I am Lord, God, and Master of the Federal Rules of Evidence Forum

[Renzo]

Bring me your evidentiary problems, and I shall destroy them with my fiery wrath.



Also, check back tomorrow and see if I still feel this way after my final


Update: after the test, I'm not sure I am worth of the "god of evidence" title. But Lord and Master still feel appropriate.

[joobacca]

what's the deal with prior statements? i got an exam tomorrow and i've been playing mlb the show non stop...

is it one set of rules that governs this crap? that is, one set of rules control how prior statements work against a witness and declarant or are there separate rules dealing with witnesses and with declarants of hearsay

[uwb09]

which supplement should I pick up this summer in order to prepare for Evidence next fall?

[joobacca]

and when does the court have to give limiting instructions? is it just when an evidence is admitted an acceptable purpose, although it would be inadmissible for another purpose (and jury might be use evidence prejudicially)?

[BobSacamano]

They can issue limiting instructions whenever they want to.

[Aqualibrium]

What, if anything, can a juror be called to testify about?

What's a testimonial statement?

I called 911 and reported a crime, but am not available to testify at trial; can my 911 recording be admitted as evidence?

X get's injured in D's hotel and claim's the steps he got injured on were unreasonably dangerous. D seeks to admit as evidence that in the last 5 years no one has gotten hurt on the steps. As a judge, what are you thinking about when deciding whether or not to admit this evidence?

A prosecutor wants to introduce a police report as evidence against the defendant. The defense objects on the basis of hearsay. What result?

I can go on and on if you'd like...One trial competition and two evidence courses later, I think I have a pretty good handle on this stuff.

[BunkMoreland]

what's the deal with prior statements? i got an exam tomorrow and i've been playing mlb the show non stop...

is it one set of rules that governs this crap? that is, one set of rules control how prior statements work against a witness and declarant or are there separate rules dealing with witnesses and with declarants of hearsay

You can use prior inconsistent statements for impeaching a witness, and some of those statements can also be used as substantive evidence if they fit into 801(d) ("not hearsay").

[Aqualibrium]

what's the deal with prior statements? i got an exam tomorrow and i've been playing mlb the show non stop...

is it one set of rules that governs this crap? that is, one set of rules control how prior statements work against a witness and declarant or are there separate rules dealing with witnesses and with declarants of hearsay

You can use prior inconsistent statements for impeaching a witness, and some of those statements can also be used as substantive evidence if they fit into 801(d) ("not hearsay").

What rule allows that? Does the prior inconsistent statement have to be a sworn one?

[BunkMoreland]

what's the deal with prior statements? i got an exam tomorrow and i've been playing mlb the show non stop...

is it one set of rules that governs this crap? that is, one set of rules control how prior statements work against a witness and declarant or are there separate rules dealing with witnesses and with declarants of hearsay

You can use prior inconsistent statements for impeaching a witness, and some of those statements can also be used as substantive evidence if they fit into 801(d) ("not hearsay").

What rule allows that? Does the prior inconsistent statement have to be a sworn one?

FRE 613; no

Rule 613. Prior Statements of Witnesses

(a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

[Aqualibrium]

what's the deal with prior statements? i got an exam tomorrow and i've been playing mlb the show non stop...

is it one set of rules that governs this crap? that is, one set of rules control how prior statements work against a witness and declarant or are there separate rules dealing with witnesses and with declarants of hearsay

You can use prior inconsistent statements for impeaching a witness, and some of those statements can also be used as substantive evidence if they fit into 801(d) ("not hearsay").

What rule allows that? Does the prior inconsistent statement have to be a sworn one?

FRE 613; no

Thumbs up Bunk.

[Renzo]

what's the deal with prior statements? i got an exam tomorrow and i've been playing mlb the show non stop...

is it one set of rules that governs this crap? that is, one set of rules control how prior statements work against a witness and declarant or are there separate rules dealing with witnesses and with declarants of hearsay

You can use prior inconsistent statements for impeaching a witness, and some of those statements can also be used as substantive evidence if they fit into 801(d) ("not hearsay").

What rule allows that? Does the prior inconsistent statement have to be a sworn one?

FRE 613; no

Dammit, you're stealing my thunder. But all this is right.

[Renzo]

which supplement should I pick up this summer in order to prepare for Evidence next fall?

You don't need supplements. You need mad amounts of applied problems. The rules are easy to learn.

[Renzo]

What, if anything, can a juror be called to testify about?

What's a testimonial statement?

I called 911 and reported a crime, but am not available to testify at trial; can my 911 recording be admitted as evidence?

X get's injured in D's hotel and claim's the steps he got injured on were unreasonably dangerous. D seeks to admit as evidence that in the last 5 years no one has gotten hurt on the steps. As a judge, what are you thinking about when deciding whether or not to admit this evidence?

A prosecutor wants to introduce a police report as evidence against the defendant. The defense objects on the basis of hearsay. What result?

I can go on and on if you'd like...One trial competition and two evidence courses later, I think I have a pretty good handle on this stuff.

I've got good answers for all of these, but I'm on my phone walking into the gym. Check back in about an hour to here the voice of evidence god opine ... and hope for reassurance that his answers are correct.

[vamedic03]

Bring me your evidentiary problems, and I shall destroy them with my fiery wrath.



Also, check back tomorrow and see if I still feel this way after my final

Is there any point to having a hearsay rule if we allow FRE 807 to cover near misses?

[Borhas]

what's the FRE position on god's existence

[Renzo]

What, if anything, can a juror be called to testify about?

