(* means the phrase is defined in the Definitions section)
RELEVANCE
Rule: All relevant evidence is admissible, unless otherwise provided by law.
Rule: “Relevant evidence” is any evidence that tends to make a fact of consequence more probable or less probable.
Rule: Relevant evidence is not admissible if its *probative value is substantially outweighed by risk of unfair prejudice, confusion, misleading the judge/jury, causing delay, wasting time or unnecessarily presenting cumulative/repetitive evidence.
Example: Let’s say you filed a Domestic Violence Restraining Order against your husband, claiming that he physically abused you. Now, you want to have your husband’s girlfriend testify that he verbally insults and demeans her, just as he does with you. Your husband might object on the grounds that the girlfriend’s testimony on that issue would be unfairly prejudicial and would confuse the issue—that the case is not about whether he is mean to his girlfriend, but about whether he abuses you.
More Info: This is rule 403 in the Federal Rules of Evidence. It is section 352 of the California Evidence Code. It probably has a different number attached to it under the laws of other states. If you refer to it as “federal rule 403”, many judges will know what you’re talking about.
WRITING OR RECORDING
Rule: When a writing or recording (or part of one) is introduced into evidence by one party, the other party may at that time require any related part of the writing or recording to be admitted into evidence.
Example: Let’s say the other party reads off a portion of a letter you wrote, and it makes you sound really bad. But, since you wrote it, you know that there was another portion of the letter that explains or justifies what you wrote. In that case, you would want the judge to hear that part of the letter as well. You can ask the judge to listen to the whole letter, rather than just that one little portion read by the other party. The reverse is also true—if you introduce a partial record into evidence, the opposing party can ask the judge to admit the whole record into evidence.
* CHARACTER EVIDENCE AND CREDIBILITY OF WITNESSES
Rule: Prior bad acts. Evidence of other crimes or bad acts is not admissible to prove the person acted in conformity with such prior behavior. It may be admissible to prove motive, opportunity, intent, preparation, scheme, plan, knowledge, identity, absence of mistake, accident, etc.
Example: Let’s say you filed a Civil Harassment Restraining Order against your neighbor who you feel is constantly harassing and bothering you. You try to present evidence to the judge that your neighbor has previously had a Civil Harassment Restraining Order issued against him for harassing another neighbor in another neighborhood a couple years ago. The judge may not admit this evidence. However, let’s say you try to present evidence that your neighbor has previously had a Civil Harassment Restraining Order issued against your family member. The judge may admit this evidence under the plan, intent, or scheme exceptions because the prior restraining order shows that the neighbor is acting in accordance with some plan, intent or scheme.
More Info: In pretty much any case in which this rule applies, the issue is hotly contested. States have different approaches to this rule. Some are much more likely than others to admit this type of evidence than to exclude it. Of all types of character evidence (personal opinion, reputation in the community, and specific prior bad acts), specific prior bad acts is the most persuasive—and therefore the most harmful to the person whose character is being attacked.
More Info: If you are having a hard time understanding how this rule applies in the real world, don’t worry—you’re not alone. Many lawyers and judges have extreme difficulty applying this rule to real cases because it is so complicated and confusing. Therefore, you should not be surprised if you and your judge disagree on how this rule should be applied in your case. It is impossible to predict how a judge will decide on these issues.
Rule: The credibility of any witness who testifies may be attacked by any party.
Rule: A witness’s character as to honesty and/or dishonesty may be supported or attacked by using evidence in the form of opinion or reputation, but evidence of a witness’s honest character may only be supported after the witness’s character for truthfulness is attacked.
Example: Let’s say you are going through a child custody dispute with your ex-husband, who claims that he is never late dropping off your child at your home after visitation. In reality, he is always late. You want to present evidence to show the judge that he is a liar and shouldn’t be believed. You can have someone testify to give her own opinion that your ex-husband cannot be trusted because he is a dishonest individual. We refer to this person who testifies as a character witness.
More Info: It is important for the judge to have an opportunity to consider the credibility of anyone who testifies. People who have an honest character may be credible. People who have a dishonest character may lack credibility. Note that, unless the character witness has some other issue to discuss during her testimony, her testimony during direct examination is likely to be short.
