Evidence Flashcards
1
Q
What is the purpose of impeachment evidence?
A
To discredit a witness and show the jury that the witness can’t be trusted.
2
Q
Who can impeach a witness?
A
Any party (including the party who called them)
3
Q
When can a witness’s credibility be “bolstered”? (two situations)
A
(1) timely complaint, as in a sexual assault case
(2) prior statement of identification
4
Q
A witness can be impeached in what two ways?
A
(1) cross-examination/questioning
(2) extrinsic evidence
5
Q
What methods may a party use to impeach with prior inconsistent statements?
A
questioning or extrinsic evidence
6
Q
What are the two requirements to use extrinsic evidence to prove a prior inconsistent statement?
A
(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
7
Q
When is a prior inconsistent statement admissible as substantive evidence?
A
When the prior statement was made under oath at a prior proceeding.
8
Q
Does a party have to give the witness the opportunity to explain or deny a prior inconsistent statement before introducing extrinsic evidence?
A
No, this opportunity can be given before or after introduction of the extrinsic evidence.
9
Q
When might a witness have bias against a party?
A
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.
10
Q
Why is bias evidence considered impeachment evidence?
A
It suggests that the witness has a motive to lie.
11
Q
What must a party do before introducing extrinsic evidence of bias?
A
Ask the witness about the facts that show bias or interest on cross-examination.
12
Q
A party may impeach a witness by showing that the witness has a “sensory deficiency,” which means that _______.
A
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.
13
Q
What types of evidence suggest that a witness had a sensory deficiency?
A
Bad eyesight or hearing; poor memory; intoxication
14
Q
When can extrinsic evidence of a contradictory fact be introduced?
A
When the witness denies the contradiction and the contradictory fact is not “collateral.”
15
Q
What is a “collateral” fact?
A
A fact that has no significant relevance to the case or to the witness’ credibility.
16
Q
What character evidence can be introduced to impeach a witness?
A
Reputation or opinion evidence of the witness’s bad character for truthfulness.
17
Q
When must a court allow a party to impeach a witness with a prior criminal conviction?
A
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.
18
Q
State the balancing test used for prior felonies not involving dishonesty when the witness is the criminal defendant.
A
Reverse balancing - The court will exclude the evidence unless its probative value outweighs its prejudicial effect.
19
Q
State the balancing test used for prior felonies not involving dishonesty when the witness is anyone other than the criminal defendant.
A
Normal 403 balancing - the evidence is admissible unless its probative value is substantially outweighed by its prejudicial effect.
20
Q
Generally, if more than ____ years have elapsed since the date of conviction or release from confinement, the conviction is inadmissible.
A
10
21
Q
When may a court admit evidence of a prior criminal conviction that is more than 10 years old? (two conditions)
A
(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.
22
Q
When does a pardon preclude the admission of evidence of a prior conviction? (two situations)
A
(1) the pardon was based on rehabilitation and the witness has had no subsequent felony convictions; or
(2) the pardon was based on innocence.
23
Q
When may a judge admit evidence of a juvenile offense?
A
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.
24
Q
A conviction obtained in violation of a defendant’s _________ is invalid for all purposes.
A
constitutional rights
25
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.
26
How may a witness be impeached with a prior bad act?
Questioning only - no extrinsic evidence.
27
Is an arrest considered a bad act that can be used to impeach?
No
28
If a witness is impeached on a collateral matter, the impeaching party may not use: (2 things)
(1) extrinsic evidence
(2) prior inconsistent statements
29
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.
30
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.
31
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
32
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.
33
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.
34
What is hearsay?
Hearsay is any out-of-court statement offered to prove the truth of the matter asserted.
35
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
36
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.
37
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).
38
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
39
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.
40
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.
41
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.
42
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.
43
There must be _________ that a conspiracy or agency relationship exists.
Independent evidence
44
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
45
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.
46
The prior testimony of an unavailable witness is admissible if: (two things)
(1) the testimony was given under oath; and
(2) the party against whom the testimony is now being offered had an opportunity and similar motive to develop the prior testimony at the time it was given. In a civil case, this extends to the party or the party's predecessor in interest.
47
When may a statement against interest be admitted?
If the witness is unavailable and it was against that person's pecuniary, proprietary, or penal interest when made, such at a reasonable person in the declarant's position would have made it only if they believed it to be true.
48
What is the limitation on statements against penal interest in criminal cases?
The statements must be corroborated.
49
When is a dying declaration admissible? (three things)
(1) in a homicide prosecution or any civil case
(2) the declarant believed their death was imminent; and
(3) the statement concerned the cause or circumstances of what the declarant believed to be their impending death.
50
When are statements of personal or family history admissible?
The declarant is unavailable and (2) the declarant is a member of the family in question and (2) the statements are based on the declarant's personal knowledgeo f the facts.
51
When are statements admissible against a party procuring the declarant's unavailability?
If the motive of the party procuring unavailability was to prevent the declarant from testifying at trial.
52
What is an excited utterance?
A statement relating to a startling event, made while under the stress of the excitement from the event.
53
What is a present sense impression?
A statement that describes or explains an event or condition, made while or immediately after the declarant perceives the event or condition.
