1. 2 EVIDENCE Professor Cioffi 1/19/2011 – 1/26/2011

1

2

EVIDENCEEVIDENCE

Professor CioffiProfessor Cioffi

1/19/2011 – 1/26/20111/19/2011 – 1/26/2011

3

The TrialThe Trial

Final Pretrial ConferenceFinal Pretrial Conference - Motions in Limine- Motions in Limine Jury SelectionJury Selection Opening StatementsOpening Statements Plaintiff’s Presentation of EvidencePlaintiff’s Presentation of Evidence - Direct- Direct - Cross- Cross Defendant’s Presentation of EvidenceDefendant’s Presentation of Evidence - Direct- Direct - Cross- Cross Jury Instruction Conference with the CourtJury Instruction Conference with the Court Closing Argument Closing Argument Jury InstructionsJury Instructions Jury DeliberationJury Deliberation

4

2 Kinds Of Evidence2 Kinds Of Evidence

1.1. WordsWords

2.2. ThingsThings

A. Writings/DocumentsA. Writings/Documents

B. Tangible objectsB. Tangible objects

5

Jury Decision MakingJury Decision Making

Evidence Inference DecisionEvidence Inference Decision

Direct Evidence v. Circumstantial EvidenceDirect Evidence v. Circumstantial Evidence

Deduction v. InductionDeduction v. Induction

6

Deduction/Direct EvidenceDeduction/Direct Evidence

1. Sammy on trial for robbing National1. Sammy on trial for robbing National City.City. 2. Surveillance film captures image of a man2. Surveillance film captures image of a man robbing the bank with a gun.robbing the bank with a gun. 3. Jury compares film to Sammy seated at counsel3. Jury compares film to Sammy seated at counsel table.table. 4. Jury deduces that Sammy is the man on the4. Jury deduces that Sammy is the man on the film.film. 5. Jury decides to convict. 5. Jury decides to convict.

7

Induction/Circumstantial EvidenceInduction/Circumstantial Evidence

1. Sammy on trial for robbing National City.1. Sammy on trial for robbing National City. 2. No surveillance film due to a technical2. No surveillance film due to a technical problem.problem. 3. Maggie, Sammy’s girlfriend, testifies that3. Maggie, Sammy’s girlfriend, testifies that Sammy told her that he was low on funds and,Sammy told her that he was low on funds and, unless his ship came in, would have to knock-unless his ship came in, would have to knock- off the National City Branch in Clifton.off the National City Branch in Clifton. 4. Jury induces that Sammy is the robber.4. Jury induces that Sammy is the robber. 5. Jury decides to convict. 5. Jury decides to convict.

Rule 101. ScopeRule 101. Scope[Current Rule][Current Rule]

These rules govern proceedings in the These rules govern proceedings in the courts of the United States and before the United courts of the United States and before the United States bankruptcy judges and United States States bankruptcy judges and United States magistrate judges, to the extent and with the magistrate judges, to the extent and with the exceptions stated in Rule 1101.exceptions stated in Rule 1101.

8

Rule 101. Scope; DefinitionsRule 101. Scope; Definitions[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) Scope.Scope. These rules apply to proceedings before These rules apply to proceedings before United States courts. The specific courts and proceedings United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out to which the rules apply, along with exceptions, are set out in Rule 1101.in Rule 1101.

(b)(b) Definitions.Definitions. In these rules: In these rules:

(1)(1) “civil case” means a civil action or proceeding;“civil case” means a civil action or proceeding;

(2)(2) “criminal case” includes a criminal proceeding;“criminal case” includes a criminal proceeding;

(3)(3) “public office” includes a public agency;“public office” includes a public agency;

9

Rule 101. Scope; Definitions (cont’d)Rule 101. Scope; Definitions (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(4)(4) “record” [in Rules 803, 901, 902, and 1005] “record” [in Rules 803, 901, 902, and 1005] includes a memorandum, report, or data compilation;includes a memorandum, report, or data compilation;

(5)(5) a “rule prescribed by the Supreme Court” means a a “rule prescribed by the Supreme Court” means a rule adopted by the Supreme Court under statutory rule adopted by the Supreme Court under statutory authority; and authority; and

(6)(6) a reference to any kind of written material includes a reference to any kind of written material includes electronically stored information.electronically stored information.

10

Rule 102. Purpose and ConstructionRule 102. Purpose and Construction[Current Rule][Current Rule]

These rules shall be construed to secure These rules shall be construed to secure fairness in administration, elimination of fairness in administration, elimination of unjustifiable expense and delay, and promotion of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to growth and development of the law of evidence to the end that the truth may be ascertained and the end that the truth may be ascertained and proceedings justly determined.proceedings justly determined.

11

Rule 102. Purpose Rule 102. Purpose [Effective 12/1/2011][Effective 12/1/2011]

These rules should be construed so as to These rules should be construed so as to administer every proceeding fairly, eliminate administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the unjustifiable expense and delay, and promote the development of evidence law, to the end of development of evidence law, to the end of ascertaining the truth and securing a just ascertaining the truth and securing a just determination.determination.

12

13

Rule 103. Rulings on EvidenceRule 103. Rulings on Evidence[Current Rule][Current Rule]

a)a) Effect of erroneous rulingEffect of erroneous ruling. Error may not be predicated . Error may not be predicated upon a ruling which admits or excludes evidence unless a upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and substantial right of the party is affected, and (1) (1) ObjectionObjection.—In case the ruling is one admitting .—In case the ruling is one admitting evidence, a timely objection or motion to strike appears of evidence, a timely objection or motion to strike appears of record stating the specific ground of objection, if the record stating the specific ground of objection, if the specific ground was not apparent from the context; orspecific ground was not apparent from the context; or

(2) (2) Offer of proofOffer of proof.—In case the ruling is one excluding .—In case the ruling is one excluding evidence, the substance of the evidence was made known to evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within the court by offer or was apparent from the context within which questions were asked.which questions were asked.

Once the court makes a definitive ruling on the record Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to party need not renew an objection or offer of proof to preserve a claim of error for appeal.preserve a claim of error for appeal.

14

Rule 103. Rulings on Evidence (cont’d)Rule 103. Rulings on Evidence (cont’d)[Current Rule][Current Rule]b)b) Record of offer and ruling.—Record of offer and ruling.—The court may add any The court may add any

other or further statement which shows the character of other or further statement which shows the character of the evidence, the form in which it was offered, the the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.making of an offer in question and answer form.

c)c) Hearing of jury.—Hearing of jury.—In jury cases, proceedings shall be In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof any means, such as making statements or offers of proof or asking questions in the hearing of the jury.or asking questions in the hearing of the jury.

d)d) Plain error.—Plain error.—Nothing in this rule precludes taking notice Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they of plain errors affecting substantial rights although they were not brought to the attention of the court.were not brought to the attention of the court.

