Evidence Flashcards
1
Q
What is an important instance when state law affects an evidence issue instead of the FRE?
A
In a DIVERSITY case where state law applied, state privileges apply - otherwise federal common law of privileges applies
2
Q
When does the FRE not apply in federal proceeding [disregard privileges]?
A
1) Court’s determinations of preliminary issues
2) grand jury proceedings
3) sentencing, bail, estradition, probation
3
Q
What is the standard for “relevance” under the FRE?
A
Evidence is relevant if it has any tendency to make a fact of consequence more or less likely.
4
Q
What is Rule 403?
A
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
5
Q
What is notably absent from the list in 403 and is thus not a ground for exclusion?
A
Unfair surprise
6
Q
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?
A
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)
7
Q
What is habit?
A
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.
8
Q
What are the two requirements for habit?
A
Function of (1) Frequency of conduct (2) particularity of the circumstances
9
Q
What is the extent of the public policy exclusion for liability insurance?
A
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)
10
Q
What is the extent of the public policy exclusion for subsequent remedial measures?
A
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
11
Q
What is the extent of the public policy exclusion for civil settlements and statements made during civil settlement negotiations?
A
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
12
Q
When are civil settlements and statements made during civil settlement negotiations admissible?
A
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
13
Q
What is the extent of the public policy exclusion for plea discussions?
A
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
14
Q
Is evidence of a guilty plea admissible?
A
Yes - as a statement of an opposing party
15
Q
What is the extent of the public policy exclusion for offers to pay medical expenses?
A
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
16
Q
When is C4P admissible in a civil case?
A
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.
17
Q
What is the difference between character opinion testimony and character reputation testimony?
A
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)
18
Q
Can the prosecution introduce evidence of C4P against a criminal defendant?
A
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)
19
Q
D has opened the door by introducing rep/op testimony of good character on a relevant trait, what can P do now?
A
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
20
Q
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?
A
Yes
21
Q
P is impeaching W’s credibility, can P use W’s prior arrests as a prior bad act?
A
No - an arrest is not a bad act and so is not admissible to impeach
22
Q
P is crossing D’s character witness about D’s character, what kind of evidence can P use?
A
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
23
Q
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?
A
Nothing - P cannot introduce extrensic evidence to prove it
24
Q
P is impeaching W’s credibility using W’s own prior convictions. W denies the prior convictions. What can P do?
A
P can use extrensic evidence to impeach (introduce the record of conviction)
25
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)
26
Can character ever be an element of a crime?
No, not on the bar exam.
27
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
28
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)
29
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)
30
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
31
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
32
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
33
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)
34
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)
35
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
36
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
37
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
38
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)
39
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)
40
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
41
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.
42
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?
43
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.
44
What is a "writing" for purposes of the best evidence rule?
A writing, recording, photograph, video, x-ray, any tangible collection of data
45
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)
46
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
47
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.
48
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
49
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
50
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
51
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
52
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)
53
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
54
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
55
What is the limitation on the exhibition of injuries in court?
403 - might be unfair prejudice
56
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
57
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
58
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
59
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
60
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
61
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)
62
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.
63
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)
64
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
65
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
66
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
67
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.
68
Can a witness read their testimony from a prepared statement?
No - must testify based on present recollection (absent recorded recollection requirements)
69
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
70
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?
Adverse party can request to have the writing produced at trial, cross examine the witness about the writing, and introduce portions of the writing relatng to W's testimony into evidence
-----
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
71
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
72
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
73
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
74
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
75
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)
76
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
77
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
78
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
79
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
80
What are the requirements to certify someone as an expert?
They must possess special knowledge, skill, experience, training or education
81
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)
82
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)
83
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
84
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
85
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
86
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
87
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
88
Can a learned treatise itself be admitted into evidence?
Can only be read into evidence - cannot be received into evidence as an exhibit
89
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
90
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
91
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.
92
Who decides the expert's comp if the expert is appointed by the court?
Court sets reasonable comp
93
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
94
Can the judge question a witness? Can a judge call its own witnesses?
Yes, the court may examine a party's witness or call its own witnesses.
