I. GENERAL PROVISIONS FRE

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1 EVIDENCE OUTLINE Why have federal rules of evidence? We want to 1) Reign in the parties in an adversary system; 2) We don t fully trust juries; 3) Time is short; 4) We want people to consult attorneys and we want those relationships protected. I. GENERAL PROVISIONS FRE 103. Rulings on Evidence. (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (b) Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. (c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statement or offers of proof or asking questions in the hearing of the jury. (d) Plain Error. Nothing in this rule precludes taking notice of plain error affecting substantial rights although they were not brought to the attention of the court. A. Hard to Win Reversals: It is difficult to win reversals because of FRE 103(a), not only must the objection be made but a substantial right must have been affected. Reversals are rare and much deference is given to lower courts. FRE 104. Preliminary Questions. (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. A. Questions for the Court: 104(a) deals with questions for the court, using a preponderance of the evidence standard to even admit the evidence. (b) Relevancy Conditioned on fact. When the 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 fulfillment of the condition. B. Questions for the Jury: 104(b) deals with questions for the jury; once the judge has concluded that there is a condition of for an offered item, the judge will admit it. (c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

2 (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (e) Weight and credibility. The rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. II. RELEVANCY (Preliminary Question 401) FRE 401. Definition of Relevant Evidence Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. A. Relevance: Despite the fact that according to Wigmore, the law establishes no test of relevancy, the inferential chain helps in deciding. Relevancy begins the process of admitting evidence (though it does not end there, certainly). To be relevant, the evidence must have probative force. There is a relatively minimal test for relevancy. As Weinstein and Berger say, relevance of evidence is determined by whether the evidence could influence a reasonable juror or jury. The jury must use generalizations to make such a conclusion. [Knapp v. State: Trial court was right in allowing testimony that tended to disprove a fact that the defendant contended, it must at least be said that the testimony complained of had a tendency to render his claim as to what he heard less probable.] 1) Relevant, But Not Necessarily Sufficient: Furthermore, just because evidence is relevant does not mean that the evidence is sufficient to support a verdict: A brick is not a wall. Additionally, the evidence may be relevant even if its is not certain. Many items of evidence must be shown to prove or disprove the claim. Probative Connection EF IF FOC EE (Evidentiary Fact) (Inferred Fact) (Fact of Consequence) (Essential Element) The evidence The fact the jury The fact that the jury concludes The element needed to offered in court. believes. (Evidence after viewing the evidence satisfy (or not) the claim. could be false) is more (or less) probable. B. Direct Evidence: Direct Evidence is evidence in which EF IF (very little needed, just truth of the evidence needed) FOC. As long as the jury believes the evidence fact, then the evidence is an element. C. Circumstantial Evidence: Circumstantial evidence requires a longer inferential claim. Though direct evidence also requires the fact-finder to make inferences, circumstantial requires more. EF IF (many inferences may be needed) FOC FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rule, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. A. Probative Value: Probative Value is a measure of the evidence s ability to make the fact of consequence more or less likely. The court will consider a piece of evidence s probative value based on the a) strength of the underlying inferences, the b) certainty of the evidence itself, and c) need for the evidence. 2

