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F23 > Evidence > Flashcards

Evidence Flashcards

1
Q

Scope (FRE)

A

i. FRE applies to proceedings in US courts

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2
Q

Ruling on evidence

A

i. To preserve a claim for error, evidence must affect:
1. Substantial right
2. Objections must be:
a. Timely
b. Specific
ii. If evidence excluded, objecting party must:
1. Offer proof
2. Unless apparent from context

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3
Q

Preliminary questions

A

i. FRE do not apply, except privilege

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4
Q

Limiting instructions

A

i. Restrict evidence to proper scope and inform the jury

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5
Q

Completeness

A

i. At the time of introduction, court may require admission of other part that in fairness should be considered at the same time

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6
Q

Relevance

A

i. Tendency to make a factor more or less probable
ii. Relates to fact of consequence

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7
Q

Judicial notice

A

i. Court may judicially notice a fact that is not subject to reasonable dispute
1. Generally known within jurisdiction
2. If party requests and
3. Court supplied with necessary information
ii. In civil case
1. Just must accept fact as conclusive
iii. In criminal case
1. Jury may or may not accept fact as conclusive

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8
Q

Admissibility of relevant evidence

A

i. Relevant evidence admissible unless rules provide otherwise
1. Constitution
2. Federal statute
3. FRE
4. Other rules of USSC
ii. Irrelevant evidence inadmissible

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9
Q

Excluding relevant evidence

A

a. Probative value substantially outweighed by
i. Risk of:
1. Unfair prejudice
2. Confusing the issues
3. Misleading the jury
4. Undue delay
5. Wasting time
6. Needlessly presenting cumulative evidence

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10
Q

Subsequent remedial measures

A

i. Inadmissible to prove:
1. Negligence
2. Culpable conduct
3. Defect
4. Need for warning or instruction
ii. Admissible, if disputed, for:
1. Impeachment
2. Proof of ownership
3. Proof of control
4. Proof of feasibility of precautionary measures

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11
Q

Compromise and offers to compromise

A

i. Inadmissible to show validity of claim
1. Offers to compromise
2. Conduct or statement made during compromise negotiations
ii. Admissible
1. Other purposes

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12
Q

Offers to pay medical expenses

A

i. Inadmissible, if offered to prove liability:
1. Paying or offering to pay medical expenses

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13
Q

Criminal plea bargaining

A

i. Inadmissible against defendant
1. Withdrawn guilty plea
2. No contest plea
3. Statements made during those proceedings
4. Statements made during plea negotiations
ii. Admissible
1. Final judgments
iii. Exceptions
1. Completeness
2. Perjury or false statement

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14
Q

Sex offense (victim)

A

i. Inadmissible
1. Victim engaged in sexual behavior
2. Victim’s sexual predispositions
ii. Exceptions
1. Criminal
a. Physical evidence if offered to prove someone other than defendant committed act
b. Specific instances of sexual behavior between victim and defendant if offered to prove consent
c. Evidence whose exclusion would violate constitutional right
2. Civil
a. Victim’s sexual behavior
b. Victim’s sexual predisposition
i. If probative value substantially outweighs unfair prejudice

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15
Q

Sexual assault (similar crimes)

A

i. Admissible for any purpose in criminal cases if:
1. Defendant is accused of sexual assault

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16
Q

Child molestation (similar crimes)

A

i. Admissible for any purpose in criminal cases if:
1. Defendant is accused of child molestation

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17
Q

Sex offenses (civil cases)

A

i. Admissible for any purpose in civil case if:
1. Defendant is accused of sexual assault or child molestation

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18
Q

Privilege (general)

A

i. Common law governs unless limited by:
1. U.S. Constitution
2. Federal statute
3. Supreme Court

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19
Q

Attorney-client privilege and work product (waiver)

A

i. Federal
1. Waiver if
a. Intentional
b. Same subject matter
c. Ought in fairness to be considered together
2. Not waiver if
a. Inadvertent
b. Reasonable steps to prevent disclosure
c. Reasonable steps to rectify error
ii. State
1. Not waiver if
a. Not waiver in federal court
b. Not waiver under law where disclosure made
iii. Court order
1. Court may order privilege not waived
iv. Binding
1. Agreement on effect of disclosure only binding on parties to agreement

