evidence - critical pass Flashcards
1
Q
methods of impeachment
A
- bias/interest
- capacity (sensory deficiencies)
- character for untruthfulness (reputation, opinion, specific conduct)
- prior criminal conviction
- prior inconsistent statement
- specific contradiction
2
Q
foundation requirement for prior inconsistent statement
A
extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point:
- the witness is given an opportunity to explain or deny the statement; and
- the adverse party is given an opportunity to examine the witness about the statement
3
Q
a witnesses credibility may be attacked by
A
any party, including the party calling her
4
Q
when does the foundational req for proving a prior extrinsic evidence need to be brought up at trial? essay
A
can be given before or after the introduction of extrinsic evidence under the FRE
5
Q
exceptions to the foundation req (when it is not req’d)
A
opportunity to explain is not required for proving an inconsistent statement by hearsay declarant.
6
Q
foundational req for bias impeachment method
A
Foundation requirement — W must be questioned on cross-exam regarding the facts that show bias or interest so that W has an opportunity to explain or deny
7
Q
what is the sensory deficiencies impeachment method
A
A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts. A witness may also be impeached by showing that they had no knowledge of the facts to which they testified.
8
Q
examples of sensory deficiencies impeachment
A
bad eyesight/hearing/memory
under influence of drugs/alcohol
9
Q
what is specific contradiction impeachment method
A
The cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination.
10
Q
if during cross, the examiner gets the witness to admit that they lied or were mistaken, can extrinsic evidence still come in to prove the contradiction?
A
yes allowed unless the contradiction is collateral (no significant relevance)
11
Q
character for honesty may be pertinent to
A
robbery/theft
12
Q
character for gentleness may be relevant to
A
assault and robbery
13
Q
opinion testimony must be…
A
the personal opinion of the person testifying
14
Q
reputation testimony must be…
A
representative of the community at large (not just what a few friends think of you)
15
Q
impeachment of prior criminal convictions: less than 10 years, felony, criminal D
A
reverse 403 - admissible if probative value outweighs prejudicial effect
16
Q
impeachment of prior criminal convictions: less than 10 years, felony, NOT criminal D
A
regular 403 -admissible unless probative value substantially outweighed by prejudicial effect
17
Q
impeachment of prior conviction: less than 10 years and crime of dishonesty (any crime)
A
admissible and not subject to 403 (coming in)
18
Q
if more than 10 years, how do you know if the evidence is admissible
A
admissible only if the probative value supported by specific facts substantially outweighs prejudicial effect AND
offering party provides notice
19
Q
when does the 10 year period start to run for prior criminal convictions
A
from the later of conviction or release
20
Q
when can you impeach someone with a misdemeanor?
A
only when it involves dishonesty/false statement
21
Q
2 types of crimes used for impeachmenet
A
1) felony
2) crimes involving dishonesty/false statement
22
Q
a conviction cannot be used to impeach a witness if the conviction was subject to a pardon and either:
A
- Pardon based on rehabilitation and no subsequent felony conviction, OR
- Pardon based on innocence
23
Q
what is generally NOT admissible for impeachment for prior criminal conviction
A
juvenile convictions
24
Q
can otherwise inadmissible evidence be used to impeach someone and prove bias?
A
yes like mentioning an arrest to prove bias
(ex. currently waiting on being charged so may be bias to testify favorably)
25
hearsay declarant and impeachment
hearsay declarant can be impeached to the same extent as in court witness (even if not present at trial)
26
2 situations where to use a prior consistent statement to rehabilitate:
1. When witness attacked with charge of lying or exaggerating because of some motive and some statement pre-dates motive
2. When witness impeached on other non character ground (such as inconsistency or faulty memory)
27
federal rules of evidence do not apply in:
1) 1) preliminary fact determinations by judge
2) grand jury proceeding
3) other misc proceedings (sentencing, extradition, bail, probation)
28
Relevance test
Has any tendency to make the existence of any fact of consequence more or less probable with or without the evidence
29
403 test
Judge has discretion to exclude evidence if its probative value is substantially outweighed by:
Risk of unfair prejudice (danger jury will decide case on emotional basis, gory pics/graphic photos)
Confusion of the issues
Misleading the jury
Needlessly presenting cumulative evidence
Waste of time
Undue delay
30
is the list of things in 403 an exhaustive list?