Any party can cross a witness called by the court
95
A judge calls a witness, when can a party object?
Party can object at the time the witness is called or at the next available opportunity when the jury is not present
96
What is bolstering or accrediting?
A party cannot bolster the credibility of their own witness (e.g. with PCS) until the witness is impeached?
97
What are the exceptions to the rule against bolstering?
Can offer evidence that W made a timely complaint or a prior statement of identification.
(the prior statement of ID can also serve as substantive evidence that the ID was correct)
98
Which parties may impeach a witness?
Any party including the party that called the witness
99
What foundation is required for impeachment by PICS?
IF EXTRENSIC EVIDENCE OF PICS, Opposing party must be given the opportunity to explain or deny and examine the impeached witness about it UNLESS:
- PICS is an admission by the party opponent
- PICS is by a hearsay declarant to impeach that declarant
- justice so requires
100
Can extrinsic evidence be used to impeach by PICS?
Yes- can use intrinsic or extrensic (but remember the foundation required for extrensic)
101
Is a PICS admissible substantively or only to impeach?
Only admissible to impeach because its hearsay unless:
- it's sworn (then not hearsay)
- it's by an opposing party (then not hearsay)
- or some other hearsay exception applies
102
When is fuzzy memory or lack of detail inconsistent for purpose of impeachment by PICS?
A prior statement that omits a fact asserted in current testimony that would have naturally been included IS inconsistent.
Present lack of memory of a fact is generally NOT inconsistent with a prior statement relating that fact.
If W remembers a fact on the stand but did not remember it previously, the earlier lack of memory IS inconsistent
103
Can a party ever impeach W on a collateral matter?
Cannot impeach W on a collateral matter via extrensic evidence or via PICS (intrinsic or extrensic)
104
What foundation is required for impeachment by bias?
None under the FRE, but some courts require that if W is to be impeached via extrensic evidence of bias, the party must question W about that bias on cross
105
Can evidence be admitted about a witness's bias even if the witness admits that source of bias?
Yes
106
Can extrinsic evidence be used to impeach by bias?
Yes - can use intrensic or extrensic.
Even some evidence that is otherwise inadmissible like arrests or liability insurance is admissible if it's used to prove bias
107
What foundation is required for impeachment by sensory deficiency?
None
108
Can extrinsic evidence be used to impeach by sensory deficiency?
Yes - can use extrensic or intrinsic
109
What foundation is required for impeachment by specific contradiction?
None
110
Can extrinsic evidence be used to impeach by specific contradiction?
Yes, but cannot impeach on a collateral matter using extrensic evidence (can impeach on a collateral matter using intrinsic evidence though)
111
What is the collateral evidence rule?
Cannot impeach on a collateral matter using extrensic evidence.
Collateral means not independently relevant to the case
112
What foundation is required for impeachment by rep/op of C4UT?
What is a key limitation of rep/op C4UT impeachment?
None
| No specific acts and must actually be relevant to C4UT
113
What foundation is required for impeachment by prior conviction?
None
114
Can extrinsic evidence be used to impeach by prior conviction?
Yes - can use extrensic or intrinsic
115
What is the standard to admit prior crimen falsi convictions to impeach C4UT?
If Crimen falsi (look at elements not actual commission)-> Must admit
(regardless if felony or misdemeanor)
116
What is the standard to admit prior non-crimen falsi convictions to impeach C4UT?
If non-crimen falsi felony + W is criminal D -> exclude if P has not shown probative value outweighs prejudicial effect
If non-crimen falsi felony + W NOT criminal D -> 403 applies
117
What are the miscellaneous limitations on use of prior convictions to impeach C4UT?
If >10 years have passed from date of conviction or date of release (whichever is later), generally inadmissible unless 1) probative value substantially outweighs prejudicial effect AND 2) written notice to adverse party
If pardoned based on (rehabilitation and no repeat offense) or innocence, then can't admit
Juvenile convictions generally not admissible but judge has discretion in a criminal case where W is not the criminal D and prior conviction is to attack credibility of an adult and necessary to determine guilt
118
What are the key limitations on impeachment by prior bad acts to remember?