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20
Q

Crime-fraud exception

A

i. Exception to attorney-client privilege
ii. Attorney’s services obtained to further a future crime or fraud

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21
Q

Adverse spousal testimony

A

i. No limited to communications
ii. Covers events before or during marriage
iii. Only requirement is spouses are married at time of testimony
iv. Privilege must be invoked by testifying party and cannot bar testimony

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22
Q

Confidential spousal communications

A

i. Confidential communication during marriage
ii. Both spouses hold privilege
iii. Exceptions: crime-fraud, legal proceedings, crimes against spouse
iv. Privilege can be invoked after marriage but must concern communication during marriage (not before or after)

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23
Q

Psychotherapist privilege

A

i. Exception
1. Patient’s mental condition at issue/commitment proceeding, or communication a result of court-ordered exam

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24
Q

Other privileges

A

i. Sexual assault counselor privilege
ii. Physician patient privilege (state only)
iii. Official information
iv. Domestic violence victim-counselor privilege
v. Journalist immunity (state only)

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25
Q

Competency

A

i. (Almost) everyone is competent

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26
Q

Personal knowledge

A

i. Witness may testify only if they had personal knowledge

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27
Q

Oath

A

i. Witness must give an oath or affirmation to testify truthfully
ii. In any form that impresses that duty on witness’s conscience

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28
Q

Interpreters

A

i. Qualified
ii. Under oath

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29
Q

Judge’s competency as witness

A

i. May not testify

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30
Q

Juror’s competency as witness

A

i. May not testify unless:
1. During an inquiry into the validity of verdict
a. Not allowed
i. Testimony about deliberations
ii. Testimony about effect of anything on juror’s vote
iii. Testimony about juror’s mental processes
b. Allowed
i. Testimony about extraneous prejudicial information
ii. Testimony about outside influence affecting juror
iii. Testimony about mistake made entering verdict

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31
Q

Mode and order of calling witnesses and presenting evidence

A

i. Court may exercise reasonable control as to:
1. Promote effectiveness
2. Avoid wasting time
3. Protect witnesses from harassment
ii. Scope of cross examination
1. Only topics discussed on direct
iii. Leading questions
1. Not allowed on direct
2. Allowed on cross and with hostile witnesses

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32
Q

Refreshing recollection

A

i. When a witness uses writing to refresh memory
1. While testifying
2. Before testifying, if justice so requires
ii. Adverse party entitled to:
1. Have writing produced,
2. Inspect writing,
3. Delete unrelated matter, and
4. Introduce relevant portions into evidence

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33
Q

Calling witness

A

i. Calling
1. Court may call witness
2. Parties entitled to cross
ii. Examining
1. Court may examine witness
iii. Objections
1. Party may object to court’s calling or examining of witness

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34
Q

Excluding witnesses

A

i. At party’s request unless:
1. Party to case
2. Attorneys to case
3. Persons essential to presenting party’s claim
4. Person authorized by statute to be present

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35
Q

Lay opinions

A

i. If not testifying as an expert, testimony must be:
1. Rationally based on witness’s perception;
2. Helpful to understanding testimony or fact at issue; and
3. Not based on scientific, technical, other specialized knowledge

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36
Q

Expert opinions

A

i. Expert may testify if:
1. Expert’s scientific, technical, or other specialized knowledge will help trier of fact to understand evidence or facts at issue;
2. Testimony based on sufficient facts or data;
3. Testimony is the product of reliable principles and methods; and
4. Expert has reliably applied principles and methods to facts of case

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37
Q

Bases of an expert

A

i. Expert may base an opinion on facts or data:
1. Personally observed
2. Need not be admissible if reasonably relied on by experts in particular field
ii. If inadmissible
1. Facts or data can only be introduced if:
a. Probative value
b. Substantially outweighs
c. Prejudicial effect

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38
Q

Opinion on an ultimate issue

A

i. Not objectionable just because it addresses ultimate issue
ii. Exception
1. In criminal case
2. Expert witness may not testify to mental state
3. If it constitutes element of the crime

