Preface to the Ninth Edition 7 results (showing 5 best matches)
- The structure of this Nutshell, Ninth Edition, is to present each rule of the Federal Rules of Evidence in the order in which it appears in the Federal Rules followed by commentary explaining and exploring the concepts underlying the particular rule. Commentary sections also discuss the relationship between rules so that a complete picture may be obtained. The Nutshell has been revised to reflect amendments to the Federal Rules of Evidence going into effect up to and including December 1, 2014, which includes a complete restyling, as well as judicial interpretations of the rules culled from thousands of citations to the Federal Rules of Evidence appearing since publication of the Eighth Edition. Overall, literally tens of thousands of citations in reported federal decisions have been examined in the process of the creation of the Nutshell.
- It is sincerely hoped that the discussion of the Federal Rules of Evidence contained in this Nutshell will assist the student in coming to grips with the law of evidence and, at the same time, make the task both easier and more enjoyable.
- The last forty years have seen the Federal Rules of Evidence assume their rightful place of importance alongside the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. Not only do the Federal Rules of Evidence govern proceedings in the federal court, well over forty states have promulgated rules of evidence modeled on the Federal Rules. While evidence courses in law school in the mid nineteen seventies taught the common law of evidence employing the Federal Rules of Evidence to highlight and contrast, today’s students of the law of evidence study principally the Federal Rules of Evidence with often only passing reference to common law antecedents. Even closer to home is the relationship of the Federal Rules of Evidence to the multistate bar examination.
- This Nutshell on the Federal Rules of Evidence contains very few citations for two reasons. First, as an aid to student understanding of the law of evidence, citations to numerous authorities are not only not helpful but serve to destroy the natural flow of the commentary sections. The only exception is the United States Supreme Court’s treatment of the confrontation clause which is fully explained herein. Second, the text of the commentary sections of this Nutshell tracks very closely the text of G
- The Federal Rules of Evidence, apart from Rule 502 dealing with waiver of work product and attorney-client privilege, address the area of privilege in Article V in a single rule, Rule 501, which requires that privileges be governed by the common law as interpreted by the United States courts in light of reason and experience. To further assist the student, the common law privileges of lawyer-client and husband-wife are discussed along with the general question of waiver. Similarly, while the Federal Rules of Evidence do not address presumptions in criminal cases or burdens of proof specifically in either civil or criminal cases, these matters are explored in considerable detail in conjunction with the discussion of presumptions in civil cases, Article III of the Federal Rules of Evidence.
- Open Chapter
Article IV. Relevance and Its Limits 304 results (showing 5 best matches)
- The general rule that all relevant evidence is admissible unless otherwise provided by law states a touchstone of any rational system of justice. Relevant evidence is inadmissible under Rule 402 whenever applicable federal statute, a Federal Rule of Evidence or other court rule, or the United States Constitution so requires. Where federal law provides the rule of decision, admissibility of evidence is governed by Rule 402. Where state law provides the rule of decision, whether the United States Constitution may require that in a particular case a state rule relating to admissibility or inadmissibility of relevant evidence be applied is beyond the scope of this Nutshell.
- Rule 412(b)(1).
- Rule 413 raises many questions, the most important of which is the mandatory language of Rule 413(a) providing that in a criminal case 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. Thus, in a prosecution for an offense of sexual assault, Rule 413(a) clearly states that evidence of a specific instance of sexual assault by the accused is admissible for any “matter to which it is relevant,” including “the defendant’s propensity to commit sexual assault or child molestation offenses, and assessment of the probability or improbability that
- Similarly, in a civil proceeding involving alleged sexual misconduct Rule 412, and only Rule 412, governs the admissibility of reputation and opinion evidence relating to any alleged victim’s sexual predisposition as well as the admissibility of evidence of specific instances of conduct of any alleged victim offered to prove that the alleged victim engaged in other sexual behavior as substantive evidence or for impeachment. Pursuant to Rule 412(b)(2), in a civil proceeding the introduction of opinion and reputation evidence as well as the introduction of evidence of specific instances of conduct of the alleged victim involving sexual behavior is admissible to prove the alleged victim’s reputation only if the alleged victim’s reputation has been placed in controversy by the alleged victim. The alleged victim may place reputation in controversy without making a specific allegation in a pleading. Evidence of specific instances of conduct as well as evidence in the form of reputation or...
