Federal Rules of Evidence
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Defintion of Hearsay (FRE 801)?
- 1. Statement is an oral or writen assertion, or nonverbal conduct of a person, if it is intended by the person as an assertion.
- 2. Declarant is a person who makes the assertion
- 3. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.
- The "matter asserted" is the purpose of the hearsay. Ask what is the purpose of the statement? Is the evidence offered to prove that purpose?
What are the requirements for a statement be considered an "excited utterance" (FRE 803(2))?
- 1. Startling event: an event is giving rise to the statement must be sufficiently startling to eliminate the declarant's capacity to reclect before speaking
- 2. Still under effect: the statement must be made while the declarant is still under the effect of the event
If the statement meets both of these requirements, and the 403 relevancy test, it will likely be admissible as an exception to hearsay.
If a fact is offered for one purpose, and becomes admissible by staisfying all the elements applicable to a rule, but is not admissible because it does not satisfy some other elements applicable to a different rule, is the fact then inadmissible?
No. The fact is still admissible. Even if it is inadmissible under some other capacity, it is impractical to bar the evidence when it is has become admissible.
When is character evidence admissible in civil cases?
When the character is an essential element of the complained action or the defense. This very rare, usually only applicable in cases of slander or libel to prove a pertinant character trait of truthfullness, dishonesty, etc. Under the Federal Rules, character cannot be used as an evidentiary fact in civil cases (fact that leads to an inference).
What is the difference between "character" under FRE 405 context and "habit" under FRE 406 context?
Character is a generalized description of a person's disposition, or of a general trait, such as honesty, temperance or peacefulness. Habit is more specific. It denotes one's regular response to a repeated situation. If we speak of a character for due care, we think of the person's tendency to act prudently in all the varying situations of life--in business, at home, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of responding to a particular kind of situation with a specific type of conduct. Thus, a person may be in the habit of bounding down a certain stairway two or three steps at a time, of patronizing a particular pub after each day's work, or of driving his automobile without using a seatbelt. The doing of the habitual act may become semi-automatic.
May the prosecutor introduce character evidence about the accused during the government's case-in-cheif?
No. The testimony the prosecution is not allowed to introduce evidence about the character of the accused except in rebuttal of character evidence offered by the accused. FRE 404(a)(1)
If the court permits defense counsel to cross-examine a witness about a prior bad act for the purpose of impeachment, and witness acknowledged that she had comitted the prior bad act, would the prosecution be permitted to introduce testimony of a second witness who knew the impeached witness that in his opinion was a truthful person?
Yes. FRE 608(a) permits the credibility of a witness to be supported by opinion evidence of character for truthfulness if it has been "attacked by opinion or reputation evidence or otherwise." Cross-examination about alleged acts of misconduct is one form of attack that permits support of the witness by evidence that the witness has a truthful character, at least when the witness acknowledges the misconduct.
Assume that, after presenting evidence sufficient to support a jury finding that the defendant committed the murders, the prosecution rested its case in chief.
In its case in chief, the defense offers the testimony of a neighbor who has known the defendant for years. The neighbor will testify that in his opinion the defendant has an extremely peaceable character. Should the testimony be admitted?
Yes. The defense is permitted to introduce opinion evidence as to pertinent traits of the defendant's character. FRE 404(a)(1); 405(a).
In a murder trial, the defense calls a neighbor who has known the defendant for years. The purpose of the neighbor's testimony is to show that the defendant has a peaceful character. If permitted, the neighbor will testify that the defendant never had any fights or quarrels with her neighbors. Is the testimony admissible?
No. Testimony about the defendant's peaceful conduct is not admissible. Rule 405(b) provides that character may be proven by testimony about specific instances of conduct when character is "an essential element of a charge, claim, or defense." Character is not an essential element (ultimate issue) to a murder charge. It is merely an evidentiary fact that sheds light upon whether the defendant committed murder. She could have a generally violent character and be innocent of these murders; she could have a generally peaceable character and be guilty.
In a murder trial, the defense rested its case after presenting the testimony of a character witness that testified to the defendant's peacful character. In its rebuttal case, the prosecution calls a witness who will, if permitted, testify that the defendant has a bad reputation in the community for violence. Is the testimony admissible?
Yes. The prosecution can now introduce evidence of the defendant's bad character. The defense has opened the door by introducing evidence of her good character. FRE 404(a)(1)
In a drug trafficking case, where the defense is entrapment, in rebuttal the prosecution moves to admit testimony of a witness who claims to have bought heroin from the defendant in the past. Defense counsel argues that if the only relevance of this testimony is to show propensity to sell heroin, it is not admissible because it is evidence of specific conduct offered to show a trait of character. The character evidence should be in the form of opinion or reputation testimony, not in the form of testimony about specific conduct. Is this argument against admission of the testimony correct?