3 Trial Dangers Must Substantially Outweigh Probative Value B. The Dangers (Trial Concerns): Relevant evidence will not be allowed if one of the six dangers outweighs the probative value. The burden is on the party seeking the exclusion to show that a) the danger(s) substantially outweighs the evidence s probative value and b) the exclusion will prevent an adverse affect on a party s substantial right. If so, the court could give an FRE 105 limiting instruction. [U.S. v. Hitt: There was little probative value to photograph of defendant s gun taken along with pictures of other guns that did not belong to the defendant, furthermore, extreme 403 dangers of photograph]. Hitt court a little too extreme though in excluding evidence with little probative value because of little risk of misleading jury. [Old Chief: [T]he prosecution is entitled to prove its case free from any defendant s option to stipulate the evidence away rests on good sense. Evidence will not be excluded for relevant purposes outside of what defendant opposing party stipulates. Thus, essentially, offering wide stipulation will not keep evidence out.] 1) Unfair Prejudice: Evidence may bring unfair prejudice if it might lead the jury to make a decision based on a) emotions such as outrage, disgust or sympathy. Also, the danger of unfair prejudice excludes evidence which b) might be used to make an inference prohibited by other evidence rules. 2) Confusion of the Issues: Evidence which leads to confusion of the issues may lead the jury to consider collateral issues that may have little to do with the essential elements of the case. Rather than focusing on the real issue(s), the evidence sidetracks the jury s attention. Evidence which elicits confusion of the issues will be excluded if such confusion outweighs the probative value of the evidence. 3) Misleading the Jury: Evidence which misleads the jury may lead the jury to draw a mistaken inference. Evidence such as polygraphs or reenactments may lead to a mistaken inference if the evidence is taken out of context, given too much persuasive force, or lacks statistical or scientific validity. 4) Undue Delay and Waste of Time: Evidence that leads to undue delay or wastes time will be excluded if it does just that. 5) Needless Presentation of Cumulative Evidence: Evidence will be excluded if it essentially is just being shown repetitively. However, evidence may not be excluded solely to avoid delay. FRE 105. Limited Admissibility. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. A. Limiting Instruction: The party offering the limiting instruction moves to have instructions read which limit the jury s use of certain evidence. 1) Given If FRE 403 Danger: If there s a FRE 403 danger, then the limiting instruction should be allowed so the evidence will not be used by the jury in an improper way. 2) Danger of a Limiting Instruction: The party seeking that certain evidence be viewed by the jury under a limiting instruction still may not want a limiting instruction because such an instruction may emphasize or highlight potentially damaging evidence. Furthermore, jurors may think that a piece of evidence is relevant despite what the judge has instructed them. Finally, the jury may not like being limited in its analysis. III. WITNESS COMPETENCY (Preliminary Questions 601, 602) FRE 601. General Rule of Competency 3

4 Every Person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. A. Competency: At common law, there were many different categories of people considered incompetent to testify. The FREs have abolished such a broad abolition of categories, however. Yet when state law is governing in federal court, then a state category of incompetency will be used. Problems with a witness competency are often dealt with as either FRE 403 matters or the like at the discretion of the court or as matters of credibility for the jury. There is a generally very low standard for competency, designed to get evidence in to court. FRE 602. Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness own testimony. This rule is subject to the provision of FRE 703, relating to opinion testimony by expert witnesses. A. Personal Knowledge: A witness must have personal knowledge of the matter in order to testify about it. This personal knowledge must be sufficient to support a finding and is made sufficient by having the witness testify that they saw, heard or perceived the matter. There is a generally low standard for personal knowledge, designed to get evidence in. In order to be sufficient to support a finding, the evidence must be a fact on which the court thinks a jury could reasonably find the fact of consequence more or less likely. FRE 603. Oath or Affirmation Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness conscience and impress the witness mind with the duty to do so. IV. AUTHENTICATION AND IDENTIFICATION OF EXHIBITS (Preliminary Question (901) FRE 901. Requirement of Authentication or Identification (a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. A. What the Exhibit Is: According to FRE 901(a), the proponent of the exhibit must first offer what the exhibit is, articulating its connection to the case. B. Evidence Sufficient to Support a Finding: Then, according to FRE 901(a), the proponent of the exhibit must produce evidence or additional proof that the evidence is what it is. As with FRE 602, the proponent must submit evidence sufficient to support a finding. The judge will make such a decision by looking at the probative value. Authentication and identification concerns situations in which testimony is not offered but exhibits exhibits cannot be cross-examined. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. 4

