Evidence Flashcards
What facts are subject to judicial notice?
Only those facts that are not subject to reasonable dispute because they are either (i) generally known within the territorial jurisdiction of the trial court, or (ii) capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned are subject to judicial notice.
With respect to preliminary questions of admissibility, who has the burden of persuasion?
The party offering the evidence ordinarily bears the burden of persuasion.
Note: The party offering the evidence is often referred to as the moving party, or the proponent.
What are the four requirements to admit a record under the recorded recollection hearsay exception?
(i) The record is on a matter that the witness once knew about;
(ii) The witness made/adopted the record when the matter was fresh in the witness’s memory;
(iii) The record accurately reflects the witness’s knowledge; and
(iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.
With respect to preliminary questions of admissibility, what is the burden of persuasion?
The party offering the evidence ordinarily bears the burden to persuade the judge by a preponderance of the evidence.
Note: This is also expressed as more likely than not.
What is an offer of proof?
An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence being offered by the proponent on the record.
Note: An offer of proof is often made outside the presence of the jury as it can include hearsay or otherwise inadmissible evidence that could prejudice the jury.
What is the plain error rule?
A plain error is one that is obvious to the reviewing court. A plain error that affects a substantial right is grounds for reversal, even if no objection was made.
Explain the completeness doctrine.
When a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of the writing or statement if, in fairness, it should be considered at the same time, such as when the omitted portion explains or clarifies the admitted portion.
Note: This rule allows the adverse party to have the omitted portion admitted immediately to ensure the finder of fact is not viewing the evidence too narrowly. This is really a rule of fairness.
When are leading questions proper on direct examination?
Leading questions are proper on direct examination when necessary to develop the witness’s testimony, including (i) preliminary background matters, (ii) hostile witnesses, and (iii) minors or those with difficulty communicating.
For impeachment purposes, distinguish between the pendency of an appeal of a conviction and a pardon.
A pardon releases the punishment and eliminates the guilt for the offense, so that in the eyes of the law the offender is as innocent as if he had never committed the offense. Evidence of the witness’s conviction is not admissible if it has been the subject of a pardon.
A witness’s conviction may be used for impeachment purposes even if an appeal is pending. Evidence of the pendency is also admissible.
When does the intentional destruction of evidence raise a presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence?
To be entitled to such an inference, the alleged victim must establish that:
(i) The destruction was intentional;
(ii) The destroyed evidence was relevant to the issue about which the party seeks such inference; and
(iii) The alleged victim acted with due diligence as to the destroyed evidence.
Note: This presumption is rebuttable.
What is the difference between direct and circumstantial evidence?
Direct evidence is identical to the factual proposition that it is offered to prove. An example is witness testimony as to what the witness personally heard, saw, or experienced. Circumstantial evidence tends to indirectly prove a factual proposition through an inference from collateral facts.
Example: A witness seeing the defendant shoot the victim (direct evidence the defendant shot the victim), versus seeing the defendant holding a gun while exiting an alley where a person is lying on the ground bleeding from a gunshot wound (circumstantial evidence the defendant shot the victim).
To what proceedings do the Federal Rules of Evidence apply? What proceedings are exempted from these rules?
The Federal Rules generally apply to all civil and criminal proceedings before United States district courts, courts of appeal, Bankruptcy Court, and Claims Court, and in proceedings before United States magistrates.
Exceptions:
(i) The court’s determination of a preliminary question of fact governing admissibility;
(ii) Grand jury proceedings; and
(iii) Criminal proceedings for:
(a) The issuance of a search or arrest warrant or a criminal summons;
(b) A preliminary examination in a criminal case;
(c) Extradition or rendition;
(d) Consideration of bail or other release;
(e) Sentencing; and
(f) Granting or revoking probation or supervised release.
What requirements must be met for the opinion of a lay witness to be admissible?
The opinion must be:
(i) Rationally based on the perception of the witness; and
(ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
Additionally, the opinion must not be based on scientific, technical, or specialized knowledge.
When is habit evidence admissible?
Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. It may be admitted without corroboration or an eyewitness.
What five hearsay exceptions only apply when the hearsay declarant is unavailable?
(1) Former testimony;
(2) Dying declaration;
(3) Statement against interest;
(4) Statement of personal or family history;
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability
When must a preliminary hearing on admissibility be conducted outside the presence of the jury?