No. The argument is not correct. It is true that normally character evidence must be cast in the form of opinion or reputation testimony. However, FRE 405(b) permits proof of specific instances of conduct when a trait of character is an essential element of a charge, claim, or defense. Here, a trait of the defendant's character (his propensity to sell heroin) is an essential element of the defense of entrapment. If defendant had a propensity to sell heroin, he was not entrapped. This trait of character is an "ultimate issue" or "essential element." (In the usual case, character is merely an evidentiary fact, not an ultimate issue.) Proof of prior crimes of the type charged has traditionally been admitted in entrapment cases.
In a drug traficking trial, a prosecution witness was permitted to testify about prior heroin sale from the defendant to rebutt the defense of entrapment. On cross-examination, defense counsel seeks to elicit from the witness an admission that three months before the trial, he was arrested for possession of heroin with intent to sell. The witness has been charged with the crime but has not yet been tried. Should this cross-examination be permitted?
Yes. Cross-examination of this nature is routinely permitted in criminal cases because it indicates that the witness may be cooperating with the prosecution in hopes of receiving leniency. Because it is offered to show the witness's motive instead of a general trait of character, it is not considered to be character evidence at all.
In a drug traficking trial, a prosecution witness was permitted to testify about prior heroin sale from the defendant to rebutt the defense of entrapment. On cross-examination, defense counsel seeks to elicit from the witness an admission that three months before the trial, he was arrested for possession of heroin with intent to sell. The witness has been charged with the crime but has not yet been tried. the witness denies that he was arrested and charged with the heroin offense. May the defense introduce extrinsic evidence of the arrest and charge?
Yes. Because the testimony is offered to show the witness's bias and the witness has denied the impeaching facts, extrinsic evidence is admissible. Note that if testimony about prior criminal acts not resulting in conviction had been offered to impeach the witness's general character for trustworthiness, extrinsic evidence would be inadmissible. FRE 608. This situation is different because the testimony is offered to show a specific reason for bias, not a general trait of character.
May a prosecutor cross-examin a character witness about "relevant specific acts of conduct" of the defendant?
- Yes. FRE 405(a) permits cross-examination of a character witness about "relevant specific acts of conduct" of the defendant. FRE 405(a) advisory committee's note states that "The theory is that, since the reputation witness relates what he has heard, the inquiry tends to shed light on the accuracy of his hearing and reporting."
- The prosecutor is bound by the answer of the witness and cannot introduce extrinsic evidence of bad conduct by the defendant.
Sam v. Joe in contract action. To prove that Sam was a resident of San Francisco in 1966, Joe offers a copy of the San Francisco telephone directory for 1966, containing a listing of Sam's name, address, and telephone number. Without considering any potential exceptions, is this hearsay?
Yes. The telephone directory's information about Sam is an out of court statement offered for the truth of the matter asserted therein. It depends for its value upon the memory, perception, narration, and sincerity of the person preparing the directory and the persons from whom the information was obtained. It does not fall within any of the recognized categories of non-hearsay statements.
On the issue of defendant's negligence, plaintiff offers a silent motion picture in which plaintiff's husband re-enacts the accident. Hearsay?
Yes. The conduct in the motion picture is assertive, and the picture is offered to prove the truth of the matter asserted therein, so it is hearsay.
Plaintiff sues Defendant, claiming breach of an employment contract. Defendant claims that Plaintiff was fired "for cause" within the terms of the contract because Plaintiff was late for work on 10 successive days. To prove that Plaintiff was late for work, Defendant testifies that other employees repeatedly complained about Plaintiff's tardiness. Hearsay?
Yes. The other employees' complaints about tardiness are offered for the truth of the matter asserted therein. They are not being offered to prove that the employer believed that the plaintiff had been late for work (i.e., for the effect upon the hearer), but to prove that in fact the plaintiff was late for work.
Worker's compensation action. Employee claims he was injured while working at Employer's machine. Employer offers testimony that just before the accident an inspector viewed the machine and told Employer "That machine is absolutely foolproof; there's no way it could cause an accident." Hearsay?
Yes, the statement is hearsay. Because negligence is not an issue in a worker's compensation action, the statement of the inspector is not being offered for its effect upon the hearer. The state of mind of the hearer (Employer) is irrelevant. The only purpose for which the statement would be relevant would be to show that the machine could not have caused the injury. When offered for this purpose, the statement is hearsay and does not fall within any established categories of non-hearsay statements.
On the issue of a defective product, testimony about experiments conducted by the manufacturer for purposes of showing that the product was not defective. Hearsay?
No. It is true that the manufacturer intended to assert something with the experiments, but if the product withstood the experiments to test its defectiveness, the evidence has probative value independent of any intended assertion.
In case where the defendant is charged with solicitation, is at statement made by the defendant offering to have sex in exchange for money hearsay?