Admission of all prior bad acts to impeach W is at the discretion of the judge
Cannot use extrensic evidence
Must actually be probative of C4UT
Cannot refer to consequences of the bad act (like arrest)
Can use currently pending charges to prove bias in favor of the prosecution
119
Can extrinsic evidence be used to impeach by prior bad acts?
NO NO NO NO
120
When can a prior bad act of W's arrest be used to impeach W?
When it is offered to prove W is biased in favor of the prosecution (trying to get prosecution's good side or has cut a deal)
121
How can party impeach the testimony of a hearsay declarant (or the testimony of a person whose vicarious statement was admitted as a statement of an opposing party)?
to the same extent as any other witness - no need to give opp to explain or deny for PICS either
122
What are the methods of rehabilitating a witness's credibility?
The following methods are allowed, but the rehabilitation must meet the attack - if perception attacked, can't rehab truthfulness
1) Explanation on redirect
2) Rep/Op of C4T (but no specific acts)
3) PCS (if impeached for lying/bias due to motive arising after PCS OR if impeached by inconsistency or faulty memory)
123
If a PCS is allowed to rehabilitate a witness's credibility is it also admissible substantively?
Yes - there's a hearsay exception for that
124
What is hearsay?
An out of court statement offered for the truth of the matter asserted.
125
Why is hearay generally excluded?
Hearsay denies the adverse party the opportunity to CROSS examine the declarant at the time the statement was made, PRESENCE in court, OATH to be honest
126
What is a "statement" for purposes of the hearsay rule?
An oral or written assertion OR conduct intended as an assertion
127
Can a nonhuman (computer, animal) ever make a "statement" for hearsay purposes?
No NEVER
128
What are some common instances of statements that are NOT offered for the truth of the matter asserted?
1) Verbal acts (legally significant statements - esp contract + defamation)
2) Statements offered to show their effect on the listener or reader
3) Offered as circumstantial evidence of declarant's state of mind
129
What is a good test for if the statement is not offered for the truth of the matter asserted?
Ask if it matters if the fact was conclusively proven/disproven
130
What are the categories of nonhearsay or hearsay exclusions?
1) Admission
2) Prior sworn inconsistent statements [If declarant testifies and is subject to cross]
3) Prior consistent statements [If declarant testifies and is subject to cross]
4) Prior IDs [If declarant testifies and is subject to cross]
131
Is personal knowledge required of admissions of party opponents?
NO
132
What kind of admissions my party opponents cannot be contradicted at trial?
All of the following are CONCLUSIVELY ESTABLISHED and cannot be contradicted:
- A party's formal judicial statements (pleadings, stipulations, etc)
133
Can testimony during a trial/deposition and out of court statements by a party be explained/contradicted?
Yes - informal judicial statements made during testimony and out of court statements can be explained
134
Can a party's formal judicial statements (including guilty pleas) in a separate case be admitted against them? Is this statement conclusive?
Statements made by a party in a separate case can be admitted against that party.
BUT these are not conclusive and can be explained at the trial at hand
135
When is a statement adopted by a party via silence?
If:
- The party heard and understood the statement
- The party was physically and mentally capable of denying the statement
- A reasonable person would have denied the accusation
(But silence in the face of accusations by the police in a criminal case is almost never considered an admission of a crime)
136
If parties are joined as co-parties does a statement by one of them constitute a vicarious admission by the other party?
No
137
What are the ways that company have make an admission for the purposes of the hearsay exclusion?
1) Via an authorized spokesperson
2) a statement by an agent/employee if the statement (a) concerned a matter within the scope of their agency/employment and (b) was made during the existence of the agency/employment relationship (although statement doesn't have to be made while "on the job")
138
What are the types of vicarious admissions for purposes of the hearsay exclusion?
1) Employee
2) Agent
3) Partner
4) Co-Conspirator
5) Privies in title and joint tenants (state court only)
139
What is the extent of the hearsay exclusion for admissions by partners?
After a partnership is shown to exist, a statement of one partner relatig to matters within the scope of the partnership business is binding on the other partners
140
What is the extent of the hearsay exclusion for admissions by co-conspirators?
