Evidence Flashcards

Question

Character Evidence Presented by Defendant: Prosecution’s Rebuttal Options

Answer 1

Offering evidence of D’s bad character Cross-examine D’s character witnesses and ask about specific instances Attack basis for direct examination testimony: “Have you heard, that”; “Did you know, that” Only admissible to impeach character witness, not to show conduct in the case Once asked about, can’t bring more witnesses or evidence to “prove” specific instance Once the door is opened, it stays open.

Answer 2

D can offer reputation and/or opinion testimony concerning victim’s character for a relevant trait Opens door for both victim and Defendant Opens door for Prosecution to rebut with: Victim’s good character for the same trait, Defendant’s bad character for same trait Consider specific acts could be brought in for D’s state of mind or other non-character reasons

Answer 3

Any evidence admitted that victim was first aggressor in homicide case where D claims self-defense opens the door to evidence of victim’s good character for peacefulness

Answer 4

Victim’s past behavior is generally inadmissible, no sexual behavior or disposition. Rape shield law. Exceptions in criminal cases: Instances with third person to prove source of injury or physical evidence Instances with D to prove consent Exceptions in civil cases: Probative value substantially outweighs harm Victim places own reputation in controversy in the case (ie. victim testifies to reputation for chastity)

Answer 5

Person’s other misconduct generally inadmissible if offered solely to prove conduct in conformity But may be admissible if provided for a non character purpose. Common Non-Character Purposes: Motive Intent Mistake (absence of) Identity Common Plan or Scheme

Answer 6

D’s other similar acts are admissible in any criminal or civil case involving alleged sexual assault or child molestation

Answer 7

Personal knowledge Oath or affirmation to testify truthfully

Answer 8

Lacks personal knowledge Hearsay

Answer 9

Children: case by case basis Mental illness: Competent if witness understands obligation Judge and jurors: incompetent to testify

Answer 10

Inquiry into past verdict or indictment Juror incompetent to testify about deliberations or matters affecting vote except for: Extraneous prejudicial information Outside influence Mistake in verdict form Another juror’s clear statement that they relied on racial stereotypes or animus

Answer 11

Leading questions in direct examination usually not allowed Except: Preliminary or introductory matters Witness needs help responding Witness is hostile, adverse party, or affiliated with adverse party

Answer 12

Asking questions within scope of direct examination Matters that test witness’s credibility (impeachment) Can move to direct, but must stop leading

Answer 13

Calls for a narrative (open-ended, tell us what happened) Non-responsive answer Assumes facts not in evidence (when did you stop beating your wife) Argumentative

Answer 14

A witness cannot read from documents to the jury, hearsay

Answer 15

Witness may use any writing or object to refresh memory So long as witness is not reading document and actually recollecting Doesn’t have to be a document Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to: Have the writing produced at trial; Cross-examine the witness about the writing; and Introduce portions of the writing relating to the witness’s testimony into evidence If the witness refreshes their memory before taking the stand, an adverse party is entitled to the above options only if the court decides that justice requires it.

Answer 16

Where witness cannot remember, even after refreshing, then only option is to try and submit the record. To do so without being hearsay, must use this exception. Elements that have to be established: Witness has insufficient recollection Witness had personal knowledge Record made by witness, made under witness’s direction, or adopted by witness (agreed it was correct) Record was made when matters were fresh in witness’s mind

Answer 17

Generally, witnesses are not to state opinions. Exceptions: Rationally based on witness’s perception Helpful, and Not based on specialized knowledge An opinion of a lay witness is generally admissible with respect to: The general appearance or condition of a person; The state of emotion of a person; Matters involving sense recognition; Voice or handwriting identification; The speed of a moving object; The value of the witness’s own services or property; The rational or irrational nature of another’s conduct; and A person’s intoxication

Answer 18

whether they (or someone else) acted as an agent or whether a contract was made, as these are legal conclusions that require specialized knowledge. The lay witness may testify only as to the surrounding facts