When the hearing involves the admissibility of a confession, when the defendant in a criminal trial is a witness and so requests it, or when justice requires it.
Note: While many preliminary questions of admissibility are determined in front of the jury, it is the judge who makes the determination, and it is the jury, then, that assigns weight to the evidence.
What is the difference between the application of a Dead Man’s Statute in a criminal case versus a civil case?
Dead Man’s Statutes do not apply in criminal cases. In civil cases, a party with a financial interest in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case.
Note: The rationale is to protect a decedent’s estate from parties who claim the decedent said or did something that affects the financial outcome of the case. The Federal Rules do not include a Dead Man’s Statute. This may arise in the context of a federal court applying state law (i.e., diversity cases) if the fact pattern specifically says that the jurisdiction has a Dead Man’s Statute.
What are the two methods by which handwriting can be authenticated?
- An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine; or
- A lay witness with personal knowledge of the claimed author’s handwriting may authenticate the handwriting, as long as the witness did not become familiar with the handwriting for the purposes of the current litigation.
When may the prosecution offer evidence of an alleged victim’s good character in a criminal case?
The prosecution can offer:
(i) Rebuttal evidence of a victim’s good character when the defendant has introduced evidence of the victim’s bad character; and
(ii) Evidence of the victim’s character trait for peacefulness in homicide cases to rebut evidence that the victim was the first aggressor.
When can evidence that a criminal defendant committed another sexual assault be admitted?
In a criminal case in which a defendant is accused of sexual assault, attempted sexual assault, or conspiracy to commit sexual assault, evidence that the defendant committed any other sexual assault is admissible to prove any relevant matter.
Note: The court does have discretion to exclude such evidence under Rule 403 when the probative value is substantially outweighed by the danger of unfair prejudice.
When is a judge permitted to be called as a witness in a trial over which she is presiding?
A judge is absolutely barred from testifying as a witness in the trial in which she is presiding.
Note: Allowing the judge to testify would corrupt the fact-finding process. The fact-finder is charged with assessing a witness’s credibility. If the judge is the fact-finder, assessing her own credibility is impossible. If a jury is the fact finder, the judge’s testimony (and other judicial rulings in the trial) may be given too much or too little weight.
What four categories of witnesses may not be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?
(i) A party who is a natural person;
(ii) An officer or employee of a party that is not a natural person, after the individual has been designated as the party’s representative by its attorney, including the investigating officer;
(iii) A person whose presence is essential to a party’s presentation of its case; and
(iv) A person whose presence is permitted by statute (e.g., victims).
When may a judge take notice of an adjudicative fact?
The fact is not subject to reasonable dispute because:
(i) It is generally known within the territorial jurisdiction of the trial court; or
(ii) It can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
What two requirements must be met to use a conviction as impeachment evidence if more than 10 years have elapsed since the latter of the conviction or release from confinement?
The conviction is admissible if:
(i) Its probative value substantially outweighs its prejudicial effect; and
(ii) The proponent gives the adverse party reasonable written notice of intent to use the evidence.
What is the “bursting bubble” approach to burden shifting?
A rebuttable presumption no longer has a preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding. If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally.
Describe the manner of proof used for admitting convictions to impeach a witness.
Evidence of a prior conviction may be produced by way of an admission by the witness on direct or cross-examination, as well as by extrinsic evidence.
Note: This is a good area to also be thinking about the rule against hearsay and its exceptions (See FRE 803 (22)) and authentication (see FRE 902).
What is the rule of completeness?
When a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of the writing or statement if, in fairness, it should be considered at the same time.
What are the three standards of proof?
(i) Preponderance of the evidence
(ii) Clear and convincing evidence
(iii) Beyond a reasonable doubt
What is the definition of hearsay?
Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted.
List three examples of preliminary questions of admissibility that a judge, rather than a jury, would determine.
(i) competency of evidence, including the admissibility of evidence; (ii) whether a privilege exists; (iii) whether a person is qualified to be a witness.
Note: Judges also determine whether an exception would apply to allow hearsay into the record.
What two elements do the Confrontation Clause of the Sixth Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?
(i) The declarant must be unavailable; and
(ii) The defendant must have had a prior opportunity to cross-examine the declarant.
Note: The Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial.
At what time can a court take judicial notice?
Judicial notice can be taken at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.
Note: The court may not take judicial notice against a criminal defendant for the first time on appeal.