yes dont let the examiners tell you otherwise
31
the 403 test favors
admissibility of the evidence
32
when can prior similar occurrences be admissible:
P's accident history to show something other than propensity
33
Evidence of prior accidents or injuries under substantially similar circumstances or same defendant can be admissible to prove:
1. existence of dangerous condition
2. Dangerous condition was the cause of the present injury; and
3. Notice to D of the dangerous condition (if the other accident occurred before the plaintiff’s accident)
34
evidence of absence of complaints is admissable to show
D's lack of knowledge of the danger
35
habit evidence
Admissible as circumstance evidence that person/org acted in accordance with habit on occasion
ex. brushing teeth
36
what to look out for for habit evidence
automatic/reflexive = habit evidence
37
extra litigative conduct: evidence of party's insurance is inadmissible to prove
1) negligence
2) wrongful conduct
38
extra lit: evidence of insurance is ADMISSIBLE to prove:
1) impeachment
2) ownership/control (if disputed)
3) as part of an admission of liability where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability (“dont worry, my insurance will pay it off.”)
39
evidence of subsequent remedial measures are not admissible to prove
1) negligence
2) culpable conduct,
2) defect in design
4) failure to warn
40
subsequent remedial measures CAN be admissible to prove:
1) ownership or control
2) rebut a claim that precraution was not feasible (needs to be DISPUTED FIRST!!!!)
3) opposing party has destroyed evidence
41
settlements, offers to settle, and negotiotations are inadmissible to:
1) prove validity or amount of claim
2) impeach by prior inconsistent statement or contradiction (but impeachment with bias prejudice)
42
evidence of settlement is admissible to impeach a witness on the ground of
bias
43
settlement offers and negotiations are only excluded if:
there was a disputed claim or some indication that a party was going to make a claim
44
for settlements and negotiations, the claim must have been in dispute as to either
1) liability
2) amount
45
evidence of what relating to plea discussions is generally inadmissible:
1) offers to plead guilty
2) withdrawn guilty pleas
3) no contest pleas
4) statements in plea discussions
46
an actual guilty plea is generally..
admissible as a statement of an opposing party
47
evidence that a party has paid or offered to pay an injured party's ____ expenses is inadmissible to prove
Evidence that a party has paid or offered to pay an injured person’s
medical, hospital, or similar expenses is inadmissible to prove
liability for the injury
48
admissions of fact that accompany an offer to pay
admissions of fact that accompany an offer to pay med expenses is generally admissible! separate them.
49
I'll pay your medical expenses if you drop the case. admissible?
the more restrictive rule for settlement negotiations applies; meaning, any accompanying statements or conduct would be excluded along with the offer.
this is an offer to settle and pay medical expenses!
50
methods of proving character
1) opinion
2) reputation
3) specific acts
51
3 ways for criminal D to open the door for character evidence:
1) D's own pertinent trait. prosecution can offer evidence to rebut
2) victim's pertinent trait, prosecution can rebut with evidence of D and victim's pertinent trait
3) in homicide case, D claims victim was first aggressor, prosecution can put on evidence of victim's peacefulness
52
in crim and civil cases, victim of rape's past behavior is generally inadmissible except:
1) CRIM CASES: specific instances of a victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence.
Also, specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defense to prove consent.
2) CIVIL CASES: when probative value substantially outweighs unfair prejudice (in favor of EXCLUSION of evidence) - reverse 403
53
character evidence is generally not allowed in civil cases except in:
1) defamation
2) negligent entrustment/hiring
3) child custody
All forms reputation/opinion/specific conduct is all alllowed
54
for character evidence, specific conduct can only come in
1) on cross
2) when element of a claim in civil case (defamation, negligent entrustment, etc)
55
valid non propensity purposes:
1) motive
2) opportunity
3) intent
4) absence of mistake
5) lack of accident
6) identity
7) common scheme or plan
MIMIC
Motive
Intent
Mistake (absence of)
Identity
Common scheme or plan
56
if the prosecution wants to use a non propensity purpose, what needs to happen
prosecution needs to give notice. D does not need to ask for it.
