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MEE > Evidence > Flashcards

Evidence Flashcards

1
Q

Relevance

A

Small hurdle but check for each item of evidence. Evidence must be relevant for it to be admissible. Is it relevant if it tends to prove/disprove a material fact?

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2
Q

Relevance - Legal relevance

A

FRE 403 applies to balance probative value (PV) with risk of prejudice. A judge has broad discretion to exclude relevant evidence if its PV is substantially outweighed by the danger of unfair prejudice (UP) (e.g., gory imagery, use of drugs), confusion of the issues, waste of time (e.g., speculative answer), or misleading the jury.

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3
Q

Relevance - Exclusion for public policy

A

Relevant evidence may be excluded for public policy reasons below. It may still be admissible for other purposes, e.g., prove ownership/control, impeachment, admission, rebut non-feasibility, bias.

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4
Q

Exclusion for public policy - Subsequent remedial measure

A

Evidence of repair or precautions inadmissible to show culpability. Can use to show ownership or control or destruction of evidence, or to rebut claim that precautions were impossible.

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5
Q

Exclusion for public policy - Settlement offers or negotiation (FRE 408)

A

Inadmissible to prove liability for, or invalidity of, a claim or its amount. Actual dispute as to validity or amount is required. Must exclude all potential statements attached to offer.

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6
Q

Exclusion for public policy - Offers to pay medical expenses (FRE 409)

A

Inadmissible. Accompanying admissions may be admissible.

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7
Q

Exclusion for public policy - Withdrawn guilty pleas

A

Inadmissible as too prejudicial, minimal PV (but can waive inadmissibility).

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8
Q

Exclusion for public policy - Liability insurance

A

“I have insurance” or lack of. Can’t use to show culpability. Can use to show ownership or control, to impeach, or as part of admission.

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9
Q

Preliminary Facts

A
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10
Q

Preliminary Facts - Judge’s role

A

Judge is not limited by evidence rules when determining preliminary facts (e.g., competency) except privileges.

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11
Q

Preliminary Facts - Authentication

A

Real or written evidence requires proof to support a jury finding that it is what the proponent claims it is. Authentication generally requires witness’s first-hand knowledge or familiarity. Preponderance not needed.

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12
Q

Preliminary Facts - Self-authenticating docs

A

Certified public and business records, trade inscriptions, official publications.

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13
Q

Preliminary Facts - Best evidence rule

A

To prove the content of a writing or other tangible collection of data relevant to proving some material fact, the original must be introduced if available. Can still be hearsay.

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14
Q

Best evidence rule - Applies

A

When content is to be proven or testimony depends on the document (e.g., K, will, deed, X-ray).

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15
Q

Best evidence rule - Duplicates

A

Are admissible to the same extent, unless 1) genuineness is at issue (any party contests authenticity), or 2) would be unfair in the circumstances to admit the duplicate in lieu.

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16
Q

Best evidence rule - Photocopies

A

Are acceptable but not handwritten copies unless original or duplicate unavailable.

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17
Q

Best evidence rule - Original not required

A

If lost or destroyed (unless by opponent bad faith), opponent fails to produce, collateral matter, subpoena ineffective, independent source (personal knowledge), inscribed chattel.

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18
Q

Competency of Witnesses

A

W must 1) have personal knowledge of the matter and 2) affirm/swear to testify truthfully.

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19
Q

Competency of Witnesses - Judge/jurors

A

Are not considered competent to testify at trial.

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20
Q

Competency of Witnesses - Modern

A

W may testify if understands duty to speak truthfully and has capacity to testify accurately.

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21
Q

Conditional Relevancy

A

If relevance depends on a particular fact finding by the jury, the court will admit the evidence after the judge first makes a threshold (and final) determination that a reasonably jury could find the necessary fact. Both parties may present evidence. Judge may conduct this hearing in the presence of the jury.

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22
Q

Judicial Notice

A

A court’s recognition of fact (or law) as true w/o presentation of evidence. Court may take notice of generally known or readily determined facts, on its own or if a party requests it and supplies necessary information.

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23
Q

Judicial Notice - Conclusive

A

Judicially noticed facts are conclusive in civil cases. Jury may not accept in criminal cases.