Nothing directly related to the matter before the jury upon which they sit. Under Tanner you can't use juror testimony to impeach a verdict based on mental/physical incapacity, or anything internal to deliberations. This has even been extended in the circuits to allegations of racial bias in deliberations.

What's a testimonial statement?

Under Davis v. Washington, you look to the primary purpose of the declarant in making the statement. Statements, for example, intended to elicit help in an ongoing emergency are non-testimonial, while a statement reasonably understood by the speaker as being used to report a past crime (even if not directly to the police/prosecutor) is testimonial.

I called 911 and reported a crime, but am not available to testify at trial; can my 911 recording be admitted as evidence?

First, if the defendant is introducing it, it's easy-peasy. It comes in under 803(8) against the government, it's self-authenticating, and it's relevant if it's exculpatory.

Otherwise, it's going to be a lot of work. The first problem is relevance. If you can't testify, there will be a serious problem proving basis for knowledge; hopefully you described enough details in the call to prove by a preponderance that you were actually there and have relevant knowledge. If you used your cell phone and we can prove that, or if someone else saw you call from the scene, that would help.

Then we'll need to authenticate the tape. SInce you're not available, we'll need the testimony either of the 911 operator who answered the call or of a technician who can say the tape is what it purports to be.

Then there is the hearsay problem, but it's possible the call was an excited utterance, and thus definitionally not hearsay. In some circuits we need extrinsic evidence of the exciting event, however, in which case we might be boned. If it's an excited utterance, it's probably not "testimonial" so there's no Crawford problem, but this could go either way depending on the circumstance of the call, and proving it may be really tough--I hope you sound terrified on the tape.


X get's injured in D's hotel and claim's the steps he got injured on were unreasonably dangerous. D seeks to admit as evidence that in the last 5 years no one has gotten hurt on the steps. As a judge, what are you thinking about when deciding whether or not to admit this evidence?

Under 404(a), past conduct is not admissible to prove conduct in the current matter, so there's no relevance to show that the steps were generally safe. It might, however, be relevant to notice, and thus to proving an element of the tort. Therefore the relevance of such evidence would depend on the exact theory advanced by the plaintiff, and how they intend to demonstrate notice of the dangerous condition.

A prosecutor wants to introduce a police report as evidence against the defendant. The defense objects on the basis of hearsay. What result?

Sustained, on the information give. Definitely a Confrontation Clause problem, and it can't come in under any hearsay exceptions (it's not coming in as a public record against a criminal defendant). If the declarant of the report is testifying, that might change things under facts not given here.

I can go on and on if you'd like...One trial competition and two evidence courses later, I think I have a pretty good handle on this stuff.

Well, am I ready for my test?

[Renzo]

Bring me your evidentiary problems, and I shall destroy them with my fiery wrath.



Also, check back tomorrow and see if I still feel this way after my final

Is there any point to having a hearsay rule if we allow FRE 807 to cover near misses?

It shouldn't cover near-misses. It should cover situations clearly outside the contemplation of the drafters, but where the policy goals of the exceptions are satisfied.

[Renzo]

what's the FRE position on god's existence

Strictly atheist. See rule 610.

[savagedm]

My Lord, would it be permissible if thou's most humble servant presented at a trial before your holy divinity, facts which pertain to certain character traits possessed by a heathen prior to an offense against thee?

[Renzo]

My Lord, would it be permissible if thou's most humble servant presented at a trial before your holy divinity, facts which pertain to certain character traits possessed by a heathen prior to an offense against thee?

You might enquire of said heathen on cross examination, but thou shalt take the heathens answers as they lay, and shall not waste the courts time in proving collateral contradicting facts.

[savagedm]

My Lord, would it be permissible if thou's most humble servant presented at a trial before your holy divinity, facts which pertain to certain character traits possessed by a heathen prior to an offense against thee?

You might enquire of said heathen on cross examination, but thou shalt take the heathens answers as they lay, and shall not waste the courts time in proving collateral contradicting facts.

I surmised as much my Lord. However, is it not true that we need not look to any of their testimony, as they are heathens and not capable of uttering a word of truth? I know that the only proper outcome is to slay them where they stand in thine name, lest their souls burn in the fiery pits of Hell for all eternity, but must we extract from them the required testimonie before we commence with the purging?

[People's Eyebrow]

Blaphemer.

[Renzo]

My Lord, would it be permissible if thou's most humble servant presented at a trial before your holy divinity, facts which pertain to certain character traits possessed by a heathen prior to an offense against thee?

You might enquire of said heathen on cross examination, but thou shalt take the heathens answers as they lay, and shall not waste the courts time in proving collateral contradicting facts.

I surmised as much my Lord. However, is it not true that we need not look to any of their testimony, as they are heathens and not capable of uttering a word of truth? I know that the only proper outcome is to slay them where they stand in thine name, lest their souls burn in the fiery pits of Hell for all eternity, but must we extract from them the required testimonie before we commence with the purging?

Yea, though all have sinned and fall short of the grace of Evidence God, all are presumed competent to stand before him, even the least among you.

[BunkMoreland]

X get's injured in D's hotel and claim's the steps he got injured on were unreasonably dangerous. D seeks to admit as evidence that in the last 5 years no one has gotten hurt on the steps. As a judge, what are you thinking about when deciding whether or not to admit this evidence?

Isn't this also from some case where they decided noncomplaint is considered non-assertive conduct and thus "not hearsay" under the usual definitions (and thus, it's allowed if relevant).

[20160810]

Please now learn the CCE and how it differs from the FRE so you can help me with my final.