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Evidence Flashcards

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1
Q

In what proceedings do the federal rules of evidence not apply?

A
  1. Grand jury proceedings
  2. Preliminary hearings
  3. Warrant hearings
  4. Bail proceedings
  5. Preliminary questions regarding admissibility
  6. Sentencing
  7. Probation violation hearings
  8. Forfeiture proceedings
  9. Summary contempt
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2
Q

What’s required for an objection to a piece of evidence?

A

Timely objection and motion to strike that states a specific ground

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3
Q

What is the plain error doctrine?

A

A reversal may be granted without a timely objection if the error is highly prejudicial to substantive rights

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4
Q

What standard does the judge apply in preliminary questions of admissibility?

A

Preponderance of the evidence

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5
Q

What standard is used in preliminary questions of conditional admissibility?

A

There is sufficient evidence to support a finding that the preliminary fact does exist to find the evidence relevant

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6
Q

When must the judge conduct a hearing on the preliminary question away from the jury?

A
  1. Admissibility of a confession
  2. A criminal defendant requests
  3. Justice so requires
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7
Q

What is the rule of completeness?

A

If a party introduces a statement or part of a statement, an adverse party may require the introduction, at that time, or any other part or another statement that in fairness ought to be considered at the same time.

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8
Q

What is judicial notice?

A

A substitute for proof where the court accepts certain adjudicative facts as true without requiring formal presentation of evidence. Mandatory if requested and necessary info supplied.

For:
1. Facts commonly known in the territory
2. Easily verifiable facts

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9
Q

What’s the effect of a jury instruction on judicial notice?

A

A civil jury must accept the judicially noticed fact as conclusive

A criminal jury may, but is not required to, accept a judicially noticed fact as conclusive.

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10
Q

What are 3 main burdens of persuasion?

A
  1. Preponderance of the evidence - traditional civil standard, preliminary criminal matters
  2. Clear and convincing - insanity, criminally-related civil cases (like fraud)
  3. Beyond a reasonable doubt - criminal guilt
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11
Q

Are presumptions allowed in criminal cases?

A

Mandatory presumptions are unconstitutional. Can’t shift burden from prosecution to prove every element.

Permissive presumptions allow jury to presume one fact from another, these are permitted in a criminal case.

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12
Q

When is evidence relevant?

A

When it makes a fact of consequence to the action more or less probable.

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13
Q

What are the grounds for excluding relevant evidence under rule 403 balancing?

A

May be excluded if the probative value is substantially outweighed by:
1. Danger or unfair prejudice
2. Confusion of the issues
3. Misleading the jury
4. Undue delay
5. Waste of time
6. Needless presentation of cumulative evidence

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14
Q

What are the grounds for excluding relevant evidence under rule 403 balancing?

A

May be excluded if the probative value is substantially outweighed by:
1. Danger or unfair prejudice
2. Confusion of the issues
3. Misleading the jury
4. Undue delay
5. Waste of time
6. Needless presentation of cumulative evidence

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15
Q

What are the types of character evidence?

A

Reputation
Opinion
Specific acts

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16
Q

What are the civil causes of action where character is at issue?

A
  1. Defamation
  2. Negligent entrustment, hiring, supervision
  3. Immigration
  4. Child custody
  5. Entrapment (criminal defense)
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17
Q

What kinds of character evidence is admissible when character is an element of the cause of action?

A

All three - reputation, opinion, specific acts

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18
Q

When is character evidence for truthfulness admissible for impeachment?

A

Reputation or opinion evidence only, on direct
Civil and criminal cases

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19
Q

When is impeachment by prior bad acts admissible?

A

Specific acts relevant to truthfulness are admissible to impeach a witness by asking questions on cross-examination inquiring into the witness’s own prior bad acts bearing on truthfulness.
Conviction is not necessary. Extrinsic evidence is not allowed.

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20
Q

How can a criminal defendant offer testimony about their own pertinent good character? How can the prosecution respond?

A

Can offer with reputation and opinion.

Prosecution can test on cross with specific acts or call a witness to rebut with reputation or opinion.

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21
Q

How can a criminal defendant attack a victim’s pertinent character? How may the prosecution respond?

A

With reputation or opinion.

Prosecution can test witness with specific acts, may call a witness to rebut with reputation or opinion, or offer reputation or opinion on the defendant’s same trait.

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22
Q

What are the exceptions to the use of character evidence to show conduct in conformity?

A
  1. Defendant can open the door on their own character.
  2. Defendant can attack victim
  3. Prosecution can offer evidence to rebut self-defense in homicide
  4. Victim’s past sexual acts to show consent, other source of physical evidence, impeachment
  5. Evidence of similar crimes in sexual assault and child molestation cases
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23
Q

When can a prosecution offer evidence of a victim’s trait? How can the defendant respond?

