Evidence Flashcards
When do the Federal Rules of Evidence not apply?
1) preliminary questions of fact governing admissibility
2) grand jury proceedings
3) other miscellaneous proceedings (sentencing, extradition, bail and probation)
What is Direct Evidence
testimony or real evidence that speaks directly to a material issue in the case and involves no inferences
What is circumstantial evidence
evidence of a subsidiary or colalteral fact from which the existence of the material issue can be inferred
When is evidence of similar occurrences relevant? Provide examples (9)
if they are probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice
causation; prior false claims or same bodily injury; similar accidents caused by the same condition or event (notice, existence, or cause); intent; rebut a claim of impossibility; sales of similar property; habit; industrial or business routine; industrial custom as standard of care
Exception to including statements made during the course of settlement negotiations
Civil Dispute with a Government Authority
negotiations regarding a civil dispute with a governmental regulatory, investigative or enforcement authority are not excluded when offered in a criminal case5
When is character evidence admissible in civil cases?
Where character of D is directly at issue
1) defamation
2) negligent hiring or entrustment
3) child custody
*all forms (reputation, opinion, and specific conduct) is admissible
What is the standard for admitting a rape victim’s past behavior in a civil case
probative value substantially outweighs the danger of the harm to the victim and of unfair prejudice to any party
(Reverse 403)
When can evidence of a rape victim’s past behavior be admissible in a criminal case?
1) prove the semen, injury or other physical evidence came from another party
2) prove consent
What is the standard for admitting MIMIC evidence?
sufficient evidence to support a jury finding that the D committed the prior acts
How can real evidence be properly authenticated?
The object must be identified as what the proponent claims it to be, either by:
1) testimony of a witness that she recognises the object as what the proponent claims it
2) evidence that the object has been held in a substantially unbroken chain of possession
What is the standard for documentary authentication?
sufficient proof to support a jury finding of genuineness
When is authentication as to the identity of a speaker of a statement required?
when a statement is admissible only if said by a particular person
BER: preliminary questions of facts reserved for the jury
1) whether original ever existed
2) whether evidence produced is the original
3) whether evidence offered correctly reflects the contents of the original
4) questions as to relevancy of evidence
When is a jury member permitted to testify in an inquiry into the verdict or indictment?
1) whether any extraneous prejudicial information was improperly brought to the jury’s attention
2) whether any outside influence was improperly brought to bear on any juror
3) whether there was a mistake on the verdict form
4) whether any juror made a clear statement that he relied on racial stereotypes or animus to convict a criminal D (must be a significant motivating factor)
When are leading questions ok?
1) on cross
2) to elicit preliminary or introductory matter
3) when W needs aid due to loss of memory, infancy, or physical/mental weakness
4) when W is hostile, an adverse party, or affiliated with an adverse party
What is a proper factual basis for an expert testimony
1) personal observation
2) made known to him in trial
3) provided outside court and of the type reasonably relied upon by experts in a particular field (need not be admissible in trial)
What is the scope of cross-examination?
1) the scope of the direct examination, including the reasonable inferences that may be drawn from it; and
2) testing the credibility of the witness
When is it permissible to bolster or accredit the testimony of your own witness?
1) prove W made a timely complaint
2) prove prior statement of identification (can also be offered substantively as a non-hearsay exemption)
How is a crime involving dishonesty or false statement categorised?
Any crime involving the uttering, speaking or writing of false words or statements
e.g. perjury, false statements, criminal fraud, embezzlement and false pretenses
Can extrinsic evidence of bad acts be used to prove misconduct?
No. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross of the W
What is the Rule of Completeness?
Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part, or any related writing or recorded statement, that ought in fairness to be considered.
What is an Offer of Proof?
A disclosure of the nature, purpose, and admissibility of rejected evidence to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal
What privileges apply in diversity cases?
state law of privilege
What privileges apply in FQ cases?
federal common law privileges
Modern view on eavesdroppers and privilege
in the absence of negligence by the one claiming privilege, the presence of the eavesdropper would not abrogate the confidentiality of the communication and he would not be able to testify either.
Does a federal case applying applying the federal law of privilege recognise the physician-patient privilege?
No
When is a judge prohibited from excluding a witness from the courtroom?
1) a party or a designated officer or employee of a party
2) a person whose presence is essential to the presentation of a party’s claim or defense
3) a person statutorily authorised to be present
What are the two ways out of court statements can be admissible to show a declarant’s state of mind?
1) circumstantial evidence as as an admissible out of court statement (i.e. evidence of insanity or knowledge)
2) direct evidence as admissible hearsay (i.e. evidence of intent)
3) circumstantial evidence as admissible hearsay (i.e. evidence that an intent was carried out)
When may the dying declaration hearsay exception be used
homicide and civil cases only
What are the hearsay exceptions requiring that the declarant be unavailable?
1) Former Testimony
2) Dying Declarations
3) Statements Against Interest
4) Statements of Personal or Family History
5) Statements of a Person Offered Against a Party who Intentionally caused the Unavailability of the Witness
Do business records that satisfy the hearsay exception rules automatically go into evidence?
Not if a party can demonstrate sufficient evidence to show a lack of trustworthiness
How does the court determine whether there an ongoing emergency in the context of assessing whether a statement made to the police was testimonial for confrontation clause issues?
1) nature of the dispute
2) whether perpetrator still at large
3) the scope of the threat to the victim and to the public
4) whether any weapons involved
What is the burden of persuasion for civil cases?
Usually, preponderance of the evidence, though some cases require clear and convincing evidence
What is the burden of persuasion for criminal cases?
Beyond a reasonable doubt
What is the effect of a presumption on the burden of production
A presumption operates, until rebutted, to shift the burden of production to the party against whom the presumption operates.
Note: it does not shift the burden of persuasion
Under the Federal Rules, in order for a hearsay statement to be admissible under the statements of personal or family history exception, the declarant must be a:
the declarant must be a member of the family in question or otherwise intimately associated with the family
Does impeachment evidence need to positively controvert the prior testimony?
No, it need only tend to discredit the credibility of the prior witness.
When is re-direct examination of a witness required?
Only to reply to significant new matters raised in cross. Court has discretion to allow re-direct on minor issues
Can guilty pleas be admitted as substantive evidence?
Yes, as a party-opponent statement as a judicial statement or admission
Are judgments of a felony conviction admissible?
Yes, as an exception to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment.
