Understanding Evidence Admissibility Rules in Legal Proceedings, Exams of Nursing

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Federal Rules of Evidence Final Exam

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103 - Rulings on Evidence - Correct Answers An objection to a ruling must be timely, must state specific grounds. Ruling has to be final to preserve it for appeal (must be in the record at trial, motions hearings don't count) 104 - Preliminary Questions - Correct Answers A) Trial judge decides if a witness is qualified, privilege exists, or the admissibility of evidence B) Jurors decide relevance of evidence, weight of evidence, credibility of witnesses 105- Limiting Evidence - Correct Answers Basis for limiting instructions Some pieces of evidence are relevant for some issues but not for others - Judge is required to instruct the jury how to use these pieces of evidence 106 - Remainder of Related Writings/Recorded Statements - Correct Answers - Rule of Completion = when writing or recording is introduced, any other parts of it or related statements by opposing party must also be admitted 201 - Judicial Notice - Correct Answers Adjudicative facts = specific facts for particular litigation. (Ex. is a certain street business or residential?) Judge may judicially notice a fact that is not subject to reasonable dispute if it:

1. generally known within jurisdiction
2. accurately/readily determined from sources whose accuracy aren't questioned Court may
3. take notice on its own
4. take notice if party requets

• can take notice at any stage of proceedings CHAPTER 4 - RELEVANCE AND ITS LIMITS - Correct Answers 401 - Test for Relevant Evidence - Correct Answers Evidence is relevant if...

1. it has tendency to make a fact more or less probable
2. the fact is of consequence in determining the action

402 - General Admissibility of Relevant Evidence - Correct Answers Evidence is admissible unless any of the following say otherwise

1. Constitution
2. Federal Statute
3. These Rules
4. Other rules by supreme court 403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, Or Other Reasons - Correct Answers Court may exclude evidence if its probative value is outweighed by unfair prejudice, confusing the issues, misleading jury, undue delay, wasting time, cumulative evidence, etc... 404 - Character Evidence Not admissible to prove conduct (A) Character Evidence - Correct Answers 1. Evidence of persons character/trait is not admissible to prove they acted in accordance with that trait on a particular occasion.
5. Exceptions - Defendant/Victim in Criminal Case

• defendant can bring in this evidence, then prosecutor can rebut it
• defendant can bring in evidence about victim's pertinent trait, and prosecutor may show that victim does not have this trait, or that defendant has it too (subject to rape shield, 412)

404. (b) - Past Bad Acts - Correct Answers 1. Cannot use crime/wrong/other act to prove a person's character to prove that, on a particular occasion, they acted in accordance with their character (Propensity Inferences not allowed)
405. YOU CAN USE PAST BAD ACTS to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident (drug maker example) 405 - Methods of Proving Character - Correct Answers A) By reputation or Opinion

• when evidence of person character/trait is admissible (only for criminal defendant sitautions), you may use reputation and opinion. THEN ON CROSS, specific instances of conduct can come in. B) Specific instances of conduct are automatically allowed when someone's character/trait is an element of the charge/defense 406 - Habit, Routine, Practice - Correct Answers - Evidence of a person's habit or organizations routine is admitted to prove that, on a specific occasion, that person/organization acted in accordance with that habit
• conduct was automatic and that it has been repeated many times in the past 407 - Subsequent Remedial Measures - Correct Answers When measures are taken that would have made an earlier injury/harm less likely, evidence of the improvements

made/measures taken are not admissible to prove negligence, culpable conduct, defect in product design, or need for warning/instruction. CAN BE ADMISSIBLE for impeachment (if disputed), proving ownership or control, or the feasibility of precautionary measures (can get this stuff in with experts) Other Stuff in Chapter 4 - Correct Answers 408 - Compromise and offers to compromise 409 - offers to pay medical/similar expense 410 - pleas, plea discussions 411 - liability insurance 412 - Rape Shield/ Sex Offense Cases - Correct Answers A) Cannot admit evidence about