Rule 103. Rulings on EvidenceRule 103. Rulings on Evidence[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) Preserving a Claim of Error. Preserving a Claim of Error. A party may claim error A party may claim error in a ruling to admit or exclude evidence only if the error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: affects a substantial right of the party and:

(1) if the ruling admits evidence, the party, on the record:(1) if the ruling admits evidence, the party, on the record:

(A)(A) timely objects or moves to strike; andtimely objects or moves to strike; and

(B)(B) states the specific ground, unless it was states the specific ground, unless it was apparent from the context; orapparent from the context; or

(2)(2) if the ruling excludes evidence, the party informs if the ruling excludes evidence, the party informs the court of its substance by an offer of proof, unless the the court of its substance by an offer of proof, unless the substance was apparent from the context.substance was apparent from the context.

15

Rule 103. Rulings on Evidence (cont’d)Rule 103. Rulings on Evidence (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(b)(b) Not Needing to Renew an Objection or Offer of Proof.Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.offer of proof to preserve a claim of error for appeal.

(c)(c) Court’s Statement About the Ruling; Directing an Court’s Statement About the Ruling; Directing an Offer of Proof.Offer of Proof. The court may make any statement about The court may make any statement about the character or form of the evidence, the objection made, the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof and the ruling. The court may direct that an offer of proof be made in question-and-answer form.be made in question-and-answer form.

16

Rule 103. Rulings on Evidence (cont’d)Rule 103. Rulings on Evidence (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(d)(d) Preventing the Jury from Hearing Inadmissible Preventing the Jury from Hearing Inadmissible Evidence.Evidence. To the extent practicable, the court must To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.suggested to the jury by any means.

(e)(e) Taking Notice of Plain Error.Taking Notice of Plain Error. A court may take notice A court may take notice of a plain error affecting a substantial right, even if the of a plain error affecting a substantial right, even if the claim of error was not properly preserved.claim of error was not properly preserved.

17

18

Rule 104. Preliminary QuestionsRule 104. Preliminary Questions[Current Rule][Current Rule]

a)a) Questions of admissibility generallyQuestions of admissibility generally. Preliminary . Preliminary questions concerning the qualification of a person to be a questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with it is not bound by the rules of evidence except those with respect to privileges.respect to privileges.

b)b) Relevancy conditioned on factRelevancy conditioned on fact. When the relevancy of . When the relevancy of evidence depends upon the fulfillment of a condition of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of introduction of evidence sufficient to support a finding of the fulfillment of the condition.the fulfillment of the condition.

c)c) Hearing of juryHearing of jury. Hearings on the admissibility of . Hearings on the admissibility of confessions shall in all cases be conducted out of the confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.or when an accused is a witness and so requests.

19

Rule 104. Preliminary Questions (cont’d)Rule 104. Preliminary Questions (cont’d)[Current Rule][Current Rule]

d)d) Testimony by accusedTestimony by accused. The accused does not, by . The accused does not, by testifying upon a preliminary matter, become subject to testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.cross-examination as to other issues in the case.

e)e) Weight and credibilityWeight and credibility. This rule does not limit the . This rule does not limit the right of a party to introduce before the jury evidence right of a party to introduce before the jury evidence relevant to weight or credibility.relevant to weight or credibility.

Rule 104. Preliminary QuestionsRule 104. Preliminary Questions[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) In General.In General. The court must decide any preliminary The court must decide any preliminary question about whether a witness is qualified, a privilege question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.is not bound by evidence rules, except those on privilege.

(b)(b) Relevancy That Depends on a Fact.Relevancy That Depends on a Fact. When the When the relevancy of evidence depends on fulfilling a factual relevancy of evidence depends on fulfilling a factual condition, the court may admit it on, or subject to, the condition, the court may admit it on, or subject to, the introduction of evidence sufficient to support a finding introduction of evidence sufficient to support a finding that the condition is fulfilled.that the condition is fulfilled.

20

Rule 104. Preliminary Questions (cont’d)Rule 104. Preliminary Questions (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(c)(c) Matters That the Jury Must Not Hear.Matters That the Jury Must Not Hear. A hearing on a A hearing on a preliminary question must be conducted outside the jury’s preliminary question must be conducted outside the jury’s hearing if: hearing if:

(1) (1) the hearing involves the admissibility of a the hearing involves the admissibility of a confession;confession;

(2)(2) a defendant in a criminal case is a witness a defendant in a criminal case is a witness and and requests that the jury not be present; or requests that the jury not be present; or

(3)(3) justice so requires.justice so requires.

21

Rule 104. Preliminary Questions (cont’d)Rule 104. Preliminary Questions (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(d)(d) Testimony by a Defendant in a Criminal Case.Testimony by a Defendant in a Criminal Case. By By testifying on a preliminary question, a defendant in a testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-criminal case does not become subject to cross-examination on other issues in the case.examination on other issues in the case.

(e)(e) Evidence Relevant to Weight and Credibility.Evidence Relevant to Weight and Credibility. This This rule does not limit a party’s right to introduce before the rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility jury evidence that is relevant to the weight or credibility of other evidence.of other evidence.

22

23

Rule 401. Definition of “Relevant Evidence”Rule 401. Definition of “Relevant Evidence”[Current Rule][Current Rule]

““Relevant evidence” means evidence having any Relevant evidence” means evidence having any tendency to make the existence of any fact that is tendency to make the existence of any fact that is of consequence to the determination of the action of consequence to the determination of the action more probable or less probable than it would be more probable or less probable than it would be without the evidence. without the evidence.

24

Rule 401. Test for Relevant EvidenceRule 401. Test for Relevant Evidence[Effective 12/1/2011][Effective 12/1/2011]

Evidence is relevant if it has any tendency to make Evidence is relevant if it has any tendency to make more or less probable the existence of a fact that is more or less probable the existence of a fact that is of consequence in determining the action.of consequence in determining the action.

25

Fact A Fact B

Probative of/ (Fact of Consequence)

Tends to Prove

Attack on Relevancy

1. Not Probative of FACT B, a Fact of Consequence

2. Probative of FACT C, but FACT C Not a Fact of Consequence

Relevancy FormulaRelevancy Formula

26

Facts Offered Into EvidenceFacts Offered Into Evidence

1.1. Ed has blue eyes.Ed has blue eyes.

2.2. Ed has a skull and cross bones tattooed on his left arm Ed has a skull and cross bones tattooed on his left arm and a smoking gun tattooed on his right arm.and a smoking gun tattooed on his right arm.