Rule: Specific incidents of conduct may not be presented to support or attack the witness’s character as to honesty, except in the case of convictions for crimes involving dishonesty. However, specific incidents of conduct may be inquired into during cross examination of that witness.
Example: Let’s say you took your ex-husband to court because you want the judge to increase the amount of child support your ex pays you. Your ex declared his income, but you don’t believe he is telling the truth. So your ex has his boss (who is also his friend) testify that your ex’s statement about his earnings is true. It so happens that you know the boss has lied to his ex-wife about his earnings, and you can prove it. Under this rule, a judge might not be able to bring in the boss’s ex-wife to testify that the boss is a liar, but you should be able to bring up the issue while you cross-examine the boss while he testifies on the stand.
Rule: Religious beliefs. Evidence of a witness’s religious beliefs is not admissible to attach or support the witness’s credibility.
Example: A judge should not allow you to present evidence that a witness is a faithful, God-fearing Christian just to imply that the witness is honest and telling the truth.
Rule: If one party uses a document to refresh a witness’s memory, the other part may inspect the document, use it to cross-examine the witness, and introduce into evidence any portions of the document related to the witness’s testimony.
More Info: While you are questioning a witness, if you ask a question the witness does not remember the answer to, you may ask the witness if looking at a particular document would help him remember the answer. If the witness responds “yes”, then you may show the document to the witness so he can refresh his recollection.
More Info: This rule ensures that a party doesn’t lead a witness or tell a witness what to say by giving the witness a slip of paper that says, “Don’t forget! You’re supposed to say I was at your house on Thursday night, not at the restaurant!”
Rule: Exclusion of witnesses. Upon request by a party, the court will exclude other witnesses from the courtroom while one witness testifies.
More Info: Before the trial starts, you should ask the judge to exclude all witnesses. This means that no witness will be allowed to hear what any other witness says on the witness stand.
More Info: The purpose of the rule is to prevent witnesses from collaborating and repeating what other witnesses have said.
More Info: You can also ask the court to order witnesses not to talk to other witnesses about their testimony until after the trial is over.
Rule: When examining a witness about a state a statement the witness had made prior to trial, a party need not show the statement to the witness, but must show it to the opposing party.
Example: If a witness had previously filed an affidavit or declaration in court, you may ask the witness questions related to that document without first showing it to the witness.
Rule: Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and the opposing party is given a chance to examine the witness about it. This rule does not apply when the witness is the opposing party.
Example: Let’s say you filed a restraining order against your ex-girlfriend’s current boyfriend because he has been harassing you and threatening you. He has your ex take the stand and testify that he would never harm you and you have no reason to be afraid of him. You have a voice mail recording of the witness (your ex) where she says her boyfriend has said “he will breaks your legs if you so much as look at him again.” You may introduce the audio recording into evidence to show that your ex previously made a statement that contradicts her current testimony.
PRIVILEGES
Rule: A witness may decline to testify about a topic that is privileged. A witness who does not wish to testify based on a privilege (such as a doctor-patient privilege), must claim such privilege to take advantage of it. The judge decides whether or not the witness may or may not take advantage of the privilege.
Example: Let’s say you are in a child custody dispute with your child’s mother. Your child has been going to counseling sessions with a therapist and you want the therapist to testify. If the therapist does not want to testify, she may claim a privilege while on the witness stand, and the judge will decide whether or not she has to answer the questions you ask her.
WITNESSES
Rule: Competency. A witness must be competent to testify. A witness must know the difference between truth and lies.
More Info: Children may testify as long as it can be shown that they know the difference between telling the truth and telling lies.
Rule: Personal knowledge. A witness may only testify about things of which s/he has *personal knowledge.
Rule: Oath or affirmation. Every witness must swear to tell the truth before testifying.
OPINIONS
Rule: Lay opinion. A *lay witness may state his opinion if it is rationally based on his own perception and it is helpful to understanding his testimony or an issue he’s testifying about. A lay witness cannot give an opinion based on scientific, technical or specialized knowledge.
Example: A judge might let a witness say, “I’ve been around Bob when he’s on drugs before, and on last Thursday night, to me he looked and behaved like he was wasted. That’s one of the reasons why I called 911.” A judge might not let a witness say, “Last Thursday night Bob was under the influence of drugs.”
