Evidence Flashcards
First character evidence rule
Evidence of a person’s character is not admissible for the purpose of proving action in conformity therewith
Is evidence of other crimes, wrongs, or acts admissible?
Not to show character, but to show MIMIC
Can you make an argument to the jury based on facts not in evidence?
No, unless it’s reasonably inferable from the evidence.
What do exhibits and testimony need to have before they can be admitted in evidence?
Necessary foundations established
How can you make a writing/conversation admissible at trial?
You must authenticate it
Best evidence rule can only be raised if…?
there is a dispute about authenticity or accuracy
Who can the credibility of a witness be attacked by?
any party, including the party calling the witness
List six impeachment reasons:
- MIMIC
- prior convictions
- prior bad acts
- PIS
- contradictory facts
- bad reputation for truth
Is extrinsic evidence permitted when impeaching for bad acts?
no
How can you impeach bad acts?
only by cross and you cannot refer to any consequences
Can you inquire about a witness’s arrest?
no
You ask a witness whether they embezzled money from their employer. Allowed?
Yes. Prior bad acts impeachment
You ask a witness whether they were arrested for embezzlement?
No, cannot inquire about past arrests.
Witness gives favorable testimony for D. On
cross, you ask W whether she
assaulted her mail carrier 2 years ago (no charges were
ever brought). Objectionable
Yes, objectionable. Bad act of violence, not truthfulness.
After W testifies for D, you ask W whether she made false statements in an application for food stamps in July 2010 (no charges were ever brought). Objectionable?
no. admissible because about truthfulness
After W testifies for D, you ask W whether she made false statements in an application for food stamps in July 2010 (no charges were ever brought). W denies making false statements in the application. You call a welfare agent to prove W made false statements. Objectionable?
Yes. That is extrinsic evidence. Can’t do that.
What is a hearsay declarant?
The person who made the statement outside of court for the truth of the matter asserted.
Can you attack the credibility of a hearsay declarant unavailable in trial?
Yes. The hearsay declarant can be impeached by any of the impeachment methods and they do not need to be given the opportunity to explain or deny a PIS.
Jake is on trial for murder. In hospital bed, V told the nurse, “I’m feeling pretty good considering Billy Ray tried to kill me.” The next day, V told a visitor, “I know I’m about to die. Jake’s the one who shot me.” ADA introduces V’s statement to the visitor as a dying declaration. Should Jake be allowed to introduce V’s statement to the nurse?
Yes. V is a hearsay declarant. You can introduce the statement about Billy Ray to attack the credibility of the other statement about Jake being the one who shot.
How do you impeach bad character for truthfulness?
- reputation
- prior convictions
- prior bad acts
Two situations to rehabilitate with PCS?
- when testimony of W was attacked as them lying for motive
- impeached on grounds of inconsistency or faulty memory
Can a PCS be admissible as substantive evidence?
Yes.
Tom struck by car Nicole drove. Penny, a stranger, witnessed it and told police that Tom looked sober as he crossed the street. At trial, Penny testifies for Tom and repeats that statement. On cross, Penny is asked whether she has memory problems due to medication. She says no. How do you rehabilitate?
You ask if she gave a statement to police on the day of the incident.
Tom struck by car Nicole drove. Penny, a stranger, witnessed it and told police that Tom looked sober as he crossed the street. At trial, Penny testifies for Tom and repeats that statement. On cross, Penny is asked, “Isn’t it a fact that after this incident, you and Tom became lovers.” How do you rehabilitate?
You ask that on the day of the accident, you weren’t lovers. And you ask if she gave a statement to the police on the day of the accident.
Can you introduce a prior statement by the witness that is consistent with their testimony?
No. That is bolstering the testimony of your witness. Can’t do that.
Is a prior identification impeachment or substantive?
could be both
- impeachment to bolster in-court testimony (one of the few exceptions)
- substantive to show ID was correct
A witness can be impeached by either:
- cross
- extrinsic evidence
You call another witness to prove impeaching facts. What is this called?
extrinsic evidence
You introduce documents that prove the impeaching facts. What is this called?
extrinsic evidence
Can you use extrinsic evidence to show a prior inconsistent statement?
Yes, but you must lay proper foundation and the statement must be material
Are prior inconsistent statements hearsay?
Usually
When is a PIS admitted for nonhearsay, meaning substantive evidence?
When that statement was made under oath at a prior proceeding
Witness makes a prior statement in a prelim that is inconsistent to the testimony at trial. Admitted for the truth of the matter asserted or for impeachment?
Both
Extrinsic evidence can be introduced to prove a PIS only if:
- W is given an opportunity to explain/deny statement
- OP is given an opportunity to examine the W
Do you need to lay foundation to impeach a PIS by a hearsay declarant?
No
A W is a friend, relative, or employee. How can you impeach?
You can show evidence that a witness has motive to lie.
An expert witness is being paid by a party. How can you impeach?
You can show evidence that a witness has motive to lie.
A witness has a grudge against defendant. How can you impeach?