Statements of one co-conspirator that were:
1) in furtherance of the conspiracy to commit a crime or civil wrong
2) while the declarant was participating in the conspiracy
are admissable against co-conspirators.
Court must find the conspiracy by ponderance of the evidence
141
What is the extent of the hearsay exclusion for admissions by those in privity of title and joint tenants?
STATE COURT ONLY
Statements of former owner at the time they owned are admissible against those claiming under them (grantees, heirs, etc)
Statements by each joint owner are admissible against the other
142
What is the standard for finding the requisite relationship for a party admission exclusion from hearsay?
The court evaluates under preponderance of the evidence - can conaider the contents of the statement but also need some independent evidence
143
What is always required of all testimony but is a particular gotcha in hearsay?
The declarant or witness needs personal knowledge of the fact
144
What are the 5 hearsay exceptions that require unavailability?
1) Prior sworn testimony
2) Statements against interest
3) Dying Declaration
4) Statement against a party wrongfully causing unavailability
5) Statements of personal or family history
145
What are the grounds for establishing a declarant as unavailable?
1) If unable to testify due to death or physical or mental illness
2) Exempt from testifying due to privilege
3) Refusal to testify concerning the statement despite a court order
4) Testify that they don’t remember the subject matter
5) Declarant is absent (beyond reach of subpoena) AND the proponent is unable to procure their attendance by other reasonable means
146
When is a declarant who is able to give deposition testimony in lieu of attending trial considered to be an available witness?
Deposed witness not available at trial that is deposed instead is considered unavailable only for purposes of the former testimony exception and the wrongfully procured absence exception
147
What are the two somewhat conflicting outcomes of a declarant-witness showing up and testifying that they can't remember what the subject matter of their prior statement?
For confrontation clause purposes, they are considered to be present and available for cross
For hearsay exception purposes, they are considered to be unavailable
148
What are the requirements for the former testimony hearsay exception?
1) Unavailability
2) testimony given under oath at a trial/hearing/deposition in the same/different case
3) The party against whom the testimony is now being offered (or in civil case the party's predecessor in interest*) had OPPORTUNITY and SIMILAR MOTIVE to develop the declarant's testimony at the prior proceeding
*predecessor in interest means someone in privity with the current party (grantor-grantee, testator-executor, joint tenant)
149
What is required for the "opportunity and similar motive to develop the declarant's testimony at a prior proceeding for purposes of the former testimony hearsay exception?
Practically means the party against whom the former testimony is asserted in this case must have been a PARTY to the prior proceedng and the action must have involved the SAME SUBJECT MATTER (although no need for identical causes of action)
150
Does testimony at a grand jury proceeding ever qualify for the former testimony exception?
NEVER if offered by prosecution against a criminal D (because D had no opp to develop)
Maybe if offered by D against prosecution (must prove P had similar motive at grand jury as at the trial at hand)
151
Watch out for missing a PICS hearsay EXEMPTION because you're distracted with a prior sworn testimony hearsay EXCEPTION
tricky
152
What are the requirements for the former testimony hearsay exception?
1) Unavailability
2) The statement was against the person's pecuniary, penal, or proprietary (financial, criminal, or property) interest WHEN MADE
3) declarant must have been aware that the statement was against their interest when they made it
153
What is the limitation on statements against penal interest? When does it apply?
In a CRIMINAL case, a statement against penal interest qualifies for the statement against interest exception only if it is corroborated
Applies only in criminal cases
154
If a party makes a bunch of statements and some of them are against interest and some of them are not, which statements can qualify for the statement against interest exception?
Only those statements that are actually against interest - even if a bunch of them are made at the same time.
155
What are the requirements for the dying declaration hearsay exception?
1) Unavailability
2) The case is a criminal homicide prosecution (NOT including attempted homicide) OR any civil case
3) Declarant believed their death was imminent
4) Statement concerned the cause or circumstances of what the declarant believed was impending death
156
What are the requirements for the statement of personal or family history hearsay exception?
