Evidence Flashcards
role of judge and jury
who decides whether evidence is admissible?
judge - it’s a question of law
role of judge and jury
who decides fact-based questions that go to the admissibility of evidence?
judge
role of judge and jury
is the court bound by the Federal Rules of Evidence for preliminary factual decisions?
No, not bound
role of judge and jury
who decides the weight and credibility of evidence?
jury
role of judge and jury
when are preliminary hearings conducted outside of the presence of the jury?
- issue is admissibility of a confession in a criminal trial
- defendant in criminal case is a witness and makes that request
- interests of justice otherwise require it (unfair prejudice to a party)
challenge to evidence ruling
when can an evidentiary ruling be reversed on appeal?
only if (1) substantial right of a party has been affected (i.e., not harmless error) AND
(2) judge was notified of the mistake at trial and given a chance to correct it
challenge to evidence ruling
how do you request that an evidentiary ruling be reversed on appeal?
preserves an error for appeal
notify the court by objection OR offer of proof
challenge to evidence ruling
what is the plain error rule?
error that was obvious on its face to reviewing ct
appellate court will sometimes reverse a case to prevent a miscarriage of justice, even if no objection or offer of proof was made at trial
challenge to evidence ruling
when can you object?
if the court has admitted evidence that should have been excluded, you must object and explain why the evidence should have been excluded
challenge to evidence ruling
when can you provide an offer of proof?
if the court excluded evidence that should have been admitted, you must make an offer of proof on the record
offer of proof - explain to the court what the evidence would have been and why it should have been admitted
don’t need to discuss substance and logic of evidence if straightforward and clear on the surface
tip
what should I pay attn to with evidence?
type of evidence + purpose of that evidence
challenge to evidence ruling
what is limited admissibility?
Rule 105
evidence may be admissible for one purpose, but not another
challenge to evidence ruling
how do you invoke the Limited Admissibility Rule? what happens next?
Rule 105
objecting party gives request
ct gives jury a limiting instruction (telling them to use the evidence for one purpose, but not the illegitimate purpose)
challenge to evidence ruling
what is the Rule of Completeness?
Rule 106
if a party introduces part of a written or recorded statement, the opposing party may intro other portions of that statement that are necessary to put the admitted part into perspective
other parts may be intro even if they might otherwise be inadmissible
challenge to evidence ruling
when can you invoke the Rule of Completeness?
Rule 106
immediately, don’t need to wait for party’s turn to present its case
challenge to evidence ruling / Judicial Notice
what is Judicial Notice?
if question is not subject to reasonable dispute, ct will instruct jury to a accept that fact as proven without requiring formal proof
about adjudicative facts
what is an adjudicative fact?
facts that the jury would otherwise have to decide
relate to the parties and their activities
challenge to evidence ruling / Judicial Notice
what facts are not subject to reasonable dispute?
(1) generally known within the territorial jurisdiction of the court
OR
(2) accurately and readily determined by sources whose accuracy cannot reasonably be questioned
challenge to evidence ruling / Judicial Notice
what is the rule for a civil case?
ct will instruct the jury that it must accept the fact as proven
challenge to evidence ruling / Judicial Notice
what is the rule for a criminal case?
ct will instruct the jury that it may (but need not) find that fact
mode and presentation of evidence
who presents evidence first in a trial (criminal and civil)?
criminal: prosecution
civil: plaintiff
mode and presentation of evidence
who determines the order of presentation of evidence and witnesses?
within court’s discretion to control
mode and presentation of evidence
can the court call and question witnesses?
yes
all parties can cross-examine those witnesses
every party should have an oppy to object outside the hearing of the jury
mode and presentation of evidence
what is a leading question?
suggests the answer within the question
mode and presentation of evidence
when is a leading question allowed? when is it not allowed?
- generally NOT permitted on direct examination
- generally allowed in cross examination
exceptions:
* allowed to elicit preliminary background info not in dispute
* allowed when the witness has trouble communicating due to age or infirmity
* allowed when you call a hostile witness or adverse party
what is a hostile witness?
witness who presents adverse testimony
mode and presentation of evidence / refreshing a witness’s recollection
what is present recollection refreshed / refreshing a witness’s recollection?
arises when a witness is having trouble remembering
can show a witness a document (like their notes), this jogs their memory, then they put the notes aside, and proceed to testify from present memory
mode and presentation of evidence / refreshing a witness’s recollection
what happens to the document used to refresh the witness’s memory?
doesn’t become evidence
witness can’t read from it
other side is permitted to see and inspect it, and even show it to the jury
mode and presentation of evidence + hearsay
what is past recollection recorded?
arises when the witness still can’t remember after trying to refresh their memory
permits witness to read notes into evidence under a hearsay exception
requires that the (1) witness cannot remember, (2) the witness once had the knowledge, (3) the record was made when it was fresh in their memory, and (4) the record accurately reflects their memory
other side may introduce the notes to the jury
mode and presentation of evidence
what is the scope of cross examination?
scope of cross examination is the subject of direct examination
but ct can allow broader inquiry
mode and presentation of evidence
what are some examples of improper questions?
