutnity to
constest its use.
(c) Effects of a Pardon, Annulment, or Certificate of Rehabilityation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilityation, or other equivalent procedure based on
finding that person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for
more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is
also admissible
701 Opinon by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: Officers can not testify about an inverstigation they did not do first hand through 701. This would
(a) rationally based on teh wtiness's perception; be an expert testimony under 702 since they did not witness the information first hand.
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
702 Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or Opinion must "help the trier of fact" which means that the testimony:
otherwise if that proponent demostrates to the court that is is more likely than not that: (1) relates to a specalized, technical, or scientific topics unfamiliar to a layperson or;
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a (2) supplements or reveals counterintuitive aspects of a familiar topic
fact in issue;
(b) the testimony is based on sufficent facts or data;
(c) the testimony is the product of reliable application of the prinicples and methods; and
(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case
703 Bases of an Expert's Opinon An expert witness may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in An expert can rely on otherwises inadmissible hearsay or evidence to form a basis of their
Testimony the particular field would reasonably rely on those facts or data in forming an opinion on the subject, they need not be admissible for the conclusion if others in the field of would done so. However, they cannot simply trasmnitt the
opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury inadmissable evidence to the jury. They must form their own opinion based off of that information.
only if their probative value in helping the jury evalutate the opinion substantially outweighs their prejudicial effect. The information relied on is still not admissible and cannot be trasmitted through the expert.
704(a) Opinion on Ultimate Issue In General - Not Automatically Objectionable. An opinion is not objectionable just becasue it embraces an ultimate issue.
704(b) Exception to Opinion on Ultimate Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or
Issue condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
801(a)-(c) Definitions That Apply to This (a) Statement. "Statement means a person's oral assertion, written assertion, or nonverbal conduct, if the person intneded it as an assertion. For something to be hearsay it must have a person authoring the statement who is trying to
artilce; Exlusions from Hearsay (b) Declarant. "Declarant" means the person who made the statement. communicate something. If a program, animal, or other nonhuman thing authors the statement
(c) Hearsay. "Hearsay" means a statement that: then it is not hearsay
(1) the delcarant does not make while testifying at the curren trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement. Not offered for the truth of the matter asserted therein - if a statement is not offered for the truth of
the matter asserted there in, then it is admissible. Possible exemptions are:
1. Effect on the listener
2. Impeachment purposes
801(d)(1)(A)-(C) Statements That Are Not Hearsay A Declarant-Witness's Prior Statement. The declarant testifies adn is subject to cross-examination about a prior statement, and the statement:
(A) is incosistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a
depostion;
(B) is consistent with the declarant's testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive
in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or
(C) identifies a person as smoeone the declarant preceived earlier
801(d)(2) Opposing Party Statement The statement is offered against an opposing party and: 801(d)(2)(B) - when the defendant says nothing the centeral question is if a person who heard and
(A) was made by the part yin an individual or representative capacity; understood the statement would indicate disagreement if they believed it was untrue - given the
(B) is one the party manifested that it adopted or believed to be true; circumstances
(C) was made by a person whome the party authorized to make a statement on the subject;
(D) was made by the party's agent or employee on a matter within the scope of that relationship while it existed; or 801(d)(2)(E) - to get a statement in under this exception, they must show that the statement was
(E) was made by the party's coconspirator during and in furtherence of the conspiracy made "during and in furtherance of the conspiracy"
The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship
under (D); or the existence of the conspiracy or participation in it under (E).
802 The Rule Against Hearsay Hearsay is not admissible unless any of the following provides otherwise:
(1) a federal statute;
(2) these rules; or
(3) other rules prescribed by the Supreme Court
803(1)-(2) Exceptions: Present Sense (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant To be admissible under 803(1) the statement must:
Impression; Excited Utterance percieved it. (1) Describe an event or condition without calculated narration
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of the excitement (2) The speaker must have personally perceived the event or condition; and
that it caused. (3) The statement must of been made while the speaker was perceiving the event or condition,
or immediately thereafter
803(3)-(5) Exceptions: Then-Existing Mental, Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, 803(4): To get in a statement under this exception the party must show that the declarant's "state of
Emotional, or Physical Condition; or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory mind. . . was that of a patient seeking medical treatment." and that the statement was "reasonably
Statement made for Medical or belief to prove the fact remebered or to be believed unless it realtes to the validitiy or terms of the declarant's will. pertinent" to the medical provider's diagnosis and treatment
Diagnosis; Recorded Recollection Statement Made of Medical Diagnosis or Treatment. A statement that:
(A) is made for -- and is reasonably pertinent to -- medical diagnosis or treatement; and
(B) describes medical hsitory; past or present symptoms or sensations; theri inception; or their general cause.
Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and
(C) accurately reflects the wtiness's knowledge.
If admitted, the record may be read into evidence but may be recieved as an exhibit only if offered by an adverse party.