5 (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice identification. 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. (6) Telephone conversation. 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 (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. (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. (8) Ancient documents or data compilation. Evidence that a document of data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely by, and (C) has been in existence 20 years or more at the time it is offered. (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. (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. C. Laying the Foundation: FRE 901(b) establishes examples of ways that the proponent can lay the foundation and show that the evidence is sufficient to support a finding. As in the Advisory Committee s Notes, (1) is supportive of a broad spectrum of testimony; (2) is the conventional doctrine to establish familiarity with handwriting; (5) is concerned with familiarity; (7) public records are regularly authenticated just by proof of custody; see FRE 901 below. 1) Real Evidence: Real Evidence is evidence which had some role in the litigated events, for example the weapons in a crime or the home appliance that is allegedly defective. Such evidence is identified and authenticated through a readily identifiable characteristic such as a unique design or a fingerprint. Or identification could be established through the chain of custody, however a complete chain of custody is not always necessary but big gaps in the chain may hurt the relevance or even admissibility. The purpose of real evidence is to allow the fact-finder an opportunity to draw a relevant first hand sense impression. 2) Demonstrative Evidence: Demonstrative evidence is evidence that reproduces or depicts objects that are connected to the litigated events, such as models, diagrams, drawings or photographs and is identified by witness saying what it is, as in real evidence. The content of the evidence is connected to the case and assists the trier of fact in its deliberations. Despite the identification, in laying the proper foundation, the proponent of the evidence must be prepared to show that the evidence is fair, accurate or true depiction of what it is claimed to portray. a) 403 Danger: If there is a 403 danger the judge may disallow or issue a limiting instruction, for example with With recorded simulations and animations FRE 902. Self-Authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: 5

6 A. Extrinsic Evidence of Authenticity Not Needed: Under FRE 902, extrinsic evidence is not needed because practical considerations reduce the possibility of unauthenticity to a very small dimension. There is a generalization to the following that someone has already paid attention to the genuineness. However, the opposing party can still always dispute the authenticity. Yet (3) requires official certifications to be self-authenticating; (7) realizes that there are serious penalties for trademark infringement, etc. (1) Domestic public documents under seal. [See rule]. (2) Domestic public documents not under seal. [See rule]. (3) Foreign public documents. [See rule]. (4) Certified copies of public records. [See rule]. (5) Official publications. [See rule]. (6) Newspapers and periodicals. [See rule]. (7) Trade inscriptions and the like. [See rule]. (8) Acknowledged documents. [See rule]. (9) Commercial paper and related documents. [See rule]. (10) Presumptions under Acts of Congress. [See rule]. (11) Certified domestic records of regularly conducted activity. [See rule]. (12) Certified foreign records of regularly conducted activity. [See rule]. FRE Definitions For purposes of this article the following definitions are applicable: (1) Writings and recordings. Writings and recordings consists of letters, words, or numbers, or their equivalent, set down by handwriting, typrewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data. (2) Photographs. Photographs include still photographs, X-ray films, video tapes, and motion pictures. (3) Original. An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An original of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately is an original. (4) Duplicate. A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original. FRE Requirement of Original To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules of by Act of Congress. 6

7 A. The Best Evidence Rule: The Best Evidence Rule is the compilation of several rules (FRE ) that has a simple premise: the original of the contents of a writing, recording or photograph is generally more trustworthy than a copy because of the fallibility of memory, the hazards of duplication, etc. FRE 1002 best summarizes the rule. However, the rule does not extend beyond writings, recordings, or photographs. 1) Best Evidence Rule (Goldwasser) Summarization: To prove the contents of a non-collateral and thus legally operative writing, recording or photograph, (defined in FRE 1001 (1) & (2)), the proponent of the evidence must produce the original (defined in FRE 1001(3)) or satisfactorily account for the absence of the original (FRE 1004 (1)-(3)). If indeed the proponent does not produce the original and produces a duplicate, there must be no questions about the authenticity of the original and it must not be unfair to admit (FRE 1003). Nonetheless, there is more flexibility towards public records, summaries and when the content has been admitted by the opposing party in testimony. a) Rule Only Applies to Contents: The Best Evidence Rule does not apply to facts that are not the contents of the writing, recording or photograph. FRE Admissibility of Duplicates A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. A. Duplicates Generally Admissible Unless : Duplicates are generally admissible if they have been properly authenticated. However, they will be excluded if the authenticity is disputed or if incompleteness, erasures, defects, etc, make the copies unfair to admit. FRE Admissibility of Other Evidence Contents The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable. No original can be obtained by any available process or procedure. (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that the party does not produce the original at the hearing; or (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue. A. Original Not Required: The original will not be required if it has been lost or destroyed, is not obtainable, the opposing party won t give it up, or it deals with collateral matters (matters that are not relevant as legally operative facts). FRE Public Records The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. 7

