Evidence Midterm

TRE 409 Payment of Medical and Similar Expenses: For purposes of this rule define the term "accident."

"Accident" means an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.

TRE 409 Payment of Medical and Similar Expenses: For purposes of this rule define benevolent gestures.

"Benevolent gestures" means actions which convey a sense of compassion or commiseration emanating from humane impulses.

TRE 405 Methods of Proving Character: What are the conditions that must be satisfied before allowing inquiry on cross-examination about specific instances of conduct?

(1) The court upon request must hold a hearing outside the jury's presence, (2) The court must determine that a reasonable factual basis exists for the inquiry, and (3) The court must determine that the probative value of a specific instance of conduct on the character witness's credibility outweighs its prejudicial effect on substantive issues. 4. (b) Specific Instances of Conduct. —In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

TRE 404 Character Evidence (Inadmissibility): 404A: Explain four conditions that must be met for evidence of other crimes or wrong acts to possibly be admissible to prove character conformity?

(1) The court upon request must hold a hearing outside the jury's presence; (2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; (3) The court must find proof of the other crime, wrong, or act to be clear and convincing; and (4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.

TRE 608 Evidence of Character and Conduct of Witness: For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted upon the satisfaction of what conditions?

(1) The witness must be asked about the conviction on cross-examination. If the witness denies having been convicted, the conviction may be established by public record. If the witness denies being the person named in the public record, identity may be established by other evidence. (2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement. (3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues.

TRE 405 Methods of Proving Character: If you are going to introduce character, what are the two things that must be taken into consideration?

(1) reputation or opinion and (2) specific instances of conduct

TRE 608 Evidence of Character and Conduct of Witness: 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 what limitations?

(1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful

TRE 104 Preliminary Questions: Explain questions of admissibility generally.

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

TRE 412 Relevance of Victim's Sexual Behavior: What conditions must be met in order for a victim's sexual behavior with persons other than accused to be admitted?

(i) to rebut or explain scientific or medical evidence, or (ii) to prove or explain the source of semen, injury, disease, or knowledge of sexual matters, or (iii) to prove consent if the evidence is of a pattern of sexual behavior so distinctive and so closely resembling the accused's version of the alleged encounter with the victim that it tends to prove that the victim consented to the act charged or behaved in such a manner as to lead the defendant reasonably to believe that the victim consented.

TRE 201 Judicial Notice of Fact: List four things that you can take judicial notice of.

1. A judgment made by another court 2. Realtor fees and closing costs 3. The terrible drug problem in the county but the record must contain some proof of the need for deterrence; general references to a docket is not a substitute for factual findings

List seven common presumptions.

1. DUI (.08 BAC presumed drunk) 2. Automobiles (proof of registration presumed consent) 3. Suicide (presumption that it is not) 4. Unheard of for seven years (presumed dead) 5. Medical Bills (presumed reasonable when attached to pleading) 6. Sanity (defendant is presumed sane) 7. Paternity (results at 95% or greater presumed father)

List four components that are discussed in TRE 103 in regards to rulings on evidence.

1. Effect of erroneous ruling 2. Record of offer and ruling 3. Hearing of jury 4. Plain error

List the five types of errors.

1. Harmless 2. Prejudicial 3. Plain 4. Invited 5. Abuse of Discretion

List two ways to prevent error.

1. Motion in Limeline 2. Have motions and objects heard out of the hearing of the jury.

What are the five subsections under TRE 104 in regards to preliminary questions?

1. Questions of Admissibility Generally 2. Relevance Conditioned on Fact 3. Hearing of Jury 4. Testimony of Accused 5. Weight and Credibility

TRE 202 Judicial Notice of Law: 202B: List five things that the court may take (optional) judicial notice of.

1. all other duly adopted federal and state rules of court 2. all duly published regulations of federal and state agencies and proclamations of the Tennessee Wildlife Resources Agency 3. all duly enacted ordinances of municipalities or other governmental subdivisions 4. any matter of law which would fall within the scope of this subsection or subsection (a) of this rule but for the fact that it has been replaced, superseded, or otherwise rendered no longer in force 5. treaties, conventions, the laws of foreign countries, international law, and maritime law

TRE 604 Interpreters: List two requirements of interpreters.

1. an interpreter be subject to and follow rules that are applicable to experts 2. make an oath or affirmation to make a true interpretation

TRE 401 Relevant Evidence: List the two elements required to determine relativity.