• victim engaging in other sexual behavior OR
• victim's sexual predisposition

412. b - Exceptions to Rape Shield - Correct Answers Exceptions - In criminal cases

• evidence of specific instances of victim's sexual behavior ONLY IF offered to prove that someone else (not defendant) was source of semen, injuries, other physical evidence
• Evidence of victim's behavior with respect to person accused of sexual misconduct IF offered by defendant to prove consent, or if offered by prosecutor
• Constitutional right implicates that this information come out Exceptions - Civil Cases
• Court may admit evidence offered to prove victim's sexual behavior if it's probative value SUBSTANTIALLY OUTWEIGHS danger of harm to victim/prejudice to any party
• can only admit evidence of victim's reputation if victim placed it in controversy 413 - Similar Crimes in Sex Assault Cases - Correct Answers permitted uses - Criminal
• if Defendant is accused of sexual assault, court may admit evidence of defendant's past sexual assaults. Evidence may be considered on any matter to which it's relevant 414 - Similar Crimes in Child Molestation - Correct Answers Permitted Uses -Criminal
• if defendant is accused of child molestation, court may admit evidence that defendant committed child molestation in the past. May be considered on any matter to which it's relevant 415 - Similar Acts in Sex Assault/Child Molestation for Civil Cases - Correct Answers In civil case involving claim for relief
• court may admit evidence that party committed any other sexual assault/child molestation
• evidence may be considered as rules above

SECTION 5 - PRIVILEGE - Correct Answers 501 - General Privilege - Correct Answers Common law is the rule on privilege, unless there is a statute, supreme court ruling, or the constitution holds otherwise. BUT, in civil cases, state law governs privilege regarding a claim or defense for which the state supplies the rule. 502 - Attorney/Client Privilege - Correct Answers SEE OUTLINE SECTION 6 - WITNESSES - Correct Answers 601 - Competency to Testify In General - Correct Answers Anyone is competent to testify. EXCEPT in civil cases, state law governs competency 602 - Need for Personal Knowledge - Correct Answers Witness may testify to a matter only if they have personal knowledge of matter. Evidence to prove personal knowledge may consist of witnesses own testimony. DOES NOT apply to experts. 603 - Oath or Affirmation - Correct Answers - Oath or affirmation must be given to testify truthfully

• must be done in form that impresses duty on witness's conscience 605 - Judge's competency as a witness - Correct Answers - Judges cannot be witnesses in trials they are presiding over.
• Can occasionally implicate recusal issues 606- Jurors Competency as Witness - Correct Answers - Juror has to testify outside hearing of the jury
• during an inquiry of validity of verdict/indictment, juror may not testify about any statement made or incident that occurred during deliberations, effect a juror's vote, mental processes.
• JURORS MAY TESTIFY TO a) extraneous prejudicial information b) outiside influence improperly brought c) mistake in entering verdict 607 - Who May Impeach - Correct Answers ANYBODY 608 - A witness' character for truthfulness or untruthfulness A) Reputation or Opinion Evidence - Correct Answers A) A witness's credibility may be attacked or supported by testimony on the witness's reputation for truthfulness/untruthfulness, OR by testimony in form of an opinion about that character.

B) Evidence of truthful character is only available after their character has been attacked 608.b. - specific instances of conduct - Correct Answers 1) A witness may be questioned about past bad acts that did not lead to a conviction IF they are relevant to the witness's character for truthfulness. PROOF OTHER THAN THIS TESTIMONY IS PROHIBITED 3 CONTROLS:

