1.Relevance

RULE 401 - Definition of “Relevant Evidence

“Relevant evidence” means having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence.

NOTES:

  • first hurdle of admissibility
  • must be “probative of a fact of consequence to the determination of the action”
  • “fact of consequence…” is a fact helpful to resolving the suit; can be (1) an element of the cause of action, claim, or defense; (2) the credibility of the witnesses; and (3) background facts
  • parties need not only introduce evidence that is in dispute

RULE 402 - Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

RULE 104(b) - Preliminary Questions

(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition

NOTES:

  • when the relevance of evidence depends on the existence of a separate fact, the evidence is considered to be “conditionally relevant”
  • evidence will be admitted if judge think reasonable jury find the fact exists by a preponderance of the evidence; looks to see if jury could find witness credible, not if witness is actually credible
  • can be considered part of a foundational issue; can be considered a type of competency issue because it requires a minimum connection to the facts of the case

RULE 403 - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if it probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

NOTES:

  • disallows relevant evidence when such evidence has an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one”
  • need for relevant evidence trumps concerns about unfair prejudice, hence “substantially”
  • 403 can only be used after a judge has concluded that a limiting instruction would be insufficient to offset prejudice

COMMON EVIDENCE FOUND “UNFAIRLY PREJUDICIAL” -

PROBABILITY EVIDENCE: using statistical evidence to imply that it would be highly unlikely that another person committed the crime [ex. at trial, defense claims mistaken identity, while pros. brings in statistician who claims a one in a million chance someone else did it]

EVIDENCE OF EXCESSIVE VIOLENCE: it is improper to offer evidence of a horrific act of violence when it is sure to so blind a jury to the facts as to push them to an emotional decision; evidence cannot be so violent in appearance that a reasonable jury will “lose its lunch” as a result of viewing it

SCIENTIFIC EVIDENCE: if evidence is not “substantially similar” to the even it is trying to create, it can be highly prejudicial and thus be excluded; falls usually to experts [Rule 702]

SIMILAR OCCURENCES, HAPPENINGS, AND EVENTS: when there is a lack of evidence, use of similar occurrences is attempted to corroborate their theory; sometimes allowed in (1) to show causation; (2) to show a dangerous condition existed; (3) to show the mental state of a party when it is at issue; (4) to rebut a party’s claim of impossibility; (5) to show the sales of other real property (to prove value); (6) to show the meaning of a contract, contract provision or document; and (7) to show the meaning of a contract, contract provision or document (custom)

AUTHENTICATION

All evidence that is to be admitted at trial must first be authenticated, per Rule 901. This involves laying foundation showing relevance, a basic level of reliability, and that it is what it purports to be. Rule 902 lists items that do not require extrinsic evidence to prove authenticity [domestic public records under seal, domestic public records not under seal, foreign public documents, certified copies of public records, official publications, newspapers and periodicals, trade inscriptions and the like, acknowledged documents, commercial paper and related documents, presumptions under Acts of Congress, certified domestic records of regularly conducted activity, and certified foreign records of regularly conducted activity].

TRADITIONAL QUESTIONS/PROCEDURE FOR AUTHENTICATION:

  • Do you recognize Exhibit #1 for identification purposes?
  • What is Exhibit #1 for identification purposes?
  • How do you recognize it?
  • [since documentary evidence can be modified] Witness, is Exhibit #1 for identification purposes in substantially the same condition as it was when you last saw it?
  • [sometimes chain of custody must be proven]
  • Is Exhibit #1 for identification purposes a fair and accurate representation of what it depects as of a particular time and date [when the incident occurred]?
  • [at this point usually entered into evidence]

RULE 1001 - Contents of Writings, Recordings, and Photographs

Definitions. For purposes of this article the following definitions are applicable:

(1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(2) Photographs. “Photographs” include still photographs, X-ray films, video tapes and motion pictures.

(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original.”

(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original.

RULE 1002 - Contents of Writings, Recordings, and Photographs

To prove the content of a writing, recording, or photograph, the original writing, recording or photograph is required, except as otherwise provided in these rules or by Act of Congress.