Example: A judge might let a witness say, “I’m familiar with that road and the normal speed that traffic goes on that road. I’ve driven on that road myself many times. To me it looked like Bob was driving way faster than you’re supposed to. He was speeding.” A judge might not let a witness say, “Bob was probably driving 50 miles an hour down that road.”
Rule: Expert opinion. A witness can testify as an expert if the witness’s scientific or specialized knowledge will help the judge to understand the evidence. A witness may qualify as an expert based on his knowledge, skill, experience, training or education. An expert witness may give an opinion if the opinion is based on sufficient information and reliable principles and methods, and the witness has applied such principles and methods reliably to the facts of the case.
Rule: An expert witness may base an opinion on facts or information in the case that he personally observed or was made aware of. If other experts in the witness’s field would also reasonably rely on those facts or information in coming to an opinion on the topic, then those facts or information need not be admissible.
More Info: If the facts that an expert uses to base an opinion are a bunch of hearsay statements, a judge will have to decide whether to let the hearsay in to evidence. This is often decided on a case-by-case basis. There are scenarios where the judge may require an expert to divulge the facts on which an opinion is based.
Example: Let’s say a psychologist testifies as an expert to give an opinion about a child custody issue. The judge might order her to state the factual bases for her reasoning and opinion.
HEARSAY
Rule: Out-of-court statement offered to prove the truth of the matter asserted. Hearsay is a statement, other than one made by the declarant while testifying at the trial, offered to prove the truth of the matter asserted.
More Info: A “declarant” is the person who makes a statement.
More Info: The phrase “out-of-court” is important. Any time you have a witness on the stand who is trying to talk about what someone said outside of that very trial proceeding, red flags should be raised and you should start thinking about whether or not the hearsay rules apply. Any time a witness said, “So-and-so said…” you should start thinking through the rules of hearsay to decide whether you should object to what the witness is saying. Of course, you also need to go through the same thought process when your witness (or you personally, when you testify) starts to say “so-and-so told me…”
More Info: A “statement” can be an oral or a written assertion (or a statement of fact) or the nonverbal conduct of a person if it is intended to be an assertion. Therefore, only statements that are assertions of fact should qualify as hearsay.
Example: Let’s say you and I are in a boring conference and I say to you, “Let’s leave in a minute,” my comment is not an assertion or statement of fact; instead, it is a suggestion. Let’s say there are three people in a meeting: me, you, and Bob. During the meeting I say to you, “Bob just left,” then I am asserting a fact or trying to convey a true message—the fact that Bob just left. So let’s now say you are testifying on the witness stand, describing what you and I talked about out at the boring conference. If you testify, “Tate said, ‘Let’s leave in a minute,’” that should not qualify as hearsay, but if you testify, “Tate said, “Bob just left,” that may qualify as a “statement” subject to the hearsay rule. Likewise, if I make a hand motion to you indicating that I think we should leave, that gesture would not qualify as an assertion, and therefore not be subject to the rules of hearsay. On the other hand, if I make a hand gesture to you while mouthing (without speaking) the words, “Bob left,” both the hand gesture and my mouthing the words could qualify as “statements” subject to the hearsay rules.
More Info: Let’s focus on the phrase “offered to prove the truth of the matter asserted.” A statement is never hearsay all by itself. There is nothing intrinsic about any statement that would make it hearsay. This is because the definition of hearsay includes the reason why the statement is being introduced at trial. A statement only qualifies as hearsay if the person who introduces the statement wants the judge to believe the statement is true. If the statement is “offered” (i.e., presented as testimony or evidence in court) for some reason other than convincing the judge that the statement itself is true, then the statement is not hearsay. The key here is to focus on the truth being asserted in the statement and compare it to the reason why the statement is being offered (i.e., presented) in trial.
