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Bar Refresher > Evidence > Flashcards

Evidence Flashcards

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1
Q

LOGICAL RELEVANCY
2 rules

[ what types of evidence are admissible ]

A
  1. All irrelevant evidence is inadmissible

2. All relevant evidence is admissible, absent an “exclusionary rule”
ex = R.403-412, hearsay rules, privilege, etc.

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2
Q

LOGICAL RELEVANCY
construction of relevancy rules

[ what types of evidence are admissible ]

A

Construed LIBERALLY in favor of admitted evidence

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3
Q

LOGICAL RELEVANCY
definition of relevant

[ what types of evidence are admissible ]

A

= evidence that has any tendency to prove or disprove a material fact

AKA 2 components = probative value + material facts

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4
Q

LOGICAL RELEVANCY
definition of probative value

[ what types of evidence are admissible ]

A

= evidence that has any tendency to prove or disprove material fact

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5
Q

LOGICAL RELEVANCY
definition of material fact

[ what types of evidence are admissible ]

A

= fact of consequence to a claim or defense (as determined by substantive law)

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6
Q

LEGAL RELEVANCY
basic principle + 6 FRE

[ what types of evidence are admissible ]

A

Certain evidence, despite being logically relevant, is inadmissible for reasons such as public policy or unfair prejudice.

  1. FRE 403
  2. FRE 404-406
  3. FRE 407
  4. FRE 408 and 410
  5. FRE 409 and 411
  6. FRE 412-415
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7
Q

LEGAL RELEVANCY
FRE 403
» rule

[ what types of evidence are admissible ]

A

Otherwise relevant evidence is inadmissible if its probative value is SUBSTANTIALLY OUTWEIGHED by
- UNFAIR PREJUDICE,
- TIME concerns, or
- the potential that it is MISLEADING or might CONFUSE the jury
(but NOT unfair surprise)

This is a fact-sensitive determination made by the judge

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8
Q

LEGAL RELEVANCY
FRE 403
» definition of unfairly prejudicial

[ what types of evidence are admissible ]

A

evidence that invites the jury to make a decision on an IMPROPER ground

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9
Q

LEGAL RELEVANCY
FRE 404 to 406
» D’s use of D’s character in case-in-chief in criminal case

[ what types of evidence are admissible ]

A

relevant traits of accused (aka peacefulness in a murder case, honesty in a perjury or larceny case) are admissible to prove that accused is innocent
but OPINION and REP evidence only

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10
Q

LEGAL RELEVANCY
FRE 404 to 406
» prosecutor’s response to D’s use of D’s character in criminal case

[ what types of evidence are admissible ]

A

prosecutor may inquire about relevant specific acts of accused (including arrests) on cross-examination to discredit W’s testimony (i.e., are you aware or did you hear that accused was in a bar fight last week?)
BUT prosecutor must have good faith basis to ask question + no extrinsic evidence is allowed

on rebuttal, prosecutor may introduce bad opinion and reputation evidence of accused
(ex = “In my opinion, accused is violent”)

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11
Q

LEGAL RELEVANCY
FRE 404 to 406
» D’s use of victim’s character in case-in-chief in criminal case

[ what types of evidence are admissible ]

A

relevant traits of the victim (i.e., violence in a murder, battery, or assault case where accused claims self-defense) are admissible to prove that defendant is innocent; opinion and reputation only

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12
Q

LEGAL RELEVANCY
FRE 404 to 406
» prosecutor’s response to D’s use of victim’s character in criminal case

[ what types of evidence are admissible ]

A

on rebuttal, prosecutor may introduce good opinion and reputation evidence of victim (“In my opinion, victim is peaceful”) and

on rebuttal, prosecutor may introduce bad opinion and reputation evidence of accused (“Accused has a reputation for violence in community”—home, work, school, church) on same trait

if accused claims the victim was the first aggressor in a homicide case, prosecutor may introduce opinion and reputation evidence as to victim’s peacefulness on rebuttal EVEN IF ACCUSED OFFERS NO CHARACTER EVIDENCE

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13
Q

LEGAL RELEVANCY
FRE 404 to 406
» use of character evidence in prosecutor’s case-in-chief
(rule + examples)

[ what types of evidence are admissible ]

A

Rule = Although character evidence offered by the prosecution in its case-in-chief is not admissible to show the accused acted in conformity with his character or to imply that the accused has a bad character, it is admissible if it is independently relevant.
Thus, evidence of a specific crime or other bad act (even if no conviction) of the accused is admissible to prove motive, intent, absence of mistake or accident, identity crime, opportunity, or general scheme or plan.
– On request of the defendant, the prosecutor must give reasonable (and detailed) notice of her plans to use such evidence.
– Such “specific bad act” evidence is not admissible if the risk of unfair prejudice substantially outweighs its probative value.

Examples =

(a) evidence that D stole the getaway car the day before the bank robbery to prove general scheme
(b) evidence that D was arrested for a DUI in Chicago on July 1 to prove that he had the opportunity to commit murder in Chicago on July 1
(c) evidence that D was having an adulterous affair to prove motive for killing wife
(d) evidence that D stabbed A five years ago to prove that D’s recent shooting of A was not accidental

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14
Q

LEGAL RELEVANCY
FRE 407
» rule

[ what types of evidence are admissible ]

A

= Evidence that the defendant made repairs or changed policies, practices, designs, or personnel after an accident is not admissible to prove that the defendant is culpable, that a product was dangerous, or that a warning or instruction was needed.

Such evidence is admissible for other purposes, however, including to prove ownership or control of property (if disputed), to prove that a safer product was feasible (if controverted), or to prove spoliation.

Evidence of subsequent repairs is also admissible if it was performed by someone other than the defendant.

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15
Q

LEGAL RELEVANCY
FRE 407
» similar happenings evidence

[ what types of evidence are admissible ]

A

= Evidence that the plaintiff has been involved in prior accidents or claims is generally inadmissible, except to prove fraudulent claims or aggravation of prior injuries.

By contrast, evidence of prior accidents or claims (if substantially similar to plaintiff’s accident or claim) is generally admissible against the defendant to prove:

(i) the defendant had notice of an unsafe or illegal condition, event, or product;
(ii) the condition, event, or product was unsafe or illegal;
(iii) a safer design was feasible (if controverted by defendant); or
(iv) causation in a complex case (e.g., food poisoning).

Evidence of an absence of prior accidents (to prove the defendant’s property or product was safe) is rarely admissible

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16
Q

LEGAL RELEVANCY
FRE 408 +410
» 4 types of inadmissible evidence to prove liability, guilt, or the amount of a civil claim

[ what types of evidence are admissible ]

A
  1. OFFERS to compromise or ACCEPTANCES of such offers in CIVIL cases
    (including conduct and statements made during settlement negotiations)
    BUT for this rule to apply, there must be a DISPUTE as to FAULT or the AMOUNT of the claim @ time of the offer
  2. COMPROMISES
    (aka settlements)
  3. WITHDRAWN GUILTY PLEAS
    (including statements made to prosecuting attorneys during plea bargaining process)
  4. NO CONTEST PLEAS
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17
Q

LEGAL RELEVANCY
FRE 408 +410
» admissibility of settlement offers/acceptances + settlements + withrawn guilty pleas + no contest pleas

[ what types of evidence are admissible ]

A

INADMISSIBLE to prove liability, guilt, or the amount of a civil claim

ADMISSIBLE for other purposes
(like to prove bias or to negate a contention of undue delay by an insurer)

INADMISSIBLE for impeachment purposes

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18
Q

LEGAL RELEVANCY
FRE 408 +410
» unwithdrawn guilty pleas

[ what types of evidence are admissible ]

A

ADMISSIBLE

subject to the hearsay and impeachment rules

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19
Q

LEGAL RELEVANCY
FRE 409 +411
» 2 rules

[ what types of evidence are admissible ]