Answer 19

General requirements: Expert is qualified ----Specialized knowledge, skills, or training ----Area of expertise must match testimony subject Expert is reasonably certain ----No guess or speculation Helpful ----Need the knowledge for decision Based on sufficient facts or data ----Facts based on expert’s own observations ----Facts made known to expert at trial (hypothetical q) --------But cannot misrepresent the hypothetical on facts in the case ----Facts of a type reasonably relied upon by other experts in field Based on reliable principles and methods Reliably applied

Answer 20

Reliability Determined by Court Daubert factors: Testing Peer Review and publication Error Rate Standards controlling operation General acceptance by other experts

Answer 21

Established as reliable authority Called to expert’s attention on cross or relied upon on direct Excerpt read into evidence (not received as exhibit)

Answer 22

Permitted except for testimony concerning defendant’s mental state in criminal case

Answer 23

Bolstering witness’s testimony generally prohibited Except: Impeachment needs to come before credibility can be asserted

Answer 24

Examination of witness Extrinsic evidence (other witness or documents) Note: Is extrinsic evidence allowed under this impeachment method? Any foundation requirements?

Answer 25

Facts specific to case: Prior Inconsistent Statements Bias Sensory deficiencies Contradiction General bad character for untruthfulness: Opinion or reputation evidence of untruthfulness Prior convictions Prior bad acts involving untruthfulness

Answer 26

May be done on examination of witness or with extrinsic evidence Extrinsic evidence must be relevant and foundation required Note: just impeachment, careful for truth of the matter asserted Also, admissible as substantive evidence if made under oath at a prior proceeding

Answer 27

Foundation for extrinsic evidence: Must not be collateral (probative of facts at hand) At some point during case, generally must: Give witness opportunity to explain or deny Give adverse party opportunity to examine witness Exceptions: Where prior inconsistent statement is opposing party’s statement Where hearsay declarant is being impeached Where justice requires

Answer 28

Extrinsic evidence allowed, but witness generally must be questioned about bias first

Answer 29

Admissible on examination of witness or by extrinsic evidence No foundation requirement

Answer 30

Extrinsic evidence generally permitted unless impeaching fact is collateral

Answer 31

Testimony admissible to show impeached witness has poor character for truthfulness Distinguish from other character evidence rules NO LIMIT ON EXTRINSIC EVIDENCE HERE

Answer 32

Court has no discretion to balance 403 considerations Must involve false statements or lying Remember, just for impeachment here

Answer 33

Witness is criminal defendant in this case: Court will exclude conviction unless probative value outweighs prejudicial effect Any other witness: Court excludes conviction if probative value substantially outweighed by prejudicial effect (standard rule 403)

Answer 34

Generally inadmissible if more than 10 years have passed since date of conviction or release from confinement, whichever is later Court may allow if probative value substantially outweighs prejudicial effect (reverse of 403)

Answer 35

On examination of witness or by extrinsic evidence (record of judgment) No limit on extrinsic evidence at least without hearsay issues

Answer 36

Cannot be used to impeach if: Pardon based on rehabilitation and no subsequent felony conviction Pardon based on innocence

Answer 37

Generally not admissible

Answer 38

Constitutionally Defective Conviction Cannot Be Used A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including impeachment

Answer 39

Interrogation permitted Extrinsic evidence prohibited

Answer 40

Impeached to same extent as in-court witness Need not be given opportunity to explain or deny prior inconsistent statement

Answer 41

Explanation on redirect Good character for truthfulness (reputation or opinion testimony) Remember, need credibility attacked to rehabilitate

Answer 42

Admissible for credibility when: When witness attacked with charge of lying or exaggerating because of some motive subsequent to statement When witness impeached on other non-character ground If admissible to rehabilitate, not hearsay

Answer 43

A statement, not made by the declarant while testifying at current trial or hearing, offered in evidence to prove the truth of the matter asserted. Inadmissible without an exception Oral or written assertion Nonverbal conduct intended as assertion Humans only, animals and machines no Statements from a different trial or hearing can be hearsay Hearsay can be made in a court room just not the same court room