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24
Q

Rule of Completeness

A

If a party introduces part of a writing or recorded statement (even if inadmissible hearsay), the other party may require introduction of any other part in fairness (as long as not barred by, e.g., double hearsay).

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25
Q

Character Evidence

A

Susceptible to probative value v. unfair prejudice balance.

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26
Q

Character Evidence - General

A

Character describes one’s disposition with respect to general traits (good driver, trustworthiness, etc.). Character evidence is generally inadmissible to prove conduct in conformity therewith. (Just because A did [specific bad things showing similar character] before does not mean he did [charged act] in this case.)

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27
Q

Character Evidence - Purpose

A

Ways to prove: reputation, opinion (can test basis by asking whether W knows of a particular conduct), specific acts.

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28
Q

Character Evidence - EXCEPTION

A
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29
Q

Character Evidence - EXCEPTION - A opens the door

A

A opens the door to say A is of good pertinent character (W’s testimony puts A character in issue).

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30
Q

Character Evidence - EXCEPTION - Specific Acts

A

Only then may P rebut W’s bad character of same trait or V’s good character (specific acts required). Only then may D rebut W’s bad character of same trait or V’s good character (sp acts only or rep/op).

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31
Q

Character Evidence - EXCEPTION - Other purposes

A

D’s MIMIC (FRE 404(b)) or prior act of sexual assault (FRE 413–415) → sp.

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32
Q

Character Evidence - EXCEPTION - Other purposes - MIMIC

A

Motive, Intent, Mistake (absence of), Identity, Common plan.

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33
Q

Character Evidence - EXCEPTION - Defense or cause of action

A

If character evidence at issue → rep/op/sp: Defamation (B said A is a thief), Negligent entrustment (loan car to someone, should have known not a good idea to lend it), Child custody (fitness as parent).

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34
Q

Character Evidence - EXCEPTION - Self-defense

A

Survivor’s reasonable belief that V was initial aggressor.

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35
Q

Character Evidence - EXCEPTION - Entrapment

A

A had no predisposition to commit the crime → D can use predispositional element for P to rebut entrapment defense.

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36
Q

Character Evidence - EXCEPTION - Habit Evidence

A

Freely admissible to prove conduct of frequent situation. For an organization, a habit is a routine practice of the org. Look for 2+ occurrences, “always,” “every day,” “repeatedly.”

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37
Q

Hearsay - Definition

A

Out-of-court (OOC) statement offered to prove the truth of the matter asserted. It is inadmissible upon proper objection unless an exemption/exception applies.

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38
Q

Hearsay - Out-of-Court Statement

A

Out-of-court (OOC) statement may be oral or written, includes assertive conduct, excludes depositions.

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39
Q

Hearsay - Multiple Hearsay

A

Multiple hearsay (double hearsay) (X said Y said Z): Admissible only if each level of hearsay is admissible.

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40
Q

Hearsay - Not Hearsay if

A

The statement is not hearsay where the OOC statement is introduced for other purposes, to show: legally operative facts of independent legal significance (e.g., K terms, defamatory words), effect on listener (notice, knowledge, motive), knowledge of speaker, or state of mind (insanity, belief).

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41
Q

Non-Hearsay Exemptions

A

“Prior” Statements

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42
Q

Non-Hearsay - Prior Inconsistent Statements

A

To admit a prior statement inconsistent with declarant’s in-court testimony, declarant must be available, and the prior statement must have been given under oath.

43
Q

Non-Hearsay - Prior Consistent Statements

A

Offered to rebut a charge that witness has motive to lie/exaggerate. Declarant must testify at trial and be subject to cross-examination - statement made before the alleged motive to lie or exaggerate arose.

44
Q

Non-Hearsay - Prior Statements Identifying a Person

A

Identifying a person after perceiving him - must be available to testify at trial.

45
Q

Non-Hearsay - Admissions by Party

A

Statements by opponent (cannot bring own) acknowledging a fact relevant to the case. Statement need not be against declarant’s interest when made, may be opinion or based on hearsay (no personal knowledge needed). Compare statements against interest.

