Rule 104: Preliminary Questions

A. Questions of Admissibility, Generally.

1. all preliminary questions determining the qualification of a erson to be a
!itness, the e"istence of a ri#ilege, or the admissibility of e#idence shall be made by the judge,
!ho !ill not be bound by the rules of e#idence $e"cet those !% resect to ri#ilege&
'. Rele#ancy (onditioned on )act:
Rule 10*: +ne !ay of reducing unfair re,udice is by limiting instructions to the ,ury.
Rule 401: All Rele#ant -#idence is admissible
Rule 40.: -#en though e#idence is rele#ant, it may be e"cluded if its probative value is
Substantially outweighed by the danger of unfair re,udice, confusion of the issues, or
misleading the ,ury, or by considerations of undue delay, !aste of time, or needless resentation of
cumulati#e e#idence.
Rule 404: (haracter -#idence /ot Admissible to Pro#e (onduct0 -"cetions0 +ther (rimes
a. (haracter e#idence generally. -#idence of a erson1s character or a trait of character is
not admissible for the purpose of proving action in conformity therewith on a articular
occasion, e"cet:
1. (haracter of Accused: -#idence of a ertinent trait of character offered by an
accused, or by the prosecution to rebut the same0
'. (haracter of 2ictim: -#idence of a ertinent trait of character of the #ictim of
the crime offered by an accused, or by the rosecution to rebut the same, or e#idence of a
character trait of eacefulness of the #ictim offered by the rosecution in a homicide case to rebut
e#idence that the #ictim !as the first aggressor0
.. (haracter of 3itness: -#idence of the character of a !itness as ro#ided in rules
405, 406, 407
b. +ther crimes, !rongs, or acts. Evidence of other crimes, wrongs, or acts is not
admissible to ro#e the character of a erson in order to sho! action in conformity there!ith. 8t
may, ho!e#er, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identify, or absence of mistake or accident . . .
Rule 40*: 9ethods of Pro#ing (haracter
a. Reutation or +inion: !hen character e#idence is allo!ed, roof may be made by
testimony as to reutation or in the form of oinion. +n cross:e"am, inquiry is allo!able into
rele#ant secific instances of conduct.
b. ;ecific 8ncidents of (onduct: in cases !here character is an essential element of a
charge, claim, or defense, roof may also be made of secific instances of that ersons conduct
Rule 404: <abit%Routine Practice
Evidence of habit of a erson, or routine ractice of an organi=ation, !hether
corroborated or not, is relevant to prove that conduct on a particular occasion in conformity
!% the habit.
Rule 405: ;ubsequent Remedial 9easures
;ubsequent Remedial 9easures may not be admitted to ro#e negligence, culable
conduct, or defect, but may be offered for other uroses such as ro#ing o!nershi or the
feasibility of recautionary measures.
Rule 406: (omromise and +ffers to (omromise
-#idence of offering or romising%acceting or offering to accet, a comromise !hich
!as disuted is /+> admissible to ro#e liability for or in#alidity of the claim or amount.
-#idence of statements or conduct made during comromise negotiations are not admissible. >his
does not e"clude e#idence other!ise a#ailable through disco#ery, merely because it !as also
resented in the course of negotiations, or offering the e#idence to ro#e bias, re,udice, etc.
Rule 407: Payment of 9edical and ;imilar -"enses
-#idence of furnishing or offering or romising to ay medical bills is not admissible to
ro#e liability
Rule 411: ?iability 8nsurance
-#idence that a erson !as or !as not insured is not admissible uon the issue of fault,
but may be admitted as e#idence of o!nershi, agency, bias or re,udice
Rule *01: Pri#ilege
Pri#ilege shall be go#erned by the rinciles of common la!, in light of reason and
e"erience
Rule 401: (ometency
-#ery erson is cometent
Rule 40': ?ac@ of ersonal Ano!ledge
A !itness may not testify to a matter unless e#idence is introduced ;ufficient to suort a
finding that the !itness has ersonal @no!ledge of the matter.