No. Statements of this nature are classified as "verbal acts." The statement constitutes the commission of the offense charged and has independent legal significance regardless of its credibility.
On the issue of the sanity of the declarant, testimony is offered that declarant said "I believe I am a unicorn." Hearsay?
Yes. The matter asserted is not that declarant is a unicorn, but that she believes she is. The evidence is being offered to prove that she has this insane belief that she is asserting.
In order to prove that the plaintiff was an employee of the defendant, he submits into evidence a letter that says "You are the best employee I have ever hired." Is this letter hearsay?
Yes. The declaration "You are the best employee I have ever hired" contains two assertions: that the plaintiff was the best employee and that the plaintiff was hired by the defendant. The second assertion is literally identical to the matter sought to be proven and the testimony should be classified as hearsay.
During a drug trafficking trial, a witness for the State testifies that the defendant sold him narcotics. On cross examination the defense reveals that after the alleged buy, the witness was arrested and made a deal with the State to testify against the defendant in exchange for in his own conviction leniency. On rebuttal the State offers testimony from a second witness that the other witness told him he had bought narcotics from the defendant. Is the second witness' testimony hearsay?
No. As a prior consistent statement offered to support the witness, the out-of-court declaration falls into one of the traditional categories of non-hearsay statements. FRE 801(d)(1)(B) specifically provides for admission of prior consistent statements offered to rebut a charge of fabrication.
On the issue of whether the declarant had the intent to act, is the declarant's statement notifying another of his intent to act hearsay?
- Yes. Since the statement is being offered to prove his intent, and the declarant made the statement to assert his intent it would be hearsay, unless it was accompanyed by the conduct he intended to do. When paired with the act, it will probably fall into the non-hearsay category of "verbal acts."
- Note: This type of statement would be admissible under the hearsay exception "present intent to do a future act." FRE 803(3)
On the issue of whether one party breached a contract, is the alleged breaching party statement of revokation hearsay?
No. This type of statement would be classified as "legally operative language" and is considered non-hearsay because the statement has legal consequences. It is not offered prove the intent of the alleged breacher, it is offered to prove that he made the statement. His statement statement of revokation is an assertion of intent, his true intent is not at issue.
On the issue of the safety of a circular saw, testimony that at a trade fair the saw salesman put his finger in front of the saw blade, and the saw shut off without harming him. Hearsay?
No. There is a non-hearsay basis for admitting this testimony. It is being admitted to prove that the saw safe. It is true that the salesman intended to assert that the saw was safe with his conduct. However, the mere fact that the saw shut off is evidence that it is safe regardless of any assertion made by the salesman and regardless of his credibility.
On the issue of adverse possessition, would a statement by the adverse possessor that was contrary to his claim of adverse possession be hearsay?
No. The statement would be characterized as legally operative language. It shows that declarant's possession is not adverse or hostile to the other party's claim of ownership. Whether or not the statement was true, the fact that statement was said shows a lack of open hostility which is an element of adverse possession.
On the issue of whether a employee was acting within the scope of his employment when he goes on a trip, is testimony that his employer requested him to do so hearsay?
No. The employer's request would be classified as "legally operative language" and thus non-hearsay. The words themselves are an element that define the scope of the employee's employment.
On the issue of whether the defedant shot the victim, the prosecution offers testimony that after the victim was shot she spit at the defendant. Hearsay?
Yes. By spitting at the defendant, the victim was asserting hatred. One might think that the testimony is not being offered for the truth of the matter asserted, because it is being offered to show that the defendant shot the victim, not that that she hated the defendant. However, the inference that she hated the defendant must also be accepted in order to reach the ultimate conclusion that the defendant shot at the victim. So they are proving that the defendant shot the victim by proving that she hated him, and in proving that she hated him, they are proving her assertion.
Is testimony of a character witnesses who says that the defendant's reputation in the community for honesty is excellent hearsay?
Yes. Reputation is the esteem by which a person is held by others, so stating that the defendant has a reputation for honesty, you are stating that others think he is honest. Only a statement that the character witness thinks he is honest would be non-hearsay.
If two parties entered in a conract, is a later statement by one party to the other that she wishes to change the terms of contract hearsay?
No. Conversations setting up the oral modification are legally operative language. They are not offered assertively, but rather to show the creation of a legal relationship. In other words, they are not offered for what they say, but for what they do. What they do is to create a new legal right.
How does impeachment of a witness differ from attacking competency?
When a judge determines a witness is incompetent they may not testify. If a witness is given testimony before the lack of competency is revealed, that testimony must be stricken from the recod and the jury is intructed to disregard it. When creditbility is attacked by impeachment of a witness, all the testimony of the witness stays on the record. The jury may use the facts brought out for impeachment to determine the truthfullness of the witness.
How is impeachment by bias defined in the Federal Rules of Evidence?