- leading questions
- compound questions
- facts not in evidence
- argumentative questions
- questions calling for inappropriate conclusions (calls for a conclusion that the witness isn to qualified to make)
- repetitive questions
mode and presentation of evidence
when can a witness be excluded from the courtroom?
witness must be excluded upon request of either party to prevent hte witness from hearing the testimony of others
mode and presentation of evidence
what type of witnesses may not be excluded from the courtroom?
witness who is essential to the presentation of the case
a person, such as a crime victim, who is permitted by state rule to remain in the courtroom OR
a party in the case
can’t remove lead investigating poilce officer but can exclude fact witnesses (MBE Practice Exam #3)
burdens and presumptions
what are the two types of burdens of proof?
burden of production + burden of persuasion
burdens and presumptions
what is the burden of production?
a party must produce enough evidence to get the issue to the jury
burdens and presumptions
what is the burden of persuasion?
a party must convince the jury to decide the case in its favor
burdens and presumptions
what is the burden of proof in a civil case?
preponderance of the evidence (generally)
burdens and presumptions
what is the burden of proof in a criminal case?
beyond a reasonable doubt
burdens and presumptions
what is the rebuttable presumption? what burden(s) does it shift?
shifts the burden of production on a particular issue (NOT the burden of persuasion)
useful for things that are difficult to prove directly
if counterproof is introduced, the presumption is eliminated and there is sufficient evidence for the jury to decide the issue
burdens and presumptions
what is the presumption for the destruction of evidence?
if a party destroys evidence, there is a rebuttable presumption that it would have been adverse to that party
burdens and presumptions
what is a “conclusive or irrebuttable presumption”?
rule of law that just happens to use the word presumption
relevance
what is the rule for relevance? what is the presumption for relevance?
FRE 401, 402
evidence must be relevant
if irrelevant, it is inadmissible
all relevant evidence is admissible UNLESS excluded by a specific rule
what is the threshold question for evidence?
relevance!
relevance
what is the definition of relevance?
FRE 401, 402
makes the issue more likely than it would be without the evidence
think about how a particular piece of evidence makes a certain fact more likely
relevance
what is needed for evidence to be relevant?
(1) material - related to some issue in the case
AND
(2) probative - having a tendency to prove/disprove some fact
relevance
what is direct evidence?
evidence equivalent to what it is offered to prove (e.g., eyewitness testimony)
relevance
what is circumstantial evidence?
evidence from which a fact can be inferred
relevance
what is the Exclusion of Relevant Evidence Rule?
FRE 403
even if the evidence is relevant and there is no particular rule excluding it, the ct has discretion to exclude relevant evidence if certain risks substantially outweigh its probative value
relevance / Exclusion of Relevant Evidence Rule
what type of risks are a concern?
FRE 403
confusion of the issues
unfair prejudice
misleading the jury
waste of time
relevance / Exclusion of Relevant Evidence Rule
how is this rule weighed?
FRE 403
weighed in favor of admissibility
probative value must be substantially outweighed by the risks
relevance
What is the Relevance Conditioned on Fact Rule?
FRE 104b
When the relevance of evidence depends upon whether a fact exists (question for a jury), so the courts will admit the evidence on the condition that the jury will decide that preliminary fact later
relevance / character evidence
what is the character evidence rule? what is the rationale?
FRE 404
rule about the propensity argument or inference
prohibits the arg that a person acted in conformity with a particular character trait
prevents a party from proving a character trait in order to show action in conformity
PBPL: too prejudicial, not that probative of the current conduct, distracts the jury’s attn
“he’s just that kind of dude”
relevance / character evidence
when character evidence is admissible? how can it be proved?
FRE 404
only through reputation or opinion testimony
can’t be proved by specific bad acts
relevance / character evidence
when can character evidence be used?
FRE 404
if character is an actual issue in the case (e.g., child custody), then it can be proved + admissible
some other relevant purpose (like when character is at issue)
NOT to prove propensity
generally only at issue in civil cases
relevance / character evidence
can character evidence be used in civil cases?
FRE 404
almost never
EXCEPT: civil case involving child molestation or sexual assault –> plaintiff can intro evidence of defendant’s prior act of that source
OR another situation where character is an essential element - fraud, negligent hiring, negl entrustment, defamation, child custody (MBE Practice Exam #3)
can even do specific acts (in addition to reputation and opinion)
relevance / character evidence
can character evidence be used in criminal cases? (basic rule)
FRE 404
prosecution is NOT allowed to intro the bad character of the defendant
defendant can raise it (opens the door for the protection)
relevance / character evidence
in a criminal case, can the defendant intro evidence of their character? if so, what can the prosecution do next?
FRE 404
defendant can intro evidence of their good character that is pertinent to the crime
defendant is limited to witnesses who will testify about opinion or reputation
this opens the door for the prosecution to rebut the defendants claims by attacking the defendant’s character
relevance / character evidence
in criminal cases, which side(s) can ask questions about specific acts from the past?
FRE 404
once the door is opened, prosecution CAN cross-examine and ask about specific acts
defendant is NOT permitted to bring up specific acts
has to be in good faith
good faith from PQs Set 1
relevance / character evidence
can the victim’s character be brought up?
FRE 404
defendant may intro evidence about victim’s character if a pertinent trait of the victim
generally only in homicide or assault cases if defendant is arguing self-defenses
relevance / character evidence
can evidence of the victim’s character be introduced in a sexual assault case?
FRE 404
no, Rape Shield Laws
relevance / character evidence
with the victim’s character, what can the prosecution do once the door is opened?
FRE 404
prosecution can intro evidence that victim is not violent using reputation or opinion NOT specific acts
prosecution can intro evidence that defendant has the same trait that they accused the victim of having
relevance / character evidence
can evidence of the defendant’s past crimes or bad acts be introduced?