- Rule 404(a)(2)(A) covers the exception which allows an accused to offer evidence of a pertinent trait of his character and allows the prosecution to rebut such evidence once the accused has done so. Rule 404(a)(2)(B)(i) provides a similar exception and corresponding rebuttal with respect to evidence of a pertinent character trait of the alleged victim of the crime, with a further exception provided in Rule 404(a)(2)(C) for prosecution proof of the character trait for peacefulness in a homicide case to rebut evidence that the victim was the first aggressor. Rule 404(a)(2)(B)(ii) further provides that if evidence of a trait of character of the alleged victim of the crimes is offered by an accused and admitted under Rule 404(a)(2)(B), evidence of the same trait of character of the accused may be offered by the prosecution. These exceptions are for criminal cases only. Finally, Rule 404(a)(3) refers to the exception for evidence of the character of a witness as effecting the witness’...
- Open Chapter
Article I. General Provisions 117 results (showing 5 best matches)
- Rule 101(a) follows the pattern set by Rule 1 of each of the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, and Federal Rules of Appellate Procedure in making a broad general statement as to the scope of the Federal Rules of Evidence. The rule also refers to Rule 1101 where the exceptions to coverage are specified in detail.
- Rule 102 presents a generalized statement of purpose comparable to Rule 1 of the Federal Rules of Civil Procedure and Rule 2 of the Federal Rules of Criminal Procedure. Perhaps the most significant aspect of the rule is its recognition that the Federal Rules of Evidence do not and cannot deal in specific terms with all situations that may arise. In this context, Rule 102 negates the common law rule that statutes and rules in derogation of the common law are to be strictly construed. In its place Rule 102 directs that the court shall exercise its discretion to promote the development of evidence law to the end of ascertaining the truth and securing a just determination. In addition, the rule encourages the exercise of discretion in favor of promotion of growth and development of the law of evidence including reasoning by analogy to cover new or unanticipated situations.
- Another alternative, and one increasing in popularity, is to seek a ruling as to the admissibility of evidence in advance of trial, a process frequently referred to as a motion in limine. A motion in limine not only shields the trier of fact from inadmissible evidence being presented in their presence as well as the unfair prejudice that may arise from the mere asking of a question and the making of an objection, it also affords a basis for advance planning of trial strategy. A motion in limine may be made either during pretrial or at trial in advance of the presentation of evidence. The court has considerable discretion to rule or refuse to rule upon the motion prior to the actual offer of the evidence at trial. Frequently a pretrial ruling would be inappropriate in light of the necessity to determine the admissibility of the evidence in relation to various factors which themselves would surface only at trial.
- When an offer of proof as to excluded evidence is required under Rule 103(a)(2), an offer is sufficient if counsel makes known to the court outside the hearing of the jury, Rule 103(d), with particularity the substance of the witness or witnesses anticipated answers even if the witness or witnesses are not actually produced, provided no question is raised as to his ability to produce each witness or of a witness testifying as represented. Under Rule 103(c), the court in its discretion may permit or direct counsel to make an offer of proof in question and answer form. The taking of the offer in question and answer form resolves all doubts as to the content of the proposed testimony. Cross-examination of the witness on the offered testimony may also be permitted in the discretion of the court as may be the offering of contradictory evidence or comment on the offer by counsel to pinpoint areas of controversy. If the evidence excluded consists of a document authenticated in the record...
- Trial counsel should not permit the immediate objective of convincing the trier of fact to obscure the importance of making a proper record for possible review. Thus, if the ruling is one admitting evidence, a timely objection or motion to strike must appear of record stating the specific ground of objection, if the specific ground is not apparent from the context, Rule 103(a)(1). On the other hand, if the ruling is one excluding evidence, the substance of the evidence must be made known to the court by offer unless the substance of the evidence is apparent from the context within which the questions are asked, Rule 103(a)(2). In either event, 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 also direct the making of an offer in question and answer form, Rule 103(c).