3.3. Ed’s father was a German guard in a Nazi death camp, Ed’s father was a German guard in a Nazi death camp, where Ed was born in 1942.where Ed was born in 1942.

4.4. Ed is a member of the “skin heads.”Ed is a member of the “skin heads.”

5.5. Ed purchased a car radio with a police ban three months Ed purchased a car radio with a police ban three months prior to John’s murder.prior to John’s murder.

Fact of Consequence/Inference/Conclusion

Ed murdered John.

27

Facts Offered Into EvidenceFacts Offered Into Evidence

1.1. John was found dead in his apartment, with a bullet John was found dead in his apartment, with a bullet wound in his chest.wound in his chest.

2.2. A week earlier, Ed had threatened John.A week earlier, Ed had threatened John.

3.3. Ed’s hat was found in John’s apartment.Ed’s hat was found in John’s apartment.

4.4. Ed had written a love letter to John’s wife three months Ed had written a love letter to John’s wife three months prior to John’s murder.prior to John’s murder.

5.5. The murder weapon was found buried in Ed’s backyard.The murder weapon was found buried in Ed’s backyard.

6.6. Police Officer Smith testifies that Sam, John’s neighbor, Police Officer Smith testifies that Sam, John’s neighbor, told him that he saw Ed driving away from the told him that he saw Ed driving away from the apartment building the night of the shooting.apartment building the night of the shooting.

Want jury to infer/conclude

Ed murdered John.

28

ARGUMENT FOR ADMISSION OF LOVE ARGUMENT FOR ADMISSION OF LOVE LETTERSLETTERS

1.1. A man who writes a love letter to a woman probably A man who writes a love letter to a woman probably loves her.loves her.

2.2. A man who loves a woman probably desires her for A man who loves a woman probably desires her for himself alone.himself alone.

3.3. A man who loves a married woman probably wishes to A man who loves a married woman probably wishes to get rid of her husband.get rid of her husband.

4.4. A man who wishes to get rid of the husband of the A man who wishes to get rid of the husband of the woman he loves probably makes some plan to do so.woman he loves probably makes some plan to do so.

5.5. A man who plans to get rid of the husband of the woman A man who plans to get rid of the husband of the woman he loves probably kills him.he loves probably kills him.

29

John SmithJohn Smith

1. Defendant John Smith is on trial for leaving the scene of an accident.

2. “Facts of consequence” which jury must infer/conclude to convict John Smith, as defined by Ohio Law:

a. John Smith was involved in an auto accident.

b. John Smith failed to stop to determine if there was any injury to person or property and if so, to exchange appropriate information.

c. Facts offered into evidence at the trail.

1. Parking lot attendant saw John Smith leave in his navy blue BMW at 6:00 p.m. on the night of the accident.

2. The driver of the hit and run vehicle was wearing a red jacket.

30

Continued.. Continued..

3. John Smith owns a red jacket.3. John Smith owns a red jacket.

4. John Smith was seen speeding and weaving in his 4. John Smith was seen speeding and weaving in his navy blue BMW five minutes before the accident.navy blue BMW five minutes before the accident.

5. John Smith was seen speeding and weaving in his 5. John Smith was seen speeding and weaving in his navy blue BMW one hour prior to the accident.navy blue BMW one hour prior to the accident.

6. John Smith was seen speeding and weaving in his 6. John Smith was seen speeding and weaving in his navy blue BMW two days prior to the accident. navy blue BMW two days prior to the accident.

31

Rule 403. Exclusion of Relevant Evidence on Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Grounds of Prejudice, Confusion, or Waste of TimeTime[Current Rule][Current Rule]

Although relevant, evidence may be excluded if its Although relevant, evidence may be excluded if its probative value is substantially outweighed by the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of or misleading the jury, or by considerations of undue delay, waste of time, or needless undue delay, waste of time, or needless presentation of cumulative evidence.presentation of cumulative evidence.

32

Rule 403. Excluding Relevant Evidence for Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time or Other Prejudice, Confusion, Waste of Time or Other ReasonsReasons[Effective 12/1/2011][Effective 12/1/2011]

The court may exclude relevant evidence if its The court may exclude relevant evidence if its probative value is substantially outweighed by a probative value is substantially outweighed by a danger of one or more of the following: unfair danger of one or more of the following: unfair prejudice, confusing the issues, misleading the prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly jury, undue delay, wasting time, or needlessly presenting cumulative evidence.presenting cumulative evidence.

33

Probative Value Unfair Prejudice

(passion, outrage,

horror, tears, fears)

34

1. Relevant evidence is excluded if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to the jury.

2. Relevant evidence is excluded if the probative value of the evidence is substantially outweighed by the danger of confusion of the issues or misleading the jury.

3. Relevant evidence is excluded if it is substantially outweighed by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Relevant EvidenceRelevant EvidenceExcluded When Substantially OutweighedExcluded When Substantially Outweighed

35

RELEVANCE V. PROBATIVE RELEVANCE V. PROBATIVE VALUE (WEIGHT OF THE VALUE (WEIGHT OF THE

EVIDENCE)EVIDENCE)

36

Rule 404. Character Evidence Not Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Admissible To Prove Conduct; Exceptions; Other CrimesOther Crimes[Current Rule][Current Rule]

a)a) Character Evidence GenerallyCharacter Evidence Generally.—Evidence of .—Evidence of a person’s character or a trait of character is not a person’s character or a trait of character is not admissible for the purpose of proving action in admissible for the purpose of proving action in conformity therewith on a particular occasion, conformity therewith on a particular occasion, except:except:

37

Rule 404 (cont’d)Rule 404 (cont’d)[Current Rule][Current Rule]

1)1) Character of Accused.—Character of Accused.—In a criminal case, In a criminal case, evidence of a pertinent trait of character offered by evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by same trait of character of the accused offered by the prosecution;the prosecution;

38


2)2) Character of Alleged Victim.—Character of Alleged Victim.—In a criminal In a criminal case, and subject to the limitations imposed by case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged homicide case to rebut evidence that the alleged victim was the first aggressor;victim was the first aggressor;

39


3)3) Character of Witness.—Character of Witness.—Evidence of the character Evidence of the character of a witness, as provided in rules 607, 608, and of a witness, as provided in rules 607, 608, and 609.609.

