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HS Rules of Evidence
Rules of Evidence under the Indiana Bar Foundation Mock Trial.
| Question | Answer |
|---|---|
| Rule 201 | Judicial Notice |
| What does it mean to take "Judicial Notice" of something? | Asking the court to accept something that is widely accepted to be true as true without presenting evidence. EX: "Permission to take judicial notice that at night it is dark." |
| Rule 401 | The test for relevant evidence |
| What is the test for relevance? | Evidence is relevant if it has a tendency to make a fact of consequence more or less probable. |
| Rule 402 | Relevant evidence is generally admissible unless the rules of evidence provide otherwise. |
| Rule 403 | Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons |
| What is the test to exclude evidence under 403? | The effect of [wasting time, prejudice, confusing, etc.] substantially outweighs the probative value of the evidence. |
| Rule 404 | Character Evidence |
| When is evidence of a person's character trait inadmissible? | Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. |
| Exceptions for a defendant or a victim in a criminal case | a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it |
| Exceptions for a victim in a criminal case | a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: Offer evidence to rebut it and Offer evidence of the defendant's same trait. |
| 404(b) | Character evidence of Crimes, Wrongs, or Other acts |
| 404(b) Prohibited Uses | Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. |
| 404(b) Permitted Uses | This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. |
| 406 | Habit, routine practice |
| How can you use habit or routine practice? | Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. |
| 601 (Mock Trial) | Every person is competent to be a witness |
| 602 | A witness may only testify in regard to information they have personal knowledge of, unless they are an expert witness under 703. |
| 607 | Anyone can impeach a witness, including the party that called them to the stand. |
| 608 | A witness's character for truthfulness or untruthfulness. |
| How can you attack a witness's credibility under 608? When is testimony about a witness's truthfulness be entered. | Testimony about a witness's reputation or opinion testimony. This evidence of a witness's truthfulness is only allowed after their truthfulness has been attacked. |
| 610 | You cannot attack a witness based on their personal opinions or religious beliefs. |
| 611(b) | Scope of cross examiniation. |
| What is the scope of cross examination in mock trial? | Limited by the contents of the witness's statement and what was said during direct examination. |
| 611(c) | Leading questions are only allowed during cross examination or when a witness is called as a hostile witness. |
| 611(d) | After cross examination, a redirect is allowed, and after a re-direct a recross is allowed. Redirect is limited in scope to what was discussed on cross. Recross is limited in scope to what was discussed on redirect. |
| 611(e) | Only permitted motion is motion to strike testimony after winning an objection. |
| 612 | Refreshing a witness's recollection |
| 701 | Lay witness testimony is limited only to a witness's Rationally based perception. |
| What is the difference between lack of personal knowledge and speculation? | Personal Knowledge: Something the witness COULD possibly know but doesn't. Speculation: Testimony about another person's inner thoughts and emotions a witness could NEVER know, involves "diving into the mindset" of another. |
| 702 | If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert may testify in the form of an opinion or otherwise. |
| 703 | An expert may testify to facts or data in the case that the expert has been made aware of or personally observed. If the fact is inadmissible normally, the expert may testify to it if the probative value substantially outweighs the prejudicial effect. |
| 704 | Opinion on the ultimate issue is not automatically objectionable. |
| When is an opinion on the ultimate issue objectionable? | In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. |
| What is the definition of hearsay? | An out of court statement made in court to prove the truth of the matter asserted. |
| What is the definition of a "Statement" under 801? | Spoken Assertion Written Assertion Nonverbal conduct if it was intended as an assertion (Pointing, gesturing) |
| 801(d) | Statements that are not Hearsay |
| 801(d)(1) | Declarant-Witness's prior statement when: inconsistent with declarant's testimony Consistent with declarant's testimony to rebut a claim the declarant was inconsistent |
| 801(d)(2) | Admission by a party oponnent |
| Who counts as an opposing party under 801(d)(2) | The person themselves, a statement they adopt as true, made by someone authorized to make a statement, the party's agent or employee within scope of employment, coconspirator statements. |
| 803 | Exceptions to hearsay |
| Present sense impression | A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. |
| Excited Utterance | A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. |
| Then-Existing Mental, Emotional, or Physical Condition. | then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), |
| Statement made for medical diagnosis or treatment | is made for — and is reasonably pertinent to — medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause. |
| Recorded Recollection | When a witness can't remember something in their testimony, they may use a record made when the witness's memory is fresh |
| Records of a regularly conducted activity is admissible when: | Made at or near the time by or from information transmitted by someone with knowledge; the record was kept in the course of a regularly conducted business activity making the record was a regular practice |
| Rule 804 | Hearsay Exceptions, Declarant unavailable. |
| Bar Foundation rule 4.16 | In order for a witness to testify as an expert, a witness must be tendered to the court as an expert following foundation showing the witness has specialized knowledge, training, or education in the subject. |
| Bar Foundation rule 4.18 objections | Argumentative Lack of proper predicate/foundation Assuming facts not in evidence Questions calling for narrative/ general answer Non-Responsive Repetition |
| Argumentative | Questions that are are forceful or argumentative are not allowed. |
| Lack of proper predicate/foundation | Attorneys shall lay a proper foundation prior to moving the admission of evidence. After the exhibit has been offered into evidence, the exhibit may still be objected to on other grounds. |
| Assuming facts not in evidence | Attorneys may not ask a question that assumes unproved facts. However, an expert witness may be asked a question based upon stated assumptions, the truth of which is reasonably supported by evidence (sometimes called a “hypothetical question”). |
| Questions calling for narrative/ general answer | Questions must be stated so as to call for a specific answer. (Example of improper question: “Tell us what you know about this case.”) |
| Non-Responsive | A witness’ answer is objectionable if it fails to respond to the question asked. |
| Repetition (aka "Asked and Answered") | Questions designed to elicit the same testimony or evidence previously presented in its entirety are improper if merely offered as a repetition of the same testimony or evidence from the same or similar source. |
| What if someone says you can ONLY make objections outlined in rule 4.18? | "Under rule 4.18, Teams are not precluded from raising additional objections that are available under the Rules of Evidence." |
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