Evidence Flashcards
1
Q
When do FRE not apply?
A
- preliminary questions of admissibility
- grand jury proceedings
- other miscellaneous proceedings (sentencing, bail, probation)
- state law applies to privilege in diversity cases
2
Q
What is relevant evidence?
A
Something that has any tendency to make a fact of consequence more or less likely
3
Q
Exceptions to “all relevant evidence admissible”
A
- Rule 403 discretion (covers prior similar occurrences)
2. other FRE (public policy, character
4
Q
Rule 403
A
Probative value is substantially outweighed by 1/6:
- unfair
- confusing
- misleading
- delay
- waste of time
- repetitive
5
Q
Allowances to Prior Similar Occurrences (9)
A
- P’s accident history (false claims or same bodily injury)
- Anyone’s similar accident (same condition under substantially similar circumstances brought to prove existence, causation, or notice)
- absence of similar accidents (knowledge)
- previous similar acts (intent)
- sale of similar property
- rebuttal of impossibility claim
- causation
- habit (frequency and particularity of circumstances)
- industry custom
6
Q
Public policy exceptions to relevancy (5)
A
- liability insurance (negligence)
- subsequent remedial measures (negligence)
- civil settlements and negotiations (amount of validity of claim, impeachment by PIS or contradiction- not in crim)
- plea discussions (anything but actual guilty plea)
- offers to pay medical expenses (liability)
7
Q
3 purposes of character evidence
A
- prove trait where it’s essential element
- serve as circumstantial evidence of propensity
- prove untruthfulness as impeachment method
8
Q
3 ways to bring character evidence
A
specific acts, reputation, opinion
9
Q
3 times character trait is in issue
A
defamation, negligent hiring, child custody
10
Q
Rules for D’s character evidence in criminal case (3)
A
- only reputation or opinion
- pertinent and personal
- initiated by D
11
Q
How can P attack D’s character in criminal case using character evidence?
A
- cannot offer but can rebut if D open door
- cross examine D’s witness- Did You Know questions about specific acts, no extrinsic evidence
- call a witness and examine using reputation or opinion
12
Q
How can P attack V’s character in criminal case?
A
- reputation or opinion after D open the door
- not in sex assault or homicide cases
- V’s good character or D’s bad character for same trait
13
Q
How can P attack V’s character in homicide case?
A
propensity for peacefulness if D claims self-defense
opens door to D to prove peacefulness
14
Q
How to attack V’s character for sexual behavior in civil sex assault cases?
A
V’s past sexual behavior inadmissible unless reverse 403 satisfied
15
Q
403 and Reverse 403
A
403- probative value outweighed by pragmatic considerations
reverse- Probative value substantially outweighs risk of unfair prejudice
16
Q
How can V’s prior sexual behavior be used as character evidence in criminal sex assault case? (2)
A
- to prove someone else is source of physical evidence
2. evidence of sexual behavior between V and D (P for any reason, D to prove consent)
17
Q
Character evidence used to prove propensity- can it be used?
A
Not in civil cases by any party, except bad sexual acts
18
Q
character evidence of specific bad acts inadmissible unless:
A
- non-propensity purpose (MIMIC) that was contested first
(motive, intent, absence of mistake, identity, common plan) - sexual bad act, even to show propensity, with notice
19
Q
If specific bad acts are brought as character evidence for non-propensity purpose, how can it be proven?
A
in any way as long as sufficient to support jury finding that it occurred, is relevant, and there is notice in criminal case
20
Q
Writing used as evidence must pass (4) requirements
A
- Relevant
- Authenticated
- BER
- Hearsay
21
Q
Methods of proving authentication for writings/records to satisfy sufficiency for jury finding of genuineness
A
opponent’s admission, eyewitness testimony, handwriting verification, ancient documents at least 20 years old, reply letter doctrine, familiar witness proves accuracy of photos and videos, accuracy of X-rays proven without tampering, identification of voice
22
Q
What are the 8 self-authenticating docs?
A
official sealed docs, official publication, certified copy of public records, newspaper, trade inscription, notarized docs, commercial paper, business records (notice and opportunity)
23
Q
What is BER?
A
If a writing created legal rights, or a witness’s knowledge comes from it, and terms of writing are material, the original (or duplicate) document must be produced, unless satisfactory excuse.
