Article I General Provisions

Rule Use Civil Criminal Cross Reference Comments

101

Scope

1101; 104; 201

Rules not applicable to 104 or 201 questions, grand jury proceedings, sentencing, bail hearings, preliminary exams, warrants for arrest/search; or Erie ?s Fairness; expense/delay; truth; promotion of growth/development of the law Errors must be on substantial rights of parties Objections must be timely, correct and specific (general ones n/a) Offer of proofs provided on exclusion Rulings should be away from jury presence Court may take notice of substantial rights (generally only used in criminal cases)

102 103

Purpose and Construction Rulings on Evidence

Y Y

Y Y

N/A Motions in Limine

104

Preliminary Questions

101

Court determines admissibility and does not need to use FRE in doing so; just privileges Conditions of fact: admit upon or subject to sufficient evidence to support conditional fact Hearings of admissibility should be out of jury presence If accused testifies on preliminary matter, that does not allow them to be subject to cross on other issues

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105

Limited Admissibility Remainder of or Related Writings or Recorded Statements

N/A

If evidence is only admissible for a certain reason or purpose, jury must be instructed on scope and evidence should be restricted to that matter

106

Adverse party may require introduction of remainder AT THAT TIME which ought to be in fairness considered contemporaneously

Article II Judicial Notice

Rule Use Civil Criminal Cross Reference Comments

201

Judicial Notice of Adjudicative Facts ** Type of fact that normally goes to the jury

Jury is instructed to accept as conclusive

Permissive inferences only

Substitute for Evidence 101: FRE do not apply when determining

Cannot be a fact in reasonable dispute Must be generally known OR Capable of accurate and ready determination by a source whose accuracy cannot be questioned Court may take notice on its own but shall if requested by party Cannot be first taken on appeal in criminal case Judge cannot use personal knowledge in determining

Article III Presumptio ns in Civil Actions and Proceeding s

Rule Use Civil Criminal Cross Reference Comments

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301

Presumptions Generally

Substitute for Evidence

If jury finds basic fact, must find presumed fact Bursting bubble view is supported: If any rebuttal evidence is presented as to the presumed fact, no jury instruction is given at all If no rebuttal evidence could have two jury instructions must find it was recd or if you find it was addressed properly, you must find it was recd

May give But may permissive give inferences permissive if PF is inference** attacked

**For criminal cases: Every element of crime must be proven beyond reasonable doubt / Cannot shift the burden to D Inferences must be rational: inferred fact must be more likely than not, unless it is the only piece of evidence, then it must be beyond reasonable doubt 302 Applicability of State Law in Civil Actions & Proc. Y N Application of state law is necessary if a presumption operates on an element of the offense (b/c you cant have it be outcome determinative)

Article IV Relevancy and Its Limits

Rule Use Civil Criminal Cross Reference Comments

401

Relevancy Defined

104(a); 101

More or less probable ANY fact in consequence Beware: Statistical evidence & Prosecutors Fallacy (1/12m)

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402

Admissibility

All relevant evidence is admissible subject to any other rule All evidence not relevant is not admissible

403

Exclusion

Only FRE that is not subject to 403 is 609(a)(2)

Exclude if probative value is outweighed by danger of prejudice confusion of the issues, misleading jury or undue delay, waste o time Consider alternate jury instructions, other evidence available & stipulations (Old Chief)

404(a)

Character Evidence of Parties/Victims

N: Not allowed in civil cases except sex offenses

Y: certain limits

Subject to 412 restrictions/ 405 tells you how to prove character (ROSA)

Cannot use to prove past action unless: (1) Accused offers trait of self and Prosecution rebuts SAME trait [trait must be pertinent/relevant = mercy rule]

(2) Accused offers trait of victim and Prosecution rebuts SAME trait

(3) In a homicide case ONLY Prosecutor can show peacefulness and rebut that victim was first aggressor OR def can say victim was first aggressor (either can go first) [Direct: RO Cross: ROSA] 404(b) Character Evidence: Other wrongs/ acts/crimes Y Y 104(a): Huddleston judge screens prior act for relevance Prior notice needed Subject to 403 405 Methods of Proving Y Character Reputation or opinion testimony allowed on direct exam (RO) Not admissible to show action in conformity therewith but can be used for: intent, motive, plan, design, knowledge, opportunity, identity, absence of mistake (must be an issue; cannot use if you already have other evidence showing this)