FRE 404
only when the evidence is used for some other purpose (like establishing a pattern of operation), not the propensity argument
MIMIC evidence
Motive
Intent
Absence of Mistake
Modus Operandi / Identity
Common plan or scheme
MIMIC are the relevant, non-character purposes
relevance
what is habit evidence? is it allowed?
something that is routine, regular, automatic
allowed to prove action in conformity with the habit
can also be habit of an organization
witnesses
who is competent to testify? (basic rule)
anyone who has (1) personal knowledge of the matter AND
(2) is willing to make an oath to tell the truth
witnesses
are children allowed to testify?
under FRE and some states
FRE: yes if they are mature enough to understand + basic rule requirements for competence
some states have minimum age
witnesses
can a witness testify about transactions with dead people?
generally no –> Dead Man’s statute (not FRE) limits the ability of witnesses to testify about transactions with people who are deceased
witnesses
if a federal court is using state law to decide a civil case, which set of competency rules will it use?
will defer to state competency rules
witnesses
is a judge allowed to be a witness?
barred from being a witness in a trial over which they are sitting
witnesses
is a juror allowed to be a witness?
may NOT testify as a witness in a trial for a jury they sit on
witnesses
after a verdict or indictment, what is a jury NOT allowed to testify about?
FRE 606b
- any statement made during deliberations
- any incident that occurred during deliberations OR
- effect of anything upon any juror’s mind
witnesses
after a verdict or indictment, what IS a jury allowed to testify about?
FRE 606b
- extraneous prejudicial info that was improperly brought to jury’s attention
- an outside influence was properly brought to bear on a juror (e.g., bribed, threatened)
- clerical or technical error in entering the verdict onto the verdict form OR
- juror made a clear statement that they relied on racial stereotypes or animus in convicting
witnesses
what is impeachment?
calls into question the witness’s credibility
witnesses / impeachment
what are the basic ways to impeach a witness?
- show that the witness is dishonest, has a bad character for truthfulness
- bias
- sensory competence
witnesses / impeachment
how do you show a witness is biased? give examples
show that a witness has some reason to lie or shade the facts
examples
* relationship with a party (like affiliated with the other side outside of litigation)
* witness is being paid to testify
* witness has agreed to testify in return for a reduced sentence
* witness has an indirect financial interest in the outcome of the case
witnesses / impeachment
how do you show sensory competence for a witness? what is this?
witness is mistaken in some way
like they didn’t see or hear things as well as they think
“did you wear your glasses? how much did you have to drink? how far away were you?”
witnesses / impeachment
how do you show that a witness has a character for truthfulness or untruthfulness?
- character witness testimony - may be attacked through reputation or opinion, not prior specific incidents
- specific acts - may cross examine the witness about specific acts of dishonesty if there’s a reasonable basis for asking the question, must be probative of untruthfulness, only permitted to ask, have to take the answer
- criminal convictions
witnesses / impeachment
when showing a character for truthfulness, can you show that the witness was convicted of crimes?
only crimes involving dishonesty or false statements (perjury, fraud, embezzlement)
special rules for felonies and old convictions (MBE Lecture Handouts, p. 13)
witnesses / impeachment
how do you impeach a witness for prior inconsistent statements?
any kind of statement
can be proven by extrinsic evidence, but only if witness is given oppy to explain or deny the evidence
witnesses / impeachment
what is the rule for impeachment of a hearsay document?
when an out of court statement comes in under a hearsay exception, declarant (person who made the statement) is acting like a witness and can be impeached
impeachment may be made by any evidence that would be admissible if the declarant had testified as a witness
witnesses / impeachment
if a witness is impeached, how do you rehabilitate them?
- give them a chance to clarify and explain
- prior consistent statement –> show a statement they made before the alleged motive arose that is consistent [if attacked for having prior inconsistent statements]
- intro evidence of witness’s character for truthfulness [if attached for having bad character for truthfulness]
witnesses / testimony
what are the types of witnesses?
lay witnesses + expert witnesses
witnesses / lay witness
what is the rule for a lay witness’s opinion to be admissible?
(1) based on the perception of the witness AND
(2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in the case
common sense impressions are allowed
witnesses / lay witness
can a lay witness’s opinion be based on prior scientific, technical, specialized knowledge?
nope, that’s for expert witnesses
witnesses / lay witness
in general, what info do we want from witnesses?
facts not opinions
witnesses / expert witness
can you have expert testimony about witness credibility?
courts have rejected b/c jury’s role
witnesses / expert witness
when can an expert witness offer opinions or conclusions?
if
(1) subj matter is scientific, technical, or otherwise specialized
AND
(2) it will help trier of fact understand the evidence or determine a fact in issue
witnesses / expert witness
what is the Daubert test for expert witnesses?
expert is required to
1. be qualified by knowledge, skill, experience, training, or education
2. base their testimony on sufficient facts or data
3. base their testimony on reliable principles and methods
AND
4. apply the principles and methods reliably to the facts of the case
witnesses / expert witness
can an expert express an opinion about the ultimate issue of the case?
they may in most situations
but not allowed to testify about whether a criminal defendant had the requisite mental state of any element of a crime or defense
witnesses / expert witness
what can an expert base their opinion on?
what type of info
- personal observation
- evidence presented at trial
OR - info reasonably relied upon by experts in that particular field –> if standard in the industry, then can use facts that are otherwise inadmissible
witnesses / expert witness
can the court appoint an expert?
yes
must let each party know what the witness found
each party can dispose and cross-examine
tangible evidence
what is the basic rule for tangible evidence?