Does not apply if witness can testify about the facts from personal knowledge.
24
Q
When are duplicates not allowed under BER?
A
circumstances make it unfair or genuine question of authenticity is raised
25
What are acceptable excuses for BER? (3)
loss or destruction
no judicial process can obtain
in possession of adversary
26
Exceptions to BER that don't require excuse (4)
1. voluminous records- summary ok
2. certified public records- copy ok
3. writing is minor issue in case
4. OP testifies about contents first
27
What makes a witness disqualified?
1. children, as determine by judge
2. insane people, if no capacity and no understanding of obligation
3. judges and jurors
4. State Dead Man Act
28
What are the limited things a juror may testify about in an inquiry into the jury's verdict? (4)
Only as to:
1. use of prejudicial info
2. undue influence
3. mistake
4. clear statements of racial stereotypes as motivating factor to convict criminal D
29
What is a Dead Man Act?
State law that prohibits an interested person from testifying about communication with deceased
30
When are leading questions allowed? (4)
1, cross examination
2. on direct, for preliminary matter
3. on direct, when witness needs help
4. on direct, when witness is hostile
31
What are improper questions for witness examination?
Misleading, compounding, argumentative, conclusory, cumulative, unduly harassing, speculative, assume facts not in evidence
32
What are improper answers in witness examination? (2)
lack foundation, non-responsive
33
Under Refreshing and Recorded Recollection rules, what are the adverse party's safeguards?
If witness has writing on stand- produce it at trial, cross examine witness about it, introduce relevant parts into evidence
If witness reads before taking stand- no options unless justice requires
34
If an adverse party requests production of writing used in Refreshing or Recorded Recollection and party fails to produce, what happens?
criminal case- judge MUST order to strike testimony
| civil case- MAY issue any appropriate order
35
How to lay a proper foundation for admitting a record into evidence for the Recorded Recollection rule?
Witness has personal knowledge of facts in a record, record was made by witness when facts were fresh, witness vouched for accuracy at the time it was made, and witness now has insufficient recollection of facts
36
What are the requirements of opinion testimony by a lay witness? (3)
1. necessary or helpful to clear understanding
2. rationally based on witness's perception
3. not based on specialized knowledge
37
In what situations is opinion testimony by a lay witness admissible?
```
® General appearance or condition of person
® State of emotion
® Matters involving sense recognition
® Voice or handwriting identification
® Speed of a moving object
® Value of W's services or property
® Rationality of another's conduct
® Person's intoxication
```
38
In what situations is opinion testimony by a lay witness inadmissible?
about agency or contract formation
39
What are the requirements of opinion testimony by an expert witness? (5)
1. necessary or helpful
2. specialized knowledge
3. based on sufficient data (not speculation)
4. product of reliable methods (TRAP factors)
5. reliably applied to case
40
What is considered a proper factual basis upon which expert opinion testimony must be based? (3)
1. facts from personal observation
2. facts made known to expert at trial
3. facts supplied outside court and reasonably relied on by experts (don't have to be admissible but must satisfy reverse 403 if must be disclosed on cross)
41
How can a learned treatise be used as evidence?
Allowed through hearsay exception if used in context of expert testimony and not entered as an exhibit
42
May an expert render an opinion about an ultimate issue in a case?
Yes, except for opinion about mental state in criminal case where D's mental state is an element
43
When MUST a judge exclude a witness?
If a party request it, unless the witness is a party/rep, is essential, or is authorized by statute
44
May one impeach a witness about a statement made about a collateral matter?
No.
45
Methods of impeaching a witness about facts specific to current case (4)
PIS, Bias, Sensory deficiencies, contradiction
46
Methods of impeaching a witness about general bad character for untruthfulness (3)
Opinion or reputation character evidence, prior convictions, bad acts
47
May one impeach a witness using PIS through cross examination?
Yes, and through extrinsic as long as foundation is made
48
How to lay a foundation for impeaching a witness using PIS through extrinsic evidence
If the witness was given an opportunity to explain it and the adverse party is given an opportunity to examine the witness about it, at any point.
49
When is a foundation not required for impeaching a witness using a PIS through extrinsic evidence? (3)
1. PIS is OP's statement
2. PIS made by a hearsay declarant and is impeaching the declarant
3. justice requires dispensation
50
May a judge allow evidence when bias was admitted?
