Evidence Flashcards
The FRE does not apply to . . . (9 exceptions)
Grand jury proceedings; Preliminary hearings; Warrant petitions; Bail proceedings: Preliminary Questions of fact re admissibility; Summary contempt; Sentencing; Probation violation hearing; Forfeiture proceedings
What are the preliminary questions that a court decides?
Whether the (1) witness is qualified;
(2) privilege exists;
(3) evidence is admissible
There must be a hearing that a jury cannot hear if:
The hearing involves the admissibility of a confession;
D is requesting to be a witness in a criminal case;
Justice requires it.
What does the doctrine of completeness apply to?
Writing or recording. NOT conversations.
What is an adjudicative fact?
Facts that concern the parties’ dispute and are helpful in determining the proper outcome of the case
Is judicial notice of legislative facts permitted?
No
Legislative facts are those used by courts to interpret statutes and make policy decisions
When can judicial notice be raised?
At any time, even on appeal for the first time
Civil jury - Judicial notice?
Must accept judicially noticed facts as conclusive.
Criminal jury - Judicial notice?
MAY but is not required to accept the judicially noticed fact as conclusive
Irrebuttable presumptions in criminal cases
Not permissible because the government bears the burden of proof
What is relevant evidence?
Evidence that has any tendency to make a fact more or less probable than it would be without the evidence AND the fact is of consequence in determining the action.
Rule 403 Balancing Test
The court can exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following:
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay
- wasting time
- needlessly presenting cumulative evidence
–> Rule 403 will only exclude evidence that is significantly more prejudicial than probative, setting a low bar for admissibility.
A decision by the accused to testify on a preliminary issue . . .
does not waive his 5th Amendment privilege against self-incrimination as to other issues of the case. Cross-examination is limited to that area of inquiry.
Without request, courts must take judicial notice of . . .
federal and state law & indisputable facts and scientific propositions
Preponderance of the Evidence
Enough evidence to tip the balance in favor of the fact
Clear and convincing evidence
Evidence to support a finding that he fact is significantly more likely to be true than to not be true (“high probability of truth”)
Beyond a reasonable doubt
Any doubt that exists would not affect a reasonable person’s belief that the fact is true
Rape Shield
In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show the alleged victim’s sexual behavior, sexual predisposition, and other sexual history is excluded.
Rape Shield - Balancing Test
In a civil case, the evidence is admissible only if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
(disfavors admission)
Under common law, except as otherwise provided by the Constitution, federal statute, or FRE, 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
When does total waiver of attorney-client privilege occur?
(1) If the waiver was intentional and (2) both the disclosed and undisclosed information concern the same subject matter
What needs to happen for a waiver of attorney-client privilege to not be found?
No waiver is found if:
(1) the client did not intend to waive the privilege
(2) the client took reasonable steps to protect the information; and
(3) the client took timely steps to remedy the disclosure
What is the joint client exception?
Exception to attorney-client privilege.
When 2 clients hired the same attorney and later find themselves in litigation against each other. The earlier communications before the litigation are not privileged, unless there’s an agreement stating otherwise.
And, even if one client waives the privilege, the other client can claim it.
What is an exception to the work product doctrine?
If the party seeking the work product can show a “substantial hardship” and that there is no other way of obtaining the evidence, then the work product is discoverable.
But it’s still up to the judge to determine as a preliminary question.
What does the doctor-patient and/or psychotherapist/patient privilege not apply to?
(1) Statements made re commitment proceedings
(2) Statements dealing with court-ordered examinations
(3) When the medical condition is a part of the claim (i.e., malpractice suits, personal injury actions, etc.)
