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
Under the best evidence rule, can a party introduce a copy of an original document?
yes, unless:
- -genuine question about original’s AUTHENTICITY;
- -in FAIRNESS, original should be required
What does it mean, under the best evidence rule, for the contents of a document to be “at issue”?
1) doc is used as proof of an event (e.g. video of robbery)
2) doc has actual legal effect (e.g., contract, will)
3) witness is testifying on events he only learned from the doc (e.g., i watched the video of the robbery)
What are the exceptions to the best evidence rule?
May introduce other evidence of the contents of the doc if:
1) original has been LOST or DESTROYED
2) original cannot be OBTAINED by any judicial process’
3) party against whom doc is introduced had CONTROL of original and KNEW it was going to be AT ISSUE at trial
4) chart or summary if voluminous
5) admission by party re: contents
What is the parol evidence rule?
exceptions?
excludes evidence that would CHANGE terms of written contract
if complete integration: NO EXTRINSIC EVIDENCE that would CHANGE terms
if partial integration: no extrinsic evidence that would CONTRADICT terms, but you can admit extrinsic evidence that would ADD TO THE TERMS
exceptions:
- -clarify an ambiguity;
- -prove a custom of trade/course of dealing
- -show fraud, duress, mistake, or illegal purpose;
- -show whether there is consideration
What evidentiary privileges do federal courts recognize?
general principles of common law
if sitting in diversity, state law
What does the attorney client privilege protect?
Confidential communications
between client and attorney
IF communication was for purpose of securing legal advice
Who holds the attorney client privilege?
CLIENT, atty must protect unless CLIENT waives
What does it mean for communications to be confidential such that they are protected by the attorney client privilege?
client made REASONABLE EFFORTS to keep communication confidential
no UNNECESSARY THIRD PARTIES
necessary third parties (e.g., assistant, translator) and UNKNOWN secret eavesdroppers DO NOT break confidentiality
How does one waive attorney client privilege?
1) failure to assert privilege in timely manner
2) voluntary disclosure of info
3) express waiver (even by K)
4) attorney fails to take precautions (e.g., careless conduct)
For attorney client privilege, who is the client in a corporate setting?
FOCUS ON NATURE OF COMMUNICATION
regardless of seniority, if communication with employee is about matter WITHIN SCOPE OF EMPLOYMENT for PURPOSE OF SEEKING LEGAL ADVICE, then it’s privileged.
What exceptions to the attorney client privilege exist?
1) future crime or fraud: if client talks to lawyer for purpose of getting help with what he knows or should know is crime/fraud, no privilege
2) disputes between attorney and client
Which law recognizes physician-patient privilege?
fed law DOES NOT recognize
many states do
What is the physician patient privilege?
Statements made by a patient to doctor for PURPOSE of obtaining MEDICAL TREATMENT are privileged
What are the exceptions to the physician-patient privilege?
1) info was for reasons other than treatment
2) communication was made for some ILLEGAL purpose;
3) DISPUTE exists between doctor and patient;
4) patient agreed to WAIVE the privilege
What courts recognize the psychotherapist-patient privilege?
FED COURTS RECOGNIZE
MOST STATES DO TOO
What is protected by the psychotherapist-patient privilege?
confidential comms
between patient and psychiatrist, psychologist, or licensed social worker
for purpose of treatment
What exceptions exist to the psychotherapist-patient privilege?
usual privilege exceptions (non confidential, not for purpose, waived, dispute) AND
1) result of COURT ORDERED EXAM
2) taken as part of a COMMITMENT PROCEEDING
When and to whom does the fifth amendment privilege apply?
prevents people from being required to give INCRIMINATING TESTIMONY against themselves
applies only to ppl (not corporations)
applies only to CURRENT (not prior) STATEMENTS
does not apply when NO RISK OF CRIMINAL TROUBLE (i.e., immunity)
What does the confidential marital communications privilege protect?
who holds it?
when does it end?
protects communications made between spouses IN CONFIDENT in reliance on sanctity of marriage
held by BOTH SPOUSES
SURVIVES AFTER MARRIAGE
what is spousal immunity?
gives spouse right to REFUSE TO TESTIFY in a CRIMINAL CASE against the other spouse
applies only WHILE MARRIED
who holds spousal immunity privilege?
TESTIFYING SPOUSE ONLY
What exceptions exist to the spousal privileges (both MCC and SI)?
1) one spouse is SUING the other
2) one spouse is charged with a crime against the other spouse or their children
When is/isn’t liability insurance admissible?