40


b)b) Other Crimes, Wrongs, or Acts.Other Crimes, Wrongs, or Acts.—Evidence of other —Evidence of other crimes, wrongs, or acts is not admissible to prove the crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in character of a person in order to show action in conformity therewith. It may, however, be admissible for conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce general nature of any such evidence it intends to introduce at trial.at trial.

Rule 404. Character Evidence; Crimes or Rule 404. Character Evidence; Crimes or Other ActsOther Acts[Effective 12/1/2011][Effective 12/1/2011](a)(a) Character Evidence.Character Evidence.

(1)(1) Prohibited Uses. Prohibited Uses. Evidence of a person’s character or Evidence of a person’s character or character trait is not admissible to prove that on a particular character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character occasion the person acted in accordance with the character

or or trait.trait.

(2)(2) Exceptions in a Criminal Case.Exceptions in a Criminal Case. The following exceptions The following exceptions apply apply in a criminal case:in a criminal case:

(A)(A) a defendant may offer evidence of the defendant’s a defendant may offer evidence of the defendant’s pertinent pertinent trait, and if the evidence is admitted, the prosecutor may trait, and if the evidence is admitted, the prosecutor may offer offer evidence to rebut it; evidence to rebut it;

(B)(B) subject to the limitations in Rule 412, a defendant may subject to the limitations in Rule 412, a defendant may offer offer evidence of an alleged crime victim’s pertinent trait, and evidence of an alleged crime victim’s pertinent trait, and if the if the evidence is admitted, the prosecutor may:evidence is admitted, the prosecutor may:

41

Rule 404. Character Evidence; Crimes or Rule 404. Character Evidence; Crimes or Other Acts (cont’d)Other Acts (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(i)(i) offer evidence to rebut it; andoffer evidence to rebut it; and

(ii)(ii) offer evidence of the defendant’s same trait; andoffer evidence of the defendant’s same trait; and

(C)(C) in a homicide case, the prosecutor may offer evidence of in a homicide case, the prosecutor may offer evidence of the the alleged victim’s trait of peacefulness to rebut evidence alleged victim’s trait of peacefulness to rebut evidence that the that the victim was the first aggressor.victim was the first aggressor.

(3)(3) Exceptions for a WitnessExceptions for a Witness.. Evidence of a witness’s character Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.may be admitted under Rules 607, 608, and 609.

42

Rule 404. Character Evidence; Crimes or Rule 404. Character Evidence; Crimes or Other Acts (cont’d)Other Acts (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(b)(b) Crimes or Other Acts.Crimes or Other Acts.

(1)(1) Prohibited Uses.Prohibited Uses. Evidence of a crime or other act is not Evidence of a crime or other act is not admissible to prove a person’s character in order to show that on admissible to prove a person’s character in order to show that on a a particular occasion the person acted in accordance with the particular occasion the person acted in accordance with the character.character.

(2)(2) Permitted Uses; Notice.Permitted Uses; Notice. This evidence may be admissible for This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or preparation, plan, knowledge, identity, absence of mistake, or lack of lack of accident. On request by a defendant in a criminal case, accident. On request by a defendant in a criminal case, the the prosecutor must:prosecutor must:

(A)(A) provide reasonable notice of the general nature of any such provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; andevidence that the prosecutor intends to offer at trial; and

(B)(B) do so before trial — or during trial if do so before trial — or during trial if the court, for good the court, for good cause, excuses lack of pretrial notice.cause, excuses lack of pretrial notice.

43

44

Forbidden InferenceForbidden Inference404 (a)404 (a)

AssaultAssaultHot Tempered Hot Tempered

Bad ManBad Man

FraudFraudCheater Cheater

Bad ManBad Man

TortTortCareless Careless

Bad ManBad Man

EmbezzlementEmbezzlementGreedyGreedy

Bad ManBad Man

Ran car off roadRan car off roadType “A” Type “A”

Bad ManBad Man

45

Forbidden InferenceForbidden Inference404 (b)404 (b)

Guilty of shopliftingGuilty of shopliftingcharge in 2006charge in 2006

Guilty of shoplifting Guilty of shoplifting in 2004in 2004 Bad ManBad Man

Guilty of possessionGuilty of possessioncharge in 2006charge in 2006

Used DrugsUsed Drugsin 2001in 2001 Bad ManBad Man

Guilty of rape chargeGuilty of rape chargein 2007in 2007

Raped 1999Raped 1999Bad ManBad Man

Guilty of assault chargeGuilty of assault chargeat Woody’s in 2007at Woody’s in 2007

Started 3 fights in barsStarted 3 fights in barsin 1995 & 1996in 1995 & 1996 Bad ManBad Man

Guilty of treasonGuilty of treasoncharge in 2005charge in 2005

Contributed money to communistContributed money to communistparty in the 50’s & 60’sparty in the 50’s & 60’s Bad ManBad Man

46

Rule 405. Methods of Proving CharacterRule 405. Methods of Proving Character[Current Rule][Current Rule]

a)a) Reputation or opinion.Reputation or opinion. In all cases in which In all cases in which evidence of character or a trait of character of a evidence of character or a trait of character of a person is admissible, proof may be made by person is admissible, proof may be made by testimony as to reputation or by testimony in the testimony as to reputation or by testimony in the form of an opinion. On cross-examination, form of an opinion. On cross-examination, inquiry is allowable into relevant specific inquiry is allowable into relevant specific instances of conduct.instances of conduct.

47

Rule 405 (cont’d)Rule 405 (cont’d)[Current Rule] [Current Rule]

b)b) Specific instances of conduct.Specific instances of conduct. In cases in In cases in which character or a trait of character of a which character or a trait of character of a person is an essential element of a charge, claim, person is an essential element of a charge, claim, or defense, proof may also be made of specific or defense, proof may also be made of specific instances of that person’s conduct.instances of that person’s conduct.

Rule 405. Methods of Proving CharacterRule 405. Methods of Proving Character[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) By Reputation or Opinion.By Reputation or Opinion. When evidence of a When evidence of a person’s character or character trait is admissible, it may person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-by testimony in the form of an opinion. On cross-examination, the court may allow an inquiry into relevant examination, the court may allow an inquiry into relevant specific instances of the person’s conduct.specific instances of the person’s conduct.

(b)(b) By Specific Instances of Conduct.By Specific Instances of Conduct. When a person’s When a person’s character or character trait is an essential element of a character or character trait is an essential element of a charge, claim, or defense, the character or trait may also charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s be proved by relevant specific instances of the person’s conduct.conduct.