- Open Chapter
Article VII. Opinions and Expert Testimony 169 results (showing 5 best matches)
- In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court declared that the “general acceptance” test did not survive adoption of the Federal Rules of Evidence. At the same time, the Supreme Court imposed a requirement that with respect to “scientific” evidence, the trial judge under Rules 702 and 104(a) must act as a gatekeeper, screening “scientific” evidence to ensure reliability. Once again interpreting the legislatively enacted Federal Rules of Evidence as a statute, the Supreme Court not only observed that nothing in the text of Rule 702 incorporates the general acceptance test of it also opined that the test is at odds with the “liberal thrust” of the Federal Rules of Evidence and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony.” The Supreme Court concluded that
- are many. Most significant is that in eradicating the only explicitly provided a standard for admissibility of “scientific” evidence under Federal Rule of Evidence 702. Thus complicated matters by speaking of the gatekeeper role solely in the context of “scientific” evidence, making it unclear whether a gatekeeper role applied to “technical or other specialized knowledge.” In addition, in rejecting , once again speaking about “scientific” evidence, the Court stated that the requirements of Rule 702 applied to all “scientific” evidence and not “specially or exclusively to unconventional evidence,” i.e., “ ‘novel’ scientific techniques.” In short, on its face did not apply “gatekeeping” to “technical or other specialized knowledge” while stating that Rule 702 itself requires that all “scientific” evidence be subjected to gatekeeping.
- was displaced by the Federal Rules of Evidence, the Supreme Court held that the trial judge nevertheless must screen scientific evidence to ensure reliability. The requirement in Rule 702 that the expert’s testimony pertain to “scientific knowledge” was found to establish a standard of evidentiary reliability or scientific validity. In addition, the Supreme Court noted that Rule 702 requires that the evidence offered “assist the trier of fact to understand the evidence or to determine a fact in issue,” referred to as “fit”, a condition that goes primarily to relevance. Accordingly, the Court said:
- Upon enactment in 1975, Rules 703 and 705 of the Federal Rules of Evidence altered the common law rules with respect to the basis of an expert’s opinion as well as the manner such basis is disclosed to the jury. More recently, the United States Supreme Court imposed a gatekeeping requirement with respect to every explanative theory employed by an expert witness, a requirement now reflected in Rule 702 itself.
- An expert or a lay witness will not be precluded from testifying in the form of an opinion or inference upon the ultimate issue on the ground that the testimony invades the province of the jury, Rule 704(a). Many common law decisions prohibited an opinion to be expressed upon an ultimate issue. Long ago, however, federal courts came to the realization that since the trier of fact is not required to accept the opinion of the witness, opinion evidence on the ultimate issue does not invade the jury’s province. The modern trend is clearly in accord; 7 Wigmore, Evidence § 1920 at 18 (Chadbourn rev.1978) dismissed the common law ultimate issue rule as “a mere bit of empty rhetoric.”
- Open Chapter
Article III. [Burdens of Proof and] Presumptions in Civil [and Criminal] Actions and Proceedings 127 results (showing 5 best matches)
- Although tactical presumptions may in some instances influence the outcome of a case, their effect is no greater than that of a rule governing the admission or exclusion of a single item of evidence. As in the case of those rules, the desirability of providing a uniform procedure for federal trials through a fixed rule governing tactical presumptions outweighs any preference for increased certainty of identity of result in the state and federal courts.
- It was once somewhat fashionable to treat a presumption as evidence to be weighed by the jury in determining the existence of a particular fact. However, it is now universally recognized that a presumption is a rule of law for the handling of evidence, not a species of evidence. It is clearly impossible to weigh a presumption as evidence on the one hand against physical objects and personal observations on the other. The presumption as evidence doctrine never had a firm foothold in the federal court.
- Proposed Rule 303, now Standard 303, dealing with presumptions in criminal cases was not enacted by Congress. The Report of House Committee on the Judiciary states that rule 303 was deleted from the Federal Rules of Evidence solely on the ground that the subject of presumptions in criminal cases was then before Congress in the form of bills to revise the federal criminal code. In recognition of the fact that deleted rule 303 is useful as a statement of existing law, the proposed rule has been renumbered and presented as Standard 303.
- In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.