1. does it matter in the lawsuit (probative) 2. does it prove what it claims to prove (of consequence)

TRE 501 Privileges Recognized only as Provided: Spousal Privilege: Explain spousal privilege in regards to civil suits. In which two instances does it not apply?

1. does not apply to proceedings between spouses 2. cannot hide abuse of children

TRE 201 Judicial Notice of Fact: List two ways to obtain judicial notice.

1. generally known within the jurisdiction 2. capable of accurate and readily determination by resorting to sources not questionable. (Example: rules, almanacs, etc.)

TRE 612 Writing Used to Refresh Memory: If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires. List two possible options.

1. in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, 2. if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

TRE 202 Judicial Notice of Law: 202A: List four things that the court must take (mandatory) judicial notice of law.

1. the common law 2. the constitutions and statutes of the United States, and of every state, and territory, and other jurisdiction of the United States 3. all rules adopted by the United States Supreme Court or by the TN Supreme Court 4. any rule or regulation of which a statute of the United States or TN mandates judicial notice

TRE 502 Limitations on Waiver of Privileged Information or Work Product: In what three circumstances does inadvertent disclosure of privileged information or work product not operate as a waiver?

1.The disclosure is inadvertent, 2. The holder of the privilege or work-product protection took reasonable steps to prevent disclosure, and 3. The holder promptly took reasonable steps to rectify the error.

TRE 201 Judicial Notice of Fact: 201C: Define discretionary judicial notice.

A court may take judicial notice whether requested or not

TRE 201 Judicial Notice of Fact: 201D: Define mandatory judicial notice.

A court shall take judicial notice if requested by a party and supplied with the necessary information.

TRE 201 Judicial Notice of Fact: Discuss the kinds of facts listed under rule 201B.

A judicially noticed fact must be one not subject to reasonable dispute, in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

TRE 606 Competency of Juror as Witness: May a juror testify to matters or statements that occur during the course of the jury's deliberations? Are there any exceptions to this rule?

A juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes. However, there are exceptions to this rule.

TRE 201 Judicial Notice of Fact: 201E: Explain the opportunity to be heard.

A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice is taken.

What is abuse of discretion?

A situation where the court applies an innocent legal standard or reached a decision which is against logic or reasoning that caused an injustice to the party complaining

TRE 611 Mode and Order of Interrogation and Presentation: 611B Scope of Cross Examination: What may the witness be cross-examined upon?

A witness may be cross-examined on any matter relevant to any issue in the case, including credibility, except as provided in paragraph (d) of this rule.

TRE 602 Lack of Personal Knowledge: What must be proven in order for a witness to testify?

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

TRE 201 Judicial Notice of Fact: Define adjudicative facts.

Adjudicative facts deal with taking judicial notice that would be unique to the parties

TRE 104 Preliminary Questions: In hearings on the admissibility of confessions must cases be conducted in front of the hearing of the jury or out of the hearing of the jury?

All cases being heard on the admissibility of confessions shall be conducted out of the hearing of the jury.

TRE 402 Relevant Evidence Admissibility: Explain the standard to determine general admissibility.

All relevant evidence is admissible except as provided by the Constitution of the United States, the Constitution of Tennessee, these rules, or other rules or laws of general application in the courts of Tennessee. Evidence which is not relevant is not admissible.

TRE 403 Exclusion of Relevant Evidence: When might relevant evidence be excluded from trial?

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

TRE 603 Oath or Affirmation: Explain the requirement set in 603.

Before testifying, every witness shall be required to declare that the witness will testify truthfully by oath or affirmation, administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so.

TRE 409B Payment of Medical and Similar Expenses: Does this rule apply to civil or criminal proceedings?

Both

TRE 411 Liability Insurance: Does this rule apply to civil or criminal cases?

Civil

Explain prejudicial error.

Erroneous ruling/objection - prejudicial effect egregious

Explain TRE 103 in regards to rulings of evidence, specifically effect of erroneous ruling.

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and objection or offer of proof.

TRE 601 General Rule of Competency: Explain the general rule of competency.

Every person is presumed competent to be a witness except as otherwise provided in these rules or by statute.

TRE 401 Relevant Evidence: State the general rule.

Evidence must have probative value to move on.

TRE 608: Evidence of Character and Conduct of Witness: Effect of a Pardon: List two instances in which evidence cannot be admitted under this rule.

Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon based on a finding of the rehabilitation of the person convicted and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon based on a finding of innocence.