Need good cause and pretrial notice

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Character

not generally issue (RO)

Specific instances only allowed on cross: good faith reqd (SA)

If character is an element of the case, relevancy is not a problem = can use ROSA here: Criminal: Entrapment, Habitual Offender Civil: Defamation, Wrongful Death, Child Custody, Negligent Entrustment 406 Habit; Routine Y Y Specific, Regular, Semi-automatic; People or businesses Includes giving Miranda warnings, warning patients, etc. 407 Subsequent Remedial Measures Y N 401/403 3rd party remedial measures can come in Measures must be taken AFTER injury N/A to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction

Admissible to show feasibility, impeachment, ownership/contro 407 applies to (if at issue) strict liability too Includes remedial measures for employees, etc. 408 Compromise & Offers To Y Y: One Exception

Cannot be used Prohibited Uses: includes 3rd party settlements for impeachment or prior Disputed Claim: must exist inconsistent statement Offer to Compromise: not statement of position Permitted Uses: Criminal case related to claim by public office Subject to 403 or agency for regulatory, investigative or enforcement authority (TRAP) (can still use 403)

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Can use for: bias/prejudice, undue delay, obstruction with investigation Underlying facts can come in if otherwise admissible 409 410 Payment of Medical Expenses Plea Deals/Discussions Y Y Y Y Guilty confession would come in under admission Not admissible generally to show liability: may come in under damages if at issue N/A AGAINST Def. (1) Withdrawn guilty + nolo pleas and (2) Statements made w/attny for prosecution which do not result in guilty plea or a guily plea later withdrawn

Admissible if not AGAINST Def:

Exceptions: (1) Contemporaneous statements in consideration (civil or criminal) and (2) in Perjury/false statement proceedings if made by Def under oath/on record in presence of counsel (criminal) 411 Liability Insurance Y Y N/A (1) Liability or (2) Negligence Admissible to show (1) Proof of agency, ownership, control (if at issue) (2) Bias/Prejudice for impeachment purposes

412

Sex Offense Cases/Victims Character

Subject to 104(a) General inadmissibility: victims sexual behavior or advance ruling predisposition of admissibility Criminal Exceptions: Proving accused was someone else, Evidence to specific sexual instances between victim and accused to show prove allegedly consent false prior claims subject to 404 Civil Exception: If Victims character is placed in controversy admissible if probative value outweighs harm (and must

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otherwise be admissible) 413 Sexual Assaults/Similar Crimes N Y 104(a): Huddleston judge screens prior act Defendants prior sex crimes admissible on any matter relevant (designed to be used for propensity) Must be disclosed to Def. prior to using it RULE 403 STILL APPLICABLE (so does hearsay and relevancy) 414 Child Molestation/Similar Crimes N Y 104(a): Huddleston judge screens prior act Defendants prior sex crimes admissible on any matter relevant (designed to be used for propensity) Must be disclosed to Def. prior to using it RULE 403 STILL APPLICABLE (so does hearsay and relevancy) 415 Sexual Assaults/Child Molestation/Civil Y N 413/414 still applicable For use in civil cases (echoes 413 and 414) Must be disclosed to Def. prior to using it RULE 403 STILL APPLICABLE (so does hearsay and relevancy) Article V Privileges
Rule Use Civil Criminal Cross Reference Comments

501

Not based on reliability or efficiency - zones of privacy Dropped all ACN rules choosing to follow the common law Client holds privilege, lawyer is obligated to advise client of their privilege and client has ability to waive

502

Attorney Client

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Privilege 503 NEVER ADOPTED NEVER ADOPTED - proposed attorney client privilege rule, includes legal services as well as legal advice

Article VI Witnesses
Rule Use Civil Criminal Cross Reference Comments

601

General Competency

N/A

All witnesses must be deemed competent Can attack this on impeachment

602

Lack of Personal Knowledge

Subject to 703

Witness must have sufficient evidence to show personal knowledge Can attack this on impeachment

603 604 605 606

Oath/Affirmation Interpreters Competency of Judge as Witness Competency of Juror as Witness

Y Y Y Y

Y Y Y Y

N/A 703/603 N/A N/A

Every witness has to oath/affirm: can change this instruction Translators subject to expert rules and oath/affirm Judge cannot be a witness Juror can only testify to the following w/r/t inquiry on verdict/indictment (1) whether extraneous prejudicial information was improperly brought to the jurys attention (2) whether any outside influence was improperly brought to bear upon any juror