1) Unavailability
2) Statement concerns births, marriages, divorces, relationship, genealogical status
3) declarant is a member of the family in question (or intimately associated with it)
4) Statements based on declarant's personal knowledge o fhte facts or their knowledge of the family reputation
157
What are the requirements for the statement offered against the party procuring declarant's unavailability hearsay exception?
1) statement offered against a party who has engaged or acquiseced in wrongdoing to procure declarant's unavailability
2) the MOTIVATION of the wrongdoing was to procure the unavailability
158
What are the hearsay exceptions that do not require the declarant's unavailability?
1) Excited utterance
2) Present sense impression
3) Present state of mind
4) Statements made for purposes of medical diagnosis or treatment
5) Business records
6) Official/Public records
7) Recorded Recollection
8) Learned Treatises
9) Ancient documents
10) Documents affecting property interests
11) Reputation
12) Family Records
13) Market Reports
159
What is required for the excited utterance hearsay exception?
1) statement relating to a startling event
2) made while under the stress of the excitement (before declarant had time to reflect)
The rationale is that the excitement suspends the declarant's capacity to lie
160
What is required for the present sense impression hearsay exception?
1) must describe or explain an event or condition
2) must be made during or immediately after the event/condition
The rationale is that the declarant has no time to fabricate
161
What is required for the present state of mind hearsay exception?
What are the important inclusions and exclusions from this rule?
1) Statement of declarant's then existing state of mind or emotional, physical, sensory condition
Important inclusions = statements of motive intent or plan including intent to engage in conduct with another peron
Important exclusions = does not include statements of memory or belief to prove the truth of the fact remembered or believed
162
What is required for the medical diagnosis hearsay exception?
Is it rquired that the statemet be to a medical professional?
1) statement relates to medical history, past or present symptoms or their general cause
2) reasonably pertinent to medical diagnosis or treatment
Declarant does not have to be describing their own condition (could be for a family member) and statement does not necessarily have to be to a medical professional
163
If a single sentence contains part information for medical diagnosis and part accusation of wrongdoing, can you split the statement?
Yes - the diagnosis part comes in, the rest stays out
164
What is the child abuse exception to the medical diagnosis hearsay exception?
If a child abuse victim identifies their abuser in the course of treatment, many courts will admit that under the medical treatment exception even though it might be a stretch
165
If a doctor is hired for the sole purpose of testifying as an expet witness, do statements made to him fall under the medical treatment exception?
Yes - doesn't matter if it's for expert witness purposes
166
What are the elements of the business records exception?
1) Business (or regularly conducted activity)
2) Record regularly kept in ordinary COB
3) By someone with personal knowledge (or with info from someone who had personal knowledge and was under a duty to report)
4) Made at or near the time of the event
5) Authenticated by testimony or certification of the custodian of the records
* Opponent can show lack of trustworthiness and court can exclude
167
What is required to use a business record to prove the nonoccurrence of an event?
Must prove all the regular elements AND prove that it was regular practice to record ALL such events
168
What kinds of public records can come in under the public record exception?
1) Records of the activities of the public office/agency
2) Records of matters observed pursuant to a duty imposed by law
3) [In Civil cases and against the govt in criminal cases] Factual findings resulting from an investigation authorized by law
169
What are the elements of the public records exception?
1) A government office
2) made at or near the time of the event
3) by someone with knowledge or under a duty to report
4) pursuant to official duties
* Opponent can show lack of trustworthiness and court can exclude
170
To what extent can police reports come in under the public records exception?
They can be admitted as public records, BUT can't contain legal conclusions and can't be admitted against the defendant in a criminal case
171
When are records of vital statistics admissible under the public records exception?
If they are reported to a public office according to a legal duty
172
What is required to admit the absence of a public record to prove the record does not exist or that the matter did not occur?
Testimony or certification from the custodian of public records (or other qualified person) that they have diligently searched and failed to find a record.
But in a criminal case, under Confrontation Clause, D can demand the presence of the custodian so Prosecution has to give defense notice at least 14 days before trial
173
When is a prior judgment always admitted?
