Evidence Add-ons Flashcards
Can prosecution ask about specific acts on cross based on a hunch?
NO, to challenge reputation, prosecution must have good faith belief to introduce specific act
Does 403 test rely on presumption that evidence is admissible or inadmissible at baseline?
Admissible at baseline
Comes in automatically UNLESS prejudicial
Who may be impeached with evidence of prior conviction for crime of dishonesty?
Any witness, including D, so long as conviction occurred within last 10 years
When does best evidence rule NOT apply?
If witness is NOT relying on relevant document
Or
contents are NOT at issue
Does subsequent remedial measure public policy limitation apply to remedial actions taken before plaintiff’s injury?
NO, only AFTER
May judgments of 1) acquittal and 2) conviction be introduced in subsequent civil actions?
Acquittal: NO (bc doesn’t establish actual innocence)
Conviction: YES
When are interactions with police testimonial vs. non-testimonial?
To enable police to render aid/911 call: NOT testimonial
To ascertain past criminal conduct: Testimonial
Is a prior statement of identification admissible if witness does not testify?
NO
If public official searches for record and fails, is this evidence that record does not exist?
Yes, so long as those records are regularly kept
Does rule of completeness apply to non-simultaneous communications like email chains?
YES
Can arrest be introduced as prior bad act?
NO, only conviction
Is real physical evidence (like a model) subject to best evidence rule?
NO
Can defendant agree to waive protection of statements made during plea negotiation?
YES, if waiver is knowing and voluntarily
To refresh recollection, may party use a writing/document that someone else produced?
YES, if made by an agent or reliable party e.g. spouse
Can court consider privileged information in making evidentiary rulings outside jury’s presence?
NO, this info is still protected by privilege
What happens when presumption bursts?
Jury must weigh evidence on both sides to decide issue
Burden of persuasion does NOT shift
Can questions be hearsay?
NO! Because they are not assertions!
If D testifies at preliminary question hearing, can he be questioned regarding any issues of the case?
No, only those related to contested evidence
Can inadmissible evidence be used for curative admission?
YES, if needed for rebutting other inappropriately produced inadmissible evidence, inadmissible curative admission may be used to impeach
Is sexual conduct by victim subject to 403 analysis?
NO, REVERSE 403
It is considered baseline inadmissible, so flip the standard (only admissible if probative value substantially outweighs unfair prejudice)
Does rule against hearsay apply if witness wants to testify to her own prior statement?
YES
Does testifying in past trial under oath allow for testimony to be admitted if witness is unavailable at subsequent trial?
NO, unless SAME defense or successor in interest had opportunity to question
If both parties acknowledge that they agree to a fact, must the fact be stipulated to?
NO, opposing party does not need to agree and can bring in witnesses on that topic if they choose
When may criminal defendant introduce evidence of good character?
ONLY WHEN traits are pertinent to crime charged
ONLY reputation
Can specific acts be raised about witnesses?
Witness: YES
Defendant: NEVER (exception for civil trials w specific elements requiring proof)
Can extrinsic evidence be used to impeach on collateral matters?
NO
May subsequent remedial measures be used to show feasibility
Yes, but ONLY IF feasibility is disputed
Does statement against interest apply to non-parties?
YES, all declarants
What is opposing party entitled to do when writing is used to refresh witness’s memory 1) while testifying and 2) before testifying?
WHILE testifying: court must allow opposing party to inspect writing, cross-examine witness about it, and introduce relevant portions into evidence
BEFORE testifying: court MAY allow opposing party to view, cross, or introduce in interest of justice
What family records are NOT considered hearsay?
so long as AUTHENTICATED (what proponent claims it is):
Family Bible
Geneology
Family Chart
Engraving on ring or urn
inscription on portrait
burial marker
Who does hearsay exception for statement about mental/emotional/physical condition apply to?
ONLY the declarant! and it must be ABOUT HIMSELF
(not a statement by someone else about defendant or victim)
Does former exception testimony often apply to grand jury testimony?
NO, rarely, bc
1) defendant rarely present and
2) prosecution may not have had motive to develop testimony due to lower burden
Must a statement against interest be supported with corroborating evidnece?
