Evidence Flashcards
What is an important instance when state law affects an evidence issue instead of the FRE?
In a DIVERSITY case where state law applied, state privileges apply - otherwise federal common law of privileges applies
When does the FRE not apply in federal proceeding [disregard privileges]?
1) Court’s determinations of preliminary issues
2) grand jury proceedings
3) sentencing, bail, estradition, probation
What is the standard for “relevance” under the FRE?
Evidence is relevant if it has any tendency to make a fact of consequence more or less likely.
What is Rule 403?
Court has the discretion to exclude evidence where the probative value is SUBSTANTIALLY OUTWEIGHED BY:
- danger of unfair prejudice
- confusion of the issues
- misleading the jury
- undue delay
- waste of time
- needless presentation of cumulative evidence
What is notably absent from the list in 403 and is thus not a ground for exclusion?
Unfair surprise
What is the general rule about using past occurrences to prove the occurrence at issue in the case?
[This is outside of the character evidence context]
What are the exceptions to that rule?
Evidence of prior unrelated occurrence to prove a currentoccurrence is usually excluded under 403 EXCEPT:
- history of P’s prior accident admissible to prove prior false claims or preexisting injury (but not admissible to prove D not at fault)
- similar accidents/injuries caused by the same condition to prve existence of a dangerous condition, that the dangerous condition was the cause of the present injury, or that D had notice of the condition (but not that P is careless)
- absence of similar incidents to show D’s lack of knowledge (but not D’s lack of negligence)
- previous similar acts admissible to prove intent/motive
- sales of similar property to prove value
- rebutting a claim of impossibility
- resolving complicated issues of causation (e.g. blasting damaged neighbors house so probably damaged P’s house)
- Habit
- Industry custom as evidence of a standard of care (but maybe the whole industry acts negligently)
What is habit?
Can be personal or the habit of an organization. Habit is admissible to prove the person/org acted in accordance with the habit on a particular occasion
Must be a regular response to a specific set of circumstances.
What are the two requirements for habit?
Function of (1) Frequency of conduct (2) particularity of the circumstances
What is the extent of the public policy exclusion for liability insurance?
Evidence of D’s liability insurance is not admissible to prove D’s fault, but is admissible to prove:
1) ownership/control IF DISPUTED
2) impeach a witness
3) as part of an admission of liability where the existence of insurance coverage cannot be severed (e.g. Don’t worry, my insurance will pay)
What is the extent of the public policy exclusion for subsequent remedial measures?
Evidence of D’s subsequent remedial measures is not admissible to prove D’s fault, but is admissible to prove:
1) ownership/control/feasibility IF DISPUTED
2) prove the opposing party destroyed evidence
What is the extent of the public policy exclusion for civil settlements and statements made during civil settlement negotiations?
Evidence of compromise offers or statements made during settlement talks are not admissible to:
- prove the validity or amount of a disputed claim OR
- impeach with PICS or contradiction
- Note how there must be a claim or some indication that a party was going to make a claim before there can be talk of a settlement AND the claim must be in dispute as to validity or amount
When are civil settlements and statements made during civil settlement negotiations admissible?
Admissible to impeach on grounds of bias (often when one party has settled and is now testifying favorably to the paryt they settled with)
If the civil settlement is with the government, any statements made will be admissible if offered in a criminal case
What is the extent of the public policy exclusion for plea discussions?
The following are inadissible against the D who made the plea or participated in the plea discussions:
1) offers to plead guilty
2) withdrawn guilty pleas
3) actual no contest pleas
4) statements of fact in any of the above pea discussions
Is evidence of a guilty plea admissible?
Yes - as a statement of an opposing party
What is the extent of the public policy exclusion for offers to pay medical expenses?
The offer to pay medical expenses is not admissible but any admissions of fact adjacent to it are admissible
*But beware offers to pay medical expenses that are also offers to settle, then the exclusion for settlement discussions kicks in
When is C4P admissible in a civil case?
When character is in issue (ie when it is an essential element in the case) which is only:
1) defamation
2) child custody
3) negligent hiring/entrustment
then all forms of character evidence are admissible. (but must still be relevant to the particular character trait in issue)
D can’t open the door for D or V in a civil case.