803(6)-(8) Exceptions: Regularly Conducted Records of a Regularly Conducted Buisness Activity. A record of an act, event, condition, opinion, or diagnosis if: 803(6) - the buisness records cannot be made with "an eye towards litigation." Palmer
Buisness Activity Record; Absence (A) the record was made at or near the time by -- or from information trasmitted by -- someone with knowledge; - if the statement is made by an outsider (who is not in the organization) there has to be another
of Regularly Conducted Buisness (B) the record was kept in the course of a regularly conducted activity of a buisness, organization, occupation, or calling, whether or not for exception to let it in
Activity Record; Public Record profit;
(C) making the record was a regular practice of that activity;
(D) all thse conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with
Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or cicumstances of preparation indicate a lack of
trustworthiness.
Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) is a record regularly kept for a matter of that kind; and
(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcment
personnel; or
(iii) in a civil case or agaisnt the government in a criminal case, factual findings from a legallly authorized investigation; and
(B) the opponent does not show that the source of information or other cirucmstances indicate a lack of trustworthiness
804(b)(1)-(3) Hearsay Exception: Declarant Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: Can only be invoked when the declarant is unavailable. (803 can be invoked if the declarant is
Unavailable (1) Former Testimony. Testimony that: available or not)
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had -- or, in a civil case, whose predecessor in interest had -- an opportunity and similar motive
to develop it by direct, cross, or redirect examination.
(2) Statement Under the Belief of IMminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while
believing the declarant's death to be imminent, made about its cause or circumstances.
(3) Statement against Interest. A statement that:
(A) a reasonable person in the declarn'ts position would have made only if the person believed ti to be true, because, when made, it was
so contrary to the declarant's proprietary or pecuniary interest or had so great a tendancy to invalidate the declarant's claim against someone
else or to expose the declarant to civil or criminal liability; and
(B) is supported by conrroborating circumstances that cearly indicate its trustworthiness, if it is offered in a criminal case as one that
tends to expose teh declarant to criminal liability.
806 Attacking and Supporitng the When a hearsay statemnt -- or a statement described in Rule 801(d)(2)(C), (D), or (E) -- has been admitted in evidence, the declarant's
Declarant's Credibility credibility may be attacked, and then supported, by any evidene that would be admissible for those purposes if the declarant had testified as a
witness. The court may admite evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the
declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the
party may examine the declarant on the statement as if on cross- examination.
807 Residual Exception (a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not
admissible under a hearsay exception in Rule 803 or 804:
(1) the statement is supported by sufficient guarantees of trustworthieness -- after considering the totatlity of cirucmstances under which it
was made and evidence, if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement --
including the substance and teh declarant's name -- so that the party has a fair opporutnity to meet it. The notice must be provided in writing
before the trial or hearing -- or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.
901 Authenticating and Identifying (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence
Evidence sufficient to support a finding that the item is what the proponent says it is.
1001 Definitions that Apply to this just know this one, i'm not writing it down
Article
1002 Requirement of Original An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise. Best Evidence
1003 Admissibility of Duplicates A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the
circumstances make it unfair to admit the duplicate.
1004 Admissability of Other Evidence of An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
Content (a) all the oringinals are lost or destroyed, and not by the proponent acting in bad faith
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at the time put on notice, by pleadings or
otherwise, that the original would be subject of proof at the trial or hearing; and fails to produce it at the tiral or hearing; or
(d) the writing, recording, or photograph is not closely related to the controling issue.
1005 Copies of Public Records to Prove The proponent may use a copy to prove the content of an officail record -- or of a document that was recorded or filed in a public office as
Content authorized by law -- if these conditions are met: the record or document is otherwise admissible; and the copy is certififed as correct in
accordance with Rule 902(4) or is testified to be correct by a witness who has cmopared it with the original. If no such copy can be obrtained
by reasonable diligence, then the proponent may use other evidence to prove the content.
1006 Summaries to Prove Content The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photgraphs that cannot be
conveniently examined in court. The proponent must make the originals or duplicates available for examining or copying, or both, by other
parties at a reasonable time and place. And the court may order the proponent to produce them in court.
1007 Testimony or Statment of a Party to The proponent may prove the content of a writing, recording, or photography by the testimony, deposition, or written statement of the party
Prove Content against whome the evidence is offered. The proponent need not account for the original.
1008 Functions of the Court and Jury Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a
writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines -- in accordancce with Rule 104(b) -- any
issue about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.
1101 Application of the Rules (a) To Courts and Judges. These rules apply to proceedings before:
Disctrict Courts, Bankruptcy and Magistrate judges, Courts of Appeals, Federal Claims
(b) To Cases and Proceedings. These rules apply in:
Civil cases, Criminal cases, and contempt proceedings - except when court acts summarily
(c) Rules on Privilege. The rules on privilge apply to all stages of a case or proceeding.
(d) Exceptions. These rules -- except for privilege -- do not apply for
Rule 104(a) hearings, grandy-jury proceedings, miscellaneous proceedings
(e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence
independently from these rules