Certified copies of judgment are always admissible as proof that the judgment has been entered
174
When are judgments of prior criminal conviction admissible under the public records exception?
If it's a prior FELONY conviction, judgment admissible in criminal and civil actions to prove any fact essential to the judgment. (but it's not conclusive evidence)
In a criminal case, the govt can only use the judgment substantively against the accused and against all others for impeachment only
175
When are judgments of prior criminal acquittal admissible under the public records exception?
Prior criminal acquittals are not admitted.
176
When are judgments of prior civil judgments admissible under the public records exception?
Prior civil judgments are not admitted (subject to statutory exception about persona/family history and land boundaries)
177
When does the recorded recollection hearsay exception apply?
It's the same as the foundation for offeing the testimony
178
Can a recorded recollection be offered into evidence as an exhibit?
NO - must be read into evidence
179
What is the learned treatise hearsay exception?
Statements contained in a learned treatise are admissible substantively and to impeach IF:
1) treatise is established as reliable authority AND EITHER
2A) the excerpt is relied upon by an expert during direct OR
2B) the excerpt is brought to an expert's attention on cross
Can be read into evidence but cannot be offered as an exhibit
180
What is the ancient documents hearsay exception?
Any document prepared before 1/1/1998
181
What is the documents affecting property interests hearsay exception?
Statements in documents affecting interests in property are admissible if the statement is relevant to the document's purpose.
But this hearsay exception does not apply if later dealings in the property are inconsistent with the statement or the intent of the document
182
What kind of reputation evidence is allowed under the reputation hearsay exception?
Reputation of character, personal/family history, land boundaries, community's general history
183
What kind of statements come in under the family records hearsay exception?
Statements contained in family Bibles, jewelery engravings, genealogies, tombstone engravings, etc
184
What is the scope of the market reports hearsay exception?
The market report must be generally used an relied upon by the public or by persons in a particular occupation
185
What is the residual hearsay exception?
Statement comes in IF:
1) Sufficient guarantees of trustworthiness (consider corroborating evidence + totality of circimstances)
2) Statement is strictly necessary (more probative that any other reasonably available info)
3) Proponent must give reasonable notice to the adversary of intent to offer the statement (including content of statement and name of declarant)
186
What does the Confrontation clause guarantee?
```
Right to be confronted with the witnesses against criminal D
Requires either (physical presence + Cross) or (declarant unavailable and prior opp to cross)
```
187
To what kind of hearsay statements does the confrontation clause apply?
To testimonial statements which include:
Sworn testimony (grand jury, prior trial, preliminary hearing)
Affidavits (including by forensic analysts)
Statements to law enforcement with the primary purpose of building a case for later prosecution
To aid in an ongoing emergency is not testimonial
Statements from an abused child to teacher are not testimonial
Statements not to law enforcement are rarely testimonial
188
If a criminal defendant wrongfully makes a witness unavailable, can they still assert their confrontation clause right?
D can still assert confrontation clause right unless the wrongful act was INTENDED to procure the unavailability of the witness
189
Is a forensic analyst's report testimonial?
Yes - must produce the analyst (supervisor of the analyst is not good enough)
But forensic reports are allowed if not offered for their truth (e.g. if an expert makes an independent analysis of the data, the report can be referenced as partial basis for the opinion)
190
When does the state law of privileges apply?
When does the federal common law of privileges apply?
If diversity case in federal court and state substantive law applies, state privileges apply
If federal law applies in federal court, federal privileges apply
191
What are the federally recognized privileges?
1) Attorney-Client
2) Spousal Immunity
3) Confidential marital communications
4) Psychotherapist/social worker-client privilege
5) Clergy penitent privilege
6) Governmental privileges (including privilege not to disclose identity of an informant)
192
What are the privileges that are not federally recognized but are recognized by some states?
1) Physician-patient
2) accountant-client
3) journalist-source
193
What are 3 general requirements for all assertions of privilege?
1) only the holder of the privilege may assert it
2) To be privileged, the information must have been communicated in confidence (not intended to be shared with third parties)
3) neither counsel nor judge can comment on someone's claim of privilege
194
When is a privilege waived?