57
D's similar misconduct in sex-crime cases are admissible for..
any relevant purpose (even to show propensity) in civil or crim case involving alleged sexual assault or child molestation
58
when you see a writing, think of what 3 issues
1) authentication
2) BER
3) hearsay
59
Methods of authentication:
1. opponents admission
2) eye witness testimony of someone with knowledge
3. handwriting verifications
4. expert opinion on handwriting
5. jury comparison of the handwriting
60
a lay witness can testify to authenticate handwriting if
they had prior knowledge of the handwriting
61
ancient documents can be authenticated if
1) at least 20 years old (prepared before 1/1/98)
2) in non suspicious condition
3) found in place where such a writing is usually kept
62
reply letter authentication doctrine
Doc can be authenticated by evidence that it was written in response to a communication sent to the alleged author
63
how to authenticate photos and videos
must be identified as a fair and accurate representation of the facts depicted
64
does the creator of the photo or video need to testify to authenticate
no
65
for an unattended camera, how to authenticate something that the camera captured
Photo/video admissible if camera was properly operating and photo/video came from that camera
66
how to authenticate X-rays/electrocardiograms
Must be shown that the process is accurate, machine in working order, and operator was qualified to operate it
(custodial chain)
67
self-authenticating docs
1. Domestic public documents with seal
2. Official publications
3. Certified copies of public records or private files on record at public officer
4. Newspaper and periodicals
5. Trade inspirations and logos/labels
6. Acknowledged / notarized docs
7. Commercial paper (checks)
8. Business records and electronically generated records with certification and notice
68
how to authenticate oral statements
Authentication as to the identity of the speaker is req’d
69
how to authenticate someones voice
Voice can be identified by any person who has head the voice at any time (even after litigation has begin and for the sole purpose of testifying)
70
how to authenticate statement made during phone convos
1) Party to call recognized speakers’ voice
2) Speaker had knowledge of certain facts
3) Speaker answered phone number and identified themselves or their residence
4) Speaker who answered business phone talked about business matters relevant to the business
71
if the proponent of the evidence cannot produce the original writing (or an admissible duplicate) they may offer secondary evidence of its contents if (even handwritten evidence)
1) loss or destruction of the OG, unless proponent lost or destroyed the original in Bad faith
2) original cannot be obtained by any available judicial process (usually means in possession of someone in different state - so subpoena wont work)
3) the original is in the possession of an adversary, who, after due notice, fails to produce the OG
72
exceptions to BER
1) Summaries of voluminous records - but proponent must make the OGs or duplicates available for inspection or copying, and court may order the popoent to produce the records
2) Certified copies of public records - testified to as correct is OK too
3) writing is collateral to litigated issue - writing is of minor importance to the matter in controversy
4) opponent testified or gave written admission about contents of writing
73
What is the completeness doctrine for the BER
if a party introduces part of a writing or recorded statement into evidence, an adverse party may introduce any other part or any related statement, that in fairness ought to be considered at the same time and may do so over a hearsay objection
74
Ordinarily, it is for the court to make determinations of fact regarding admissibility of duplicates, copies, and oral testimony as to the BER. However, what questions are left to the jury?
1. Whether the original ever existed;
2. Whether a writing produced at trial is an original; and
3. Whether the evidence offered correctly reflects the contents of
the original
75
how to authenticate tangible objects
1. prove chain in possession that was unbroken
2. if condition is significant, must be shown to be in substantially same condition at trial
76
witness competency req's
1) personal knowledge
2) oath or affirmation to testify truthfully (comply with oath req)
77
insane ppl are competent to testify if
competent if understand obligation and has capacity to tell truth
78
who may not testify as a witness
presiding judge only
79
jurors are generally not competent to testify about deliberations or matters effecting their vote, but they may testify as to
1) extraneous prejudicial info
2) outside influence
3) mistake in verdict form
4) another’s jurors clear statement that they relied on racial stereotypes or animus
80
dead mans acts - what is it and what cases does it apply to
civil cases only in some states
Interested person incompetent to testify against decedent’s estate or successors about any personal transaction or communication with the deceased
81
leading questions are only allowed
on cross, not direct (but exceptions)
82
Leading Q's permitted on direct when:
Preliminary or introductory matters
Witnesses needs help responding (bc of memory, immaturity)
When the witness is hostile, adverse party, or witness affiliated with adverse party (employee)
83
what types of Q's and answers can be stricken on cross
1. misleading
2. compound
3. lack foundation
5. nonresponsive
84
refreshed recollection (rule)
A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not read from the writing while testifying because the writing is not authenticated and not in evidence (and thus, there is no hearsay concern).