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39
Q

Disclosing facts or data underlying an expert

A

i. Expert may:
1. State opinion
2. And give reasons for it
3. Without first testifying to underlying facts or data

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40
Q

Court-appointed expert witness

A

i. On motion or on its own, court may appoint experts
1. Experts must:
a. Advise parties of findings
b. Be deposed
c. Testify
d. Be cross examined
ii. Parties may still call their own experts

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41
Q

Authenticating or identifying evidence

A

i. Proponent must produce evidence supporting finding that
1. Item is what proponent claims it is
ii. Examples
1. Testimony of witness with knowledge
2. Nonexpert opinion about handwriting
3. Comparison by an expert witness or tier of fact
4. Distinctive characteristics
5. Opinion about voice
6. Evidence about a telephone conversation
7. Evidence about public records
8. Evidence about documents or data complications
9. Evidence about a process or system
10. Methods provided by statute

42
Q

Evidence that is self-authenticating

A

i. Examples
1. Domestic public documents (signed and sealed)
2. Domestic public documents (not sealed but signed and certified)
3. Foreign public documents
4. Certified copies of public records
5. Official publications
6. Newspapers and periodicals
7. Trade inscriptions
8. Acknowledged documents
9. Commercial paper and related documents
10. Presumptions under a federal statute
11. Certified domestic records of a regularly conducted activity
12. Certified foreign records of a regularly conducted activity
13. Certified records generated by an electronic process or system
14. Certified data copied from an electronic device, storage medium, or file

43
Q

Writing (best evidence)

A

a. Letters, words, or numbers set down in any form

44
Q

Recording (best evidence)

A

a. Letters, words, or numbers recorded in any form

45
Q

Photograph (best evidence)

A

a. Photographic image stored in any form

46
Q

Original (best evidence)

A

a. Writing or recording itself
b. Printout (if electronic)
c. Negative or print (if photo)

47
Q

Requirement of original (best evidence)

A
  1. Required to prove content unless rules provide otherwise
48
Q

Admissibility of duplicates (best evidence)

A
  1. Admissible to same extent as original unless:
    a. Genuine question about original’s authenticity
    b. Unfair to admit duplicate
49
Q

Admissibility of other evidence of content (best evidence)

A
  1. Original not required if:
    a. Originals lost or destroyed (not be proponent in bad faith)
    b. Originals cannot be obtained through judicial process
    c. Party against whom original would be offered had control, was put on notice, and failed to produce it
    d. Evidence is not closely related to controlling issue
50
Q

Copies of public records to prove content (best evidence)

A
  1. Admissible if:
    a. Record otherwise admissible or
    b. Copy certified or testified to be correct by witness who compared copy with original
  2. If no copy exists, use other evidence
51
Q

Summaries to prove content (best evidence)

A
  1. Summary, chart, or calculation admissible if:
    a. Voluminous data
    b. That cannot be conveniently examined by court
52
Q

Testimony or statement of party to prove content

A
  1. Admissible in form of:
    a. Testimony
    b. Deposition
    c. Written statement of party against whom evidence is offered
53
Q

Functions of court and jury (best evidence)

A
  1. Court
    a. Usually decides
  2. Jury
    a. Decides:
    i. Whether evidence ever existed
    ii. Whether what is produced at trial is original
    iii. Whether other evidence accurately reflects content
54
Q

Applicability of rules

A

i. FRE apply to:
1. Courts and judges
2. Cases and proceedings
3. Exceptions
a. Grand jury
b. Extradition
c. Preliminary examinations
d. Warrant
e. Sentencing
f. Probation
g. Bail
ii. Rules of privilege always apply

55
Q

Reputation or opinion evidence (impeachment)

A

i. Admissible
1. Witness’s reputation for truthfulness
a. Opinion testimony
b. After the witness’s character has been attacked

56
Q

Specific instances of conduct (impeachment)

A

i. Extrinsic evidence not admissible to prove
1. Specific instances of conduct to attack truthfulness
ii. On cross examination
1. Inquiry allowed if:
a. Probative of witness’s character for truthfulness of:
i. Witness
ii. Another witness whose character the witness testified about