FIRST: must be authenticated
evidence must be sufficient to support a finding that the thing is what the party claims it is
- does not mean that the court must find the doc or thing authentic
- jury will decide this fact question
tangible evidence
what are the main categories of tangible evidence?
- real evidence
- documentary evidence
- oral statements
tangible evidence
how do you authenticate real evidence?
- personal knowledge (witness testimony)
- distinctive features or markings
- chain of custody
tangible evidence / documentary evidence
how do you authenticate documentary evidence?
- stipulation of the parties
- eyewitness testimony + distinctive features
- ancient documents
- reply letter doctrine
- handwriting certification
- self-authenticating documents
tangible evidence / documentary evidence
what is the reply letter doctrine?
authenticated by evidence that it was written in response to another letter
tangible evidence / documentary evidence
what is the rule for ancient documents?
- at least 20 years old
- in a condition unlikely to create suspicion AND
- was found in a place where such docs would be if they were authentic
tangible evidence / documentary evidence
what is the rule for handwriting verification?
- expert or jury compares it to a known sample OR
- lay witness with personal knowledge of the handwriting from before the current litigation
tangible evidence / documentary evidence
what are examples of self-authenticating documents?
FRE 902
- public docs with govt seal
- certified copies of public records
- official publications issued by public authority
- trade inscriptions (labels)
- notarized docs
- commercial paper
- newspapers, periodicals, official publications
tangible evidence
how do you authenticate oral statements?
need to identify the speaker
voice identification - can be authenticated by any person who has heard the voice at any time
phone convos - caller recognized speaker’s voice; speaker knew facts only a particular person would know; caller dialed speakers number and speaker ID’d themself when answering
whether a witness meets the qualifications to offer expert testimony is what type of question?
PQs Set 1
preliminary question for the court (not jury)
not bound by FRE
How can a criminal defendant introduce evidence that their character is inconsistent with the crime charged?
PQs Set 1
only through reputation or opinion testimony—not specific acts of conduct
can a witness be impeached with evidence of a prior conviction?
PQs Set 1
can be impeached with evidence of a prior conviction for a crime involving dishonesty (e.g., embezzlement) if the conviction occurred within the previous 10 years
when is evidence of a remedial measure admissible?
PQs Set 1
inadmissible if it was undertaken by the defendant after the plaintiff was injured
if undertaken before, it is not subj to exclusion
tangible evidence / Best Evidence Rule
what is the Best Evidence Rule? (most basic version)
you can’t describe the documents (witness testimony) instead of showing them unless you really need to
limits the ability to present other evidence of the contents of a document, film, recording, etc. when the contents are an issue
“just show us the real doc instead of talking around it”
tangible evidence / Best Evidence Rule
are duplicates allowed?
okay unless
(1) there is a genuine question about the authenticity of the original
OR
(2) the OG doc should be provided in fairness
tangible evidence / Best Evidence Rule
what does it mean that the contents are “at issue”?
- document is used as proof of an event
- document has actual legal effect (like a contract or will)
- witness is testifying based on facts only learned from the doc
tangible evidence / Best Evidence Rule
a witness actually saw what happens and there is a recording too. is this a Best Evidence Rule problem?
no because the witness can describe their personal knowledge of what happened
tangible evidence / Best Evidence Rule
what are the exceptions? (list them)
- unavailable
- public records (can use certified copy instead of OG)
- voluminous writings (can use a summary / chart)
- admission by a party
tangible evidence / Best Evidence Rule
can you intro evidence if the contents are unavailable?
yes if
1. OG has been lost or destroyed
2. OG can’t be obtained by any judicial process OR
3. party against whom the doc is introduced had control of the OG + knew it was going to be an issue at trial
tangible evidence / Best Evidence Rule
what is the rule for testimony of a party against whom the evidence is introduced?
testimony (in court or deposition) or a written statement is an exception to Best Evidence Rule
if the statement is out of court, then Rule applies
tangible evidence / Best Evidence Rule
are the contents of a document on a collateral matter allowed?
yes
collateral matter isn’t closely related to the issue in the case
privileges
what is the general principle on privileges under FRE?
no specific, codified privileges
privileges
what should federal courts do when privilege comes up?
- defer to general principles of federal common law for most privileges AND
- apply state law on privileges when deciding state law issues in diversity jurisdiction
privileges / Attorney-Client Privilege
what is Attorney-Client Privilege? (basic rule)
protects a (1) confidential (2) communication (3) b/t a client an lawyer (4) if the communication was for the purposes of securing legal advice
privileges / Attorney-Client Privilege
who can be forced to testify about the communication?
neither the attorney nor client
privileges / Attorney-Client Privilege
what does it mean for a communication to be confidential?
client must have made reasonable efforts to keep the communication confidential
can’t be in the presence of unnecessary 3p (necessary 3p are okay)
unknown secret eavesdropper does NOT destroy the privilege
privileges / Attorney-Client Privilege
what qualifies as a communication?
only the communication, not the underlying facts/evidence that client knows/has, is privileged
does NOT protect pre-existing docs
must have been made for the purposes of securing legal advice
privileges / Attorney-Client Privilege
who holds the privilege?
