EVIDENCE Flashcards
Mandatory Presumption of a Victim’s Death in Criminal Trial
A mandatory presumption would conflict with presumption of innocence. Even with opportunity to rebut, not enough to overcome presumption of innocence.
*Prosecution is required to prove any and all elements of case (including whether a victim is dead).
Specific Instances of Conduct (Good Character)
*FRE 404(a)(2)(A)-“Mercy Rule” -Only Reputation or Opinion evidence my be used by the defendant to prove good character if character is not an essential element to a charge or defense.
*FRE 405(a)-if character is admissible, it must be reputation or opinion.
*Apparently, honesty/dishonesty is not an essential element of fraud
Statement Against Interest
FRE 804(b)(3) Statements Against Interest are admissible when:
(1) declarant is unavailable, and
(2) the statement is one that could subject the declarant to civil/criminal liability
*co-conspirator’s statements may fall under “non-hearsay” if made (1) during and (2) in furtherance of the conspiracy. FRE 801(d)(2)
FRE 804(b)(3)
Statements Against Interest are admissible when:
(1) declarant is unavailable, and
(2) the statement is one that could subject the declarant to civil/criminal liability
FRE 801(d)(2)
co-conspirator’s statements may fall under “non-hearsay” if made
(1) during and
(2) in furtherance of the conspiracy.
Attacking Credibility
Attacking party is free to attack the credibility of other party’s witness (impeach). A direct contradiction on a material issue may be a proper contradiction.
Privilege Against Self-Incrimination
One having a reasonable fear that answering a question might cause her to self-incriminate may assert her privilege against self-incrimination. Certainty of prosecution is not required. A mere possibility of prosecution (as long as it’s not remote) will suffice.
*Applies both in civil and criminal trials.
*This privilege takes precedence over the evidentiary value of testimony. The question may be proper (if asker had good faith basis to believe) and within his right-at least in the rules of evidence-to ask; however, the witness’ constitutional right against self-incrimination is greater.
Admitting Evidence (photograph)
Admit when:
(1) Relevant-FRE 401
(2) Admission does not violate Best Evidence Rule
(3) Admission does not violate any other rule
FRE 1004
An Original (photo, video, document, etc.) is not required if lost or destroyed (not by proponent in bad faith).
*Under FRE 1003 would make photo as duplicate auto-admissible. There is no requirement that before admitting a duplicate, others are known of and unavailable.
FRE 801 (d)(2)
Treats as non-hearsay any statement that is
(1) offered against opposing party, and
(2) made by agent or employee
(3) on a matter within the scope of relationship
(4) while the relationship still existed
Impeaching to prove negligence
Using a prior inconsistent statement is an impeaching use, which is NOT always admissible as substantive. Therefore, it is not the best method to prove negligence.
Impeaching the Credibility of a Witness using Another Witness
FRE 806-allows a party to impeach a declarant’s credibility (even if they never testify) once his or her statement is properly admitted.
Impeachment can be via any means permissible, if declarant were actually on the stand (i.e. Reputation, Opinion, Prior Inconsistent Statement, etc.)
*Declarant does not need to have the chance to deny or explain the prior inconsistent statement.
Impeaching Credibility v. Substantive Proof
FRE 613(b)-allows use of extrinsic evidence to show witness made a prior inconsistent statement if
(1) witness is given chance to explain/deny statement and
(2) opposing party is given chance to examine
or
if justice so requires.
Effect of Hearsay within Hearsay
Both the outer and inner layer of Hearsay must fall within an exception or exemption in order to admit the evidence.
If both layers do not meet an exception or exemption, and is admitted anyway, then it is likely because the statement is not being offered to prove the truth of the matter asserted, which means it is not admissible for substantive purposes.
FRE 804(b)(1)
Former Testimony Exception: In order for former testimony exception of FRE 804(b)(1) to apply, the testimony proffered to be admitted must:
(1) be offered against a party
(2) who had an opportunity and similar motive to develop it by direct/cross/redirect
*Includes in a civil case where the party or a predecessor in interest had an opportunity and similar motive to develop the testimony.
Statement Consists of Repeating Something Said by Someone Else
Issue is Hearsay within Hearsay. When a statement consists of repeating something someone else said to second person, both statements must be analyzed under hearsay.
Both layers must meet an exception or exemption to be admissible.
Attorney Client Privilege Umbrella
One who obtains a confidential communication while assisting a lawyer is covered by the attorney client privilege.
eg. A psychiatrist or Analyst who is retained to evaluate a witness and does a report on the witness will be covered under Attorney Client Privilege.
FRE 404(b)
Evidence of a crime, wrong or act is not admissible to prove a person’s character in order to show that on a particular occasion he acted in accordance with that trait.
*Applying this rule means that the evidence cannot be introduced if for the purpose to prove violence
*404(b) allows evidence for another purpose to be admitted:
(1) Motive,
(2) Intent,
(3) Mistake (lack of),
(4) Plan,
(5) Preparation
(6) Identity,
(7) Opportunity,
(8) knowledge, and
(9) Accident (lack of)
Mnemonic for Remembering the 8 Exceptions to Admitting Evidence to prove
MI PaPa Knows About MIO
M-Mistake (lack of)
I-Identity
P-Plan
P-Preparation
K-knowledge
A-Accident (lack of)
M-Motive
I-Intent
O-Opportunity
FRE 801(C)
Hearsay defined. An out of court statement offered to prove the truth of the matter asserted.
Exemption: “Effect on the Listener”-is not hearsay because it is not being offered to prove the truth of the matter asserted, but being offered to show how the listener was affected, or that he was placed on notice, or some other purpose.
FRE 615
Exclusion of Witnesses: At a party’s request, the court MUST order witnesses to be excluded…
*The court has discretion to permit inquiry into additional matters
FRE 611(b)
As a general rule, cross-examination should not exceed scope of direct examination and matters affecting credibility. But, the court may within its discretion allow inquiry into additional matters as if on cross-examination.
When a lawyer is conducting cross-examination because the adverse party called his or her client as an adverse witness, the lawyer is to treat the cross-examination as if it were direct examination (since his own client), and should not be used as an opportunity to make use of leading questions.
Taking Judicial Notice on Info From Source
FRE requires that the information to be Judicially Noted come from a source whose accuracy cannot reasonably be questioned.
Best Evidence Rule
FRE 1002
“An original writing, recording, or photograph is required in order to prove its contents.”
*The BER does not apply to events that have by happenstance been recorded-it applies only where the terms of the recording, per se, are what are being sought to be proved.