YES, only hearsay exception where this is the case
But ONLY IF offered in CRIMINAL case and exposes DECLARANT to CRIMINAL liability
Seller liability for negligence
Seller remains liable for negligence for physical harm caused by artificial condition on land even after the sale when
1) the defect existed at time of sale AND
2) seller knew or should have known that it posed an unreasonable risk of harm
Remains liable until buyer discovers and has opportunity to remedy condition
Is evidence of D’s character admissible in civil case?
NO, unless character is essential element of claim or defense
What elements of witness’s character can be introduced?
ONLY traits probative of truthfulness/untruthfulness
May a chart or summary is presented as evidence if it is based on contents too voluminous to be conveniently examined in court?
YES, so long as proponent makes copies of chart for opposing counsel
Can business records be made in anticipation of litigation?
NO, bc then they are not a part of normal practice of record keeping
Thus, not exception to hearsay
Can D introduce evidence of his own good character?
Yes, but ONLY IF traits are RELEVANT to charged crime
If a judge decides evidence is admissible, can a party still introduce evidence relevant to its credibility?
YES, still can add more evidence as to weight and credibility
Does use immunity protect physical evidence found as a result of testimony?
Yes, prohibits testimony from being used against them in future proceeding, including testimony leading to investigatory lead to find evidence
Can settlement offers be admitted to impeach by prior inconsistent statement?
NO, Never
How soon after introduction of a statement does Rule of Completeness apply
If it is not required IMMEDIATELY, defendant must wait until he can produce his own evidence in order to introduce document
When may defendant introduce evidence of peaceful character?
ONLY IF he is claiming self-defense
Are a defendant’s specific acts ever admissible in criminal or civil cases?
Criminal: NEVER
Civil: Rarely, only if to make out charge (e.g. show something occurred to disprove defamation)
For felony conviction less than 10yo, what is standard for admissibility for A) defendant witness and B) non-defendant witness?
Defendant: Inadmissible UNLESS probative value OUTWEIGHS prejudicial effect (reverse 403 MINUS “substantially”)
Non-defendant: Admissible unless prejudicial effect is substantially outweighed by probative value (normal 403 analysis)
For conviction greater than 10yo of FELONY or crime of DISHONESTY for non-D witness, what is standard of admissibility?
INADMISSIBLE UNLESS
1) probative value is substantially greater than prejudicial effect and
2) reasonable notice provided to party before trial
Letter reply doctrine
Document can be authenticated as reply letter if it can be shown that
1) document was written in response to earlier communication AND
2) contents make it unlikely that it was written by someone other than recipient
Does a statement adopted by silence constitute hearsay exception?
POSSIBLY, if it constitutes statement of party opponent, then it is adoptive admission
What type of evidence do answers to interrogatories constitute?
Nonhearsay party admissions
Is habit admissible to show negligence?
NO, never
3 qualities of an action that make it a habit?
1) routine
2) automatic
3) specific
When can specific acts be used during direct for character evidence?
Only when character is ESSENTIAL ELEMENT of the claim
Does judge or jury make final decision as to whether evidence is authenticated?
JURY (question of fact)
Must a party be unavailable for statement against interest to be admissible?
YES
Must corroborating circumstances be demonstrated for statement against interest?
YES
If subjects declarant to CRIMINAL liability
If witness is unavailable and has given testimony in prior criminal trial, when may that testimony be introduced in similar future suit?
If proponent shows that he ATTEMPTED to secure witness’s presence with subpoena or other means, and she was still not available
May an out-of-court declarant (non-witness) be impeached when a statement is introduced as hearsay exception?
YES, in the same way as if he were physically present in room (e.g. attacking truthfulness)
May a jury consider physical objects in its deliberations?
YES, e.g. may compare samples of items
May a police officer testify about past violent incidents between two parties when one party is on trial for murder of the other?
YES, when used for relevant noncharacter purpose ABSENCE OF MISTAKE–e.g. showing that likely not accidental death because of history of violence
Are records of attorney fees protected by attorney-client privilege or work product doctrine?