- As has been seen the burden of producing evidence may shift from party to party as the case progresses. The burden of persuasion, unlike the burden of producing evidence, never shifts as the result of the introduction of evidence. While the correctness of this general proposition cannot be doubted, it must be taken as qualified to the extent that either a federal statute or applicable state law provides for the shifting of the burden of persuasion in connection with a presumption, Rules 301 and 302.
- Open Chapter
Article V. Privileges 48 results (showing 5 best matches)
- Rule 501 provides that in federal criminal cases and in civil cases where federal law provides the rule of decision, privileges should continue to be developed by the courts of the United States under a uniform standard applicable both in civil and criminal cases. That standard, derived from then existing Rule 26 of the Federal Rules of Criminal Procedure, mandates the application of the principles of the common law as interpreted by the courts of the United States under a uniform standard applicable both in civil and criminal cases. That standard, derived from then existing Rule 26 of the Federal Rules of Criminal Procedure, ...of the principles of the common law as interpreted by the courts of the United States in the light of reason and experience. The intent of Congress was thus not to freeze the law of privilege but rather to provide courts with the flexibility to develop rules of privilege in the light of reason and experience on a case by case basis. In so developing...
- Rule 502, while placed in the Federal Rules of Evidence, undoubtedly because of the presence of Rule 501, is in fact a discovery rule. Accordingly, commentaries on civil procedure should also be consulted for full exploration of Rule 502.
- Rule 502 may serve to protect a party from inadvertent disclosures of a communication or information covered by the attorney-client privilege or work product protection. When made in a federal proceeding or at a federal office or agency, pursuant of Rule 502(b) the disclosure does not operate as a waiver in a federal or state proceeding if:
- (f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
- The purpose of the ordinary rules of evidence is to promote the ascertainment of the truth. Another group of rules, however, is designed to permit the exclusion of evidence for reasons wholly unconnected with the quality of the evidence or the credibility of the witness. These reasons are found in the desire to protect an interest or relationship. The term “privilege” as employed in Rule 501 is used broadly to describe these latter rules of exclusion. Since the effect of a privilege is to suppress the truth, a privilege should be recognized only if the interest or relationship is of outstanding importance and would undoubtedly be harmed by denying the protection of privilege.
- Open Chapter
Article IX. Authentication and Identification 217 results (showing 5 best matches)
- Out-of-court statements admitted under Rule 902 for the purpose of establishing that the exhibit offered into evidence is as purported to be are received in evidence to establish the truth of the matter stated, Rules 801(a)–(c). Rule 802 provides in part that hearsay is admissible as provided for in the Federal Rules of Evidence. Rule 902 thus operates as a hearsay exception on the limited question of authenticity. Rule 902 does not, however, purport to create a hearsay exception for matters asserted to be true in the self-authenticated exhibit itself.
- Rule 902(12) provides that in a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), which incorporates Rule 803(6)(A)–(C), is self-authenticating. if modified as follows: the certification rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent of the evidence under Rule 902(12) must also meet the notice requirements of Rule 902(11); before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.
- Certain kinds of evidence possess on their face indicia of authenticity sufficient alone to support a finding by a reasonable jury that the item is what it purports to be. Thus, evidence satisfying any one of the twelve subdivisions of Rule 902 is self-authenticating; extrinsic evidence as to authentication is not required. The rationale underlying the notion of self-authentication is that the likelihood of fabrication or honest error is so slight in comparison with the time and expense involved in authentication that extrinsic evidence is not required. Evidence of non-authenticity may, of course, be introduced. Although an item of evidence is made self-authenticating by Rule 902, the contents of the item may still have to meet other requirements such as the rule against hearsay, Rule 802, and the Original Writing Rule, Rule 1002, in order to be admitted.
- Satisfaction of the requirement of authentication or identification is a matter to be approached in accordance with Rule 104(b). Accordingly once the court finds that evidence has been introduced sufficient to permit a reasonable juror to find that the matter in question is what its proponent claims it is, a sufficient foundation for introduction in evidence has been laid, Rule 104(b). When an item is offered into evidence, the court may permit counsel to conduct a limited cross-examination, referred to as voir dire, on the foundation offered. In reaching its determination, the court must view all the evidence introduced as to authentication or identification, including issues of credibility, most favorably to the proponent. The ultimate decision as to whether a person, document, or item of real or demonstrative evidence is as purported is for the trier of fact. Of course, the party who opposed introduction of the evidence may still offer contradictory evidence before the trier of...