54
What statements are admissible under the "present state of mind" hearsay exception?
Statements of the declarant's then-existing state of mind, such as motive, intent, or plan, or their emotional, sensory, or physical condition.
55
Statements of memory (past conduct) or belief (are/are not) admissible to prove the truth of the fact remembered or believed.
are not
56
What statements are admissible under the medical treatment hearsay exception?
Statements that describe medical history, or past or present symptoms, and the general cause of past or present symptoms.
57
What statements are not admissible under the medical treatment hearsay exception?
Statements accusing another person of causing injury or illness, unless that fact is related to the treatment decision (e.g. the identity of a child abuser is relevant because it may indicate that the child needs to be removed from the home)
58
What is admissible under the business records exception?
Writing or records made in the regular course of business, made near the time of the event described in the writing, and made by a person with personal knowledge of the entrant or someone else with a duty to transmit information to the entrant.
59
How must a business record be authenticated?
The records custodian must either testify that the record meets the exception or must certify in writing that it does so.
60
What is admissible under the public records exception?
(1) records setting forth activities of the office or agency
(2) records of matters observed pursuant to a duty imposed by law
(3) records of factual findings resulting from an investigation authorized by law (not allowed against a defendant in a criminal case)
(4) records of vital statistics
(5) judgments
61
What may a business record or public record be admitted to prove?
Either the occurrence of the event described in the record or the non-occurrence of an event that is regularly recorded by the business or public entity.
62
When may a copy of a judgment be admitted?
If it is:
(1) a felony judgment
(2) in a criminal case, the judgment is used against the accused.
63
When may a recorded recollection be admitted?
When a testifying witness's memory cannot be revived and the writing was made or adopted at or near the time of the event.
64
When can a recorded recollection be admitted as an exhibit?
When offered by an adverse party.
65
When may a learned treatise be admitted?
(1) the treatise is established as reliable authority; and
(2) the excerpt is relied upon by an expert during direct examination or brought to an expert's attention on cross-examination.
66
May a learned treatise be introduced as an exhibit?
No.
67
What is an ancient document?
Any authenticated document prepared before January 1, 1998.
68
When is a document affecting property interests admissible?
A statement in a document affecting an interest in property is admissible if the statement is relevant to the document's purpose, unless later dealings with the property are inconsistent with the truth of the statement.
69
What is the residual hearsay exception?
A hearsay statement is admissible if it possesses sufficient guarantees of trustworthiness, it is more probative to the fact for which it is offered than any other available evidence, and the proponent gives reasonable notice of intent to offer the statement.
70
What does the confrontation clause prohibit?
Statements offered against a criminal defendant if
(1) the declarant is unavailable
(2) the statement was testimonial in nature; and
(3) the accused had no opportunity to cross-examine the declarant prior to trial.
71
How can a confrontation clause issue be forfeited?
If the defendant commits a wrongful act that was intended to keep the witness from testifying.
72
What is a testimonial statement?
Statements that are (1) sworn testimony or (2) evidence collected or gathered by the police, law enforcement, judicial officer, or other government official for the purpose of establishing or proving past events relevant to a future criminal prosecution.
73
What testimonial privileges do the federal courts currently recognize?
(1) attorney-client
(2) marital privileges (spousal immunity and martial communications)
(3) psychotherapist-social worker
(4) clergy-penitent
(5) governmental privileges
74
What is covered by the attorney-client privilege?
(1) confidential communications
(2) between attorney and client
(3) made during legal consultation
(4) unless privilege is waived or is inapplicable
75
When does the attorney- client privilege not apply?
(1) lawsuits between attorney and client
(2) identification of a client, unless naming the client will implicate the client in a specific case
(3) communications made with the intent of committing or covering up a crime or fraud
76
What is the UpJohn test of corporate privileges?
Communications between attorney and corporate client are privileged if:
(1) the communication is made for the purpose of giving or receiving legal advice
(2) the substance of the communication relates to the employee's work
(3) the employee is aware that they were providing the information for the purpose of legal advice given to the corporation
(4) the communication was kept confidential
77
When would physician-patient privilege apply in federal court?
In a diversity case where the applicable state law recognizes this privilege.
78
What is the spousal immunity privilege?
A married person may not be compelled to testify against the interests of their spouse in any criminal proceeding.
79
What is the confidential marital communications privilege?
In any civil or criminal case, either spouse may refuse to disclose communications between spouses made during a valid marriage.
80
When do the marital privileges not apply?
(1) communications made in furtherance of a future joint crime
(2) legal actions between spouses
(3) a spouse is charged with a crime against the testifying spouse or either spouse's children.
81
What is the burden of production?
The burden of going forward with evidence sufficient to make out a prima facie case.
82
What are the burdens of proof in civil and criminal cases?
Civil - preponderance of the evidence
Fraud - clear and convincing
Criminal - beyond a reasonable doubt
83
What preliminary questions are decided by a jury?
(1) whether evidence is relevant
(2) whether evidence is authentic
(3) whether a person was acting as an agent in a breach of contract case
(4) whether a witness has personal knowledge of the facts of their testimony
84
What preliminary questions are decided by a judge?