48

49

Rule 406. Habit; Routine PracticeRule 406. Habit; Routine Practice[Current Rule][Current Rule]

Evidence of the habit of a person or of the Evidence of the habit of a person or of the routine practice of an organization, whether routine practice of an organization, whether corroborated or not and regardless of the presence corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the of eyewitnesses, is relevant to prove that the conduct of the person or organization on a conduct of the person or organization on a particular occasion was in conformity with the particular occasion was in conformity with the habit or routine practice.habit or routine practice.

50

Rule 406. Habit; Routine PracticeRule 406. Habit; Routine Practice[Effective 12/1/2011][Effective 12/1/2011]

Evidence of a person’s habit or an organization’s Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on routine practice may be admitted to prove that on a particular occasion the person or organization a particular occasion the person or organization acted in accordance with the habit or routine acted in accordance with the habit or routine practice. The court may admit this evidence practice. The court may admit this evidence regardless of whether it is corroborated or whether regardless of whether it is corroborated or whether there was an eyewitness.there was an eyewitness.

51

Keys to Admissibility of Habit Keys to Admissibility of Habit Evidence Under 406Evidence Under 406

Sample from which Habit is inferred is Sample from which Habit is inferred is AdequateAdequate

Response to the Situation is Uniform Response to the Situation is Uniform

approaches invariabilityapproaches invariability

52

Rule 407. Subsequent Remedial MeasuresRule 407. Subsequent Remedial Measures[Current Rule][Current Rule]

When, after an injury or harm allegedly caused by When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion of instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or of precautionary measures, if controverted, or impeachment.impeachment.

53

Rule 407. Subsequent Remedial MeasuresRule 407. Subsequent Remedial Measures[Effective 12/1/2011][Effective 12/1/2011]

When measures are taken that would have made an earlier When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:subsequent measures is not admissible to prove:– negligence;negligence;

– culpable conduct;culpable conduct;

– a defect in a product or its design; ora defect in a product or its design; or

– a need for a warning or instruction.a need for a warning or instruction.

But the court may admit this evidence for another purpose, But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary ownership, control, or the feasibility of precautionary measures.measures.

54

Rule 408. Compromise and Offers to Rule 408. Compromise and Offers to CompromiseCompromise[Current Rule][Current Rule]

a)a) Prohibited uses.Prohibited uses. Evidence of the following is Evidence of the following is not admissible on behalf of any party, when not admissible on behalf of any party, when offered to prove liability for, invalidity of, or offered to prove liability for, invalidity of, or amount of a claim that was disputed as to amount of a claim that was disputed as to validity or amount, or to impeach through a validity or amount, or to impeach through a prior inconsistent statement or contradiction:prior inconsistent statement or contradiction:

1)1) furnishing or offering or promising to furnish—or furnishing or offering or promising to furnish—or accepting or offering or promising to accept—a accepting or offering or promising to accept—a valuable consideration in compromising or valuable consideration in compromising or attempting to compromise the claim; andattempting to compromise the claim; and

55


2)2) conduct or statements made in compromise conduct or statements made in compromise negotiations regarding the claim, except when offered negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.regulatory, investigative, or enforcement authority.

56


b)b) Permitted uses.Permitted uses. This rule does not require This rule does not require exclusion if the evidence is offered for purposes exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of not prohibited by subdivision (a). Examples of permissible purposes include proving a permissible purposes include proving a witness’s bias or prejudice; negating a witness’s bias or prejudice; negating a contention of undue delay; and proving an effort contention of undue delay; and proving an effort to obstruct a criminal investigation or to obstruct a criminal investigation or prosecution.prosecution.

Rule 408. Compromise Offers and Rule 408. Compromise Offers and NegotiationsNegotiations[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) Prohibited Uses.Prohibited Uses. Evidence of the following is Evidence of the following is not admissible — on behalf of any party — not admissible — on behalf of any party — either to prove or disprove the validity or amount either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: inconsistent statement or a contradiction:

1.1. furnishing, promising, or offering — or accepting, furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a promising to accept, or offering to accept — a valuable consideration in order to compromise the valuable consideration in order to compromise the claim; andclaim; and

57

Rule 408. Compromise Offers and Rule 408. Compromise Offers and Negotiations (cont’d)Negotiations (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

2.2. conduct or a statement made during compromise conduct or a statement made during compromise negotiations about the claim — except when offered negotiations about the claim — except when offered in a criminal case and when the negotiations related to in a criminal case and when the negotiations related to a claim by a public office in the exercise of its a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.regulatory, investigative, or enforcement authority.

58

Rule 408. Compromise Offers and Rule 408. Compromise Offers and Negotiations (cont’d)Negotiations (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

b)b) Exceptions.Exceptions. The court may admit this evidence The court may admit this evidence for another purpose, such as proving a witness’s for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal delay, or proving an effort to obstruct a criminal investigation or prosecution.investigation or prosecution.

59

60

Rule 408 StatementsRule 408 Statements

I was driving way too fast for the snowy I was driving way too fast for the snowy road conditions.road conditions.

All right, I was negligent. Let’s talk about All right, I was negligent. Let’s talk about damages.damages.

Of course I owe you the million dollars, but Of course I owe you the million dollars, but unless you take the $750K I have on the unless you take the $750K I have on the table, you will have to sue me and by the table, you will have to sue me and by the time you get a judgment, I will be judgment time you get a judgment, I will be judgment proof.proof.

61

Rule 409. Payment of Medical and Similar Rule 409. Payment of Medical and Similar ExpensesExpenses[Current Rule][Current Rule]

Evidence of furnishing or offering or Evidence of furnishing or offering or promising to pay medical, hospital, or similar promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible expenses occasioned by an injury is not admissible to prove liability for the injury.to prove liability for the injury.

62

Rule 409. Offers to Pay Medical and Similar Rule 409. Offers to Pay Medical and Similar ExpensesExpenses[Effective 12/1/2011][Effective 12/1/2011]

Evidence of furnishing, promising to pay, or Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible expenses resulting from an injury is not admissible to prove liability for the injury.to prove liability for the injury.

