All

Question 1

How to preserve a claim of error

Answer 1

FRE 103 must (1) timely (2) object or move to strike and (3) state the ground unless “apparent form the evidence”

Question 2

Structure of trial

Answer 2

Jury selection
Opening statements
Evidence - Case in chief, defense rebuttal
Closing
Jury instructions

Question 3

Offer in evidence vs offer in the record

Answer 3

Evidence is ALL evidence, the record is what the jury is allowed to see (?) verify

Question 4

Is the evidence relevant

Answer 4

FRE 401 - if it (1) has “any tendancy “ to make a fact more of less probable (“probativeness”) AND (2) the fact is of consequence (“material”)
My note: Always identify the FACT being proven

Question 5

When MUST a court get rid of relevant evidence (or balance differently)?

Answer 5

According to FRE 402 - When superceded by the FRE, the SC, Federal Statute, or the Constitution

Question 6

Is a wife saying “show me the body” relevant?

Answer 6

YES - the fact is that she knew her husband had dispose of the body and (1) is has “any tendency” to make that more probable and (2) it is of consequence to a murder trial

Question 7

Are the Abel case facts relevant?

Answer 7

YES - the fact that a witness was “ a member of a secret type of prison organization with a creed requiring members to lie” makes the it more likely that the witness is lying that makes the testimony of the witness less credible

Question 8

When may a court get rid of relevant evidence?

Answer 8

FRE 403 – the the “probative value substantially outweighs the DANGER of: (1) unfair prejudice, confusing the issues, misleading the jury, undue delay.
Note: MAY is important - not mandatory - reviewed for abuse of discretion

Question 9

What will a court do if the admit prejudicial evidence

Answer 9

Give a jury instruction

Question 10

How do stipulations typically work and what’s the exception?

Answer 10

Prosecutors are not required to accept stipulations because they are allowed to try the case as the desire UNLESS it is an “Old Chief” situation –> stipulate to the past crime (thus it’s as an element of the offense) when the crime is substantially similar to prevent jury bias

Note: This would have rebalanced the FRE403

Question 11

Are US v James facts admissible? The brags of violence of the dad against the self defense claim of the aiding and abetting mother

Answer 11

Yes - made James (mother) a more credible witness so relevant
Dissent - thought it was prejudicial (ball point sticking out of someone’s neck, e.g.)

Question 12

Are US v Knapp claims admissible? Someone claims they acted in self defense because “they heard the [now dead] officer killed some old dude from people”? Is the “old dude”’s death admissible?

Answer 12

Yes - makes his testomony less probable, that is material to the jury

Question 13

Is a violin case filled w/ money (but not a tommy gun) relevant when the officer thought there was a tommy gun in it?

Answer 13

Yes - makes it less probable that he handled the case in a manner that officer says

Question 14

State of Bocharski photos admissible?
(1) gross pics of marbled skin?
(2) closs up of hands?
(3) cleaned photos of the wounds?
(4) views of skull with rod going through it not brought up in case-in-chief?

Answer 14

(1) yes shows timing ALSO that someone actually died
(2) yes shows no defensive wounds
(3) shows clear views of wounds
(4) inadmissible (but did not prejudice so affirm)

Question 15

Are photos of guns to show that the gun is clear when there was a dispute about whether the gun acted as a machine gun b/c it jammed was an issue?

Answer 15

Relevant - remember 403 is rigged to admit

Question 16

How it character evidence treated?

Answer 16

Cannot use character evidence to prove that on a particular occasion the person acted in accordance with this character or trait

Question 17

Was Tyco case video a 403 issue?

Answer 17

Judge got rid of some of evidence (erotic esque dancers), someone mooning the camera, but did keep most of the video of lavish wife’s birthday party

Question 18

What are the exceptions to the prohibition on character evidence?

Answer 18

IN CRIMINAL CASE (<– he will trick you with this):
(1) D can bring in (relevant) character evidence - but Pros. can rebut
(2) D can bring in (relevant) character evidence of victim’s character - but Pros. can rebut OR bring in character evidence of the D’s SAME trait
(3) In homicide case, can bring in evidence of peacefulness of victim IN RESPONSE TO D saying that victim was first aggressor

Question 19

How may character evidence be proven?

Answer 19

(1) By opinion evidence or (2) reputation evidence –> BUT on cross can bring it SPECIFIC INSTANCES of person’s conduct

Or - (3) can use instances to prove character ONLY when it is an essential element of the crime (rare – look for defamation)
Note: Again criminal cases only

Question 20

Can you bring in specific instances of conduct?

Answer 20

Not to prove that character (i.e. propensity)

Question 21

What non-propensity purpose MAY the judge bring in specific instances of conduct?

