Evidence Flashcards
FRE 104 - common preliminary Qs
a court is not bound by evidentiray rules (except priv) in deciding prelimainry Qs of fact relating to admissibility of evidence
statement by party opponent
made or adopted by party
made by person authorized by party
made by party’s agent/employee on matter within the scope of relationship, or
made by party’s co-conspirator during and in furtherance of conspiracy
judicial notice
a court can take judicial notice of any adjudicative fact that is not subject to reasonable dispute because it:
1) is generally known within court’s jurisidciton; or
2) can be accuarately and related determined from sources whose accuracy cannot be reasonably questioned
- can be taken on appeal too
- in civil jury, must accept facts as conclusive, but in crim may accept
extrinsic evid of prior inconsistent statement is admissible for impeachment purposes if
1) W has chance to explain/DN and opposing party can question witness about statement; or
2) justice so requires
expert testimony must be relevant and reliable
party seeking to admit it must prove reliability by preponderance of the evid
FRE 1006 - summaries to prove content
a summary, chart, or calculation may be used to prove the content of the document it summarizes if the contents are too voluminous to be conviently examined in court
original or duplicates must be made availble to an adverse party for examination or copying but need not be produced in court unless ordered to
evid of liablity insurance may be admitted to prove
ownership or control of insured item
FRE 406 - habit
evid of a person’s habit or an organization’s routine business practice is admiss to prove that the person or org acted in accordance w/ that habnit on a particular occasion even if evidence isnt corrobroated and no eyewitnesses
consistent response to a specific situation
person testifying must have personal knowledge
a phsyical object may be authenicated by comparsion to another that has been authenicated as genuine…
such a comparison may be made by an expert or trier of fact
government-informant priv
generally allows the gov to withhold the ID of a CI. However, the priv doesnt preclude disclosure of the content of a communication provided by a CI if its disclosure will not reveal the CI’s ID
FRE 403 - Excluding Relevant Evidence for…
court may exclude evidence if its probative value is substantially outweighed by a danger of
unfair prej.
confusing the issues
misleading the jury
undue delay
wasting time
needlessly presenting cumulative evidence
FRE 404(b)(2) - other crimes, wrongs, or acts
evidence of wrongs, act, crimes, are admiss for another purpose:
motive
opportunity
knowledge
intent
preparation
indentity
absence of mistake
lack of accident
prior statement of indentification
of a person made after declarant percieved a person isnt hearsay if the witness who made the statement testifies at trial and is subject to cross concerning the statement
- declarant’s lack of memory at trial doesnt defeat admissibility
*voice ID counts too
use of an out of court statement by gov viols Ds 6th Amendment confrontation clause right even if it falls within exception exception if…
1) statement was testimonial
2) W who made statement is unavailable,
3) D has not had an opportunity to cross exam the W before trial
documentary evidence (letters) can be authetnicated by
Having a lay witness w/ personal knowledge of the claimed authors handwriting - not acquired for current litigation - testify that the doc is the author’s handwriting
Time limit SCOTUS set for if a suspect has been released from interrogative custody, police obligation to honor invocation of miranda terms after…
14 days
recorded recollection
a record that is on a matter the witness once knew about but now cannot recall well enough to testify fully and accuraetly and was made when matter was fresh in the w’s head
*record may be read into evid but only admitted as an exhibit if offered by an adverse party
FRE 803(8) - public records exception
covers reports containing matters obsereved while under legal duty to report
office activities
in civil case facutal findings from legally authorized investgation
- no law enforcement reports in crim cases
FRE 804(b)(3)(A) - statements against interest
a reasonable person in declarant’s position would have made only if person believed it to be true because when it was made it was so contrary to declarant’s proprietary or pecnuinary interest or had so graet a tendenancy to invalidate declarant’s claim against someone else or to explose declarant to civil or crim liability
- requires showing of corroboration
if an expert opinion relies on otherwise inadmissable facts or data, then the court may determine its admissible if
prob value in helping the jury eval the W’s opinion substanitlly outweighs prejudicial effects
a question is always improper on cross if the form is….