You can show evidence that a witness has motive to lie.
How do you impeach bias or motive to lie?
You can do it by first asking about the facts that show bias in cross and then using extrinsic evidence to prove your point.
Evidence of a prior arrest is admissible only if:
you can introduce it is relevant to bias and provide the proper foundation is laid.
You want to impeach a witness by showing their recollection was impaired. How?
Either on cross or extrinsic evidence. No need to lay foundation.
You want to impeach a witness and show they had no knowledge of the facts they testified to. How?
Either on cross or extrinsic evidence. No need to lay foundation.
You want to impeach a defendant that they had bad eyesight. How?
Either on cross or extrinsic evidence. No need to lay foundation.
You want to impeach a witness to show they were intoxicated. How?
Either on cross or extrinsic evidence. No need to lay foundation.
Can you use extrinsic evidence to impeach a contradictory fact?
Yes
Can you impeach by proof of a conviction that is currently pending review or appeal?
Yes
What types of crimes can you impeach a witness on?
- any crimes involving dishonesty
- any felony
Does the court have discretion to bar impeachment of crimes involving dishonestly?
no
Does the court have discretion to bar impeachment of felony crimes?
yes, but based on a balancing test
Can a defendant be impeached on crimen?
Yes, but ADA must show the probative value outweighs its prejudicial effect
Can any non-defendant witness be impeached on crimen?
Yes, but ADA must show that the probative value is substantially outweighed by its prejudicial effect
D is prosecuted for arson. At trial, D testifies on his own behalf, urging that the fire was an accident. On cross, may the ADA properly ask Defendant whether he was convicted 8 years ago for the the misdemeanor of income tax fraud. Allowed?
Yes, crimen falsi.
D is prosecuted for arson. At trial, D testifies on his own behalf, urging that the fire was an accident. On cross, may the ADA properly ask Defendant whether he was released from prison 9 years ago for a misdemeanor conviction for K&I. Allowed?
No - not a felony and not crimen falsi
D is prosecuted for arson. At trial, D testifies on his own behalf, urging that the fire was an accident. On cross, may the ADA properly ask Defendant whether he was convicted 2y ago for retail theft - M1. Allowed?
No - not a felony or crimen falsi
D is prosecuted for arson. At trial, D testifies on his own behalf, urging that the fire was an accident. On cross, may the ADA properly ask Defendant whether he was convicted 5y ago for felony assault?
Yes - crimen within 10 years.
Can the court admit an 11yo crimen or crimen falsi?
ONLY if the reverse 403 test applies and is given notice
Can you show a crimen or crimen falsi through extrinsic evidence? If so, do you need to lay foundation?
Yes you can, and no foundation laying needed.
Witness testifies, “After the accident, John told me that Mary said she was fine.” Define the statement.
John’s statement to witness - hearsay declarant
Mary’s statement to John - hearsay declarant
Hearsay within hearsay
Action by the estate of Percy against Damien seeking
damages for auto accident. Damien denies liability and asserts that Percy died instantly in the accident. W on the stand proposes to testify that shortly after the accident, Percy said, “Damien’s car ran the red light.” Can that be offered to prove that Percy was alive following the accident?
Not hearsay - no match between the proposition and matter of case
Michael sued David for breach of an oral contract. W takes the stand and testifies: “I heard David say to Michael: ‘I accept your offer to sell your paper company.’” Hearsay?
Not hearsay - offered to show effect on the listener
P v. Supermarket. P alleges she slipped and fell on a broken jar of salsa in aisle 3 and that Supermarket had prior notice of the dangerous condition. P’s witness takes the stand and testifies: “Several minutes before P entered aisle 3, I heard another shopper tell Supermarket manager, ‘There’s a broken jar of salsa on the floor in aisle 3.’” Hearsay?
Not hearsay unless it was to prove the existence of a broken jar.
Sybil is charged with the murder of her husband, Basil. To prove motive, the ADA seeks to introduce an anonymous note to Sybil that was found in her possession at the time of her arrest. The note stated, “Basil is having an affair with Polly.” Hearsay?
not hearsay. what is the matter asserted? affair told to him. there is an effect on the reader - she thought there was an affiar. who cares if there was?
D is prosecuted for murder. Defense: Insanity. W for D testifies: “Two days before the killing, D said, ‘I am Elvis Presley. It’s good to be back.’” Hearsay?
Not offered to prove he is elvis but that it was his state of mind. not hearsay
D prosecuted for robbery. D takes the stand in his own defense and testifies: “(1) I didn’t do it. (2) And I told the
cops when they arrested me that I didn’t do it.” Should (1) and (2) be excluded as hearsay?
(1) not hearsay
(2) hearsay
Elements of opposing party’s statement:
any stmnt by a party that is admissible against that party
X is charged with income tax evasion for 2019. ADA wants to prove X’s income during 2019 and offers into evidence a loan application X submitted to a bank in that year. X objects on the ground that the loan application, which is filled with inflated numbers, was self-serving and unreliable. Result?
opposing party statement - hearsay exception
