Evidence Flashcards
What must a party do to notify the court of an erroneous ruling?
(1) Object
(2) Offer of proof
When does a party not need to renew an objection?
When the judge makes a definitive ruling. Exception for plain error (obvious + substantial right effected + grounds are reversible).
What is “plain error”?
(1) Error is obvious
(2) A substantial right is affected
(3) the grounds are reversible
What is the rule of completeness? (FRE 106)
Allows a complete statement or otherwise inadmissible portion of a statement to be admitted. Opposing counsel can wait until cross-examination to bring in omitted portion.
What is “judicial notice”?
Court will accept a fact as true without requiring formal proof. Federal rules only address judicial notice of “adjudicative facts,” those that relate to the parties and their activities.
When can judicial notice be used? And when is the court required/barred from using it?
Used when taken a source that cannot reasonably be questioned because…
(1) a fact can be accurately and readily determined OR
(2) fact is generally known within the jurisdiction
Court MUST take judicial notice if (1) requested and (2) necessary information is given to the court. Court CANNOT take judicial notice against criminal defendant for the first time on appeal.
What is the effect of judicial notice?
Civil jury = must accept fact as true.
Criminal jury = may or may not accept fact as true.
What is the scope of normal cross-examination?
Limited to the scope of the direct AND questions about credibility.
When is credibility at issue?
Credibility is ALWAYS at issue.
What objections can counsel raise to the “form” of the question?
(1) Leading questions (on a direct examination)
(2) Compound question
(3) Assumes facts not in evidence
(4) Argumentative question
(5) Cumulative/Repetitive question
(6) Question calling for speculation
What individuals cannot be excluded from the courtroom?
(1) A party
(2) an officer or employee who is a designative representative of a corporation
(3) advisory witnesses
(4) victims
What two burdens comprise the burden of proof?
(1) Burden of production = must make a prima facie case
(2) Burden of persuasion = must present legally sufficient evidence
What effect may the destruction of evidence have on a party? What must be shown to trigger this effect?
Raises a rebuttable presumption that the evidence would have been unfavorable to the destroying party.
Must show:
(1) destroyed intentionally
(2) evidence was relevant to the issue at hand
(3) victim acted with due diligence to prevent/recover evidence
What does it mean for evidence to be “relevant”?
(1) probative = tendency to make a fact more or less likely than it would be without the evidence
(2) material = fact of consequence in determining the action
What is the test for excluding relevant evidence under FRE 403?
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
(1) unfair prejudice
(2) confusing the issues
(3) misleading the jury
(4) undue delay, waste of time, OR
(5) presenting cumulative evidence
What is a “curative admission”?
Judge may admit additional evidence to rebut improperly admitted evidence.
In general, is character evidence admissible to show propensity? (different criminal and civil standards)
CIVIL CASE: Inadmissible to show propensity (conforming conduct), EXCEPT when:
(1) case involves sexual assault and molestation by a ∆, OR
(2) character is an essential element (defamation, negligent hiring, negligent entrustment, child custody, etc.)
CRIMINAL CASE: Inadmissible to show propensity, EXCEPT if
(1) ∆ presents good character evidence inconsistent with the charged crime. Note: “Opens the door” for π.
(2) ∆ presents evidence of a victim’s character that is relevant to one of ∆’s defenses. Note: “Opens the door” for π to present good character evidence for victim
What form must character evidence take when a criminal ∆ introduces character evidence (about himself OR a victim)?
(1) Reputation testimony OR
(2) opinion testimony
What form must character evidence take when the prosecution introduces character after the ∆ has “opened the door”? See FRE 405(a)
(1) reputation
(2) opinion
(3) prior specific acts (only on cross-examination)
For what purposes (other than propensity) can character evidence be used?
"MIMIC" (1) Motive (2) Intent (3) absence of Mistake (4) Identity (5) Common plan Or any other purpose that is not propensity (lack of accident, preparation, opportunity, etc.)
Prosecution must give prior notice before introducing character evidence in a criminal trial.
Can character evidence be used to impeach a witness?
Yes. Character evidence regarding witness’s untruthfulness is always relevant.
When is habit evidence admissible? How do you tell it apart from character evidence?
Admissible to prove conduct in conformity therewith.
Habit = “always,” or “every time”
Character evidence = “often” or “frequently”
Can a witness be barred from testifying based on mental incompetence?
No. Mental competence goes to weight, not admissibility.
What two requirements must a lay witness meet to testify?
See FRE 602 and 603
(1) Personal knowledge
(2) Witness must take an oath
May a judge testify in a trial over which she presides?
See FRE 605
No. No objection is required.
When may a juror testify?
