Evidence Flashcards
General Provisions –> Federal Rules of Evidence
Before 1975 (when FRE adopted) CL rules governed; FRE generally more liberal than CL rules and have presumption of admissibility.
General Provisions –> FRE Scope
FRE DOES APPLY –> all civil and criminal trials and proceedings in federal cts, including bankruptcy and admiralty cases.
FRE DOES NOT APPLY:
- grand jury proceedings
- preliminary hearings
- applying for and obtaining a warrant
- bail proceedings
- preliminary questions of fact regarding admissibility
- sentencing
- probation violation hearings
- forfeiture proceedings; and
- summary contempt
General Provisions –> Rulings on Evidence: Rule
Rule 103 - A party may claim error in a ruling to admit/exclude evidence only if the error affects a substantial right of the party, and if the ruling ADMITS evidence, a party, on the record: (1) timely objects or moves to strike; and
(2) states the specific ground (specific objection) unless it was apparent from context.
Continuing Objection Unnecessary
—-> Once the ct rules definitively on the record (either before or at trial) a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
Waiver of Objection
- —> To the extent practicable, the ct must conduct a jury trial so that inadmissible evidence is not admitted or even suggested to the jury by any means
- —> However, if no objection is made even to objectionable evidence, the objection is generally waived and evidence admitted
General Provisions –> Rulings on Evidence: Harmless Error Standard
An error is harmless if the jury would have reached the same verdict even if the error had not occurred.
- —> No substantial rights are affected.
- —> If the appellae ct finds error, that it was harmless, but that it was harmless, no relief granted
General Provisions –> Rulings on Evidence: Prejudicial Error
When a substantial right is affected (ie outcome of trial) then prejudicial error has occurred.
General Provisions –> Rulings on Evidence: Proffer
If the ruling excludes evidence, a party informs the ct of the substance of the evidence by an offer of proof, unless the substance was apparent from the context.
- —> In an offer of proof, the party may state what the excluded evidence would be orally or in writing
- —> The ct may direct that an offer of proof be made in question-and-answer form outside the presence of the jury.
General Provisions –> Preliminary Questions (Rule 104)
The ct MUST decide any preliminary question about whether:
(1) a witness is qualified;
(2) a privilege exists; or
(3) evidence is admissible
In so deciding, the ct is not bound by evidence rules, except those on privilege.
—-> Admissibility of evidence always a question of law for judge, not jury.
The ct MUST conduct any hearing on a prelim question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a confession;
(2) a D in a criminal case is a witness and so requests; or
(3) justice so reqs
General Provisions –> Limited Admissibility (Rule 105) - Rule
The ct may admit evidence against a party or for a specific purpose - but not against another party or for another purpose.
Limiting Jury Instruction
—-> The ct, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
General Provisions –> Remainder of or Related Writings or Recorded Statements (Rule 106) - Rule
Rule of Completeness
- —> Where a party introduces party of a writing or recording, the adverse party may IMMEDIATELY introduce any other writing or part of the writing which, IN FAIRNESS, ought to be considered in conjunction w/ it.
- —> The purpose is to avoid misleading the jury and prevent statements from being taken out of context as the repair work, left to a later time, would be prejudicial on the jury’s understanding of the issue.
CAVEAT
—-> Rule 106 not applicable to conversations (only to writings/recordings)
Judicial Notice –> In General - Definition/Rule
Judicial notice is a substitute for proof where: the ct accepts certain adjudicative facts as true w/o reqing formal presentation of evidence.
—-> Judicial notice is MANDATORY if req’d by a party and if necessary information is supplied.
Adjudicative facts
- —> Those which concern the parties to some dispute and are helpful in determining the proper outcome of the case
- —> Can cover a broad area including science, history, govt, and ct records, geography, and calendars.
- —> Generally, once fact is judicially noticed, no contradictory evidence is permitted on that issue.
Judicial Notice –> In General - Two Kinds of Judicial Notice
Two Kinds of Judicial Notice
(1) Facts Commonly Known in the Territory
- —> Facts commonly known w/in the territory of the ct (ie everyone knows that!)
(2) Easily Verifiable Facts
- —> facts which are capable of accurate and ready determination by resorting to sources which are not subject to reasonable dispute (no one knows them but they can be easily looked up)
- —> Ex: historical records, interest/mortgage rates, rainfall accumulations, etc)
Presumptions –> Presumptions in Civil Cases (Rule 301) in General - Definition (+ how it works) (+legal/factual) (+rebuttable/irrebuttable)
A conclusion made as to the existence/nonexistence of a fact that may or must be drawn from other evidence that is admitted and proven to be true (shortcut in evidence).
How it Works
—-> A presumption arises where one set of facts (basic facts) once est’d by the proponent, permits/req’s belief of another set of facts (presumed facts) absent a contrary showing.
Legal & Factual
- —> Legal ex: presumption of innocence; minors incompetent to K
- —> Factual ex: absentia for 7 years = absent person is dead; child born during marriage = child of father; fire gun at vital part of body = intent to kill; proof letter mailed = proof received
Rebuttable & Irrebuttable
- —> Rebuttable: presumption can be rebutted/disproved w/ other evidence; most presumptions REBUTTABLE.