57
Q

Prior criminal conviction

A

i. Attacks on truthfulness admissible if:
1. Crime punishable by more than one year in prison
2. Probative value outweighs prejudicial effect
ii. All attacks admitted if:
1. Element of crime requires proving dishonest act
iii. Convictions 10 years or older:
1. Probative blue substantially outweighs prejudicial effect
2. Opposing party receives written notice
iv. Inadmissible
1. Pardoned based on fining of:
a. Rehabilitation
b. Innocence
v. Juvenile adjudication admissible if:
1. Offered in criminal case about witness other than defendant
2. Adult conviction for same crime would be admissible
3. Admission necessary for fair trial

58
Q

Religious beliefs

A

i. Inadmissible
1. Witness’s religious beliefs or opinions if used to attack or support credibility

59
Q

Prior statement

A

i. Extrinsic evidence only admissible if:
1. Witness given opportunity to explain or deny
2. Adverse party allowed to cross examine

60
Q

Character evidence

A

i. Inadmissible
1. Character evidence
ii. Admissible
1. Criminal cases
a. Defendant can:
i. Offer evidence of defendant or victim’s pertinent trait
b. Prosecution can:
i. Rebut evidence
ii. Introduce evidence of defendant’s same trait
2. Homicide cases
a. Prosecutor can:
i. Offer evidence of victim’s peacefulness to rebut evidence they were first aggressor
3. Generally admissible when character is essential element

61
Q

Other crimes, wrongs, or acts

A

i. Character admissible for other purposes
1. Proving motive
2. Opportunity
3. Intent
4. Preparation
5. Plan
6. Knowledge
7. Identity
8. Absence of mistake
9. Lack of accident

62
Q

Methods of proving character

A

i. On direct
1. Reputation
2. Opinion
ii. On cross examination
1. Specific instances of conduct

63
Q

Habit; routine practice

A

i. Admissible to prove:
1. On particular occasion they acted in accordance with habit or routine
ii. No corroboration required

64
Q

Hearsay

A

i. Out of court statement being introduced for the truth of the matter asserted

65
Q

Exclusions from hearsay

A
  1. Prior inconsistent statements
  2. Prior consistent statements
  3. Prior identifications
66
Q

Prior inconsistent statements (hearsay exclusions)

A
  1. Under penalty of perjury
  2. At trial, hearing, proceeding, or deposition
67
Q

Prior consistent statements (hearsay exclusions)

A
  1. To rebut express or implied charge that the statement was fabricated; or acted with improper motive while testifying
  2. To rehabilitate declarant’s credibility when attacked
68
Q

Statements by opposing parties

A

i. Direct admissions
ii. Adopted statements
1. Adopted or believed to be true
iii. Vicarious admissions
1. Within scope of relationship
2. While relationship existed
iv. Authorized admissions
v. Coconspirator admissions
1. During conspiracy
2. In furtherance of conspiracy

69
Q

Adopted statements

A
  1. Adopted or believed to be true
70
Q

Vicarious admissions

A
  1. Within scope of relationship
  2. While relationship existed
71
Q

Coconspirator admissions

A
  1. During conspiracy
  2. In furtherance of conspiracy
72
Q

Present sense impression (hearsay exception)

A

i. Statement describing or explaining event
ii. Made while or immediately after declarant perceived it

73
Q

Excited utterance (hearsay exception)

A

i. Statement relating to startling event
ii. Made while declarant was under stress of excitement

74
Q

State of mind (hearsay exception)

A

i. Statement of then-existing state of mind
1. Motive
2. Intent
3. Plan
ii. Statement of emotional, sensory, or physical condition
1. Mental feeling
2. Pain
3. Bodily health
iii. Exception
1. Statement of memory or belief to prove fact remembered or believed unless it related to declarant’s will

75
Q

Medical treatment (hearsay exception)

A

i. Made for medical diagnosis or treatment
ii. Reasonably pertinent
iii. Describes medical history, past or present sensations, inception, or cause

76
Q

Recorded recollection (hearsay exception)

A

i. Record that witness once knew about but cannot recall
ii. Made or adopted by witness when matter was fresh
iii. Accurately reflects witness’s knowledge

77
Q

Business records (hearsay exception)