- Evidence that (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept, is sufficient to support a finding that the document, record, or statement is what I purports to be, Rule 901(b)(7). “Record” is defined in Rule 101(b)(4) to include a memorandum, report, or data compilation. As defined in Rule 101(b)(6) a reference to any kind of written material or any other medium includes electronically stored information. This provision applies to local, state, federal and foreign writings or records. Any writing or record meeting the requirements of Rule 901(b)(7) may be authenticated without reference to whether such writing or record is available for public inspection.
- Open Chapter
Article VIII. Hearsay 310 results (showing 5 best matches)
- Rule 802 provides that hearsay is not admissible unless provided for by a federal statute, a Federal Rule of Evidence, or other rules prescribed by the Supreme Court. The effect is that unless provided otherwise by a non-evidence rule or by a federal statute, evidence classified as hearsay under Rules 801(a)–(c) is not admissible unless it is defined as not hearsay, Rule 801(d), or falls within a hearsay exception, Rule 803, Rule 804, or Rule 807. Illustrative of nonevidence rules of the Supreme Court prescribed pursuant to statutory authority are Fed.R.Civ.Proc. 56, affidavits in support of motions for summary judgment and Fed.R.Crim.Proc. 4(a), affidavits to show grounds for issuing warrants. The admissibility of depositions continues in part to be governed by Fed.R.Civ.Proc. 32(a) and Fed.R.Crim.Proc. 15. Further illustrations of both other rules and Acts of
- The term res gestae, i.e., things done, is carefully avoided in the Federal Rules of Evidence. As employed in the common law res gestae was so broadly and loosely defined that its main thrust was simply to forestall rational analysis as to the admissibility of a particular statement challenged as hearsay. Professor Morgan observed that seven distinct concepts were encompassed within the term res gestae. Several of these concepts are addressed in the Federal Rules of Evidence in the process of defining hearsay, Rules 801(a)–(c). The remaining are represented by hearsay exceptions contained in Rule 803, specifically Rule 803(1), present sense impression, Rule 803(2), excited utterance, and Rule 803(3), then-existing mental, emotional, or physical condition.. Under the Federal Rules of Evidence reference to the common law concept of res gestae is improper and should be avoided.
- Whether the requirements of a hearsay exception contained in Rule 803 have been satisfied is to be determined by the court, Rule 104(a). A statement qualifying as an exception to the hearsay rule must, of course, satisfy other provisions of the Federal Rules of Evidence before it may be admitted. As stated in the Advisory Committee’s Note to Rule 803, “The exceptions are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration.” Thus, for example, a statement that qualifies as an exception
- with respect to the admissibility of a statement of a coconspirator under the confrontation clause whether a statement of a coconspirator admitted as a representative admission of a party-opponent falls within the notion of a “firmly rooted hearsay exception,” or conversely whether such an admission of a party-opponent requires a “showing of particularized guarantees of trustworthiness,” was answered by the Supreme Court in Bourjaily v. United States, 483 U.S. 171 (1987) in the affirmative: “We think the coconspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that, under this Court’s holding in a court need not independently inquire into the reliability of such statements.” Interestingly, the majority opinion determines that the coconspirator hearsay exception satisfies the second prong of
- A related but much more difficult problem arises when the declarant’s statement of intention is to do something with another person. Analysis must begin with Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892), where the Supreme Court approved introduction of a statement of intent of a declarant to infer not only the declarant’s future act but the future act of another. The text of Rule 803(3) fails to address the question of admissibility of a statement of intent as evidence of the future actions of another. The Advisory Committee’s Note implies admissibility in its statement that the doctrine of is left undisturbed. On the other hand the Report of the House Committee on the Judiciary states an intention that Rule 803(3) be construed to limit the doctrine of so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person. Neither the Report of the Senate Committee on the Judiciary nor the Conference...
- Open Chapter
Article VI. Witnesses 441 results (showing 5 best matches)
- (1) Effect of Federal Rules of Evidence. Nothing in this subdivision shall be construed to abrogate rule 601 of the Federal Rules of Evidence.