Rule 405: 8meachment
(redibility of a !itness may be attac@ed by any arty, including the arty calling the
!itness
Rule 406: -#idence of (haracter and (onduct of 3itness
a. +inion and reutation e#idence of character: credibility of !itness may be attac@ed or
suorted by e#idence of oinion or reutation, but: the evidence may refer only to the
character of veracity; and the evidence is admissible only after the witnesss veracity has
been attacked
b. specific instances of conduct: may be admitted for the purpose of
attackingsupporting the witness credibility, other than convictions of crime !"ule #$%&,
and may not be proved by e'trinsic evidence( >hey may ho!e#er, in the discretion of the
court, be inquired into on cross:e"am.
B Cias is ne#er collateral, and thus may al!ays be ro#en by e"trinsic e#idence
Rule 407: 8meachment by -#idence of (on#iction of (rime
-#idence that a !itness )ther than the accused has been con#icted of a crime, shall be
admitted, sub,ect to Rule 40., if the crime !as a felony, and e#idence that an accused has been
con#icted of such a crime shall be admitted if the court determines that the robati#e #alue of
admitting this e#idence out!eighs its re,udicial effect to the accused, and:
a. e#idence that any !itness has been con#icted of a crime shall be admitted if it
in#ol#ed dishonesty or false statement regardless of felony status.$crimen falsi crimes&
b. (on#ictions from more than ten years since the date of con#iction shall not be
admitted, unless the ,udge determines its robati#e #alue substantially out!eighs its re,udicial
effect.
Rule 411: 9ode and +rder of 8nterrogation and Presentation
b. ;coe of (ross:e"am should be limited to the sub,ect matter of direct
c. leading questions should not be used on direct -D(-P>:
Preliminary matters
9atters not in disute
8nconsequential matters
3itness !% communication difficulties $#. young, old&
)orgetful or reluctant !itnesses
Ad#erse arties
<ostile !itnesses
Eirecting !itnesses to ne! matters
Rule 41': 3riting used to Refresh 9emory Fresent recollection refreshedG
a !itness may ha#e their recollection refreshed by anything $!riting, icture, etc.& that
triggers the recollection. >he !itness may then testify from refreshed resent recollection.
a. >he oosing arty is entitled to insect the ob,ect, and cross e"amine the
!itness about it and the oosing arty may introduce into e#idence the thing used to refresh
memory
Rule 41.: Prior statements of 3itnesses
a. -"amining !itnesses concerning rior statements: 3hether !ritten or not, the statement
need not be sho!n, nor its contents disclosed to the !itness at that time, but uon request shall be
sho!n or disclosed to oosing counsel
b. -"trinsic e#idence of rior inconsistent statements: is /+> admissible unless !itness is
afforded the oortunity to e"lain or deny $does not aly to arty admissions&
Rule 501: +inion >estimony by ?ay 3itnesses
8f the !itness is not testifying as an e"ert, the !itness1 testimony in the forms of oinion
or inferences is limited to those oinions or inferences !hich are a& rationally based on the
ercetion of the !itness and b& helful to a clear understanding of the !itness1 testimony or
determination of a fact at issue
Rule 50': -"ert >estimony
8f scientific, technical, or other!ise seciali=ed @no!ledge !ill assist the trier of fact to
understand the e#idence, a !itness qualified as an e"ert by @no!ledge, s@ill, e"erience, training,
or education may testify thereto in the form of oinion or other!ise
Rule 50.: Cases of +inion >estimony Cy -"erts
)acts or data in the articular case uon !hich an e"ert bases an oinion may be those
ercei#ed by or made @no!n to the e"ert at or before the hearing. 8f of a tye reasonably relied
uon by e"erts in the articular field in forming oinions uon the sub,ect, the facts%data need
not be admissible into e#idence.
Rule 504: +inion on Hltimate 8ssue
a. testimony in the form of an oinion other!ise admissible is not ob,ectionable because it
embraces an ultimate issue to be decided by the trier of fact.