8 A. Preference for Duplicate of Public Record: There is preference for certified or compared copies of public records. FRE Summaries The contents of voluminous writings, recording, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. FRE Testimony of Written Admission of Party Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party s written admission, without accounting for the nonproduction of the original. FRE Functions of Court and Jury When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. A. Most Questions to Judge: In a dispute as to administration of Best Evidence Rule, the questions go to the court, pursuant to FRE 104(a). However, if there are specific factual issues as to the original, then such a question is one for the jury to determine, those specified in (a), (b) and (c). As the Advisory Committee notes, this rule insures treatment of certain situations as jury questions and prevents the premature termination of certain cases. V. CHARACTER AND PROPENSITY EVIDENCE FRE 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (a) Character evidence generally. Evidence of a person s character or a trait of character is not admissible for the purpose of proving an action in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent trait of character 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 FRE 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution. (2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime 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 the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor. A. Criminal Cases Only: FRE 404(a) applies to criminal cases; in civil cases character evidence is not allowed to prove action in conformity therewith. B. Defendant Opens the Door, Prosecution May Follow: The defendant may introduce evidence pertinent evidence of their own character or of the victim s character. Most often, the defendant is introducing evidence of their own good character. As soon as the defendant has introduced evidence about either their own character, then the prosecution can introduce evidence about the defendant s character. When the defendant has introduced evidence about the victim s character, the prosecution can then introduce evidence about the victim s character and the defendant s character. Nevertheless, the prosecution is limited to the same character trait that the defendant has introduced. 8

9 C. Prosecution s Limited Right to Open Door: The prosecution may outrightly offer evidence of a homicide victim s trait of peacefulness, regardless or whether the defendant has called the victim violent, but the prosecution can do this only if the defendant has called the victim the first aggressor. This is because the victim cannot testify they re dead. However, the prosecution cannot simultaneously promote evidence about the defendant s character. (3) Character of witness. Evidence of the character of a witness, as provided in rule 607, 608, 609. D. Rationale for Restricting Character Evidence: Character evidence is restricted because the inference may be weak and have a low probative value. Furthermore, the law not the emotions of jurors should decide cases. We don t want juries to reward the good man and punish the bad man. (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake of accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause show, of the general nature of any such evidence it intends to introduce at trial. E. Prohibition of Specific Acts: The proponent of character evidence cannot offer evidence of specific acts in order to show conformity therewith either for good character or bad. 1) Specific Acts for Non-Character Purpose Are Allowed: Though character evidence is not allowed to show action in conformity therewith, evidence of specific acts are allowed for noncharacter purposes. Such acts are usually offered by the prosecution against the defendant and are admissible to show proof of motive, opportunity, etc. In order to admit this evidence, the proponent needs to a) articulate the noncharacter purpose element for which the specific acts evidence is offered, such as being part of the common plan that the defendant is charged with; b) introduce evidence that the specific act did in fact occur; c) deal with 403 dangers (probative value to noncharacter purpose, probative value to contested issue, risk of unfair prejudice, effectiveness of a limiting instruction; d) provide notice to the defendant (if prosecution is offering because of amendment to 404(b)). F. Rationale for Restricting Specific Acts: Specific Acts are prohibited because emotions should not decide cases, because mini-trials over the specific act would erupt and be time consuming and because specific acts offer low probative value, furthermore opinion and reputation are relatively general and can be dealt with with relative dispatch. FRE 405. Methods of Proving Character (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. A. Reputation or Opinion Allowed: While the proponent of character evidence is prohibited from bringing up specific acts to prove action in conformity therewith, the proponent of the character evidence can bring in evidence of reputation of opinion. Reputation is the community s estimate of the party, opinion is the witness estimate of the person. B. Specific Instances Allowed on Cross-Examination: When character witnesses are being crossexamined, they may bring up specific acts and arrests. This means that on direct examination the witness will stick to reputation and opinion testimony. When on cross-ex, the witness can be asked about specific acts to see whether the witness really knows the party, nevertheless these questions may be prejudicial and limited by a 105 instruction or furthermore ruled 403 inadmissible (though both are rarely used). The questions must just be for witness impeachment, nevertheless they may prejudice the defendant. The 9