(1) whether there is sufficient proof to support a jury finding on any of the preliminary matters about which a jury must decide
(2) competence of witnesses
(3) existence of privilege
(4) whether evidence meets the requirements of a hearsay exception
85
What facts are appropriate for judicial notice?
Facts that are generally known or can accurately and readily be determined from sources whose accuracy cannot reasonably be questioned.
86
When is a judicially-noticed fact conclusive?
In a civil case - in a criminal case, the jury is not required to accept the fact as conclusive.
87
A promise to refrain from suing constitutes valid consideration as long as _________.
The claim is valid or the claimant has a good faith belief that it is valid.
88
What is a novation and what is its legal effect?
A substitution of a new party for an original party to the contract. A novation releases the original party from any rights or duties under the contract.
89
What is rescission of a contract?
Rescission discharges the contractual duties of the parties and leaves the parties as though the contract had never been made.
90
True/false: Unilateral rescission may be granted on grounds of mutual mistake.
True
91
May a state limit contributions to groups that lobby for or against matters before a legislature? Why or why not?
No, because this law restrains the rights of free speech and association and there are no sufficiently important interests that outweigh these restraints.
92
What level of scrutiny is applied to statutes discriminating on the ground of child legitimacy?
Intermediate scrutiny
93
What is required to admit extrinsic evidence of a prior inconsistent statement?
The witness must be afforded an opportunity to explain or deny the statement, either before or after the statement is introduced.
94
What is an argumentative question?
A leading question that reflects the examiner's interpretation of the facts.
95
When is layperson opinion testimony admissible? (three things)
(1) rationally based on the perception of the witness
(2) helpful to a clear understanding of the witness's testimony on the determination of a fact in issue
(3) not based on scientific, technical, or specialized knowledge.
96
What is the abstention doctrine?
Federal courts generally abstain from enjoining pending state criminal proceedings even if they have jurisdiction over the case, unless the state prosecution is being conducted in bad faith.
97
Congress has given lower federal courts concurrent jurisdiction over all cases in which the Supreme Court has original jurisdiction except ________.
Cases between states
NOTE: not just where a state is a party
98
Describe the authority to tax press and broadcasting companies with respect to the freedom of the press.
Press and broadcasting companies can be subject to general business taxes, but taxes based on the content of a publication must be supported by compelling justification.
99
What branch of government has the exclusive decision to prosecute federal crimes?
executive
100
A prior felony conviction not involving dishonesty is admissible against a criminal defendant if ________.
The probative value outweighs the prejudicial effect
101
Is testimony about another person's thoughts or motivations admissible?
No, this is impermissible opinion evidence because it is mere speculation.
102
When is a layperson's opinion testimony admissible?
When it is rationally based on the perception of the witness, helpful to a clear understanding of the witness's testimony on the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge.
103
What is the rule for conditional relevance?
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court must admit it subject to the introduction of evidence sufficient to support a finding by the jury of the fulfillment of the condition.
104
At common law, what were the requirements for the burden of a covenant to run to successors?
(1) intent
(2) horizontal privity
(3) vertical privity
(4) touch and concern
Note: notice was not required at common law - notice was added as a requirement as a result of the recording acts
105
If a person takes land as a devisee, is notice required for her to be bound to a real covenant?
No - notice is a requirement as a result of the recording acts, and donees are not protected by recording acts.
106
A horse breeder offered to sell a colt to his neighbor and they agreed on a purchase price. The horse breeder subsequently received a letter from the neighbor thanking him for the sale and summarizing their agreement. The letter contained the neighbor’s alleged signature. When the horse breeder attempted to set up transfer of the colt, the neighbor denied that she agreed to purchase it. In a breach of contract action against the neighbor, the horse breeder offers into evidence the letter. The horse breeder testifies that he is familiar with the neighbor’s handwriting and recognizes the signature on the letter as being hers.
Who is the proper party to determine whether the letter is authentic?
The jury. Once there is sufficient evidence to support a jury finding of genuineness, it is up to the jury to make the ultimate determination about the authenticity of the letter.
107
May statements made during settlement negotiations in a private civil action be admitted in a subsequent criminal case that arises out of the same incident?
No.
108
Describe the former testimony exception to the hearsay rule.
The testimony of a now-unavailable witness given at a trial, hearing, or in a deposition is admissible in a subsequent trial as long as there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful.
109
What is a "sufficient" similarity of parties to justify the admission of former testimony of a now-unavailable witness?
The party against whom the testimony is offered or, in civil cases, the party's predecessor in interest was a party in the former action. Predecessor in interest includes one in a privity relationship with the party (such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants).
110
Describe the dying declaration hearsay exception.
In a prosecution for homicide or a civil action, a statement made by a now-unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible. The statement must be based on the declarant's firsthand knowledge of what happened. Unsupported speculation as to the assailant's identity or motive would not qualify.
111
Describe the effect of a rebuttable presumption on the burden of proof?
A rebuttable presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut the presumption.
112
What is a presumption?
A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts.
113
What is the rebuttable presumption regarding mail delivery?
A letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered in the due course of mail.