TRE 608 Evidence of Character and Conduct of Witness: Time Limit: At what point is evidence of a conviction under this rule no longer admissible?

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release.

TRE 409A Payment of Medical and Similar Expenses: Explain the rule 409 in regards to paying medical and similar expenses. Does it serve as an admission of liability?

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

TRE 609 Impeachment by Evidence of Conviction of Crime: Is evidence of juvenile adjudications generally admissible under this rule?

Evidence of juvenile adjudications is generally not admissible under this rule, unless it is to attack the credibility of an adult.

TRE 404 Character Evidence (Inadmissibility): 404A: Is evidence of other crimes or wrong acts admissible to prove character conformity?

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible for other purposes.

TRE 412 Relevance of a Victim's Sexual Behavior: Specific Instances of Conduct: Evidence of specific conduct is inadmissible unless the evidence meets what four conditions?

Evidence of specific conduct is inadmissible unless the evidence is: 1. required by the TN or US Constitutions 2. used to determine credibility 3. if the sexual behavior was with the accused, on the issue of consent 4. if the sexual behavior was with persons other than the accused it is only admitted under certain conditions

TRE 610 Religious Beliefs: May evidence of religious beliefs of a witness be admissible for reason of showing that the witness's credibility is impaired of enhanced?

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced.

TRE 404 Character Evidence (Inadmissibility): 404A: Describe the exception to the general rule in regards to character of witness.

Evidence of the character of a witness as provided in Rules 607,608, and 609

TRE 602 Lack of Personal Knowledge: Evidence to prove personal knowledge may but is not required to consist of what?

Evidence to prove personal knowledge may, but need not, consist of the witness's own testimony.

TRE 606 Competency of Juror as Witness: What are a few exceptions in which a juror may testify?

Exceptions: a. Extraneous prejudicial information into the jury room b. Improper outside pressure on a juror c. Quotient verdict (gambling)

TRE 613 Prior Statements of Witnesses: 613B Extrinsic Evidence of Prior Inconsistent Statement of Witness: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless what occurs?

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until 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.

TRE 104 Preliminary Questions: Concerning hearings on preliminary matters, other than admissibility of confession, shall matter be conducted out of the hearing of the jury?

Hearings on other preliminary matters shall be so conducted when the interests of justice require or when an accused is a witness and so requests.

TRE 612 Writing Used to Refresh Memory: If a witness uses a writing while testifying to refresh memory, list three things that the adverse party is entitled to do.

If a witness uses a writing while testifying to refresh memory for the purpose of testifying, an adverse party is entitled to 1. inspect it, 2. to cross-examine the witness thereon, 3. and to introduce in evidence those portions which relate to the testimony of the witness.

TRE 612 Writing Used to Refresh Memory: How shall the court handle a situation in which it is claimed that the writing contains matters not related to the subject matter of the testimony?

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 appeal.

TRE 201 Judicial Notice of Fact: Is it appropriate for a judge to become a witness?

If judges become witnesses they are abusing judicial notice - especially in a criminal case; it is up to the state to prove guilt beyond a reasonable doubt

TRE 412 Relevance of Victim's Sexual Behavior: Procedures: In what regards will the evidence being sought to bring in be found admissible?

If the evidence being sought is found to satisfy subdivisions b and c and the probative value of the evidence outweighs its unfair prejudice to the victim, it will be admissible.

TRE 201 Judicial Notice of Fact: 201G: In a civil action, how must the court instruct the jury?

In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed.

TRE 404 Character Evidence (Inadmissibility): Describe the exception to the general rule in regards to character of the alleged victim.

In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged 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 alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

TRE 404 Character Evidence (Inadmissibility): Describe the exception to the general rule in regards to character of accused.

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

TRE 201 Judicial Notice of Fact: 201G: In a criminal action, how must the court instruct the jury?

In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

TRE 405 Methods of Proving Character: In cases in which evidence of character or trait of character of a person is admissible, how may proof be made?

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

Explain objection in regards to TRE 103 effect of erroneous ruling.

In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection if the specific ground was not apparent from the context.

Explain offer of proof in regards to TRE 103 effect of erroneous ruling.

In case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

TRE 613 Prior Statements of Witnesses: 613A Examining Witness Concerning Prior Statement: When examining a witness concerning a prior statement must the statement be shown to the witness at that time? Must it be shown to opposing counsel?

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.

TRE 412 Relevance of Victim's Sexual Behavior: According to 412, define sexual behavior.

