Evidence (All Bar Topics) Flashcards
Evidence of an offer to settle a claim, and any statements or conduct accompanying the offer, is not admissible to prove:
Liability or the amount of the claim if disputed as to liability or amount. Such evidence may not be used for impeachment through a prior inconsistent statement either.
An offer to compromise cannot qualify as such until:
The other party has made a claim so that a dispute exists.
Evidence of offering or promising to pay medical, hospital, or similar expenses caused by an injury is not admissible to prove:
Liability for the injury.
An offer to plea bargain and statements made in connection therewith are not admissible at:
A subsequent trial.
Discuss the rule of admissibility pertaining to Evidence of an offer to settle a claim under 408: Compare with admissibility of Offers to pay Medical Expenses under Rule 409:
FRE 408- Settlement Offer–
Offers to settle claims not in “dispute” are admissible. Admissions are NOT Severed (inadmissible).
FRE 409- Offer to Pay Medical Expense–
Offers to pay medical expenses of another are inadmissible Admissions ARE Severed (admissible).
In a criminal case, the prosecution may introduce circumstantial evidence of other crimes, wrongs or acts for the very narrow purpose of proving:
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (“MIMIC” evidence).
To approach any Evidence Question, perform the following three steps:
Underline the Cause of Action–
Civil or Criminal?
Situate the Proceeding–
Direct or Redirect Party or Witness
Purpose for Evidence–
Substantive use Impeachment use
Evidence of the habit of a person, or the routine practice of an organization, is admissible to show:
that conduct on a particular occasion was in conformity with the habit.
Habit evidence refers to a narrow range of highly probative traits, namely:
Automatic, invariable patterns of behavior that could be characterized by the words “always” or “invariably.” Actions performed “frequently” or “often” do not constitute habit. A habit is a regular response to a given situation that is done without a high degree of forethought. Habit evidence does not need to be corroborated.
Define relevant evidence:
Relevant evidence means evidence tending to make the existence of any fact more probable or less probable than it would be without the evidence.
Define the Balancing Test Rule:
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
In any civil or criminal proceeding involving alleged sexual misconduct, evidence is generally inadmissible to show:
that an alleged victim engaged in other sexual behavior or any alleged victim’s sexual predisposition.
In a criminal case, however, such evidence of sexual misconduct or behavior is admissible for three reasons:
To prove specific instances of sexual behavior by the alleged victim, if offered to prove that a person other than the accused was the source of physical evidence; to prove specific instances of sexual behavior by the alleged victim with the person accused of the sexual misconduct, if offered by the accused to prove consent or by the prosecution; if the exclusion of the evidence would violate the constitutional rights of the defendant.
Evidence of remedial measures may only be admitted for:
Ownership
Control
Feasibility of Precautionary Measures, if controverted
Impeachment
List the four exceptions to Evidence of Subsequent Remedial Measures being inadmissible to prove guilt.
Another purpose, such as negligence, culpable conduct, product defect, or need for warning.
Describe the general rule of character evidence:
The general rule is that evidence of a person’s character is inadmissible to prove that he has acted in conformity with that character.
In a criminal case, while the prosecution may not initially show the defendant’s bad character traits to make an inference that he is more likely to have committed the crime charged, the accused may introduce evidence of:
Character traits inconsistent with the crime charged (i.e., honesty, peacefulness). However, once the door to character evidence has been opened by the defendant, the prosecution may rebut evidence that has been admitted.
When the accused presents testimony of the victim’s character trait(s), the prosecutor may:
cross-examine the reputation or opinion witness and may present witnesses of his own.
Specific acts may also be admitted to show character if:
character is an essential element of a charge, claim or defense.
A layperson can testify in the form of opinion on matters which are:
rationally based on the perception of the witness, helpful to a clear understanding of his testimony or to the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge.
The proper scope of non-expert opinion includes:
such perceptions as speed and other measurements; physical states such as intoxication or injury; personal emotions of others (fear, sorrow); sensory descriptions (taste, sound, smell); value of one’s own land; and sanity of the testator (where the opinion is given by a subscribing witness of the will.
A layperson may not give:
legal conclusions (i.e., labeling a schizophrenic, or an alcoholic, or testifying that an accident victim fractured his spine). Opinions as to truthfulness are also not allowed.
