FRE 103 erroneous ruling
Error may not be predicated uppon a ruling which admits or excludes unless:1) A substantial right of the party is affected2. There was a timely objection stating the specific ground of objection or in the case of evidence the substance was made known
FRE 601 Witnesses
every person is competent to be a witness except as otherwise provided (in civil use state laws)
FRE 602 Personal Knowledge
A witness may not testify to a matter unless:1) Evidence is introduced sufficient to support a finding that2) The witness has personal knowledge of the subject matter (witness's testimony is enough to satisfy this)
FRE 401 relevant evidence
Evidence having ANY tendency to make the existence of ANY fact that is of consequence to the determination of the action more or less probable than it would be without the evedince (evidence doesnt have to be disputed)
FRE 402 Admissibility
All relevent evidence is admissible, except as otherwise provided by the COnstitution, an Act of Congress, these rules, or other rules prescirbed by the Supreme Court pursuant to statutory authority. Non relevent evidence is not admissible
FRE 403
Although relevant, evidence may be excluded if its probabtive value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence
FRE 104 (a)
Preliminary questions concerning the qualification of a person to be a witness, existence of privilege, or admissibility of evidence shall be determined by the court (not bound by rules of evidence)
FRE 104(b)
When 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 fullfillment of the condition (Jury ?)
FRE 801(a) Statement
an oral or written assertion or nonverbal conduct of a person if intended by the person as an assertion
FRE 801 (b) Declarant
A person who makes a statement
FRE 801 (c)
1) A statement, other and one made while testifying2) offered in evidence to prove the truth of the matter asserted
FRE 801 (d)(1)
1) declarant testifies at trial2) subject to cross3) statement is inconsistent with declarants testimony, consistent with testimony but offered to rubut charge of fabrication or one of identification of person made after perceiving the person
FRE 801(d)(2)(A)
1) statement offered against party2) is the parties own statement, in either an individual or a representative capacity
FRE 801(d)(2)(B)
1) Statement is offered against a party2) is the party's own statement3) which the party has manifested an adoption or belief in its truth
FRE 801(d)(2)(C-D)
1) Statement is offered against a party2) is the party's own statement3) Statement by a person authorized by the party to make the statement concerning the subject, or by the party's agent or servant concerning a matter within the scope of agency or employ during employ
FRE 801(d)(2)(E)
1) Statement is offered against a party2) by a coconspirator of a party during the course of conspiracy3) in furtherance of the conspiracy
FRE 802
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress
FRE 803(1) Present Sense Impression
1) A statement2) describing or explaining an event or condition3) while the declarant was perceiving the event or condition, or immediately thereafter
FRE 803(2) Exited Utterance
1) A statement2) relating to a startling event or condition3) made while the declarent was under the stress of the excitement caused by the event or condition
FRE 803(3)
1) a statement2) of declarant's then existing state of mind, emotion, sensation or physical conditionNOT INCLUDING a statement of memory or belief to prove the fact rememembered unless it relates to the execution, revocation, identification or terms of declarant's will
FRE 803(4) Statement for medical diagnosis
1) a statement2) made for purposes of medical diagnosis or treatement3) describing medical history or past or present symptoms or the inception or general character of the cause or external soource thereof insofar as reasonably pertinent to diagnosis or treat
FRE 803(d)(5) Prior Recollection
1) A memorandum or record2) concerning a matter about which a witness once had knowledge3)witness now has insufficient recollection to enable witness to testify fully and accurately4) shown to have been made or adopted by witness when memory was fresh5) made to reflect that knowledge May not itself be received as an exhibit unless ofered by an adverse party
FRE 803(6) records of regularly conducted activity
1) A memorandum, report, record or data compilation in any form2) of acts, events, conditions, opinions or diagnoses3) made at or near the time by person with knowledge4) if kept in the course of a regularly conducted business activity, and if it was the regular practice to make that memo
FRE 803 (6) meaning of business
includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit
FRE 803(7) Absence of entry in records
evidence that a matter is not included in the records from (803(6)) to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind that was regularly made and preserved
FRE 803(8) Public Records
1) records, reports, statements or data compilations in any form2) of public offices or agencies3) setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law, or in civil actions the factual findings resulting from an investigation
FRE 803(10) Absence of a public record
1) to prove the absence of a record or nonoccurence/existence 2) of a matter of which a record was regularly made and preserved by a public office or agency
FRE 804 (a)
A Declarent is unvailable when:1) exempted due to claim of privilige2) Refuses to testify3) lack of memory4) death or disibility5) beyond supeona power
When are the witness unavailablility exceptions disallowed
when the unavailability is due to the procurement or wrondoing of the proponent of the statement, for the purpose of preventing the testimony
FRE 804(b)(1)
1) Testimony given at another hearing of the same or a differenet proceeding2) the party against whome the tesimony is now offered had an opportunity and similar motive to develop testimony by direct, cross, or redirect
FRE 804(b)(2) Dying Declaration
1) in a prosecution for homicide or civil action or proceeding2) statement made by a declarant 3) declarant believed death was iminent4) statement concerning the cause or circumstances of the impending death
FRE 804(b)(3) Statement against interest
1) Statement that when made was contrary to declarants proprietary or 2) Pecuniary interest 3) Had so great a tendency to invalidate the declarants claim agaisnt someone else 4) Expose the declarant to civil or criminal liability
FRE 804(b)(6)
1) A statement 2) Offered against a party 3) Who has engaged or acquiesced in wrongdoing 4) That was intended to, and did, procure the unavailability of the declarant as a witness
FRE 807 Residual exception
A statement not specifically covered by 803 or 804 is not excluded if the court determines the statement is:1) offered as evidence of a material fact2) more probative on the point for which it is offered than any other evidence which can be procured through reasonable efforts 3)the general purposes of these rules and interests of justice will be served by admission(must warn advers party sufficiently in advance of the trial or hearing including particulars and name and address)