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(3) whether there was a mistake in entering the verdict onto the verdict form 607 Who May Impeach Y Y Morlang Either party can impeach the witness, even if it is your own Cannot bring party up just to impeach to bring in h/s statements okay if its not h/s statements Cant impeach on collateral matters (Portland case)

Abel: No rule on impeaching with bias but bias is not a collatera issue so you can bring in extrinsic evidence subject to 403 608(a) [veracity] Evidence of Character and Conduct of Witness: Opinion & Reputation Y Y Def becomes witness when testifies and these are applicable (1): Character of truth/untruth using RO (2): Character of truth admissible ONLY after the character of the witness for truthfulness has been attacked (NO BOLSTERING)

608(b)

Evidence of Character and Conduct of Witness: Specific Instances of Conduct

609(b)/403 609 trumps Does not apply to admissions of party opponent 801(d)(2)(A)

SA to attack/support truthfulness may NOT be supported by extrinsic evidence (ie: you cant call other witnesses): May be inquired to on c/e ONLY Giving testimony does not operate as waiver of 5th amendment when examined with respect to matters that only relate to truthfulness Need good faith requirement for asking: must ACCEPT answer and move on: cannot ask about consequences OTHER THAN THE ACCUSED

609(a)(1) GO HERE SECOND

Impeachment by Conviction: ATTACKING TRUTHFULNESS

403 If evidence of conviction is for impeachment,

Only Felonies admitted subject to 403

ACCUSED

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this rule does not apply 609(a)(2) LOOK HERE FIRST Impeachment by Conviction: ATTACKING TRUTHFULNESS Y Y 403 DOES NOT APPLY

Only felonies - Only those whos probative value (of truth telling) outweigh prejudicial effect [reverse 403]

Felonies + Misdemeanors If act or false statement of dishonesty was a REQUIRED element of the crime (deceit, fraud, perjury, forgery, misrep) Must be readily determined based on face of indictment/pleading/verdict ADMISSIBLE NOT SUBJECT TO 403

609(b)(c)(d) Time Limit, Etc. 610 611 Religious Beliefs Mode and Order of Interrogation

Y Y Y

Y Y Y

N/A N/A N/A

Convictions more than ten years old n/a unless substantial probative value outweighs prejudice; no juvy; no annulments N/A Cross limited to scope of direct Leading questions allowed on c/e not on direct unless hostile witness

612

Writing to Refresh Memory Prior Statement of Witness (impeachment only)

106 803(5)

Adverse party has a right to review, and cross with respect to same subject matter those portions that relate (a) Examining witness on prior statement; not required to show before hand (b) Extrinsic evidence: N/A unless witness can rebut/deny/explain and opposing party can question (can be called back later)

613

801(d)(1) - A 801(d)(2) N/A

614

Calling and Interrogation of Witnesses by Court

N/A

Court can call witnesses

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615 Article VII Opinions and Expert Testimony

Rule

Exclusion of Witnesses

N/A

Court can exclude witnesses from presence of others

Use

Civil

Criminal

Cross Reference

Comments

701

Opinion Testimony by Lay Witness

Opinions or inferences limited to those based on rational perception; helpful to jury; and not w/in scope of 702 N/A: generally things not visible; others thoughts; knowledge; motivations N/A: speculation Can testify to the value of your own property but not another

702

Testimony by Experts

Frye (general acceptance) Daubert

Scientific, technical, specialized Not ever required: except professional malpractice Credentials can be KSE/edu

- tested - peer review - error rate - standards - Frye (general acceptance) Kumho (adopts abuse of disc. 11 Evidence Kirkpatrick (3 credit) Summer 2013 *Abuse of discretion standard Does not need to actually perceive any facts of case

May testify: in form of opinion or otherwise (1) based on sufficient facts or data (2) is product of reliable principles and methods (3) witness applied the principles and methods reliably to the facts of the case

standard) -extends beyond tech/specialized, to all experts - own research - extrapolation DOES NOT NEED PERSONAL KNOWLEDGE 703 Bases of Opinion Testimony by Experts Y Y Facts percd Facts made known (hypo or at trial) Facts before hearing Cannot rely entirely on out of court heresay Facts/data need not be admissible if rsbly relied on by experts (think of ER) (underlying reports can come in) but those facts cannot come into jury if N/A Voir dire (vwar deer)

