Federal Rules of Evidence
Related Federal Rules
The following Federal Rules of Evidence governing refreshing recollection and impeachment are provided as a reference for use during direct and cross-examinations in those jurisdictions whose rules of evidence model the Federal Rules.
REFRESHING RECOLLECTION
Federal Rule of Evidence 611 - Mode and Order of Interrogation and Presentation
611 (c) Leading Questions
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Note: Federal Rule of Evidence 611(c)
FRE 611(c) allows a prosecutor to use leading questions during direct examination to develop a witness’ testimony, including refreshing recollection.
The prosecutor may also use leading questions during direct on a hostile witness, such as a battered women who recants earlier statements or becomes “hostile” during the course of trial.
Federal Rule of Evidence 612 - Writing Used to Refresh Memory
Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--
1) while testifying, or
2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
IMPEACHMENT
Federal Rule of Evidence 607 - Who May Impeach
The credibility of a witness may be attacked by any party, including the party calling the witness.
Note: Federal Rule of Evidence 607
FRE 607 allows a prosecutor to impeach his/her own witness.
Locate case law in your jurisdiction explaining whether you need to lay a foundation and have the Court declare State’s witnesses as “hostile” in order to begin leading and otherwise impeaching them.
Federal Rule of Evidence 609 - Impeachment by Evidence of Conviction of Crime
609 (a) General Rule. For the purpose of attacking the credibility of a witness,
1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
Federal Rule of Evidence 613 - Prior Statements of Witnesses (Prior Inconsistent Statements)
613 (a) Examining Witnesses 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).
HEARSAY
The following Federal Rules of Evidence covering hearsay evidence are presented as a reference for formulating arguments in those jurisdictions whose rules of evidence model the Federal Rules.
Federal Rule of Evidence 801 - Definitions
The following definitions apply under this article:
(d) Statements which are not hearsay. A statement is not hearsay if—
- Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
- Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement in either an individual or representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Federal Rule of Evidence 803 - Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
- Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
- Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Federal Rule of Evidence 806 - Attacking and Supporting the Credibility of Declarant
When a hearsay statement, or statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
CHARACTER EVIDENCE
The following Federal Rules of Evidence governing character evidence are presented as a reference for formulating arguments in those jurisdictions whose rules of evidence model the Federal rules.
Federal Rule of Evidence 404 - Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
- Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
- Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
- Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Federal Rule of Evidence 608 - Evidence of Character and Conduct of Witness
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the privilege against self-incrimination, of the accused or the witness, when examined with respect to matters which relate only to credibility.
Checklist: Admitting "Other Acts" Evidence
Caveat: This checklist is applicable to Federal Rule of Evidence § 404(b) “Other Crimes, Wrongs, or Acts.” Individual states will have differing adaptations of this rule, therefore this checklist is only meant as a starting point and not as an exhaustive resource.
- Evidence of other crimes, wrongs, or acts is generally not admissible.
- Exceptions to general rule: Admissible in Prosecutor’s Case in Chief:
Most often used in Domestic Violence Cases
- Proof of INTENT
- Proof of ABSENCE of MISTAKE or ACCIDENT
- Proof of IDENTITY
- Other exceptions:
- Proof of opportunity, motive, preparation, plan, knowledge.
- Admissible as REBUTTAL:
- Rebut self-defense. i.e. The facts are that the defendant pulled a knife on the victim. Defense is self-defense. Introduce evidence that the defendant pulled a knife on someone else.
- Rebut accident. i.e. The facts indicate that the defendant hit the victim with the kitchen door causing a severe cut in the victim’s forehead requiring stitches. Defense is accident. Introduce evidence that the defendant had previously slammed a car door on the victim’s hand causing bone fractures.
- Introduction of “Other Acts” evidence:
- Read your state statute and check to see whether:
- You have to file the motion in writing.
- There is a notice requirement, i.e. written motion must be filed 15 days before trial. Note: Notice may not be required for “other acts” introduced as impeachment or rebuttal.
- “Other Acts” does not only refer to convictions.
- Look to prior arrests.
- Gather witnesses’ sworn statements describing prior acts of violence. Caveat: Sworn statements are not generally admissible at trial. Advise witnesses they will have to testify in court.
- Look at statements made or information proffered during civil protection order applications or hearings.
- However, if your are introducing convictions, check case law to see if you need certified priors. Consider the time frame for receiving certifications, especially if the prior convictions are in a different state.
- If you are introducing other statements, check your statute to see if there is a requirement of specificity, e.g., Florida Statute § 90.404(b) requires the crime to be described with the particularity of an indictment or information.
- Offered to prove intent: Introduce “other acts” evidence if your state’s statute requires specific intent as one of the elements of your crime.
SAMPLE MOTION: "OTHER ACTS" § 404(b)
In the County Court in and for Dade County, Florida
Case No. M-98-1111
Judge Wise
State of Florida v.
John Doe, Defendant
NOTICE OF INTENT TO RELY ON EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS
Comes now Katherine Fernandez Rundle, State Attorney of the Eleventh Judicial Circuit of Florida, by and through the undersigned Assistant State Attorney, and pursuant to the Florida Evidence Code, Section 90.404(2)(b)(1), Florida Statutes (1989), files this Notice of Intent to Rely on Evidence of Other Crimes, Wrongs, or Acts. See In re Florida Evidence Code, 371 So.2d 1369 (Fla. 1979); Williams v. State, 110 So.2d 654 (Fla. 1959), cert. denied, 361 U.S. 847, 80 S. Ct. 102, 4 L. Ed.2d 86 (1959). Set forth below is a written statement of the acts and offenses the State intends to offer as evidence to prove material facts in issue, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident:
1. The State will show that on May 26, 1997, John Doe did intentionally strike Jane Doe with a car door on her hand causing injury, to wit: two broken fingers, at 5555 S.W. 32 Terrace, Miami, Florida. (See copy of hospital records, Jackson Memorial Hospital, and witness Bill Smith’s sworn statement attached hereto made part hereof.)
2. The State will show that on December 25, 1996, John Doe did intentionally strangle Jane Doe causing injury, to wit: redness of the neck, at 5555 S.W. 32 Terrace, Miami, Florida. (See copy of certified prior conviction Case No. M-96-10087, attached hereto made part hereof.)
Respectfully submitted,
Katherine Fernandez Rundle
State Attorney
By: Mary Prosecutor
Mary Prosecutor
Assistant State Attorney
Florida Bar # 777777
E.R. Graham Building
1350 N.W. 12th Avenue
Miami, Florida 33136
(305) 547-0100
Certificate of Service
I Hereby Certify that a true and exact copy of the above was furnished to Defense Counsel, on this 22nd day of January, 1998.
Mary Prosecutor
Mary Prosecutor
Assistant State Attorney
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