Evidence Flashcards
Any witness, including a criminal defendant, may be impeached with evidence of what kind of past criminal conviction?
conviction of past crime (w/in 10 years) involving dishonesty or false statement, even misdemeanors (related to impeachment because shows he’s a liar!)
what’s the standard to determine whether the court may bar evidence of a past conviction NOT involving dishonestly or false statement to impeach a witness?
403
what’s the best evidence rule?
It requires that the original document or a reliable duplicate be produced to prove the contents of a writing
when does the best evidence rule apply?
The rule applies only when the contents of a document are at issue or a witness is relying on the document when testifying – we wanna make sure the CONTENTS are correct
Is evidence generated by a machine or an animal considered admissible, or hearsay?
admissible. it’s NOT hearsay
there is an exception to the hearsay rule for judgments of conviction; is there a similar exception that allows for admitting a judgment of acquittal
no
**A prior inconsistent statement may be used to impeach a witness. When can that same evidence also be used as substantive evidence?
If a prior inconsistent statement by declarant was made under oath, it is admissible both to impeach the declarant’s credibility and as substantive evidence, so long as the witness testifies now and is subject to cross re: the statement (need not actually be crossed)
Because prior statement was under oath –> very credible –> substantive evidence
when are settlement offers and negotiations admissible?
While settlement offers and negotiations generally are not admissible (to prove liability, ie that they committed a crime) for public policy reasons, they ARE admissible to prove the bias or prejudice of a witness, to negate a claim of undue delay, or to prove obstruction of a criminal investigation or prosecution.
(Because the son was offered a reduced sentence in exchange for his testimony, the jury should be able to weigh that fact when considering his credibility)
A declarant is considered unavailable as a witness when ____________________________.
A
the declarant is absent
B
the proponent has procured the declarant’s unavailability
C
the declarant lacks memory of the subject matter of the statement
D
the declarant has been granted immunity
C
the declarant lacks memory of the subject matter of the statement
machine evidence and hearsay
Evidence generated by a machine, such as an automatically generated time stamp on a fax, a printout of results of computerized telephone tracing equipment, and raw data (such as blood-alcohol level) generated by a forensic lab’s diagnostic machine, is not hearsay
Is evidence of a juvenile conviction ever admissible in a civil case? If so, when?
Never
Evidence of a juvenile conviction may be used to impeach a witness other than the defendant only if. . .
(i) it is offered in a criminal case,
(ii) an adult’s conviction for that same offense would be admissible to attack the adult’s credibility, and
(iii) admitting the evidence is necessary to fairly determine guilt or innocence.
Pedestrian (P) testified that he always waits for the pedestrian crossing signal before crossing major intersections. D (Bus Co) asked P on cross about his prior ticket for jaywalking. Should this question be permitted?
Yes, because a witness may be impeached by evidence that contradicts the witness’s testimony.
Does hearsay rule apply even when witness is present and can be crossed?
Yes, applies to any out-of-court statement (e.g., a record), even if the declarant is testifying and can be crossed
does rule of completeness apply only to two statements from the same writing?
no, need not be a part of the writing or recorded statement introduced by the adverse party. The only requirement is that, in fairness, the two should be considered together
confidential marital communications privilege:
a communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. So if wife wants to reveal confidential communications that the husband had made to her while married, can husband prevent her?
yes, either spouse may assert the privilege and refuse to testify about the communication or even PREVENT the other spouse from testifying
spousal immunity privilege
In a criminal case, the witness-spouse holds the spousal immunity privilege and may choose to testify, but cannot be compelled to do so.
The privilege applies to…
events that occurred before + during marriage
Here, the wife can choose to testify; the defendant cannot prevent her from taking the stand against him.
However, the wife is *prohibited from testifying as to confidential marital communications between the two.