Answer 21

Judge MAY allow specific instances for (non-exhaustive):
1) Motive
Peltier case - shot a FBI agents brought in past warrant/crime
2) Opportunity
3) Intent
4) Preparation
5) Plan
6) Knowledge/Skills
Hacker case - YES; know how to sell drugs, probably not; knowledge of negligent employee in drunk train case OK
7) Identity
Bombmaker’s MO okay
8) Absence of mistake/lack of accident
Cleaning shotgun killed wife — ONLY okay if mistake was raised as the defense

Question 22

What FRE exceptions ARE admissibe character evidence

Answer 22

1) Character evidence of past sexual misconduct - OK
2) Character evidence of past molestation - OK

Question 23

What is the big FRE limitation on specific instances of conduct

Answer 23

Past sexual behavior or predisposition evidence cannot be brought in EXCEPTIONS:
…in CRIMINAL LAW:
(1) to say “I was not the perp here”
(2) to say it was consentual here are the other times

…IN CIVIL LAW
if probative value substantially outweighs the danger of harm to any victim or any party—so rigged to not admit opposite of 403

Question 24

Is shouting in the courtroom “remember his face” okay to bring to show character for violence?

Answer 24

Cannot bring specific instances (to prove violent character) — could bring if peacefulness was brought as a character train on CROSS against this person

Question 25

Would US v James (mom self defense against violent brags) be admissible as showing character for violence?

Answer 25

No – only on cross if “peacefulness” brought up – BUT remember James facts admissible because of its affect on state of mind (not brought to prove violent character)

Question 26

What if a fact (usually whether something was criminal) is unknown?

Answer 26

Use 104(b) preponderance std - thus past criminal acquittal can be brought because lower SoR

Question 27

When is habit evidence allowed

Answer 27

When it is a habit or routine organizational practice - does not need eyewitness or corroboration, but needs to be “invariable” –> look for ALWAYS of INVARIABLY language on exam; can be, e.g., every leap year

Question 28

What are the 403 dangers

Answer 28

ii. Dangers:
1. Unfair prejudice
a. different that “fair prejudice”
2. Confusing the issues
3. misleading the jury
4. undue delay
5. wasting time
6. needlessly presenting cumulative evidence (4,5,6 all the same)

Question 29

When is character evidence allowed? and what are the consequences?

Answer 29

When in a CRIMINAL case teh D can self-bolster-but prosecution can rebut

When in a CRIMINAL case the D can attack the V BUT can bring in rebuttal or D’s same character evidence

In homicide the prosecutor can bring in peacefulness evidence to REBUT evidence that the (deceased) victim was the first aggressor (so first must be aggressor)

Question 30

In what context can you bring in character evidence in a CIVIL TRIAL

Answer 30

None that I can think of… NVM child molestation or sexual assault allowed

Question 31

When character evidence (for propensity) is allowed, how is it brought? and what are the consequences?

Answer 31

Reputation evidence or opinion evidence ONLY. But on cross specific instances can be brought

Question 32

In what situations can you bring in specific instances of conduct (to prove that they acted the same way this time) - i.e. as propensity evidence

Answer 32

Note for 1-4 you are using these to impeach! Not for credibility. Pucillos addition.
1) When it is an element of the charge (e.g. lying for liable)
2) When D’s character has been put at issue by D and then you can cross w specific instances
3) When V’s character has been put at issue by D and then you can cross w specific instances
4) When V is dead in homicide and prosecutor tries to bring evidence of V’s peacefulness —NO!
5) When it is a habit
6) when it’s sexual assault or molestation behavior

Question 33

Mnemonic device for the legitimate nonpropensity uses and examples:

Answer 33

MA POP & I ILK

motive - Peltier case where warrant was out for arrest

absence of mistake - must claim mistake first (cleaning shotgun)

preparation

opportunity

plan

intent

identify - bombmaker case

lack of accident - see above

knowledge - I split into knowledge/skill
hacker (skill) vs drug dealer (not really skill) vs negligent rail company (knowledge)

NOTE: this is nonexhaustive - think of the scuttling case where allowed for “narrative coherence”

Question 34

Analysis if a party’s sexual behavior wants to be put into evidence

Answer 34

Not allowed for: proving that they engaged in sexual acts here OR proving that they have a sexual predisposition UNLESS

For CIVIL -
(1) if probative value substantially outweighs the danger to victim OR prejudice to a party
(2) reputation allowed if party put it into controversy (think liable)

For CRIMINAL -
(1) to prove that someone other than D was the source
(2) to prove that these people had sex in the past
(3) constutional rights would be violated - unnecc

Question 35

What is required of all witnesses?

Answer 35

Personal knowledge

Question 36

What if a witnesses perception, memory, or narrative accuracy is put at issue?

Answer 36

I think that a 104(b) would have to happen

Question 37

What are the freely admissible types of witness impeachment that are allowed (two categories)

Answer 37

Nonmalicious types=
Perception
Memory
Narrative accuracy

Malicious types =
Bias - motive to fabricate

Note that witness’s character for untruthfulness is freely admissible as well (truthfulness is subject to limitation only)

Question 38

How to bring character evidence for truthfulness/untruthfulness - and what can happen on cross

Answer 38

We don’t bolster so . . .
(1) character for untruthfulness-bring it on
(2) character for truthfulness-only to rebut if (1) occurs

On cross can ask about specific acts for either (but you you have accept their answer)

Question 39

When can you bring in past inconsistent statements?