- —> Irrebuttable: presumption can NOT be rebutted/disproved w/ other evidence; NOT permitted in criminal cases
Presumptions –> Presumptions in Civil Cases (Rule 301) in General - Bursting Bubble Theory of Presumptions
Once the OPPONENT presents suff evidence that the presumed fact is not true, the presumption disappears (bubble bursts) and the trier of fact cannot find the existence of the presumed fact absent other direct proof.
Presumptions –> Presumptions in Civil Cases (Rule 301) in General - Conclusive Presumptions
Conclusive presumptions are those that are conclusively est’d once a set of basic facts is proven.
—–> The presumption is then treated as a rule of substantive law rather than a presumption.
Relevancy and Its Limits –> Admissibility: Test for Relevant Evidence (Rule 401)
Relevant evidence is evidence tending to make the existence of ANY fact of consequence to the action more or less probable than it would be w/o the evidence.
—-> Called “logical relevance”
*Note: witness credibility always relevant
Relevancy and Its Limits –> Admissibility: General Admissibility of Relevant Evidence (Rule 402)
Relevant evidence is generally admissible; irrelevant evidence is generally inadmissible.
—-> All relevant evidence is admissible, unless excluded by the USC, by Act of Congress, by the FRE, or by other rules prescribed by SCOTUS pursuant to statutory authority.
Relevancy and Its Limits –> Admissibility: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (Rule 403)
403 balancing test favors admissibility.
- —> Although relevant, evidence may be excluded if any of 6 considerations exists.
- —> Often called “practical relevance.”
If the probative value is SUBSTANTIALLY outweighed by:
- the danger of unfair prejudice, meaning the evidence invites the jury to make a decision on an improper ground
- confusion of the issues
- misleading the jury
- considerations of undue delay
- waste of time; or
- needless presentation of cumulative evidence
NOTE Unfair surprise not a proper objection under the FRE, but is in many states.
Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Crimes or Other Acts
The general rule is that evidence of a person’s character or character trait is inadmissible to prove that on a particular occasion he acted in accordance w/ that character/trait.
Criminal Cases
- —-> While the prosecution may not initially show that the D’s bad character traits to make an inference he is more likely to committed the crime charged, the accused may introduce evidence of character traits inconsistent with the crime charged (honesty/peacefulness).
- —-> Once the door is opened by the D, the pros may rebut evidence admitted.
Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Evidence of Victim’s Character
A criminal D may offer evidence of the victim’s pertinent character as circumstantial evidence.
- —-> Commonly, the victim’s violent character to support a claim that the victim was the initial aggressor.
- —-> This BAD character of victim is used to show that the D acted in self-defense.
Permissible method
—–> Reputation or opinion only; NOT specific acts
Prosecutor’s Response
—–> The prosecution may rebut with good character of the victim on the same trait AND can offer the D’s bad character on that same trait, each through reputation or opinion, NOT specific acts.
Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Reputation, Opinion, or Specific Acts (ROSA)
Q: Is it character evidence at all? A: CE comes in 3 forms (ROSA)
Reputation
- —> Witness testifies to another’s reputation as to character (everyone thinks V is violent)
- —> Merely the collective opinion of others
- —> Rep evidence is hearsay (the character is offering what ppl told him/her of their view of the other’s character), but a hearsay exception applies (FRE 803 [21])
Opinion
—-> Witness testifies to their opinion of another’s character (I think V is violent)
Specific Acts
- —> Witness testifies to specific acts (specific instances of conduct) of another that reflect the other’s character (I saw V beat up X last week, offered to show V is violent).
- —> To identify when SA being offered as CE, they involve different people, places, times, or events than that which is the subject of the trial.
Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Character Evidence - Admissible Purposes (MIMIC Rule)
Whether or not the D in a criminal case introduces evidence of good character, the pros may introduce circumstantial evidence of other crimes, wrongs, or acts for the narrow purpose of proving (MIMIC):
- Motive
- Intent
- Absence of Mistake
- Identity
- Common plan or scheme
Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Methods of Proving Character (Rule 405)
Controls form that CE takes at trial, not admissibility.
- —-> If CE is admissible for any reason, it may be proven in the form of reputation testimony or opinion testimony.
- —-> If character is not at issue in the case, then specific instances of conduct may only be addressed during cross to test the validity of the reputation or opinion testimony.
- —-> Relevant specific acts may also be admitted to show character if character is an essential element of a charge, claim, or defense.
Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Habit and Routine Practice - Definitions
Habit Evidence
—–> Refers to a narrow range of highly probative traits, namely, automatic, invariable patterns of behavior that could be characterized by the words “always” and “invariably”
Habit
- —-> A regular response to a given situation that is done w/o a high degree of forethought.
- —-> Actions performed “frequently” or “often” do not constitute habits.
- —-> Does not need to be corroborated.
Relevancy and Its Limits –> Admissibility of Specific Types of Evidence: Habit and Routine Practice - Rule
Evidence of a person’s habit or routine practice of an organization is relevant to prove conduct in conformity w/ the habit or routine practice.
—–> May be shown by testimony in the form of an opinion or SAs of conduct suff to show that the habit existed or the practice was routine.