Evidence and Criminal Procedure Flashcards
Test your knowledge of the laws regulating Evidence
What are the 6 conditions that would cause evidence to be excluded according to FRCP Rule 403(b) for their negative effects on a jury?
- Unfair Prejudice
- Confuse the Issue
- Mislead the Jury
- Cause Undue Delay
- Waste Time
- Needlessly Cumulative
What are the 5 non-character purposes for introducing evidence of past wrongdoing?
- Establishing Motive
- Establishing Intent
- Proving Mistake (or lack thereof)
- Establishing Identity
- Establishing the existence of a Common plan or scheme
What are the 4 non-character methods of impeaching a witness?
- Prior Inconsistent Statements
- Sensory Deficiencies
- Bias
- Contradiction
What are the two characteristics that all evidence must have in order to be considered “Relevant”
It must be:
(1) Material (of consequence to the case at issue)
(2) Probative (have any tendency to make the proposition it supports more or less likely)
For what purposes may previous similar accidents or occurrences (involving the same defendant but not the present plaintiff) be admitted as evidence?
(1) to prove the existence of a dangerous condition
(2) to show that the dangerous condition was the cause of the present injury
(3) that the defendant had notice of the dangerous condition
For what purposes may evidence of subsequent remedial measures be admitted as evidence?
(1) to prove ownership or control (if disputed)
(2) to rebut a claim that precaution was not feasible
(3) to prove that the opposing party has destroyed evidence
What are the three generally permissive methods of proving Character?
(1) Evidence of specific acts
(2) Opinion testimony of a witness who knows the person
(3) Testimony as to the person’s general reputation in the community
When a criminal defendant has ‘opened the door’ by using character evidence to support their defense, what are the Prosecution’s options to attack this defense?
(1) Cross examine the witness, and test their knowledge of previous bad acts of the defendant (to show if they are knowledgeable)
(2) Call their own character witnesses to provide either reputation or opinion testimony regarding the Defendant
If a criminal defendant has introduced evidence of the victim’s bad character, what are the Prosecution’s options to attack this defense?
Reputation or opinion evidence of:
-Victim’s good character regarding the attacked trait
-Defendant’s bad character regarding the attacked trait
What are the methods in which handwriting can be authenticated?
(1) Opinion of lay witness who is familiar with the alleged writer’s hand in the course of normal affairs
(2) Expert’s opinion who can compare it to a writing sample
(3) Jury’s opinion when comparing it to a writing sample
What must be proven to have a document authenticated as an ‘ancient document’
(1) must be 20 years old when offered into evidence
(2) must not be in suspicious condition
(3) must be found in a place where one would expect to find such a document
List the various types of self-authenticating documents:
- Official domestic or foreign documents bearing a seal
- Official publications
- Certified copies of public or private records on file in a public office
- Newspapers and periodicals
- Trade inscriptions and labels
- Notarized documents
- Commercial papers
- Business records: electronically generated, or existing on a database (if certified and the opposing party noticed)
When does the Best Evidence Rule apply?
(1) where the writing is a legally operative or dispositive instrument
(2) Where the knowledge of a witness concerning a fact results from having it read into writing
List the valid excuses for non-production of an original as evidence (Best Evidence rule)
(1) Loss or destruction of the original (must be good faith)
(2) Original cannot be obtained by judicial process (jurisdiction issues)
(3) In the possession of an adversary who refuses to produce it when noticed
Which questions of preliminary fact regarding the admissibility of duplicates under the Best Evidence Rule are reserved for the jury?
(1) whether the original ever existed
(2) Whether a writing produced at trial is an original
(3) Whether the evidence offered correctly reflects the content of the original
What are the two methods of authenticating Real Evidence?
(1) Testimony of a witness that they recognize the object as what it claims to be
(2) Evidence of a substantially unbroken chain of possession
What are the two fundamental requirements for a witness to be considered competent to testify?
(1) Evidence of personal knowledge of the matter they will testify about
(2) Oath of affirmation to testify truthfully
What are the matters to which a juror may properly testify to during an inquest regarding the validity of a verdict?
(1) Whether any extraneous prejudicial information was presented to the jury
(2) Whether any outside influence was brought to bear on any juror
(3) Whether there is a mistake on the verdict form
(4) Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant
In which situations will the court generally allow leading questions on direct examination?
(1) To elicit preliminary or introductory matters
(2) When the witness needs help (loss of memory, immaturity, or physical/mental weakness)
(3) When the witness is hostile, an adverse party, or affiliated with an adverse party
What are the objectionable forms of questioning
(1) misleading
(2) compound
(3) argumentative
(4) conclusory
(5) cumulative
(6) unduly harassing or embarrassing
(7) call for a narrative answer
(8) assume facts not in evidence
What is required to ‘lay the foundation’ for a witness to read a record into evidence?