What is the difference between character opinion testimony and character reputation testimony?
Opinion is based on personal knowledge of a witness who knows the person
Reputation is testimony as to the person’s general reputation in the community (not just hearsay from a couple of people or personal knowledge)
Can the prosecution introduce evidence of C4P against a criminal defendant?
No, P cannot open the door, BUT P can offer C4P IF:
- D opens the door for himself or V
- D in homicide case offers any evidence that V was the first aggressor (P can offer character for peacefulness)
D has opened the door by introducing rep/op testimony of good character on a relevant trait, what can P do now?
P can use specific acts (BUT NO EXTRENSIC EVIDENCE) on cross of character witness FOR THE TRAIT AT ISSUE
- In theory, for the purpose of proving the character’ witness’s lack of knowledge not to prove C4P
P can also call its own rep/op witnesses
D has opened the door by introducing rep/op testimony of good character on a relevant trait, can P cross the character witness using D’s prior arrests?
Yes
P is impeaching W’s credibility, can P use W’s prior arrests as a prior bad act?
No - an arrest is not a bad act and so is not admissible to impeach
P is crossing D’s character witness about D’s character, what kind of evidence can P use?
Can bring up any specific acts (including arrests) on a relevant trait any as long as intrinsic (no extrensic) (remember trait must be relevant because the fiction is that you’re only attacking W’s knowledge of D’s rep or the validity of their opinion)
Can also later introduce rep/op testimony
P is crossing D’s character witness and the witness denies all of the specific acts that P is attempting to cross on, what can P do?
Nothing - P cannot introduce extrensic evidence to prove it
P is impeaching W’s credibility using W’s own prior convictions. W denies the prior convictions. What can P do?
P can use extrensic evidence to impeach (introduce the record of conviction)
Can a criminal defendant offer evidence of C4P?
Yes, D can open the door with rep/op testimony on a PERTINENT TRAIT (BUT NO SPECIFIC ACTS)
Can character ever be an element of a crime?
No, not on the bar exam.
Does D put their character at issue simply by testifying?
No, but D does put his credibility at issue (C4T) so P can impeach credibility
When can D offer evidence of V’s relevant bad character trait?
Must be REP/OP relevant to proving innocence
- Can’t be sexual history in a sexual assault case
Can offer without restriction if offering to prove knowledge or reasonableness of D’s response (ie a nonpropensity purpose)
D has opened the door to proving a relevant trait of V’s character by rep/op, how can P respond?
Can introduce rep/op of V’s good character or D’s bad character for the same trait
Can use specific acts on cross of a character witness (but no extrensic specific acts)
When can P offer evidence of V’s character for peacefulness even if D has not opened the door on that trait with character for violence?
If it’s a criminal homicide case and D offers any evidence of self-defense, P can introduce rep/op testimony about V’s character for peacefulness
When is a rape victim’s sexual history admissible in a criminal case?
Only when it’s a specific instance to prove someone other than D was the source of semen, injury, physical evidence
OR
Specific instances between V and D if offered by P for any reason or if offered by D to prove consent
When is a rape victim’s sexual history admissible in a civil case?
When the victim’s sexual behavior’s probative value substatially outweighs the danger of harm to the victim and unfair prejudice to any party.
Reputation admissible only if it has been placed in controversy by the victim
When is evidence of D’s prior bad acts admissible?
For some purpose other than character for propensity
MIMIC: Motive, Intent, lack of Mistake, Identity, Common plan/scheme
BUT ONLY IF D is actually contesting that issue (if there is no question of identity, can’t offer prior bad acts to prove it)
What requirements be met before P can offer prior bad acts for a nonpropensity purpose?
~ Must meet a sufficiency standard (must be sufficient evidence to support a jury finding that D committed the other misconduct)
- Must pass 403
- Must give notice stating nonpropensity purpose in a criminal case (but court can excuse for good cause)
What is the rule for offering D’s prior acts of sexual assault or child molestation?