63

Rule 410. Inadmissibility of Pleas, Plea Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related StatementsDiscussions, and Related Statements[Current Rule][Current Rule]

Except as otherwise provided in this rule, evidence Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal of the following is not, in any civil or criminal proceeding, admissible against the defendant who proceeding, admissible against the defendant who made the plea or was a participant in the plea made the plea or was a participant in the plea discussions:discussions:

1)1) a plea of guilty which was later withdrawn;a plea of guilty which was later withdrawn;2)2) a plea of nolo contendere;a plea of nolo contendere;3)3) any statement made in the course of any proceedings under Rule any statement made in the course of any proceedings under Rule

11 of the Federal Rules of Criminal Procedure or comparable state 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; orprocedure regarding either of the foregoing pleas; or

4)4) any statement made in the course of plea discussions with an any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.of guilty or which result in a plea of guilty later withdrawn.

64


However, such a statement is admissible (i) in However, such a statement is admissible (i) in any proceeding wherein another statement made any proceeding wherein another statement made in the course of the same plea or plea discussions in the course of the same plea or plea discussions has been introduced and the statement ought in has been introduced and the statement ought in fairness be considered contemporaneously with fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the false statement if the statement was made by the defendant under oath, on the record and in the defendant under oath, on the record and in the presence of counsel.presence of counsel.

Rule 410. Pleas, Plea Discussions, and Rule 410. Pleas, Plea Discussions, and Related StatementsRelated Statements[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) Prohibited Uses. Prohibited Uses. In a civil or criminal case, In a civil or criminal case, evidence of the following is not admissible evidence of the following is not admissible against the defendant who made the plea or against the defendant who made the plea or participated in the plea discussions:participated in the plea discussions:1)1) a guilty plea that was later withdrawn;a guilty plea that was later withdrawn;

2)2) a nolo contendere plea;a nolo contendere plea;

3)3) a statement about either of those pleas made during a proceeding a statement about either of those pleas made during a proceeding under Federal Rule of Criminal Procedure 11 or a comparable under Federal Rule of Criminal Procedure 11 or a comparable state procedure; orstate procedure; or

4)4) a statement made during plea discussions with an attorney for the a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.plea or they resulted in a later-withdrawn guilty plea.

65

Rule 410. Pleas, Plea Discussions, and Rule 410. Pleas, Plea Discussions, and Related Statements (cont’d)Related Statements (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(b)(b) Exceptions.Exceptions. The court may admit a statement The court may admit a statement described in Rule 410(a)(3) or (4):described in Rule 410(a)(3) or (4):1)1) in any proceeding in which another statement made during the in any proceeding in which another statement made during the

same plea or plea discussions has been introduced, if in fairness same plea or plea discussions has been introduced, if in fairness both statements ought to be considered together; orboth statements ought to be considered together; or

2)2) in a criminal proceeding for perjury or false statement, if the in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and in defendant made the statement under oath, on the record, and in the presence of counsel.the presence of counsel.

66

67

Rule 411. Liability InsuranceRule 411. Liability Insurance[Current Rule][Current Rule]

Evidence that a person was or was not Evidence that a person was or was not insured against liability is not admissible upon the insured against liability is not admissible upon the issue whether the person acted negligently or issue whether the person acted negligently or otherwise wrongfully. This rule does not require otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against the exclusion of evidence of insurance against liability when offered for another purpose, such as liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or proof of agency, ownership, or control, or bias or prejudice of a witness.prejudice of a witness.

68

Rule 411. Liability InsuranceRule 411. Liability Insurance[Effective 12/1/2011][Effective 12/1/2011]

Evidence that a person did or did not have liability Evidence that a person did or did not have liability insurance is not admissible to prove that the insurance is not admissible to prove that the person acted negligently or otherwise wrongfully. person acted negligently or otherwise wrongfully. But the court may admit this evidence for another But the court may admit this evidence for another purpose, such as proving a witness’s bias or purpose, such as proving a witness’s bias or prejudice or — if disputed — proving agency, prejudice or — if disputed — proving agency, ownership, or control.ownership, or control.

69

Rule 412. Sex Offense Cases; Relevance of Rule 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Victim’s Past Sexual Behavior or Alleged Sexual PredispositionAlleged Sexual Predisposition[Current Rule][Current Rule]

a)a) Evidence generally inadmissibleEvidence generally inadmissible.—The following .—The following evidence is not admissible in any civil or criminal evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):except as provided in subdivisions (b) and (c):

1)1) Evidence offered to prove that any alleged victim Evidence offered to prove that any alleged victim engaged in other sexual behavior.engaged in other sexual behavior.

2)2) Evidence offered to prove any alleged victim’s Evidence offered to prove any alleged victim’s sexual predisposition.sexual predisposition.

70


b)b) ExceptionsExceptions.—.—1)1) In a criminal case, the following evidence In a criminal case, the following evidence is admissible, if otherwise admissible under these is admissible, if otherwise admissible under these rules:rules:

A.A. evidence of specific instances of sexual behavior by evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person the alleged victim offered to prove that a person other than the accused was the source of semen, other than the accused was the source of semen, injury or other physical evidence;injury or other physical evidence;

B.B. evidence of specific instances of sexual behavior by evidence of specific instances of sexual behavior by the alleged victim with respect to the person the alleged victim with respect to the person accused of the sexual misconduct offered by the accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; andaccused to prove consent or by the prosecution; and

C.C. evidence the exclusion of which would violate the evidence the exclusion of which would violate the constitutional rights of the defendant.constitutional rights of the defendant.

71


2)2) In a civil case, evidence offered to prove the In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise alleged victim is admissible if it is otherwise admissible under these rules and its probative admissible under these rules and its probative value substantially outweighs the danger of value substantially outweighs the danger of harm to any victim and of unfair prejudice to harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s any party. Evidence of an alleged victim’s reputation is admissible only if it has been reputation is admissible only if it has been placed in controversy by the alleged victim.placed in controversy by the alleged victim.

72


c)c) Procedure to determine admissibilityProcedure to determine admissibility.—.—1)1) A party intending to offer evidence under A party intending to offer evidence under

subdivision (b) must—subdivision (b) must—A.A. file a written motion at least 14 days before trial file a written motion at least 14 days before trial

specifically describing the evidence and stating the purpose specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause for which it is offered unless the court, for good cause requires a different time for filing or permits filing during requires a different time for filing or permits filing during trial; andtrial; and

B.B. serve the motion on all parties and notify the alleged serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian victim or, when appropriate, the alleged victim’s guardian or representative.or representative.

73


2)2) Before admitting evidence under this rule the Before admitting evidence under this rule the court must conduct a hearing in camera and court must conduct a hearing in camera and afford the victim and parties a right to attend afford the victim and parties a right to attend and be heard. The motion, related papers, and be heard. The motion, related papers, and the record of the hearing must be sealed and the record of the hearing must be sealed and remain under seal unless the court orders and remain under seal unless the court orders otherwise.otherwise.