NOT admissible to prove NEGLIGENCE OR WRONGDOING
other purpose okay (e.g., control or ownership)
When are/aren’t subsequent remedial measures admissible?
evidence of repairs/changes made AFTER ACCIDENT are INADMISSIBLE to prove NEGLIGENCE, CULPABILITY, DEFECT, OR INADEQUATE WARNINGS
admissible if other purpose (e.g., ownership)
When are/aren’t settlement offers or negotiations admissible?
offer AND ANY RELATED STATEMENTS/CONDUCT made by any party INADMISSIBLE to prove VALIDITY/AMOUNT of a disputed claim
admissible if other purpose (e.g., bias)
when are/aren’t offers to pay medical expenses admissible?
INADMISSIBLE TO PROVE LIABILITY
statements made ACCOMPANYING offer may be admissible
When are plea negotiations admissible?
NOT ADMISSIBLE IN CIVIL OR CRIMINAL CASE
includes everything close to and surrounding plea negotiations (pleas themselves are admissible though)
When is a VICTIM’s past sexual conduct admissible?
evidence of victim’s past SEXUAL BEHAVIOR OR PREDISPOSITION is generally INADMISSIBLE in cases involving sexual misconduct
exceptions in CRIMINAL CASE:
1) used to show that D was/wasn’t source of PHYSICAL EVIDENCE (e.g., semen)
2) used to show victim’s past sex with DEFENDANT to show CONSENT
3) certain circumstances where it would be TOO UNFAIR to the D (exclusion being unconstitutional)
exceptions in CIVIL CASE:
1) only comes in if probative value of sexual conduct SUBSTANTIALLY OUTWEIGHS the danger of harm to vic and unfair prejudice
2) reputation evidence can only come in if VICTIM BRINGS IT UP
When can D’s prior sexual assault or child molestation evidence come in?
AS PROPENSITY EVIDENCE when accused of that kind of crime, civilly or criminally.
What is the definition of hearsay?
OUT OF COURT STATEMENT
offered to PROVE THE TRUTH OF THE MATTER ASSERTED
What counts as an “out of court statement” for hearsay?
written
spoken
nonverbal conduct
What are the main uses of a statement to make them not offered for the truth of the matter asserted and thus NOT hearsay?
verbal acts/legally operative facts (e.g., threats in an extortion case)
effect on the listener (he was going to kill me)
state of mind
- -he’s crazy because he said he’s jesus
- -he speaks french because he’s speaking french
Can double hearsay be admitted?
yes, if there are exceptions for each level!
What are the categories of non-hearsay “exceptions” and actual hearsay exceptions?
1) particular prior statements of testifying witnesses
- -prior inconsistent statements
- -prior consistent statements
- -prior statements of identification
2) admissions of opponent
- -party’s own words
- -adoptive statements
- -vicarious admissions
- -co-conspirators
3) DECLARANT UNAVAILABLE:
- -former testimony
- -dying declaration
- -statements against interest
- -statements of personal or family history
4) DECLARANT’S AVAILABILITY IMMATERIAL:
- -present sense impression
- -excited utterance
- -state of mind
- -medical diagnosis
- -past recollection recorded
- -business records
- -public records
- -learned treatises
- -judgment of previous conviction
- -reputation
When can a prior inconsistent statement be brought in despite being hearsay?
DECLARANT MUST BE WITNESS
MUST HAVE BEEN MADE UNDER OATH to be used substantively (can be used to impeach if not under oath)
When can a prior consistent statement be brought in despite being hearsay?
DECLARANT MUST BE WITNESS
can be brought in to rehab OR substantively
DOES NOT NEED TO HAVE BEEN UNDER OATH
When can a prior statement of identification be brought in despite being hearsay?
DECLARANT MUST BE WITNESS
does not need to have been under oath, LINEUP OKAY
When are admissions of a party opponent admissible, despite being hearsay?
must be introduced AGAINST that party
BY OPPOSING PARTY (party cannot introduce his own admissions)
What is an adoptive statement?
Statement made by someone else which is then EXPRESSLY OR IMPLIEDLY ADOPTED
(“did you rob that bank?” party: “yes”)
Can silence constitute adoption of a statement?
yes if
1) party HEARD and UNDERSTOOD the statement,
2) party had ABILITY TO RESPOND;
3) REASONABLE PERSON in same situation would have DENIED that statement
What counts as a vicarious admission for the exception to hearsay?
statement made by someone AUTHORIZED to speak on party’s behalf (e.g., lawyer, spokesman)
statement made by AGENTS or EMPLOYEES if within SCOPE OF EMPLOYMENT (if there is more evidence than just the statement to show an agency relationship!!!)
