Evidence Flashcards
When does a statement by an unavailable declarant qualify as a “statement against interest” hearsay exception?
If the statement:
(i) Was against the declarant’s interest at the time it was made; and
(ii) Would not have been made by a reasonable person unless he believed it to be true.
With respect to preliminary questions of admissibility, who has the burden of persuasion?
The party offering the evidence ordinarily bears the burden of persuasion.
Note: The party offering the evidence is often referred to as the moving party, or the proponent.
List three examples of preliminary questions of admissibility that a judge, rather than a jury, would determine.
(i) the admissibility of evidence; (ii) whether a privilege exists; (iii) whether a person is qualified to be a witness.
Note: Judges also determine whether an exception would apply to allow hearsay into the record.
Who bears the burden of production in a civil case?
The moving party in a civil case is the plaintiff. Therefore the plaintiff bears the burden of production, or moving forward, with the evidence.
Note: Failure to meet this burden could result in a directed verdict against the party bearing the burden.
When are leading questions proper on direct examination?
Leading questions are proper on direct examination when necessary to develop the witness’s testimony, including (i) preliminary background matters, (ii) hostile witnesses, and (iii) minors or those with difficulty communicating.
When may an expert testify as to facts and data that the expert has not personally observed?
When experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject.
Note: If such facts are inadmissible, the proponent nevertheless may disclose them to the jury if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
Also note: An expert may state an opinion and give the reasons for it without first testifying as to the underlying facts or data, unless the court orders otherwise.
Who bears the burden of production in a criminal case?
The moving party in a criminal case is the prosecution. Therefore the government bears the burden of production, or moving forward, with the evidence.
Note: Failure to meet this burden could result in a judgment of acquittal.
When may a witness be impeached by evidence of a juvenile adjudication?
Evidence of a juvenile adjudication is NOT admissible against a defendant. Another witness may be impeached by evidence of a juvenile adjudication, but ONLY IF:
(i) it is offered in a criminal case,
(ii) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(iii) admitting the evidence is necessary to fairly determine guilt or innocence.
Note: Remember, regardless of how probative a juvenile adjudication might be, if it is being used against a criminal defendant, it is inadmissible
What five hearsay exceptions only apply when the hearsay declarant is unavailable?
(1) Former testimony;
(2) Dying declaration;
(3) Statement against interest;
(4) Statement of personal or family history;
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability
What are the three types of prior statements by a declarant witness that are defined by the FRE as non-hearsay?
(1) Prior inconsistent statements made under penalty of perjury;
(2) Prior consistent statements admitted to (i) rehabilitate the witness’s credibility or (ii) rebut a suggestion of recent fabrication or improper motive, as long as the prior statement was made before the witness had reason to fabricate;
(3) Prior statements of identification of a person after perceiving that person
At what time can a court take judicial notice?
Judicial notice can be taken at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.
Note: The court may not take judicial notice against a criminal defendant for the first time on appeal from a criminal jury (but may from a bench trial/civil jury).
What are three ways in which tangible evidence (e.g., murder weapon) may be authenticated?
- By testimony of personal knowledge of the object;
- By testimony of its distinctive characteristics;
- By chain of custody when a physical object that could easily be tampered with or confused with a similar item (e.g., a blood sample)
List three examples of habit evidence.
Habit can be the regular practice of a business or an individual. Examples can be positive (always) or negative (never).
Examples: (i) a company “routinely” matches employee’s charitable contributions, (ii) a person “never” smokes, (iii) a person “always” wears a seatbelt.
What are five non-hearsay uses for out-of-court statements (i.e. uses that prove something other than the truth of the matter asserted)?
A statement is non-hearsay if offered:
(1) To prove that the statement was made (i.e., as legally operative fact);
(2) To show the effect on the recipient;
(3) As circumstantial evidence of the declarant’s state of mind (or their world view/belief system);
(4) As circumstantial evidence of identity; or
(5) Solely to impeach or rehabilitate.
What is the plain error rule?
A plain error is one that is obvious to the reviewing court. A plain error that affects a substantial right is grounds for reversal, even if no objection was made.
What criminal convictions may be used as impeachment evidence?
Convictions for crimes involving dishonesty/false statement can be used to impeach any witness, regardless of the punishment imposed or the prejudicial effect.