Answer 44

Approach: Find the statement Determine what it’s being offered to prove ---Which party is making the motion? ---Must be relevant Consider whether jury will be misled if declarant was lying or mistaken ---If yes, hearsay

Answer 45

Verbal acts/legally operative language/language of independent legal significance Some law says just uttering certain words creates independent legal significance Offered to show it was made “I accept” for a contract case, not hearsay D said “Plaintiff cheats on his wife”. Not to assert P does, but to show he said it in defamation action Effect on Listener or Reader Could show notice, etc Circumstantial evidence of speaker’s state of mind Ex, maybe sanity is at issue “I said I am Dracula” Testifying Witness’s Own Out-of-Court Statement Can be Hearsay “Not hearsay because it is the witness’s own statement” watch out for this choice

Answer 46

Exclusions: Admissible because it’s not hearsay Exception: Is hearsay, but admissible

Answer 47

Admissible only if each statement falls within an exception (or is otherwise admissible over a hearsay objection)

Answer 48

Examples Prior Statement is a statement of identification after perceiving them Prior inconsistent statements given under oath Certain prior consistent statements: When witness charged with lying or exaggerating due to recent motive, and statement pre-dates motive When witness impeached on other non-character ground

Answer 49

Statements by or attributable to an opposing party are not hearsay Made by party, or someone else and attributed to party Must be offered in by party opponent

Answer 50

Party express or implied adoption of another’s statement can be used against them Ex. can be agreement by party Party’s silence in face of accusation admissible if: Party heard and understood it Party was capable of denying it Reasonable person would have denied it

Answer 51

Authorized spokesperson Ie. Statement made in a press release Agent/Employee statement if: Concerned matter within scope and Made during relationship Partner: Relating within scope of partnership’s business, all other partners Co-Conspirators: If statement made in furtherance of conspiracy Note: Party offering evidence has to prove a particular relationship exists Statement in and of itself is not enough on its own

Answer 52

Death or illness Privilege Refusal to testify despite court order Inability to remember subject matter Absent and attendance cannot be procured

Answer 53

Declarant unavailable Testimony was given under oath in same case, or If in another case, party whom testimony now being offered (or in civil cases, their predecessor in interest) had opportunity and similar motive to develop it

Answer 54

Statement against declarant’s pecuniary, proprietary, or penal interest when made Limitation: In criminal cases, statements against penal interests must be corroborated Only admit part against interest, redact the rest

Answer 55

Unavailable declarant Homicide prosecution or any civil case (not attempted!) Declarant believed their death was imminent Statement concerned cause or circumstances Death NOT required in federal rules

Answer 56

Unavailable declarant Homicide prosecution or any civil case (not attempted!) Declarant believed their death was imminent Statement concerned cause or circumstances Death NOT required in federal rules

Answer 57

Statements concerning birth, death, and other family matters admissible if declarant had personal knowledge of family history

Answer 58

Unavailable declarant’s statements admissible against party who intentionally caused declarant to be unavailable

Answer 59

Relates to startling event Was made while declarant still under stress or excitement from that event Emotional state is what makes reliable, not timing

Answer 60

Describes or explains event or condition Made while or immediately after declarant perceives condition

Answer 61

Includes statements of then-existing state of mind or physical condition Does not include statements of memory or belief

Answer 62

Statements describing medical history, past or present symptoms, or their inception or general cause Must be made for and reasonably pertinent to medical diagnosis or treatment Does not require statement to describe own condition

Answer 63

Record of act, event, condition, opinion, or diagnosis, admissible if: Made in regular course of business and business regularly keeps such records Made near time of event Consists of matters within personal knowledge of entrant (or someone else who had duty to transmit information to entrant) Foundation: Custodian of records or other qualified witness must provide either: In-court testimony Written certification Exception: Party offering has to establish all elements, but will still be inadmissible if opponent shows that circumstances indicate record is not trustworthy