A
  1. Evidence of offers to pay another’s medical expenses or the actual payment thereof (but not statements of fault made in connection therewith—compare FRE 408) is INADMISSIBLE
2. Evidence that a person has or does not have liability insurance is INADMISSIBLE to prove fault or ability to pay a judgment
BUT is ADMISSIBLE to prove 
- ownership or 
- bias of W or 
- motive
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20
Q

LEGAL RELEVANCY
FRE 412 TO 415
» 2 rules

[ what types of evidence are admissible ]

A
  1. In sexual assault cases, opinion and reputation evidence of the victim’s character is INADMISSIBLE

2 narrow exceptions = specific instances
- of such character are admissible to prove origin of semen, pregnancy, or physical injuries is someone other than D
- of sex between D and victim also are admissible to prove consent
(very narrow + require pretrial notice before use of evidence)

  1. In both civil and criminal cases based on sexual assault, evidence that the accused (or D in civil case) has sexually assaulted others (even if not arrested or convicted) is admissible to prove that the accused is guilty
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21
Q

PRIVILEGES
basic principle

[ what types of evidence are admissible ]

A

Relevant evidence is inadmissible at trial and undiscoverable before trial if it is protected by an evidentiary privilege.

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22
Q

PRIVILEGES
construction of privilege rules

[ what types of evidence are admissible ]

A

The privilege rules are construed NARROWLY because they exclude otherwise relevant evidence

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23
Q

PRIVILEGES
federal privileges

[ what types of evidence are admissible ]

A

For fed Qs cases, federal cts use federal COMMON LAW privileges

4 common law privileges =

  1. attorney-client privilege
  2. psychotherapist-patient privilege
  3. clergy-communicant privilege
  4. spousal privileges
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24
Q

FEDERAL PRIVILEGES
attorney-client privilege
» rule

[ what types of evidence are admissible ]

A

confidential communications
btwn attny (and her reps) and client (and his reps)
for the purpose of seeking legal advice
= protected from disclosure during discovery and at trial

privilege does not apply if non-essential 3Ps are involved in or overhear the communications.
BUT an eavesdropper will not destroy the privilege if the attorney and client took reasonable steps to preserve confidentiality

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25
Q

FEDERAL PRIVILEGES
attorney-client privilege
» application for corporate employees

[ what types of evidence are admissible ]

A

general rule = privilege applies to communications by corporate EEs
(regardless of their position)
when
- the communications concern matters w/in scope of employee’s corp duties
AND
- employee is aware that info is being furnished to enable attorney to provide legal advice to the corp

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26
Q

FEDERAL PRIVILEGES
attorney-client privilege
» waiver

[ what types of evidence are admissible ]

A

privilege belongs to CLIENT

client may waive it by disclosing a significant part of the confidential communication to an unprivileged 3P

BUT inadvertent disclosure does not constitute a waiver if the disclosing party

  • had taken reasonable steps to prevent the disclosure AND
  • after discovering the disclosure, took reasonable steps to rectify the error
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27
Q

FEDERAL PRIVILEGES
attorney-client privilege
» scope of protection

[ what types of evidence are admissible ]

A

privilege may not be used to shield preexisting documents or the facts themselves

privilege survives the client and the representation

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28
Q

FEDERAL PRIVILEGES
attorney-client privilege
» exceptions

[ what types of evidence are admissible ]

A

several exceptions to the privilege, including:

  1. client sought the communication to commit an ongoing or future crime or fraud (regardless of the lawyer’s knowledge)
  2. communications with joint clients (but such communications are still privileged as to outsiders)
  3. suits between the attorney and client, and suits, disciplinary actions, or crimes arising out of the representation
  4. communications were with now-deceased client about disposal of client’s estate
  5. client has placed the communication in issue

ALSO privilege doesn’t does not cover
- information incident to the representation AND
- observations made by lawyer if these same observations could have been made by 3P
(ex = lawyer notices scratch marks on client’s face)

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29
Q

FEDERAL PRIVILEGES
attorney-client privilege
» information incident to the the representation

[ what types of evidence are admissible ]

A

privilege doesn’t does not cover information INCIDENT TO THE REPRESENTATION, such as:

  1. fact that an attorney-client relationship exists
  2. client’s fee arrangement
  3. amount paid to lawyer by client
  4. client’s identity (except in rare cases)
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30
Q

FEDERAL PRIVILEGES
psychotherapist-patient privilege
» rule

[ what types of evidence are admissible ]

A

confidential communication btwn patient
and licensed psychiatrist, psychologist, or social worker
for purposes of treatment
= protected from disclosure during discovery and at trial

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31
Q

FEDERAL PRIVILEGES
psychotherapist-patient privilege
» waiver

[ what types of evidence are admissible ]

A

patient = holder of the privilege

patient may waive it voluntarily or accidentally

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32
Q

FEDERAL PRIVILEGES
psychotherapist-patient privilege
» exceptions

[ what types of evidence are admissible ]

A

there’s several exceptions,

including:
1. patient places her mental condition in issue
2. court-ordered exams
3. civil commitment hearings

ALSO tarasoff warning

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33
Q

FEDERAL PRIVILEGES
psychotherapist-patient privilege
» tarasoff warning

[ what types of evidence are admissible ]

A

in many states, if a patient makes specific threats regarding an identifiable 3P, psychotherapist must notify 3P of threats
= failure to do so will result in civil liability

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34
Q

FEDERAL PRIVILEGES
clergy-communicant privilege
» rule

[ what types of evidence are admissible ]

A 
a person may 
- refuse to disclose
AND prevent others from disclosing
- communication 
- to a member of the clergy 
- for purposes of spiritual advice

privilege applies to the clergy of any religion and prevents disclosure during discovery and at trial

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35
Q

FEDERAL PRIVILEGES
spousal privileges
» 2 privileges

[ what types of evidence are admissible ]

A
  1. Spousal immunity

2. Confidential marital communications privilege

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36
Q

FEDERAL PRIVILEGES
spousal privileges
» spousal immunity

[ what types of evidence are admissible ]

A

a person may not be compelled by the prosecution to testify
- about anything
(communications, events, etc.)
- against her spouse
(must be validly married @ time of trial)
- in a criminal trial or before a grand jury

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37
Q

FEDERAL PRIVILEGES
spousal privileges
» 2 exceptions to spousal immunity

[ what types of evidence are admissible ]

A

privilege does not apply

  1. to crimes committed against witness-spouse or children in their custody
  2. where the spouses are accused of jointly committing a crime
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38
Q

FEDERAL PRIVILEGES
spousal privileges
» duration of spousal immunity

[ what types of evidence are admissible ]

A

privilege ends upon divorce

must be validly married @ time of trial

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39
Q

FEDERAL PRIVILEGES
spousal privileges
» waiver of spousal immunity

[ what types of evidence are admissible ]

A

privilege belongs to witness-spouse

= witness-spouse may choose to waive it and voluntarily testify against her spouse

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40
Q

FEDERAL PRIVILEGES
spousal privileges
» confidential marital communications privilege

[ what types of evidence are admissible ]

A 
privilege protects 
- confidential communications 
(aka not overheard by anyone else) 
- btwn spouses 
- made during a valid marriage

applies to both civil and criminal trials

NOTE = does not apply to observations made by spouses during the marriage
(b/c these aren’t confidential communications)

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41
Q

FEDERAL PRIVILEGES
spousal privileges
» 2 exceptions to confidential marital communications privilege

[ what types of evidence are admissible ]

A

does not apply

  1. to crimes committed against the witness-spouse or children in their custody
  2. where the spouses are accused of jointly committing a crime
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42
Q

FEDERAL PRIVILEGES
spousal privileges
» duration of confidential marital communications privilege

[ what types of evidence are admissible ]