In this rule "sexual behavior" means sexual activity of the alleged victim other than the sexual act at issue in the case.

Explain TRE 103 in regards to the hearing of jury portion of the rule.

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

Explain plain error.

Incorrect ruling/no objection - prejudicial effect/ egregious

What is harmless error?

Incorrect ruling/objection does not affect a substantial right

TRE 201 Judicial Notice of Fact: What does sua sponte mean?

It describes an act of authority taken without formal prompting from another party.

TRE 404 Character Evidence (Inadmissibility): In what particular circumstances is character evidence not admissible?

It is not admissible for the purpose of proving action in conformity therewith on a particular occasion.

TRE 201 Judicial Notice of Fact: 201F: When can judicial notice be taken?

It may be taken during anytime of the proceeding.

TRE 104 Preliminary Questions: What is the purpose of preliminary questions?

It takes care of stuff before the trial starts.

Define judicial notice of fact in lieu of evidence.

Judge's utilization of knowledge other than that derived from formal evidentiary proof in the pending case.

Explain inference.

Jury is free to accept or reject. (If a jury finds flight, then they can inference a guilty conscience.)

TRE 611 Mode and Order of Interrogation and Presentation: 611C Leading Questions: Are leading questions permitted on cross-examination?

Leading questions should be permitted on cross-examination.

TRE 611 Mode and Order of Interrogation and Presentation: 611C Leading Questions: Leading questions should not be used on the direct examination of a witness with one exception. What is that exception?

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop testimony. When a party calls a witness determined by the court to be a hostile witness, interrogation may be by leading questions.

TRE 201 Judicial Notice of Fact: Define legislative facts.

Legislative facts are general information

TRE 104 Preliminary Questions: Does this rule limit the right of a party to introduce before the jury evidence relevant to weight or credibility?

No

TRE 410 Inadmissibility of Pleas and Plea Discussions: Is evidence of a plea of nolo contendre admissible against the party who made the plea?

No

TRE 410 Inadmissibility of Pleas and Plea Discussions: Would evidence of any statement made in the course of any proceedings under Rule 11 of the Tennessee Rules of Criminal Procedure regarding either of the foregoing pleas be admissible?

No

TRE 606 Competency of Juror as Witness: 606A: Is a member of the jury allowed to testify before that jury in the trial of the case for which they are sitting?

No

TRE 501 Privileges Recognized only as Provided: There are four privileges that are denied to all citizens unless otherwise provided in statute or the TN and US Constitutions. List these denied privileges.

No person has a privilege to: (1) Refuse to be a witness; (2) Refuse to disclose any matter; (3) Refuse to produce any object or writing; or (4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

TRE 601 General Rule of Competency: Is insanity a valid reason for one not being required to testify?

No, being insane does not mean that you cannot testify?

TRE 202 Judicial Notice of Law: 202C: When making its determination, is the court bound by the rules of evidence?

No, except to those with respect to privileges.

TRE 412 Relevance of Victim's Sexual Behavior: Is evidence of reputation or opinion generally admissible?

No, it is inadmissible unless admitted in accordance with the procedures in subdivision (d) of this Rule and required by the Tennessee or United States Constitution.

TRE 410 Inadmissibility of Pleas and Plea Discussions: Is evidence of a guilty plea that was later withdrawn admissible against the party who made the plea?

No, it is not admissible in civil or criminal proceedings.

Does TRE 105 apply in a situation where the hearing is outside of the jury?

No, limited admissibility is not necessary in this instance.

TRE 104 Preliminary Questions: If the accused testifies upon a preliminary matter, does he become subject to cross examination as to other issues in the case?

No, the accused does not by testifying upon a preliminary matter become subject to cross-examination as to other issues in the case.

TRE 501 Privileges Recognized only as Provided: Spousal Privilege: If another individual is around during the time of the spousal conversation, is the conversation still privileged?

No, the conversation must be private for the information to remain privileged.

TRE 411 Liability Insurance: Can evidence that a person was or was not insured be admissible upon issues of negligence or wrongful conduct?

No. However, this rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

TRE 408 Compromise and Offers to Compromise: Is an offer to compromise admissible to prove liability for or invalidity of a civil claim or criminal charge?

No; Evidence of (1) furnishing or offering to furnish or (2) accepting or offering to accept a valuable consideration in compromising or attempting to compromise a claim, whether in the present litigation or related litigation, which claim was disputed or was reasonably expected to be disputed as to either validity or amount, is not admissible to prove liability for or invalidity of a civil claim or its amount or a criminal charge or its punishment.