Answer 64

Three types: Activities of Agency Matters observed pursuant to legal duty but not including police observations in criminal cases Records of factual findings resulting from legally authorized investigation but not against defendant in criminal case Must be: Made by public employee Acting within scope of duties At or near the time of the event being described Again exception: Party offering has to establish all elements, but will still be inadmissible if opponent shows that circumstances indicate record is not trustworthy

Answer 65

Generally not admissible against criminal defendant under public records or business records exceptions

Answer 66

Certified copy of judgment always admissible as proof that judgment was entered Additionally, felony conviction admissible to prove any fact essential to the judgment In criminal cases, admissible only against accused No acquittals, only convictions Civil judgments typically inadmissible in subsequent criminal case Also probably subsequent civil cases However watch for independent legal significance

Answer 67

Admit recorded recollection, covered earlier

Answer 68

Trustworthy Strictly necessary Reasonable notice to adversary

Answer 69

Hearsay statement not admissible against accused in criminal case if: Declarant unavailable Statement is testimonial Accused had no opportunity to cross-examine declarant about statement Statements made to law enforcement Depends on primary purpose: To aid in ongoing emergency = nontestimonial To provide information for later prosecution = testimonial

Answer 70

To admit a writing, must be authenticated Standard is: proof is sufficient to support jury finding of genuineness Examples: Opponent’s admission Eyewitness testimony of someone with knowledge Lay opinion on handwriting (if lay witness has knowledge of it) Expert opinion on handwriting Jury comparison of handwriting

Answer 71

Authentication by evidence that document was written in response to communication to alleged author

Answer 72

Document authenticated if: At least 20 years old In non-suspicious condition Found in place where such a writing would likely be kept

Answer 73

Must be identified by witness as fair and accurate representation of facts depicted Generally don’t need photographer to testify

Answer 74

Nobody can say fair and accurate As such, need to show process was accurate

Answer 75

Sometimes admissible if can be shown made by particular person Standard: Voice identification Voice can be identified by any person who has heard the voice at any time Telephone conversations Can be authenticated by: Party to call recognized speaker’s voice Speaker had knowledge of certain facts only a specific person would have Speaker answered phone number and identified themselves as the person in question or their residence Speaker who answered business’s phone talked about business matters

Answer 76

Domestic public documents with a seal Official publications Certified copies of public records Newspapers and periodicals Trade inscriptions and labels Acknowledged (notarized) documents Commercial paper Business records and electronically generated records with certification

Answer 77

To prove the content of a writing, recording, or photograph, the original must be produced if the terms are material (subject to certain conditions) When Applies: When evidence is being offered to prove the content of a writing, photo, or recording. Usually: Where writing is legally operative (contracts, wills, deeds, etc) Where witness’s knowledge results from having read the writing

Answer 78

In-court witness testifying about facts in which they have personal knowledge even if same facts described somewhere else in a writing

Answer 79

Exact copy produced by mechanical means Admissible except when: Circumstances make it unfair to admit duplicate Genuine issue raised as to authenticity of original

Answer 80

Notes, witness testimony, etc Admissible when: Original lost or destroyed (not in bad faith) Original cannot be obtained Original in possession of adversary who fails to produce it

Answer 81

Summaries of voluminous records Witness can summarize contents if massive amount of information Certified copies of public records Collateral writings Opponent testified or gave written admission about contents of writing

Answer 82

Actual physical evidence Need: Relevance Authenticated by: Usually by recognition testimony or chain of custody Important If no distinct unique appearance (ie. bag of cocaine) Testimony as to what the object is when unique Proof must be sufficient to support jury finding

Answer 83

Ability to refuse to disclose and prevent others from disclosing relevant evidence What Privilege Law Applies in Federal Courts: Federal question cases: federal common law applies Diversity cases: state privilege law applies Attorney-client privilege Spousal testimony privilege Confidential marital communications Psychotherapist/social worker-patient Clergy-penitent privilege Governmental privileges

Answer 84

Privileges recognize that specific person is holder (sometimes asserted on holder’s behalf) Confidentiality Waiver ---Failure to claim ---Voluntary disclosure ---Contractual waiver Eavesdropper doesn’t destroy privilege