A

continues after the marriage ends by divorce or the death of a spouse

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43
Q

FEDERAL PRIVILEGES
spousal privileges
» waiver of confidential marital communications privilege

[ what types of evidence are admissible ]

A

belongs to BOTH spouses
= either spouse may prevent disclosure

waived if either spouse discloses a significant part of the confidential communication to 3P

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44
Q

PRIVILEGES
state law issues
» test tip

[ what types of evidence are admissible ]

A

for state law questions (aka diversity issues), federal cts apply state privilege laws

for purposes of UBE, you should assume that states recognize same privileges as federal common law
PLUS a physician-patient privilege

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45
Q

PRIVILEGES
physician-patient privilege
» rule

[ what types of evidence are admissible ]

A

STATE LAW ONLY

confidential communication
btwn a patient and a physician for purposes of treatment
= protected from disclosure

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46
Q

PRIVILEGES
physician-patient privilege
» waiver

[ what types of evidence are admissible ]

A

STATE LAW ONLY

patient = the holder of the privilege and

patient may waive it voluntarily or accidentally

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47
Q

PRIVILEGES
physician-patient privilege
» exceptions

[ what types of evidence are admissible ]

A

STATE LAW ONLY

privilege does not apply =

  1. when patient places his medical condition in issue
    (ex = sues for personal injuries)
  2. for communications btwn a patient and the patient’s testifying expert
  3. for communications btwn a patient and a FRCP 35 examiner
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48
Q

HEARSAY
definition of hearsay

[ what types of evidence are admissible ]

A
  • an out-of-court statement
  • by declarant
  • that is offered for the truth of the matter asserted IN THE STATEMENT

RULE 801(c)

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49
Q

HEARSAY
general rule

[ what types of evidence are admissible ]

A

INADMISSIBLE unless exception applies

RULE 802

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50
Q

HEARSAY
declarant
» definition

[ what types of evidence are admissible ]

A

person who made the statement

RULE 801(b)

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51
Q

HEARSAY
witness
» definition

[ what types of evidence are admissible ]

A

person who will be introducing declarant’s statement into courtroom, either by testifying to it or by introducing the statement in the form of a document

RULE 801

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52
Q

HEARSAY
statement
» definition

[ what types of evidence are admissible ]

A

a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an ASSERTION

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53
Q

HEARSAY
assertion
» definition

[ what types of evidence are admissible ]

A

declaration of fact or allegation of fact or opinion

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54
Q

HEARSAY
assertion
» form

[ what types of evidence are admissible ]

A

need not be expressed as declarative statements, can also be questions

non-verbal conduct can also be a statement if declarant intends conduct to be assertive

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55
Q

HEARSAY
reasons to offer out-of-court statement OTHER THAN for truth of the matter asserted

[ what types of evidence are admissible ]

A
  1. Context
  2. Notice
  3. Effect on the Listener
  4. Verbal Act
  5. Circumstances Evidencing State of Mind
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56
Q

HEARSAY
nonhearsay
» 3 categories EXEMPT from hearsay rule under 801(d)(1)

[ what types of evidence are admissible ]

A

NOT exceptions = FRE excludes 3 types of statements from declarant-witnesses from definition of hearsay

A. SWORN TESTIMONY = prior inconsistent statements made under oath at a trial, hearing, other proceeding, or deposition
B. CREDIBILITY = prior consistent statements offered to rebut an express or implied charge of recent fabrication or to rehabilitate the declarant’s credibility as W when attacked on other grounds
C. ID = out-of-court identification

RULE 801(d)(1)(A)-(C)

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57
Q

HEARSAY
nonhearsay
» 2 foundational requirements for 801(d)(1) sworn testimony

[ what types of evidence are admissible ]

A

SWORN TESTIMONY requires the following to be exempt from hearsay rule:

  1. the declarant must testify at the proceeding and
  2. the opponent must have an opportunity to cross-examine the declarant about the statement
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58
Q

HEARSAY
nonhearsay // opposing party’s statement under FRE 801(d)(2)
» definition of opposing party statement

[ what types of evidence are admissible ]

A

= any statement made or adopted by a party, by someone authorized by the party, by a party’s employee within the scope of employee, or, in criminal cases, by a co- conspirator within the scope and in furtherance of the conspiracy

BUT statement need not

  1. a confession
  2. against interest at the time it is made

RULE 801(d)(2)

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59
Q

HEARSAY
nonhearsay // opposing party’s statement under FRE 801(d)(2)
» format of statement

[ what types of evidence are admissible ]

A

statement can be verbal or written

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60
Q

HEARSAY
nonhearsay // opposing party’s statement under FRE 801(d)(2)
» 2 examples

[ what types of evidence are admissible ]

A

statement is offered against an opposing party and either:
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy

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61
Q

HEARSAY
hearsay exceptions
» 3 rules

[ what types of evidence are admissible ]

A
  1. RULE 803
  2. RULE 804
  3. RULE 807
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62
Q

HEARSAY
hearsay exceptions
» overview of FRE 803

[ what types of evidence are admissible ]

A

23 hearsay exceptions under which evidence can be admitted REGARDLESS of whether the declarant is available to testify in court

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63
Q

HEARSAY
hearsay exceptions
» overview of FRE 804

[ what types of evidence are admissible ]

A

4 hearsay exceptions under which evidence can be admitted only when the declarant is UNAVAILABLE to testify in court

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64
Q

HEARSAY
hearsay exceptions
» overview of FRE 807

[ what types of evidence are admissible ]

A

additional exception for hearsay that does not meet the criteria in FRE 803 and FRE 804, but that nevertheless has EQUIVALENT circumstantial guarantees of trustworthiness

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65
Q

HEARSAY
hearsay exceptions under FRE 803(1)-(4)
» present sense impression

[ what types of evidence are admissible ]

A
  1. The declarant must make the statement while actually perceiving an event or immediately thereafter (passage of even a few minutes’ time is enough to defeat the exception)
  2. The explanation of the event must be a simple description of the observed event or condition
  3. The declarant must have personal knowledge of the described event

RULE 803(1)

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66
Q

HEARSAY
hearsay exceptions under FRE 803(1)-(4)
» excited utterance

[ what types of evidence are admissible ]

A
  1. There must be a startling event
  2. The declarant must perceive the event
  3. The event must trigger the “stress of excitement” in the declarant
  4. The statement must relate to the startling event itself

RULE 803(2)

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67
Q

HEARSAY
hearsay exceptions under FRE 803(1)-(4)
» then-existing mental, emotional, or physical condition

[ what types of evidence are admissible ]

A
  1. The declarant’s bodily, emotional, or mental condition must be at issue in the case
  2. The statement must be a present or contemporaneous statement and NOT a statement of past feelings or conditions
  3. The statement must be of the declarant’s state of mind, not someone else’s

RULE 803(3)

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68
Q

HEARSAY
hearsay exceptions under FRE 803(1)-(4)
» statements for the purposes of medical diagnosis or treatment

[ what types of evidence are admissible ]

A
  1. The statement must relate to the cause or condition
    - statements describing what happened are admissible insofar as they are related to treatment
  2. The statement must be made for the purpose of obtaining treatment
    - whether made directly to medical personnel or even to a family member or caregiver, the key element is the declarant’s understanding that the statement is related to receiving treatment

RULE 803(4)

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69
Q

HEARSAY
hearsay exceptions under FRE 803(1)-(4)
» sufficient evidence of “stress of excitement”

[ what types of evidence are admissible ]

A

generally, descriptions of the declarant’s
1. emotional state
2. physical appearance
3. behavior
4. condition
= suffice to demonstrate the stress of excitement

RULE 803(2)

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70
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» rules

[ what types of evidence are admissible ]

A

RULE 805 and RULES 803(5)-(7)

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71
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» double hearsay

[ what types of evidence are admissible ]