85
adverse party options after refreshed recollection
1) Have writing produced
2) cross examine witness about t
3) introduce relevant portions into evidence
86
if the witness refreshed their memory before taking the stand, an adverse party is
entitled to the same 3 options only if the court decides that is what justice requires
87
In a criminal case, if the prosecution fails to produce or deliver a writing as ordered for refreshed recollection, the judge must
strike the witness's testimony and if justice requires, declare mistrial
88
recorded recollection only allows
the writing to be READ into evidence
89
when can the writing be actually offered into evidence under recorded recollection
only if it is offered as an exhibit by adverse party
90
what type of record can be used for recorded recollection?
only a record that meets the foundational req's: ONCE FRESH KNOWLEDGE
1) witness once knew, now cannot remember
2) record made when fresh in witness's mind
3) record accurately reflects witness's knowledge
91
lay witness opinion testimony admissible if
1. Rationally based on witness’s perception
2. Helpful
3. Not based on specialized knowledge (not scientific, technical, knowledge)
92
a lay witness cannot give an opinion as to whether they/someone else
acted as an agent or whether a contract was made (legal conclusions that require specialized knowledge)
93
expert testimony req's
1. Helpful
2. Based on sufficient fact and data
3. Reliable principles and methods
4. Witness qualified by specialized knowledge, skill, experience, training, or education
94
Experts need a proper factual basis to testify, what are the three ways this can be met
1) Facts based on expert’s own observation (expert has personal knowledge by personally examined P in personal injury case - ER doc)
2) Facts made known to expert at trial (spoonfeeding)
3) Facts supplied to experts outside the courtroom that are of that type reasonably relied upon by other experts in the field.
95
if you want to admit your experts facts and data into evidence, what needs to happen
meet a reverse 403 (favoring inadmissibility)
but they can be required to disclose this info on cross. other side can do whatever they want
96
remember, the court is the gatekeeper with experts. What are the 4 daubert factors that are considered in determining whether to admit expert testimony?
1) testing of principle or methodology
2) rate of error
3) Acceptance by other experts in same discipline
4) peer review and publication
TRAP
97
learned treatise doc hearsay exception - three steps (admissible if)
1) established as reliable authority by 1) expert on stand, 2) testimony of another expert, 3) judicial notice
Treatise established as reliable authority
2) called to experts attention on cross or relied upon by expert on direct
3) except read into evidence (not received as exhibit)
98
what is a learned treatise
periodical, treatise, pamplet
99
expert opinion on ultimate issue is generally admissible except when
concerning D's mental state in criminal case
100
remember that upon request of excluding a witness a witness from the courtroom.....
the judge must exclude them.
101
but the judge must NOT exclude, even if requested:
1) party or party’s designated rep
2) person whose presence is essential to claim/defense (experts)
3) person statutorily authorized to be present
102
a court can call their own witnesses and examine the parties witnesses. but, what are the parties entitled to do?
cross a witness called by the court
- object to the court’s examining or calling a witness either at that time or at the next available opportunity when the jury is not present.
103
remember that if impeaching a hearsay declarant with a prior inconsistent statement, what happens?
they do not need an opportunity to explain
104
basic def of hearsay
Hearsay is a statement, other than the one made by declarant, while testifying at current trial or hearing, offered in evidence to prove the truth of the matter asserted
105
a statement for hearsay purposes needs to be made by
a person! not like what a radar gun said.
106
common purposes that look like hearsay but are not
1) verbal acts/legally operative facts (k formation)
2) statements offered to show their effect on the listener or reader (prove notice in a negligence case)
3) statements offered as circumstantial evidence of declarants state of mind - circumstantial evidence that someone is insane is not being offered for its truth.
107
test for knowing whether something is being offered for its truth
If the statement is being offered to prove what the statement is proposing, it is offered for its truth.
*proposition of the statement must perfectly match the matter asserted*
108
hearsay exemptions that apply to testifying witness subject to cross
1)prior sworn inconsistent statement
2) consistent statement offered to rebut a charge that witness is lying, or to rehab after cred was attacked)
3) identification of a person as someone the witness perceived earlier
inconsistent consistent IDs
109
statements against party opponent exemptions
1) feedings someone with their own words
2) statement that a party manifested/adopted - silence
3) statement by an authorized rep
4) statement by agent/employee made within the scope of that agency/employment
5) partners
5) co-conspirators during and infurtherance of the conspiracy
6) privies in title and joint tenants (state court only)
110
a statement by an employee/agent can cause the employer to be vicariously liable if:
(i) it was made while the person was employed by the employer (not before or after the period of employment)
(ii) the statement related to the employment.