client!
they have the right to decide whether to disclose the communication (waive the privilege)
privileges / Attorney-Client Privilege
what is a waiver?
failure to assert privilege in a timely manner
voluntarily disclosure of the info
express waiver, even by contract
filature to take precautions by the lawyer
privileges / Attorney-Client Privilege
who is the client for a corporation?
federal courts - focus on nature of communications
statement by employee within scope f employment for purposes of seeking legal advice qualifies even if they aren’t a member of the “control group”
some courts - “control group” –> C-suite + BOD basically
privileges / Attorney-Client Privilege
what is the crime-fraud exception?
if a client communicates to a lawyer for the purposes of getting help with the client knows or should know is a crime or fraud, the communication is NOT privileged
privileges / Attorney-Client Privilege
does this privilege apply to disputes b/t lawyer and the client?
nope
privileges
what is the work product doctrine?
docs prepared by lawyer in anticipation of litigation are NOT privileged, but are PROTECTED
privileges
what type of work product cannot be obtained?
mental impression work product (core work product)
privileges
when can you obtain work product from the other side?
if party can (1) demonstrate a substantial need for that info AND (2) show that it cannot otherwise be obtained without undue hardship
privileges
what are the main categories of privileges we discussed?
- attorney-client
- physician-patient
- psychotherapist-patient
- 5th Amendment
- spousal - confidentiality marital comms + spousal immunity
privileges
what is physician-patient privilege?
statements made by patient to a doctor for purpose of obtaining medical treatment
not recognized under federal law, but some states
EXCEPTIONS:
- info for reasons other than treatment
- communication was made for some illegal purpose
- dispute exists b/t dr and patient
- patient agreed to waive it
privileges
what is psychotherapist-patient privilege?
confidential communications b/t patient and psychotherapist, psychologist, licensed social worker for purposes of treatment
recognized in federal courts and most jurisdictions
EXCEPTIONS:
- communication was result of court-ordered exam
- taken as part of a commitment proceeding (like being committed to mental health facility)
privileges
what is the Fifth Amendment protection?
prevents witness form being required to give incriminating testimony
applies only to people (not corporations)
applies only to current statements (not prior)
doesn’t apply to blood samples, breathalyzers, etc.
if no risk of criminal trouble, no privilege (like with guaranteed immunity)
privileges / spousal
what are the two types of spousal privileges?
- confidential marriage communications
- spousal immunity
privileges / spousal
what are confidential marital communications?
protects communications made b/t spouses in confidence in reliance on the sanctity of marriage
held by both spouses
survives after marriage
privileges / spousal
what is spousal immunity?
gives a spouse the right to refuse to testify in a criminal case against their spouse
only applies to currently married spouses not exes
covers testimony about anything, but only applies when currently married
witness spouse holds the privilege
privileges / spousal
when do spousal privileges NOT apply?
- one spouse is suing the other
- one spouse is charged with a crime against the other spouse or their children
admissibility of evidence / other categories
Is liability insurance admissible?
evidence that a person was/wasn’t insured against liability is NOT admissible to prove negligence or wrongdoing
EXCEPT when evidence of insurance coverage is relevant for some other purpose
admissibility of evidence / other categories
are subsequent remedial measures admissible?
evidence of repairs or changes made after an accident is NOT admissible to prove negligence, culpable conduct, defective product or design, or inadequate warning
EXCEPT when evidence of subsequent remedial measures is relevant for some other purpose (ownership, control, feasibility)
admissibility of evidence / other categories
are settlement offers or negotiations admissible?
settlement offer made by any party is NOT admissible to prove validity OR amount of a disputed claim
applies to settlement offers AND conduct or statements made during settlement negotiations
can’t be used as prior inconsistent statement to impeach
EXCEPT may be admissible if it serves another purpose (e.g., bias)
can’t be unilaterally waived by either party
admissibility of evidence / other categories
is the victim’s past sexual conduct admissible?
in general, NOT admissible in criminal proceeding involving sexual conduct
exceptions in criminal case
admissible to (1) show that defendant was/wasn’t the source of physical evidence (semen, bruises)
(2) show victim’s past sexual induct with defendant to show consent OR
(3) exclusion would be too unconstitutional / unfair to the defendant
exceptions in civil cases
admissible only if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party
evidence of reputation is admissible only if victim brings it up
admissibility of evidence / other categories
are offers to pay medical expenses admissible?
NOT admissible to prove liability for injuries
statements made or conduct accompanying offer may be admissible
admissibility of evidence / other categories
are plea negotiations admissible?
NOT admissible in civil or criminal case
incl. withdrawn guilt pleas, nolo contendere pleas, offers to plead guilty, statements made while negotiating a plea
admissibility of evidence / other categories
is defendant’s past sexual conduct admissible?
FRE 413-15
evidence that the defend committed any other sexual assault or child molestation is admissible to prove any relevant matter
criminal or civil case where defendant is accused of an act of sexual assault or child molestation
admissible for any relevant purpose, including propensity
hearsay / definition
what is the definition of hearsay?
out of court statement offered to prove the truth of the matter asserted
declarant is being treated like a witness (like a source of info)
privileges / spousal
what type of spousal privilege can one spouse prevent the other from using?
confidential marital communications
hearsay / definition
what is an out of court statement?