argumenatitve
assumes facts
calls for conlusion or opinion
is compound
is repetitive
physician patient privilege if reconognized by state law, applies is fed diversity suits unless…
1) patient’s phsyiscal cond is at issue,
2) patient phsyician communication was part of a crime/tort
3) there’s a dispute between the patient and the physician
4) patient contractually waived the priv
former testimony exception rarely applies to grand jury because…
1) a suspect/D is seldom present, and
2) gov’s motive to develop W’s testimony is often lacking
collateral evidence rule
extrinsic evid cannot be used to impeach a W on a collateral matter
best evidence rule applies only when…
1) contents of writing, recording, photo, are at issue; or
2) w is testifying based on facts learned from such items
*doesnt apply when W is testifying as to his/her personal knowledge
the court determines whether a party has fulfilled the factual conditions to admit evid to prove the content of a doc. but in a jury trialm, the jury determines any issue of whether
1) an asserted doc ever existed,
2) another doc is the original, or
3) other evid of content accurately reflects the content
FRE 408 - settlement offers
FRE bars evid that a party furnished a promise or offered a valuable consideration in compromising the disputed claim
excludes settlement offers/statements made during settlement negotations
*can be admiss if D waives protection knowingly and voluntarily
evid of compromise may be admissible for other purposes such as
proving bias, negating contentions of undue delay, or proving efforts to obstruct a criminal investigation/prosecution
An expert W may not offer opinion if it concerns…
whether or not D possessed the requiste MR for the charge/defense
best evidence rule
requires an original or reliable duplicate of recording, writing, or photo to be produced to prove its contents.
a duplicate is not admissible and original must be produced if a genuine question is rasied about the original’s authenticity OR circumstances make it unfair to admit the duplicate
FRE 409 - offers to pay medical expenses
precludes admissiion of evid of furnishing, promising to pay or offering to pay medical expenses resulting from an injury to prove liability
dont want to discourage assistance
doesnt require statement be made in response to a disputed claim
relevancy
evid is relevant if it has the tendency to make a fact either more or less probably than it would be without the evid
good faith exception to the exclusionary rule
allows admission of illegally seized evidence if cops reasonably believed they were acting lawfully
statements made for medical diagnosis
statement must have been made for and reasonably pertinent to medical diagnosis or treatment and describe medical history; past or present symptoms; their inception; or their general cause
FRE 803(2) - excited utterance
a statement related to a startling event or condition made while declarant was under the stress/excitement of the event
FRE 803(1) - present sense impression
statement describing or explaining an event or condition made while or immediately after declarant percieved it
statements in a publication (learned treatise) may be read into evidence if they are
1) called to the attention of or relied on by expert W; and
2) publicatoin is established as a reliable authority by an party’s expert or by judicial notice
*publication cannot be offered as an exhibit
attorney client communications are not privileged if
they are relevant to an ongoing dispute between attorney and client; or
third party present when communication was made
FRE 803(11) - records of family history
hearsay exception to statements of fact about personal or family history contained in a family record. once record is authenticated, the info in record is admissible
non-hearsay
made by declarant who testifies and is subject to cross
FRE (except priv) do not apply to probation revocation hearings
.
FRE 407 - subsequent remedial measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
negligence;
culpable conduct;
a defect in a product or its design; or
a need for a warning or instruction.
post-incident discipline constitutes a subsequent remedial measure
evid of subsequent remedial measures may be admitted for another purpose…
impeachment,
if disputed, proving ownership, control, or,
the feasibility of precautionary measures.
FRE 803(3) - statement of then exisiting state of mind
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health).
but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
lay opinion testimony is admiss if
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or
to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702
spousal immunity priv
shields spouse from testifying against crim D-spouse about even that occurred before or during marriage
W-spouse holds priv until marriage ends
marital communication priv
communications b/t spouses during marriage
both spouses hold priv - even after marriage has ended
Confrontation Clause 6th Amend.
Admission of out of court testimonial statements viols D’s right of confrontation if the the witness is unavailable
to testify at trial and the defense has not had a prior opportunity to cross-examine the witness.
statements are not testimonial if they were made in an attempt to resolve an ongoing emeregency
Federal Rule of Evidence 901(a) - Authenticating or Identifying Evidence
to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
FRE 1003 - admissibility of duplicates
a duplicate of a document is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity
FRE 1004 - Admissibility of Other Evidence of Content
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
FRE 804(a)(5) - unavailable witness
A witness is unavailable when he is absent from the trial and the statement’s proponent has not been able to procure the declarant’s
attendance or testimony
steps for evidence analysis:
- relevant?
- 403?
- Is statement hearsay
- State why it is
- Exception?
DO RELEVANCY ANALYSIS UNLESS FACTS STATE OTHERWISE!!