111
remember that for the hearsay exemptions for statements by agents / conspiracy, what needs to be proven
1) scope of employment
2) statement made during and in furtherance of conspiracy
112
declarant unavailable exceptions
1) Death or illness
2) Privilege
3) Refusal to testify despite court order
4) Inability to remember subject matter - slumbering
5) Absent and attendance cannot be procured (by process or other means)
Purposefully refusing sleep kills productivity
113
Declarant unavailable exceptions:
1) former testimony
2) statement against interest
3. dying declaration
4. statements of personal or fam history
5. statements offered against party that intentionally caused declarant unavailability
Former deaths influence family intentions
114
remember that the dying declarations exception only applies in what types of cases
homicide cases and civil cases
115
always applicable exceptions:
1) exciting utterance
2) present sense impression
3) then-existing mental condition
4) statement made for medical diagnosis/treatment
5) reputation concerning character
116
doc hearsay exceptions
1) records of regularly conducted activity
2) public records
3) records of vital stats
4) absence of public record
5) judgments
6) recorded recollection
7) learned treatise
8) ancient docs
9) docs affecting property interests
117
dont forget one last hearsay exception
residual - catch all.
118
CC only protects ___ statements
testimonial
119
non testimonial vs. testimonial statements for CC
To aid in ongoing emergency == non testimonial
To provide info for later prosecution == testimonial
120
New: under the CC, a hearsay statement will not be admitted where:
1) statement is being offered against the accused in a criminal case
2) declarant is unavailable
3) statement was "testimonial"
4) accused had no opportunity to cross examine the declarant's testimonial statement prior to trial
121
what 3 things are testimonial and cannot be admitted unless defendant had an opportunity to cross-examine the author of the report
affidavits, certificates, and other written reports that summarize findings of a forensic analysis that have an effect of accusing a targeted individual of crim conduct
122
hearsay rules and other exclusionary rules of evidence cannot be applied where the application would...
violate DP and deprive the accused of their right to fair trial or deny their right to compulsory process
123
federally recognized privileges
AC priv
Spousal testimonial privilege
Confidential marital communications privilege
psychotherapist/Social worker
Clergy pentient
Governmental privilege
124
federal courts dont recognize what 3 privileges
Physician patient privilege
prof journalist
accountant/client
125
remember that federal courts will apply the privilege law of the state in...
diversity cases -- so physician patient may be recognized
126
waiver of privilege can be what 3 things
Failure to claim priv
Voluntary disclosure by privileged holder
Contractual waiver
127
does an eavesdropper destroy a privilege
no
128
elements of AC privilege
Confidential communications
Between Attorney and client (and eithers representative)
During professional legal consultation
129
exceptions to AC priv
1) attorneys services sought to aid in crime or fraud
2) client puts legal services at issue
3) dispute between Attorney and client (malpractice, unpaid fees)
4) parties claiming through same deceased client
130
where an attorney acts for both parties in a transaction, no privilege can be invoked...
in a lawsuit between the parties
but it can be claimed in a suit between either or both of the parties and a third person
131
elements of physician patient privilege
1) prof relationship existed
2) info acquired for purposes of diagnosis or treatment, and
3) the info necessary for diagnosis or treatment
132
exceptions to physician patient privilege
1) patient put physical condition at issue (personal injury
2) assistance sought to aid wrongdoing (crime/tort)
3) dispute between physician and patient
4) patient agreed to waive privilege
5) federal case applying federal law
133
social workers/patient privilege/psychotherapist elements
1. Client intends the communication to be confidential; and
2. Communication is made to facilitate therapy or social work
134
A person whose spouse is a D in a criminal case cannot be:
Called as a witness by the prosecution, or
Compelled to testify against his spouse in a criminal proceeding
spousal testimonial privilege
135
spousal testimonial privilege only applies in
crim cases
136
marital communications privilege applies in
civil or criminal cases
137
who can invoke the spousal testimonial privilege
only the witness spouse (party spouse cannot prevent the witness spouse from testifying)
138
the spousal testimonial privilege can only be claimed..
during the marriage but covers info learned before and during the marriage
139
judicial notice
courts ability to recognize a fact as true without formal presentation of evidence
140
facts appropriate for judicial notice:
1) generally known within trial court's jdx
2) can be accurately and readily determined from sources that cannot reasonably be questioned
141
effect of judicially noticed facts/laws in civil and criminal cases
Civil — jury must take judicially-noticed facts as conclusive
Criminal — jury may take judicially-noticed facts as conclusive, but is not required to
142
judicial notice is only required for ____ facts
adjudicative facts - facts related to case
143
what marital privilege survives marriage
confidential marital communications (but still only covers statements made during marriage)
144
neither marital privilege applies in these situations:
1) joint crime / fraud
2) legal actions between spouses
3) spouse charged with crime against other spouse or either spouses kids
145
which marriage privilege applies in only crim? what about civil and crim?
Only crim: spousal testimonial privilege
Civil and crim: confidential marital privilege
