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Evidence Notes
Selected Federal Rules of Evidence

Additional Law Flashcards




401. Relevance

Evidence is relevant IF:

  1. it has a tendency to make a fact more or less probable, AND
  2. the fact is of consequence in determining the action.
    • evidence only has to have some mere tendency to make a fact omre or less probable.
    • to decide materiality, look to elements of a crime.
402. Genearl Admissibility
  • Relevant evidence is admissible unless any of the following provide otherwise
    • Constitution
    • Federal Statute
    • FRE
    • other rules prescribed by SCOTUS
  • Irrelevant evidence is not admissible.
403. Excluding Relevant Evidence

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of:

(1) unfair prejudice
(2) confusing the issues
(3) misleading the jury
(4) causing undue delay
(5) wasting time, or
(6) needlessly presenting cumulative evidence

404. Character Evidence; Crime or Other Acts
  • PROHIBITED: Evidence of a person's character or character trait is not admissible to prove that on a particular occasion, the person accted in accordance with that trait.

404. Character Evidence; Crime or Other Acts


  • Defendant or Victim in a CRIMINAL CASE
    • defendant may offer evidence of the defendant's character and
    • defendant may offer evidence of an alleged VICTIM'S propensity (subject to 412), and
    • In a homicide case, P may offer evidence of an alleged VICTIM'S character of peacefulness to rebut evidence that the VICTIM was the first aggressor.

405(a). Methods of Proving Character

Opinion or Reputation 

  • When evidence of a person's character is offered under 404(a)(2) (defendant or victim's trait), it may be proved only by testimony about the person's reputation or in the form of an opinion on direct examination.
  • On cross examination, the court may allow inquiry into relevant, SPECIFIC ACTS of the person's conduct.
    • the cross-examiner must accept the witness's answer. No extrinsic evidence of specific act. 
    • Cross exam must be conducted in good faith. 
    • "have you heard that D..." "Did you know that D..."
405(b). Specific Instances of Conduct
  • When character is an essential element of a
    • charge,
    • claim, or
    • defense
  • character may be proved by relevant, specific acts of person's conduct.
  • Is character "in issue" ? Think entrapment, lible, slander, parental custody cases.

Admissible Opinion or Reputation Evidence



--In a criminal casedefendant may offer evidence of defendant's pertinent trait & VICTIM'S pertinent trait.

--Defendant is limited in sex offense cases by 412 rape shield: no char evidence to prove victim engaged in other sexual behavior/sexual predisposition.

--Prosecutor may offer character evidence ONLY TO REBUT defendant's char evidence OR if defendant offers evidence of victim's pertient trait to prove defendant has the same trait. 
--In a homicide case, Prosecutor may offer char evidence of victim's peacefulness to rebut evidence that the victim waas the first aggressor. 

--evidence of witness's character may be admitted under 607, 608 and 609. 

404(b) Crimes, Wrongs, or Other Acts

--Evidence of a crime, wrong, or other acts is NOT ADMISSIBLE to prove a person's character in order to show that on a particular occasion the person acted in accordance with that character (the other act need not be a crime).

--Permitted uses: Non-character evidence

Character evidence may be used to prove:


intent (modus operandi)






absence of mistake or lack of accident (refute a claim of a mistake/accident)

Ask yourself: why is this evidence being offered? What is he trying to prove? (character or non-character?)

--404(b) applies to civil and criminal cases. 

404(b) Analysis

(1) FRE 401-identify a material issue (other than character) that the evidence is being offered to prove. (i.e. identity, m.o. knowledge)

Trenkler: the evidence must have some “special relevance” independent of it’s tendency to show criminal propensity

(2) If the evidence identifies a (special relevance on a ) material issue, conduct a FRE 403 analysis

As with all evidence, do a 104(b) or 104(a) analysis  to determine if the evidence is admissible

(3) the court must determine that there is adequate evidence to support a conclusion that the defendant really did commit the past acts sought to be described in the current trial as having been done by the defendant


104(a). Preliminary Questions
  • The court must decide any preliminary question about whether:
    • a witness is qualified;
    • a privilege exists;
    • or evidence is admissible.
  • The court is not bound by evidence rules, except those on privilege, in deciding whether evidence is relevant.
  • Burden of proof is preponderance of the evidence.

104(b). Relevence that Depeonds on a Fact

Conditional Relevance

  • the jury decides whether a condition of fact has been fulfilled if the relevancy of evidence depends on it. Juries do the work of sorting out various pieces of fragmented evidence and deciding whether the resulting picture supports conviction or acquittal or recovery or rejection of claims.
  • issues of authenticity and the personal knowledge of witnesses, and potentially many other questions affecting the relationship of various items of proof that are logically interdependent.
Huddleston Standard

Proving prior criminal acts by the defendant for the purpose of showing intent or like points under Rule 404(b) is a process that involves matters of conditional relevancy that are for the jury to decide under Rule 104(b). Proof of other acts may be admitted if the proof is strong enough so that the jury (and not the judge) “can reasonably conclude that the act occurred and that defendant was the actor."

406. Habit; Routine Practice

--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 w/ the habit or routine practice.

