Evidence Flashcards
When MUST a preliminary hearing be conducted outside the presence of a jury?
1) when issue is admissibility of CONFESSION in CRIMINAL CASE
2) when D in a criminal case is a WITNESS and makes that request; or
3) when INTERESTS OF JUSTICE otherwise require (i.e., unfair prejudice)
When can an evidentiary ruling be reversed on appeal?
1) SUBSTANTIAL RIGHT of a party has been affected (not harmless error); AND
2) judge was NOTIFIED of mistake at trial and given chance to correct it
- -via OBJECTION or OFFER OF PROOF
What is the plain error rule?
Even if no objection or offer of proof, appellate court can still reverse case to PREVENT MISCARRIAGE OF JUSTICE when ERROR WAS OBVIOUS ON ITS FACE
What is the rule of completeness?
If a party introduces PART of a WRITTEN statement, opposing party may introduce OTHER PORTIONS of that statement that are necessary to PUT IT INTO PERSPECTIVE
EVEN IF OTHERWISE INADMISSIBLE
What is judicial notice?
How does it work in a civil case?
Criminal?
When the court decides that an ADJUDICATIVE FACT is NOT SUBJECT TO REASONABLE DISPUTE, and so instructs the jury to ACCEPT IT AS PROVEN.
Civil: judge can instruct jury that it MUST accept fact as proven
Criminal: only instructs that it MAY, BUT NEED NOT find that fact
When are leading questions permitted?
ON CROSS ALWAYS.
On direct, never, EXCEPT:
1) to elicit PRELIMINARY BACKGROUND INFO that is NOT DISPUTED
2) the witness has TROUBLE COMMUNICATING because of AGE OR INFIRMITY; or
3) you’ve called a HOSTILE WITNESS
When and how can you refresh a witness’s recollection?
Does the refreshing document become evidence?
Other requirements?
When witness is having trouble remembering:
1) show him something (typically notes)
2) he reads it, puts it aside, and testifies FROM PRESENT MEMORY
Doc DOES NOT become evidence
Witness CANNOT READ FROM IT
Opposing party CAN SEE/INSPECT DOCUMENT, and can SHOW TO JURY
What’s the difference between refreshing a witness’s recollection and past recollection recorded?
The former is PRESENT testimony, refreshed by a document.
the latter is a HEARSAY EXCEPTION, allowing the record in despite their inability to remember
What limits the scope of cross examination?
SCOPE OF DIRECT (unless court allows broader inquiry)
Besides leading questions, what are improper question types?
1) Compound questions
2) facts not in evidence
3) argumentative questions
4) questions calling for inappropriate conclusions that WITNESS CAN’T MAKE
5) ASKED AND ANSWERED (must be answered for an objection to be upheld)
Which witnesses MAY NOT be excluded from the courtroom, regardless of request?
Witness who is ESSENTIAL TO PRESENTATION of case
person who is permitted by state law to remain in courtroom (like a CRIME VICTIM)
a PARTY in the case
What’s the difference between burden of production and persuasion?
Production = produce enough evidence to get issue to jury
persuasion = convince the jury in your favor
What is the burden of proof in a civil case? Criminal case?
civil = preponderance of the evidence
criminal = beyond a reasonable doubt
What is a rebuttable presumption?
Shifts the burden of PRODUCTION on a particular issue (NOT THE BURDEN OF PERSUASION)
Useful for things that are hard to prove directly
If counterproof is introduced, presumption is eliminated and jury can decide
What happens if a party destroys evidence?
presumption that it WOULD HAVE BEEN ADVERSE to that party
What does it mean for a piece of evidence to be RELEVANT?
makes the FACT IN ISSUE MORE LIKELY than it would be without the evidence
i.e., MATERIAL AND PROBATIVE
When does FRE 403 exclude relevant evidence?
For what risks?
if certain risks SUBSTANTIALLY OUTWEIGH the evidence’s probative value:
- confusion of the issues;
- unfair prejudice;
- misleading the jury;
- waste of time
Generally, when is character evidence inadmissible?
What is the rare occurrence when character evidence is admissible in CIVIL cases? In what form?
inadmissible when used to show a person’s PROPENSITY to do certain things
Admissible if character is AN ISSUE IN THE CASE (which nearly always civil, like child custody hearings) (or to IMPEACH)
REPUTATION OR OPINION TESTIMONY ONLY, not specific bad acts!
When can character evidence be used in criminal cases?
generally, INADMISSIBLE, but:
1) D can introduce evidence of good character
- -still ONLY REP and OPINION TESTIMONY
- -BUT prosecutor can REBUT
- -AND prosecutor can cross-examine D’s character witnesses with questions about SPECIFIC PRIOR ACTS!