A

hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule

RULE 805

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72
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» recorded recollection

[ what types of evidence are admissible ]

A

4 FOUNDATIONAL REQUIREMENTS

  1. W must demonstrate – on the stand – the inability fully and accurately to remember something about which W has actual personal knowledge
  2. The advocate’s efforts to refresh W’s recollection under FRE 612 must fail
  3. The advocate must establish that W made or adopted a record of the matter while it was still fresh in W’s mind
    - there is no set time period for determining whether the matter was still fresh in W’s mind
  4. The advocate must establish that the record correctly reflects W’s knowledge

RULE 803(5)

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73
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» actual personal knowledge requirement for recorded recollection

[ what types of evidence are admissible ]

A
  1. memo or record must have been made or adopted by W when the matter was fresh in his mind and to reflect that knowledge correctly
  2. RULE 803(5) applies only to records or memos about which W once had knowledge but now has insufficient recollection to enable him to testify fully and accurately

RULE 803(5)

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74
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» records of a regularly conducted activity

[ what types of evidence are admissible ]

A

3 FOUNDATIONAL REQUIREMENTS

  1. the record must be made and kept in the course of a regularly conducted business activity
    - and as a corollary to this element, the record must be of the type regularly kept and maintained by that business
  2. the record must be made at or near the time of the event recorded therein
  3. the record must be made by, or from information transmitted by, a person with knowledge who had a business duty to report the information

RULE 803(6)

75
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» records of a regularly conducted activity - element of unusual reliability of business records

[ what types of evidence are admissible ]

A

variously supplied

  1. by systematic checking
  2. by regularity and continuity which produce habits of precision
  3. by actual experience of business in relying upon them
  4. by a duty to make an accurate record as part of a continuing job or occupation

RULE 803(6)

76
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» admissibility of absence of a record of a regularly conducted activity

[ what types of evidence are admissible ]

A

= failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence

RULE 803(7)

77
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» foundational requirements for absence of a record of a regularly conducted activity

[ what types of evidence are admissible ]

A

2 FOUNDATIONAL REQUIREMENTS

  1. the same elements to establish a business record PLUS
  2. either
    a. W must introduce the record that shows absence of entry OR
    b. W must testify that a diligent search of files revealed no record at all

RULE 803(7)

78
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» admissibility of record incorporated by second entity

[ what types of evidence are admissible ]

A

may be admitted under 803(6) on testimony of a “qualified witness” of the incorporating entity alone if certain criteria are met

RULE 803(6)

79
Q

HEARSAY
hearsay w/in hearsay + past recollection recorded + biz records
» foundational requirements for record incorporated by second entity

[ what types of evidence are admissible ]

A
  1. the incorporating entity must obviously procure and keep the record in the normal course of its business
  2. the entity must show that it relies on the accuracy of the incorporated record in its business
  3. there must “other circumstances indicating the trustworthiness of the document”

RULE 803(6)

80
Q

HEARSAY
hearsay and public records
» rules

[ what types of evidence are admissible ]

A

RULES 803(8) and 803(10)

81
Q

HEARSAY
absence of public record/entry under FRE 803(10)
» purpose/use

[ what types of evidence are admissible ]

A

allows one to prove the nonoccurrence or nonexistence of the matter

RULE 803(10)

82
Q

HEARSAY
public records and report under FRE 803(8)
» purpose/use

[ what types of evidence are admissible ]

A

foundational rule for public records

RULE 803(8)

83
Q

HEARSAY
public records and report under FRE 803(8)
» 2 requirements

[ what types of evidence are admissible ]

A
  1. The record is a certified copy of a public records or report
    (FRE 902(1)-(4) provides for the self-authentication of public documents and records)
  2. The record meets one of the three clauses of FRE 803(8)
84
Q

HEARSAY
public records and report under FRE 803(8)
» 3 categories of public records

[ what types of evidence are admissible ]

A

(A) the activities of the office or agency

(B) matters observed pursuant to duty imposed by law as to which there was a duty to report

(C) factual findings made pursuant to authority granted by law

85
Q

HEARSAY
public records and report under FRE 803(8)
» category (A) - the activities of the office or agency

[ what types of evidence are admissible ]

A

= sets forth the activities of the office or agency

86
Q

HEARSAY
public records and report under FRE 803(8)
» category (B) - matters observed pursuant to duty imposed by law as to which there was a duty to report

[ what types of evidence are admissible ]

A

= contains matters observed pursuant to duty imposed by law as to which there was a duty to report

87
Q

HEARSAY
public records and report under FRE 803(8)
» category (C) - factual findings made pursuant to authority granted by law

[ what types of evidence are admissible ]

A

= contains factual findings from an investigation conducted pursuant to legal authority

88
Q

HEARSAY
public records and report under FRE 803(8)
» foundational elements for clause (A)

[ what types of evidence are admissible ]

A

no additional requirements

= clause A records simply need to be authenticated under Rule 902 to satisfy admissibility requirements

89
Q

HEARSAY
public records and report under FRE 803(8)
» 3 additional foundational elements for clause (B)

[ what types of evidence are admissible ]

A

foundation for records of matters observed pursuant to duty imposed by law as to which there was a duty to report
includes the following additional elements:
1. the government employee or agents must have firsthand knowledge of the event or condition described in the report
2. the source of the information must be under a legal duty to report the information
3. the public agency must have a legal obligation to prepare and maintain the record

90
Q

HEARSAY
absence of public record/entry under FRE 803(10)
» foundational requirements

[ what types of evidence are admissible ]

A
  1. the same elements to establish the existence of an actual record in which there is no entry, or the type of record where the information or matter would be recorded if it existed
  2. live testimony or a certificate that complies with FRE 902 that diligent search failed to disclose the record, report, statement, or data compilation, or entry

RULE 803(10)

91
Q

HEARSAY
confrontation clause
» crawford rule

[ what types of evidence are admissible ]

A

in Crawford, SC held that testimonial hearsay cannot be introduced against a criminal defendant unless the Confrontation Clause of the Sixth Amendment has been satisfied

92
Q

HEARSAY
confrontation clause
» purpose

[ what types of evidence are admissible ]

A

confrontation is designed to weed out fraudulent analysis and incompetent analysis

= “Like EWs generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination”

93
Q

HEARSAY
hearsay and public records
» investigatory reports that state a conclusion or opinion

[ what types of evidence are admissible ]

A
  • In Beech Aircraft v. Rainey (1998), SC holds that portions of investigatory reports otherwise admissible under FRE 803(8)(C) are not inadmissible merely because they state a conclusion or opinion
  • As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report
94
Q

HEARSAY
hearsay exceptions requiring unavailability of declarant
» 2 broad requirements

[ what types of evidence are admissible ]

A
  1. Reason for unavailability

2. Clean hands

95
Q

HEARSAY
hearsay exceptions requiring unavailability of declarant
» 6 reasons for unavailability

[ what types of evidence are admissible ]

A
  1. death
  2. exercise of a privilege
  3. refusal to testify despite a court order
  4. forgetfulness (testified to not remembering the subject matter)
  5. mental or physical Illness
  6. absence because legal process cannot be used to secure the declarant’s testimony

RULE 804(a)

96
Q

HEARSAY
former testimony under FRE 804(b)(1)
» foundational requirements

[ what types of evidence are admissible ]

A
  1. the declarant is unavailable under FRE 804(a)
  2. the former statement was made in an authorized deposition or in another proceeding
  3. the former statement was made under oath
  4. the party against whom the statement is offered, or a predecessor in interest, had a similar motive to develop the testimony

RULE 804(b)(1)

97
Q

HEARSAY
former testimony under FRE 804(b)(1)
» factors

[ what types of evidence are admissible ]

A
  • Several factors influence a decision whether to admit prior testimony
  • Including
    1. Identity of parties
    2. Similarity of motives to develop testimony
    3. Prior opp to develop testimony