Convictions for felonies not involving dishonesty/false statement are admissible to impeach:
(a) A criminal defendant only if its probative value outweighs its prejudicial effect; or
(b) Any other witness, unless the probative value is substantially outweighed by its prejudicial effect.
Note: These convictions are subject to the 10-year restriction.
What four categories of witnesses may not be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?
(i) A party who is a natural person;
(ii) An officer or employee of a party that is not a natural person if that officer or employee has been designated as the party’s representative by its attorney, including the investigating officer;
(iii) Any person whose presence is essential to a party’s presentation of its case; and
(iv) A person whose presence is permitted by statute (e.g., victims).
What is the difference between the application of a Dead Man’s Statute in a criminal case versus a civil case?
Dead Man’s Statutes do not apply in criminal cases. In civil cases, a party with a financial interest in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case.
Note: The rationale is to protect a decedent’s estate from parties who claim the decedent said or did something that affects the financial outcome of the case. The Federal Rules do not include a Dead Man’s Statute. This may arise in the context of a federal court applying state law (i.e., diversity cases) if the fact pattern specifically says that the jurisdiction has a Dead Man’s Statute.
What is the “rape shield” rule?
Evidence offered to prove the victim’s sexual behavior/predisposition is generally inadmissible in any proceeding involving sexual misconduct (civil or criminal). However, such evidence may be admitted if the court determines, at an in camera hearing, that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party
What is the difference between direct and circumstantial evidence?
Direct evidence is identical to the factual proposition that it is offered to prove. An example is witness testimony as to what the witness personally heard, saw, or experienced. Circumstantial evidence tends to indirectly prove a factual proposition through an inference from collateral facts.
Example: A witness seeing the defendant shoot the victim (direct evidence the defendant shot the victim), versus seeing the defendant holding a gun while exiting an alley where a person is lying on the ground bleeding from a gunshot wound (circumstantial evidence the defendant shot the victim).
When may the prosecution offer evidence of an alleged victim’s good character in a criminal case?
The prosecution can offer:
(i) Rebuttal evidence of a victim’s good character when the defendant has introduced evidence of the victim’s bad character; and
(ii) Evidence of the victim’s character trait for peacefulness in homicide cases to rebut evidence that the victim was the first aggressor.
When are specific instances of conduct admissible as impeachment evidence?
On cross-examination, a witness may be asked about specific instances of conduct as long as:
(1) It is probative of the truthfulness or untruthfulness of the witness or another witness about whose character the witness being cross-examined has testified; and
(2) The lawyer who examines the witness has a good-faith basis for believing that the misconduct occurred.
Note: The judge may refuse to allow such questioning of a witness under either Federal Rule 403 (the probative value is substantially outweighed by the danger of unfair prejudice) or Federal Rule 611 (protection of the witness from harassment or undue embarrassment).
What are the two ways that a criminal defendant may “open the door” for the prosecution to introduce bad character evidence about the defendant?
The defendant opens the door to evidence of his own character if the defendant introduces evidence of:
(i) The defendant’s good character; or
(ii) The victim’s bad character.
The prosecution may rebut the defendant’s claims by attacking the defendant’s character.
When is character evidence admissible in civil cases, and in what forms?
When character evidence is an essential element of a claim or defense.
When admissible in a civil case, character may be proved by reputation, opinion, and specific instances of a person’s conduct.
When the relevance of evidence depends upon whether a fact exists, what standard is applied to determine whether sufficient evidence has been introduced to support a finding that the fact does exist?
The court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence.
Note: The court itself is not required to find that the conditional fact exists by a preponderance of the evidence.
How may a party to a telephone conversation authenticate statements made during that conversation as having been made by a particular individual?
By testifying that:
(i) The caller recognized the speaker’s voice;
(ii) The speaker knew facts that only a particular person would know;
(iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
(iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.
Note: Remember that a voice can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation.
When is silence in response to a statement considered an adoptive admission?
(i) The person was present and heard and understood the statement;
(ii) The person had the ability and opportunity to deny the statement; and
(iii) A reasonable person similarly situated would have denied the statement.
Note: Post-arrest silence by a defendant who has received Miranda warnings may not be used as an adoptive admission of a statement made by another person.