Crawford v. Washington
Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the constitution actually prescribes (confrontation), if they are not testimonial confrontation isnt triggered)
Davis v. Washington (nontestimonial)
statements are non-testimonial when
1) Made in the course of police interrogation 2) Under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency
Davis v. Washington (testimonial)
1. statements are testimonial when the circumstances objectively indicate that there was no ongoing emergancy2. the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution
Davis v. Washington (when confrontation clause doesnt exlclude)
1. the statement is offered for a non-hearsay purpose2. statement is not hearsay under 801(d)(2)3. FRE 804(b)(2) or(6) applies4. the declarant also testifies at trial5. the declarant is unavailable and the defendant had the oppurtunity to cross when the statement was made
Melendez-diaz v. Mass
a lab report is inadmissible testimonial evidence, must have the technician testify
Hearsay analysis questions in criminal case
1. Was the statement hearsay, if not admit2. Was there an exception, if not exclude3. is the statement testimonial, if not admit4. is the declarant subject to cross, if yes admit5. is the exception/excemption 804(b)(1), (2) or (6) if yes admit6. did the accused have oppurtunity to cross when statement was made, if no exclude
Character Evidence
1) Evidence 2) Concerning the propensity of a person to act in a certain manner 3) That makes a general statement about that person and 4) Conveys a moral or ethical judgment
404(a)(1)
character of accused1) In a criminal case2) Evidence of a pertinent trait of character 3) Offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under 404(a)(2)4) Evidence of the same trait of character of the accused is admissible
404(a)(2)
Character of vic.1) Criminal case2) Subject to rule 4123) Evidence of a pertinent trait of character of the alleged victim of the crime 4) Offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor
404(a)(3)
evidence of the character of a witness, as provided in 607, 608 and 609
when is character evidence admissible
when accused offeres his own character as a defense;the accused offers the crime victims character;to impeach a witness with bad character for truthfulness;character is an essential element of a charge, claim or defense;the defendant is charged with sexual assault or child molestation
405 (a)
when character evidence is admissible, proof may be made by 1) Testimony as to reputation or by testimony in the form of an opinion. Specific instances ok in cross
405(b)
in cases in which character or a trait of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that persons conduct
404(b)
evidence of other crimes wrongs or acts is not admissible to prove character in order to show action in conformity therewith. It may be admissible for other purposes (motive, opportunity, intent, preperation, plan, knowledge, identity or absence of mistake) provided that upon request the prosecution provided reasonable notice in advance of trial
406 Habit
evidence of a habit, whether corroborated or notis relevant to prove conduct of a person in conformity of that habit
607
the credibility of a witness may be attacked by any party, including the party calling the witnes
901(a) Authintication is
a condition precedent to admisibility and satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims
901(b)(1)
testimony that a matter is what it is claimed to be
901(b)(2)
nonexpert opinioin as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation
901(3)
comparison by the trier of fact or by expert witnesses with specimens which have been authenticated
901(4)
appearance, contents, substance, internal patterns or other characteristics, taken in conjunction with circumstances
901(b)(5)
identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker
901(b)(6)
telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if in the case of a person circumstances, including self-id, show person answering to be the one called
901(b)(7) public records or reports
evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept
901(b)(9) process or system
evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result
1001(1) writings and recordings
consists 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
1001(2) photographs
include still photographs, x-ray film, video tapes, and motion pictures
1001(3) original writing
is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it
1001(3)
any negative or any print therefrom is a original photograph
1001(3)
if data stored in a computer or similar device, then any printout or other output readable by sight, shown to reflect the data accurately
1001(4)
is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography including enlargements and minatures, or by mechanical or electronic re-recording, or chemical reproduction or by other equivalent techniques which accurately reproduces the original
1002
to prove the content of a writing, recording, or photograph the original is required except as otherwise provided in these rules or by Act of Congress
1003
a dublicate is admissible to the same extent as an original unless:1. a genuine question is raised as to authenticity of the original or2. in the circumstances it would be unfair to admit the duplicate in lieu of the original
1004(1)
an original is not required if all originals are lost or have been destroyed, unless proponent lost or destroyed them in bad fait
1004(2)
an original is not required if no original can be obtained by any available judicial process or procedure
1004(3)
an original is not required if at a time when an original was under the control of the the party against whom offered the party was1. put on notice by pleadings or otherwise that the contents would be a subject of proof at the hearing2. that party does not produce the original
1004(4)
an original is not required if the writing, recording, or photograph is not closely related to a controlling issue
FRE 407
1. After injury or harm2. Measures are taken that would have made harm less likely3. evidence of measures not admissible to prove Negligence, Culpable conduct, Defect, or need for warning/instruction
407 can be offered to show
ownership, control, feasibility of precautionary measures, IF CONTROVERTED or impeachment
FRE 408
not admissible against defendent1. withdrawn guilty plea2. nolo3. statemnts made in course of any rule 114. plea discusions with prosecuting attorney
609
Generally evidence witness convicted of crime admited if:1. Crime was punishable by death or imprisonment >1 yr2. elements of the crime required proof or admision of an act of dishonesty or false statement by witness
FRE 609 Defendant testifying
evidence that accused was convicted of crime admited if court determins provative value > prejuditial value
Impeachment by evidence of conviction
time limit
period of 10 yars since date of conviction or release from confinement, whichever is latercan use older than 10 but notice of intent to use must be given to advers party