--The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

--Habit describes particular behavior in a specific setting and is at least regular if not invariable. 

--Three criteria courts find useful in defining habit:

+ specificity: more specific the behavior, better chance it is habit.

+ regularity: most important. the more regular the response, the more likely it is a habit.

+ nonvolitional: the more conduct is semiautomatic behavior or reflexice, the more likely it is habit. 

407. Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the SRM is not admissible to prove:

(1) negligence

(2) culpable conduct

(3) A defect in product or its design, or

(4) a need for a warning or instruction.

The court may admit SRM evidence for another purpose, such as 

(1) impeachment;

(2) if disputed, proving ownership, control, or feasibility of precautionary measures. 

411. Liability Insurance
  • Inadmissible to prove negligence or wrongdoing 
  • ownership may be admissible to prove witness bias, agency, ownership, or control. 

412. Sexual Offense Cases

The Rape Shield

--Prohibited Uses: The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; OR
(2) evidence offered to prove a victim's sexual predisposition.
(Trumps FRE 404(a)(2))
(1) Criminal Cases: the court may admit the following evidence in a criminal case:
(A) evidence of specific instance of victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (such as pregnancy or disease).
(B) evidence of specific instance of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant's const'l rights.
(2) Civil Cases: admissible to prove victim's sexual behavior or sexual predisposition IF it survivves 403 balance. 
court may admit evidence of a victim's reputation only if the victom has placed it in controversy. 
413. Similar Cases in Sexual Assault Cases

--(a) Permitted Cases. In a criminal case in which the defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault .
--The evidence may be considered on any matter to which is relevant.
--Also apply FRE 403 balance
--Allows evidence of the Defendant’s past sexual offense to be admitted to show that the Defendant has a propensity to commit that type of act



414. Similar Crimes in Child-Molestation Cases

(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation.

The evidence may be considered on any matter to which it is relevant. 

403 balance. 

415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

(a) Permitted Uses. In a civil case involving a claim for relief based on a party's alleged sexual assault or child molestation, the court may admit evience that the party commited any other sexual assault or child molestation. 

--The evidence may be considered as provided in 413 and 414. 

611. Mode & Order of Examining Witnesses & Presenting Evidence

(a) trial judge may exercise reasonable control over the mode and order of interrogating witnesses & presenting evidence to the end that the truth may be effectivelly ascertained, needless consumption of time avoided, and witnesses spared from harassment or undue embarrassment. 

(b)scope of cross is ordinarily to be limited to the subject matter of the direct examination & matters affecting witness credibility. Trial judge may permit inquiry into addt'l matters.

(c) bars leading questions during direct examination except as may be necessary to develop the testimony. However, leading questions on cross examination are permitted. In civil cases, a party is entitled to call an adverse party of witness identified with him and interrogate by leading questions. Leading questions are permissible when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. 

602. Need for Personal Knowledge

--a witness may testify to a specific matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

+essentially firsthand observations & experience. 

--evidence to prove personal knowledge may consist of the witness's own testimony.

--This rule does not apply to expert testimony under 703. 

607. Who May Impeach a Witness

--Any party, including the party that called the witness, may attack the witness's credibility. 


607. Who May Impeach a Witness

Means of Impeachment


(1) show witness is untruthful by character or disposition 

+ done by char testimony or cross-examining witness on misconduct or convictions.

+ regulated by 608 and 609. 

(2) showing prior inconsistent statements that suggest the witness erred or lied in his testimony. 

+ governed by 613 and 801(d)(1)(A)

(3) showing bias, interest, or influence that might posture the witness for or against the witness. (governed by 611) 

(4) show defects in capacity to observe, recollect, or recount. (governed by 611)

(5) contradict the witness, which may be accomplished by cross or introducing independent evidence (governed by 611). 

all these methods are available to both the calling and adverse party. 

608. A Witness's Character for Truthfulness or Untruthfulness

--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. 

--Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked. 

++ a witness's credibility may not be bolstered prior to impeachment.

--EXCEPT FOR A CRIMINAL CONVICTION, under 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. 

--The court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of (1) the witness, or (2) another witness whose character the witness being cross-examined testified about. 

++ lawyer must have a good faith belief the specific instance is true. 

609. Impeachment by Evidence of a Criminal Conviction

--(a) the following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year (usually a felony) the evidence:

(A) must be admitted, per 403, in a civil case or in a criminal case in which the witness is NOT a defendant; and

(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 (opposite 403 analysis but doesn't have to be subtantial); and

Felonies: the authorized max punisment, rather than the actual punishment imposed is determinative. 

able to produce extrinsic evidence. 

609 Impeachment

--evidence of a prior conviction may be used to suggest that a witness is not credible. 

--Restrictions: prior conviction must be either a felony (crime punishable by death or imprisonment more than a year) or a crime with an element requiring a dishonest act or false statement. 

--IF prior conviction is a felony, it can only be used if the witness is NOT THE DEFENDANT and if it's admission does not violate 403. 

--If more than ten years have passed since the CONVICTION or RELEASE FROM CONFINEMENT, whichever is later, then the probative value of the evidence must substantially outweigh its prejudicial effect. 