A

i. Record was made at or near time
ii. By someone with knowledge
iii. Kept in course of regularly conducted business activities
iv. Part of regular practice
v. Presented by custodian, qualified witness, certification
vi. No lack of trustworthiness

78
Q

Absence of business record (hearsay exception)

A

i. If admitted to prove matter did not occur
ii. Regularly kept
iii. No lack of trustworthiness

79
Q

Public records (hearsay exception)

A

i. Record sets out office’s activities
ii. Observed during duties
1. Not from law enforcement officials
iii. Legally authorized investigation
iv. No lack of trustworthiness

80
Q

Absence of public records (hearsay exception)

A

i. If admitted to prove matter did not occur
ii. Regularly kept
iii. Notice in criminal cases

81
Q

Ancient documents (hearsay exception)

A

i. Document prepared before 1998
ii. Authenticity established

82
Q

Market reports (hearsay exception)

A

i. Market reports
ii. Lists
iii. Directories
iv. Other compilations
v. Generally relied on by public

83
Q

Learned treatises, periodicals, or pamphlets (hearsay exception)

A

i. Presented to expert
ii. Established as reliable authority by expert

84
Q

Criteria for being unavailable

A
  1. Privilege
  2. Refusal to testify
  3. Does not recall
  4. Not present due to death or other condition
  5. Otherwise absent
  6. Proponent must make reasonable effort to procure
85
Q

Former testimony (hearsay exclusion)

A
  1. Given during trial, hearing, or deposition
  2. Party had opportunity and motive to develop
  3. Predecessor in interest must have similar opportunity and motive in civil case
86
Q

Statement under belief of imminent death

A
  1. In homicide or civil case
  2. While declarant believed death was imminent
  3. About cause of circumstances
87
Q

Statement against interest

A
  1. Reasonable person would have made statement only if they believed true because:
    a. So contrary to declarant’s interest
    b. Invalidated declarant’s claim
    c. Exposed them to liability
88
Q

Statement offered against a party that wrongfully caused declarant’s unavailability

A
  1. Statement offered against party that
  2. Wrongfully caused or acquiesced in wrongfully causing unavailability
  3. Did so intending that result
89
Q

Hearsay within hearsay

A

i. Each part must conform with exception to rule

90
Q

Attacking and supporting the declarant

A

i. Declarant’s credibility may be attacked and supported by any piece of evidence that would be admitted if he were a witness
1. Inconsistent statement
2. Specific contradiction
3. Show bias (FRE 411; 407; 409)
4. Attack for truthfulness
5. FRE 403

91
Q

Residual exception

A

i. The following is not excluded by the rule against hearsay
1. If not admissible under FRE 803 or 804
2. Statement is trustworthy
a. Factors
i. Under oath
ii. Firsthand knowledge
iii. Statement recanted
iv. Corroborated by other evidence
v. Subject to cross examination
3. More probative than any other evidence that proponent can obtain through reason efforts
ii. Notice
1. Reasonable notice to adverse party

92
Q

Crawford (issue spotting)

A
  1. Criminal cases only
  2. Hearsay
  3. Protects accused, not prosecution
  4. Ability to cross examine
93
Q

Testimonial evidence (confrontation clause)

A
  1. Testimonial
    a. Primary purpose for criminal prosecution
  2. Nontestimonial
    a. Primary purpose for addressing ongoing emergency
94
Q

Hammon v. Indiana (confrontation clause)

A
  1. Police responding to call about domestic violence
95
Q

Davis v. Washington (confrontation clause)

A
  1. 911 call about domestic violence
96
Q

Michigan v. Bryant (confrontation clause)

A
  1. Wounded victim identifying assailant
97
Q

Ohio v. Clark (confrontation clause)

A
  1. Child discloses alleged abuse to teacher
98
Q

Williams v. Illinois (confrontation clause)

A
  1. Test not personally prepared by expert offered for another purpose
99
Q

Convictions 10 years or older

A
  1. Probative value substantially outweighs prejudicial effect
  2. Opposing party receives written notice
100
Q

Crawford v. Washington (confrontation clause)

A
  1. Recording gathered by police regarding an alleged stabbing

F23 (4 decks)

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