Rule 104

Preliminary Questions

a) The Court must decide any preliminary question about whether a witness is qualified, a privilege exists or evidence is admissible. In so doing the court is not bound by the evidence rules, except those on privilege. 

b) When relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. Ct. may admit the proposed evidence on the condition that the proof be introduced later. 

Rule 401

Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendancy to make a fact more or less probable than it would be w/out evidence

(b) The fact is of consequence in determining the action 

Rule 403

Excluding Relevant Evidence

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: 

unfair prejudice

confusing the issues

misleading the jury

undue delay

wasting time

needlessly cumulative 

Rule 105

Limiting Evidence 

Rule 404(a)

Character Evidence

(a) Character Evidence

(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance w/the character or trait

(2) Exceptions for D or V in a Criminal Case. The following exceptions apply in a criminal case:

(A) D may offer evid. of the D's pertinent trait, and if the evidence is admitted, the prosecutor may offer evid. to rebut it;

(B) Subject to the limitations in R. 412, a D may offer evid. of an alleged V's pertinent trait, and if the evid. is admitted the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evdience of the D's same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged V's trait of peacefulness to rebut the evidence that the victim was the 1st aggressor

Rule 404(b)

Crimes, Wrongs, or Other Acts

(b) Crimes Wrongs and Other Acts

(1) Prohibited Uses. Evid. of a crime, wrong or other act is not admissible to prove a person's character in order to show that on a particular occassion the person acted in accordance w/the character

(2) Permitted Uses; Notice in Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a D in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial - or during trial if the court, for good cause, excuses lack of pretrial notice. 

Rule 405

Methods of Proving Character

(a) By Reputation or Opinion. When evid. of a person's character or trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-exam. of the character witness, the court may allow inquiry into relevant specific instances of the person's conduct

(b) By Specific Instances of Conduct. When a person's character or trait is an essential element of the charge, claim or defense, the character or trait may also be proved by relevant specific instances of the person's conduct

Rule 412

Sex Offense Cases

(a) Prohibited Uses. The following evid is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evid. offered to prove that a V engaged in other sexual behavior; or

(2) evid. offered to prove a V's sexual predispositions

(b) Exceptions

(1) Criminal Cases. The court may admit the following evid in a crim. case: (A) evid. of specific instances of the V's sexual behavior, if offered to prove that someone other than the D was the source of semen, injury or other physical evid.

(B) evid of specific instances of the V's sexual behavior w/respect to the person accused of the sexual misconduct, if offered by the D to prove consent or if offered by the prosecutor; and

(C) evid. whose exclusion woule violate the D's constitutional rights

(2) Civil Cases. The court may admit evid. offered to prove a V's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any V and of unfair prejudice to any party. The ct. may admit evid. of the V's reputation only if the V has placed it in controversy. 

AZ Rape Shield

Character evidence is allowed to show 

(1) V's motive to accuse

(2) Evid. of false allegations by the V against others

Rule 413

Similar Crimes in Sexual-Assault Cases

Rule 414

Similar Crimes in Child-Molestation Cases

Rule 407

Subsequent Remedial Measures

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

• negligence;
• culpable conduct;
• a defect in product or its design; or
• a need for warning or instruction

AZ Product Liability 

Subsequent Remedial Measures

Following shall not be admissible in product liability action as evid. of a defect

(a) Evid. of advancements or changes in the state of the art subsequent to the time the product was first sold by D 

(b) Evid of any changes made in the design or methods of manufacturing or testing the product or any similar product subsequent to the time the product was first sold by D

Rule 408

Compromise Offers and Negotiations

(a) Prohibited Uses. Evidence of the following is not admissible - on behalf of any party- either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction:

(1) furnishing, promising, or offering - or accepting, promissing to accept, or offering to accept - a valuable consideration in compromising or attempting to compromise a claim; and

(2) conduct or a statement made during compromise negotiations about the claim- except when offered in a criminal case and when the negotations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority 

Rule 409

Payment of Medical and Similar Expenses

Rule 410

Pleas, Plea Discussions, and Related Stmts.

(a)Prohibited Uses. In a civil or criminal case, evid. of the following is not admissible against the D who made the plea or participated in the plea discussion:

(1) a guilty plea that was later withdrawn

(2) a nolo contendere plea

(3) a stmt made during a proceeding on either of those please under FR of criminal procedure or a comparble state procedure

(4) a stmt made during plea discussions w/an atty for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later w/drawn guilty plea 

Rule 411

Liability Insurance

U.S. v. Yaweh

State v. Chapple

Old Chief v. U.S.