Answer 85

Confidential communications Only protects communications Client must intend confidentiality Between attorney and client (and either’s representatives) Member of the bar, or anyone client reasonably believes to be a member of the bar During professional legal consultation Unless exception applies or waived

Answer 86

Communications remain privileged if made in presence of third persons who are present to facilitate legal services

Answer 87

When joint clients have common interests, their communications with attorney are not privileged if they sue each other

Answer 88

Privilege applies indefinitely, even after death

Answer 89

Attorney’s services sought to aid in crime or fraud Must further the crime itself Breach of duty (such as malpractice) Client put legal services at issue Parties claiming through same deceased client

Answer 90

Might be immune from discovery if prepared in anticipation of litigation Remember: Voluntary disclosure will remove privilege for what is disclosed

Answer 91

Confidential information acquired by physician is privileged if: Professional relationship existed Information was acquired for the purpose of diagnosis or treatment Information was necessary for diagnosis or treatment Exceptions: Patient put physical condition at issue Assistance sought to aid wrongdoing Dispute between physician and patient Patient agreed to waive privilege Criminal cases (some states)

Answer 92

Operates like attorney-client privilege Confidential In process of receiving care, etc No privilege where patient puts medical condition at issue

Answer 93

(Testimonial)(Just Criminal) In criminal cases, prevents defendant’s spouse from being compelled to testify against defendant Spouses must be married at time of trial Even if not married at time of crime Witness holds this privilege, not accused

Answer 94

Applies in any civil or criminal case Either spouse can claim it Spouses must have been married at time of communication Privilege remains even if they divorce Exceptions: Joint crime-fraud Legal actions between spouses Spouse charged with crime against other spouse or either spouse’s children

Answer 95

Protects statements by penitent to clergy member in clergy member’s capacity as spiritual adviser

Answer 96

Pleading party has the burden of producing evidence to make out its Prima facie case Then switches to D to rebut

Answer 97

Civil cases: Usually preponderance of evidence Criminal cases: Beyond a reasonable doubt

Answer 98

Decided by jury: Jury decides fact questions relating to relevance, including authenticity and personal knowledge Judge: Judge first determines that there is sufficient proof to support a jury finding Judge decides fact questions relating to admissibility (preponderance of evidence) Judge may consider all non privileged evidence when making determination Ie. determining if victim thought were dying before putting in hearsay evidence

Answer 99

Court recognizing a fact as true without formal presentation of evidence Adjudicative Facts: Facts: Facts not subject to reasonable dispute because either: Generally known within trial court’s jurisdiction Can be accurately and readily determined from sources that cannot reasonably be questioned Procedural Issues: Can be taken at any stage Conclusive in civil case, but not in criminal case Legislative Facts: Broad policy questions that a judge may decide are pertinent for the case Ie. should common law recognize new privilege Judges have the power to decide what policies govern in a particular case

Answer 100

Rule requiring that a particular inference be drawn from proven facts Common presumptions: Mail delivery Death following 7-year absence Presumption against suicide in civil case Legitimacy Sanity Effect: Shifts burden of production to party against whom the presumption operates A presumption is overcome when the party introduces some evidence countering the proposed fact No mandatory presumptions in criminal cases Judge cannot instruct jury it must find a fact against D

Answer 101

Where some or all of a writing or recorded statement is introduced into evidence: Adverse party may require proponent to introduce any other part, or Any related writing or recorded statement That ought in fairness be considered at the same time

Answer 102

Evidence maybe admissible on limited basis Judge must, upon timely request, issue limiting instruction Judge may also exclude evidence entirely under Rule 403

Answer 103

If judge makes an error on evidence: Preserving claim of error: Judge erroneously admitted evidence: Must make a timely and specific objection to evidence Judge erroneously excluded evidence: Make timely offer of proof, must indicate what evidence would have been if not excluded Even if not preserved: Court may still take notice of plain error affecting a substantial right