EVIDENCE CHECKLIST DETERMINE APPLICABILITY OF RULES FRE 101, 1101
DETERMINE ADMISSIBILITY IS THE EVIDENCE “RELEVANT”? FRE 401
EVEN IF THE EVIDENCE IS RELEVANT, ARE THERE REASONS TO EXCLUDE IT? FRE 403
ARE THERE ANY OTHER REASONS REASONS TO EXCLUDE IT, BASED ON THE TYPE OF EVIDENCE IT IS? THE EVIDENCE IS CHARACTER EVIDENCE OR EVIDENCE OF HABIT
FRE 404-406 THE EVIDENCE IS ON SUBSEQUENT REMEDIAL MEASURES
FRE 407 THE EVIDENCE IS AN OPINION FRE 701 THE EVIDENCE IS EXPERT TESTIMONY FRE 702-705 IF THE CASE DEALS WITH A SEX OFFENSE AND THE EVIDENCE IS OF THE CHARACTER OF THE VICTIM FRE 412-415 THE EVIDENCE IS OF A WITNESS’ CREDIBILITY FRE 608-609 THE EVIDENCE IS HEARSAY FRE 801-802
IS THE EVIDENCE AUTHENTIC? FRE 901-903
IF THE EVIDENCE IS A WRITING, RECORDING OR PHOTOGRAPH, IS THE BEST EVIDENCE RULE SATISFIED? FRE 1001-1004
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THE HEARSAY RULE FRE 801.
DEFINITION OF HEARSAY The following definitions apply under this article: (a) Statem Statement ent. A “stat “stateme ement” nt” is (1) (1) an an oral oral or or writt written en asse assert rtion ion or (2) (2) nonv nonverb erbal al cond conduct uct of a person, if it is intended by the person as an assertion. (b) (b) Decl Declar aran antt. A “de “decl clar aran ant” t” is is a pers person on who who mak makes es a sta state teme ment nt (c) Hearsa Hearsayy. “Hears “Hearsay” ay” is a stat stateme ement nt,, other other than than one one made made by the the decl declara arant nt whil whilee testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
HEARSAY EXEMPTIONS Essentially, Essentially, these are the various various ways to get things admitted admitted into court. They are not hearsay by definition. definition. FRE 801(d) exempts certain types of out-of-court statements from the definition of hearsay and are often used in grand jury and criminal investigations . These statements are admissible to prove prove the truth of the matters they assert, assert, assuming assuming that they are otherwise otherwise unobjecti unobjectionabl onable e because, unlike hearsay, the witness-declarant is available for delayed cross-examination. THESE ARE NOT EXCEPTIONS!! There are exceptions to hearsay found in FRE 803 and FRE 804 , things that are hearsay but are admitted for whatever reason . There are 37 formal formal exceptions in 803 and 804. 804. That does not include the exemptions found in 801(d). FRE 801(d)(1) exempts certain statements made by a declarant who is appearing as a testifying witness. FRE 801(d)(2) exempts statements made by a party or made by persons affiliated with a party so long as the statement are offered against that party.
FRE 801.
DEFINITIONS (d) (d) Stat Statem emen ents ts whic which h are are not not hea hears rsay. ay. A sta state teme ment nt is NOT NOT hear hearsa sayy if if (1) (1) Prio rior state tatem ment ent by witn witnes esss. The The declarant testifies at the trial or hearing and is subject to cross-examination cross-examination concerning the statement, and the statement statement is inconsistent with the declarant’s testimony, and was given (A) under oath subject to the penalty of perjury at trial, hearing, or other proceeding OR consistent with the declarant’s testimony and is offered to (B) rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, OR one of identification of a person / made after perceiving (C) that person . (2) Admiss Admission ion by party party oppone opponent nt. The statem statement ent is offer offered ed again against st a party and is (A) (A) the the par party ty’s ’s own own sta state teme ment nt,, in eith either er an indi indivi vidu dual al or a representative capacity OR (B) (B) a sta state teme ment nt of whic which h the the par party ty has has mani manife fest sted ed an an adop adopti tion on or belief in its truth, OR (C) (C) a sta state teme ment nt by a pers person on aut autho hori rize zed d by by the the part partyy to make make a statement concerning concerning the subject, OR (D) (D) a stat statem emen entt by the the par party ty’s ’s age agent nt or or serv servan antt conc concer erni ning ng a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) (E) a sta state teme ment nt by a coco cocons nspi pira rato torr of of a par party ty dur durin ing g the the cour course se and in furtherance of the conspiracy.