U.S. v. McVeigh

McQueeney v. Wilmington Trust Co.

U.S. v. Dowling

Court held that when D's acquittal of a prior crime is based upon a std. of reasonable doubt on all elements, it does not preclude the jury from concluding that D committed the other crime in a subsequent trial. 

(D charged w/armed robbery; State sought to present evid. re: home invasion D was formerly acquitted of) 

U.S. v. Michelson

U.S. v. Keiser

U.S. v. Hearst

U.S. v. Carroll

Perrin v. Anderson

Rule 801(a) - (c)

Hearsay (defined)

801(d)(1)

Statutory Non-Hearsay

A Declarant Witness's Prior Statement

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

(A) is inconsistent w/the declarant's testimony AND was given under penalty of perjury at a trial, hearing, or other proceeding/deposition

(B) is consistent w/the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influene or motive in so testifying; or

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

801(d)(2)

Statutory Non-Hearsay

An Opposing Party's Statment/ Admissions

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity; 

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter w/in the scope of that relationship and while it existed; or

(E) was made by the party's coconspirator during and infurtherance of the conspiracy 

The statement must be considered but does not by it self establish the declarant's authority under (C), (D) or (E). 

Rule 803

Exceptions to the Rule Against Hearsay- Regardless of Whether the Declarant is Available as a Witness 

(1) Present Sense Impression.

(2) Excited Utterance. 

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

(4) Stmt Made for Medical Diagnosis or Tx. 

(5) Recorded Recollection. 

(6) Records of Regularly Conducted Activity.

(7) Absence of Regularly Conducted Activity. 

(9) Public Records of Vital Statistics.

(10) Absence of a Public Record. 

Rule 804(a)

Exceptions When Declarant is Unavailable

Criteria for Being Unavailable 

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement b/c the court rules that a privilege applies

(2) Delcarant refuses to testify about the subject matter despite a court order to do so

(3) Declarant testifies to not remembering the subject matter

(4) Cannot be present or testify at the trial b/c of death or physical or mental illness

(5) Unable to secure attendance through process/other reasonable means

Rule 804(b)

Exceptions When Declarant is Unavailable

The Exceptions

(1) Former Testimony. 

(2) Stmt Under the Belief of Imminent Death. 

(3) Statement Against Interest. 

(6) Statement Offered Against a Party that Wrongfully Caused the Declarant's Unavailability. 

Rule 807

Residual (Catch All) Exception

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception:

(1) the statement has equivalent circumstantial guarantees of trustworthiness; 

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of these rules and interests of justice

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice...so that the party has a fair opportunity to meet it. 

Testimonial Statements

(a) Statements that one reasonably believes would be available for later use in trial in either (1) preliminary hearing (2) before a grand jury (3) formal trial (4) police interrogations

(b) If the declarant anticipates that the statement will be used in the prosecution or investigation of a crime

(c) Whether the govt. was involved in preparing the statement and whether the statement was made in a formalized setting 

Primary Purpose Test

(Testimonial Police Interrogations)

1. Is there an on-going emergency

2. Are the statements elicited to resolve the present emergency

3. Do the statements describe current situation or past events

Bourjaily v. U.S.

State v. Smith

AZ Rule re: Statutory Non- Hearsay 

Inconsistent Statements

Crawford v. Washington

Court held that whenever the State offers hearsay evidence against the accused that is testimonial in nature, the 6th amendment confrontation clause requires a showing of: 

1. Unavailabiliyt; and

2. A prior opportunity to cross-exam. 

Giles v. California

Court held that where D took actions specifically designed to prevent witness from testifying the prior opportunity for cross-exam is waived 

(State must show by preponderance of the evidence that primary purpose was to prevent witness from testifying) 

Massachusetts v. Melendez-Diaz

Ct held that admitting forensic affidavits violated the Confrontation Clause b/c the forensic reports were prepared in anticipation of litigation and D was not given an opportunity to cross examine

(re: admitting affidavits of forensic analysis on bags of drugs)

Hammon v. Indiana

Rule 601

Competency to Testify in General

AZ "Competency" Statute

Civil Cases- 2 classes of Incomptence

1) Persons of unsound mind - not limited to mental illness but includes any impact on ability to perceive, recollect, or communicate

2) Children under 10 - incapable of relating just impressions of facts

Criminal Cases - Every person is competent to be a witness

Deadman's Statute - prohibits an adverse party from testifying against a dead person's estate about transactions or conversations w/the deceased except where testimony is corroborated or a manifuest injustice would result

Rule 501

Privileges in General

The common law - as interpreted by U.S. courts in the light of reason and experience - governs a claim of privilege unless any of the following provides otherwise:

Constitution

Federal Statute

Rules prescribed by Sup. Ct.