What is required for evidence to be “relevant?”
Evidence is relevant if:
(i) It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative); and
(ii) The fact is of consequence in determining the action (i.e., material).
In what six situations does the physician-patient privilege not apply?
(i) The information was acquired for reasons other than treatment;
(ii) The patient’s physical condition is at issue;
(iii) The communication was made as part of the commission of a crime or tort;
(iv) A dispute exists between the physician and the patient;
(v) The patient contractually agreed to waive the privilege; or
(vi) A case is brought in federal court and state law does not apply (e.g., most cases that involve a federal question).
What are the two spousal privileges?
Spousal Immunity: For the duration of their marriage, a married person cannot be compelled to testify against their spouse in any criminal proceeding.
Confidential Marital Communications: Communication made between spouses while they were married is privileged.
In a criminal homicide trial in which the defendant is claiming self defense, what evidence is the prosecution allowed to present about the character of the victim?
In a criminal prosecution for homicide, the prosecution is permitted to offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor.
Note: This is not considered opening the door, rather it is creating an even playing field for the jury. Since the defendant claims self-defense was justified due to the alleged victim being the initial aggressor, and the alleged victim is unable to testify, the jury can determine whether the victim was the type of person who would have initiated force.
What is limited admissibility?
Limited admissibility means that evidence may be admissible for one purpose but not for another, or against one party but not against another. In these cases, if a party makes a timely request, the court must restrict the evidence to its proper scope and instruct the jury accordingly.
A common example is when a criminal defendant is testifying. The defendant has now put credibility in issue, and impeachment with a prior conviction might be admissible. The defendant’s attorney would make a request to have the court instruct the jury that the conviction should only be used for the limited purpose of assessing credibility, rather than determining guilt or innocence.
For what two purposes are compromise offers and negotiations inadmissible as a public policy exclusion?
Compromise offers and any conduct or statements made during compromise negotiation are inadmissible by either party:
(i) To prove or disprove the validity or amount of a disputed claim; or
(ii) For impeachment by a prior inconsistent statement or contradiction.
What are the two methods by which handwriting can be authenticated?
- An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine; or
- A lay witness with personal knowledge of the claimed author’s handwriting may authenticate the handwriting, as long as the witness did not become familiar with the handwriting for the purposes of the current litigation.
What are three instances in which specific acts are admissible in criminal cases?
- When character is an essential element of a charged crime (or of a defense) and a defendant offers specific acts inconsistent with the crime;
- For non-propensity purposes (e.g., “MIMIC” evidence (Motive, Intent, absence of Mistake, Identity, or Common plan)); and
- When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying.
What are the four requirements to admit a record under the recorded recollection hearsay exception?
(i) The record is on a matter that the witness once knew about;
(ii) The witness made/adopted the record when the matter was fresh in the witness’s memory;
(iii) The record accurately reflects the witness’s knowledge; and
(iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.
What requirements must be met for the opinion of a lay witness to be admissible?
The opinion must be:
(i) Rationally based on the perception of the witness; and
(ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
Additionally, the opinion must not be based on scientific, technical, or specialized knowledge.
What two elements do the Confrontation Clause of the Sixth Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?
(i) The declarant must be unavailable; and
(ii) The defendant must have had a prior opportunity to cross-examine the declarant.
Note: The Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial.
What are the three requirements to admit a record under the records of regularly conducted activity (i.e., business records) hearsay exception?
(i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
(ii) The making of the record was a regular practice of that activity; and
(iii) The record was made at or near the time by someone with knowledge.
What four requirements must be met for an expert witness to offer opinion testimony?
(i) The witness is qualified as an expert by knowledge, skill, experience, training, or education;
(ii) The testimony is based on sufficient facts or data;
(iii) The testimony is the product of reliable principles and methods; and
(iv) The witness applied the principles and methods reliably to the facts of the case.
Note: The expert must also possess a reasonable degree of certainty in her opinion, which may be expressed using language such as “probably.” Also note: While a witness may state an opinion about a matter, even though the opinion embraces an ultimate issue in the case, an expert may not state an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense.
What standard of proof applies to the authentication of tangible evidence?
The proponent of the evidence must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.
Note: This is a lesser standard than a preponderance of the evidence.