RULE 804(b)(1)

98
Q

HEARSAY
statement under belief of impending death under FRE 804(b)(2)
» foundational requirements

[ what types of evidence are admissible ]

A
  1. The declarant is unavailable under Rule 804(a)
  2. The statement was made when the declarant believed death was imminent
  3. The statement related to the cause or circumstances of what the declarant subjectively believed to be his impending death
  4. The statement was based on the declarant’s first-hand knowledge of such causes or circumstances

RULE 804(b)(2)

99
Q

HEARSAY
statement under belief of impending death under FRE 804(b)(2)
» proof of declarant’s death

[ what types of evidence are admissible ]

A

NOT required

RULE 804(b)(2)

100
Q

HEARSAY
statement against interest under FRE 804(b)(3)
» foundational requirements

[ what types of evidence are admissible ]

A
  1. The declarant is unavailable to testify at trial
  2. The declarant has first-hand knowledge of the factual matters in the statement
  3. The nature of the statement is such that a reasonable person would not have made it unless believing it to be true
  4. At the time of utterance, the statement must be contrary to the declarant’s pecuniary, proprietary, or penal interest
  5. If the statement is against the declarant’s penal interest, it must be supported by corroborating circumstances that indicate its trustworthiness

RULE 804(b)(3)

101
Q

HEARSAY
other hearsay rules

[ what types of evidence are admissible ]

A

RULES 806 and 807

102
Q

HEARSAY
attacking/supporting declarant’s credibility under FRE 806
» methods for attacking credibility

[ what types of evidence are admissible ]

A
  1. RULE 608 character for untruthfulness of any W may be attacked by reputation or opinion testimony
    (once attacked, W’s character for truthfulness may be supported by the same kind of evidence)
  2. RULE 609 permits Ws to be impeached by evidence of conviction of a qualifying crime
  3. RULE 613 allows impeachment by proof of prior inconsistent statements
  4. Ws may be impeached by specific contradiction or by extrinsic proof of bias or motive to misrepresent
103
Q

HEARSAY
attacking/supporting declarant’s credibility under FRE 806
» changes to traditional methods of impeachment

[ what types of evidence are admissible ]

A
  1. re: extrinsic proof of inconsistent statements – 806 does away with RULE 613(b)’s requirement that the impeached W be “afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate W thereon”
  2. 806 states that if the party against whom the hearsay is offered wishes to call the hearsay declarant to the stand to be impeached, the party is permitted to examine the declarant as if on cross- examination
104
Q

HEARSAY
residual hearsay under FRE 807
» foundational requirements

[ what types of evidence are admissible ]

A
  1. the proponent has provided notice to the adverse party sufficiently in advance of the trial or hearing to enable a fair opportunity for the adverse party to prepare to meet it
  2. the statement bears circumstantial guarantees of trustworthiness equivalent to those of the 23 exceptions under RULE 803 and/or the 5 exceptions of RULE 804
  3. the statement is offered as proof of a material fact at trial
  4. the statement is more probative on the point for which it is being offered than any other evidence that the proponent can procure through reasonable efforts
  5. the statement’s admission into evidence serves the general purposes of the FRE and the interests of justice
  6. for testimonial statements in criminal cases, the defendant’s confrontation rights have been satisfied
105
Q

HEARSAY
residual hearsay under FRE 807
» 10 examples of establishing trustworthiness

[ what types of evidence are admissible ]

A
  1. the declarant’s motivation to speak truthfully or untruthfully
  2. spontaneity of the statement
  3. whether the statement was elicited by leading questions
  4. time elapse between event and statement
  5. whether the declarant was subject to cross-examination at the time the statement was made
  6. relationship between declarant and the person to whom the statement was made
  7. whether the declarant recanted or reaffirmed the statement
  8. whether the statement was recorded or videotaped
  9. whether the declarant’s first-hand knowledge is clearly demonstrated
  10. comparing the characteristics of the proffered hearsay to the foundational requirements of an existing hearsay exception
106
Q

HEARSAY
definition of hearsay
» meaning of out-of-court statement

[ what types of evidence are admissible ]

A

statement made anywhere OTHER than W stand at CURRENT trial

107
Q

HEARSAY
nonhearsay
» 3 principled categories

[ what types of evidence are admissible ]

A
  1. verbal acts
  2. words offered to show effect on person who read/heard statement
  3. circumstantial evidence of speaker’s state of mind
108
Q

HEARSAY
nonhearsay
» verbal act

[ what types of evidence are admissible ]

A

= legally operative words, have legal significance whether or not spoken truthfully

EXAMPLE = overhearing contract offers/acceptance, perjury, fraud, defamation

109
Q

HEARSAY
nonhearsay
» words offered to show effect on person who read/heard statement

[ what types of evidence are admissible ]

A

EXAMPLE
in grocery slip ‘n’ fall case, overheard another customer tell employee there was a broke jar of salsa in aisle 3

= not hearsay to prove notice, hearsay to prove there was actually a broken jar of sale in aisle 3

110
Q

HEARSAY
nonhearsay
» circumstantial evidence of speaker’s state of mind

[ what types of evidence are admissible ]

A

EXAMPLE
mr. rick tells client that he is elvis presley
= not hearsay to prove that mr. rick was suffering insane delusion,
hearsay to prove mr. rick is, in fact, elvis

111
Q

HEARSAY
nonhearsay
» direct evidence of speaker’s state of mind

[ what types of evidence are admissible ]

A

TRICK, not nonhearsay

ADMISSIBLE HEARSAY EXCEPTION

112
Q

HEARSAY
nonhearsay
» 3 types

[ what types of evidence are admissible ]

A
  1. principled categories (not stated in FRE)
  2. prior statements by W
  3. statements by or attributable to opposing party
113
Q

HEARSAY
nonhearsay
» admissions by party-opponent

[ what types of evidence are admissible ]

A

any statement made by a party and offered against that party is not hearsay

BUT

  • need not have been against interest @ THE TIME it was made to qualify as an admission
  • lack of personal knowledge does not necessarily exclude a party’s admission

NOTE = may even be in the form of an opinion

114
Q

HEARSAY
nonhearsay / admissions by party-opponent
» judicial and extrajudicial admissions

[ what types of evidence are admissible ]

A
  • formal judicial admissions (in pleadings, responses to requests to admit, stipulations) = conclusive
  • informal judicial admissions made during testimony =
    can be explained
  • extrajudicial (evidentiary) admissions = not conclusive and can be explained

RULE 410

115
Q

HEARSAY
nonhearsay / admissions by party-opponent
» adoptive admissions

[ what types of evidence are admissible ]

A

a party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission

RULE 801(d)(2)

116
Q

HEARSAY
nonhearsay / admissions by party-opponent
» silence

[ what types of evidence are admissible ]

A

if a party fails to respond to accusatory statements where a reasonable person would have spoken up = his silence may be considered an implied admission
AS LONG AS
1. the party must have heard and understood the statement
2. the party must have been physically and mentally capable of denying the statement
3. a reasonable person would have denied the accusation under the same circumstances

(NOTE: failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act)

RULE 801(d)(2)

117
Q

HEARSAY
nonhearsay / admissions by party-opponent
» vicarious admissions of co-parties

[ what types of evidence are admissible ]

A

statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action

  • if 2 or more parties, admission of a party = receivable against itself
  • in the absence of authority, not against her co-party

RULE 801(d)(2)

118
Q

HEARSAY
nonhearsay / admissions by party-opponent
» vicarious admissions of authorized spokesperson

[ what types of evidence are admissible ]

A

the statement of a person authorized by a party to speak on its behalf can be admitted against the party
(example = statement by company’s press agent)

RULE 801(d)(2)

119
Q

HEARSAY
nonhearsay / admissions by party-opponent
» vicarious admissions of partners