Marital Privilege

(Federal)

• Applies to criminal cases only
• Witness spouse is holder, except in re: communication, both spouses are holders
• N/A to events that occur prior to marriage
• Privilege terminates upon divorce, except in re: communication, privilege applies during and after marriage

Marital Privilege

(AZ)

General Privilege

Consent is required by the party spouse (H or W) prior to the examination of the witness spouse as to events that occurred duirng the marriage

EXCEPTION - Witness spouse is the holder for serious crimes and voluntary statements by witness spouse

Communications
Neither spouse may be examined as to any communication made by one to the other during marriage w/out consent by the other spouse.

Privilege applies during and after marriage

Physician/Patient Privilege

Federal

No privilege recognized, decided state to state

AZ

Applies to communications and examination results in civil cases. Records are not discoverable w/out P's authorization

EXCEPTION- Privilege does not apply

1) when hospital records are necessary to prosecute a DV crime

2) cases involving abuse or neglect of minors

3) attempts to unlawfully obtain Rx drugs

4) statutory obligation to report suspicious gun/knife wounds and communicable diseases to police

Clergy or Priest Privilege

(AZ)

Rule 611

Mode and Order of Examining Witnesses/Presenting Evidence 

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to :

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harrassment or undue embarrassment

(b) Scope of Cross Exam. Cross-exam. should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The ct may allow inquiry into additional matters as if on direct.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

(1) on cross-exam; and

(2) when a party calls a hostile witness, an adverse party, or a witnesses identified w/an adverse party 

Cross Examination

Scope of Cross

(FRE vs. AZ)

FRE - limited to subject matter of the direct examination

AZ - Witness may be cross-exam on any relevant matter

Rule 607

Who May Impeach a Witness

Impeachment Methods

(1) Bias, Interest, Motive 

(a) AZ requires warning question; FRE not necessary

(b) Non-Collateral

(2) Prior Inconsistent Statement

(a) Warning question required

(3) Contradictory Facts

(a) Warning question generally required

(b) Collateral 

(4) Defects in Perception, Memory, Mental Health

(5) Prior Conviction

(6) Conduct Probative of Untruthfulness

(a) Collateral

(7) Bad Reputation for Truthfulness

(8) Treatises 

Rule 613

Prior Inconsistent Statements

(a) Showing or Disclosing the Stmt During Exam. When examining a witness about the wintess's prior stmt, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney

(b) Extrinsic Evidence. Admissible only if the witness is given an opportunity to explain or deny the stmt and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. 

Rule 609

Impeachment by Evid. of Crim. Conviction 

(a) In General. The following rules apply to attacking a witness's character for truthfulness by evid. of criminal conviction:

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

(A) must be admitted subject to R. 403, in a civil case or in a criminal case in which the witness is not a D; and

(B) must be admitted in a criminal case in which the witness is a D, if the probative value of the evidence outweighs its prejudicial effect to that D; and

(2) for any crime regardless of its punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving a dishonest act or false statement

(b) Limit on Using Evidence After 10 Years. If more than 10 yearss have passed since the witness's conviction or release (whichever is later) evidence of conviction is only admissible if:

(1) its probative value, substantially outweighs is prejudicial effect (Reverse 403)

(2) proponent gives adverse party reasonable written notice 

Rule 608(b)

Conduct Probative of Untruthfulness

(b) Specific Instances of Conduct. Except for criminal convictions, 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. But the court may, on cross-exam allow them to be inquired into if they are probative of the character for truthfulness of untruthfulness of:

(1) the witness; or 

(2) another witness whose character the witness being cross-exam testified about

Rule 608(a)

Bad Reputation for Truthfulness

Collateral

Non-Collateral

Rule 701

Opinion Testimony by Lay Witness

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness's perception;

(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 w/in the scope of R. 702

Rule 702

Testimony by Expert Witness

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwiase if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evid or to determine a fact in issue

(b) the testimony is based on sufficient facts in issue

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case

Rule 703

Bases of Opinion

Rule 704

Opinion on an Ultimate Issue

(a) In General- Not Automatically Objectionable. An opinion is not objectionable just b/c it embraces and ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mentla state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Rule 705

Disclosing the Facts or Data Underlying and Expert's Opinion

Rule 901

Authenticating or Identifying Evidence

Real Evidence

Items usually used or involved in crime or transaction

(1) Uniquely Identifiable

(i) Prima facie standard

(ii) Same or substantially same condition

(2) Not Uniquely Identifiable 

(i) Chain of Custody

(a) Must show credible evidence that the object handled and packaged in a way to circumstantially demonstrate that it is not altered, contaminated, or substituted