NOTES:

  • “best evidence” rule; aims at minimizing potential authenticity problems by imposing requirement that original be produced
  • rule only applies when witness is testifying solely from a writing or when a party attempts to prove the contents of a writing; includes written confession, the written contract, or motion picture [containing an obscenity]
  • there are a host of exceptions to the rule: Rule 1003 [admission of duplicates unless question of authenticity of original or if unfair to use instead of original], Rule 1004 [admission of other evidence if original is lost/destroyed, not obtainable, in possession of opponent, or collateral matters], Rule 1005 [public records may be proven by copy], etc.

CASES:

PEOPLE V. COLLINS [1968]

RULE: “…it was prejudicial error to allow the prosecution to offer, through an expert, a formula in statistical probability, logically irrelevant and evidentially inadequate, from which the jurors were invited to infer that the odds against defendants' innocence were one in 12,000,000, where the circumstantial nature of the evidence and length of the jury deliberation showed that the case was a close one, and where, under the circumstances, the "trial by mathematics," with which the jurors were not technically equipped to cope, so distorted their role and so disadvantaged defense counsel as to constitute in itself a miscarriage of justice.”

OLD CHIEF V. UNITED STATES [1997]

RULE: When offers to concede the existence of a prior conviction, a court abuses its discretion if it rejects the offer and admits the full record of a prior judgment when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of a prior conviction.

SEILER V. LUCASFILM, LTD. [1986]

RULE: Court held that: (1) plaintiff's drawings constituted "writings" for purposes of best evidence rule; (2) best evidence rule applied in plaintiff's copyright infringement case and thus plaintiff had to show that originals were lost or destroyed through no fault of his own; and (3) rule defining evidentiary weight to be accorded certificate of copyright registration did not require admission of copies of artist's work deposited at Copyright Office where certificate of copyright had no bearing on ultimate facts artist sought to prove by its submission.

2.The Examination and Impeachment of Witnesses

RULE 601

General Rule of Competency. Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

NOTES:

  • all persons are generally considered competent to testify; judges, per Rule 605, are not included
  • two situations where jurors might testify: juror has information about facts in dispute/juror might testify to improper conduct by the jury [covered by Rule 606]; if juror is called as witness, opposing party may object outside the presence of the jury
  • juror may only testify on the topic of whether or not “extraneous prejudicial information was improperly brought to the jury’s attention or whether outside influence was improperly brought to bear upon any juror…” [Rule 606(b)]

RULE 602

Lack of Personal Knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

ORDER, SCOPE, AND FORM OF DIRECT/CROSS EXAMINATION

  • proponent of witness calls witness first
  • opposing parts, per 611(b) can only cross about “subject matter of direct examination and matters affecting credibility”
  • proponent may then redirect: rebuttal or exploration of points raised on cross-examination

COMMON OBJECTIONS

  • leading questions: questions that suggest an answer
  • asked and answered
  • compound questions; two or more questions in a single sentence
  • questions assuming facts not in evidence
  • argumentative questions; phrased in such a way to engage in improper argument
  • calls for speculation; asks something about which no knowledge or for inadmissible opinion
  • non-responsive
  • narrative; answers exceed the scope of the question

RULE 612

Writing Used to Refresh Memory. (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the part entitled thereto…

NOTES:

  • judges retain discretion to refuse to permit some writings to be used
  • impeachment is a form of evidence, while refreshment is not

REHABILITATION OF WITNESS

  • pre-emptive rehabilitation is not permitted
  • credibility can be rehabbed after his/her truthfulness has been directly attacked
  • can occur through redirect or separate reputation or opinion witness testifying to good character

IMPEACHMENT

RULE 607

Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling the witness.