1) It is not asserted
2) voluntary disclosre of the privileged information by the person who holds the privilege
3) a contractual provision waiving the privilege in advance
*dislosure without the privilege holder's consent is not a waiver (including disclosure by one joint holder of a privilege)
195
What is required to assert attorney-client privilege?
1) confidential communication
2) between (someone believed to be an) attorney and client
3) for the purpose of procuring legal advice
196
What statements by corporate clients are privileged?
If the employees were authorized or directed by the corporation to make such statements to an attorney, the statements are privileged
197
An attorney requests that a doctor examine a client. What are the relevant privilege concerns?
There is no doctor-patient privilege because no actual treatment is contemplated
Attorney client privilee applies as long as the doctor is not called as a testifying expert
198
What happens to attorney-client privilege in the joint client context?
The communications of joint clients with their lawyer are privileged as to third parties but are not privileged as between them
199
Does attorney-client privilege continue after death?
YES
200
What are the main exceptions to attorney-client privilege?
Crime fraud exception - if the attorney's ervices were sought to aid in the planning or comission of something the client should have known was a crime or fraud
When legal services are put at issue
Dispute between attorney and client
Parties are claiming through the same deceased client
201
Some of a privilege is waived and now the adverse party wants to get more of it waived, what are the considerations?
Generally voluntary disclosure of prvileged info only waives privilege as to that info, but undisclosed privileged material is also subject to waiver IF:
- waiver of the disclosed material was intentional
- disclosed and undisclosed material are on the same subject
- the material should be considered together out of fairness
202
Does inadvertent disclosure waive privilege?
No if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error.
203
When does physician patient privilege apply?
STATE PRIVILEGE ONLY
- there was a professional relationship between physician and patient
- info acquired for purpose of diagnosis or treatment AND
- information necessary for diagnosis or treatment
204
To whom does the privilege belong in physician-patient privilege?
To the patient
205
What are the main exceptions to the physician-patient privilege?
1) Patient puts their physical condition in issue (e.g. personal injury)
2) Physician's assistance was sought to aid wrongdoing
3) Dispute between physician and patient
4) patient agreed by contract to waive the privilege (e.g. in an insurance policy)
206
When does the psychotherapist/socialworker-patient privilege apply?
IF there was a professional relationship between therapist/social worker and patient
- info acquired for purpose of professional services AND
- information necessary for professional services
207
What is the key exception to the psychotherapist/social worker-patient privilege?
Patient must put their mental condition at issue.
208
What are the elements of the spousal immunity privilege
Who holds the privilege?
One spouse cannot be compelled to testify against another
- while the marriage is in effect (terminates with the marriage)
- About anything that happened before or during the marriage (does not have to be a communication)
- Criminal case only (where spouse is criminal D or against aganst the legal interests of their spouse in any criminal case)
The witness spouse holds the privilege
209
What are the elements of the confidential marital communications privilege?
Who holds the privilege?
Applies to
- Confidential communications between husband and wife
- communication made during a valid marriage (but can be asserted after the marriage ends)
- civil or criminal case
Both spouses hold the privilege
Threats/abusive language are not privileged
210
What are the exceptions to both the spousal immuity pivilege and the confidential marital communications privilege?
1) communications or acts are in furtherance of a FUTURE joint crime or fraud
2) legal actions between spouses
3) one spouse is charged with a crime against the testifying spouse or either spouse's children
211
What are the two components of the purden of proof?
Burden of production
| Burden of persuasion
212
What is the burden of production? Does it shift?
The burden of production is the burden to make a prima facie case
Burden of production shifts once a prima facie case is established (other party must rebut)
213
What is the burden of persuasion? Does it shift?
Once party has met the burden of production (est prima facie case), the question is if they have met the burden of persuasion (ie have convinced the fact finder). Does NOT shift
Burden of persuasion is preponderance of the evidence in civil cases
Burden of persuasion is beyond a reasonable doubt in criminal cases
214
What preliminary questions are left to the jury and what is decided by the judge?