Plaintiff or prosecution can offer prior acts of sexual assault or child molestation against D for any purpose in a CIVIL OR CRIMINAL CASE where D is accused of sexual assault or child molestation
- Sufficiency standard applies (no requirement for a conviction)
- 15 days notice to D required but can be waived on showing of good cause
What are the 3 issues you should consider when faced with a writing in an evidence question?
1) Authentication
2) best evidence rule
3) hearsay
What is requried for authentication? When is it required?
For a writing to be received into evidence, it must meet a sufficiency standard that the writing is what the proponent offers it to be
What kind of evidence can be offered to authenticate a writing?
Opponent’s admission (in court, in pleading, in stiputation)
Eyewitness testimony of anyone who saw the document executed
Handwriting verification (by the jury, by an expert, by opinion of a layman with PREEXISTING FAMILARITY with the alleged writer’s writing. Preexisting familiarity can be satisfied by just seeing the handwriting once before)
Ancient Document (>=20 Yrs old in a condition and place consistent with an authentic doc)
Reply Letter Doctrine
Photographs/Videos (verified by a W familiar with the scene that is fair and accurate or unattended camera + evid of proper operation)
XRay/Electrocardiogram (by proving the process valid, machine working, operator trained)
What is the difference between the authentication requirement for ancient documents and the hearsay exception for ancient documents?
Documents may be authenticated if they are at least 20 years old but they only qualify for the hearsay exception if they were created before 1998
(so a doc could be authenticated but still excuded as hearsay)
What kind of evidence can be offered to authenticate an audio recording?
Voice identification made by anyone who has heard the voice at any time including after the litigation has begun
Telephone conversations made by a PARTY TO THE CALL who testifies that EITHER
1) they recognized the other person’s voice
2) the speaker had knowledge of certain facts that only a particular person would know
3) they called the person’s number and the voice answered as that person or that person’s residence
4) they called a business and taled with the person answering about matters relevant to the busines
What are “self authenticating” documents?
Domestic/foreign public documents under seal (or foreign equivalent)
Official publications (e.g. govt pamphlet)
Certified copies of public records or private records on file in a public office
Newspapers and periodicals
Trade inscriptions and labels
Acknowledged/notarized documents
Business records or electronically generated records if they are certified and proponent gives the adverse party written notice an opp to inspect.
What are the 3 questions to ask under a best evidence rule analysis?
1) Is the party seeking to prove the contents of the writing?
2) Is the writing the original?
3) Do any of the exceptions to the best evidence rule apply?
When does the best evidence rule apply?
When a party seeks to prove the contents of a writing which is basically only when the writing is a legally significant instrument or all other knowledge is derivative of the writing.
What is a “writing” for purposes of the best evidence rule?
A writing, recording, photograph, video, x-ray, any tangible collection of data
What does the best evidence rule require when it does apply?
Must produce the “original” which includes the actual original and any counterparty intended by the party executing it to have the same effect as the original (e.g. negative of a photo or a printout of an electronic file)
What is a duplicated for best evidence rule purposes? When are duplicates acceptable in place of an original?
Duplicate = a copy made by mechanical means
Duplicates are admissible like originals unless:
1) the circumstances make it unfair to admit the duplicate OR
2) there is a genuine question raised about the authenticicity of the original
What is secondary evidence for best evidence rule purposes? When is secondary evidence admissible?
Secondary Evidence = any evidence that is not an original or a duplicate
Secondary evidence is admissible when there is satisfactory explanation for failure to produce the original such as loss/destruction (not in bad faith), cannot be obtained by any available judicial process (possessor out of court’s reach), is in the possession of an adversary who failed to produce it.
Is there any preference among secondary evidence?
No - if there’s no original and a valid excuse, testimony from memory, handwritten notes, etc are all equally admissible
What are the exceptions to the best evidence rule?
1) Summaries of voluminous records if the proponent makes the originals/duplicates available for inspection/copying (and court may order production of the originals)
2) Certified public records (including copies of public records that are certified/testified to as correct)
3) Writing is of minor importance to the matter in controversy
4) Testimony or written admission of opponent
What questions adjacent to the best evidence rule are reserved for the jury?
1) Whether an original ever existed
2) Whether a writing produced at trial is an original
3) Whether the evidence offered correctly reflects the contents of the original
But generay questions about admissibility are decided by the judge
What are the two requirements for the admission of real evidence?