Answer 39

Yes but the witness must be given a chance to explain/deny and adverse party must be able to cross-examine

Question 40

Analysis for bringing in past crime

Answer 40

Past crimes can be brought in to show character for untruthfulness if:
1) conviction (if not jailed) or release from jail is NOT >10 years old OR subject to substantial weighing (if probative substantial over danger, can admit)

• AND -
  2a)
  its a crimen falsi (no strings attached)

-OR-

2b)
the punishability is >1year -AND- either
i)its a civil case (and the witness is anyone)
ii) its a criminal case (but the witness isn’t D)
iii) its a criminal case and the witness IS D, but subject to insubstantial weighing (if probative greater than danger, can admit)

Question 41

Definition of hearsay

Answer 41

(a) statement
(b) made outside of this proceeding
(c) used to prove the truth of the matter asserted

Question 42

What are the hearsay exclusions

Answer 42

General exceptions: action statements - legally significant, putting people on notice, violations or rights (i.e. threats)

ALSO:
Declarant-witnesses prior…
(1)
…consistent testimony IF
a. to rebut express or implied charge that there was undue influence (note the timing)
b. b. to rehabilitate credibility (under 608) NOTE: This includes bad memory, perception, narrative accuracy, attacking for truthfulness, prior inconsistent statements (i.e. everything but BIAS)

(2)
…inconsistent testimony IF
a. given under perjury at a proceeding or DEPOSITION

(3) identifying previously perceived statements

ALSOALSO:
1. OPPOSING PARTY’s statements
2. adopted by conduct
3. via agent/authorized person
4. coconspirator

Question 43

How does coconspiratory hearsay interact with 104?

Answer 43

Court under 104(a) decides if statement that is clearly relevant is admissible statement by preponderance (answered question whether 2 parties are coconspirators pertrial to allow/disallowed the hearsay)

Question 44

What are the hearsay exceptions for an available witness

Answer 44

1. Present sense impression (most common)
2. Excited utterance
3. Then-existing mental/emotional/physical condition - USED FOR INTENT - remember Hillman isn’t the law can only bring in intention statements that in no way use memory

Question 45

What are the hearsay exceptions for an unavailable witness (full analysis)

Answer 45

Are they unavailable?
1. Ways to be unavailable
a. Privileged
b. Declarant is in court but held in contempt (Note-not lying on stand)
c. Does not remember
d. Died/incapacitated
e. Absent despite reasonable efforts to procure witness

EXCEPTIONS
(1) Former testimony
i. Testimony given at a trial-like proceedings AND
ii. now offered against a party and
Iii. the cross-examiner had an opportunity and similar motive to ask similar questions

b. Dying declaration exception in HOMICIDE OR ANY CIVIL CASE - must be belief of imminent death as the cause or circumstances

c. Statement against party who caused the unavailability and did so intending the result

Question 46

What are the elements of spousal testimonial privlege

Answer 46

Only in criminal case where one spouse is defendant
Must be married at the time of testimony
MUST BE invoked by the witness-spouse

Question 47

What is the marital confidences privilege

Answer 47

Applies in both criminal and civil cases
NEITHER spouse needs to be a party
ONLY to confidential communs DURING THE MARRIAGE
Can be invoked by EITHER spouse
Need not be married at the time of testimony
NOTE ON EXAM: look for “they thought they were talking privately” type language – also strong presumption of confidence

Question 48

Elements of lay witness testimony:

Answer 48

Lay witnesses can testify about
i. Rationally based on witness’s perception
ii. Helpful to clearly understand the witness testimony
iii. Not expert testimony

Question 49

Elements of expert testimony:

Answer 49

1. Scientific, technical, specialized knowledge will help understand/determine a fact
2. Based on sufficient facts or data
3. Testimony is the product of reliable principles and methods
4. Reflects reliable application of these principles and methods to these facts of this case

Question 50

What are the Daubert factors:

Answer 50

i. Has this been tested (might be enough)
ii. Error rate
iii. Peer review of publication (stringest process, not made for this hearing)
iv. Maintenance of standards
v. Mainstream acceptance (i.e. Frye)

Question 51

When can you ask leading questions?

Answer 51

Court “should” allow when the witness is adverse— so 1) on cross or 2) you’ve called an “hostile witness” — so biased or adverse or a party whose recollection has been exhausted (child, incompetent, hours on stand etc)

Question 52

When can you bring extrinsic evidence of a witness’s past inconsistent statement

Answer 52

When they have an opportunity to defend

Question 53

Can you bring in specific instances of D’s untruthful conduct on cross when it has not been attacked?

Answer 53

YES - can do this on cross regardless of whether attacked