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HEARSAY EXCEPTIONS When an out of court statement is offered to prove its effect on the listener, or some legally operative fact, or some other matter where relevance does not depend on inferences about the accuracy of declarant’s belief about an event, the statement is not hearsay. It is NOT offered to prove the truth of the matter asserted. asserted. Premise of these rules is that these types of statements are reliable enough to be used in the jury’s fact-finding even without without cross-examination cross-examination of the DECLARANT by the opponent. That is, there is something about the statements that reveals something about the declarant’s testimonial qualities. From these circumstances, circumstances, trustworthiness trustworthiness can be inferred. Thus, the DECLARANT NEED NOT BE AVAILABLE FOR ANY OF RULE 803 & SUCH STATEMENTS TO BE ADMISSIBLE. Also, the DECLARANT MUST HAVE FIRSTHAND KNOWLEDGE AS WELL SINCE SHE IS A WITNESS.
FRE FRE 803 803..
HEAR HEARSA SAY Y EXC EXCEP EPTI TION ONS; S; AVAI AVAILA LABI BILI LITY TY OF DECL DECLAR ARAN ANT T IMM IMMAT ATER ERIA IAL L The following are not excluded by the hearsay rule, even though the declarant is unavailable as a witness: (1) Presen Presentt sense sense impr impress ession ion. A statem statement ent desc describ ribing ing or expla explaini ining ng an an event event or or condi conditio tion n made made while the declarant was perceiving the event or condition or immediately thereafter (2) Excite Excited d utter utteranc ancee. A stat stateme ement nt rela relatin ting g to a startl startling ing event event or or condi conditio tion n made made whil whilee the the declarant was under the stress of excitement caused by the event or condition. (3) The exis existin ting g menta mental, l, emot emotion ional, al, or phys physica icall condi conditio tion. n. A stat stateme ement nt of of the the decla declaran rant’s t’s then then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health) but not including a statement or memory of belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, identification, or terms of declarant’s will (4) Statem Statement entss for for purpo purposes ses of medi medical cal diagno diagnosis sis or trea treatme tment. nt... Statem Statement entss made made for purpos purposes es of medical diagnosis or treatment and describing medical history, or past and present symptoms, pain, or sensations, sensations, or the inception inception or general character character of the cause cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (5) Record Recorded ed reco recolle llecti ction on. A memor memorand andum um or or recor record d conce concern rning ing a matt matter er abou aboutt which which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully & accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not be itself received as an exhibit unless offered by an adverse party. (6) Record Recordss of regula regularly rly conduc conducted ted activi activity ty. A memo memoran randum dum,, repor report, t, reco record, rd, or dat data a compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness trustworthiness.. The term “business” as used in this paragraph paragraph includes business, institution, association, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (7) Absenc Absencee of entr entryy in reco records rds kept kept in acco accorda rdance nce with with the the provi provisio sions ns of of parag paragrap raph h 6. Evidence that a matter matter is not included in the memoranda, reports, reports, records, or data compilation, in any form, kept in accordance with the provisions of (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information information or other circumstances indicate a lack of trustworthiness. trustworthiness.