- spoken or written
- can include assertive nonverbal conduct (pointing)
hearsay / definition
what do you call the person who made the out of court statement?
declarant
hearsay / definition
what does “offered to prove the truth of the matter asserted” mean?
when the declarant is acting like a witness –> hearsay rule applies
if witness = declarant –> out of court statement may still be hearsay
if statement is used for some other purpose –> not hearsay
hearsay / definition
is a verbal act or legally operative facts hearsay?
not hearsay
statement offered to prove that the statement was made –> verbal conduct not hearsay
hearsay / definition
is the effect on the listener hearsay?
not hearsay
statement offered to show the effect on the person who heard it
hearsay / definition
is the state of mind hearsay?
not hearsay
statement offered as circumstantial evidence of the declarant’s mental state
circumstantial evidence can be used to show knowledge
tip
what steps should I follow for a hearsay problem?
- is there an out of court statement?
- is the statement being used to prove the truth of the matter asserted? (conduct has to be assertive)
so it is hearsay by definition - does it fall within the definition of non-hearsay?
- determine whether the declarant is unavailable –> check those hearsay exceptions
- check the rest of exceptions that might allow admission of the hearsay statement
hearsay / definition
how do you handle multiple levels of hearsay?
ex. witness reads a letter from their brother and the letter mentions a convo with the mom
need an exception or exclusion for each level of hearsay for the statement to be admissible
hearsay / non-hearsay
what are the two big categories that are excluded from the definition of hearsay?
- certain prior statements of testifying witnesses
- admissions of a party opponent
hearsay / non-hearsay / certain prior statements of testifying witness
what is the threshold question for these statements?
declarant (1) must testify as a witness and (2) be subject to cross-examination for these exclusions to apply to (3) their earlier statements
hearsay / non-hearsay / certain prior statements of testifying witness
what are the three types of these statements?
- prior inconsistent statements
- prior consistent statements
- prior statements of identification
hearsay / non-hearsay / certain prior statements of testifying witness
what is the rule for prior inconsistent statements? how can they be used?
only prior inconsistent statements that were (1) made under oath (2) at a trial, hearing, or deposition
are admissible as substantive evidence
hearsay / non-hearsay / certain prior statements of testifying witness
can a prior inconsistent be used to impeach?
yes b/c impeachment is a non-hearsay purpose
hearsay / non-hearsay / certain prior statements of testifying witness
what is the rule for prior consistent statements? how can they be used?
can be used to rehabilitate a witness when accused of recent fabrication or improper motive
can be used as substantive evidence
what is substantive evidence?
used as proof of the truth of the matter asserted
hearsay / non-hearsay / certain prior statements of testifying witness
how can prior statements of identification be used?
previous out of court ID of a person after perceiving that person is admissible
ex. police line-up
still requires the the declarant testify as a witness + be subject to cross examination
hearsay / non-hearsay / admissions of a party opponent
what is the general rule?
if the statement that is being introduced against a party is the party’s own prior statement, then it is NOT hearsay
applies to anything a party said
must be offered by the opposing party
hearsay / non-hearsay / admissions of a party opponent
what are adoptive admissions?
a statement made by someone else, which is then expressly or impliedly adopted
I ask FP to tell our meet cute story and I agree and correct it in real time.
hearsay / non-hearsay / admissions of a party opponent
can you adopt a statement by silence?
yes if
(1) party heard the statement and understood it
(2) party had the ability to respond AND
(3) reasonable person similarly situated would have denied the statement
hearsay / non-hearsay / admissions of a party opponent
Is an adoptive admission hearsay?
no
hearsay / non-hearsay / admissions of a party opponent
what is a vicarious admission?
statements made by persons authorize to speak on a party’s behalf (e.g., PR reps, lawyers)
statements made by agents or employees made within the scope of employment
hearsay / non-hearsay / admissions of a party opponent
is a vicarious admission hearsay?
not hearsay
hearsay / non-hearsay / admissions of a party opponent
are statements of co-conspirators admissible?
statements made by co-conspirators during and in furtherance of a conspiracy are admissible against other co-conspirators
hearsay / non-hearsay / admissions of a party opponent
what are the preliminary questions for a court to ask?
in deciding whether there was a conspiracy or an agency relationship –> ct can’t base its finding solely on the contents of the statement itself
pure “boot-strapping” is not permitted
must be some other evidence to support the finding
hearsay / exceptions
what are the categories to the hearsay exceptions
- declarant unavailable as witness
- declarant’s availability as a witness immaterial
hearsay / exceptions / declarant unavailable
what is the threshold requirements exceptions when the declarant is unavailable?
must show the declarant is unavailable to testify as a witness
unavailability alone doesn’t make a declarant’s out of court statement admissible
hearsay / exceptions / declarant unavailable
what is the declarant unavailable?
when do they qualify as unavailable
- exempted from testifying on the grounds of privilege
- refuses to testify
- lacks memory of the subject matter
- dead or too ill
- absent and can’t be subpoenaed or otherwise made available
- NOT considered unavailable if party wrongfully renders the declarant unavailable for the purpose of preventing testimony
hearsay / exceptions / declarant unavailable
what is the list of exceptions?
