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.)
Who is the holder of the “identity of the informer privilege”?
The government
Executive Privilege
Court-created privilege for the president. Courts generally decide whether the privilege applies, but the President has an absolute privilege to refuse to disclose matters of national security.
Transactional Immunity
Cannot be prosecuted for the offense to which the statement refers
Bars assertion of the fifth amendment privilege against self-incrimination
Derivative Use Immunity
Person’s statement + evidence obtained as a result of the statement cannot be used against the person. Witness can still be prosecuted with other evidence.
Bars assertion of the fifth amendment privilege against self-incrimination
Use Immunity
Person’s statement cannot be used against them. Witness can still be prosecuted, including with any evidence obtained as a result of the statement.
Permits assertion of the fifth amendment privilege against self-incrimination
Dead Man’s Statute
If a state has it:
Disables/disqualifies any witness from testifying about any transaction involving the decedent
Witness Oath/Affirmation Rule
A witness must declare to testify truthfully by oath or affirmation “in a form calculated to awaken his conscience.”
If, for religious reasons, a witness refuses to take an oath or affirmation, the judge will not allow the witness to testify
For a layperson to testify, they must have . . .
personal knowledge.
Rules re Jurors as Witnesses
A juror cannot testify as a witness before the jury of which they’re a member.
A juror also cannot testify as to the manner in which the jruy reached its decision. This includes any statements made during deliberations, thought processes by which the jurors reached their decision, or the votes taken to reach the verdict.
Exception: If the jury or juror used racial animus as a rationale for their decision
A juror as a witness is permitted to testify about . . .
(1) Extraneous prejudicial information improperly brought to the juror’s attention
(2) If a juror made an unauthorized visit to the scene or conducted an out-of-court experiment re evidence presented at trial
(3) If a juror accepted a bribe or was threatened with harm
When is impeachment evidence relevant?
It’s ALWAYS relevant, even if it goes beyodn the scope of direct examination.
Methods of Impeachement
3 I’s 4 C’s
(1) Interest, motive or bias
(2) Incapacity to observe, recall, or relate
(3) Prior inconsistent statement
(4) Character evidence for truthfulness by reputation or opinion
(4) Character evidence for truthfulness by prior bad acts
(5) Prior Conviction of a Crime
(6) Contradiction by other evidence or witnesses
Is extrinsic evidence permissible to prove interest, motive or bias?
Yes
Is extrinsic evidence permissible to prove incapacity to observe, recall, or relate?
Yes
When is extrinsic evidence permissible to prove prior inconsistent statement?
Only if the witness is given a chance to explain/deny the PINS at some point AND the adverse party is given an opportunity to examine the witness about the PINS
OR if justice so requires it.
A court could choose to exclude the extrinsic evidence if (1) witness admits to making the PINS or (2) it involves a collateral matter.
Prior Inconsistent Statement (PINS)
PINS is a prior statement that is inconsistent with the in-court testimony. The inconsistency could be an express contradiction, omission, or feigned lack of memory.
Cannot be used for any purpose other than to impeach.
Prior 10 Year Rule
Convictions greater than 10 years old are inadmissible to impeach unless
(1) the probative value substantially outweighs the prejudicial effect; and
(2) the proponent gives notice to the opponent.
*must substantially outweigh any prejudicial effect.
10 years is measured by (1) date of conviction if D received no jail time or (2) the date of release from confinement –> usually whichever is later.
What convictions count under the prior conviction of crime method of impeachment?
Juvenile adjudications? Conviction under appeal? Pardoned convictions? Arrest records, Indictments, and other charges? Guilty pleas?
Juvenile adjudications against the accused are inadmissible. But use is discretionary for any other witness.
Conviction under appeal is admissible. (so is also evidence about the appeal)
If D has been pardoned from the conviction –> inadmissible.
Arrest records, indictments, and other charges are not inadmissible.
Guilty pleas are admissible.
Types of crime admissible for impeachment that may be admissible.
Felonies and crimes involving dishonesty.
When are Felony Crimes for impeachment admitted?
For impeachment of the accused as a witness, felony conviction is admitted if the prosecution shows that the probative value outweighs the prejudicial effect.
For impeachment of a witness other than D, felony conviction is subject to the Rule 403 balancing test - it’s excluded if the probative value is substantially outweighed by unfair prejudice. (lower bar than above).
Crimes involving dishonesty for impeachment
If the conviction is 10 years or less, disclosure is mandatory.
Is evidence of a witness’s religious belief admissible to rehabilitate or impeach a witness?
No
Methods of rehabilitation
(1) explain or deny
(2) provide prior consistent statement
(3) character evidence for truthfulness by reputation or opinion
On direct examination, leading questions are now allowed except with . . .
(1) Hostile witnesses
(2) Adverse witnesses
(3) Child witnesses
(4) to establish preliminary background information
(5) to refresh witness’s recollection
Leading questions are also not allowed when . . .
the witness and examiner are on the same side.
Does a writing used to refresh a witness’s recollection need to be authenticated?
No - but the proponent cannot introduce the writing into evidence.
What rights does an opponent have with any evidence used to refresh a witness’s recollection?
To inspect the evidence;
Cross-examine the evidence;
Show the writing to the jury for comparison with the witness’s testimony; and
To introduce relevant portions into evidence
What happens when privileged material is used to refresh the witness?
A waiver has occurred. Adverse party has the right to inspect the material.
Who cannot be excluded from the courtroom?
A party or party’s representative
A person whose presence is essential
Persons exempted by statute (i.e., victim of a crime)
A non-expert can offer their expert testimony if:
(1) it is based on the witness’s personal knowledge
(2) helpful to a clear understanding or determination of a fact in issue
The proper scope of non-expert opinion includes
VEMPS
Value of one's own property Emotional state of others Measurements Physical states Sensory descriptions
Analysis for Expert Testimony
SPOT
Proper SUBJECT matter
Proper PERSON
Proper OPINION
Proper TESTIMONY
Expert Testimony - Proper Subject Matter
The subject matter must require “scientific, technical, or other specialized knowledge” that “will help the trier of fact to understand the evidence or to determine a fact in issue.”
Expert Testimony - Proper Subject Matter - Daubert Standard
Science/Expertise behind the opinion must be reliable and any tests/methods used must have been reliably applied.
TAPES
Has the theory been tested? If so, how extensive?
General acceptance in the relevant community?
Peer review regarding the scientific theory?
Degree or rate of error?
Standards?
Frye test is minority rule - only requiring general acceptance of the test in the scientific community.
Expert Testimony - Proper Person
Expert is qualified - has specialized knowledge, skill, experience, training, or education specific to the subject matter.
Proper Bases for Expert Opinion
Personal knowledge
Facts presented to the expert at trial
Facts presented to the expert outside of court
If relying on facts presented outside of court, the facts must be of the type that are “reasonably relied upon” by other experts in that particular field (Reasonable reliance rule).
NOTE: underlying data that is inadmissible at trial cannot be revealed unless the proponent shows that the probative value substantially outweighs its prejudicial effect.
Expert Testimony - Proper Testimony
Expressed to a reasonable degree of certainty.
What if a court appoints their expert witness?
Ok - can be done by the court on their own or at request of a party
Appointed expert witness must advise the parties of their findings and must submit to a deposition request from either party.
An appointed expert could be called to testify and be cross-examined by any party.