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(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16) (17)
(18)
Publi Publicc recor records ds or or repo reports rts.. Record Records, s, repo reports rts,, state statemen ments, ts, or dat data a compi compilat lation ionss in any form, form, of public office or agencies, setting forth (A) the activities in the office, (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, personnel, or (C) in civil actions and proceedings and against the govt. in criminal cases, factual findings resulting from an investigation made pursuant and to authority granted by law, unless the source of information or other circumstances indicate a lack of trustworthiness. trustworthiness. Record Recordss of Vital Vital Stat Statist istics ics. Recor Records ds or data data compi compila latio tions, ns, in in any any form form,, of birt births hs,, fetal fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law statement, or data compilation, or entry. Absence Absence of publi publicc record record or entry entry. To prove prove the absence absence of of a record, record, report report,, statem statement, ent, or data compilation, compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation in any form, was regularly made and preserved by a public public office or agency, evidence evidence in the form of a certification certification in accordance with rule 902 or testimony, that diligent search failed to disclose the record, report Records of Religious Religious Organizations Organizations . Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. organization. Marriage, Baptismal, Baptismal, and similar certificates. Statements of fact contained in a certificate certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public office, or other person authorized by the rules or practices of a religious organization organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within reasonable time thereafter. Family records. records. Statements of fact concerning personal pr family history contained in family Bibles, Bibles, genealogies, charts, engravings engravings on rings, rings, inscriptions on family family portraits, portraits, engravings on urns, crypts, or tombstones, or the like. Records of documents documents affecting an interest interest in property. property. The record of a document document purporting to establish establish or affect affect an interest in property, property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public public office and an applicable statute authorizes the recording of documents of that kind in that office. Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. Statements in Ancient documents Statements in a document in existence 20 years or more the authenticity of which is established. Market Market reports, reports, commercia commerciall publicati publications. ons. Market Market quotatio quotations, ns, tabulati tabulations, ons, lists, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. occupations. Learned Treatises. To the extent called to the attention of an expert witness upon crossexamination or relied upon by the expert witness in direct examination, statements contained in published treatises periodicals, or pamphlets on a subject of history, medicine, or other science of art, established as a reliable authority by the testimony or admission of the witness or by other other expert testimony or by judicial notice. notice. If admitted, the statements may may be read into evidence but but may be received as exhibits. exhibits.
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(19)
(20)
(21) (22)
(23)
(24)
FRE FRE 804 804
Reputation concerning concerning personal or family family history. Reputation among among members of a person’s person’s family by blood, adoption, adoption, or marriage, marriage, or among a person’s associates, associates, or in the community, community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history before the controversy, as to boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the community or State or nation in which located. Reputation Reputation concerning concerning boundaries boundaries or general general history history. Reputation Reputation in a communi community, ty, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events e vents of general history important to the community or State or nation in which located. Reputation as to character . Reputation of a person’s character among associates or in the community Reputation as to character . Reputation of a person’s character among associates or conviction. Evidence of a final judgment, judgment, entered after a trial in the Judgement of a previous conviction. or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Govt. in a criminal prosecution for purposes purposes other than than impeachment, judgements judgements against persons persons other than the the accused. Judgment Judgment as as to personal, personal, family, family, or general general histor history, y, or boundari boundaries es. Judgement Judgementss as proof of matters of persona, family, or general history, or boundaries, essential to the judgment, if the same would be provable provable by evidence of occupation. occupation. Other ex exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees guarantees of trustworthiness, trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served served by admission of of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and
HEAR HEARSA SAY Y EXCE EXCEPT PTIO IONS NS REQ REQUI UIRI RING NG THE THE UNA UNAVA VAIL ILAB ABIL ILIT ITY Y OF THE THE DEC DECLA LARA RANT NT
Grounds for Unavailability 1) decl declar aran antt is is exem exempt pt bc the the sub subje ject ct mat matte terr of of his his sta state teme ment nt is is pri privi vile lege ged d 2) decl declar aran antt ref refus uses es to test testif ifyy eve even n aft after er cour courtt ord order erss 3) decl decla arant rant tes testifi tifies es as to lack ack of memor emoryy 4) decl declar aran antt is unav unavai aila labl blee bc of dea death th or illn illnes esss 804(b)(6) EXCEPTION 804(b)(6) EXCEPTION : where the above is a result of the user’s wrongdoing intended to prevent a declarant from attending. attending.
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