Yes.
51
May one use extrinsic evidence to impeach a witness on grounds of bias?
In some states, a foundation is needed- witness must be asked about it on cross
not addressed in FRE
52
By what methods may one use sensory deficiencies as grounds for impeaching a witness? Is a foundation required?
using extrinsic or cross, no foundation needed
53
By what methods may one use contradiction as grounds for impeaching a witness?
on cross, to show testimony was mistaken, can use extrinsic evidence if it's significant fact
54
How may one impeach a witness on grounds of character of untruthfulness?
Calling a character witness who brings testimony of reputation or opinion
55
May one impeach a witness on grounds of prior convictions? What types of crimes?
Yes, any crime narrowly involving dishonesty allowed without discretion. Must be a conviction. Crimes that do not involve dishonesty may be excluded if balancing tests are satisfied.
56
What are the balancing tests for excluding evidence of prior convictions that do not involve dishonesty, as a method of impeachment?
If witness is criminal defendant: If not shown that probative value outweighs prejudicial effect (reverse 403)
Other witnesses: If probative value is substantially outweighed by prejudicial effect (403)
57
May one use a prior conviction of over 10 years ago to impeach a witness?
No, unless extraordinary circumstances and satisfies 403 and notice
58
May one use a pardoned conviction to impeach a witness?
Not if the pardon is based on rehab and there was not subsequent felony, or if pardon was based on innocence
59
May one use a juvenile conviction to impeach a witness?
Generally not, unless judge uses discretion in criminal case. May only do so if the witness is not the defendant, it would be admissible for an adult, and it's necessary to determine verdict
60
May one use a constitutionally defective prior conviction to impeach a witness?
Not for any purpose
61
Is a foundation needed to introduce evidence of prior conviction to impeach a witness through extrinsic evidence?
No
62
What kind of bad acts are allowed to be used to impeach a witness?
Only those that involve untruthfulness, and there is good faith to believe witness committed it. May only be used on cross, no extrinsic allowed.
63
How to impeach a hearsay declarant?
Any impeachment methods that would be admissible for a witness. Declarant may be called as a witness.
64
What are ways to rehabilitate an impeached witness? (3)
1. clarify on direct
2. character evidence (reputation and opinion) about truthfulness
3. prior consistent statement- allowed in 2 situations
65
What are 2 situations in which prior consistent statements may be used to rehabilitate a witness?
1. If witness was attacked by a motive to lie and the statement came before the motive
2. If witness was attacked by any other ground and the statement makes them look more credible
66
Definition of hearsay
statement or non-verbal assertion made by a human outside of this trial that is offered for the truth of the matter asserted
67
Statutory non-hearsay exclusions (2)
1. prior statements of a testifying witness (4 types)
| 2. statements by or attributable to opposing party (3 common types)
68
What are the 4 types of prior statements of a declarant-witness that are excluded from hearsay?
1. identification
2. inconsistent statement given under oath
3. consistent statement offered to rebut a charge that DW has a motive to lie that was made before the motive
4. consistent statement offered to rehabilitate DW's credibility after it was impeached on grounds other than untruthfulness
69
What are 3 common opposing party statements that are excluded from hearsay?
1. judicial and extra-judicial statements (inconclusive statements made informally)
2. Adoptive statements (acquiesced or impliedly adopted through silence without denying)
3. Vicarious statements (made by someone with a sufficient relationship to DW)
70
5 hearsay exceptions where declarant must be unavailable
1. Former testimony
2. statement against interest
3. dying declaration
4. statement of personal or family history
5. statement against party procuring declarant's unavailability
71
How to use Former Testimony hearsay exception
Declarant is unavailable, previous statement made under oath, opposing party had opportunity to develop testimony previously (an opposing party was a party in a former action involving the same subject matter)
72
How to use Statement Against Interest hearsay exception
Statement made by unavailable declarant, against a major interest at the time it was made, with personal knowledge, being aware it was against their interest, and would not have been made by a reasonable person unless believed to be true
73
How to use Dying Declaration hearsay exception
Unavailable declarant made a statement believing death was imminent, concerning circumstances of death, from first-hand knowledge, and it's a civil case or criminal homicide case
74
How to use Statement of Personal or Family History hearsay exception
A statement made by an unavailable declarant about a family matter by someone intimately associated with it who has personal knowledge
75
How to use the Statement Offered Against Party procuring Declarant's Unavailability hearsay exception
Statement of unavailable person admissible against party who caused the unavailability through an intentional wrongdoing to stop the declarant from testifying
76
14 types of hearsay exceptions for which unavailable is immaterial
1. excited utterance
2. present sense impression
3. present state of mind
4. medical diagnosis or treatment
5. business records
6. official records
7. recorded recollection
8. learned treatise
9. ancient documents
10. docs affecting property interest
11. reputation character evidence
12. family records
13. market reports
14. residual catch-all (trustworthy, necessary, and notice)
77
What types of statements will be excluded under Confrontation Clause?