Rule 412. Sex-Offense Cases: The Victim’s Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or PredispositionSexual Behavior or Predisposition[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) Prohibited Uses.Prohibited Uses. The following evidence is not The following evidence is not admissible in a civil or criminal proceeding admissible in a civil or criminal proceeding involving alleged sexual misconduct:involving alleged sexual misconduct:1)1) evidenceevidence offered to prove that a victim engaged in offered to prove that a victim engaged in

other sexual behavior; orother sexual behavior; or

2)2) evidence offered to prove a victim’s sexual evidence offered to prove a victim’s sexual predisposition.predisposition.

74

Rule 412. Sex-Offense Cases: The Victim’s Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition (cont’d)Sexual Behavior or Predisposition (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(b)(b) Exceptions.Exceptions.

(1)(1) Criminal Cases.Criminal Cases. The court may admit the following The court may admit the following evidence in a criminal case:evidence in a criminal case:A.A. evidence of specific instances of a victim’s sexual behavior, if evidence of specific instances of a victim’s sexual behavior, if

offered to prove that someone other than the defendant was the offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;source of semen, injury, or other physical evidence;

B.B. evidence ofevidence of specific instances of a victim’s sexual behavior specific instances of a victim’s sexual behavior toward the defendant, if offered by the prosecutor or if offered toward the defendant, if offered by the prosecutor or if offered by the defendant to prove consent; andby the defendant to prove consent; and

C.C. evidence whose exclusion would violate the defendant’s evidence whose exclusion would violate the defendant’s constitutional rights.constitutional rights.

75


(2)(2) Civil Cases.Civil Cases. In a civil case, the court may admit In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in a victim’s reputation only if the victim has placed it in controversy.controversy.

76


(c)(c) Procedure to Determine Admissibility.Procedure to Determine Admissibility.

(1)(1) Motion.Motion. If a party intends to offer evidence under If a party intends to offer evidence under Rule 412(b), the party must:Rule 412(b), the party must:A.A. file a motion that specifically describes the evidence and states file a motion that specifically describes the evidence and states

the purpose for which it is to be offered;the purpose for which it is to be offered;

B.B. do so at least 14 days before trial unless the court, for good do so at least 14 days before trial unless the court, for good cause, sets a different time;cause, sets a different time;

C.C. serve the motion on all parties; andserve the motion on all parties; and

D.D. notify the victim or, when appropriate, the victim’s guardian or notify the victim or, when appropriate, the victim’s guardian or representative.representative.

77


(c)(c) Procedure to Determine Admissibility.Procedure to Determine Admissibility.

(2)(2) Hearing.Hearing. Before admitting evidence under this rule, Before admitting evidence under this rule, the court must conduct an in-camera hearing and give the the court must conduct an in-camera hearing and give the victim and parties a right to attend and be heard. Unless victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.and the record of the hearing must be and remain sealed.

(d)(d) Definition of “Victim.”Definition of “Victim.” In this rule, “victim” includes In this rule, “victim” includes an alleged victim.an alleged victim.

78

79

Rule 413. Evidence of Similar Crimes in Sexual Rule 413. Evidence of Similar Crimes in Sexual Assault CasesAssault Cases[Current Rule][Current Rule]

a)a) In a criminal case in which the defendant is accused of an In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing assault is admissible, and may be considered for its bearing on any matter to which it is relevant,on any matter to which it is relevant,

b)b) In a case in which the Government intends to offer In a case in which the Government intends to offer evidence under this rule, the attorney for the Government evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time days before the scheduled date of trial or at such later time as the court may allow for good cause.as the court may allow for good cause.

80


c)c) This rule shall not be construed to limit the admission or This rule shall not be construed to limit the admission or consideration of evidence under any other rule.consideration of evidence under any other rule.

d)d) For purposes of this rule and Rule 415, “offense of sexual For purposes of this rule and Rule 415, “offense of sexual assault” means a crime under Federal law or the law of a assault” means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States State (as defined in section 513 of title 18, United States Code) that involved—Code) that involved—

81


1)1) any conduct proscribed by chapter 109A of title 18, any conduct proscribed by chapter 109A of title 18, United States Code;United States Code;

2)2) contact, without consent, between any part of the contact, without consent, between any part of the defendant’s body or an object and the genitals or defendant’s body or an object and the genitals or anus of another person;anus of another person;

3)3) contact, without consent, between the genitals or contact, without consent, between the genitals or anus of the defendant and any part of another anus of the defendant and any part of another person’s body;person’s body;

4)4) deriving sexual pleasure or gratification from the deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on infliction of death, bodily injury, or physical pain on another person; oranother person; or

5)5) an attempt or conspiracy to engage in conduct an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).described in paragraphs (1)-(4).

Rule 413. Similar Crimes in sexual-Assault Rule 413. Similar Crimes in sexual-Assault CasesCases[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) Permitted Uses.Permitted Uses. In a criminal case in which a defendant In a criminal case in which a defendant is accused of a sexual assault, the court may admit is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter assault. The evidence may be considered on any matter to which it is relevant.to which it is relevant.

(b)(b) Disclosure.Disclosure. If the prosecutor intends to offer this If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows 15 days before trial or at a later time that the court allows for good cause.for good cause.

82

Rule 413. Similar Crimes in sexual-Assault Rule 413. Similar Crimes in sexual-Assault Cases (cont’d)Cases (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(c)(c) Effect on Other Rules.Effect on Other Rules. This rule does not limit the This rule does not limit the admission or consideration of evidence under any other admission or consideration of evidence under any other rule.rule.

(d)(d) Definition of “Sexual Assault.”Definition of “Sexual Assault.” In this rule and Rule In this rule and Rule 415, “sexual assault” means a crime under federal law or 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) under state law (as “state” is defined in 18 U.S.C. § 513) involving:involving:

83

Rule 413. Similar Crimes in sexual-Assault Rule 413. Similar Crimes in sexual-Assault Cases (cont’d)Cases (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

1)1) any conduct prohibited by 18 U.S.C. chapter 109A;any conduct prohibited by 18 U.S.C. chapter 109A;

2)2) contact, without consent, between any part of the contact, without consent, between any part of the defendant’s body — or an object — and another person’s defendant’s body — or an object — and another person’s genitals or anus;genitals or anus;

3)3) contact, without consent, between the defendant’s genitals contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;or anus and any part of another person’s body;

4)4) deriving sexual pleasure or gratification from inflicting deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; death, bodily injury, or physical pain on another person; oror

5)5) an attempt or conspiracy to engage in conduct described an attempt or conspiracy to engage in conduct described in paragraphs (1)–(4).in paragraphs (1)–(4).

