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2022 PA Bar > Evidence > Flashcards

Evidence Flashcards

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1
Q

FRE Applicability

A

Everywhere but

  1. Preliminary determinations of fact
  2. Grand jury proceedings
  3. Criminal proceedings for search or arrest warrants
  4. Preliminary examinations in criminal cases
  5. Extradition or rendition
  6. Consideration of bail
  7. Sentencing
  8. Probation or supervised release proceedings
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2
Q

Judicial notice

A
  1. Generally known
  2. Accurately and readily determined from sources whose accuracy cannot reasonably be questioned
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3
Q

How do juries handle judicial notice?

A

Civil cases: conclusive
Criminal: may or may not accept

PA: May, but may not, accept judicially noticed facts in either criminal or civil cases

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4
Q

When is leading permissible?

A
  1. Cross
  2. Background information not in dispute
  3. Directs of witnesses who struggle to communicate
  4. Hostile witnesses
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5
Q

Who may be excluded from the trial room in federal court?

A
  1. Parties
  2. designated representatives of non-natural person parties
  3. Essential witnesses
  4. Persons permitted by statute

Victims can be excluded if court determines, by clear and convincing evidence, that testimony would be materially altered by hearing other testimony.

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6
Q

When is there a Presumption of Adverse Inferences for destroyed evidence?

A
  1. Intentional destruction
  2. Relevant
  3. Victim acted with due diligence as to evidence.
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7
Q

Relevance test

A
  1. Probative
  2. Material
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8
Q

403 Exclusion of relevant evidence (FRE and PA)

A

FRE: Probative value substantially outweighed by danger of unfair prejudice.

PA: Probative value outweighed by danger of unfair prejudice

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9
Q

When is character evidence admissible in civil cases?

A
  1. essential element of a claim or defense (e.g., defamation)
  2. defendant’s past sexual assault/molestation where claim is based on sexual misconduct
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10
Q

When is character evidence admissible in criminal trials?

A
  1. Defendant’s good character inconsistent with crime charged, but opens the door
  2. Victim’s bad character if relevant, but opens door to rehabilitate
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11
Q

How can character be proved?

A
  1. Reputation or opinion testimony (PA: only reputation)
  2. When relevant to an essential element of a claim or defense in a civil case, by specific instances of a person’s conduct.
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12
Q

For what purposes are specific acts admissible?

A

For any purpose other than proving propensity.

MIMIC:

Motive
Intent
absence of Mistake
Identity
Common plan

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13
Q

When can jurors testify?

A
  1. During trial, on matters that occurred during trial, such as bribery or failing to follow instructions. Notice to opposing party outside presence of jury.
  2. Extraneous prejudicial information
  3. Outside influence
  4. Mistake on verdict form (not PA -> can just poll)
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14
Q

When can children testify?

A

Ability to know truth from falsehood and importance of telling the truth.

By statute, abused children or witnesses of crimes are rebuttably presumed to be competent.

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15
Q

When can civil witnesses be impeached with criminal convictions?

A
  1. Crimes involving dishonesty or false statements (PA: only these are impeachment material)

OR

  1. <10 years ago AND punishment >1 year AND probative value not substantially outweighed by prejudicial effect
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16
Q

When can criminal witnesses be impeached with criminal convictions?

A
  1. Crimes involving dishonesty or false statements (PA: only these are impeachment material);

OR

  1. <10 years ago AND punishment >1 year AND probative value outweighs prejudicial effect.
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17
Q

When can crimes older than 10 years be used for impeachment?

A
  1. Probative value substantially outweighs prejudicial effect
  2. Reasonable written notice
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18
Q

When can juvenile adjudications be used to impeach a defendant?

A

For a non-defendant witness only, when (1) criminal case (2) goes to credibility and (3) necessary to fairly determine guilty or innocence.

PA allows for impeachment of a criminal defendant for credibility

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19
Q

Lay witness testimony

A
  1. Perception
  2. Helpful
  3. Not expert
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20
Q

Daubert

A
  1. Qualified
  2. Based on facts or data
  3. Reliable principles and methods
  4. applied reliably to the facts
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21
Q

What is unacceptable payment for witnesses?

A
  1. Excessive, excepting for noncontigent fees
  2. Contingent on outcomes;
  3. otherwise prohibited by law
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22
Q

When are ancient documents authentic?

A
  1. at least 20 years old (PA: 30)
  2. unlikely to create suspicion
  3. found where it would likely be if authentic
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23
Q

What documents are self-authenticating?

A
  1. Sealed or signed public documents
  2. official governmental publications
  3. periodicals
  4. Trade inscriptions
  5. Notarized documents
  6. Commercial paper
  7. authenticated by statute
  8. records of regularly conducted activity certified by a custodian of records
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24
Q

When does the best evidence rule apply?

A
  1. Contents of the document are at issue OR
  2. Witness relying on the contents of the document
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25
Q

When are duplicates inadmissible?

