Evidence - Barbri Flashcards
Is a party allowed to attack the credibility of a witness using evidence of a prior conviction?
Yes.
When is evidence of a conviction permissible?
If the conviction is within the 10-year limit and for a crime involving dishonesty or false statement, it is permissible to use evidence of the conviction to impeach the witness as a matter of right.
When may character evidence be used and for what purpose (substantive v. impeachment)?
Character evidence may be offered as substantive, NOT impeachment evidence to prove:
- Character (only where it is the ultimate issue in the case) [RARE];
- As circumstantial evidence of how a person probably acted.
What are the means of proving character?
- Evidence of Specific Acts as demonstrating character;
- Opinion Testimony; and
- Testimony as to a person’s general reputation in the community
Is character evidence generally admissible/not admissible in civil cases?
Evidence of character to prove the conduct of a person in the litigated event is generally NOT admissible in a civil case.
What is the exception for using character evidence in a civil case?
When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action (i.e. directly in issue)[very rare]
FRE 406: Habit evidence
Evidence of a person’s habit may be admitted to prove that on a particular occasion, the person acted in accordance with the habit.
What is “habit”?
One’s regular response to a specific set of circumstances.
- more specific and particularized than character.
Can the prosecution initiate evidence of the bad character of the D?
No.
May the accused in a criminal case introduce evidence of her good character?
Yes, to show her innocence of the alleged crime.
How can the defendant prove character in a criminal case?
Reputation and Personal Opinion Testimony (NOT specific acts of conduct)
After the D brings up evidence of good character in a criminal case, what may the P do?
- Test the character witness by X-exam regarding the basis for his opinion or knowledge
- Call another witness as to the defendant’s bad character by reputation or opinion
What can the prosecution do once D brings up the bad character of the victim?
P has the choice of:
- Bringing in evidence of the victim’s good character for the same trait, or
- the defendant’s bad character for the same trait
FRE 302: Erie doctrine
This rule follows the Erie doctrine requiring the application of substantive state law, and provides that application of state law is appropriate ONLY when the presumption operates on a substantive element of a claim or defense (i.e. prima facie case-→substantive in nature)
Hearsay exception: statements of present state of mind
Declarations of existing state of mind are admissible as circumstantial evidence to show subsequent acts of the declarant in conformity with that intent.
When are leading questions allowed on direct examination?
Allowed in the case of a hostile witness.
Is a misdemeanor conviction hearsay?
YES! It is not admissible under any exception.
Is a prior inconsistent statement admissible to impeach a witness?
Yes. Where the witness is subject to cross-examination and the statement was made under penalty of perjury, it is nonhearsay and may be admissible as substantive evidence of the facts asserted
Do the Federal Rules permit inquiry on cross-examination of a witness into a specific instance of that witness’s conduct that is probative of the witness’s character for truthfulness?
YES.
Are communications between an attorney and client, made during professional consultation, privileged from disclosure?
Yes.
Would a business report prepared as a communication from client to attorney be privileged?
Yes.