FADDS
- former testimony
- dying declarations
- statements against interest
- statements of personal or family history
- forfeiture by misconduct / declarant unavailable due to party’s wrongdoing
hearsay / exceptions / declarant unavailable
what is required for the former testimony exception?
given by unavailable witness who gave testimony at a prior hearing or deposition
admissible in a subsequent trial if the party against whom the testimony is being offered (1) had an opportunity and (2) similar motive to develop the testimony by direct or cross at prior trial, deposition, or hearing
hearsay / exceptions / declarant unavailable
what is required for the statements of personal or family history exception?
statements concerning the unavailable declarant’s own birth, adoption, marriage, etc.
NOT excluded as hearsay, admissible
hearsay / exceptions / declarant unavailable
what is required for the dying declarations exception?
- individual believes they’re dying
- individual believes death is imminent AND
- statement relates to the cause or circumstances of death
admissible in homicide or civil case
declarant doesn’t actually have to die
hearsay / exceptions / declarant unavailable
what is required for the statements against interest exception?
(1) at the time it was made, statement was against the (2) declarant’s pecuniary, proprietary, civil, or penal interest (3) such that a reasonable person would not have made the statement (4) UNLESS it were true
statements that would subject the declarant to CRIMINAL liability are NOT admissible UNLESS corroborating circumstances clearly indicate the trustworthiness of the statement
applies to civil + criminal cases
hearsay / exceptions / declarant unavailable
what is required for forfeiture by misconduct / declarant unavailable due to party’s wrongdoing?
(1) if party engages in wrongdoing for the purpose of making the declarant unavailable to testify, (2) and renders the declarant unavailable,
THEN (3) party cannot claim the declarant is unavailable AND
(4) door is open to use anything the declarant said against the party
hearsay / exceptions / declarant’s availability immaterial
what is the full list of exceptions where the declarant’s availability is immaterial?
BUMPERS
- present sense impression
- excited utterance
- state of mind
- statements made for the purposes of medical diagnosis or treatment
- past recollection recorded
- business records
- public records
- learned treatises
- judgment of previous conviction
- records of vital stats
- statements in ancient docs
- market reports and commercial publications
- marriage and baptism certificates
etc.
hearsay / exceptions / declarant’s availability immaterial
what is Present Sense Impression?
statement made while declarant was perceiving the event or immediately after, describes or explains the event
NOT excluded as hearsay
like narrating what’s happening in real time to someone on the phone
hearsay / exceptions / declarant’s availability immaterial
what is Excited Utterance?
statement relating to a startling event or condition while the declarant is still under the stress of excitement caused by teh event or condition
NOT excluded as hearsay
hearsay / exceptions / declarant’s availability immaterial
what is the State of Mind (mental, emotional, physical condition) exception?
statement of a declarant’s then-existing physical, mental, emotional condition is ADMISSIBLE to prove the existence of that condition
statement of intent can be used to prove action in conformity with that intent
NOT excluded as hearsay
hearsay / exceptions / declarant’s availability immaterial
what is the rule for statements made for the purposes of medical diagnosis or treatment?
describe a declarant’s medical history or past/present symptoms or even cause of an injury
if pertinent to treatment or diagnosis –> NOT excluded as hearsay
doesn’t need to be made directly to the doctor or made by the patient
hearsay / exceptions / declarant’s availability immaterial
what is the rule for business records?
any record or writing of an act or event made in the course of a regularly conducted business activity
admissible if record was made
1. at or near the event it records
2. by a person with knowledge of the event and under a duty to report it (or transmitted by such a person) AND
3. as part of the regular practice of the business to make that kind of records
does NOT include records in anticipation of litigation
courts have discretion to exclude if source of info or method or circumstances indicate lack of trustworthiness
hearsay / exceptions / declarant’s availability immaterial
what is the rule for public records? (general)
ADMISSIBLE if relate to
1. activities
2. observations AND
3. factual findings and conclusions
hearsay / exceptions / declarant’s availability immaterial
what is the rule for public records of law enforcement?
can only introduce activities, not what was observed or concluded
PBPL: want officer to actually testify and be subject to cross examination
hearsay / exceptions / declarant’s availability immaterial
what is the rule for learned treatises (historical, scientific, or medical)?
may be used to impeach expert witnesses
may be used as substantive evidence once it is established as a reliable authority, an expert relied on it, or it was used to cross-examine an expert
hearsay / exceptions / declarant’s availability immaterial
what is the rule for judgment of a previous conviction?
admissible to prove any fact that was essential to the judgment
hearsay / exceptions / declarant’s availability immaterial
what is the rule for reputation?
hearsay exception for reputation or character of a person
only narrow circumstances when reputation/character evidence is admissible
hearsay / Constitutional limits
what is the Confrontation Clause (6th Amendment)?
- criminal defendants have the right to be confronted with the witnesses against them
- witnesses must testify in front of the accused (face-to-face preferred)
- out of court statements that are testimonial give rise to Confrontation Clause problems
remember that testimonial means if declarant would reasonably expect it to be used in a prosecution
what is a testimonial statement?
made with the primary purpose of ascertaining past criminal conduct
does not include statements for the purpose of getting emergency help
hearsay / Constitutional limits
when can testimonial statements be admitted under Confrontation Clause (6th)?
only be admitted against a criminal defendant IF
1. declarant is now unavailable AND
2. declarant had a prior oppy to cross examine that declarant
hearsay / Constitutional limits
who has the burden of the Confrontation Clause (6th)?
separate hurdle for prosecutors
hearsay / Constitutional limits
Due Process (14th)
if evidence rules restrict a criminal defendant’s ability to mount a defense, rules might violate DP
hearsay
does the hearsay general rule apply to statements made by a machine?
