Evidence Flashcards
Rule for present sense impression
A present sense impression, an exception to the hearsay rule, is a statement describing or explaining an event or condition made while perceiving or immediately after an event. A few minutes pause is within the period contemplated by this exception.
Rule for excited utterance
An excited utterance, an exception to the hearsay rule, is a statement relating to a startling event made while the declarant is still under the stress of excitement that is caused.
Rule for Confrontation Clause
The Sixth Amendment gives defendants the right to confront witnesses against them.
Rule for Confrontation Clause on hearsay
The Sixth Amendment gives defendants the right to confront witnesses against them. The use of an out of court statement violates the defendant’s Sixth Amendment rights, even if the statement falls within a hearsay exception, if
1) the statement was testimonial;
2) the witness who made the statement is unavailable to testify at trial; and
3) the defendant has not had an opportunity to cross-examine the witness before trial.
Rule for when a statement is “Testimonial”
A statement is testimonial if, viewed objectively, the primary purpose of the statement was to create an out of court substitute for trial testimony.
Statements made to police officers in the course of an investigation are often testimonial.
Rule for testimonial v. ongoing emergency
Statements made to police to assist in the investigation and prosecution are testimonial, however, statements to police to meet an ongoing emergency are nontestimonial.
Factors to determine the existence of an ongoing emergency are:
- the nature of the dispute,
- the scope of potential harm,
- generalized threat to the public,
- suspects weapon,
- whether the suspect remains at large.
Rule for out of court statement of identification
A statement is not hearsay when the declarant testifies and is subject to cross-examination about a prior statement identifying a person.
Rule for identification by voice and lay witness identification
Identifying a person after hearing the person’s voice qualifies as a statement of identification. Lay witness voice identification is typically admissible unless there is a taint of impermissive suggestion.
Basic rule for Character evidence
Evidence of a person’s character is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait. However, such evidence may be admissible to prove Motive, Identity, absence of Mistake, Intent, Common scheme or plan.
Rule for Miranda
Miranda protects against self-incrimination by compelled communication or testimony. Miranda warnings are required only when a suspect is in custody and under interrogation.
Rule for “custody” for Miranda purposes
For Miranda purposes, custody can be established if a reasonable person under similar circumstances would believe that she was in custody.
Rule for Hearsay
Hearsay is a statement made by the declarant, other than while testifying at the current trial, to prove the truth of the matter asserted. Hearsay is inadmissible unless admissible under another rule.
Rule for recorded recollection
A recorded recollection is a record that in made while the matter was fresh on the witness’s memory. If the witness can authenticate the record, it may be read to the jury as an admissible exception to the hearsay rule, but may not be admitted as an exhibit unless under another rule or by an opposing party.
Rule for “refreshing witness’s recollection”
If a witness testifies to lack of memory, the FRE permits the use of almost anything to refresh a witness’s recollection. The witness must read it to himself. It is improper to read aloud to the jury and it may be admitted only if offered by an opposing party.
Rule for Impeachment
Under the FRE, a witness’s credibility may be attacked to impeach the witness by
1) specific instance of conduct / bad acts
2) prior inconsistent statements
3) bias and interest
4) conviction of a crime
5) reputation or opinion for truthfulness
6) sensory defects
7) contradiction.
Rule for impeachment by Specific Instances of Conduct /Bad Acts & Extrinsic evidence to support attack
A witness’s credibility may be attacked on cross-examination by questioning him with specific instances of conduct ONLY if the conduct is probative of the witness’s character for truthfulness or untruthfulness.
Extrinsic evidence is not permitted to support the attack.
Rule for IMPEACHMENT by prior inconsistent statements & extrinsic evidence
Prior inconsistent statements are admissible to impeach a witness at trial.
Extrinsic evidence is admissible if it is relevant to a material issue (other than credibility) AND the witness is given the opportunity to explain or deny the statement AND the adverse party is given an opportunity to examine the witness about it. [these limits do NOT apply to extrinsic evidence offered against an opposing party]
Rule for impeachment by bias and interest
A witness may be asked about a bias or interest.
If the witness denies the bias or interest, extrinsic evidence may be permitted.
Rule for impeachment by prior conviction of a crime
A witness’s prior convictions may be admitted to attack a witness’s character for truthfulness if
- a prior felony (unless 10 years passed since conviction or release or the probative value substantially outweighs the prejudicial effect and the proponent gives reasonable notice)
- prior misdemeanor involving dishonesty
Rule for impeachment by reputation or opinion for truthfulness
A witness’s credibility may be attacked or supported by reputation about the witness’s truthfulness in the community or opinion testimony about the witness’s character for truthfulness.
Rule for impeachment by sensory defects
A witness’s ability to remember, observe, or relate facts accurately may be attacked on impeachment.
Evidence of memory loss is relevant because it has a tendency to suggest the witness’s testimony is less reliable.
Rule for impeachment by contradiction
Under the FRE, if a witness made a mistake or lied during direct examination, the witness may be contradicted.
Extrinsic evidence is admissible to impeach the witness if she does not admit her mistake or lie.
Rule for relevancy
Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than without the evidence. Relevant evidence is admissible, unless inadmissible pursuant to another rule.
Rule for extrinsic evidence for a witness’s truthfulness
Extrinsic evidence to impeach a witness’s character for truthfulness is inadmissible. Admission into evidence of a document containing the falsehood might violate the extrinsic evidence rule, but questioning the witness about such a document does not.
Rule for standard of review for alleged error in an evidentiary rule
The standard of review regarding an alleged error in evidentiary ruling is abuse of discretion.
Rule for suspect’s post-Miranda communication
If a custodial suspect who has invoked a right to counsel initiates post-invocation communication, the suspect’s subsequent statements may be admissible.
Rule for Miranda after suspect’s release
If a suspect has been released from interrogative custody, the Miranda right to counsel terminates after 14 days. After that time, fresh Miranda warnings are required for custodial interrogation.
Rule for SUBSTANTIVE use of prior inconsistent statement
Under the FRE, certain prior inconsistent statements are not hearsay and are admissible to prove the truth of the matter asserted if the prior statement was made under oath, subject to the penalty of perjury at a trial or other proceeding. [if the witness’s statement does not meet this rule, it may be still be used to impeach.]
Rule for business records exception
A business record is a record of an act made at or near the time by someone with knowledge and the record was kept in the course of a regularly conducted business activity.
Rule for hearsay for non-verbal conduct
Hearsay is defined to include a person’s oral or written assertion and nonverbal conduct if the person intended it as an assertion.
Rule for habit evidence
Habit evidence is admissible to prove that a person acted in conformity with that habit, even if the only evidence is the person’s testimony about their own habit.
Rule for evidence of stipulated facts
Evidence to stipulated facts do not prove any disputed fact and are a “waste of time.”
Rule for offer to settle or compromise
Evidence to settle or compromise a disputed claim is inadmissible. [discuss when the claim became disputes and when the offer/statement was made.