Example: Let’s say your brother is color blind, and, for whatever reason, it is really important to you that the judge knows your brother is color blind. Unfortunately, your brother won’t admit that he is color blind. So you figure out one way to prove to the judge that your brother is color blind. It so happened that one day there were three people in your house: two friends and your brother. Your two friends saw your lovely red lamp and exclaimed, “What lovely red lamp you have!” Your brother, on the other hand, said, “That lamp is purple.” Your two friends could testify about what happened and they could testify that your brother said the lamp is purple. Does your brother’s comment that the lamp is purple qualify as hearsay? First you ask if it is an assertion of fact. The answer is yes—he was trying to tell your friends that the lamp is purple. You also must ask yourself, are you asking your friends to repeat your brother’s comment in order to prove to the judge that the lamp is actually purple…to prove that what your brother was asserting is true? No, not at all. You’re not trying to prove to the judge that the lamp is purple. You’re trying to prove that your brother didn’t know what color the lamp actually is, and therefore he is color blind. Therefore, your brother’s statement should be admitted into evidence because it is not hearsay, under these circumstances. Now, if you did want to prove that your lamp is purple, then your brother’s statement would be hearsay if there was someone else trying to testify about what your brother said. Of course, it would be easier to just have your brother testify himself that your lamp is purple.
More Info: The overriding principle behind the hearsay rules is reliability. The idea is that we only want the judge to hear reliable evidence. The hearsay rules are designed to try to prevent the judge from hearing unreliable evidence and allow the judge to hear reliable evidence. Certain types of statements, and statements made in certain settings, are considered more reliable (or less reliable) than others, and therefore receive special treatment in the rules of hearsay.
NON-HEARSAY
Rule: Prior inconsistent statement. A statement is not hearsay if: 1) its declarant is a trial witness subject to cross-examination and 2) the statement is both inconsistent with trial testimony and given under oath and subject to penalty of perjury in a previous court appearance or deposition.
More Info: Remember the key principle when it comes to the rules of hearsay is reliability. If a witness says one thing on the stand, under oath, but had previously said something totally contradictory, also under oath, then this witness is unreliable, right? It is important that the judge know this witness is unreliable. That’s why prior statements made under oath, which are inconsistent with a trial witness’s current testimony, is not hearsay. The prior statement is not offered necessarily to prove that it is true. Instead, it is being offered to prove that the witness is unreliable.
Example: Let’s say a lady filed a restraining order against you, claiming you beat her up. Your defense is that you never touched her. You are in trial and the witness on the stand testifies that you hit his mom 5 times in the face. Your posit It turns out the witness had previously testified, in another court hearing, that you had not hit his mom in the face at all, but that you kicked his mom once in the leg. You can submit his earlier testimony in the current trial to show the judge that the witness is unreliable and you might argue that neither statement should be believed. Let’s change the facts a little bit. Let’s say the witness still testifies that you hit his mom 5 times in the face, but in the previous hearing he testified that you never touched his mom at all, period. His previous testimony is consistent with your defense. So you want to submit his prior testimony for its truth, in other words, to prove that in fact you never touched his mom. Is his previous testimony now hearsay? No, because it is still an inconsistent statement given under oath, and it will still be helpful to the judge to know that this witness’s testimony is unreliable.
Rule: Prior consistent statement. A statement is not hearsay if its declarant is a trial witness subject to cross-examination and the statement is consistent with trial testimony and offered to rebut the charge of recent fabrication, improper influence or motive in so testifying.
More Info: Just as in the example above, a prior consistent statement is admissible because it helps the judge consider the reliability of the witness testifying. Note that the prior statement can be introduced only after the witness’s trial testimony is attacked in a way that suggests the witness only said whatever would be helpful for the other party in the trial.
More Info: A “charge of recent fabrication” refers to a situation where a party argues that a witness recently made up his story. “Improper influence” refers to an allegation that a witness’s testimony has been influenced by someone else, such as the other party, and not truthful. For example, a witness’s testimony might be improperly influenced by a party if the party asked the witness to lie on the stand. “Motive” refers to a motive to lie. For example, a witness could have a motive to lie on the stand to help out a friend, neighbor or family member.
Example: Let’s say you are in a child custody battle with your ex where she filed a declaration saying you harass her by calling her names, but she says nothing about you calling her too many times. However, in trial she testifies that she had to block your phone number on her phone because you harass her by calling her 30 times a day. If, during cross-examination, you accuse her of making that up just to get an upper hand in the case, she could present evidence showing that she had earlier accused you of calling her 30 times a day.
