Evidence Flashcards
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When does FRE not apply?
When determining preliminary questions of fact regarding the admissibility of evidence;
Grand jury proceedings;
Preliminary examinations in criminal case;
Sentencing, probation, and bail hearings;
Summary contempt proceedings;
For the issuance of warrants & criminal summons; and
Extradition or rendition proceedings
In RE to evidence, what does the judge decide?
Preliminary questions about the competency of the evidence and whether:
Evidence is admissible;
Witnesses are qualified; and
Privilege exists
Note: Except for deciding whether privilege exists, the judge is not bound by the FRE when deciding preliminary questions
When does a preliminary hearing on the evidence need to occur outside the presence of the jury?
If:
Hearing involves the admissibility of a confession;
D in a criminal case is a witness and so requests; or
Justice so requires
What does the jury decide?
Weight and credibility of the evidence
If a party believes evidence was erroneously admitted, how can the issue be preserved for appeal?
The party must, on the record:
- Timely object or move to strike; and
- State the specific ground, unless it was apparent from the context
Rule of Completeness
The rule of completeness (i.e., Federal Rule 106) permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement. Consequently, if fairness does not require the immediate introduction of the prior letter, the defendant will have to wait until the defendant can present evidence in order to introduce this letter.
Authentication
All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does
Demanding witnesses be removed from court room
At a party’s request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies.
Exceptions:
-party to suit, who is a natural person
- One 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 a police officer in charge of the investigation in a criminal case;
- Any person whose presence is essential to a party’s presentation of its case; or
- A person, such as a victim, whose presence is permitted by statute.
Cross Section of Prior Inconsistent Statement and Hearsay
A prior inconsistent statement is a statement that was made by a witness in the past that is inconsistent with the witness’s current testimony. The prior statement may be used to impeach (ie, discredit) the witness by:
examining the witness about the statement (ie, intrinsic evidence) or
introducing the statement through extrinsic evidence if (1) the witness has an opportunity to explain or deny, and the opposing party can question the witness about, the statement or (2) justice so requires.
But a prior inconsistent statement may not be used as substantive evidence—ie, to prove the truth of the matter asserted—unless the statement is excluded or excepted from the rule against hearsay.
Past Recollection Recorded
Hearsay Exception
The past recollection recorded (ie, recorded recollection) hearsay exception applies to records that (1) concern a matter a witness once knew but cannot recall at trial, (2) were made or adopted by the witness when the matter was fresh in his/her mind, and (3) accurately reflect the witness’s knowledge at that time. But here, the witness has not claimed that she has forgotten what happened at the meetings. And even if she had, she could only read the notes into evidence since only opposing parties could offer them as an exhibit.
Business Record Exception
Business records are excepted from the rule against hearsay if those records were:
made at or near the time of the recorded event (or act, condition, opinion, diagnosis)
made by or based on information from someone with personal knowledge of that event and
made and kept as a regular practice (eg, routine meeting minutes) in the course of regularly conducted activities of the business.
But an individual’s personal notes (even those made in a business setting) are not the organization’s regularly kept business records.
Character Evidence
Character evidence is evidence of a person’s general traits or propensities. Such evidence is generally inadmissible when used to prove that a person acted in conformity with a particular trait or propensity on the occasion at issue. That is because of the risk that a jury could punish a person for his/her bad character instead of what actually happened. Therefore, evidence of a person’s previous crimes or other acts can only be used for impeachment or noncharacter purposes.
Hearsay Exception - Present sense impression
The hearsay exception for present sense impression includes statements made by the declarant, in which she describes an event as it takes place or immediately thereafter.
Sometimes, a short passage of time is ok. matter of minutes. court will decide that.
Excited Utterance
The excited utterance hearsay exception covers statements relating to a startling event made while the declarant is still under the stress of the event.
MIMIC
In criminal cases, evidence of prior bad acts by a defendant can be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident. Such evidence is sometimes referred to as “MIMIC” evidence.
Expert Witness Testimony that is qualified
Expert witnesses may testify in the form of an opinion or otherwise if:
(1) The expert witness is qualified by possessing sufficient knowledge, skill, experience, training, or education;
2) 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;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; AND
(4) The expert has reliably applied the principles and methods to the facts of the
case.
Before an expert witness may testify, the proponent must demonstrate to the court that it is more likely than not that the subject matter of the witness’s testimony:
i) Is scientific, technical, or other specialized knowledge, which focuses on the reliability of the testimony; and
ii) Will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony.
Learned Treatise Hearsay exception
A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if:
i) An expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination; and
ii) The publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice.
If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit
Waiver of attorney-client privilege under Federal Law
Under the federal rules, a disclosure of a privileged communication will operate as a waiver unless:
the disclosure was inadvertent
the privilege holder had taken reasonable steps to prevent disclosure and
the privilege holder promptly took reasonable steps to rectify the error (not seen here)
When are leading questions on cross-examination NOT allowed??
Although the suggestive powers of leading questions are generally considered undesirable, leading questions are ordinarily allowed during cross-examination. However, the use of leading questions may be restricted when the cross-examination is cross-examination in form only, rather than in fact, such as when a party is cross-examined by his own lawyer after having been called as a witness by an opposing party.
Refresh Recollection v. Past Recorded Recollection
Rule 404
evidence of the defendant’s bad character (eg, past crimes, prior bad acts). can be introduced if:
it is being used for a noncharacter purpose—eg, to prove motive/opportunity, intent/knowledge, absence of mistake/accident, identity, or common plan/scheme (MIMIC) and
its probative value outweighs the danger of unfair prejudice—eg, records showing multiple convictions of unrelated or heinous offenses should be excluded because their usefulness does not outweigh the bias they would cause
Evidence of Criminal defendants Character
Business Record hearsay xception
Admissible if it’s:
(1) a record of events, conditions, opinions, diagnoses,
(2) was kept in the course of a regularly conducted activity of a business/organization,
(3) making the record was a regular practice of that activity;
(4) made at or near the time of the matter described, (5) made by a person with knowledge,
AND (6) the opponent party does not show a lack of trustworthiness.
curative admission
When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Known as a curative admission, such additional evidence can be admitted in the court’s discretion when necessary to remove unfair prejudice.
Contracts