[ what types of evidence are admissible ]

A

after a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others

RULE 801(d)(2)

120
Q

HEARSAY
nonhearsay / admissions by party-opponent
» vicarious admissions of co-conspirators

[ what types of evidence are admissible ]

A

SC has held that admissions of one conspirator
1. made to 3P
2. in furtherance of a conspiracy to commit a crime or a civil wrong
3. at a time when the declarant was participating in the conspiracy
= are admissible against co-conspirators

reasoning = conspiracy is analogous to a partnership AKA “partners in crime”

121
Q

HEARSAY
nonhearsay / admissions by party-opponent
» preliminary determination of agency/conspiracy for vicarious admissions

[ what types of evidence are admissible ]

A
  • ct must make a preliminary determination of the declarant’s relationship with the party against whom the statement is being offered
  • ct must consider the contents of the offered statement BUT the statement alone is not sufficient to establish the required relationship or authority

RULE 801(d)(2)

122
Q

HEARSAY
nonhearsay / admissions by party-opponent
» unavailability of non-testifying co-conspirator

[ what types of evidence are admissible ]

A

gov need not demonstrate the unavailability of a non-testifying co-conspirator as a prerequisite to admission of the co-conspirator’s out-of-court statements

RULE 801(d)(2)(E)

123
Q

AUTHENTICATION / IDENTIFICATION
basic principle/requirement

[ what types of evidence are admissible ]

A

authentication and identification requires proof that the evidence is what it purports to be

124
Q

AUTHENTICATION / IDENTIFICATION
6 types of evidence (to be authenticated/identified)

[ what types of evidence are admissible ]

A
  1. Writings
  2. Telephone calls and recordings
  3. Photos and videos
  4. Real evidence
  5. Demonstrative and illustrative evidence
  6. X-rays and surveillance cameras
125
Q

AUTHENTICATION / IDENTIFICATION
writings
» 2 ways to authenticate a writing

[ what types of evidence are admissible ]

A
  1. By extrinsic evidence

2. Self-authentication

126
Q

AUTHENTICATION / IDENTIFICATION
writings
» authentication by extrinsic evidence

[ what types of evidence are admissible ]

A

7 ways to authenticate a writing by extrinsic evidence =

  1. testimony of W who saw party sign/prepare doc
  2. testimony of fact W sufficiently familiar w/ handwriting
    (familiarity cannot be gained for purposes of testifying)
  3. comparison by
    - handwriting expert (who may acquire familiarity solely for testifying) OR
    - the fact-finder (who obviously has no prior familiarity w/ handwriting)
  4. doc has distinctive characteristics
    (ex = letterhead)
  5. reply doctrine
    (ex = A mails a letter to B offering to buy widgets + in reply, A receives a letter purportedly from B accepting the offer to buy widgets
    = B’s letter may be authenticated under the reply doctrine)
  6. public documents
    (if retrieved from proper place of repository)
  7. ancient documents
    (aka those more than 20 years old found in a place where they should be found)
127
Q

AUTHENTICATION / IDENTIFICATION
writings
» self-authentication

[ what types of evidence are admissible ]

A

basic principle =
certain types of documents (aka those normally reliable) may be admitted into evidence w/o extrinsic evidence

8 types of self-authenticating documents =

  1. certified copies of domestic and foreign public records
  2. newspapers
  3. magazines
  4. official gov publications
  5. product labels
  6. negotiable instruments
  7. notarized documents
  8. certified business records or data generated by an electronic process, system, or device
128
Q

AUTHENTICATION / IDENTIFICATION
writings
» procedure

[ what types of evidence are admissible ]

A

judge makes the initial determination of authenticity

judge will admit a document into evidence if the proof is “sufficient to support a jury finding of genuineness”

jury determines what weight to give it (ex = whether it’s a forgery)

129
Q

AUTHENTICATION / IDENTIFICATION
telephone calls + recordings
» authentications of incoming calls and tape recordings

[ what types of evidence are admissible ]

A

person answering phone or listening to recording recognizes voice

voice may have been previously heard in person, by phone, or on tape and may have been heard before or after the call (and solely for purposes of testifying)

NOTE = for authentication purposes, W does not have to be absolutely certain of caller’s identity

130
Q

AUTHENTICATION / IDENTIFICATION
telephone calls + recordings
» 3 methods for authentication of outgoing calls

[ what types of evidence are admissible ]

A
  1. the caller recognizes the voice on the other end (in the same manner as for incoming calls)
  2. the caller locates the recipient’s telephone number in the directory and the person on the other end identifies himself
  3. the caller locates the recipient’s telephone number in the directory and the conversation relates to the recipient’s business
131
Q

AUTHENTICATION / IDENTIFICATION
photos/videos
» requirement

[ what types of evidence are admissible ]

A

requires testimony from someone familiar with the scene or item portrayed in the photo/video that the photo/video is an accurate representation

NOTE = testimony of actual video-/photographer is unnecessary

132
Q

AUTHENTICATION / IDENTIFICATION
real evidence
» 2 ways to identify real evidence

[ what types of evidence are admissible ]

A
  1. by testimony as to identity
    (ex = recognizing the serial number of gun or a distinctive diamond ring)
  2. establishing a chain-of-custody
133
Q

AUTHENTICATION / IDENTIFICATION
demonstrative + illustrative evidence
» definition/examples

[ what types of evidence are admissible ]

A

= a visual aid used to explain or illuminate real, documentary, or testimonial evidence
(aka not real evidence)

Examples =

  • Charts
  • Graphs
  • Maps
  • Spreadsheets
  • Films
  • anatomical models
134
Q

AUTHENTICATION / IDENTIFICATION
demonstrative + illustrative evidence
» authentication (2 requirements)

[ what types of evidence are admissible ]

A

must show that demonstrative evidence is

  1. a substantially accurate representation of real, documentary, or testimonial evidence AND
  2. useful to the jury in understanding such evidence

NOTE = generally, demonstrative evidence does not go to the jury deliberation room

135
Q

AUTHENTICATION / IDENTIFICATION
x-rays and surveillance cameras
» authentication

[ what types of evidence are admissible ]

A

testimony that the X-Ray equipment or camera is reliable and in good working order

(same rule would apply to other equipment, such as a breathalyzer)

136
Q

ORIGINAL WRITING RULE
general rule

[ what types of evidence are admissible ]

A

requires that certain types of evidence be proved by original documents (or recordings or photos

137
Q

ORIGINAL WRITING RULE
application

[ what types of evidence are admissible ]

A

applies in only 2 situations =

  1. proponent is attempting to prove contents of doc that evidences written transaction
    (ex = contracts, deeds, wills, judgments, divorce decrees)
  2. W intends to testify about an event in which his knowledge was acquired solely from
    - reading a writing or
    - listening to a recording or
    - viewing a video or photo
    (ex = X testifies that A bought a car from B; X’s sole knowledge comes from reading the bill of sale)
138
Q

ORIGINAL WRITING RULE
5 exceptions

[ what types of evidence are admissible ]

A

if rule requires an original and the proponent cannot produce one, other evidence (like drafts, testimony, etc.) is admissible only if proponent proves that

  1. original was lost or destroyed or
  2. doc is not obtainable by subpoena or
  3. doc is in the other party’s possession or
  4. doc relates to a collateral (aka minor) matter or
  5. other party admits the contents of doc
139
Q

ORIGINAL WRITING RULE
admissibility/treatment of secondary evidence under exceptions

[ what types of evidence are admissible ]

A

there are no “degrees” of secondary evidence under the FRE

= once the proponent shows original is unavailable, W’s testimony about doc is just as admissible as a prior draft

140
Q

ORIGINAL WRITING RULE
definition of original

[ what types of evidence are admissible ]

A

= includes carbon copies and photocopies
(unless there is a genuine question about authenticity)