Rule: Statement of Identification. A statement is not hearsay if its declarant is a trial witness subject to cross-examination and the statement simply identifies a person after the declarant perceived (saw, heard, smelled, touched) the person.
Example: Let’s say that your young son testifies that you were the one who picked him up on time from school last Friday. Unfortunately, his mother claims that she was the one who picked him up. If he had previously told another person, say his school teacher, that you were the one who picked him up that day, his teacher could testify about what your son told her.
Rule: Admission by a party opponent. A statement is not hearsay if it is an admission by a party opponent.
More Info: There are 5 general categories of admissions, but only 3 of them are likely to be applicable for the type of case you’re likely to be involved in.
Rule: A statement made by a party and offered (i.e., presented in court) against that same party by the other party is an admission by a party opponent.
More Info: The word “admission” does not necessarily mean “admission of guilt.” Instead, “admission” refers to any statement, with emphasis on any. It can be anything. Party 1 can always present in court any statements made by Party 2 against Party 2. Likewise, anything Party 2 can always present in court something Party 1 has ever said.
More Info: A judge may decide an admission by a party opponent is inadmissible if the statement is irrelevant or a waste of time.
Rule: Adopted admission. A statement by a third party, but adopted by a party, can be presented by the opposing party as an admission by a party opponent.
More Info: A party “adopts” a statement by a third party by words or some other conduct that shows the party believes the statement to be true or in some way agrees with the premise of the statement.
Example: Let’s pretend you and I are opposing parties in a lawsuit. Let’s say Bob at some point had said, “The reader is one of the most honest people anyone could hope to know,” and I immediately afterward nodded and said, “Seriously.” You (the reader) could present Bob’s statement as an admission by a party opponent because I adopted the statement.
Rule: Authorized admission. A statement by a third party, but authorized by a party, can be presented by the opposing party as an admission by a party opponent.
More Info: The statement’s declarant must actually be authorized to make statements on the party’s behalf about the subject matter of the statement. Before allowing a statement by a third party to be admitted against a party, the judge will likely require proof that the party gave the third party to make the statement on the party’s behalf.
Example: Let’s say I ask my office building’s receptionist (who is not my employee) to convey a message to the court clerk for me about Case X. When the receptionist does so, the statement made by the receptionist is authorized by me. If the receptionist makes a statement to the court clerk about my exercise habits, that statement would not be authorized by me.
Rule: Hearsay is not admissible unless an exception to this rule makes it admissible.
HEARYSAY EXCEPTIONS
Rule: Present sense impression. A hearsay statement is admissible if the statement described or explained an event or condition and the declarant made the statement either while perceiving or participating in the event/condition or immediately afterwards.
More Info: The thing being described can either be an event or action or it can simply be a condition, setting, environment, surroundings, etc.
Rule: Excited Utterance. A hearsay statement is admissible if the statement was related to a stressful, startling or exciting event or condition and the declarant made the statement while experiencing the stress/excitement/emotion caused by the event or condition.
More Info: Exactly how much stress or excitement is sufficient to make a statement fall under this hearsay exception will vary depending on the circumstances, parties involved, and judge.
Example: If you yell, “Bob’s bothering me!” as Bob tries to touch you in a rude or offensive way, your statement may qualify as an excited utterance. On the other hand, if you yell, “Bob’s about to hit my son!” right as you see Bob is about to run over your child with a car, your statement would certainly qualify as an excited utterance.
Rule: Mental state. A hearsay statement is admissible if it explains, clarifies or describes the declarant’s then-existing mental or emotional state or physical sensation, including the declarant’s intent, plan, motive, design, mental feeling, pain, health or physical condition.
More Info: The statement must not merely reflect a memory or belief.
More Info: The statement should be offered in order to explain, confirm or prove the declarant’s conduct or behavior.
Rule: Medical treatment or diagnosis. A hearsay statement is admissible if the statement was made to facilitate medical treatment or diagnosis.
More Info: The statement might include medical history, past or present symptoms, pain, cause of the medical condition, and the like, if they are pertinent to treatment or diagnosis.
Rule: Recollection recorded. A hearsay statement or record is admissible when the statement/memo/record relates to a subject matter about which the declarant once had knowledge but now forgets.