Past recollection recorded exception to the hearsay rule:
If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if…
(i) the record is on a matter that the witness once knew about,
(ii) the record was made or adopted by the witness when the matter was fresh in the witness’s memory,
(iii) the record accurately reflects the witness’s knowledge when it was made, and
(iv) the witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand
You CAN admit the recording into evidence, but CANNOT enter it as an exhibit (unless other side okay’s it)
In civil cases, when may specific instances of conduct be used to prove character?
only when character is an essential element of a claim or defense (usually defamation cases – accused of being adulterer, can admit evidence of promiscuity)
Although evidence of subsequent remedial measures is generally not admissible to prove negligence for public policy reasons, it may be admissible for . . .
other purposes, like to prove ownership or control of the cause of harm, if disputed.
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.
Because D’s purported letter has been authenticated by D’s supervisor (via handwriting), P may admit D’s letter
dying declaration
declarant believes that her death is imminent, and the statement pertains to the cause or circumstances of HER OWN death that she believes to be imminent.
Here, the lady’s last words to paramedic after heart attack was “I killed my husband the other day,” but that has nothing to do with her heart attack
statement against interest
A statement made by a declarant who is unavailable to testify is not excluded as hearsay if the statement was (1) against the declarant’s interest at the time it was made, and (2) would not have been made by a reasonable person unless he believed it to be true
the attorney-client privilege does not protect communications made to enable or aid in the commission of what the ___ knew or should have known was a crime or fraud.
client. so you can force attorney to testify if attorney had no idea that his advice was helping client commit crime but CLIENT DID KNOW
when state substantive law is determinative of the existence of a ___ or __ under the Erie doctrine, then ___ also governs the effect of a presumption related to the __ or __
claim or defense
state law
claim or defense
post trial, attorney speaks with juror, who says that the jury misunderstood the judge’s instruction regarding the standard of proof to apply in the case. Can attorney use this info for new trial?
no, a juror generally may not testify as to any matter or statement that occurred during the course of the jury’s deliberations
post trial, attorney speaks with juror, who says he relied heavily on testimony that the judge had stricken from the record. Can attorney use this info for new trial?
no, the juror may not testify as to his mental process concerning the verdict, even if it involved relying on evidence stricken from the record
which prior statement by a witness may be used to impeach her?
one inconsistent with a material part of her present testimony
However, extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it.
if a statement is being introduced for impeachment purposes only, is it hearsay?
no because it’s not being offered to prove what it asserted – it’s being offered to IMPEACH (“you SAID something else before”)
when can statements made by a defendant during plea negotiations be admissible?
via waiver
what’s an opposing party’s statement?
Party A’s statement is NOT hearsay (admit!) if it’s offered by Opposing Party B
here, their statement was in police report
When may a witness may be asked about specific instances of conduct?
On cross, if it’s probative of the truthfulness or untruthfulness of (i) the witness or (ii) another witness about whose character the witness being cross-examined has testified.
**Can convictions for FELONY crimes NOT involving fraud or dishonesty that are less than 10 years old be admissible to impeach a witness? If so, when?
Yes. objecting party must show that the conviction fails 403 (because we presume a FELONY reveals dishonesty) (but older than 10 years old = forgive and forget)
**Are misdemeanor convictions admissible to impeach a witness? If so, when?
yes, but only if they are probative of untruthfulness
If more than 10 years have elapsed since the conviction, when is evidence of the crime admissible?
Not admissible, unless the court determines that the probative value substantially outweighs prejudice (reverse 403)
How do you authenticate X-ray images, electrocardiograms, and similar items that are physical representations of things that cannot otherwise be seen?
show that an accurate process was used, that the machine used was working properly, and that the operator of the machine was qualified to operate it. Also, establish the chain of custody.
can you introduce potentially relevant evidence that relies on a conditional fact?
When the relevance of evidence depends upon whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.
The court may admit the proposed evidence on the condition that the proof is introduced later.