Statements that are testimonial (more formally documented) in nature that are offered against a defendant in a criminal case when the declarant is unavailable and there was no opportunity to cross examine the declarant
78
6 federally recognized privileges
1. attorney-client
2. spousal immunity (criminal only)
3. marital confidential communications
4. therapist-client
5. clergy-penitent
6. governmental
(MASCOT)
plus:
constitutional 5th amendment- against self-incrimination
79
common state-recognized privileges (use in federal ct diversity cases) (3)
(JAP)
physician-patient
accountant-client
professional journalist
80
4 exceptions to attorney-client privilege
1. services were obtained to aid in crime
2. legal services are at issue
3. relevant to breach of duty in malpractice
4. relevant to issue between parties claiming through a deceased client
81
How to waive undisclosed part of disclosed material covered by attorney-client privilege (3)
Waiver of disclosed part is intentional, they are about same subject matter, and should be considered together to avoid unfairness
82
Exceptions to physician-patient privilege (state law majority rule) (4)
1. patient puts physical condition in issue
2. services were sought to aid in wrongdoing
3. relevant to breach of duty in medmal case
4. waived through contract
83
When do spousal immunity privilege and spousal communication privilege not apply? (3)
1. communication in furtherance of crime
2. legal action between spouses
3. spouse is charged with crime committed against the other
84
MEE Character Evidence
(1) If it is a types of case in which trait is essential to claim- everything allowed
(2) If for propensity: depends if criminal or civil
Criminal cases:
If it is sexual of D- specific acts allowed
If it is to show propensity/conformity of D-
-can be about D if in reputation or opinion form,
if initiated by D, pertinent and personal (bring character
witness or cross examine P's witness with Did You
Know questions)
-Bad acts only allowed for non-character purpose (MIMIC),
relevant, notice
If it is about V-
-only after D opens the door of self-defense
(peacefulness trait)
- in sex assault case, past sexual history only allowed if
for physical evidence, or consensual behavior between
D and V
Civil cases:
propensity- generally never allowed
sex acts of D allowed for propensity (specific acts)
non-character purpose allowed
victim's sexual history allowed if satisfies reverse 403
(3) If it is to impeach on character for truthfulness:
-opinions or reputation allowed for untruthfulness, and
for truthfulness if it's attacked
-prior convictions- dishonest crimes allowed, non-
dishonest crimes may be excluded in criminal case if
unfair to D (reverse 403), all crimes of over 10 years ago
not allowed unless extraordinary circumstances,
juvenile/constitutionally defective/pardoned generally
inadmissible
-bad acts- about a witness, no extrinsic evidence, judge
may preclude if unfair
85
MEE Hearsay
(1) Does it satisfy hearsay definition and relevant?
(2) Is it excluded?
- Is the declarant testifying as a witness? If it's about
identification, inconsistent formal statement, or
rebutting a accusation of fabrication- allowed
- Is it the declarant a party opponent? (Or if it's an
adoptive/vicarious admission)- allowed
(3) Is it excepted?
- Is the declarant unavailable? (Frank Sinatra Doesn't
Pick Popcorn)- allowed
-Is it a type of spontaneous statement (EU, PS, medical)
or business/document/record? (all the other
exceptions)- allowed
(4) Can it fit into the catch- all? (strictly necessary, notice,
sufficiently trustworthy) - allowed
(5) is it barred by CC? (declarant unavailable and testimonial)
86
MEE Privileges
If it's a diversity case- apply state law (usually includes MASCOT and JAP)
If federal q case- this is federal law:
```
6 privileges (MASCOT)
5th amendment- self-incrimination
```