Rule 601: <earsay Eefinitions
a. ;tatement: an oral or !ritten assertion0 non#erbal conduct of a erson, if it is intended
by the erson as an assertion
b. Eeclarant: a erson !ho ma@es $or adots& a statement
c. <earsay: a statement, other than one made by the declarant !hile testifying at the trial,
offered to ro#e the truth of the matter asserted
d. ;tatements !hich are /+> hearsay:
1. Prior ;tatements by 3itnesses
>he declarant testifies at trial and is sub,ect to cross:e"am concerning the
statement and the statement is $A& inconsistent !% the declarant1s testimony and !as gi#en under
oath sub,ect to the la!s of er,ury, $C& consistent !% the declarant1s testimony and is offered to
rebut a charge of recent fabrication or imroer moti#e, $(& or is one of identification of a
erson made after ercei#ing the erson
'. Admission by arty:oonent
>he statement is offered against a arty and is $A& the partys own
statement in either an indi#idual or reresentati#e caacity $C& a statement of !hich the arty has
manifested an adoption or belief in its truth, $(& a statement by a erson authori*ed by the
arty to ma@e a statement concerning the sub,ect, $E& a statement by the arty1s agent or ser#ant
concerning a matter !ithin the scoe of the agency or emloyment, made during the e"istence of
that relationshi, $-& a statement by a co+conspirator of a arty during the course and in the
furtherance of the consiracy.
;tatements !hich are /+> hearsay, because they are not offered for the truth of the
assertion offered:
1. -ffect on listener '. 8meachment .. 2erbal Acts 4. 8nferential statements not
offered for their roof $ID is the best !ife in the !orld B infers lo#e&
Rule 60.: <earsay -"cetions, A#ailability of Eeclarant 8mmaterial
1. Present sense 8mression: a statement describing or e"laining an e#ent or condition
made !hile the declarant !as ercei#ing the e#ent, or immediately ,ust after
'. -"cited Htterance: a statement related to a startling e#ent made !hile the declarant !as
under the stress of e"citement caused by the e#ent
.. ;tate of 9ind: A statement of the declarant1s then e"isting state of mind, emotion,
sensation, or hysical condition, but not including a statement of memory or belief to ro#e the
fact remembered unless it relates to the e"ecution%terms of declarant1s !ill
4. ;tatements made for 9edical Eiagnosis: )or the uroses of medical diagnosis or
treatment and describing medical history or ast%resent symtoms%ain insofar as reasonably
ertinent to diagnosis or treatment
*. Recorded Recollection: A memorandum or record concerning a matter about !hich a
!itness once had @no!ledge but no! has insufficient recollection to enable the !itness to testify
fully and accurately, sho!n to ha#e been made or adoted by the !itness !hen the matter !as
fresh in the !itness1 memory and to reflect that @no!ledge correctly. 8f admitted, the record may
be read into e#idence but may not itself be recei#ed as an e"hibit unless offered by an ad#erse
arty.
4. Cusiness Records: Any reort%data%record in any form of
acts%conditions%e#ents%oinions%diagnoses, made at or near the time by, or from information
transmitted by, a erson !% @no!ledge, if @et in the course of regularly conducted business, and
if it !as the regular ractice of that business acti#ity to ma@e a reort, unless there is reason to
indicate lac@ of trust!orthiness.
5. Absence of Records: e#idence that a matter is not included in the data, @et in
accordance to rule 601$b&$4&, to ro#e the nonoccurrence of the matter, if the matter !as of the
@ind of !hich a reort !as regularly made and reser#ed, unless there is an indication of lac@ of
trust!orthiness.
6. Public Records: reorts, statements, in any form of ublic offices%agencies, setting forth
$A& the acti#ities of the office%agency, $C& matters obser#ed ursuant to a duty imosed by la! as
to !hich matters there !as a duty to reort Fe"cluding, in criminal cases, matters obser#ed by la!
enforcementG, or $(&
7. Records of 2ital ;tatistics: birth, death, marriage, etc.
10. Absence of ublic record
11. Records of Religious organi=ations: marriage, batism, annulments, etc.
1'. 9arriage, batismal, etc. certificates
1.. )amily Records: genealogies, tombstones, etc
14. Records affecting an interest in roerty: urorting to establish an interest in
roerty, if it is a ublic record
1*. ;tatements in records affecting an interest in roerty
14. ;tatements in ancient documents: documents from '0years ago or more, authenticated
15. 9ar@et reorts, commercial ublications
16. ?earned >reatises: >o the e"tent called to the attention of an e"ert !itness uon
cross:e"am, or relied uon by the e"ert in direct, statements contained in ublished treatises,
eriodicals, or amhlets on a sub,ect of history, medicine, science or art, established as a reliable
authority by the testimony or admission of the e"ert or by other e"ert testimony or by ,udicial
notice. 8f admitted, statements may be read into e#idence but not recei#ed as e"hibits.