It's not. The FRE never specifically mention "bias" in a particular rule. Using bias for impeachment is so commonly recognized that the drafters just assumed that bias could be used. Some types of bias offered to impeach a witness are: friendliness towards a party, hostility towards a party, interest in the outcome of the litigation, excepting gifts or bribes, fee arangements, favorable treatment by law enforcement, etc.
When a wtiness testifies is he always subject to impeachment?
Yes. The witness may be asked on cross-examination about specific instances or their general character as it relates to a lack of truthfullness. FRE 608(b)(1). Extrinsic evidence of the character witness' lack of trurthfulness may be offered. FRE 608(a)(1) specifcally allows this type of evidence in the form of reputation or opinion. However, if a witness denies the specifc conduct, the attorney asking must accept the witness' answer. The use of extrinsic evidence is prohibitted to prove the existence of this type of specific conduct occured. Remember, if the specific instance was subject to or led to a conviction of a crime, it must be analysed under FRE 609.
When using prior convictions to impeach a witness, how is admissibility differentiated when the witness being impeached is the accused in a criminal trial?
When the witness is the accused in a criminal trial FRE 609(a)(1) provides a different test. Like a witness who is not the accused, evidence of prior convictions may be introduced if they are punishable by death or imprisonment in excess of one year. The difference lies in the balancing test that determines if evidence of the prior conviction should be excluded. Unlike the FRE 403 balancing test, when the witness is also the accused, the prosecutor must convince the judge that the probative value of the conviction as it relates to credibility is strong enough to outweigh any prejudicial effect on the accused. The accused has less heavy burden for exclusion. The prosecutor must show that the prior conviction has a greater probabtive vaule than the assumed prejudicial effect, therefore the probative value must be greater. In order to be admissable: P.V. > P.E, if P.E. >/= P.V. it is not admissable. In order to be admissible in a FRE 403 scenario, P.V.< P.E., P.E.>/=P.V., only inadmissable when P.E. >>P.V.
On the issue of whether his truck hit a bridge portal, Defendant offers his testimony that just before he drove under the bridge, his passenger said "go ahead, there is plenty of clearance." Defendant offers this evidence solely to show that he cleared the portal. Hearsay?
Yes. Because the statement is being offered on the issue of whether or not the truck hit the bridge, instead of whether Defendant used reasonable care, it is being offered to show that there was in fact plenty of clearance, and for this purpose it depends for its value on the credibility of the declarant.
What are the reasons would prior crimes, wrongs, acts be admissable under FRE 404(b)?
They can be admitted if they are elements of the crime charged, or to show motive, opportunity, intent, knowledge, perperation or plan, identity, absence of mistake or accident. They cannot be admitted to show the character of a person to prove they acted in conformity therein.
What is a preliminary question?
When the admissibility of evidence turns upon an issue of fact.
May a witness' character for truthfullness be rehabilitated before it was impeached?
No. FRE 608(a)(2) evidence of truthfulness is admissable on after the witness' character for truthfulness has been attacked.
What factors did the court note in Daubert that a judge should apply to keep invalid science out of a case?
- 1. Whether a theory can be or has been tested;
- 2. Whether a theory has been subject to peer review;
- 3. Whether there are standards and controls over the theory;
- 4. Whether there is a known rate of error when the theory has been applied;
- 5. Whether the theory has been generally accepted in the scientific community.
What is multiple hearsay, or hearsay within hearsay?
When one out-of-court declaration quotes another out-of-court declartion. FRE 805 states that this type of hearsay is admissible when each statement conforms to one of the hearsay exceptions.
How may handwriting be authenticated?
Either through expert testimony or through non-expert opinion based on familiarity with the handwriting. FRE 901(b)(2) states that the familiarity of the non-expert must be aquired through any event other than those in preperation for litigation. This is typically satisfied by viewing the author in the act of writing at some point.
What is the difference between the non-hearsay category of "admission of a party opponent" in FRE 801(d)(2) and the "statement against interest" hearsay exception in FRE 804(b)(3)?
Besides the obvious fact that one is hearsay and other is not. The admission against a party opponent is only used against a party to the litigation, therefore the party is readily available to take the witness stand to explain or be cross-examined on the statement. The hearsay exception of a statement against interest may only be offered when the declarant is unavailable as defined by the criteria in FRE 804(a).
When does the 6th Amendment confrontation clause kick in during a legal proceding?
During a criminal trial, the 6th Amendment gives a defendant a right to face his accuser. The confrontation clause keeps evidence out of a criminal trial when it is hearsay, used against the defendant, the declarant is unavailable to for cross examination by the defendant, and is testimonial. Thought the SCOTUS has never given a clear defintion for "testimonial" typically think of non-emergency situations where a declarant makes a statement to an authority figure (attorney, police officer, judge, agent).
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