Evidence Flashcards
When can an evidentiary ruling be reversed even if the opposing party didn’t object?
Plain error - an error that effects the substantial right of the party. (effecting the verdict)
Conditional relevance rule
whether there is enough evidence to determine if the necessary fact existed.
When should a limiting instruction be given by the judge?
Evidence admissible for one party/purpose but inadmissible for another party or purpose.
Rule of completeness
When a party introduces part of a writing/recording, the adverse party may introduce any other part of the writing for context/fairness.
When is the rule of completeness not applicable?
When it includes inadmissible evidence such as hearsay.
What are three preliminary questions?
CAP
Competency
Admissibility
Privilege
What is the effect of judicial notice on the jury?
Civil - must accept as fact
Criminal jury - MAY accept it
Who has the burden of production
Civil - plaint.
Crim - prosecution
When is preponderance of the evidence used in criminal trials?
Motion to surpress
Validity of confession
What is the burden to prove insanity?
Clear and convincing evidenc
When can the court exclude relevant evidence?
When the probative value is substantially outweighed by:
1) prejudice
2) confussion of the issue
3) misleading the jury
4) delay/cumulative
what are the there forms of character evidence
Reputation
Opinion
Specific Acts
What types of civil cases
Defamation
Child Custody
Negligent entrustment
Negligent hiring
When the def. puts on character evidence what can the prosecution do?
Cross- specific acts
direct - reputation and opinion
How does the court treat habit evidence?
It is admissible substantively: both opinon and specific acts
How are SUBSEQUENT remedial measurers treated?
Inadmissible to prove:
Negligence, culpable conduct, failure to ward
Admissible: ownership/control, impeach, feasibility
Admissibility of offers/settlements negotiations?
Inadmissible: validity/amount, liability, impeachment
Admissible:
bias/prejudice, undue delay
note: need a dispute
Admissibility of medical bills/expenses?
Inadmissible but admissions are admissible.
note: don’t need a dispute
Admissibility of Plea negotiations
Inadmissible: any statement made to PROSECUTORS during plea negotiations
note: doesn’t apply to police
Do plea negotiation protections apply to admissions to police officers?
No - only prosecutors
Admissibility of Liability Insurance
Inadmissible: to prove negligence or fault
Admissible: ownership/control, bias/prejudice
Rape shield rule
In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show:
The victim’s sexual behavior, predisposition, or sexual history is excluded
Exception to the rape-shield rule
- to negate source of semen (past acts with other men)
- consent (past acts with THIS defendant)
What is required to bring in exceptions to rape shield?
1) notice;
2) the evidence is reviewed in camera by the judge; and
3) the evidence alleges sexual misconduct.
In a criminal/civil case in which the defendant is accused of child molestation or sexual assault (FRE 413, 414), specific acts by the defendant are?
Admissible (including to prove propensity)
Attorney client privilege
1) confidential
2) communication (not observations by atty)
3) seeking legal advice
How do federal courts treat patient/doctor relationships?
There is no doctor-patient privilege in federal court (there is psychiatric/patient privilege)
What is the major exception to marital privilege?
joint participation in a crime
When does spousal immunity apply?
Only in criminal cases
during and before marriage (divorce destroys)
by the party spouse
What are the different types of immunity?
Transactional - broad, cannot be prosecuted for the underlying offense
Use - statements by witness may not be used against him but prosecutors can prosecute with independent evidence
When does the 5th amendment apply?
only to testimonial evidence (on the stand)
doesn’t apply to physical or demonstrative evidence
Who may impeach a witness?
Any party
How do you impeach a witness using character of untruthfulness?
reputation and opinion evidence that they are not truthful.
Explain impeachment process for witnesses?
Direct - reputation and opinion about untruthfulness
Cross - specific acts about untruthfulness
Bolster - Reputation and opinion only if attacked
A lay witness may testify if they have what type of knowledge?
personal knowledge?
Who may impeach a witness?
Any party
Admission by conduct (hearsay exemption)
A reasonable person would have denied statement
Adoptive admission (hearsay admission
Evidence sufficient to show party heard and understood the statement and adopted it as her own
(example - friend has drugs)
When are employee statements admissible as exempt hearsay?
1) made during scope of employment;
2) in a matter related to scope of THEIR employment
Co-conspirator statements as exempt hearsay?
1) existence of conspiracy
2) member of conspiracy
3) made in furtherance of conspiracy
4) made during the existence of conspiracy
Prior statements
3 types:
1) prior ID
2) prior consistent
3) prior inconsistent
2 requirements:
a) testify at trial; and
b) available and subject to cross
Present sense impression exception
Declarant must make during or immediately after event. Verbal or in writing
Excited utterance
statements made during the stress or excitement of an event
State of mind/then existing mental, physical condition.
Must be present. be aware of past tense
Recorded recollection
1) witness once had knowledge
2) now has insufficient recollection
3) made when fresh
4) statement reflects knowledge (authentication)
Business records
1) made in regular course of business
2) foundation witness is familiar with record keeping process
3) trustworthiness (determined by judge)
examples - sales receipts hospital records, payroll
Absence of entry into a business record
1) witness familiar w/ records; 2) diligently searched; 3) found no record of event
What are the unavailability hearsay scenarios (when is the declarant unavailable)
PRISM
Privilege Refusal Incapacitated Subpoena Memory
Former testimony
Admissible
1) if made under oath;
2) same or related proceeding or deposition.
3) opportunity to cross about same subject matter
Note- doesn’t have to be same cause of action
Statements made under impending death (Dying declaration)
1) must be made under imminent death
2) needs to be a homicide case (ok in civil)
3) DON’T actually have to die
Statements made against interest
1) non party
2) against pecuniary, penal, or proprietary interest at time it was made.
What’s the difference between non-testimonial and testimonial statements?
Testimonial statements are made to further an investigation/build a case while non-testimonial statements are made to aide police during an ongoing emergency.
What is the foundation for demonstrative evidence.
- Must assist the trier of fact; and
- Fairly and accurate represent
- witness must be substantially familiar w/ items shown
What kind of documents are self authenticating?
CONTAC
1) certified documents
2) Official publication by a PUBLIC auth.
3) Newspapers/periodicals
4) Trade inscriptions
5) Acknowledged documents (notarized)
6) Commercial paper