ALSO certified copies of public records are admissible as originals

141
Q

ORIGINAL WRITING RULE
edited writing/recording
(other’s party possible response)

[ what types of evidence are admissible ]

A

if party introduces only part of a writing or recording and other parts are necessary to put that part in the proper context, the opponent may force the offering party to introduce those other parts

142
Q

COMPETENCY
personal knowledge

[ who may testify and in what form ]

A

W must have personal knowledge of the facts or events about which she intends to testify
BUT need not have personal knowledge of any direct evidence
(ex = W who intends to testify about an admissible hearsay statement need only have personal knowledge of the statement and not the underlying event)

typically, W’s own statement that she saw or heard the event is sufficient for admissibility

143
Q

COMPETENCY
refreshing witness memory

[ who may testify and in what form ]

A

If W testifies that he lacks memory of an event, W’s memory may be refreshed with ANY document (or thing)

doc need not be admissible

doc is not admissible by the proponent BUT may be admitted in evidence by opposing counsel

W may not read from doc, should return it to the attorney before testifying with a refreshed memory

if doc does not refresh W’s recollection, W may read it to the jury if doc satisfies the conditions of FRE 803(5)

if writing is used to refresh W’s memory WHILE W is testifying, an adverse party has RIGHT to inspect writing

If writing was used to refresh W’s memory BEFORE W testified, adverse party may inspect the writing IF THE CT DECIDES THAT JUSTICE REQUIRES IT

144
Q

COMPETENCY
oath

[ who may testify and in what form ]

A

to testify, W must take an oath (religious) or affirmation (non-religious) to tell the truth

W may not be impeached for failing to take a religious-based oath

145
Q

COMPETENCY
competency required

[ who may testify and in what form ]

A

W must have minimal competency to testify

= W knows difference between truth and falsity and has minimal mental capacity

146
Q

COMPETENCY
construction of competency rules
(compared to relevance + competency + privileges)

[ who may testify and in what form ]

A

cts construe the competency rules LIBERALLY in favor of allowing W to testify

relevance and competence = liberally construed

privileges = narrowly construed

147
Q

COMPETENCY
dead man’s act

[ who may testify and in what form ]

A

NO Dead Man’s Act in fed cts for FEDERAL law issues

for STATE law issues, fed cts apply the state’s Dead Man’s Act

  • these acts vary significantly from state to state
  • generally preclude one party from testifying about oral transaction in civil case if other party is dead or insane
  • does not apply where the dead party’s testimony is admitted as an exception to the hearsay rule
148
Q

COMPETENCY
testimony of judges + jurors

[ who may testify and in what form ]

A

judges and jurors may not testify in cases over which they preside.

juror may testify to impeach a verdict, but only if verdict was tainted by an “external” source, such as a bribe or newspaper report, or as to whether there was a clerical mistake in entering the verdict onto the verdict form.

exception = a juror may testify to impeach a verdict by showing that racial animus was a significant motivating factor in the jury’s vote to convict

149
Q

COMPETENCY
exclusion of witnesses

[ who may testify and in what form ]

A

upon request, judge shall exclude all Ws from courtroom
EXCEPT for
- parties (or designated rep of a corp or gov party)
- crime victims
- testifying experts (sometimes)

150
Q

EXPERT WITNESSES
5-step analysis

[ who may testify and in what form ]

A
  1. Is EW QUALIFIED to testify on basis of education, experience, training, knowledge, and/or skill?
    - question for the judge
    - any of these bases alone is sufficient
  2. Is evidence RELEVANT?
    AKA does evidence assist fact-finder in understanding issues?
    NOTE = in crim case in which D’s mental state constitutes element of crime/defense, EW may NOT state opinion as to whether D did/didn’t have such mental state @ time of offense
    BUT EW may testify that D suffered from mental disease/defect and can describe characteristics of such condition (just can’t offer a conclusion as to whether condition rendered D incapable of appreciating nature of acts)
  3. Is the evidence RELIABLE?
    AKA has EW applied reliable principles and methods to the facts of the case?
    - EW’s opinions must be based on REASONABLE DEGREE OF CERTAINTY, not mere conjecture/speculation
  4. Is BASIS of EW’s testimony PROPER?
    - EW may base her opinion on inadmissible evidence if it’s of type reasonably relied upon by experts in particular field
    - such inadmissible evidence, however, is not independently admissible and generally may not be made known to jury
  5. IMPEACHMENT
    - in addition to impeachment methods that can be used on fact witnesses, EW may be impeached by
  6. evidence of bias (like paid to testify)
  7. learned treatises that are read to jury if an expert (either party’s expert will suffice) testifies that treatise is authoritative in the field
151
Q

FORM + SCOPE OF QUESTIONING
direct examination

[ who may testify and in what form ]

A

type of Qs = no leading Qs (aka Qs that suggest an answer)

4 exceptions
= leading questions allowed
1. to refresh W’s recollection
2. to question a difficult or nervous W
3. to question a hostile W, adverse party, or person aligned with an adverse party (like spouse, employee)
4. questions related to preliminary, foundational, or background facts

152
Q

FORM + SCOPE OF QUESTIONING
cross-examination

[ who may testify and in what form ]

A

type of Qs = leading questions are generally permitted

2 exceptions
= no leading Qs
1. where attny’s client is called by opposing counsel as an adverse W
(and thus attny is cross-examining her own client)
2. cross-examiner has exceeded the scope of direct
(but ct has permitted questioning to continue)

153
Q

FORM + SCOPE OF QUESTIONING
scope of cross-examination

[ who may testify and in what form ]

A

in fed ct, scope of cross-exam is limited to

  1. subject matters raised on direct examination
  2. credibility (aka impeachment) of Ws

the court, however, has discretion to allow a cross-examiner to exceed scope of direct examination

154
Q

OPINION EVIDENCE
rule

[ who may testify and in what form ]

A

fact witness may give an opinion if it is

  1. rationally based on W’s perception AND
  2. helpful to the jury
155
Q

OPINION EVIDENCE
6 common examples of fact witness opinions

[ who may testify and in what form ]

A
  1. X was drunk
  2. X was about 75 years old
  3. X seemed nervous, confused, scared, etc.
  4. X was driving about 50 MPH
  5. X smelled of alcohol or gasoline
  6. X was standing about 20 feet from the intersection
156
Q

OPINION EVIDENCE
6 opinions fact witness generally prohibited from giving

[ who may testify and in what form ]

A
  1. X was negligent
  2. X is guilty
  3. X was at fault
  4. X should win
  5. X’s product was unreasonably dangerous or defective
  6. X’s product was the cause of plaintiff’s injuries
157
Q

IMPEACHMENT
bias

[ who may testify and in what form ]

A

W may be impeached with evidence of bias, interest, or partiality by inquiry on cross-exam AS LONG AS questioning attny has good faith basis to inquire

extrinsic evidence is admissible if W denies the existence of the bias

158
Q

IMPEACHMENT
lack of capacity

[ who may testify and in what form ]

A

W may be impeached with evidence of lack of capacity by inquiry on cross-exam AS LONG AS questioning attny has good faith basis to inquire

extrinsic evidence also admissible to prove W lacked capacity

159
Q

IMPEACHMENT
prior inconsistent statements

[ who may testify and in what form ]

A

W may be impeached with her prior inconsistent statements by inquiry on cross-exam

(ex = “isn’t it true that after the accident you told the officer that plaintiff’s light was green”)

if made under oath at a hearing or deposition, the statements are admissible as substantive evidence
(otherwise, the statements may be used only to impeach)

160
Q

IMPEACHMENT
prior inconsistent statements
» extrinsic evidence foundation + admissibility

[ who may testify and in what form ]