1. examiner must have good faith belief that these past bad acts occured
2. These questions must be asked on cross, not direct
3. Questioner must "take the answer" 609.A - Impeachment With Criminal Conviction - Correct Answers 1. If crime was punishable by 1 year in prison (felony).... a) the conviction must be admitted in civil or criminal case where witness is NOT defendant (Subject to 403) b) conviction must be admitted in criminal case where witness is the defendant (if more probative than prejudicial)
4. Regardless of punishment, the conviction will be admitted if an element of the crime proved a dishonest act or false statement. (also applies to misdemeanors) 609.b. - limit on using evidence after 10 years - Correct Answers If more than 10 years have passed since witness's conviction, or their release from confinement (whichever is more recent), evidence of conviction is admissible if....
5. its probative value substantially outweighs its prejudicial effect
6. proponent gives adverse party notice of intent to use 610 - Religious Beliefs - Correct Answers Evidence of witness's religious beliefs not admissible to attack or support witness's credibility 611 - Mode and Order of Examining Witnesses - Correct Answers This rule identifies a. control of the court b. scope of cross c. leading questions. 613 - Witness's Prior Statement - Correct Answers A) Don't have to show witness the prior statement. BUT, must show it to opposing counsel if they ask B.) Extrinsic evidence of witness's prior inconsistent statement is admissible ONLY when witness is given opportunity to explain or deny the statement AND the opposing party can cross examine the witness about it. DOESN'T APPLY TO HEARSAY RULE

614 - Court Calling/Examining Witness - Correct Answers A) Court may call a witness on its own, or at party's request B) Examining - Court may examine a witness, with both parties having ability to cross C) Parties may object to calling this witness 615 - Excluding Witness's (Sequestration) - Correct Answers - At party's request, court MUST exclude witnesses so they cannot hear other testimony. Court can also do this on its own.

• CANNOT EXCLUDE:
• party
• an officer/employee of the party who is designated as a representatitve
• Person who's presence is essential to party's claim/defense
• Person authorized by statute to be present SECTION 7 - OPINIONS AND EXPERTS - Correct Answers 701 - Opinions by Lay Witnesses - Correct Answers If witness is NOT testifying as an expert, testimony in form of opinion is limited to... A. Rationally based on witness's perception B. Helpful in understanding testimony, or understanding a fact at issue C. Not based on scientific, technical, or specialized knowledge 702 - Testimony By Expert Witnesses - Correct Answers Witness who is qualified as expert by knowledge, skill, experience, training or education may testify in form of opinion IF A. Scientific, technical or specialized knowledge will help trier of fact to understand evidence or determine a fact at issue. B. Testimony based on sufficient facts or data C. Testimony is product of reliable principles/methods D. The expert has reliably applied the methods to facts of case 703 - Bases of Experts Opinion Testimony - Correct Answers Expert may base opinion on facts or data in case expert has been made aware of, or personally observed. If experts in a particular field would reasonably rely on these facts/data, these facts/data don't need to be admissible in order for expert's opinion to be admitted. BUT if facts/data would otherwise be inadmissible, the proponent of opinion may disclose them to jury ONLY if their probative value outweighs the prejudicial effect 704 - Opinion on Ultimate Issue - Correct Answers A. In general, opinions by experts not automatically objectionable.

B. Exception - in criminal case, expert must not state opinion on whether the defendant did/didnt' have mental state to meet an element of crime charged or a defense 705 - Disclosing the Data/Facts Underlying Expert Opinon - Correct Answers Unless court orders otherwise, expert may state opinion and give reasons for it without first testifying to facts or data. BUT expert may be required to disclose these facts on cross exam 706 - Court Appointed Experts - Correct Answers Court must inform the expert of his duties. Expert must advise parties of any findings. May be deposed by any party. May be called to testify. May be cross examined. SECTION 8 - HEARSAY - Correct Answers 801 - Definitions - Correct Answers A. Statement = person oral assertion, written, nonverbal conduct B. Declarant = person who made the statement C. Hearsay = an out of court statement introduced for the truth of the matter asserted 801.D.1 - Statements that are not hearsay - Declarant Witness Prior Statement - Correct Answers declarant testifies and subject to cross exam about a prior statement, and the statement... A. Is inconsistent with current testimony AND was given under penalty of perjury B. Is consistent with declarants testimony and is offered (1) to rebut a charge that declarant recently fabricated/was influenced to testify, or (2) to rehab declarant's credibility when attacked on another ground, or C. Identifies person as someone declarant perceived earlier 801.D. 2 - Opposing Party Statement - Correct Answers A statement is not hearsay if the statement is offered against an opposing party and... A) Was made by the party in individual/representative capacity B) Is one party manifested that it adopted or believed C) Was made by a party authorized to make the statement D. Was made by agent/employee on a scope w/in that relationship E. Made by party's coconspirator during and in furtherance of the conspiracy**** 802 - Rule Against Hearsay - Correct Answers Hearsay is inadmissible unless.....