Rule: Business records. A hearsay record is admissible if it is a business record that was made: 1) at or near the time of the event or condition to which the record relates, 2) by someone who was knowledgeable about the event or condition, 3) in the course of regularly conducted business, and the record is regularly kept or made.
More Info: The above factors are proven by a “custodian of records” or other qualified witness, usually someone who represents the business.
Rule: Absence of entry in business records. A hearsay statement (record) is admissible to prove nonoccurrence of an event or condition if the event or condition was of the type that would have regularly been preserved in the record.
Rule: Public records. A hearsay statement (record/document) is admissible when it sets forth matters observed or activities undertaken pursuant to official duty of a public official, prepared by a public/government official.
Rule: Learned treatises. A hearsay statement (document) prepared or authored by an established authority relating to the subject matter of the authority’s expertise is admissible.
Rule: Hearsay within hearsay. A hearsay statement within another hearsay statement is admissible only if made admissible by a valid hearsay exception.
Example: Let’s say you want to prove that the traffic light was green as you drove through the intersection. In order to prove the light was green, you want Joe to testify as follows, “Bob told me that Jane said that the light was green, so the light must have been green.” In this situation, you are asking Joe to testify as to 2 hearsay statements. The first is what Bob told him (Joe). The second is what Jane told Bob. Two out-of-court statements that you want to Joe to testify to in order to prove exactly what the hearsay statements said: that the light was green. In order for Joe to testify as you want him to, you must show that there is an exception to the hearsay rule that would allow Jane’s statement to be admissible AND you would also have to show that Bob’s statement should be admissible under a hearsay exception.
More Info: There could be more than two hearsay statements in one. There could be 3, 4, 5, etc. Also, multiple hearsay statements could be found in one document. For each hearsay statement, there must be a separate exception, but they all could come in under one rule (one exception) or various different exceptions.
MISCELLANEOUS
Rule: Evidence of a habit or routine practice is admissible to prove the conduct of a person or organization.
Rule: Subsequent remedial measures. The subsequent remedial measures taken after an injury are not admissible to prove negligence or culpable conduct, but they may be presented to prove ownership, control or the feasibility of precautionary measures.
Example: Let’s say you filed a restraining order against your neighbor in part because he has installed video surveillance cameras on your property. After you served him with the restraining order, he took down the cameras. If, at trial, you present evidence that your neighbor took down the cameras, the judge may accept the evidence to prove that your neighbor owned the cameras. However, the judge might not accept the evidence as proof that your neighbor knew he shouldn’t have put the cameras up in the first place. This is because it is possible could believe that piece of land is his own property and only took the cameras down to appease you, rather than admit guilt.
More Info: One of the purposes behind this rule relates to public policy. If courts were allowed to infer someone is guilty of wrongdoing just because the person corrected a perceived problem, some people may never correct these problems before trial. Disallowing such evidence in court removes that excuse for not correcting problems, and encourages people to correct their mistakes or wrongful acts before getting to trial.
Rule: Compromises, offers, and other statements and conduct made during the course of settlement negotiations are inadmissible to prove liability, the invalidity of a claim, or the amount of a claim. Likewise, payment of medical expenses (or an offer to pay medical expenses) is not admissible in court to prove that the party who paid for the medical expenses actually caused the injury which required the medical treatment.
Example: Let’s say your neighbor filed a restraining order against you, claiming in part that vandalized his vehicle. You insist that it was not you who vandalized his vehicle. If, during negotiations, you offer to pay to have the vehicle repaired, your neighbor cannot present your offer to the judge during trial in order to prove that you admitted responsibility for vandalizing his vehicle.
More Info: Like the rule above regarding subsequent remedial measures, this rule is intended to encourage settlement and discourage parties from going to trial.
Rule: Rape Shield Law. In a proceeding where the defendant/respondent is alleged to have committed sexual misconduct against an alleged victim, evidence of the alleged victim’s other sexual behavior or sexual predisposition may not be admissible.
Example: If someone filed a restraining order against you, claiming that you raped her at a party, the judge might not allow you to present evidence that she had consensual sexual intercourse with two different friends at two different parties the two previous nights.