46
Q

Non-Hearsay - Adoptive Admissions

A

Conduct, or silence where the party understood the accusatory statement and capable of denying and reasonable person would have, if untrue, denied under the same circumstances (e.g., not in police presence—suspect in custody has no duty to speak).

47
Q

Non-Hearsay - Vicarious Admissions

A

Co-parties: Party admissions are NOT admissible against co-party. Authorized: Statement of a person expressly/impliedly authorized by party to speak on its behalf is admissible against the party. Agents: Statement by an agent (e.g., employee) within scope of agency, made during existence of relationship, is admissible against principal. Co-conspirators: Statement of any conspirator is admissible against all members of the conspiracy if it was in furtherance of the conspiracy (look for confrontation clause issue).

48
Q

Hearsay Exceptions

A

(Hearsay but Admissible)

49
Q

Hearsay Exceptions - Declarant Unavailable

A

If declarant unavailable (via PRISM: privilege, refusal, incapacity, someplace else, memory lacking).

50
Q

Hearsay Exceptions - (DU) Statements Against Interest

A

Statements against interest (pecuniary, penal, proprietary) when made. The declarant must have had personal knowledge of the facts and awareness that it was against his interest.

51
Q

Hearsay Exceptions - (DU) Former Testimony

A

Testimony that is now offered against a former party in prior action, or a predecessor in interest (civil cases), who had an opportunity to cross-examine with a prior/preliminary hearing (including deposition but not grand jury) + similar motive to develop witness’s testimony.

52
Q

Hearsay Exceptions - (DU) Dying Declarations

A

(Homicide or civil actions only) Declarant must have believed death was imminent (actual death not needed) + statement concerns cause or circumstances of what he believed to be his imminent death.

53
Q

Hearsay Exceptions - (DU) Pedigree/Family

A

Statements concerning personal or family relationship closely associated with witness.

54
Q

Hearsay Exceptions - (DU) Forfeiture by Wrongdoing

A

Statements offered against a party who deliberately caused a declarant’s unavailability (e.g., a might arrange for a key witness to be murdered).

55
Q

Hearsay Exceptions - Excited Utterance

A

Statement made without reflection which relates to startling event while under excitement of startling event.

56
Q

Hearsay Exceptions - Present Sense Impression

A

Statement of what was perceived at time of event or immediately after.

57
Q

Hearsay Exceptions - Then-existing State of Mind

A

Forward-looking intent, emotion, sensation, physical condition. When state of mind is directly at issue or to infer subsequent acts carrying out intent. Statements of memory or belief inadmissible to prove its truth (except declarant’s will).

58
Q

Hearsay Exceptions - Declarations of Physical Condition

A

Portion of statement imputing fault not admissible if unrelated. Present bodily condition made spontaneously admissible even if not made to a physician. Past bodily condition admissible only if made to medical personnel for diagnosis, treatment, or testimony.

59
Q

Hearsay Exceptions - Business Records

A

Records of acts, conditions, events, transactions, opinions, or diagnoses made at or near the time of event with personal knowledge of matters during regular course of business. Entrant must have had a business duty to make the entry (e.g., not crime witnesses). Requires authentication of record via custodian testimony or written certification. Excludes reports prepared for litigation, or by outsider (unless via a different exception). Absence of entry in records: Negative purposes allowed to prove nonoccurrence of matter if it was regular practice to record all such matters, if witness is familiar - diligent search. Discretion to exclude if source of information or circumstances indicate lack of trustworthiness (those prepared in anticipation of litigation).

60
Q

Hearsay Exceptions - Present Recollection Refreshed

A

Witness can refer to any item or evidence to refresh memory (no hearsay problem because the item itself is not necessarily offered into evidence).

61
Q

Hearsay Exceptions - Past Recollection Recorded

A

A record that is on a matter 1) testifying witness once had knowledge of but now cannot recall well enough (refreshing attempted and fails), 2) was made or adopted by witness when the matter was fresh in memory, and 3) accurately reflects witness’s knowledge.