A

In a homicide case, may offer reputation or opinion on the victim’s trait of peacefulness to rebut self-defense.

Defendant can presumably respond by testing and rebutting.

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24
Q

What is the rape shield law?

A

A broad rule that excludes any evidence offered to show the alleged victims sexual behavior, sexual predisposition, or sexual history.

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25
Q

When is evidence of an alleged victim’s past sexual act admissible?

A

When using specific acts to show:
1. Consent - past sexual acts with this defendant
2. Alternative source of semen, injury, or other physical evidence
3. Evidence that is constitutionally required - impeachment by bias, etc

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26
Q

When is evidence of a criminal defendant’s past sexual crimes admissible?

A

In a criminal case in which the defendant is accused of child molestation or sexual assault, specific acts by the defendant are admissible if they bear on stuff like propensity, likelihood, and disposition.

The same is true in a civil case.

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27
Q

When are specific acts admissible for purposes other than character evidence?

A

Motive
Intent
Absence of mistake
Identity (modus operandi)
Common scheme or plan
Knowledge
Oppportunity
Preparation

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28
Q

When is evidence of habit or practice sufficient to show conformity with habit?

A

Opinion or specific acts

When it’s automatic, always, regularly, instinctively, without fair, invariably.

Not enough: usually, often, frequently

29
Q

Are admissions of fact in connection with an offer to pay medical bills admissible?

A

Yes. Offer itself is not, but any admissions are severed.

30
Q

Which four privileges are recognized in federal courts?

A
  1. Attorney client
  2. Psychotherapist-patient
  3. Clergy- penitent
  4. Spousal testimony and spousal communications
31
Q

What is protected by the attorney-client privilege?

A

Confidential communications made for the purpose of seeking professional legal advice or services.

32
Q

Who holds the attorney-client privilege?

A

The client.

33
Q

What are the exceptions to attorney-client privilege?

A
  • known eavesdroppers - not confidential
  • future crime or fraud
  • joint clients
  • suits between attorney and client
  • waiver
34
Q

What is the spousal communications privilege? Who holds it?

A

Applies to both civil and criminal
Can be asserted by either spouse
Protects confidential communications made during the marriage
Survives divorce

35
Q

What are the exceptions to the spousal communications privilege?

A
  • victim spouses or children
  • suit between spouses
  • joint spousal participation in a crime
36
Q

What is the spousal testimony privilege? Who holds it?

A

Only applies in criminal cases.

Testifying spouse holds privilege.

Can refuse to testify against spouse - protects basically all communications, observations, impressions, regardless of confidentiality, both during and before marriage.

Does not survive divorce - must be married at the time of trial.

37
Q

Which types of immunity bar assertion of the 5th amendment privilege against self-incrimination?

A

Transactional immunity
Derivative use immunity

38
Q

What is a dead man’s statute?

A

Doesn’t apply under FRE, but may if a state has it.

Doesn’t allow any witness to testify about a transaction involving the decedent.

39
Q

When is evidence admissible to enhance a witness’s credibility?

A

Only after the witness has been impeached.

40
Q

What is the impeachment on a collateral matter rule?

A

Often precludes the cross-examiner from offering extrinsic evidence to prove the impeachment. The cross-examiner is bound by the witness’s answer on a matter solely affecting the credibility of the witness, can’t bring in extrinsic evidence.

41
Q

What are the methods of impeachment?

A
  1. Interest, motive, or bias
  2. Incapacity to observe, recall, or relate
  3. Prior inconsistent statement
  4. Character evidence for truthfulness by reputation or opinion
  5. Character evidence for truthfulness by prior bad act
  6. Prior conviction of a crime
  7. Contradiction
42
Q

What are the 4 steps of analysis for impeachment by a prior convicted crime?

A
  1. Prior - 10 year rule
  2. Convicted - adult or juvenile?
  3. Crime - dishonesty crime or felony over 1 year sentence
  4. Balancing required?
43
Q

When is extrinsic evidence of a prior inconsistent statement admissible?

A

Only if the witness is given a chance to explain or deny the prior inconsistent statement
And
- The adverse party is given an oppportunity to examine the witness about the prior inconsistent statement or justice so requires

May exclude if ona collateral matter

44
Q

What types of evidence are never admissible even as impeachment?

A
  • character for untruthfulness by specific act
  • religious beliefs or opinions (unless to show bias or something else)
45
Q

When are leading questions allowed on direct examination?