When is a co-conspirator’s statement admissible under the party’s admissions exceptions to hearsay?
admissible when made by co-conspirators DURING and IN FURTHERANCE OF a conspiracy
IF there is ADDITIONAL EVIDENCE, beyond the statement, of a conspiracy
What does it mean for the declarant to be unavailable for the unavailable group of hearsay exceptions?
1) exempted from testifying due to privilege
2) refuses to testify
3) lacks memory of subject matter
4) dead or too ill
5) absent and cannot be subpoena’d/found
NOT UNAVAILABLE IF PARTY MADE HIM UNAVAILABLE FOR PURPOSE OF PREVENTING TESTIMONY
when is former testimony admissible, despite being hearsay?
DECLARANT UNAVAILABLE
given UNDER OATH
party against whom it’s being offered HAD AN OPPORTUNITY AND SIMILAR MOTIVE to develop testimony by examination
when is a dying declaration admissible, despite being hearsay?
DECLARANT UNAVAILABLE
1) individual believes she is dying
2) believes death is imminent
3) statement relates to cause or circumstances of death
only in HOMICIDE or CIVIL CASES
declarant does not have to die
when is a statement against interest admissible, despite being hearsay?
DECLARANT UNAVAILABLE
if, WHEN MADE, was against declarant’s PECUNIARY, PROPRIETARY, CIVIL, OR PENAL INTEREST such that A REASONABLE PERSON would not have made the statement unless it were true
NB: exonerating statement that would subject a declarant to CRIMINAL LIABILITY are INADMISSIBLE unless CORROBORATING CIRCUMSTANCES clearly indicate trustworthiness
when are statements of personal/family history admissible, despite being hearsay?
DECLARANT UNAVAILABLE
when are present sense impressions admissible, despite being hearsay?
statement DESCRIBING/EXPLAINING EVENT made WHILE declarant was PERCEIVING the event or IMMEDIATELY THEREAFTER
when is an excited utterance admissible, despite being hearsay?
statement RELATING TO STARTLING EVENT made while declarant is STILL UNDER STRESS/EXCITEMENT caused by event
when are state of mind statements admissible, despite being hearsay?
statement of declarant’s THEN-EXISTING PHYSICAL, MENTAL, OR EMOTIONAL CONDITION
statement of INTENT can be used to PROVE ACTION in CONFORMITY with that intent
when are statements made for purpose of medical diagnosis admissible, despite being hearsay?
statements describing declarant’s MEDICAL HISTORY or PAST or PRESENT SYMPTOMS, or CAUSE OF INJURY IF PERTINENT TO TREATMENT/DIAGNOSIS
need not be made by patient or directly to doctor
when is a past recollection recorded admissible, despite being hearsay?
witness may READ record if:
1) concerns a matter about which witness ONCE HAD KNOWLEDGE
2) record was prepared BY WITNESS when matter was FRESH
3) record accurately REFLECTS WITNESS’S KNOWLEDGE; and
4) witness testifies he has INSUFFICIENT MEMORY OF EVENT to testify accurately without reading
NOT PROVIDED TO JURY, but ADVERSARY MAY INTRODUCE IT TO JURY
when are business records admissible, despite being hearsay?
admissible if made:
1) at or near TIME OF EVENT it records;
2) by a person with KNOWLEDGE of the event and UNDER A DUTY to report it;
3) as part of the REGULAR PRACTICE of the business to make that kind of record
INADMISSIBLE under this exception if made in ANTICIPATION OF LITIGATION
Court has discretion to exclude if source of info indicates a LACK OF TRUSTWORTHINESS
when are public records admissible, despite being hearsay?
records of public agencies are admissible when describing:
1) ACTIVITIES
2) OBSERVATIONS
3) FACTUAL FINDINGS/CONCLUSIONS
may be excluded if circumstances indicate a LACK OF TRUSTWORTHINESS
law enforcement reports can only introduce ACTIVITIES (cop should testify obvi)
When does the Confrontation Clause prevent an out of court statement?
when it’s TESTIMONIAL (made with PRIMARY PURPOSE of reporting/investigating a crime, NOT EMERGENCY)
admissible only when:
1) declarant UNAVAILABLE; and
2) D had PRIOR OPPORTUNITY to cross-examine that declarant