A
  1. Genuine dispute
  2. Unfair to allow duplicate
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26
Q

What does spousal immunity protect?

A
  1. Prosecution may not call spouse against accused
  2. Married person cannot be compelled to testify against spouse in any criminal proceeding unless adverse
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27
Q

Who holds spousal privilege?

A

Witness spouse (federal/majority/PA) holds it and may choose to testify.

Party spouse (minority) holds it and may prevent witness spouse from testifying.

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28
Q

What is protected by the privilege of confidential marital communications?

A

Communications between spouses while they were married if made in reliance on sanctity of marriage

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29
Q

Who holds the privilege of confidential marital communications?

A

Both spouses (federal/majority/PA); either may assert the privilege. Waiver by one spouse does not affect the other’s claim of privilege.

Only the communicating spouse (minority)

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30
Q

What does attorney-client privilege protect?

A
  1. Confidential communications
  2. Between a client and an attorney
  3. for the purpose of obtaining or providing legal assistance
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31
Q

Exceptions to attorney-client privilege

A
  1. communications that client should have known was a crime or fraud
  2. dispute between attorney and client
  3. dispute between parties who claim through the same deceased client
  4. Adverse former clients
32
Q

What is protected by the work-product doctrine?

A

Documents prepared by an attorney for use in connection with a case.

33
Q

When can work product be disclosed?

A
  1. Substantial need
  2. Cannot obtain without undue hardship

No mental impressions, ever.

34
Q

When does the physician-patient privilege not apply?

A
  1. Not for medical purposes
  2. Physical condition at issue
  3. Communication part of crime or tort
  4. Physician-patient dispute
  5. Contractual waiver
  6. federal court where state law doesn’t apply

PA: not criminal proceedings

35
Q

Exceptions to psychotherapist-patient privilege?

A
  1. Mental condition at issue
  2. Court ordered exam (not for purpose)
  3. Commitment proceedings
36
Q

What evidence plea evidence is not admissible against a defendant in either a civil or criminal case?

A
  1. Withdrawn guilty pleas
  2. Pleas of no contest
  3. Statements made while negotiating
  4. Statements made during plea proceedings
37
Q

Exceptions to rape shield rule in criminal proceedings

A
  1. Prove someone other than D was source of physical evidence
  2. Past conduct goes to consent
38
Q

Exceptions to rape shield rule in civil proceedings

A

A victims sexual behavior or disposition is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

39
Q

What is the procedure for offering evidence of a victim’s sexual behavior or pre-disposition?

A
  1. motion filed 14 days before trial or per court order
  2. mandatory in camera hearing
  3. Opportunity for victim and parties to be heard
  4. sealed hearing unless court orders otherwise
40
Q

When can the court exclude admissible propensity evidence of sexual assault or child molestation?

A

Exclude if probative value substantially outweighed by the danger of unfair prejudice.

not limited to convictions

15 days notice required if intending to use

41
Q

When are prior inconsistent statements admissible as substantive evidence?

A

Statement made under penalty of perjury

Otherwise just impeachment

42
Q

When are prior consistent statements admissible as substantive evidence?

A
  1. To rebut charge of fabrication
  2. Rehabilitate credibility.

PA: Never. Only rehabilitation.

43
Q

When is silence an adoptive admission?

A
  1. Present and heard the statement
  2. Ability and opportunity to deny
  3. Reasonable person would deny

Excludes post-Miranda activities.

44
Q

When is a declarant unavailable?

A
  1. Exempt for privilege
  2. Refuses to testify despite court order
  3. Lacks memory of subject matter
  4. Unable to testify due to death or disability
  5. Absent and cannot be subpoenaed

NOT if procured by proponent of hearsay statement

45
Q

When is former testimony of an unavailable witness admissible?

A

Opponent had similar opportunity and motive to develop the testimony.

46
Q

Dying declaration

A

Not hearsay if

  1. Belief that death is imminent
  2. statement relates to cause or circumstances of death

ONLY in homicide and civil cases; PA: all cases

47
Q

Statement against interest

A

NONPARTY statements are not hearsay if

  1. against declarant’s interest
  2. Reasonable person would not say unless he believed it to be true

If it would subject declarant to criminal liability, only admissible if corroborating circumstances indicate trustworthiness of statement.

48
Q

Forfeiture against wrongdoing hearsay exception

A

Wrongful parties cannot object to hearsay if they wrongfully caused unavailability.

Confrontation clause requires having the particular purpose of making witness unavailable.

49
Q

When is a recorded recollection exempt from hearsay?