See FRE 606
May not testify in front of co-jurors. After trial, NOT about…
(1) statements made during deliberation
(2) effect of anything on a particular juror’s vote
(3) the juror’s mental processes
MAY testify about:
(1) extraneous prejudicial information
(2) outside improper influence
(3) mistake in entering verdict on the form
May children testify at trial?
Yes. No bright-line rule. Factors:
(1) intelligence
(2) ability to distinguish truth from falsehood
(3) understanding the importance of telling the truth
Who may impeach a witness? See FRE 607
Any party, including party that called the witness.
Can you attack a witness’s character for truthfulness? See FRE 608(a).
Yes by reputation or opinion testimony.
Note: Other party can bolster credibility of witness after it has been attached. But only if attach is on character for truthfulness. Mere impeachment (e.g., showing bias) does not open door for bolstering.
When can a party inquiry into specific instances of conduct regarding a witness’s character for truthfulness?
Only on cross examination, and only if conduct is probative of the truthfulness of the witness or a person the witness testified about.
Judge may bar such questioning under FRE 403 or 611 (harassing a witness).
May a witness be cross-examined about previous arrests?
Not generally. Arrests are not wrongdoing (contrast with convictions). But may ask about underlying conduct that lead to an arrest.
Is extrinsic evidence admissible to prove specific instances of conduct regarding a witness’s character for truthfulness?
No. If a witness denies a specific instance of conduct, no extrinsic evidence can be admitted to prove it.
BUT extrinsic evidence is available for other grounds of impeachment, like bias.
Can criminal convictions involving dishonesty or false statement be admitted to impeach a witness’s character for truthfulness? FRE 609
Yes, must come in if the prior conviction was…
(1) within the last 10 years for AND
(2) a crime of dishonesty or false statement (fraud, perjury, embezzlement, false pretenses, etc.)
Can criminal convictions generally be admitted to impeach a witness’s character for truthfulness? FRE 609
Yes, any prior conviction if…
(1) within the last 10 years for AND
(2) a felony (crime punishable imprisonment of more than one year or by death) AND
(3a) If witness is a criminal ∆ = probative value outweighs prejudicial effect to the ∆.
(3b) If normal witness = must be admitted UNLESS probative value is substantially outweighed by prejudicial effect.
When can a juvenile adjudication be admissible to impeach a witness/defendant? FRE 609(d)
Inadmissible to impeach a ∆.
Admissible against non-∆witness only if:
(1) offered in a criminal case
(2) an adult’s conviction for that offense would be admissible to attack the adult’s credibility, AND
(3) evidence is necessary to fairly determine guilt or innocence.
What impact does a pending appeal have on the admissibility of a prior conviction? FRE 609(e)
None. But evidence of the pending appeal is also admissible.
May a witness generally be impeached with prior inconsistent statements?
Yes. These prior statements need not be sworn.
Must a prior inconsistent statement be shown to a witness when impeaching that witness? FRE 613
No. But it must be shown to opposing counsel if requested.
May extrinsic evidence be introduced of a witness’s prior inconsistent statement?
Yes, but only if the witness is given an opportunity to explain or deny the prior inconsistent statement. Exception tot his for (1) impeaching a hearsay declarant and (2) party opponents. FRE 801(b)(2).
When is bias relevant?
Bias is always relevant to impeach a witness. MBE normally tests bias when (1) witness is employed by a party or (2) witness has cut a deal with the π
When and how may a witness be rehabilitated? FRE 801(d)(1)(B)
After the witness has been impeached. With (1) reputation or opinion testimony OR (2) a prior consistent statement to rebut charges of recent fabrication.
When may a witness’s religious beliefs be discussed?
Cannot be used to attack or support witness’s credibility. But can be used to show bias or interest.
What is “present recollection refreshed”?
A witness can examine any item to refresh her memory, but the witness may not use the object while testifying. The item is not introduced into evidence, but opposing party can introduce it on cross-exam.
What is “past recollection recorded”?
Witness can read a record to the jury if the memorandum regards a matter about which the witness once had knowledge but now has insufficient recollection of to testify. Memorandum is not admitted as an exhibit by proponent, but opposing counsel can admit it.
When can expert witnesses be used? FRE 702
When scientific, technical, or specialized testimony (reliable) will aid the trier of fact (relevant).
What factors must an expert meet to be qualified to testify? FRE 702
(1) Witness is qualified
(2) Testimony is based on sufficient facts or data
(3) Testimony is product or reliable principles and methods
(4) Expert applied those principles and methods
May an expert opine on the ultimate issue? FRE 704
Yes. Expert may give opinion on an ultimate issue. But expert may NOT opine on whether a criminal defendant had the requisite mental state.
What are the three ways to authenticate evidence? FRE 901
(1) personal knowledge / witness’s familiarity with object
(2) distinctive characteristics of object
(3) chain of custody