Predictions of future problems needs at least probability, not jus possibility

Can get in past medical statements by other physicians under 803(4) Cannot testify if someone told the truth, or ultimate legal conclusions for either party

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No conduit rule cannot say what sources said h/s 704 Opinion on Ultimate Issue Y Y If meets 702 + is a trier of fact ? can give opinion Can give opinion of ultimate issue, but still needs to be helpful Cannot give opinion to mental state at time of crime (before/after fine): No mirroring 705 Disclosure of Facts/Data Underlying Expert Opinion Court Appointed Experts Y Y

Expert can testify to opinion/inference w/o explaining facts/ data but may be reqd to disclose facts/data on cross. Foundation not necessary

706

Courts can appoint own witness/can be reasonably compensated Can ask this on c/e to show bias

Article VIII Hearsay

Rule Use Civil Criminal Cross Reference Comments

801

Definitions

902 trumps h/s Oral/written verbal/non-verbal intended assertion offered to on verbal objects prove the truth; burden is on party claiming intention; resolved in favor of admissibility 803(3) state of mind exception Non complaints are not assertions What is not hearsay: verbal acts (words with indie legal sign); effect on listener; verbal objects; indirect circumstantial evidence of state of mind;

801(d)(1)

Statements which are not hearsay Substantive

613 Crawford satisfied if inconsistent

Prior statements by witness (1): Dec. subject to cross NOW on previous statement AND (1): Statement was inconsistent and given under oath at trial,

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Can be grand jury or depo and not cross examined

hearing, proceeding, deposition OR (2): Consistent with testimony and offered to rebut express/implied improper influence/motive OR (3): One of ID of person made after perceiving person

If inconsistent statement not (d)(1)(A) must be sworn satisfied, use 613 (d)(1)(B) need not be sworn and get in for impeachment 801(d)(2) Statements which are not hearsay Y Y Bruton/Crawford Admissions by party-opponent [offered against a party] Doyle: Miranda (1) Partys own statement silence cannot be adopted (2) Manifested/adopted statement statements (3) Agent/servant statement concerning matter w/in scope of Bourjaily: coagency/employment made during existence of relationship conspirator 104(a) judge (4) co-conspirator of party during course and in furtherance of question conspiracy Statements alone not enough to establish declarants authority

Unlike evidential admissions which can be rebutted at trial, a party is bound by its judicial admissions (requests to admit/pleadings)

Harris: If someone makes statements prior to Miranda and then makes a different statement at trial, can use to impeach (cannot commit perjury

Hass: If police continue questioning, statement can come in (encourages undermining of Miranda) 14 Evidence Kirkpatrick (3 credit) Summer 2013

Jenkins: If you remain silent pre-arrest, that can be used agains you: Use 403 802 803 Rule Exceptions: Availability of Declarant Immaterial Y Y Y Y N/A Crawford Davis - 911 Pheaster others intent n/a H/S is not admissible except otherwise provided (1) Present sense impression (2) Excited utterance - bootstrapping (3) Mental, emotional, physical (State of mind) - no past pain (4) Medical diagnosis, treatments - cannot discuss fault/liability - Crawford issue if given to police (child abuse) (5) Recorded recollection [distinguish from 612, which does not involve hearsay] (6) Regularly conducted records - each declarant must have business duty - 805 governs multiple hearsay issues - try use 801(d)(2)(A) in combo or not offering for truth - can be excluded for lack of trustworthiness 15 Evidence Kirkpatrick (3 credit) Summer 2013

(7) Absence of entry of records (6) (8) Public records & reports - public findings of fault made by gov can come in - no routine or contemporaneity needed - Crawford specifically excludes police reports in criminal cases unless ministerial (breathalyzer calibration) - can be excluded for lack of trustworthiness (9) Vital statistics (10) Absence of public record/entry (11) Religious orgs (12) Marriage or similar certs (13) Family records (14) Records or Documents affecting property interest (15) Statements in documents affecting interest in property (16) Statements in ancient documents (908)(b)(8) (17) Market reports, commercial publications (18) Learned treatises (19) Reputation concerning personal or family history

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(20) Reputation concerning boundaries or general history (21) Reputation as to character (22) Judgment of previous conviction (23) Judgment as to personal, family, or general history, boundaries 804(a) Declarant Unavailable Y Y Crawford: Barber: must show good faith effort to bring back - Exempt from privilege - Contempt - Testifies to lack of memory