62
Q

Hearsay Exceptions - Public Records

A

A record of public office made within scope of duty of public employee, admissible if it sets out 1) activities of office, 2) matter observed pursuant to duty (NOT if police observations in criminal case) or 3) factual findings from investigation (in civil case or against government in criminal case).

63
Q

Hearsay Exceptions - Police Records

A

A police record not qualifying as a business record may be admitted under this exception.

64
Q

Hearsay Exceptions - Absence of Public Records

A

Custodian may testify that diligent search failed to find a record to show that the matter was not recorded or did not occur.

65
Q

Hearsay Exceptions - Prior Judgments

A

Prior felony judgment admissible to prove a fact essential to judgment.

66
Q

Hearsay Exceptions - Ancient Documents

A

Statements in 20-year-old+ document are admissible and self-authenticating.

67
Q

Hearsay Exceptions - Family Records

A

Statements of fact concerning personal or family history found in family keepsakes.

68
Q

Hearsay Exceptions - Learned Treatises

A

Statements from authorities established as reliable by expert testimony or judicial notice.

69
Q

Hearsay Exceptions - Catch-all

A

Trustworthy + necessary in interests of justice (probative, material) + notice to adversary.

70
Q

TESTIMONIAL EVIDENCE & IMPEACHMENT

A

(Used for attacking credibility or truthfulness)

71
Q

Testimonial Evidence - Lay Witness Testimony

A

Opinion testimony or inferences by lay witness admissible only if 1) rationally based on witness’s perception (personal knowledge, 5 senses), 2) helpful to clear understanding of witness’s testimony or to determining a fact in issue, 3) not based on scientific, technical, or other specialized knowledge (unless grossly apparent).

72
Q

Testimonial Evidence - Expert Witness Testimony

A

Opinion or conclusion is admissible only if: 1) Specialized knowledge helpful to jury, 2) qualified as expert, 3) reasonable certainty of opinion, 4) based on proper facts or data, 5) based on reliable principles and methods. Reliability factors: 1) Generally accepted in relevant field, 2) peer reviewed, 3) published, 4) low error rate, 5) generally accepted in relevant field.

73
Q

Testimonial Evidence - Expert Witness as Ultimate Issue

A

Expert witness may testify as to an ultimate issue. May not state an opinion as to criminal defendant’s mental state that is an element of crime or defense, or conclusion legal or not.

74
Q

Impeachment

A

Refers to the casting of an adverse reflection of the truthfulness of a witness to discredit him.

75
Q

Impeachment - Prior Inconsistent Statements (PIS) (from Wit. prior testimony)

A

Cross-examination (including collateral/non-material matters, e.g., different sock colors, reason for why witness was out).

76
Q

Impeachment - Prior Inconsistent Statements (PIS)

A

May be hearsay. Non-collateral only. Relate circumstances to recall why gave it (pre admission right to explain/deny + give other side opportunity to interrogate). Never admissible (must take witness’s answer).

77
Q

Impeachment - Prior Bad Acts (Specific)

A

Truthfulness (act of lying or deceit) - cross-examiner must inquire in good faith. Cross-examination (court has discretion to allow).

78
Q

Impeachment - Poor Reputation or Opinion for Truthfulness

A

Call a witness. Anything (usually testimony).

79
Q

Impeachment - Prior Convictions

A

Evidence of criminal defendant’s conviction, up to 10 years old unless its probative value substantially outweighs prejudicial effect (FRE 609).

80
Q

Impeachment - Felonies

A

Evidence of a previous judgment of felony conviction is also a hearsay exception to prove any fact essential to the judgment (FRE 803(22)(C)). See prior judgments.

81
Q

Impeachment - Any Crime Involving Dishonesty

A

Evidence of any crime involving dishonesty or false statement is admissible.

82
Q

Impeachment - Anything within Judge’s Discretion

A

Anything (involving, e.g., friend, parent, revenge, lack of perception, memory, knowledge).

83
Q

Rehabilitation

A

Show of witness’s truthfulness. Impeached witness may be rehabilitated on redirect or by extrinsic evidence: Witness may explain original response; another witness may testify to reputation or opinion for truthfulness; party may show prior consistent statement (only to defeat charge of fabrication) made before time of alleged motive to lie or exaggerate.

