Rules of Evidence Outline
COMPETENT and RELEVANT
Is it Competent? Witnesses are presumed to be competent, that is, witnesses have no impediment to offering testimony. Rule 601. Competent evidence is testimony based on the perceptions of the witness or thing that is testifying. See, hear, taste, smell, touch or otherwise experience.
Is it Material? Rule 401. The evidence is about a necessary fact. Necessary for resolution of the case.
Is it Probative? Rule 401. The evidence makes the existence of the fact or its non- existence more or less likely.
Material + Probative = Relevant
Admissible evidence is relevant evidence which is otherwise competent.
Although relevant, the following evidence may be excluded (Rule 403):
Speculative Not based on personal knowledge or conclusion of witness.
Prejudicial The probative value of the evidence is outweighed by its prejudicial effect.
Evidence that is not Competent
Witness lacks personal knowledge (Rule 602)
Lay opinions Rule 701 except opinions based upon ordinary perceptions. For example, the car was going fast (?) The defendant was drunk(?)
Character evidence (Rule 404)
Character of accused - pertinent trait of character offered by accused or prosecution to rebut the same. Criminal trials only.
Character of victim - pertinent trait of victim of crime offered by accused or by prosecution to rebut same. Criminal trials only.
Character of witness - only by impeachment.
Habits are admissible. Customary way of doing things. Rule 406
IMPEACHMENT Attack of a witness' and/or party's credibility
Methods (Impeachment by any party including the party calling the witness):
Inconsistent prior statement See Hearsay Rule 801(d)(1)
Admission by Party See hearsay Rule 801(d)(2)
Proof of character for untruthfulness Rule 608
Conviction of crime of witness (or party but not accused) Rule 609
Crime punishable by death or imprisonment for more than one year
Exception: too prejudicial
Crime involved dishonest or false statement
Pardon, annulment or certificate of rehabilitation
Ordinarily not competent.
Statements of another person, declarant, that the witness heard, but statement is presumed to be unreliable because there is no opportunity to cross examine the declarant. Rule 801
What is it? Out of court statement to prove its truth and not offered for another admissible purpose. Rule 801(a)
Statement: oral or written assertion or conduct intended to be an assertion.
What is it not. Rule 801(d)
Two forms of impeachment
Prior inconsistent statement of witness
Admission of party, party's agent, co-conspirator
One form of rehabilitation - prior consistent statement of witness when offered to rebut a charge of recent fabrication or improper influence or motive.
Exceptions, availability of declarant is not necessary (immaterial) Rule 803
Present sense impression made at the time of event or perception
State of mind of declarant at time statement made
Statement in medical record made for the purpose of treatment or diagnosis
Statement in business record made in the regular course of business
Exceptions, but must prove declarant is not available to testify first. Rule 804
Declaration against the interest of the witness
Hearsay within hearsay is also not admissible unless each statement conforms to an exception. Rule 805
EXPERT TESTIMONY admitting a professional opinion. Rule 702
1. Evidence must be outside the ordinary knowledge of jurors (the professional opinion will assist the jurors in determining a relevant fact)
2. Evidence must concern a relevant matter within the expert's recognized field of expertise.
3. Expert must have necessary qualifications.
4. Expert's opinion can be based on facts, that might otherwise be inadmissible (such as hearsay), if the facts are made know to the expert and the facts are of a type reasonably relied upon by those in the expert's field.
Authentic evidence Rule 901 This is the gun that was used to shoot the victim. Not this is a model of the fun that Mrs. Jones said she saw the Defendant shoot the victim.
Writings and Photographs Rule 1001 It is necessary that when using a copy of writing, photograph or recording, someone must testify that he or she has knowledge of the original and the copy fairly and accurately depicts the original.
Judicial Notice Rule 201 The last resort or the path of least resistance in admitting evidence. Example: The law of Midland.
Burden of Proof:
In civil cases, Plaintiff has burden of proof which means he or she must prove each essential fact to the case by more likely than not standard.
In criminal cases, Prosecutor must prove each element of the crime by the "beyond a reasonable doubt" standard.
Nuts and bolts:
Offer of Proof
Request to strike (after the horse is out of the gate)
Evidence not admitted cannot be used in closing argument (since there are no objections during close - the team which argues facts that were ruled inadmissible should be penalized.)
Rule 405 Methods of proving character
Rule 611 Mode and order of interrogation.
Special note: no narrative testimony. Objection: the question is so wide open and broad that it calls for a narrative.
Appendix: See Written Notice of Intent to Offer Character Evidence. Required by Rule 404 applies only to character of accused or victim in criminal trial, not parties or witnesses in civil trial