FRE 702 - expert testimony is admiss is
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based upon sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case
FRE 803(6) - business records exception
a record of an act, event [or condition made by someone with knowledge, if kept in the course of a regularly conducted activity of a business, and if making
the record was a regular practice of that activity.
must be shown by the testimony of the custodian of the record or another qualified witness.
the doctor patient priv can be waived by patient if
the patient places her medical condition in issue in a personal injury suit
Hearsay exceptions for unavailable declarant
former testimony
dying declaration
statement against interest
statemtn of person or family history
statement offered against party that wrongfully caused declarant’s unavailability
dying declaration
1) declarant is unavailable,
2) statement was made while declarant was under belief that death was imminent,
3) the statement relates to the cause or cirucmstnaces of death,
4) used in civil or homicide case only *
declarant’s availability to testify irrelevant
present sense impression
excited utterance
mental state/physical cond
medical diagnosis or trxt
recorded recollection
business/public records
learned treatises, periodicals or pamphlets
judgment of previous conviction
residual (catch all) exception
FRE 803(1) - present sense impression exception
describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter
FRE 609(a) - convictions as impeachment
evidence of prior convictions may be admitted for the purpose of “attacking a witness’s character for truthfulness
(1) convictions for crimes punishable by death or by imprisonment for more than one year; and
2) convictions for any crimes regardless of the punishment if the court determines that establishing the elements of the crime required proving or the witness’s admitting a dishonest act or false statement
Rule 403 does not protect the witness against admission of
prior convictions involving dishonesty
FRE 609(b) - time restriction for admitting prior convictions
a conviction that is more
than 10 years old, or where more than 10 years has passed since the witness’s release from
confinement (whichever is later), should not be admitted unless “its probative value substantially outweighs its prejudicial effect and the
proponent has provided the adverse party with reasonable written notice
FRE 608(b) allows cross about specific instances of prior misconudct that are probative of untruthfulness
extrinsic evid offered to prove such misconduct is not admiss
of factors that might be used to determine the existence of an ongoing emergency (confrontation clause)
1) the nature of the dispute,
(2) the scope of the potential harm to the victim,
(3) the threat to additional identifiable victims,
(4) the existence of a more generalized threat to the public,
(5) the suspect’s choice of weapon, and
(6) whether the suspect remained “at large” or had been located (but not yet apprehended) by the police and/or any other “first responders.”
Testimonial statements and affidavits
affidavits reporting the results of forensic anaylysis seized by cops and connected to D are testimonial bc functional equivalent to testimony
FRE 404(a)(1) - character evid
evidence of a person’s character or a character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait
after a w’s character for truthfulness has been attacke,d the party who called the w may rehabilitate that character by offering
1) reputation tesitmony,
2) opinion testimony, or
3) testimony on cross exma regarding specific instances of conduct
FRE 801(d)(2)(A) - opposing party statement
exclusion to the rule against hearsay for a statement that is offered against an opposing party” and was made by the party in an individual or representative capacity
a party who wishes to preserve the right to challenge admission of evid on appeal must
1) timely object or move to strike, and
2) unless apparent from the context, state the specific ground for the objection or motion to strike
timely = made at first opportunity
prior inconsistent statements cannot be used as substantive evid unless
they are excpeted or excluded from hearsay
FRE 901 - authenticating documents - reply letter
doc written in response to communication, and
contents make it unlikely response was written by someone other than recipient of first communication
an ancient document or data compliation can also be authenticated by showing that it
is at least 20 years old at the time it is offered,
is in a condition that creates no suspicion about its authenicity, and
was found in a place where it would be likely to be if it were authentic
The character evid exception allowing crim Ds to introduce testimony regarding a pertinent character trait does not apply in
civil case
when examining an expert witness, a party may ask a hypothetical question so long as
it includes any undisputed material facts
fed common law recognizes the pschotherapist-patient priv but it doesnt apply when
1) communciated resulted form a court ordered exam,
2) the case is a committment proceeding against hte patient, or
3) the patient’s mental cond is at issue
psychotherapist-patient priv belongs to patient but must be asserted by the psychotherapist…
in the patient’s absence
in crim and civil cases involving sex assault/child molestation, evid that the accused committed any other sexual assault or child molestation is
admiss for ANY relevant purpose - even to show that the accused’s propensity to commit the charged assault or molestation
when an out of court statement is admitted under a hearsay exception, the declarant can be
impeached as if the decalarant had testified at trial (eg w/ prior bad act)
statements in documents that purport to affect a property interest are excepted from hearsay if
1) the matter stated was relevant to the doc’s purpose, and
2) later dealings with the property do not contradict the truth of the statement or the purport of the document
seven ways to impeach a witnes
1) prior inconsistent statements
2) bias and interest
3) conviction of a crime
4) bad acts
5) reputation or opinion for untruthfulness
6) sensory deficiencies,
7) contradiction