COMMON TYPES OF IMPEACHMENT -

CONTRADICTION: may be impeached by contradiction concerning facts not dispositive or important to case [if inaccurate about one fact, likely to be inaccurate about others]; a party may not introduce extrinsic proof that particular details in testimony are false unless topic of testimony would be relevant in trial regardless of witnesses having or having not testified about it [must relate to a main issue at trial]

BIAS: witness is shown to be influenced, prejudiced, or predisposed toward or against one party; common sources of bias include family ties, financial ties, and membership to an organization - sometimes a witness has made a deal with prosecutors for a lesser sentence [this might be excluded if deal did not involve obligation to testify]

CRIMINAL CONVICTIONS: conviction makes witness less believable; two types, crimes of dishonesty or false statement and felonies [see Rule 609 below]

PRIOR UNTRUTHFUL/BADACTS: drug use, speeding, tax fraud, even if acquitted, can impact

TESTIMONIAL CAPACITIES: physiological defects, bad hearing, eye sight, allows examiner to display to jury problems with witness that impact the veracity of testimony; independent evidence on the topic of shortcomings of a witness’ perceptive capacities is also permitted

PRIOR INCONSISTENT STATEMENTS: except in limited circumstances, the jury may not rely on the truth of what prior statement asserts, but simply use its inaccuracy to disbelieve current testimony [see Rule 613 below]

POOR CHARACTER FOR TRUTHFULNESS: can be introduced as both “opinion and reputation” evidence, as well as “specific instances of conduct [see Rule 608 below]

RULE 608

Evidence of Character and Conduct of Witness. (a) Opinion and reputation evidence of character. The credibility of a witness maybe be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence of otherwise.

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matter that relate only to character for truthfulness.

NOTES: OPINION

  • attack on character with opinion or reputation must refer only to character of truthfulness or untruthfulness
  • can only be introduced once the specific trait is attacked
  • a simple prior inconsistent statement does not fit under “or otherwise” in this rule; inconsistency raising an inference of untruthful nature may meet the “or otherwise” part [usually does not trigger right of rebuttal]
  • only a suggestion of untruthful character permits an truthful character counter-strike

NOTES: SPECIFIC INSTANCES OF CONDUCT

  • at court’s discretion may be inquired to in character of witness or another witness for truthfulness/untruthfulness
  • unlike 404 and 405, 608(b) changes rule for evidence used to impeach; specific acts may be used to impeach character, but only if those acts are elicited from the mouth of the witness whose character is being challenged
  • if witness denies incident took place, witnesses may not be called to prove otherwise
  • if extrinsic evidence is offered to impeach on grounds other than character, 402 and 403 apply

RULE 609(a)(1) - Impeachment by Evidence of Conviction of Crime

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and…

NOTES:

  • some felonies are probative of falsehood, some are not
  • for most witnesses, Rule 609(a)(1) applies the usual Rule 403 balancing test; a witness who is also a criminal accused, the court may admit the evidence only if it the proponent can prove it is more probative than prejudicial, a higher standard than 403
  • the degree which the crime reflects on credibility
  • the nearness/remoteness of the prior conviction
  • the similarity of the prior offense with the one charged - this factor weighs against admissibility when the only theory of admission is impeachment of the accused; if two auto-thefts are very similar, might come in under 404(b), but not simply for impeachment
  • the extent to which defendant’s testimony is needed for fair adjudication of the trial; if defendant’s testimony is crucial to defense, if this is admissible, less likely defendant will testify
  • whether defendant’s credibility is central to the case

RULE 609(a)(2) - Impeachment by Evidence of Conviction of Crime

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

NOTES:

  • evidence that a witness has been convicted of any crime involving dishonesty or false statement shall be admitted
  • trial judge has no discretion to weigh probative value
  • dishonest crimes include: false statement, criminal fraud, false pretense, perjury…
  • does not include bank robbery/larceny

RULE 613(a) - Prior Statements of Witnesses

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

NOTES:

  • rationale: a person who says one thing one time and another thing another time has probably lied or suffered from memory deficiencies on one of the two occasions
  • the cross-examiner may accept the witness’ denial or explanation, but also has the right to introduce extrinsic evidence of the prior statement; extrinsic evidence of the statement could be a document/testimony by person who knows about statement [extrinsic evidence is controlled by Rule 613(b)]

RULE 613(b) - Prior Statements of Witnesses

(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny that same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).