1) Object must be authenticated under a sufficiecy standard to be what the proponent claims it to be either by a) testimony of a witness that they recognize the object as what it is offered to be OR b) evidence that the object has been held in a substantially unbroken chain of possession
2) If the condition of the object is significant, the item must be in substantially the same condition at trial
What type of evidence is a reproduction like a photograph, diagram, map, etc. ?
Items used entirely for explanatory purposes are permitted at trial but are usually not admitted into evidence, so they usually aren’t evidence at all but if they are admitted they are real evidence (subject to authentication and condition requirements)
What is required to admit a map/chart/model for the purpose of illustrating testimony?
Must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted
Are in court demonstrations permissible?
Yes but the experiment must be performed under conditions that are substantially similar to those attending the original event
Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury
What is the limitation on the exhibition of injuries in court?
403 - might be unfair prejudice
What are the competency requirements of the FRE?
No competency requirements - witnesses presumed competent but W must:
1) have personal knowledge of their testimony under a sufficiency standard
2) Give an oath/affirmation
What is required of an interpreter if one is required for W to testify?
Interpreter must be qualified and must take an oath to make a true translation
What is the analysis for determining if a child can testify?
Competency of a child depends on the capacity and intelligence of the PARTICULAR child as determined by the trial judge
What is the analysis for determining if an insane person can testify?
Can testify if they understand the obligation to speak truthfully and have the capacity to testify accurately
Can jurors testify?
Not before the jury in which they are sitting and not about what occurred in deliberations or what influenced their decision BUT can testify to:
- info that was improperly brought to the jury’s attention
- any outside influence brought to bear on any juror
- mistake on the verdict form
- any clear statements that they relied on racial stereotypes or animus to convict a criminal defendant
Juror testifies that another juror (or they themselves) have racial animus or stereotyped a criminal defendant that they convicted. Overturn conviction?
Only overturn the conviction if the court finds that racial animus was a significant motivating factor in that juror’s vote to convict. (this would violate 6th amd right to jury trial)
What is a dead man’s act?
There is no federal dead man’s act - assume there’s not one unless stated otherwise
provides that in CIVIL cases, someone with a stake in the outcome is incompetent to testify to a personal transaction or communication with the deceased when the testimony is offered against the deceased’s successors in interest.
What determines if a form of questioning is persissible (if there is no FRE prohibiting it)?
The trial judge’s discretion - rules agaisnt leading on direct, scope of cross, and improper question format are all based on judicial discretion (not the FRE)
Leading questions are generally not allowed on direct - what are the exceptions?
To elicit preliminary/introductory matter or
If W needs help responding because of lack of memory, immaturity, or physical or mental weakness or
W is hostile
How do most judges limit the scope of cross examination?
Generally limited to:
1) scope of direct (including all inferences to be drawn from it)
2) matters that test credibility of W including impeachment
What are commonly prohibited types of questioning?
Questions that are misleading (can’t be answered without making an unintended admission), compound, argumentative, conclusionary, cumulative, unduly harassing, embarassing, call for narrative/speculation, assume facts not in evidence
What types of answers may be striken in the judge’s discretion?
Answers that lack foundation in W’s personal knowledge and answers that are not responsive to the specific question asked.
Can a witness read their testimony from a prepared statement?
No - must testify based on present recollection (absent recorded recollection requirements)
What can be used to refresh a witness’s memory?
Literally anything - that thing does not come into evidence (the only evidence is what comes out of the witness’s mouth). Still can’t read straight from the writing
What can the adverse party request when W refreshes their memory on the stand?
What is the sanction if the refreshing party fails to produce the writing?
In a criminal case if prosecution fails to produce the writing as ordered, judge must strike W’s testimony and can declare a mistrial
In a civil case if any party fails to produce the writing as ordered, the judge can issue any appropriate order
What can the adverse party request when W refreshes their memory before taking the stand?
Adverse party can only have the writing produced, cross W about the writing or admit relevant pieces into evidence if justice so requires
W’s memory is not refreshed even after looking at the writing so the party lays the appropriate foundation and W reads it into evidence. Hearsay?