In determining that sufficient evidence has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence
in deciding preliminary questions regarding the competency of evidence, is the judge bound by the Federal Rules of Evidence, privileges, both, or neither?
only privileges
before trial, if dad (now dead) nodded in response to question about whether his daughter kills animals (case is about her killing her child), and P wants to introduce the nod to demonstrate that the defendant had a violent history against animals, is the nod admissible?
no, it’s hearsay: nod is used to prove the truth of the matter asserted (that daughter killed animals). Fact that dad’s dad is irrelevant
CALIFORNIA: If a defendant claims self-defense in a murder trial, may P offer evidence re: the victim’s good character under the Federal Rules of Evidence (FRE), or the California Evidence Code (CEC) (or both) (or neither)?
under the FRE, but not the CEC.
CALIFORNIA: When a statement accompanies an offer to pay medical expenses, both the offer and the statement are admissible or inadmissible (or one or neither)?
NEITHER are admissible
Although fed allows you to admit the statements surrounding the offer (“Sorry for hitting you!”)
**present sense impression
A statement [describing or explaining an event or condition] that is made while or immediately after the declarant perceived it, is not excluded as hearsay.
eg woman relaying license plate numbers to husband as she sees them
excited utterance
A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception, the event must shock or excite the declarant, and the statement must relate to the event,
what evidence must be authenticated?
all tangible evidence must be authenticated. Produce sufficient evidence to support a finding that the thing is what P claims
Voter registration listed used to determine voire dire. 90% ended up being women. okay?
yes
If witness is testifying about declarant’s statement, can opposing party ask a question re: DECLARANT’s bias?
Yes
When must re-direct examination be permitted?
If there were significant new matters raised on cross
When May subsequent remedial measures me admissible?
To show ownership or control over the property in question
Are public records admissible?
Yes under hearsay exception for public records
**Can lay witness—who acquires familiarity with handwriting “in order to authenticate the signature”—properly authenticate the signature?
No, because the familiarly with the handwriting CANNOT be acquired solely for purposes of litigation
Can an animals actions be considered hearsay?
No, hearsay applies only to people
When’s a leading question least permissible?
When questioning a disinterested witness on direct.
Leading questions are MORE likely to be permitted with a kid
to determine whether a state has personal jdx over a corporation…
use the minimum contacts test (CFR): relatedness (b/t the cause of action and forum state), contacts (b/t forum state and D), and fairness (drag D internationally?). putting items in stream of commerce in that state isn’t enough
when is a past civil judgment admissible?
never
may a court refuse to admit evidence related to a collateral issue? why / why not?
yes, because a party generally may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead, the party must accept the witness’s testimony.
Can you admit evidence offered to prove a victim’s sexual conduct or predisposition in a civil case involving alleged sexual misconduct? If so, when?
yes, if the court determines that the probative value substantially outweighs the danger of harm and unfair prejudice
When a court erroneously admits evidence, it may…
permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence (to minimize prejudice)
can you introduce misdemeanors as impeachment evidence?
only if w/in 10 years and involve dishonesty or false statement -> trying to impeach so let’s focus on dishonesty
Testimony that a diligent search failed to disclose a public record/statement [may / may not] be admitted to prove that the record/statement does not exist, or that a matter did not occur/exist, if a public office regularly kept a record of statements for a matter of that kind
may
the trial judge decides preliminary questions as to the ___ of evidence, while the jury determines the __ and __ of the evidence
judge -> admissibility
jury -> weight and credibility of admitted evidence
**A defendant’s past crimes or other wrongful acts are not admissible to show his criminal propensity, but they are admissible as circumstantial evidence of MIMIC, meaning…
Motive Identity Absence of Mistake Intent Common Plan/Scheme
A statement contained in a medical treatise that has been established as a reliable authority by the testimony of P’s expert witness [is / is not] excluded as hearsay if the statement is called to D’s expert’s attention on cross-examination.
Is not excluded.
Although the treatise must be established as a reliable authority in order for a passage from the treatise to be read into evidence, there is no requirement that the expert who establishes the treatise as a reliable authority rely on the passage in forming her own opinion.
voice authentication
When a statement is made by someone whose voice is only heard, but not seen, it must be authenticated
Statement to compromise only applies when…
There’s an already-disputed claim