- Instead of placing so much emphasis on the motive of the profferer, an approach more consistent with the underlying policy of the federal rules of evidence would be to analyse the problem in terms of Rule 403 is the probative value of the impeachment evidence outweighed by its prejudicial impact?
- The Federal Rules of Evidence do provide in Rules 605 and 606 respectively that neither the presiding judge nor a member of the jury is competent to testify at a trial in which participating.
- The credibility of any witness, including the accused once he takes the stand, may be attacked by evidence in the form of opinion or reputation testimony as to the character of the witness for truthfulness, Rule 608(a). If the witness’ character for truthfulness has been attacked by means of opinion or reputation testimony, his character for truthfulness may then be supported but only in the form of opinion or reputation testimony, Rule 608(a); specific instances of conduct in support of the witness’ character for truthfulness remain inadmissible. Rule 608(a), following restyling as of December 1, 2011 not intended to change content, now provides that evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. Prior Rule 608(b)(2) had provided for the admissibility of evidence of truthful character only if the character of the witness for truthfulness had first been attacked by opinion or reputation evidence “or otherwise.”...
- Evidence offered for the purpose of contradiction or self-contradiction such as a prior inconsistent statement is non-collateral if the subject matter of the evidence is relevant in the litigation to establish a fact of consequence, i.e., relevant for a purpose other than mere contradiction of the in-court testimony of the witness—the subject matter itself tends to directly or circumstantially establish a fact of consequence. In addition, matters bearing directly upon the credibility of the witness in a manner other than merely through contradiction or self-contradiction, such as (1) bias, interest, corruption, or coercion, (2) alcohol or drug use, (3) deficient mental capacity and (4) want of capacity, opportunity, or absence of actual acquisition and retention of personal knowledge are non-collateral and may be contradicted by other evidence. Impeachment of a witness’ character for truthfulness by means of a prior conviction is also non-collateral, Rule 609. However, impeachment...
- Open Chapter
Article X. Contents of Writings, Recordings, and Photographs 104 results (showing 5 best matches)
- An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise, Rule 1002. Thus, in order for the Original Writing Rule to apply, the contents of a writing, recording, or photograph must be sought to be proved. If the contents are not sought to be proved, then evidence other than the original writing, recording, or photograph is admissible without reference to Rule 1002. The Original Writing Rule does not apply when evidence is presented that a memorandum, report, record or data compilation in any form does contain a particular matter.
- Whether the Original Writing Rule should be applied with respect to chattels bearing inscriptions, such as the name on the side of a truck or a policeman’s badge, is not specifically addressed in Article X of the Federal Rules of Evidence. Both McCormick and Wigmore advance the position that requiring application of the Original Writing Rule should rest in the court’s discretion. On balance, application of the Original Writing Rule to inscribed chattels, coupled with a liberal and flexible interpretation of the original not obtainable and collateral matters inapplicability provisions of Rule 1004, would appear to be a sensible solution. Secondary evidence of the contents of an inscribed chattel can often be conveniently presented in the form of a photograph.
- With respect to public records, a preference is expressed in Rule 1005 for a certified or compared copy in comparison to recollection testimony. In the normal situation, the compared copy will meet the definition of a duplicate, Rule 1001(e). As provided in Rule 1005, the certified or compared copy of a public record is admissible; the requirements of admissibility for a duplicate contained in Rule 1003 do not apply. Thus while evidence disputing the accuracy of the certified or compared copy is admissible, such evidence does not require that the original public record be introduced in evidence at the hearing.
- When the contents of a writing, recording, or photograph are sought to be proved, production of the original will be excused, Rule 1004, if of the originals are either (a) lost or destroyed, (b) not obtainable, (c) in the possession of an opponent, or (d) relate to a collateral matter. Under such circumstances, other evidence, referred to as secondary evidence, of the contents of the writing, recording, or photograph is admissible. Whether an excuse provided by Rule 1004 for failure to produce the original has been shown is a preliminary matter for the court, Rule 104(a). The rules of evidence, except with respect to privilege, do not apply.