84

85

Rule 414. Evidence of Similar Crimes in Rule 414. Evidence of Similar Crimes in Child Molestation CasesChild Molestation Cases[Current Rule][Current Rule]

a)a) In a criminal case in which the defendant is accused of an In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any is admissible, and may be considered for its bearing on any matter to which it is relevant.matter to which it is relevant.

b)b) In a case in which the Government intends to offer evidence In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may scheduled date of trial or at such later time as the court may allow for good cause.allow for good cause.

86


c)c) This rule shall not be construed to limit the admission or This rule shall not be construed to limit the admission or consideration of evidence under any other rule.consideration of evidence under any other rule.

d)d) For purposes of this rule and Rule 415, “child” means a For purposes of this rule and Rule 415, “child” means a person below the age of fourteen, and “offense of child person below the age of fourteen, and “offense of child molestation” means a crime under Federal law or the law of a molestation” means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States State (as defined in section 513 of title 18, United States Code) that involved—Code) that involved—

87


1)1) any conduct proscribed by chapter 109A of title 18, any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a United States Code, that was committed in relation to a child;child;

2)2) any conduct proscribed by chapter 110 of title 18, any conduct proscribed by chapter 110 of title 18, United States Code;United States Code;

3)3) contact between any part of the defendant’s body or an contact between any part of the defendant’s body or an object and the genitals or anus of a child;object and the genitals or anus of a child;

4)4) contact between the genitals or anus of the defendant contact between the genitals or anus of the defendant and any part of the body of a child;and any part of the body of a child;

5)5) deriving sexual pleasure or gratification from the deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a infliction of death, bodily injury, or physical pain on a child; orchild; or

6)6) an attempt or conspiracy to engage in conduct described an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).in paragraphs (1)-(5).

Rule 414. Similar Crimes in Child-Rule 414. Similar Crimes in Child-Molestation CasesMolestation Cases[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) Permitted Uses.Permitted Uses. In a criminal case in which a defendant In a criminal case in which a defendant is accused of child molestation, the court may admit is accused of child molestation, the court may admit evidence that the defendant committed any other act of evidence that the defendant committed any other act of child molestation. The evidence may be considered on child molestation. The evidence may be considered on any matter to which it is relevant.any matter to which it is relevant.

(b)(b) Disclosure.Disclosure. If the prosecutor intends to offer this If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows 15 days before trial or at a later time that the court allows for good cause.for good cause.

88

Rule 414. Similar Crimes in Child-Rule 414. Similar Crimes in Child-Molestation Cases (cont’d)Molestation Cases (cont’d)[Effective 12/1/2011][Effective 12/1/2011]


(d)(d) Definition of “Child” and “Child Molestation.”Definition of “Child” and “Child Molestation.” In this In this rule and Rule 415:rule and Rule 415:1)1) ““child” means a person below the age of 14; andchild” means a person below the age of 14; and

2)2) ““child molestation” means a crime under federal law or under child molestation” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:state law (as “state” is defined in 18 U.S.C. § 513) involving:

89

Rule 414. Similar Crimes in Child-Rule 414. Similar Crimes in Child-Molestation Cases (cont’d)Molestation Cases (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

A.A. any conduct prohibited by 18 U.S.C. chapter 109A and any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;committed with a child;

B.B. any conduct prohibited by 18 U.S.C. chapter 110;any conduct prohibited by 18 U.S.C. chapter 110;

C.C. contact between any part of the defendant’s body — or an contact between any part of the defendant’s body — or an object — and a child’s genitals or anus;object — and a child’s genitals or anus;

D.D. contact between the defendant’s genitals or anus and any part contact between the defendant’s genitals or anus and any part of a child’s body;of a child’s body;

E.E. deriving sexual pleasure or gratification from inflicting deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; ordeath, bodily injury, or physical pain on a child; or

F.F. an attempt or conspiracy to engage in conduct described in an attempt or conspiracy to engage in conduct described in paragraphs (A)–(E).paragraphs (A)–(E).

90

91

Rule 415. Evidence of Similar Acts in Civil Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Cases Concerning Sexual Assault or Child MolestationMolestation[Current Rule][Current Rule]

a)a) In a civil case in which a claim for damages or In a civil case in which a claim for damages or other relief is predicated on a party’s alleged other relief is predicated on a party’s alleged commission of conduct constituting an offense of commission of conduct constituting an offense of sexual assault or child molestation, evidence of that sexual assault or child molestation, evidence of that party’s commission of another offense or offenses party’s commission of another offense or offenses of sexual assault or child molestation is admissible of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and and may be considered as provided in Rule 413 and Rule 414 of these rules.Rule 414 of these rules.

92


b)b) A party who intends to offer evidence under this A party who intends to offer evidence under this Rule shall disclose the evidence to the party Rule shall disclose the evidence to the party against whom it will be offered, including against whom it will be offered, including statements of witnesses or a summary of the statements of witnesses or a summary of the substance of any testimony that is expected to be substance of any testimony that is expected to be offered, at least fifteen days before the scheduled offered, at least fifteen days before the scheduled date of trial or at such later time as the court may date of trial or at such later time as the court may allow for good cause.allow for good cause.

c)c) This rule shall not be construed to limit the This rule shall not be construed to limit the admission or consideration of evidence under any admission or consideration of evidence under any other rule.other rule.

Rule 415. Similar Acts in Civil Cases Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Involving Sexual Assault or Child MolestationMolestation[Effective 12/1/2011][Effective 12/1/2011]

(a)(a) Permitted Uses.Permitted Uses. In a civil case involving a In a civil case involving a claim for relief based on a party’s alleged sexual claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit assault or child molestation, the court may admit evidence that the party committed any other evidence that the party committed any other sexual assault or act of child molestation. The sexual assault or act of child molestation. The evidence may be considered as provided in Rules evidence may be considered as provided in Rules 413 and 414.413 and 414.

93

Rule 415. Similar Acts in Civil Cases Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Involving Sexual Assault or Child Molestation (cont’d)Molestation (cont’d)[Effective 12/1/2011][Effective 12/1/2011]

(b)(b) Disclosure.Disclosure. If a party intends to offer this evidence, the If a party intends to offer this evidence, the party must disclose it to the party against whom it will be party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for days before trial or at a later time that the court allows for good cause.good cause.


94