- Unable to be present or testify b/c of death or illness/infirmity - Absent and unable to be procured (or depod) by process or other reasonable means (100m or nationwide) NOT available: if due to procurement/wrongdoing (forfeiture) Not just murder must be purpose of causing absence b/c of testimony

804(b)

Declarant Unavailable:

801(d)(1)

(1) Former Testimony

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Exceptions

- Compare to 801(d)(1): current presence reqd & you could get grand jury statement in b/c you can - Here: must be UNAVAILABLE and could NOT get grand jury statement in b/c no opp for PRIOR c/e - Prove by transcript: business records exception

Prior similar motive & opp to c/e party or PII (privity) - minority view: similar motive was enough - majority view: Pii>similar motive - not bail hearings: unless key witness dies, maybe - joint owners = pii Can use transcript or someone else

(2) Dying Declaration 602 reqd Criminal: only homicide case

if given to police Civil: any officer: ADMISSIBLE Belief of Imminent death: not suicide (exception to Crawford) Statements must be to cause or circumstances of death

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compare with 801(d)(2)

(3) Statements Against Interest - rsbl person - expose or invalidate to liability - contrary to interest

If in a criminal case to expose to liability: need corroborating evidence Ends Bruton unless evidence was inadmissible!! Crawford = testimonial if made to police: significantly restricted!

Relevant: civil cases, declarations in penal interest in PRIVATE settings (use Williamson to keep out blame shifting), or to exculpate someone.

(4) statement of declarants OWN birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history OR

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No personal knowledge needed

statement of foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared

805 806

Hearsay Within Hearsay Attacking and Supporting Credibility of Declarant

Y Y

Y Y

N/A

H/S w/in H/S is not excluded under the hearsay rule if each party conforms with an exception

When h/s statement or statement under 801(d)(2)(C) & (D) has been admitted, h/s declarant can be attacked by any evidence which would be admissible if declarant had testified as a witness

If declarant becomes a witness, party against whom statmenet was made can c/e them (if on direct) 807 Residual Exception Y Y 803/804

H/S statement that is to a (1) material fact (2) more probative than any other evidence (3) serves 102 and (4) = trustworthiness

Article IX Authenticat ion and Identificati on

Rule Use Civil Criminal Cross Reference Comments

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901

Requirement of Authentication/ID

N/A

Condition precedent to admissibility; satisfied by evidence sufficient to support a finding that the matter is what the proponent claims it is Illustrative examples

902

Self-Authentication

803(6) Verbal Objects H/S Exception 1005

Extrinsic evidence is NOT required for this category

903

Subscribing Witness Testimony Unnecessary

N/A

N/A

Article X Contents of Writings, Recordings, & Photograph s

Rule Use Civil Criminal Cross Reference Comments

1001

Definitions

N/A

Writings and recordings have very broad definition extended to musical scores; Photographs extend to film and x-rays Originals equate to the one in dispute so it can be a carbon copy; or something intended to have the same effect as the original

Duplicates cannot be man-made; t4 transcripts are not duplicates

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1002 1003

Requirement of Original Admissibility of Duplicates

Y Y

Y Y

N/A 1002

Original required to prove content Admissible like original unless there is a genuine question of authenticity of the ORIGINAL or its unfair to admit Used for inscribed chattels use photos not actual chattel

1004

Admissibility of Other Evidence of Contents Public Records Summaries Testimony of Written Admission of Party Functions of Court/Jury

Original not required if lost or destroyed; not obtainable; in possession of opponent; it is to go to a collateral matter Any other evidence can be used to show

1005 1006 1007

Y Y Y

Y Y Y

902 N/A N/A

If otherwise admissible, is proven by copy with 902 or testimony Must be admissible in terms of separate parts but can be shown in chart, summary form Contents can be proved by testimony or deposition of the party against whom it is offered OR by that partys written admission without bringing the original Court determines fulfillment of condition of fact When there is an issue of: whether another writing is the original, whether other evidence correctly reflects contents, issue is for trier of fact

1008

104(a) 104(b)

Article XII Miscellane ous Rules 1101 1102 Applicability Amendments Y Y Y Y 101 N/A US District Courts; Bankruptcy; Maritime and Admiralty; Civil and Criminal with exclusions (see 101 for listing) Nothing

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1103

Title

N/A

Rules are called FRE

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