10 specific acts questions must be a) relevant to the character trait; b) acts which the witness is likely to know about; c) based on a reasonable belief by the cross examiner that the act occurred. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person s conduct. C. When Character is An Essential Element of Claim or Defense: Unlike when character evidence is used to show action in conformity, character evidence reputation, opinion or specific acts may be used when the substantive law makes the character of a person an essential element of a claim or defense, such as in defamation cases, child custody cases and some tort claims. Nonetheless, there is always a 403 concern. VI. EVIDENCE OF SEXUAL ASSAULT AND CHILD MOLESTATION RE: DEFENDANT FRE 413. Evidence of Similar Crimes in Sexual Assault Cases (a) In a criminal cases in which the defendant is accused of an offense of sexual assault, evidence of the defendant s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the schedule date of trial or at such time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, offense of sexual assault means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved (1) any conduct proscribed by chapter 109A of title 18, United States Code; (2) contact, without consent, between any part of the defendant s body or an object and the genitals or anus of another person; (3) contact, without consent, between the genitals or anus of the defendant and any part of another person s body; (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4) FRE 414. Evidence of Similar Crimes in Child Molestation Cases (a) In a criminal cases in which the defendant is accused of an offense of child molestation, evidence of the defendant s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the schedule date of trial or at such time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, child means a person below the age of fourteen and offense of child molestation means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved 10

11 (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child; (2) any conduct proscribed by chapter 110 of title 18, United States Code; (3) contact between any part of the defendant s body or an object and the genitals or anus of a child; (4) contact between the genitals or anus of the defendant and any part of the body of the child; (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4) FRE 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (a) In a civil case in which a claim for damages or other relief is predicated on a party s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rule. (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. A. Allows Admission Prohibited by 404(a) & (b): Though 404(b) does not allow specific acts, do allow the admission of specific acts. And though 404(a) does not allow the admission of character evidence to show propensity or action in conformity therewith, do allow the admission of such evidence to prove action on a particular occasion. There is No Right to a limiting instruction. Furthermore, some courts allow specific acts in cases that deal with sexual assault, however other courts limit the admissible specific acts evidence to acts with the same victim. B. Admission Subject to 403 Balancing: Regardless of the fact that 404 does not apply, the sexual character evidence or child molestation evidence is still subject to exclusion on 403 grounds. Some courts are very broad C. Definition of Offense of Sexual Assault is Broad: Anything described in (d)(2) through (d)(5) is sexual assault as long as such conduct is proscribed somewhere. D. Definition of Without Consent is Broad: The term consent means either without actual consent and without legal consent. E. Rational for Admissibility of Sexual Character Evidence: a) The rationale for admission is the such evidence has high probative value because of the nature of the crime; b) recidivism of such a crime. However, there are tremendous dangers to , particularly concerning unfair prejudice. These rules were enacted by Congress and did not go through the regular process. VII. EVIDENCE OF ALLEGED VICTIM S PAST SEXUAL BEHAVIOR FRE 412. Sexual Offense Cases; Relevance of Alleged Victim s Past Sexual Behavior or Alleged Sexual Predisposition (a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): 11