84
Q

Impeachment Need Not Positively Controvert Prior Testimony

A

Witness 2 can say he doesn’t recall what witness 1 said.

85
Q

Impeachment by Any Party

A

A witness may be impeached by any party, including his own.

86
Q

Examination of Witnesses

A

The judge (the court) may reasonably control the examination of witnesses and presentation of evidence to effectively ascertain the truth, avoid waste of time, and prevent harassment of witnesses.

87
Q

Leading Questions

A

Suggesting the answer, e.g., “Isn’t that correct?” are not allowed on direct examination except for: 1) hostile (antagonistic, unwilling) witnesses, 2) opposing witnesses, 3) child witnesses, 4) solicit background information (“You’re licensed, right?”), or 5) refresh recollection.

88
Q

Leading Questions on Cross-examination

A

Allowed on cross-exam, BUT cross-exams are limited to 1) matters brought out on direct exam and inferences naturally drawn therefrom and 2) matters affecting the credibility of the witness. Showing a document to refresh recollection is not “leading”. Adverse witness generally cannot be asked a leading question by his own attorney on cross-exam.

89
Q

Other Bases for Objection to Form of Question

A

Nonresponsive (answer to different question or no answer, may be stricken by motion to strike), Q/A requiring speculation, compound question (more than 1 at a time), loaded question (assumes facts—answer requires unintended admission: “Have you stopped beating your wife?”), argumentative (prompts witness to draw legal conclusion), calling for a narrative (asks for story, not facts).

90
Q

Judge’s Role

A

The judge may call witness upon his own initiative and interrogate any witness who testifies, as long as no partisanship.

91
Q

PRIVILEGES

A

(Not provided by FRE but governed by common law)

92
Q

Attorney-Client Privilege

A

Communication between client and attorney (or representative assisting with legal services, e.g., physician examining client) intended by client to be confidential and made with purpose to seek legal advice is privileged (may refuse to disclose) indefinitely, even after death, unless waived by client. Attorney may invoke privilege on client’s behalf. Voluntary disclosure waives privilege to disclosed material.

93
Q

Attorney-Client Privilege - Exceptions

A

Communication furthers what client should have known was a crime or fraud, between former joint clients, dispute between attorney and client.

94
Q

Spousal Testimonial Privilege

A

Privilege not to testify against spouse in criminal cases. Held by witness. Must be married at time of testimony. Covers observations and communications.

95
Q

Marital Communications Privilege

A

Privilege not to disclose private communication between spouses (civil/criminal). Held by both. Covers confidential spousal communication from during marriage. Waived by known eavesdropper.

96
Q

Marital Privileges - Exceptions

A

Suits against each other, crime against a spouse or either spouse’s child, joint furtherance of future crime or fraud (spouses are co-conspirators).

97
Q

Physician/Psychotherapist-Patient Privilege

A

Confidential medical communication between professional and patient made with purpose of diagnosis or treatment. Patient holds privilege (doctor may claim privilege on patient’s behalf if patient cannot).

98
Q

Physician/Psychotherapist-Patient Privilege - Exceptions

A

Patient puts his condition at issue (e.g., personal injury suit), important to prevent injury to person, sought to aid planning of crime/tort.

99
Q

6TH AMENDMENT CONFRONTATION CLAUSE

A

(Overrides hearsay exceptions, check co-conspirator admissions)

100
Q

Confrontation Clause - Testimonial Statements

A

Any prior out-of-court testimonial statements by an unavailable declarant are inadmissible against CRIMINAL defendant, unless defendant has had prior opportunity to cross-examine declarant at the time of statement, absent forfeiture caused by defendant’s wrongful act intended to keep the witness from testifying.

101
Q

Confrontation Clause - Testimonial Statement

A

Solicited by the state for the primary purpose of statement during police interrogation was to prove past events potentially relevant to later criminal prosecution.

102
Q

Confrontation Clause - Non-testimonial Statement

A

Primary purpose of statement during police interrogation was to aid police during ongoing emergency.

103
Q

Confrontation Clause - Emergency Abatement

A

However, the emergency can abate during the call, turning the statement testimonial.

MEE (10 decks)

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