- Rule 1008 thus provides that factual determinations concerning the merits of the controversy are to be made by the trier of fact while those concerning merely the administration of the Original Writing Rule are to be decided solely by the court. To illustrate, assume plaintiff desires to offer secondary evidence of the content of an alleged contract after first introducing evidence as to loss of the original. Assume further that defendant counters with evidence that no such contract was ever executed. If the court were to decide that the contract was never executed and exclude the secondary evidence, the case would be at an end without ever going to the jury on the central issue. Accordingly, under Rule 1008 the court would alone decide only (1) whether plaintiff has established loss of the original, Rule 1004(a), to be more probably true than not true thereby permitting the introduction of secondary evidence and (2) whether evidence has been introduced sufficient to support a...
- Open Chapter
Article VIII. Hearsay Part 2 345 results (showing 5 best matches)
- Serves the purposes of rule, Rule 807(a)(4).
- A hearsay exception is provided for evidence of a reputation among a person’s associates or in the community concerning the person’s character, Rule 803(21). The hearsay exception is merely a restatement in the hearsay context of Rules 405(a) and 608(a), which outline the methods of proving character when evidence as to character is admissible, and does not mean that reputation as to character is admissible without limit.
- Whether the requirements of a hearsay exception contained in Rule 804 have been satisfied is to be determined by the court, Rule 104(a). A statement meeting the requirements of the hearsay exception must, of course, satisfy other provisions of the rules of evidence before it may be admitted. As stated in the Advisory Committee’s Note to Rule 803, “The exceptions [contained in Rules 803 and 804] are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration.” Thus for example, a statement that qualifies as an exception to the hearsay rule must be relevant, Rule 401; be properly authenticated, Rules 901 and 902; be based upon personal knowledge when made, Rule 602, with the exception of statements by the declarant as to his own personal or family history, Rule 804(b)(4)(A); and meet the requirements of the Original Writing Rule,...
- Rule 804(b)(6) is an attempt to respond to the problem of witness intimidation whereby the criminal defendant, his associates, or friends through one means or another, often a simple telephone call, procures the unavailability of the witness at trial and thereby benefits from the wrongdoing by depriving the trier of fact of relevant testimony of a potential witness. While the principle of forfeiture of the right to object on hearsay grounds and confrontation clause grounds as well had been previously recognized by the circuit courts, Rule 804(b)(6) is an attempt to encourage both prosecutorial resort to forfeiture and judicial acceptance of the doctrine by specifically recognizing the concept in the federal rules of evidence. Nevertheless, difficulties of proof when a separate incident is involved make it less than clear that codification actually brought about a significant increase in application of the forfeiture principle.
- With respect to a factual finding resulting from an investigation made pursuant to a legally authorized investigation, Rule 803(8)(A)(iii), the underlying factual bases for such “factual findings” may itself in whole or in part be either not admissible or not admitted in evidence. The “factual findings” are nevertheless admissible if the investigative report is judged reliable. The question to be asked in making this determination is whether the facts, data, or opinions taken as a whole are “of a type reasonably relied upon by experts in the particular field in forming opinions or inference upon the subject”, Rule 703. Policy considerations underlying Rules 703, 705 and in particular 403 require that where the investigative report is found reliable whether the bases may be disclosed by the party offering the evaluative report depends upon whether the particular fact had otherwise been admitted in evidence or had been reasonably relied upon by an expert in preparation of the... ...in...
- Open Chapter
Article II. Judicial Notice 48 results (showing 5 best matches)
- Thus, federal courts are permitted to determine domestic or foreign law on the basis of any relevant material or source, whether or not submitted by a party and whether or not admissible under the Federal Rules of Evidence. Where domestic law is involved, the court may and in some instances must judicially notice such law even though neither party offers evidence. However, where questions of foreign law are asserted, determination by the court through judicial notice can occur only if notice of intent to rely on the law of a foreign country has been provided by the party raising the issue.
