Evidence Flashcards
What is the purpose of impeachment evidence?
To discredit a witness and show the jury that the witness can’t be trusted.
Who can impeach a witness?
Any party (including the party who called them)
When can a witness’s credibility be “bolstered”? (two situations)
(1) timely complaint, as in a sexual assault case
(2) prior statement of identification
A witness can be impeached in what two ways?
(1) cross-examination/questioning
(2) extrinsic evidence
What methods may a party use to impeach with prior inconsistent statements?
questioning or extrinsic evidence
What are the two requirements to use extrinsic evidence to prove a prior inconsistent statement?
(1) the witness must be given an opportunity to explain or deny the statement;
(2) the adverse party must be given an opportunity to examine the witness about the statement
When is a prior inconsistent statement admissible as substantive evidence?
When the prior statement was made under oath at a prior proceeding.
Does a party have to give the witness the opportunity to explain or deny a prior inconsistent statement before introducing extrinsic evidence?
No, this opportunity can be given before or after introduction of the extrinsic evidence.
When might a witness have bias against a party?
The witness is a friend, relative, or employee of the other party; an expert witness is paid by one party; a witness has a grudge against one party.
Why is bias evidence considered impeachment evidence?
It suggests that the witness has a motive to lie.
What must a party do before introducing extrinsic evidence of bias?
Ask the witness about the facts that show bias or interest on cross-examination.
A party may impeach a witness by showing that the witness has a “sensory deficiency,” which means that _______.
The witness’ ability to perceive and recollect are so impaired that it is doubtful that the witness accurately perceived the facts about which she is testifying.
What types of evidence suggest that a witness had a sensory deficiency?
Bad eyesight or hearing; poor memory; intoxication
When can extrinsic evidence of a contradictory fact be introduced?
When the witness denies the contradiction and the contradictory fact is not “collateral.”
What is a “collateral” fact?
A fact that has no significant relevance to the case or to the witness’ credibility.
What character evidence can be introduced to impeach a witness?
Reputation or opinion evidence of the witness’s bad character for truthfulness.
When must a court allow a party to impeach a witness with a prior criminal conviction?
When less than 10 years have elapsed since the conviction or release from confinement and the conviction was for a crime (felony or misdemeanor) involving dishonesty or false statement.
State the balancing test used for prior felonies not involving dishonesty when the witness is the criminal defendant.
Reverse balancing - The court will exclude the evidence unless its probative value outweighs its prejudicial effect.
State the balancing test used for prior felonies not involving dishonesty when the witness is anyone other than the criminal defendant.
Normal 403 balancing - the evidence is admissible unless its probative value is substantially outweighed by its prejudicial effect.
Generally, if more than ____ years have elapsed since the date of conviction or release from confinement, the conviction is inadmissible.
10
When may a court admit evidence of a prior criminal conviction that is more than 10 years old? (two conditions)
(1) When its probative value substantially outweighs its prejudicial effect; and
(2) the proponent gives the adverse party reasonable written notice of their intent to use it.
When does a pardon preclude the admission of evidence of a prior conviction? (two situations)
(1) the pardon was based on rehabilitation and the witness has had no subsequent felony convictions; or
(2) the pardon was based on innocence.
When may a judge admit evidence of a juvenile offense?
When the witness is someone other than the accused, if (1) the evidence would be admissible to attack the credibility of an adult and (2) the evidence is necessary to a determination of the accused’s guilt or innocence.
A conviction obtained in violation of a defendant’s _________ is invalid for all purposes.
constitutional rights
When may a witness be asked about a past act of misconduct?
If the act is probative of truthfulness and the questioner has a good-faith basis to believe the witness committed the misconduct.
How may a witness be impeached with a prior bad act?
Questioning only - no extrinsic evidence.
Is an arrest considered a bad act that can be used to impeach?
No
If a witness is impeached on a collateral matter, the impeaching party may not use: (2 things)
(1) extrinsic evidence
(2) prior inconsistent statements
How can the testimony of a hearsay declarant be impeached?
A hearsay declarant can be impeached using any method available as if the declarant was testifying at trial.
Who is considered a hearsay declarant for impeachment purposes?
A person whose out of court statement has been admitted into evidence under an exception to the hearsay rule or as a vicarious statement of an opposing party.
How may a witness be rehabilitated after impeachment? (three ways)
(1) explanation on redirect
(2) reputation or opinion testimony about the impeached witness’s good character for truthfulness
(3) prior consistent statements
A prior consistent statement can be used to rehabilitate a witness accused of lying because of some motive if:
the statement was made before the onset of the alleged motive.
A prior consistent statement can be used to rehabilitate a witness who has been impeached on grounds other than motive if:
under the circumstances, the prior consistent statement has a tendency to rehabilitate the witness’s credibility.
What is hearsay?
Hearsay is any out-of-court statement offered to prove the truth of the matter asserted.
What is a “statement” for purposes of the hearsay rule?
A human’s
(1) oral or written assertion; or
(2) nonverbal conduct intended as an assertion
What are three common “nontruth” reasons for admitting an out of court statement?
(1) verbal acts/legally operative statements (such as words of offer an acceptance)
(2) effect on the listener
(3) circumstantial evidence of declarant’s state of mind.
What out-of-court statements made by a testifying witness are considered nonhearsay? (three)
(1) statements of identification
(2) prior inconsistent statements given under oath
(3) prior consistent statements when used to rebut an accusation of bias, motive, or specific attack on credibility (other than a general attack on the witness’s character for truthfulness).
When is a statement admissible as an opposing party statement? (three)
(1) the party-opponent made the statement
(2) the party-opponent expressly or impliedly adopted the statement
(3) the statement was made by an agent, employee, or co-conspirator of the party-opponent
When may an agent/employee statement be attributed to a party-opponent?
When the statement (1) concerned a matter within the scope of agency/employment and (2) the statement was made during the existence of the agency/employment relationship.
When may a statement by a co-partner be attributed to a party-opponent?
When the statement of a co-partner relates to matters within the scope of the partnership business.
When may a statement by a co-conspirator be attributed to a party-opponent?
(1) the court has determined that a conspiracy existed;
(2) the court has determined that the party-opponent participated in the conspiracy; and
(3) the co-conspirator made a statement to a third party in furtherance of the conspiracy.
A party-opponent may be deemed to have “adopted” an accusatory by remaining silent if: (three things)
(1) the party heard and understood the statement
(2) the party was physically and mentally capable of denying the statement; and
(3) a reasonable person would have denied the statement.
There must be _________ that a conspiracy or agency relationship exists.
Independent evidence
What are the five hearsay exceptions that require that the declarant be unavailable?
(1) former testimony
(2) statements against interest
(3) dying declaration
(4) statements of personal or family history
(5) statements offered against party procuring declarant’s unavailability
A declarant may be deemed unavailable for what five reasons:
(1) death or physical or mental illness
(2) privilege
(3) refusal to testify despite court order
(4) declarant does not remember the subject matter
(5) declarant is beyond the reach of the court’s subpoena power and the proponent is unable to procure attendance using reasonable means- UNLESS the proponent has wrongfully caused the declarant’s unavailability.
