All Flashcards
How to preserve a claim of error
FRE 103 must (1) timely (2) object or move to strike and (3) state the ground unless “apparent form the evidence”
Structure of trial
Jury selection
Opening statements
Evidence - Case in chief, defense rebuttal
Closing
Jury instructions
Offer in evidence vs offer in the record
Evidence is ALL evidence, the record is what the jury is allowed to see (?) verify
Is the evidence relevant
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
When MUST a court get rid of relevant evidence (or balance differently)?
According to FRE 402 - When superceded by the FRE, the SC, Federal Statute, or the Constitution
Is a wife saying “show me the body” relevant?
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
Are the Abel case facts relevant?
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
When may a court get rid of relevant evidence?
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
What will a court do if the admit prejudicial evidence
Give a jury instruction
How do stipulations typically work and what’s the exception?
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
Are US v James facts admissible? The brags of violence of the dad against the self defense claim of the aiding and abetting mother
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.)
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?
Yes - makes his testomony less probable, that is material to the jury
Is a violin case filled w/ money (but not a tommy gun) relevant when the officer thought there was a tommy gun in it?
Yes - makes it less probable that he handled the case in a manner that officer says
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?
(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)
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?
Relevant - remember 403 is rigged to admit
How it character evidence treated?
Cannot use character evidence to prove that on a particular occasion the person acted in accordance with this character or trait
Was Tyco case video a 403 issue?
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
What are the exceptions to the prohibition on character evidence?
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
How may character evidence be proven?
(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
Can you bring in specific instances of conduct?
Not to prove that character (i.e. propensity)
What non-propensity purpose MAY the judge bring in specific instances of conduct?
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
What FRE exceptions ARE admissibe character evidence
1) Character evidence of past sexual misconduct - OK
2) Character evidence of past molestation - OK
What is the big FRE limitation on specific instances of conduct
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
Is shouting in the courtroom “remember his face” okay to bring to show character for violence?
Cannot bring specific instances (to prove violent character) — could bring if peacefulness was brought as a character train on CROSS against this person
Would US v James (mom self defense against violent brags) be admissible as showing character for violence?
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)
What if a fact (usually whether something was criminal) is unknown?
Use 104(b) preponderance std - thus past criminal acquittal can be brought because lower SoR
When is habit evidence allowed
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
What are the 403 dangers
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)
When is character evidence allowed? and what are the consequences?
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)
In what context can you bring in character evidence in a CIVIL TRIAL
None that I can think of… NVM child molestation or sexual assault allowed
When character evidence (for propensity) is allowed, how is it brought? and what are the consequences?
Reputation evidence or opinion evidence ONLY. But on cross specific instances can be brought
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
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
Mnemonic device for the legitimate nonpropensity uses and examples:
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”
Analysis if a party’s sexual behavior wants to be put into evidence
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
What is required of all witnesses?
Personal knowledge
What if a witnesses perception, memory, or narrative accuracy is put at issue?
I think that a 104(b) would have to happen
What are the freely admissible types of witness impeachment that are allowed (two categories)
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)
How to bring character evidence for truthfulness/untruthfulness - and what can happen on cross
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)
When can you bring in past inconsistent statements?
Yes but the witness must be given a chance to explain/deny and adverse party must be able to cross-examine
Analysis for bringing in past crime
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)
Definition of hearsay
(a) statement
(b) made outside of this proceeding
(c) used to prove the truth of the matter asserted
What are the hearsay exclusions
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
How does coconspiratory hearsay interact with 104?
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)
What are the hearsay exceptions for an available witness
- Present sense impression (most common)
- Excited utterance
- 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
What are the hearsay exceptions for an unavailable witness (full analysis)
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
What are the elements of spousal testimonial privlege
Only in criminal case where one spouse is defendant
Must be married at the time of testimony
MUST BE invoked by the witness-spouse
What is the marital confidences privilege
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
Elements of lay witness testimony:
Lay witnesses can testify about
i. Rationally based on witness’s perception
ii. Helpful to clearly understand the witness testimony
iii. Not expert testimony
Elements of expert testimony:
- Scientific, technical, specialized knowledge will help understand/determine a fact
- Based on sufficient facts or data
- Testimony is the product of reliable principles and methods
- Reflects reliable application of these principles and methods to these facts of this case
What are the Daubert factors:
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)
When can you ask leading questions?
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)
When can you bring extrinsic evidence of a witness’s past inconsistent statement
When they have an opportunity to defend
Can you bring in specific instances of D’s untruthful conduct on cross when it has not been attacked?
YES - can do this on cross regardless of whether attacked