12 (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim s sexual predisposition. (b) Exceptions. (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (c) evidence the execution of which would violate the constitutional rights of the defendant. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim s reputation is admissible only if it is has been placed in controversy by the alleged victim. (c) Procedure to determine admissibility. (1) A party intending to offer evidence under subdivision (b) must: (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim s guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. A. Other Sexual Behavior and Sexual Predisposition : Other Sexual Behavior means, according to the Advisory Committee, all activities that involve physical conduct, sexual intercourse, use of contraceptives, VD and even fantasies or dream etc. Sexual predisposition means evidence that does not directly refer to sexual activities or thoughts but that the proponent believes may have a sexual connotation for the factfinder ex, dress, speech, mode. This is very broad and includes behavior on specific occasions. 1) Civil Cases: In civil cases, there is a) a reverse balancing test, rather than requiring that the dangers substantially outweigh the probative value, thereby preferring admissibility, 412 requires that the probative value substantially outweigh the dangers, thereby preferring exclusion; b) the test requires that not only will the unfair prejudice be outweighed, but so too will harm to the alleged victim (embarrassment, invasion of privacy, etc.) 2) Criminal Cases: The defendant s evidence is admissible if it concerns a) the source of semen or injury; b) the victim s behavior with the defendant to suggest consent; c) when due process or 12

13 the confrontation clause, etc, allows the defendant to present such a defense. Regardless, these admissions are subject to 403 concerns. B. Rationale for Rape Shield Laws: Rape shield laws, also enacted by Congress, exist because a) evidence about the victim s past sexual history has relatively low probative value to the element of consent; Weak propensity: It is hard to go from prior sexual conduct to the fact of consequence and b) as a policy matter, we don t want rape victims or sexual assault victims to be afraid to testify or be on the defense. VIII. HABIT; ROUTINE PRACTICE FRE 406. Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. A. Unlike Character Evidence Habit or Routine Practice is Relevant and Admissible: FRE 406 makes habit or routine practice evidence relevant, thus according to FRE 402, admissible. B. Means to Prove Habit: Habit is shown by FRE 701 lay witnesses testifying about specific acts or opinion. Habit cannot be shown by reputation witnesses. C. Difference Between Character and Habit: According to McCormick, a) Character has to do with a person s tendency to act in all the varying situations of life, business, family life, handling situations, etc. Habit has to do with the person s regular (or semi-automatic )practice of meeting a particular kind of situation with a specific type of conduct. / it is more specific and routine than a character trait. b) Character is generally has a moral connotation whereas Habit is generally morally neutral. D. Rationale for Admission of Habit Evidence: a) Habit is more probative to demonstrate action on a particular occasion; b) Habit is morally neutral, less likely to prejudice. To prove habit, proponent must demonstrate difference between allowance of habit evidence and disallowance of character evidence. To measure specifically if it is habit, however, as said in the Advisory Committee Notes, Precise standards cannot be formulated. Case law is very important to determine standards. IX. EVIDENCE INADMISSIBLE TO PROVE NEGLIGENCE, CULPABLE CONDUCT, OR LIABILITY A. Rationale Behind Exclusion of Certain Evidence to Prove Liability: We do not want to discourage individuals from engaging in socially desirable conduct. Furthermore, we do not want to punish individuals for engaging in socially desirable conduct. FRE 407. Subsequent Remedial Measures When, after injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product s design, or a need for a warning of instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. A. Subsequent Remedial Measures Cannot Prove Neg., Culp. Conduct or Liability: There is a notion that a manufacturer or other party was negligent, etc, if the product or item or action was not safe, etc to begin with if after the event that is the subject of litigation, the defendant took subsequent remedial measures to reduce the likelihood of the event s reoccurrence. Firing an employee is an example of a subsequent remedial measure. B. But, Subsequent Remedial Measure Admissible for Other Measures: Subsequent remedial measures may be used for any other purpose than to show liability, etc. Measures may show that repairs, etc, were in 13