It is hearsay, there’s an exception
What foundation is required for W to use a recorded recollection (instead of refreshing)?
1) Attempt to refresh failed
2) W had personal knoweldge of the facts in the record when it was made
3) Record made by W or by someone under their direction or was adopted by W
4) Record was made while the matter was fresh in W’s mind
5) Record accurately reflects W’s knowledge and W vouches for the accuracy of the record
Can the record in past recollection recorded be offered into evidence?
Not unless offered by an adverse party - can only be read into evidence by the witness
What can an adverse party demand of the writing used for prior recollection recorded?
Adverse party can demand production of it, cross W on it, and admit any portion relevant to the testimony into evidence (just like with recorded recollection)
When is lay opinion evidence admissible?
When it is:
1) based on matters within W’s personal knowledge
2) it is helpful to the jury
3) it is not based on any scientific, technical or specialized knowledge
Can a lay person give their opinion on voice or handwriting identification?
Yes - preexisting familiarity required for handwriting opinion (has to have seen the person’s handwriting at least once before trial) but familiarity with voice can be acquired for purposes of trial
Can a lay witness give their opinion as to if someone acted as an agent or whether a contract was formed.
No - a lay witness cannot testify as to legal conclusions
What are the requirements for expert testimony to be admissible?
1) Subject matter must be sufficiently technical where an expert would help the fact finder
2) Opinion must be on sufficient facts/data
3) Opnion must be a product of reliable principles/methods
4) Expert must have reliably applied the principles and methods to the facts of the case
What are the requirements to certify someone as an expert?
They must possess special knowledge, skill, experience, training or education
What are the 3 sources of information that an expert can base their opinion on?
1) Facts that the expert personally oberved
2) Facts made known to the expert at trial or in a hypothetical question
3) Facts not personally known but are reasonably relied upon by other experts in the field (even if those facts are not admissible as evidence)
An expert bases their opinion on facts that would not be admissible as evidence. Can the expert disclose those facts to the jury?
No, UNLESS
- the court determined the probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect (reverse 403 balancing test favoring nondisclosure)
Does an expert have to discuss the factual basis of their opinion on direct examination? On cross?
Unless the court orders otherwise, the expert does not have to disclose the basis of their opinion on direct, BUT is required to disclose it if asked on cross
What level of certainty must an expert possess in their opinion for it to be admissible?
“reasonable probability” - a mere guess or speculation is not sufficient
The court must act as gatekeeper for reliability of expert testimony. What are the 4 Daubert factors that thecourt uses to determine the reliability if an expert’s principles and methodologies?
TRAP
1) Testing of principle or methodology
2) Rate of Error
3) Acceptance in the field
4) Peer review and publication
How can a learned treatise be used?
Is this hearsay?
Can be used in impeach experts and substantively BUT must be used in the context of expert testimony (ie referenced by expert on direct or used to cross an expert)
It is hearsay but there is an exception
What foundation must be laid for use of a learned treatise?
Treatise must be establised as reliable by:
1) the testimony of the expert on the stand
2) the testimony of another expert
3) judicial notice
Can a learned treatise itself be admitted into evidence?
Can only be read into evidence - cannot be received into evidence as an exhibit
Can an expert give their opinion on the ultimate issue in a case?
Yes - BUT in a criminal case expert cannot opine on D’s mental state if mental state is an element of the crime/defense
When can a court appoint its own expert?
Whenever it wants to (on a party’s motion or not) and can ask parties to submit nominations.
The court can appoint any expert that consents to it and court must inform the expert of their duties.
Any party can depose, call, or cross the expert
Can the jury know that an expert was appointed by the court?
Yes - court may authorize disclosure that the expert was appointed by the court.
Who decides the expert’s comp if the expert is appointed by the court?
Court sets reasonable comp
A party moves to have a witness excluded from the courtroom, can/should the judge comply?
The trial judge MUST order the requested witnesses excluded when a party requests and can also exclude on its own motion.
BUT a judge cannot exclude:
1) a party or employee/designated officer of a party
2) a person whose presence is essential to the presentation of a party’s claim or defense (e.g. an expert)
3) a person statutorily authorized to be present