• federal statute
• these rules (exceptions)
• other rules by Supreme Court

803.1. - Present Sense Impression - Correct Answers Statement made DESCRIBING or EXPLAINING an event or condition, made while or immediately after the declarant perceived it 803.2 - Excited Utterance - Correct Answers Statement relating to a startling event or condition made while declarant was under the stress of excitement ex: "holy shit" 803.3 = Then-Existing Mental, emotional , or physical condition - Correct Answers - Statement of the declarant's then state of mind (including motive, intent, plan)

• Emotional , sensory or physical condition (including mental feeling, pain, bodily health)
• BUT NOT including statements of memory or belief to prove the fact remembered or believe UNESS it relates to validity or terms of declarant's will
• These kinds of statements go to proving the person's statement shows that that person believed the fact to be true - NOT that the fact is actually true Example: i. Someone says "I saw Bill yesterday" ii. That statement means that the declarant believes that she saw Bill, not that she ACTUALLY saw Bill 803.4. = Statement Made for Medical Diagnosis or Treatment - Correct Answers A statement that is i. Made for - and reasonably pertinent to - medical diagnosis or treatment ii. Describes medical history; past or present symptoms, their inception or their general cause Relates to physical condition MORE SO than the mental/emotional/physical condition c. Rationale: party will provide truthful statements when they are seeking medical help d. This exception also applies to anyone who made statements for the sick person e. Doesn't have to be to a doctor specifically - could be made to anyone for the purpose of medical diagnosis/treatment Examples: i. Patient reports that he was struck by vehicle while crossing the road ii. But NOT - patient says driver was talking on the cell phone and ran the light 803.5 - Recorded Recollection - Correct Answers a. A witness at trial may not remember the relevant fact/statement, but they wrote notes about it b. Past recollection recorded = a record that

i. On a matter the witness once knew about, but cannot recall now to testify fully/accurately ii. Was made or adopted by witness when matter was fresh in their memory iii. Accurately reflects the witness's knowledge c. The record can be read into evidence, but cannot be received as an exhibit by the jury UNLESS the adverse party admits it 803.6 - Records of Regularly Conducted Activity - Correct Answers a. Can admit a record of act, event, codition, opinion or diagnosis if... i. The record was made at or near the time by - or from information transmitted by - someone with knowledge ii. The record was kept in the regular course of business activity iii. Making the record was a regular practice of business activity iv. All these conditions are shown by the testimony of a custodian or other qualified witness, or by a certification that complies with rule 902, or with a statute v. The opponent does not show that the source of the information or the method/circumstances of preparation indicate lack of trustworthiness b. Reasoning: these documents are likely accurate because they were made to run a business, not to anticipate litigation (campbell says this is crap) c. 803.7 - provision in the rules for when there is a LACK of business record. This kind of showing is not hearsay when... i. The evidence is admitted to prove the matter did not occur or exist ii. A record was regularly kept for the matter of that kind iii. The opponent does not show that the possible source of the information indicates untrustworthiness 803.8 - Public Records - Correct Answers The statement sets out

1. The office's activities
2. A matter observed while under legal duty to report , BUT NOT including matter observed by law enforcement in a CRIMINAL CASE
3. The opponent does not show that the source of information indicates a lack of trustworthiness theory - this works just like business records c. for criminal records - the police accounts might be biased/falsified because of their interest in gaining convictions d. there is also a section that mirrors the business record section, for showing that a government report does NOT say something. 803.9 - Public Record of Vital Statistics - Correct Answers Birth Certificates, Death Certificates, if reported to a public office in accordance with a legal duty