NEITHER
Records and communications that are MERELY INCIDENTAL to representation do not fall within privilege
Are all communications between attorney’s agent (e.g. expert witness and paralegal) and client confidential?
NO, only those for purpose of obtaining or providing legal assistance, NOT those that are MERELY INCIDENTAL to representation
Can declarant’s inconsistent statement be used for impeachment if it he does NOT have opportunity to explain/deny?
YES, inconsistent statement may be admitted regardless
only DEFENDANT must be able to explain prior inconsistent statement
Hypo: Appearance of a toy is disputed in a case. P designed toy, D viewed it, and P destroyed it. Must P show that she did not destroy in bad faith to describe the toy?
NO, a jury may draw an adverse inference, but she can testify about her personal knowledge of its appearance bc best evidence rule does NOT apply (only to recording, writing, or photo)
If a rebuttable assumption applies in a case, and relevant party does not supply evidence to contrary, may judge instruct jury that it must apply presumption?
YES
May a party be impeached with prior criminal conviction after they leave the stand?
YES, do not need to first question them
May a conviction be used to impeach if the party was pardoned?
NO, if pardon/annulment/certificate of rehabilitation given on basis of 1) innocence or 2) rehabilitation with no subsequent felonies,
CANNOT use conviction to impeach
If a judge excludes a document under best evidence rule, may a witness testify about that evidence?
YES, so long as she has personal knowledge related to event recorded by document
Is physician-patient privilege recognized under federal common law?
NO, just state law
Can attorneys attempt to impeach expert witnesses on the basis of credibility even if a judge has already decided their expert status?
YES, goes to the weight of the testimony
Does best evidence refer to superior form of evidence?
NO, does NOT say that X should be used to introduce particular information instead of Y
ONLY says that an original or reliable duplicate must be introduced to prove contents of writing/photograph/recording WHEN CONTENTS ARE AT ISSUE
Can a police officer reasonably believe that hotel clerks have authority to unlock rooms?
NO, never justifiable
If a public employee makes a statement on the job, is this automatically employment-related speech?
NO, not if made in as a private citizen to another employer
What is standard to authenticate physical object at trial?
PRIMA FACIE showing that object is what proponent CLAIMS IT to be
Usually w personal knowledge
Do Federal Rules of Evidence apply to grand jury?
NO!!!!
If a public record relies solely on hearsay, is it admissible?
Likely NO because lacking in trustworthiness
Do FRE apply to probation revocation hearings?
NO (except privilege rules)
Are statements against penal interest made to friends or family testimonial?
NO, testimonial is only if declarant would reasonably EXPECT it to be used in PROSECUTION (e.g. to police)
Statements to family/friends about guilt are NOT testimonial
Can statement against interest hearsay exception be used against a party who was available?
NO, MUST be unavailable
If witness has been impeached on matter other than truthfulness (eg. bias), may his credibility be bolstered with reputation for truthfulness?
NO, can only bolster truthfulness if truthfulness SPECIFICALLY has been called into question
If witness does not recall making prior line-up identification, is it still admissible?
YES, as substantive evidence if witness testifies at trial + Is subject to cross
If witness does not remember, it is still admissible
Can photo be used to refresh recollection?
YES
does best evidence rule permit a witness to testify about the contents of a writing if the writing is material + can be made available?
NO, cannot testify, need to make the writing available
Is the standard for permitting an expert witness to testify 1) that they MAY help jury understand evidence or 2) that jurors NEED expert to help them understand
Experts are permissible whenever they MAY help jurors understand
Are public records subject to best evidence rule?
YES, to establish contents of public record IF THEY ARE AT ISSUE, generally must introduce certified copy of record or witness who has compared copy to original.
ONLY IF these two methods are unavailable can a person testify to contents of public record
If a fact is presented on cross that contradicts defendant’s testimony, but that does not explicitly attack their honesty, may they bolster honesty?
NO, showing that e.g. they recalled a car’s color incorrectly does not open the door for honesty evidence–this is merely testimonial
Is baptism record admissible as non-hearsay family/religious record evidence?