(1) insufficient recollection to testify fully and accurately (even after refreshing)
(2) personal knowledge of the facts in the record when made
(3) the record was made by witness, directly or indirectly
(4) record was made when the matter was fresh in their mind
(5) witness vouches for the accuracy of the record
List the situations in which the opinion of a lay witness is admissible
(1) general appearance or condition of a person
(2) a person’s emotional state
(3) matters involving sense recognition
(4) Voice or handwriting identification
(5) the speed of a moving object
(6) Value of the witness’s own services or property
(7) rational or irrational nature of another’s conduct
(8) whether someone was drunk
What must be established to allow opinion testimony by an expert witness?
(1) The matter in question would be assisted by specialized knowledge
(2) opinion is based on sufficient facts or data
(3) the opinion is the product of reliable principals and methods
(4) the opinion reflects a reliable application of the principles and methods to the facts of the case
What must a witness possess in order to be considered an expert?
(1) possess special knowledge, skill, experience, and training
- OR -
(2) education
What are the proper factual bases on which an expert may support their opinion?
(1) facts based on their own personal observation
(2) Facts made known to the expert at trial
(3) Facts not known personally but reasonably relied upon by other experts in the field.
List the 4 Daubert factors curts use to determine the reliability of expert testimony
T.R.A.P.
(T)esting of principle or methodology
(R)ate of error
(A)cceptance by experts in the same discipline
(P)eer review and publication
What is required for a document to be considered a ‘learned treatise’ for the sake of being used during expert testimony?
(1) must be established as a reliable authority by the testimony of the expert on the stand, by another expert, or judicial notice
(2) must be used in the context of expert testimony
(3) must be read into evidence, but cannot be submitted as an exhibit
Upon a party’s request, a trial judge must order witnesses excluded from the courtroom, EXCEPT
(1) either party, if they are a natural person
(2) one designated officer/employee of a party that is not a natural person
(3) anyone whose presence is essential to the presentation of a party’s claim or defense
(4) anyone statutorily authorized to be present
What must be established before extrinsic evidence may be used to prove a prior inconsistent statement? What are the exceptions to this rule?
(1) witness must be given the opportunity to explain or deny the statement
(2) the adverse party must be given an opportunity to examine the witness about the statment
UNLESS
(3) the prior inconsistent statement was made by the opposing party
(4) the statement was made by a hearsay declarant
(5) where justice requires (witness unavailable when inconsistent statement is discovered)
Under which circumstance is hearsay by a testifying witness not considered hearsay
(1) prior statement is one of identification
(2) an inconsistent sworn statement from a prior proceeding
(3) a prior consistent statement offered to rebut a charge of dishonesty or hyperbole due to motive, and the statement was made before the motive arose, or rehabilitate against a claim of faulty memory
What are the valid grounds under which a witness will be considered ‘unavailable’
(1) Death or physical/mental illness
(2) privilege
(3) refusal to testify despite a court order
(4) lack of memory
(5) absent and the proponent is unable to procure their attendance or testimony through reasonable means.
What must be established for former testimony to be admissible in lieu of live testimony
(1) a sworn statement that was made at the present or a previous legal action
(2) the party against whom it is now being offered (or in civil a predecessor in interest) had an opportunity and similar motive to direct, cross, or redirect examine the declarant
Even if hearsay falls within an exception, it will be excluded for violation of the Confrontation clause of the Constitution where:
(1) when offered against a criminal defendant
(2) the declarant is unavailable
(3) the statement was testimonial in nature
(4) the accused has no opportunity to cross-examine the declarant’s statement prior to trial
What types of statements or articles are “testimonial” in nature
- Sworn Testimony
- Statements to Law Enforcement
- Affidavits or written reports of forensic analysis
When is a declarant’s unavailability to testify relevant to the admission of hearsay (when do we let it in anyway)?
(i) The former testimony of the declarant
(ii) a statement against interest,
(iii) a dying declaration,
(iv) a statement of personal or family history, or;
(v) a statement offered against a party procuring the declarant’s unavailability.
State the Automobile Exception to the warrant requirement:
Law Enforcement may search a vehicle without a warrant pursuant to an arrest, if:
(i) the arrestee is unsecured and still may gain access to the interior of the automobile, or
(ii) the police reasonably believe that the automobile contains evidence of the crime for which the occupant was arrested.