TRE 408 Compromise and Offers to Compromise: Does TRE 408 require and exclusion of evidence found during discovery merely because it is presented during the course of compromise negotiations?

No; this rule does not require the exclusion of any evidence actually obtained during discovery merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Explain TRE 103 in regards to the plain error portion of the rule. Does this rule preclude taking notice of plain errors that were not brought to the attention of the court?

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

TRE 601 General Rule of Competency: At what age is a child considered to be competent as a witness?

Now a person of any age is presumed competent and the opposing side must prove that the child is not competent.

TRE 614 Calling and Interrogation of Witness by Court: 614C Objections: When may an objection be made in regards to calling a witness?

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

What is the burden of proof in regards to TRE 104 concerning preliminary evidence?

Preponderance of the Evidence

Explain presumption.

Presumption is taking something for a fact and helps get a case to the jury. (If you prove A, then you are required to accept B.)

Explain the difference between evidence and proof.

Proof is conclusive. It is the end result, while evidence is the building blocks that lead to the proof.

TRE 401 Relevant Evidence: Define relevant evidence.

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

Define repudiation.

Reputation is the community's belief/understanding about client; personal opinion and opinion of the community as a whole - must be a factual basis

TRE 409A Payment of Medical and Similar Expenses: Explain rule 409 in regards to expressions of sympathy or benevolence. Would evidence of such statements be admissible?

That portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault that is part of, or in addition to, any of the above shall be admissible.

TRE 501 Privileges Recognized only as Provided: Spousal Privilege: Explain spousal privilege in regards to criminal suits. When does it not apply?

The communications originated in a confidence that they will not be disclosed, the element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties, the relation must be one which, in the opinion of the community, ought to be sedulously fostered; and the injury to the relation by disclosure of the communications outweighs the benefit gained for the correct disposal of litigation; exceptions when one spouse objects (look to see if the 4 factors above are present) or there is child abuse.

Explain TRE 103 in regards to the record of offer and ruling portion of the rule.

The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling. It shall permit the making of an offer in question and answer form. If an issue arises concerning the privileged nature of a communication, the trial court may require the communication be reduced to writing for in camera review. If ruled not privileged, the communication can be divulged in open court and will become part of the record for appellate review. If ruled privileged, the trial court shall seal the writing reviewed in camera and attach it to the record for appellate review.

TRE 614 Calling and Interrogation of Witness by Court: 614A Calling by Court: Generally a court may not call witnesses. What are a few exceptions?

The court may not call witnesses except in extraordinary circumstances or except as provided for court-appointed experts in Rule 706, and all parties are entitled to cross-examine witnesses thus called.

TRE 611 Mode and Order of Interrogation and Presentation: 611A Control by Court: When shall the court exercise control over the presentation of evidence and conduct?

The court shall exercise appropriate control over the presentation of evidence and conduct of the trial when necessary to avoid abuse by counsel.

TRE 412 Relevance of Victim's Sexual Behavior: Procedures: When a required motion is filed and found by the court to comply with the requirements of this rule, the court shall hold a hearing. Describe the hearing that is to be held.

The court shall hold a hearing out of the hearing of the public and the jury to determine whether the evidence described in the motion is admissible. The hearing shall be on the record, but the record shall be sealed except for the limited purposes of facilitating appellate review, assisting the court or parties in their preparation of the case, and to impeach.

TRE 607 Who may impeach?: Who is permitted to attack the credibility of a witness?

The credibility of a witness may be attacked by any party, including the party calling the witness.

TRE 412 Relevance of Victim's Sexual Behavior: If the evidence is found admissible, to what extent will it be admissible?

The evidence shall be admissible in the proceeding to the extent an order made by the court specifies the evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined.

TRE 104 Preliminary Questions: Who decides the preliminary questions?

The judge

TRE 605 Competency of Judge as Witness: May a judge be a witness in a trial he is presiding over?

The judge or chancellor presiding at the trial may not testify in that trial. No objection need be made in order to preserve the point.

TRE 201 Judicial Notice of Fact: List two things that you can not take judicial notice of.

The location and addresses of places.

TRE 609 Impeachment by Evidence of Conviction of Crime: Pendency of Appeal: Is evidence of the pendency of an appeal admissible?

The pendency of an appeal of a conviction does not render evidence of that conviction inadmissible. Evidence of the pendency of an appeal is admissible.