803.16 - Ancient Documents - Correct Answers Documents older than 20 years and whose authenticity is established OTHER HEARSAY EXCEPTIONS IN RULE 803 - Correct Answers - Records of Religious organization

• Certificates of marriage, baptism, similar ceremonies
• Family Records
• Records of documents affecting interest in property
• market reports and similar commercial publication
• statements in treatises, periodicals or pamphlets
• reputation concerning family history
• reputation concerning boundaries or general history
• reputation concerning character
• judgement of previous conviction 804 - hearsay exceptions when declarant is unavailable - Correct Answers 804. a - critera for being unavailable 804.b. - exceptions:
• former testimony
• statement under belief of imminent death
• statement against interest
• statement of personal family history
• forfeiture by wrongdoing 805 - hearsay within hearsay - Correct Answers each part of a hearsay statement must comply with the rules - need an exception for each level 806 - attacking and supporting the declarant - Correct Answers if a hearsay statement has been admitted, the declarant's credibility ay be attacked or supported by evidence admissible for those purposes as if the declarant had actually testified. 807 - Residual Exception - Correct Answers o Permits hearsay evidence not covered here by specific exceptions o May be invoked regardless of whether the declarant is available Statement has equivalent circumstantial guarantes of trustworthiness Is offered as evidence of a material fact More probative on the point for which it is offered than any other evidence the proponent can obtain through reasonable efforts Admitting It will best serve the rules/the interests of justice STATEMENT IS ONLY ADMISSIBLE if, before trial, the proponent gives an adverse party reasonable notice of intent to offer the statement SECTION 9 - AUTHENTICATION AND IDENTIFICATION - Correct Answers

901.A. - Authenticating or Identifying Evidence In General - Correct Answers A. To authenticate or ID an item, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is 901.B. 1. - witness with knowledge - Correct Answers Testimony of witness with knowledge - says what the item is

901. B. 2. - non expert opinion about handwriting - Correct Answers - nonexperts opinion on handwriting being genuine, based on familiarity with it that was acquired for current litigation 901.b.3 - comparison by expert witness or the trier of fact - Correct Answers - a comparison with an authenticated specimen by an expert witness or trier of fact 901.b.4 - distinctive characteristics - Correct Answers - appearance, contents, substance, internal patterns, other distinctive characteristics of an item taken together with the circumstances 901.b.5 - opinion about a voice - Correct Answers opinion identifying a person's voice - either heard firsthand or through mechanical/electronic transmission - based on hearing the voice at any time under circumstances that connect it with alleged speaker 901.b.6 - evidence about phone conversation - Correct Answers evidence a call was made to an assigned number at the time to a) a particular person, if circumstances show that the person answering was the one called b.) a particular business, if the call was made to the business and the call related to the business resasonably transacted over telephone 901.b.7 - evidence about public records - Correct Answers evidence that... a) document was recorded or filed in public office as authorized by law b) a purported public record is from office where these kinds of things are kept 901.b.8 - evidence about ancient documents, data compilation - Correct Answers a. evidence is in condition that creates no suspicion about its authenticity b. was in a place where, if authentic, it would likely be c. it is at least 20 years old 901.b.9 - evidence about process or system - Correct Answers evidence describing process or system and shownig its procedures are accurate

901.b.10 - methods provided by statute/rule - Correct Answers any authentication supported by federal statute or supreme court ruling 901 - Evidence that is self authenticating - Correct Answers these items require no extrinsic evidence of authenticity to be admitted.

1. public documents that are sealed/signed
2. public documents not sealed, but signed and certified
3. foreign public documents
4. certified copies of public records
5. official publications
6. newspapers/periodicals
7. trade inscriptions and the like
8. acknowledged documents (notarized)
9. commercial paper or related documents
10. anything presumed by federal statute
11. certified records of regularly conducted activity
12. certified foreign records of regularly conducted activity