- -NB: prosecutor cannot PROVE those bad acts, has to accept witness’s answer
2) D can bring evidence about VICTIM’S CHARACTER
- -RAPE SHIELD: cannot argue promiscuity
- -basically always self-defense argument
- -BUT prosecutor can introduce REP/OPINION evidence that D has the SAME TRAIT as he accused the vic of having
- -Prosecutor can also rebut claim that vic has that trait
When can prior act evidence come in?
Prior acts can come in when NOT USED FOR PROPENSITY, but for some OTHER PURPOSE: MIMIC
Motive
Intent
(absence of) Mistake
Modus operandi
Common plan/scheme
Is evidence of a habit admissible?
YES, allowed to prove conformity WITH THE HABIT (not character evidence, exactly)
also can be habit of ORGANIZATION
habit = ROUTINE, REGULAR, or AUTOMATIC
What is the standard for competence of a witness?
anyone who has PERSONAL KNOWLEDGE of the matter about which they’re going to testify and is willing to MAKE AN OATH to tell the truth is competent to testify
What is the FRE’s standard for children testifying?
whether child has PERSONAL KNOWLEDGE
and is MATURE ENOUGH TO UNDERSTAND THE OBLIGATION to tell the truth
What is a dead man’s statute?
limits ability of witnesses to testify about transactions with dead people
Can a judge testify?
not in a case over which she’s sitting!
can a juror testify in a trial in front of the jury in which he sits?
NO OF COURSE NOT!
when can a juror testify after a verdict, and about what?
FRE 606(b) says a juror MAY NOT TESTIFY about:
1) any STATEMENT made DURING DELIBERATIONS
2) any INCIDENT that occurred during deliberations, or
3) the effect of anything upon any juror’s MIND
Jurors may testify about:
1) EXTRANEOUS, PREJUDICIAL INFO improperly brought to jury’s attention (e.g., inadmissible evidence snuck in)
2) an OUTSIDE INFLUENCE improperly brought to bear on a juror (e.g., bribe or threat)
3) CLERICAL/TECHNICAL ERROR made in entering verdict;
4) CLEAR STATEMENT OF RACIAL ANIMUS by another juror regarding his vote to convict
What are the three basic reasons to impeach a witness?
bad character for truthfulness
bias
sensory competence (mistaken in some way)
What are the three things with which you can impeach a witness for having a character for truthfulness/untruthfulness?
1) Character witness testimony
- -bring in a character witness who testifies that witness is dishonest: REP or OPINION ONLY, NO SPECIFIC INCIDENTS
2) Specific acts
- -CROSS EXAMINE a witness about SPECIFIC ACTS of dishonesty
- -must be probative of UNTRUTHFULNESS
- -must have a REASONABLE/GOOD FAITH basis for asking the question
- -MUST TAKE WITNESS’S ANSWER, can’t prove
3) Criminal convictions
- -crimes involving DISHONESTY or FALSE STATEMENTS
- -felony convictions (more than one year in prison) UNLESS risk of prejudice SUBSTANTIALLY OUTWEIGHS probative value (cf 403); BUT if witness is CRIMINAL DEFENDANT, only comes in if PROBATIVE VALUE OUTWEIGHS PREJUDICIAL EFFECT (reverse 403)
- -BUT: old convictions (more than 10 years old) get reverse 403. AND advanced notice required
- -BUT: if pardoned, can’t be used
When can a prior inconsistent statement be brought in?
How?
any kind of prior inconsistent statement can be brought in TO IMPEACH a witness
can be proved by EXTRINSIC EVIDENCE, but ONLY IF witness is given opportunity to EXPLAIN/DENY
Can hearsay declarants be impeached?
YES, they are KIND OF like a witness, so you can impeach them as if they were on the stand
How can an impeached witness be rehabilitated?
prior consistent statement can come in
REP or OPINION testimony of truthfulness for a witness attacked as having bad character for truthfulness
What must happen before tangible evidence can be entered in as evidence?
it must be AUTHENTICATED: sufficient evidence shown to support a finding that the item is what the party claims it is
NB: does not have to be determined authentic (jury question), just a SHOWING that there’s sufficient evidence FOR A JURY TO MAYBE FIND that it’s authentic
Typically done via personal knowledge; distinctive features, chain of custody, etc.
How can documents be authenticated?
stipulation
typical eyewitness testimony + distinctive features
ancient documents rule
reply letter doctrine: here’s what it was responding to
handwriting verification
self-authenticating (notarized docs, government seal, etc)
What is the ancient documents rule?
to authenticate a document, you may:
1) show that it is at least 20 years old;
2) in a condition unlikely to create suspicion; and
3) found in a place where such documents would be if they were authentic
What is the best evidence rule?
SHOW DON’T TELL, UNLESS!
- -Says you cannot use other means (typically testimony) to give evidence of the CONTENTS of a document (recording, etc) WHEN THE CONTENTS ARE AT ISSUE
- -e.g., can’t say “X is in my lease” without first just showing the lease