TRE 412 Relevance of Victim's Sexual Behavior: Procedures: In order to introduce evidence of reputation/opinion or specific instances of conduct what procedures must be followed?

The person must file a written motion to offer such evidence. i. The motion shall be filed no later than ten days before the date on which the trial is scheduled to begin, except the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which the evidence relates has newly arisen in the case. ii. The motion shall be served on all parties. Service on the victim shall be made through the prosecuting attorney's office. iii. The motion shall be accompanied by a written offer of proof, describing the specific evidence and the purpose for introducing it.

Explain TRE 102 in regards to purpose and construction.

The rule states: These rules shall be construed to secure the just, speedy, and inexpensive determination of proceedings.

Explain TRE 101 in regards to scope.

The rule states: These rules shall govern evidence rulings in all trial courts of Tennessee except as otherwise provided by statute or rules of the Supreme Court of Tennessee.

TRE 412 Relevance of Victim's Sexual Behavior: Procedures: During this hearing, the accused may testify. Can his testimony be used against him in the preliminary hearing, trial, or other proceedings?

The testimony during this hearing may not be used against the accused in the preliminary hearing, trial, or other proceeding, except that such testimony may be admissible to impeach the credibility of the defendant.

Where do the TN Rules of Evidence apply?

They apply to trial court, especially taken place in front of a jury, and bench trials.

According to TRE 104 when are preliminary questions made?

They are made when the jury is out.

TRE 608 Evidence of Character and Conduct of Witness: Specific Instances of Conduct: May extrinsic evidence be used to attack a witness's truthfulness? Are there any exceptions?

They may, however, if probative of truthfulness or untruthfulness and under the following conditions, be inquired into on cross-examination of the witness concerning the witness's character for truthfulness or untruthfulness or concerning the character for truthfulness or untruthfulness of another witness as to which the character witness being cross-examined has testified.

TRE 611 Mode and Order of Interrogation and Presentation: 611C Leading Questions: Are leading questions permitted with a hostile witness?

When a party calls a witness determined by the court to be a hostile witness, interrogation may be by leading questions.

TRE 611 Mode and Order of Interrogation and Presentation: 611D Calling Adverse Party: When a party in a civil action calls an adverse party, may interrogation on direct examination consist of leading questions?

When a party in a civil action calls an adverse party (or an officer, director, or managing agent of a public or private corporation or of a partnership, association, or individual proprietorship which is an adverse party), interrogation on direct examination may be by leading questions.

Explain TRE 106 in regards to writing or recorded statements - the rule of completeness.

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Explain TRE 105 in regards to limited admissibility.

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.

TRE 104 Preliminary Questions: Explain relevance conditioned on fact.

When the relevance of evidence depends on the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition. In the court's discretion, evidence may be admitted subject to subsequent introduction of evidence sufficient to support a finding of the fulfillment of the condition.

TRE 407 Subsequent Remedial Measures: Can measures that have been taken after an event, which should have been taken previously, be used as evidence to prove strict liability, negligence, or culpable conduct?

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove strict liability, negligence, or culpable conduct in connection with the event.

TRE 412 Relevance of Victim's Sexual Behavior: Does the rape shield law still apply even when the victim is deceased?

Yes

TRE 606 Competency of Juror as Witness: May a lawyer interview a juror after the trial is over?

Yes

TRE 614 Calling and Interrogation of Witness by Court: 614B Interrogation by Court: May the court interrogate witnesses?

Yes

TRE 410: Would evidence of any statement made in the course of plea discussions with an attorney for the prosecuting authority (which do not result in a plea of guilty or which result in a plea of guilty later withdrawn) be admissible?

Yes, such a statement is admissible, however, in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

TRE 412 Relevance of Victim's Sexual Behavior: Procedures: During this hearing, may the victim attend? May the parties call witnesses?

Yes, the victim may attend. Parties may call her as a witness along with others.

TRE 406 Habit/Routine Practice: Is evidence of the habit of a person relevant to prove the conduct of that person was in conformity with the habit?

Yes, this is also the case for animals (in TN law) and organizations. Routine practice is also relevant.

What is an erroneous error?

evidence that should have been allowed in or should not have been allowed in

TRE 202 Judicial Notice of Law: 202C: Should all determinations of law be made by the court or the jury?

the court

TRE 201 Judicial Notice of Fact: Explain rule 201A in regards to the scope of the rule.

this rule governs only judicial notice of adjudicative facts.