A
  1. Witness once knew about it
  2. Adopted when fresh in memory
  3. Accurate reflection
  4. Witness states cannot recall, even after consulting record on the stand

Can be read into evidence but only submitted as an exhibit by adverse party

50
Q

Business records exception to hearsay

A
  1. Record of regularly conducted activity of a business
  2. Making record was regular practice
  3. Record was made contemporaneously by someone with knowledge

May exclude if not trustworthy (e.g., prepared for litigation)

51
Q

Public records exception to hearsay

A

Any of:

  1. Activities of office or agency
  2. Observation of a person under a duty to report
  3. Factual findings of a legal investigation when offered in a civil case OR against the government in a criminal case
52
Q

Learned treatise exception to hearsay

A
  1. Expert relied on during direct exam or called to attention on cross
  2. Reliable authority or judicially noticed
53
Q

When are judgments of prior convictions exempt from hearsay?

A
  1. Entered after trial or guilty plea (NOT nolo contendre)
  2. >1 year punishment
  3. Offered to prove fact essential to sustain the judgement

Prosecution may only offer for non-impeachment purposes if the judgment was against the defendant.

Appeal does not affect admissibility but can be shown

PA: For felonies and other major crimes, cannot deny or contest any fact essential to sustain conviction (not lesser misdemeanors).

54
Q

Residual exception

A
  1. Supported by sufficient guarantees of trustworthiness
  2. More probative than other evidence available through reasonable efforts

Must give reasonable notice before trial of intent to use and particulars, including declarant’s name and address

55
Q

When can an out-of-court testimonial statement of a declarant be used against a defendant?

A

Under the Confrontation Clause, when

  1. Unavailable declarant
  2. and prior opportunity to cross

Dying declaration maybe not under Crawford because predates CC

56
Q

What determines if a statement is testimonial under the Confrontation Clause?

A

Objective, not subjective analysis.

57
Q

When does due process exclude hearsay?

A

Unduly restricts a defendant’s ability to defend himself`

58
Q

Where do the PA rules not apply?

A
  1. Grand jury proceedings
  2. Some criminal proceedings: (1) preliminary hearing; (2) extradition or rendition; (3) bail or other release; (4) sentencing; (5) parole and probation
59
Q

When must hearings on preliminary matters be conducted outside the presence of a jury?

A

FRE: when involves confessions

PA: when involves violation of defendant’s rights

60
Q

Appellate review of evidentiary rulings

A

FRE: plain error

PA: may ignore if not substantial in civil cases; relief from erroneous ruling unless BARD harmless in criminal cases

61
Q

When can a party object to a judge calling or questioning a witness?

A

FRE: Next available opportunity when jury not present

PA: Object when court gives notice of intention, or when objectionable question asked.

62
Q

What is the scope of cross?

A

FRE: subject matter of direct

PA: same, unless a party witness, in which case any relevant matter

63
Q

PA “missing witness” rule

A

May instruct jury that a witness would would support allegations, but is not called, permits inference that it would testify adversely.

Only if uncalled witness is peculiarly within the reach and knowledge of parties

64
Q

Under PA law, when may prosecution cross a criminal defendant about a conviction?

A

Any of:

  1. Defendant asked questions of a witness for the prosecution with a view to establish his own good reputation or character;
  2. Opened door
  3. testified in a joint trial against a co-defendant charged with same offense
65
Q

Who is not competent to testify in PA?

A
  1. Mental condition or immaturity
  2. Convicted of perjury
  3. Spouse against another spouse, except in certain family proceedings
66
Q

When is a child competent to testify in PA?

A
  1. Capacity to observe or perceive occurrence with substantial degree of accuracy
  2. Ability to remember event
  3. Ability to understand and to answer Qs
  4. Conscious of ability to tell the truth

Can be rendered incompetent due to unduly suggestive or coercive techniques

67
Q

What does PA’s Dead Man’s Statute do?

A

A surviving person with adverse interest to deceased cannot testify about matters before death of deceased

68
Q

Exceptions to PA Dead Man’s statute?

A
  1. Distribution of property by will or intestate
  2. Testimony against W’s own interest
  3. Rebuttal
69
Q

Frye test

A

PA still applies:

  1. Specialized knowledge
  2. Help trier of fact
  3. Generally accepted methodology

Differs from Daubert because no judicial evaluation of scientific reliability of testimony

70
Q

Must an expert disclose the facts on which his opinion relies?

A

FRE: No

PA: yes

71
Q

PA penitent-clergy privilege

A
  1. made to priest
  2. as confessor

Applies in civil and criminal, even child abuse proceedings

72
Q

PA accountant-client privilege

A
  1. made to licensed public accountant
  2. for information

Applies to heirs or assigns, etc.

73
Q

PA journalist privilege

A

Prevents disclosure of confidential source.

Held by news gatherer.

No inferences can be drawn from invocation of privilege.

74
Q

Subsequent remedial measures

A

FRE: not admissible

PA: admissible if done by a third party

75
Q

408 Negotiations

A

FRE: Not admissible

PA: conduct during compromise negotiations with gov admissible

76
Q

PA Rape Shield statute

A

Only criminal for specific offenses including assault, kidnapping, and sexual offenses.

77
Q
A

2022 PA Bar (19 decks)

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