A

foundation =
extrinsic evidence of W’s prior inconsistent statement is admissible
ONLY IF W is, @ some point in time (before or after impeachment), given opp to explain/deny prior inconsistent statement
BUT foundation is not required for
1. statements of a party-opponent or
2. impeaching a hearsay declarant with a prior inconsistent statement

extrinsic evidence is admissible unless the prior statement relates to a collateral matter

161
Q

IMPEACHMENT
prior convictions
» 5 rules

[ who may testify and in what form ]

A

W may be impeached with his prior convictions by inquiry on cross-examination and/or extrinsic evidence (a certified copy of the record of conviction) as follows:

  1. There is an absolute right to impeach with veracity crimes (misdemeanors and felonies, such as perjury, larceny by trick, criminal fraud, counterfeiting, false pretenses, filing false reports, making false statements, and bribery) that are less than 10 years old
  2. For all other felonies, they may be used to impeach if their probative value outweighs prejudice to parties; the balance favors exclusion if W is D in a criminal case; for all other Ws, the balance favors use of the conviction
  3. Non-veracity misdemeanors may not be used to impeach
  4. Convictions more that 10 years old (as measured from the date of conviction or the date of release from prison, whichever is later) are rarely allowed
  5. Most juvenile and pardoned convictions are not allowed (but convictions on appeal are allowed)
162
Q

IMPEACHMENT
prior acts of untruthfulness

[ who may testify and in what form ]

A

W may be impeached with evidence of prior bad acts by inquiry on cross-examination if

  • the act relates to UNTRUTHFULNESS AND
  • attny has a GOOD FAITH BASIS to believe the act occurred

BUT extrinsic evidence is NOT allowed, even if W denies the bad act

163
Q

IMPEACHMENT
character witnesses

[ who may testify and in what form ]

A

W may be impeached by calling a character witness (CW) to testify as to W’s untruthfulness

CW may only testify as to W’s reputation for untruthfulness or CW’s opinion as to W’s untruthfulness
BUT CW may not testify as to W’s specific instances of untruthfulness

164
Q

IMPEACHMENT
character witnesses
» rebuttal

[ who may testify and in what form ]

A

evidence of the truthful character of W is admissible only after W’s character for truthfulness has been attacked by

  1. character Ws or
  2. prior convictions or
  3. prior acts of untruthfulness
165
Q

IMPEACHMENT
extrinsic evidence of contradictory facts
» 3 times witness may be impeached by extrinsic evidence of contradictory facts

[ who may testify and in what form ]

A
  1. W’s testimony on a particular fact is a material issue in the case
  2. where the testimony on a particular fact is significant on the issue of credibility
  3. where W volunteers testimony about a subject for which the opposing party would otherwise be precluded from offering evidence
166
Q

IMPEACHMENT
religious beliefs

[ who may testify and in what form ]

A

W may not be impeached for his or her religious beliefs (or lack thereof)

EX = isn’t it true you don’t believe in God?

167
Q

MECHANICS OF ADMISSION
admissibility

[ how is evidence admitted ]

A

the judge determines the admissibility of evidence
- in so doing, may consider inadmissible evidence EXCEPT evidence subject to a recognized privilege)

in some cases, the admissibility of evidence is contingent upon the admission of other evidence (aka conditional relevance)

168
Q

MECHANICS OF ADMISSION
objections
» 4 key takeaways

[ how is evidence admitted ]

A

a party opposing the admissibility of evidence must make a specific, timely objection

for testimonial evidence, the objection must precede W’s answer if Q calls for inadmissible evidence
(if Q is not objectionable but W’s answer is, a motion to strike is appropriate)

failure to timely object results in a waiver of the objection

ct of appeals will not reverse an erroneous evidentiary ruling if the error was harmless

169
Q

MECHANICS OF ADMISSION
offers of proof

[ how is evidence admitted ]

A

if an objection is sustained, the proponent of the evidence must request an offer of proof (via attny argument, voir dire, etc.) to demonstrate its admissibility

170
Q

MECHANICS OF ADMISSION
what can judges do?

[ how is evidence admitted ]

A

in fed ct, a judge may

  • call Ws
  • question Ws
  • comment to the jury on the evidence
171
Q

MECHANICS OF ADMISSION
use of limiting instructions

[ how is evidence admitted ]

A

if evidence is admissible for one purpose but not another (or against one party but not another), the court MUST, upon REQUEST, instruct the jury as to the limited use of the evidence

172
Q

JUDICIAL NOTICE
definition

[ how is evidence admitted ]

A

the court accepting a fact as true w/o extrinsic evidence

173
Q

JUDICIAL NOTICE
when may/must judicial be taken?

[ how is evidence admitted ]

A

judicial notice MAY be taken of a fact if it is either
1. generally known within the territorial jurisdiction of the trial court
(judge’s own knowledge is insufficient)
OR
2. capable of accurate and ready determination by resort to reliable sources
(ex = atlas, calendar, dictionary)

the court MUST take judicial notice of a fact if the court is supplied with the necessary info to indicate that the fact is not subject to reasonable dispute

174
Q

JUDICIAL NOTICE
what is the proper stage of the proceedings to take judicial notice?

[ how is evidence admitted ]

A

any stage = all courts, trial and appellate, may take judicial notice.

(NOTE = b/c judicially-noticed facts are not conclusive in criminal cases, appellate courts probably cannot take judicial notice in criminal appeals)

175
Q

JUDICIAL NOTICE
may a party object to the taking of judicial notice?

[ how is evidence admitted ]

A

yes

176
Q

JUDICIAL NOTICE
may a court take judicial notice sua sponte?

[ how is evidence admitted ]

A

yes or upon motion of a party

177
Q

JUDICIAL NOTICE
what is the effect of a judicially-noticed fact?

[ how is evidence admitted ]

A

CIVIL case = jury will be instructed that the fact is conclusive

CRIMINAL case = jury will be instructed that it may, but is not required to, accept the fact as conclusive

178
Q

PRESUMPTIONS
federal issues
» basic principle

[ how is evidence admitted ]

A

presumptions are creatures of substantive law
(ex = under contract law, there is a rebuttable presumption that a properly addressed, stamped letter placed in a mailbox was received by the recipient)

179
Q

PRESUMPTIONS
federal issues
» burden-shifting

[ how is evidence admitted ]

A

for federal issues, once the proponent proves the basic fact
(ex = a properly addressed, stamped letter was placed in the mailbox)
= the burden of PRODUCTION but NOT PERSUASION shifts to the opponent to disprove the presumed fact
(ex = receipt of the letter)

if the opponent introduces evidence sufficient to disprove receipt, the presumption BURSTS and the jury will decide the issue as though the presumption never existed
(aka the burden of persuasion remains on the proponent)

180
Q

PRESUMPTIONS
federal issues
» effect in civil cases

[ how is evidence admitted ]

A

if the opponent fails to introduce evidence sufficient to disprove the presumed fact
= The court will instruct the jury to find for the proponent as to that fact

181
Q

PRESUMPTIONS
federal issues
» effect in criminal cases

[ how is evidence admitted ]

A

if the defense fails to introduce evidence sufficient to disprove the presumed fact
= the court will instruct the jury that it MAY (but isn’t required to) find for the prosecution as to that fact

182
Q

PRESUMPTIONS
state issues
» basic principle

[ how is evidence admitted ]

A

for state law issues in fed ct, the court uses state presumption law

183
Q

PRESUMPTIONS
state issues
» burden-shifting

[ how is evidence admitted ]

A

in some states, if the proponent proves the basic fact

= burden of production AND the burden of persuasion shift to the opponent

184
Q

PRESUMPTIONS
state issues
» 3 areas of state law to which FRE defers

[ how is evidence admitted ]

A

in CIVIL cases based on DIVERSITY of citizenship, FRE defers to state law for

  1. privileges
  2. the Dead Man’s Act
  3. presumptions

Bar Refresher (8 decks)

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