A witness’s testimony in the form of an opinion or inference as to an ultimate issue to be decided by the trier of fact is not objectionable merely because:
the testimony touches on an ultimate issue. However, ultimate issue is usually never a proper objection.
An expert witness need not testify from personal knowledge, but instead may draw inferences from:
facts or dates perceived by or made known to him at or before the hearing.
An expert may be properly cross-examined as to:
specific instances in his background that bear on his qualification as an expert.
Cross-examination should be limited to:
the subject matter of the direct examination and matters affecting the credibility of the witness. The court may permit inquiry into additional matters. (FRE Only)
Leading questions should not be used on the direct examination of a witness except:
as may be necessary to develop the witness’s testimony (i.e., to jog a witness’s memory). Leading questions are permissible on cross-examination.
At the request of a party or at its discretion, the court shall order witnesses excluded so that they cannot (Invoking The Rule):
hear the testimony of other witnesses
A person formally convicted of a crime may testify, but the opposing party may bring up the witness’s past crimes to:
undermine his credibility
When can a court admit a criminal conviction against a witness?
A conviction for a crime involving dishonesty or false statements against any witness is always admissible as long as the conviction is within 10 years.
A conviction within 10 years for a crime not involving dishonesty or false statements is not admissible if for a misdemeanor. If the conviction is for a felony, it is admissible if the probative value of the conviction on the issue of veracity outweighs the risk of unfair prejudice to a party.
For a conviction older than 10 years, for a crime involving dishonesty or false statements, the court may admit the conviction only if it determines that the probative value substantially outweighs its prejudicial effect.
The court may admit a recent conviction of the criminal defendant for a crime punishable by death or at least one year imprisonment only if:
the impeaching party first shows that the probative value of the conviction outweighs its prejudicial effect.
The court must admit a recent conviction of a witness (other than the accused) for a non-fraud crime punishable by death or at least one year imprisonment unless:
the objecting party shows that the prejudicial effect of the impeachment substantially outweighs the probative value of the evidence.
If more than 10 years has elapsed since the later date of the conviction or the release from confinement, the conviction may only be admitted if:
the court determines that the probative value substantially outweighs its prejudicial effect.
Evidence of bad acts which show fraudulent conduct may be inquired into on cross-examination concerning:
the witness’s character for truthfulness or untruthfulness, but must be done in good faith. Extrinsic evidence of such conduct though cannot be introduced.
A witness’s credibility may be attacked by opinion or reputation evidence bearing on:
the witness’s credibility for untruthfulness.
Opinion or reputation evidence of the witness’s character for truthfulness be introduced, if and only if:
the witness’s credibility for truthfulness is attacked.
List seven (7) ways to impeach a witness:
Prior Inconsistent Statement
Bias, Interest, or Motive to Misrepresent
Sensory Deficiencies
Bad Character for Truthfulness:
Bad Reputation or Opinion about Witness’s Truthfulness
Criminal Convictions
Bad Acts (without conviction) about Witness’s Truthfulness (FRE only)
Contradiction
The party seeking admission of evidence has the burden to establish:
preliminary facts such as competency, qualification of witnesses, unavailability, or privilege by a preponderance of the evidence.
A prior inconsistent statement is admissible only to impeach unless:
it comes within an exception to the hearsay rule or it was given under oath, in which case it is admissible to prove the matter asserted.
In examining a witness concerning his prior statement, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request must be:
shown or disclosed to opposing counsel.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless:
the witness is afforded an opportunity to explain or deny the evidence and the opposing party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.
Unless otherwise provided in the Rules, every person is competent to be a witness except for the following five categories of persons:
a witness who would be incompetent under state law if state law controls;
a witness who lacks personal knowledge, except for an expert witness;
a witness who cannot understand that he must tell the truth;
the trial judge;
a juror.
Present memory refreshed occurs when:
the witness has some knowledge of the purported testimony, but whose memory is incomplete. The witness then testifies to what he remembers without having the refreshing evidence present. The rules regarding hearsay and admissibility of writings are inapplicable.
List the three instances where a Prior Inconsistent Statement is admissible substantively:
When under oath AND during a formal hearing;
As an admission under FRE 801 (d)(2); or
If a Hearsay Exception applies.
Describe the Rule of Completeness.
If one party introduces a writing or recorded statement, or part thereof, the adverse party may require the introduction at that time of any other part or any other writing or recorded statement that ought, in fairness, to be considered contemporaneously with it.