17. Reutation concerning family
'0. Reutation concerning boundaries or general history
'1. Reutation as to character
''. Judgement of re#ious con#iction: -#idence of a final ,udgement, entered after a trial,
or uon a lead of guilty $but not a lead of nolo contendere&, ad,udging a erson guilty of a
crime unishable by death or imrisonment in e"cess of one year, to ro#e any fact essential to
sustain the ,udgement, but not including, !hen offered by the rosecution in a criminal trial for
uroses other than imeachment, ,udgements against ersons other than the e"cused.
'.. Judgements as to ersonal, family, or general history or boundaries
Rule 604: <earsay -"cetions, Eeclarant is Hna#ailable
a. Hna#ailability includes !hen the declarant:
1. is e"emted by ruling of the court on the ground of ri#ilege
'. ersists in refusing to testify, desite a court order
.. testifies to lac@ of memory
4. is unable to be resent or to testify due to death or hysical%mental ailment
*. is absent from the hearing and the roonent of a statement has been unable to
rocure declarant1s attendance.
b. -"cetions $admissible&
1. )ormer >estimony: gi#en as a !itness at another hearing of the same or a
different roceeding, or in a deosition ta@en in comliance !% the la! in course of the same or
another roceeding, if the arty against !hom the testimony is no! offered had an oortunity
and similar moti#e to cross:e"am
'. Eying Eeclarations: in a rosecution for homicide or in a ci#il action, a
statement made by a declarant !hile belie#ing that the declarant1s death !as imminent, concerning
the cause or circumstances of !hat the declarant belie#ed to be imending death
.. ;tatement against 8nterests: a statement !hich !as at the time of its ma@ing so
far contrary to the declarant1s ecuniary or rorietary interest, or so far tended to sub,ect the
declarant to ci#il or criminal liability or to render in#alid a claim by the declarant against another,
that a reasonable erson !ould not ha#e made the statement unless belie#ing it to be true. A
statement e"osing the declarant to criminal liability !hile e"culating the accused is not
admissible unless corroborating circumstances clearly indicate the trust!orthiness.
4. ;tatement of ersonal or family history
4. )orfeiture by !rongdoing
Rule 604: Attac@ing and ;uorting (redibility of Eeclarant
3hen a hearsay statement $or non:hearsay out of court statement& is admitted, the
credibility of the declarant may be attac@ed, and if attac@ed may be suorted, by any e#idence
!hich !ould be admissible for those uroses if the declarant had testified as a !itness. -#idence
of a statement or conduct by the declarant at any time, inconsistent !% the declarant1s hearsay
statement is not sub,ect to any requirement that the declarant must be afforded a chance to
deny%e"lain.
Rule 605: Residual -"cetion:
A statement not secifically co#ered by Rule 60.%604, but ha#ing circumstantial
guarantees of trust!orthiness, is admissible, if: $A& the statement is material0 $C& it is more
robati#e than any other e#idence0 $(& and the general interests of ,ustice !ill best be ser#ed by
admission of the statement.
Rule 701: Requirement of Authentication%8dentification
)or real e#idence: sho! the ob,ect is unique +R sho! the ob,ect !as ImadeK unique +R
sho! a chain of custody, accounting for the ob,ect from the time it !as found, until trial
;elf:Authentication: trade inscritions, ublic documents, ne!saers
3ritten Eocuments:
call a 3 !ho recogni=es the hand!riting
call a 3 !ho sa! the document be !ritten
call an e"ert 3 !% an undisuted samle of the hand!riting
use (ircumstantial e#idence $contents @no!n only to D&
2oice 2erification
call 3 !ho @no!s caller1s #oice
call 3 !ho @no!s #oice of !ho caller says they are
+utgoing calls: erson identifies themsel#es and it matches listing !% hone co.
(+/28(>8+/ 38>/-;; 3-8G<>
(rimen )alsi Anyone Al!ays Admissible
)elony, not crimen falsi Anyone -D(-P> defendant Eoes re,udice substantially
out!eigh the robati#e #alueL
)elony, not crimen falsi (riminal Eefendant Probati#e #alue is greater than
re,udice $discretionary&
(on#iction o#er ten years old,
e#en crimen falsi $notice
required&
Anyone Eoe robati#e #alue
substantially out!eigh the
re,udicial effectL
misdemeanor, not crimen falsi Anyone /e#er Admissible