UWorld
nope, only those from people
when one side uses a writing (or other evidence) to refresh a witnesses’s memory, is the other side entitled to inspect it?
UWorld
if evidence is used while testifying –> court must allow other side to inspect, cross-examine, and intro any relevant part into evidence
if evidence is used before testifying –> ct may allow opposing party
who can authenticate a photo?
UWorld
any witness with the requisite personal knowledge
not just the photog
are the client’s legal fees protected under attorney-client privilege?
UWorld
not privileged
merely incidental to providing legal assistance
hearsay
what is the hearsay exception for absent public records?
PQs Set 2
testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind
can a witness be impeached by evidence that directly contradicts the witness’s testimony on a material issue?
PQs Set 2
yes, using intrinsic or extrinsic evidence
under the rule of completeness, can you introduce another document?
PQs Set 2
party may introduce any part of a previously admitted writing or recorded statement, or any other writing or recorded statement, that in fairness should be considered at the same time
true even if the additional evidence is otherwise inadmissible
when is character evidence admissible?
PQs Set 2
if a person’s character is an essential element of a civil claim, criminal charge, or asserted defense
what are the ways to attack a witness’s character for truthfulness?
PQs Set 2
(1) reputation or opinion testimony OR (2) specific instances of conduct that are probative
(2) can be (a) convictions for a felony or crime of dishonesty or (b) other bad acts (mere arrest doesn’t qualify)
what does it mean to sustain and overrule objections?
overruled - objection is rejected, evidence is admitted
sustained - objection is accepted, evidence is excluded
When state law supplies the rule of decision for a claim or defense, what law should the court apply?
PQs Set 2
court should also apply state law to determine the effect of a presumption on the claim or defense
can prior crimes and acts be shown to prove a person’s character?
UWorld
no, can’t be used to show a person’s propensity to behave in a certain manner
does the Best Evidence Rule apply to real or physical evidence?
PQs Set 3
no, not subject to the Rule
can a D waive the protection of statements during plea negotiations (these are generally inadmissible)?
PQs Set 3
yes if waiver is made knowingly and voluntarily
when is a prior inconsistent statement admissible nonhearsay?
PQs Set 3
substantively
(1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding AND
(2) the declarant testifies and is subject to cross-examination
impeachment
extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about, the statement
what is the bursting bubble approach under FRE?
PQs Set 3
rebuttable presumption “bursts” when the opposing party in a civil case produces sufficient evidence to contradict the presumed fact
The fact finder must then weigh the evidence to decide the issue
what is the burden and which party has it when introducing evidence for convictions for felonies not involving dishonesty?
PQs Set 3
Convictions for felonies not involving dishonesty that are no more than 10 years old are admissible against a civil witness UNLESS the party opposing the introduction of the conviction shows that its probative value is substantially outweighed by its prejudicial effect
how do you authenticate an item of evidence that is a physical representation of something that could not have otherwise been seen?
ex. x-ray image
PQs Set 3
proof of
1. process for creating the evidence was accurate
2. machine that produced the evidence was working properly
AND
3. operator of the machine was qualified to operate it
are compromise offers (and acceptances) + statements made during these negotiations generally admissible?
PQs Set 3
generally inadmissible to (1) prove/disprove the validity or amount of a disputed claim or (2) impeach by a prior inconsistent statement or contradiction
what is the doctrine of curative admission?
PQs Set 4
when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal
meant to remedy the prejudicial effect caused by the previously admitted evidence
if a party is using secondary evidence (testimony) to prove a document’s content when the doc in unavailable, what is the role of the judge vs. jury?
best evidence rule
PQs Set 4
- court determines whether a party has fulfilled the factual conditions to admit other evidence to prove the content of a document
- jury determines any issue of whether (1) an asserted document ever existed, (2) another document is the original, or (3) other evidence of content accurately reflects the content.
what is the federal inadvertent-waiver rule?
PQs Set 4
an inadvertent disclosure of protected information does NOT waive the attorney-client privilege or the attorney work-product doctrine
IF
(1) the disclosure was in a federal proceeding or to a federal agency AND (2) the privilege holder attempted to prevent disclosure and promptly tried to rectify the error
tip
If I’m dealing with evidence, what should I think about?
is the evidence even relevant!
is evidence showing the D’s consciousness of guilt relevant?
ex. buying an international plane ticket
UWorld
yes, relevant b/c it makes the material fact of D’s guilt more probable
what is Use Immunity?
MBE Practice Exam #3
prohibits only the use of the compelled testimony against the witness
can’t use it against you
transactional immunity is the better one (more protection)
what type of control does trial judge have over mode and order of examining witnesses?
UWorld Assessment #2
broad discretion to exercise reasonable control
can do things like ordering a party to testify before witnesses
when do the Federal Rules of Evidence NOT apply?
UWorld Assessment #2
- grand jury
- preliminary question determinations
- search / arrest warrant determinations
- prelim exams in crim
- extradition or rendition proceedings
- bail and other release hearings
- sentencing
- probation / parole revocation
BUT rules regarding privilege apply to ALL proceedings (including this list)
hearsay / non hearsay
rule for using prior inconsistent statement for impeachment
UWorld Assessment #2
- intrinsic evidence - examining witness about the statement OR
- extrinsic evidence IF (1) witness has oppy to explain or deny AND opposing party can question witness about it
OR
(2) justice so requires