The jury decides questions of conditional relevance (e.g. if evidence is authentic, if a person was acting as agent, if witness has personal knowledge of their testomony)
The judge screens evidence under a sufficiency standard and decides the admissibility of evidence, whether a witness can testify, or if a privilege exists - the rest goes to the jury
215
What information can a judge consider when deciding the admissibility of evidence?
Can consider all nonprivileged evidence (even if not admissible)
216
When is the jury excused during the determination of preliminary questions?
Generally this is within the discretion of the trial judge, BUT jury must be excused IF:
- hearing involves admissibility of a confession
- criminal D is testifying at the hearing and D requests that the jury be excused
- justice so requires
217
If a criminal D testifies at a hearing on a preliminary question, does he waive 5th amd right against self incrimination? Is he subject to cross at trial?
No - 5th amd not waived and not subject to cross at trial (but may be subject to cross for the limited purpose of the hearing
218
When can judicial notice of a fact be taken?
IF ADJUDICATIVE FACT (related to a particular case): When the fact is "not subject to reasonable dispute" because it is either generally known in the court's jurisdiction or it can be accurately and readily determined by reference to unquestionable sources
IF LEGISLATIVE FACT (related to legal reasoning and law making): Court MUST take judicial notice of federal and forum state's law/regs. Courts MAY take notice of municipal ordinances Congressional resolutions, and nonforum state's law/egs
219
When is a common test (e.g. radar) judicially noticed?
Reliability of well accepted tests (radar, ballistics, paternity tests) are often noticed and will be admitted if it is proven they were properly administered
220
When (procedurally) can a fact be judicially noticed?
At any stage of the proceeding and on appeal
Court can notice on its own or on the motion of a party (movant must provide relevant info). If a party moves and establishes the required info, the court MUST take judicial notice of that fact
221
Is a judicially noticed fact conclusive?
In a civil case, yes
| In a criminal case, no
222
What is the effect of a presumption?
Proof of Fact A is not necessary once the fact giving rise to the presumption of Fact A is established - Shifts the burden of production but the burden of persuasion never shifts
223
What are some common rebuttable presumptions?
A properly addressed letter is delivered, 7 year absence -> death, presumption against suicide, presumed to be born to legally married parents, sanity, ownership of a car yields presumption that the driver was the owner or owner's agent, chastity, proper performance of official duties, solvency, marriage ceremony presumption of marriage
224
What is the difference in a permissible inference and a rebuttable presumption?
Permissible inference helps party meet their prima facie (burden of production) but does not shift the burden to the other party (e.g. res ipsa loquitur, presumption of innocence)
225
What is the rule of completeness?
Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of that evidence to introduce any other part that should be considered in fairness
226
What is the rule about when limiting instructions are given?
If evidence is admissible for one purpose but not for another purpose, the court MUST upon timely request give a limiting instruction
227
What is required for an issue to be preserved for appeal?
If evidence admitted: Party must timely object or move to strike
If evidence excluded: Part must submit an offer of proof (indicating the substance of the evidence) unless substance of the evidence was apparent from context
228
If a party objected to the admission of evidence pre-trial, does it have to object again at trial to preserve the issue?
No
229
When exactly should an objection to an improper question be made?
What if the answer is inadmissible?
After the question but before the answer
If answer is inadmissible, then motion to strike must be made as soon as answer emerges as inadmissible
230
At a deposition, what objections must be made at the time and what objections can be postponed until the deposition is offered into evidence?
Objections to the form of the question or to a testimonial privilege should be made when the question is asked (else waived)
Objections based on the substance of a question/answer can be postponed until deposition offered into evidence.
231
What is "opening the door" outside of the character evidence context?
A party who introduces evidence on a paticular subject cannot later complain when the adversary offers evidence on that subject because they "opened the door"
232
If witness answers a question but the answer is not responsive to the question, can a party move to strike?
Only the party asking the question can "move to strike" if the evidence is otherwise admissible
233
If an evidentiary issue was not properly preserved at trial, can the issue still be raised on appeal?
Yes - can be reviewed for plain error affecting a substantial right of a party
234
Can a judge comment on the weight of the evidence in federal court?
Yes