A
  1. Hostile witnesses
  2. Adverse witnesses
  3. Child witnesses
  4. Preliminary background information
  5. Refreshing recollection of the witness
46
Q

What writings can be used to refresh a witness’s memory?

A

Literally anything - doesn’t have to be authenticated, admissible, introduced, etc

47
Q

What opinion testimony can non-expert witnesses provide?

A

Rationally based on the perception of the witness and helpful to the finder of fact.

  • value of one’s own property
  • emotional state of others
  • measurements
  • physical states
  • sensory descriptions
48
Q

What is required of expert witness testimony?

A

Subject matter - scientific, technical, other specialized knowledge that will be helpful to finder of fact
Person - qualified expert
Opinion - based on sufficient facts and data
Testimony - reliable application of the principles and methods to the facts of the case

49
Q

What are the factors to determine whether an expert witness testimony is reliable?

A
  • tested
  • general acceptance in the community
  • peer review
  • degree or rate of error
  • standards
50
Q

What are the three factual bases for expert testimony?

A
  • personal knowledge
  • facts presented to the expert at trial
  • facts presented to the expert outside of court

Must be of the type reasonably relied upon by other experts in the field

51
Q

What is hearsay?

A

A statement made out of court offered to prove the truth of the matter asserted

52
Q

What is non-hearsay (definitionally exempted from hearsay rules)?

A
  1. Statement by a party opponent.
  2. Vicarious admissions
  3. Prior inconsistent statement under oath
  4. Prior consistent statement to rebut recent fabrication
  5. Statements of prior identification
53
Q

What are the observational hearsay exceptions?

A
  1. Present sense impression
  2. Excited utterance
  3. Statement of then existing mental, physical, or emotional condition
  4. Statement for medical treatment or diagnosis
  5. Past recollection recorded
54
Q

What are the documents/public records hearsay exceptions?

A
  1. Business records
  2. Public records
  3. Religious and family records
  4. Real property related records
  5. Ancient documents - pre 1998
  6. judgements in cases
  7. Market reports, commercial publications
  8. Learned treatises - medicine, art, science, history
55
Q

What are the reputation exceptions to hearsay?

A
  1. Reputation regarding family or personal history
  2. Reputation regarding land use boundaries or historically significant events
  3. Reputation regarding character
56
Q

What are the hearsay exceptions requiring declarant’s unavailability?

A
  1. Former testimony
  2. Dying declarations
  3. Statement against interest
  4. Statement of personal or family history
  5. Forfeiture by wrongdoing - if the opposing party is the reason the declarant is unavailable
57
Q

What is the confrontation clause?

A

In a criminal case where the declarant is unavailable, testimonial hearsay will be inadmissible unless the defendant has an opportunity to cross-examine the declarant

58
Q

What documents are self- authenticating?

A
  • certified documents
  • official publications
  • newspapers and periodicals
  • trade inscriptions
  • acknowledged documents
  • commercial paper
59
Q

How is a physical objected authenticated?

A

Witness must lay a foundation sufficient for a finding that the object is what it purports to be.

  • personal knowledge
  • distinctive characteristics or markings
  • unbroken chain of custody
60
Q

What is the best evidence rule?

A

The prove the content of a writing, recording, or photograph, the original is required, unless excused.

61
Q

What qualifies as an original document?

A
  • original
  • duplicate
  • counterpart
  • certified copy of a public record
  • summary of voluminous records
62
Q

When is an original not required under the best evidence rule?

A
  1. Collateral issue
  2. Originals are lost or destroyed
  3. Opponent has possession and won’t deliver
  4. Testimony or admission by opponent
  5. Original can’t be obtained by subpoena
63
Q

Does the physician-patient privilege apply to first responders?

A

No - does not apply to rescuers.

64
Q

When does the best evidence rule apply?

A

When the testimony derives from the writing. It does not apply when the testimony derives from personal knowledge, outside the writing.

65
Q

What is the standard of review for admission of expert testimony?

A

Abuse of discretion. It’s considered a discretionary decision by the trial judge.

66
Q

Are instructions from a doctor hearsay?

A

No. They’re considered conduct, and generally used to prove an inference, not the truth of the matter.

67
Q

Are police reports admissible?

A

Yes, typically as a public record.
But, often a hearsay within hearsay issue.

68
Q

Is judicial notice mandatory?

A

Yes, at the request of a party, and when presented with sufficient evidence.

69
Q

When can a juror testify about matters occurring during deliberations?

A

Generally, never.

Unless:
1. Extraneous prejudicial information is brought to the jury’s attention
2. Outside influence improperly brought into the deliberations
3. Mistake in entering the verdict on the verdict form

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