Demonstrative Evidence

Exhibits that represent the real thing 

Foundation

(1) Exhibit is representation of the real thing as it was at the pertinent date

(2) Exhibit is reasonably accurate or to scale

Rule 1006

Summaries to Prove Content

Best Evidence Rule

R. 1002 - Requirement of Original

An original writing, recording or photograph is required in order to prove its content unless these rules or a fed. statute provides otherwise

R. 1003 - Admissibility of Duplicates

A duplicate is admissible to the same extent as the original unless a genuine question is raise about the original's authenticity or the circumstances make it unfair to admit the duplicate

R. 1004. Admissibility of Other Evidence of Content

An original is not required and other evidence of the content of a writing, recording or photograph is admissible if:

(a) all the originals 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 that time put on notice, and failed to produce 

(d) Writing, recording or photograph is not closely related to a controlling issue 

R. 201

Judicial Notice

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute b/c it:

(1) is generally known w/in the trial court's territorial jurisdiction; or

(2) can be acurately and readily determined from sources whose accuracy cannot reasonably be questioned

(c) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied w/the necessary info. 

(d) Timing. The court may take judicial notice at any time

(e) Opportunity to Be Heard. On timely request a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on requires is still entitled to be heard.

(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive. 

Rule 301

Presumption in Civil Cases Generally

Rule 302

Applying State Law to Presumption in Civil Cases

Thayer "Bursting Bubble" Approach

Morgan Approach

Rule 103

Rulings on Evidence

(a) A party may claim error in a ruling to admit/exclude evid only if the error effects a substantial right fo the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it is apparent from context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof unless apparent from context

(b) Once the ct rules definitively on the record a party need not renew an object or offer of proof to preserve a claim of error for appeal 

(e) If there is a failure to make a proper, timely objection, claim of error is waived unless error rises to the level of plain error

AZ Plain Error Rule 

Trammel v. U.S.

Upjohn Co. v. U.S.

Frye v. United States

Daubert v. Merrel Dow Pharmaceuticals

Discarded the "Frye Test" and adopted the Daubert Factors

1. Whether the theory or technique has been or can be tested

2. Whether it has been subject to peer review and publication 

3. The theory's known or potential rate of error

4. The theory's general acceptance

Kumho Tire Co. v. Carmichael

U.S. v. Johnson

U.S. v. Vitale

U.S. v. Wilson

R. 803 - Exceptions to Hearsay

Present Sense Impression

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

R. 803 - Exceptions to Hearsay

Excited Utterance

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

R. 803 - Exceptions to Hearsay

Then-Existing Mental, Emotional, Physical Condition

A statement of the declarant's then existing SOM (motive, intent, or plan) or emotional or sensory, or physical condition, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

R. 803 - Exceptions to Hearsay

Statement Made for Medical Diagnosis or Tx

A stmt that:

(A) is made for and is reasonably pertinent to medical diagnosis or tx; and

(B) describes medical history; past or present symptoms and sensations; their inception; or their general cause. 

R. 803 - Exceptions to Hearsay

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 witness's knowledge

R. 803 - Exceptions to Hearsay

Records of Regularly Conducted Activity

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made @ or near the time by, or from info. transmitted by, someone w/knowledge

(B) the record was kept in the course of regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit

(C) making the record was a regular practice of that activity

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by certification 

(E) neither the source of info nor the method or circumstances of preparation indicate a lack of trustworthiness

R. 803 - Exceptions to Hearsay

Absence of Regularly Conducted Activity

Evid that a matter is not included in a record described in (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the possible source of the info. nor other circumstances indicate a lack of trustworthiness

R. 803 - Exceptions to Hearsay

Public Records of Vital Statistics

A record of birth, death, or marriage, if reported to a public office in accordance w/a legal duty

R. 803- Exceptions to Hearsay

Absence of a Public Record

Testimony- or certification that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) the record or statement does not exist; or

(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind 

R. 804 - Exceptions (Witness Unavailable)

Former Testimony

Testimony that:

(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 civil case, whose predecessor in interest had, an opportunity and similar motive to develop it by direct, cross-, or redirect exam.

R. 804 - Exceptions (Witness Unavailable)

Dying Declaration

In 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

R. 804 - Exceptions (Witness Unavailable)

Statement Against Interest

A stmt that:

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's propriatery 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 ciminal liability; and

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