YES
Is a statement made imminently before death regarding a debt owed at debt admissible as dying declaration?
NO, because NOT RELATED to CIRCUMSTANCES OF DEATH
Can police w significant investigation experience be qualified as an expert?
YES
Is reputation for peacefulness admissible as pertinent trait for murder charge?
YES, bc relevant to VIOLENT crime
Peacefulness may be introduced by D for ANY violent crime
Is opposing counsel permitted to cross beyond scope of direct if direct was extremely limited (eg. just one question)
NO, still must limit to matter of direct OR credibility, but court MAY permit added questioning
Can a witness testifying about defendant’s reputation for honesty be impeached with ARREST for crime of dishonesty charged to DEFENDANT?
YES, because it counts as specific instance of conduct by another (arrest) even if didn’t result in conviction
If D doesn’t take stand, but has character witnesses testify on his behalf, does this constitute opening the door?
YES, can bring in specific acts
Hearsay exception for 911 call apart from present sense impression/excited utterance?
MEDICAL STATEMENT, if person is injured and 911 call used to get med help
Can police repeat statements made to them if statements meet hearsay exception?
YES
If real expert unavailable to testify about preparing report, can surrogate expert fill in?
NO, bc doesn’t have personal knowledge of preparation/accuracy of report
Can public record be introduced by prosecution?
NO, only defendant
Do observations of law enforcement qualify as public records exception?
NO, law enforcement records (eg. fire report) NOT admissible as public records
Why may testimony about firing someone be subject to objection?
Firing for bad act can be SUBSEQUENT REMEDIAL MEASURE, so should not be admissible
Who may authenticate a letter?
Person w PERSONAL KNOWLEDGE of claimed author’s handwriting OR expert witness/juror who compares to genuine handwriting sample
Does a statement by an employee count as statement by party opponent if employer is being sued?
Yes, IF statement relates to matter within scope of employer-employee relationship
If a lawyer is cross-examining his own client, may he use leading questions?
NO, inappropriate for OWN CLIENT
Should not ask leading questions to own client!
When are juvenile convictions admissible?
Civil trial: NEVER
Criminal: NEVER for defendant, only to IMPEACH witnesses
Can experts do experiments for jury?
YES, UNLESS will cause waste of time or confusion
Can a party’s co-defendant’s confession implicating both co-D’s be admitted against party at trial?
No, UNLESS confessing party testifies at trial and can be cross-interrogated. Otherwise CC violation
if a defendant lies to induce another party to contract with them, but does so based on mistaken belief that they own item in question, is this false pretenses?
NO, bc person BELIEVES they have right to property, even if belief is wrongful (specific intent crime)
If a person acts with reckless disregard for human life, but did not intend to kill, can they be charged with attempted murder?
NO, bc attempt is SPECIFIC INTENT crime
Is intoxication defense to first-degree murder?
YES, bc SPECIFIC INTENT crime, but not to lower level murders
For double hearsay, can one layer of hearsay be accepted and other excluded?
NO, must be BOTH or NEITHER–cannot pick and choose
Can an expert testify as to a defendant’s mental state?
YES, if it is NOT related to REQUISITE MENTAL STATE for element of crime or defense
BUT can testify e.g. on whether defendant was mentally well at time of crime
Must an attorney turn over confidential client communications used for illegal acts if attorney did not know the acts were illegal at the time?
YES, so long as it can be shown that the advice was ultimately used for illegal purpose, should be turned over even if attorney lacked knowledge
Is threat to kill a party if they testified too prejudicial to admit to evidence?
NO, can be used for noncharacter purpose to show CONSCIOUSNESS of guilt
Are branded products self-authenticating?
YES, when they include trade inscriptions
Do both parties need to give each other notice of evidence to be offerred at trial?
NO, ONLY prosecution must notify
Defense does NOT need to notify pros of evidence
two main questions for determining when a communication bt attorney client is meant to be privileged
1) was it made for purpose of obtaining legal representation?
2) was it made to/in presence of THIRD PARTY
Does prosecution need to notify defense of ALL evidence to be presented?
NO, only some eg business records