- If an adjudicative fact has been judicially noticed in a civil case, contrary evidence may not be placed before the jury. The opposing party is amply protected by broad provisions guaranteeing an opportunity to be heard on the propriety of the court taking judicial notice. With respect to criminal cases, Rule 201(f) apparently contemplates that contrary evidence is admissible, which of course means that evidence, if any, in support of the fact judicially noticed may also be admitted. Problems arising with respect to the court considering inadmissible evidence in determining the propriety of taking judicial notice coupled with the confusion that naturally would be expected to arise in the jury’s mind when presented with judicial notice accompanied by conflicting evidence, makes resort to judicial notice in criminal cases where the opposing party is prepared to introduce contrary evidence highly undesirable.
- Consistent with the adversary theory of litigation, a party is not entitled to complain of the court’s failure to take judicial notice of an adjudicative fact unless he has so requested and brought the appropriate materials to the attention of the court, Rule 201(c)(2). Since the determination of propriety of taking judicial notice of an adjudicative fact is a matter solely for the court, rules of evidence, other than privilege, do not apply, Rule 104(a). The decision of the trial judge should be made a matter of record, thus rendering unnecessary any speculation in the reviewing court concerning the trial court’s action.
- Pleading and proof of the laws of the United States, whether embodied in statute or court decision, are neither necessary nor appropriate. Matters appearing in the Federal Register and the contents of the Code of Federal Regulation must also be judicially noticed. In addition, federal courts are obligated to judicially notice the statutes and case law of the various states. Traditionally, judicial notice need not be taken of state administrative regulations or codes, or municipal ordinances and safety regulations, or private acts, or unpublished federal items of the same nature. The taking of judicial notice of such items is said to rest in the court’s discretion; a discretion likely to become a requirement as the internet makes the easy accurate ascertainment of such governing laws readily available. Determination of foreign law is governed by the provisions of Fed.R.Civ.Proc. 44.1 and Fed.R.Crim.Proc. 26.1, each of which provides both for the availability of judicial notice upon...of
- Another basis for judicial notice, not always recognized and labeled as such, is that the matter is best decided by the judge and best decided by him without the confining limitations of ordinary evidence and the rules governing its admission. Within this aspect falls the determination of applicable law as reflected in constitutional provisions, statutes, court opinions, court rules, etc. Within it also falls the factual foundations of rules of decision including social, scientific, economic and often political factors whether or not generally known or readily determinable, referred to as judicial notice of legislative facts. Both judicial notice of law and legislative facts are outside the scope of Rule 201. With respect to judicial notice of legislative facts, a high degree of indisputability is not required. From the foregoing remarks, it seems apparent that courts may be expected to apply judicial notice in a more restricted fashion when the matter involved is an adjudicative...
- Open Chapter
Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2001, 2003, 2007 West, a Thomson business © 2015 LEG, Inc. d/b/a West Academic
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
- Open Chapter
Title Page 3 results
Outline 363 results (showing 5 best matches)
- § 609.2 Rule 609(a): Impeachment by Evidence of Conviction; The General Rule; An Overview
- § 1004.1 Rule 1004: Admissibility of Other Evidence of Content; No Degrees of Secondary Evidence
- § 404.3 Rule 404(a)(2)(A): Character Evidence of the Defendant
- § 611.4 Rule 611(a): Control by Court of Mode and Order of Examining Witnesses and Presenting Evidence
- § 404.2 Rule 404(a)(1): Character Evidence; Circumstantial Use in Civil Cases
- Open Chapter
Index 179 results (showing 5 best matches)
Advisory Board 10 results (showing 5 best matches)
- Robert A. Sullivan Professor of Law Emeritus, University of Michigan
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law, University of Virginia School of Law
- Open Chapter
- Publication Date: February 16th, 2015
- ISBN: 9781628105490
- Subject: Evidence
- Series: Nutshells
- Type: Overviews
- Description: The Nutshell, reflecting the Federal Rules of Evidence as restyled and amended effective December 1, 2014, contains a crisp, clear, concise, and complete explanation of each Federal Rule of Evidence designed to prepare every student for the course final, the multistate bar examination, and most significantly a successful litigation practice career. The United States Supreme Court’s controversial testimonial/nontestimonial interpretation of the Confrontation Clause developed in Crawford and progeny is thoroughly analyzed as well. With respect to the definition of hearsay, the not hearsay definition, the most commonly encountered hearsay exceptions, expert witnesses, and character evidence even more exhaustive treatment is provided. Concrete illustrations are presented throughout.