613. Impeachment: Prior Inconsistent Statement

--suggest that a witness's testimony is not credible because it is inconsistent with a statement made by the witness prior to trial. 

--two guidelines for use of prior inconsistent statements:

(1) if a prior inconsistent statement is introduced during examination of the witness, the examining party must show or disclose the contents of the statement to the opposing party upon request;

(2) if a prior inconsistent statement is introduced through extrinsic evidence, the witness must be given an opportunity to explain or deny the statement, and the opposing party must  be given an opportunity to examine the witness about the statement. 

801. Definitions that Apply to This Article; Exxclusions From Hearsay

(a) Statement. means a person's oral, written, or nonverbal assertion, if the person intended it as an assertion (includes implied assertions).

(b) Declarant: means the person who made the statement (the declarant could either be testifying in trial or not testifying in trial).

(c) Hearsay means a statement that the DECLARANT DOES NOT MAKE while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement. 

801. Hearsay Analysis

(1) What is the assertion being offered?

(2) Did the declarant MEAN TO COMMUNICATE THE FACT?

(3) Is the party offering the statement to prove the truth of what the statement says or was meant to say?

If the answer to 3 is 'Yes' you have hearsay. 

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 SCOTUS. 

801(d)(1) Statements that are Not Hearsay

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant (i) testifies and (ii) is subject to cross-ex about a prior statement, and the statement

(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(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 rehability the declarant's credibility as a witness when attacked on another ground; or

(C) identifies a person as someone the declarant perceived earlier. 

613. Witness Prior Statement

(a) showing or Disclosing the Statement During Examination

+ when examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness.

-inconsistent statements also include: prior omission, prior lack of knowledge, current lack of memory.

+ the party must, on request, show it or discloses its contents to an adverse party's attorney.

(b) Extrinsic of a prior inconsistent statement.

+ the cross-examiner may accept the witness's denial or explanation of the prior statement but is also given the right to introduce extrinsic evidence of the prior statement.

+ extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement & an adverse party is given an opportunity to examine the witness about it, or if justice so requires.

-the opportunity to explain or deny may come either before or after the extrinsic evidence of the statement is introduced. 

806. Attacking/Supporting Declarant's Credibility

If someone is offering a hearsay statement that falls under an exclusion or exception, the party can target the declarant or boost his credibility if attacked by offering evidence:

(1) the declarant is biased

(2) made an inconsistent statement

(i) FRE 613(b) does not apply: 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. 

(3) character for truthfulness or untruthfulness

(propensity specific acts; 608)

(prior convictions; 609)




804(a). Exceptions to the Rule Against Hearsay



(a) Criteria for being unavailable: a declarant is considered unavailable when 

(1) a privilege applies;

(2) declarant refuses to testify;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify due to death or a then-existing infirmity, physical/mental illness, or

(5) is absent from trial/hearing and the offering party has not been able by process or reasonable means to obtain declarant. 

804(b)(1). Former Testimony

The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) former testimony that was given as a witness @ a trial, hearing, or lawful deposition (not including a grand jury hearing), whether given during the current proceeding or a different one; AND is now offered against a party who had, or, in a civil case, whose predecessor in interest had an opportunity & similar motive to develop it by direct, cross, or redirect examination. 

-Exception requires an opportunity for cross-ex as well as testimony under oath.


804(b)(2). Statements Under the Belief of Impending Death

Dying Declarations: 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

804(b)(6). Statements Offered Against a Party Who Wrongfully Caused Declarant's Unavailability

Forfeiture by Wrongdoing. A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

804(b)(3). Statement Against Interest

--a statement that a reasonable person in the declarant's position would have made only if the person believed it to be true, was so contrary to the declarant's proprietary or pecuniary interest, or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability, and

--if offered in a criminal case, is supported by corroborating circumstances that clearly indicate its trustworthiness as one that tends to expose the declarant to criminal liability. 


803. Exceptions to the Rule Against Hearsay




A reputation among a person's associates or in the community concerning the person's character. 


803(1)(2). Present Sense Impression & Excited Utterance

Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant is Available 


(1) a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it;

(2) a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. 


803(3). Then-Existing Mental, Emotional, or Physical Condition

Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant is Available


A statement of the declarant's then-existing state of mind (e.g. motive, intent, or plan) or emotional, sensory, or physical condition (e.g. mental feeling, pain, bodily health) but NOT INCLUDING a statement of memory or belief to prove the fact remembered or believed UNLESS it related to the validity or terms of the declarant's will. 


803(4). Statement Made for Medical Diagnosis/Treatement

Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant is Available 


A statement that is made for & is reasonably pertient to medical diagnosis/treatment, and describeds medical history; past or present symptoms or sensations; their inception; or their general cause. 


803(5). Recorded Recollection

Exceptions to the Rule Against Hearsay BUT This Requires the Declarant to be Available


A record that is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately, was made or adopted by the witness when the matter was fresh in the witness's memory, and accurately reflects the witness's knowledge.

--If this evidence is admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. 

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