14 fact feasible and could have been done or that the defendant doing remedial measures proves the defendant was in control of the product. However, these issues must be controverted (contested) in the claim. FRE 408. Compromise and Offers of Compromise Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. A. Compromise and Offers to Compromise Cannot Prove Neg., Culp. Conduct or Liability: The inference is that the offeror believes they were at fault in the action and thus offers to compromise. However, on the other hand, the offeror may not believe they are at fault and may be compromising to avoid litigation costs. The exclusion extends to offers made during settlement negotiations. B. But, Compromise and Offers to Compromise Admissible for Other Measures: a) Compromise and offers to compromise is admissible to show other things than neg, culp conduct, etc., for example, that the comprimiser was aware of the situation giving rise to the action or had tried to obstruct a prosecution through settlement. The evidence must be relevant to the issues in the case, however. b) Furthermore, evidence cannot be insulated from admission just because it was part of an offer to compromise. c) the offer must be for a disputed claim, if a claim has not yet arisen, then the offer is admissible. FRE 409. Payment of Medical and Similar Expenses Evidence of furnishing or offering or promising to pay medical, hospital, or similar expense occasioned by an injury is not admissible to prove liability for the injury. A. Payment of Medical and Similar Expenses Cannot Prove Neg., Culp. Conduct or Liability: As with 407 and 408, the inference that someone is paying or taking remedial measures because they are at fault is not allowed. B. But, Satetments of Fault Admissible if Made With Payment and for Other Measures: If a party makes statements of fault or any statements, these could be admissible if they are made with the payment. According to the Advisory Committee, these are not negotiations or part of a compromise on which policy encourages. Furthermore, the payments may be used to show where an injury occurred, for example FRE 411. Liability Insurance Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. A. Liability Insurance Cannot Prove Neg., Culp. Conduct or Liability: The inference that someone who has insurance is careless, etc., is impermissible just because they have liability insurance. Furthermore, we don t want juries awarding damages just because the defendant has insurance. B. But Liability Insurance Admissible for Other Measures: Liability Insurance can be used to show other elements of claim, such as ownership, etc. 403 dangers, however. X. WITHDRAWN GUILTY PLEAS, PLEAS OF NO CONTEST, AND OFFERS TO PLEAD GUILTY FRE 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: 14

15 (1) a plea of guilty which was later withdrawn; A. Plea of Guilty Later Withdrawn Not Admissible: If the judge decides that a plea of guilty was inaccurate or violated the defendant s rights, thus no probative value anyway, it may be withdrawn. The prosecutor cannot then use the plea, otherwise the defendant s point of withdrawal would be meaningless. (2) a plea of nolo contendere; B. Pleas of No Contest Inadmissible: A plea no contest is a compromise, has little probative value. (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. C. Statements Made in Conjunction with the Process of Negotiating: For the same reason that settlements in civil case are excluded, as a matter of policy, plea negotiations may facilitate guilty pleas. Limitations on Exclusions: a) Plea must be made in negotiations or plea discussions. b) plea must be to prosecuting attorney, not police officer or anyone else. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury of false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. D. Exceptions: Other statements and lies during negotiations may be allowed. XI. SIMILAR HAPPENINGS A. Similar Happenings Evidence: Though not dealt with in any specific rule, similar happenings is like a form of evidence best dealt with by 401 to 406. XII. CURATIVE ADMISSIBILITY A. Curative Admissibility: Curative Admissibility is like fighting fire with fire, in which the judge allows one party to introduce inadmissible evidence to respond to the other party s inadmissible evidence. 15