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evidence - critical pass Flashcards

1
Q

methods of impeachment

A
  1. bias/interest
  2. capacity (sensory deficiencies)
  3. character for untruthfulness (reputation, opinion, specific conduct)
  4. prior criminal conviction
  5. prior inconsistent statement
  6. specific contradiction
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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:

  1. the witness is given an opportunity to explain or deny the statement; and
  2. the adverse party is given an opportunity to examine the witness about the statement
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3
Q

a witnesses credibility may be attacked by

A

any party, including the party calling her

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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

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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.

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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

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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.

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8
Q

examples of sensory deficiencies impeachment

A

bad eyesight/hearing/memory
under influence of drugs/alcohol

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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.

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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)

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11
Q

character for honesty may be pertinent to

A

robbery/theft

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12
Q

character for gentleness may be relevant to

A

assault and robbery

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13
Q

opinion testimony must be…

A

the personal opinion of the person testifying

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14
Q

reputation testimony must be…

A

representative of the community at large (not just what a few friends think of you)

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15
Q

impeachment of prior criminal convictions: less than 10 years, felony, criminal D

A

reverse 403 - admissible if probative value outweighs prejudicial effect

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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

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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)

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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

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19
Q

when does the 10 year period start to run for prior criminal convictions

A

from the later of conviction or release

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20
Q

when can you impeach someone with a misdemeanor?

A

only when it involves dishonesty/false statement

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21
Q

2 types of crimes used for impeachmenet

A

1) felony
2) crimes involving dishonesty/false statement

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22
Q

a conviction cannot be used to impeach a witness if the conviction was subject to a pardon and either:

A
  1. Pardon based on rehabilitation and no subsequent felony conviction, OR
  2. Pardon based on innocence
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23
Q

what is generally NOT admissible for impeachment for prior criminal conviction

A

juvenile convictions

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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)

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25
Q

hearsay declarant and impeachment

A

hearsay declarant can be impeached to the same extent as in court witness (even if not present at trial)

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26
Q

2 situations where to use a prior consistent statement to rehabilitate:

A
  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)
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27
Q

federal rules of evidence do not apply in:

A

1) 1) preliminary fact determinations by judge
2) grand jury proceeding
3) other misc proceedings (sentencing, extradition, bail, probation)

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28
Q

Relevance test

A

Has any tendency to make the existence of any fact of consequence more or less probable with or without the evidence

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29
Q

403 test

A

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

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30
Q

is the list of things in 403 an exhaustive list?

A

yes dont let the examiners tell you otherwise

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31
Q

the 403 test favors

A

admissibility of the evidence

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32
Q

when can prior similar occurrences be admissible:

A

P’s accident history to show something other than propensity

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33
Q

Evidence of prior accidents or injuries under substantially similar circumstances or same defendant can be admissible to prove:

A
  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)
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34
Q

evidence of absence of complaints is admissable to show

A

D’s lack of knowledge of the danger

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35
Q

habit evidence

A

Admissible as circumstance evidence that person/org acted in accordance with habit on occasion

ex. brushing teeth

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36
Q

what to look out for for habit evidence

A

automatic/reflexive = habit evidence

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37
Q

extra litigative conduct: evidence of party’s insurance is inadmissible to prove

A

1) negligence
2) wrongful conduct

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38
Q

extra lit: evidence of insurance is ADMISSIBLE to prove:

A

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.”)

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39
Q

evidence of subsequent remedial measures are not admissible to prove

A

1) negligence
2) culpable conduct,
2) defect in design
4) failure to warn

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40
Q

subsequent remedial measures CAN be admissible to prove:

A

1) ownership or control
2) rebut a claim that precraution was not feasible (needs to be DISPUTED FIRST!!!!)
3) opposing party has destroyed evidence

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41
Q

settlements, offers to settle, and negotiotations are inadmissible to:

A

1) prove validity or amount of claim
2) impeach by prior inconsistent statement or contradiction (but impeachment with bias prejudice)

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42
Q

evidence of settlement is admissible to impeach a witness on the ground of

A

bias

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43
Q

settlement offers and negotiations are only excluded if:

A

there was a disputed claim or some indication that a party was going to make a claim

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44
Q

for settlements and negotiations, the claim must have been in dispute as to either

A

1) liability
2) amount

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45
Q

evidence of what relating to plea discussions is generally inadmissible:

A

1) offers to plead guilty
2) withdrawn guilty pleas
3) no contest pleas
4) statements in plea discussions

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46
Q

an actual guilty plea is generally..

A

admissible as a statement of an opposing party

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47
Q

evidence that a party has paid or offered to pay an injured party’s ____ expenses is inadmissible to prove

A

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

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48
Q

admissions of fact that accompany an offer to pay

A

admissions of fact that accompany an offer to pay med expenses is generally admissible! separate them.

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49
Q

I’ll pay your medical expenses if you drop the case. admissible?

A

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!

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50
Q

methods of proving character

A

1) opinion
2) reputation
3) specific acts

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51
Q

3 ways for criminal D to open the door for character evidence:

A

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

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52
Q

in crim and civil cases, victim of rape’s past behavior is generally inadmissible except:

A

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

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53
Q

character evidence is generally not allowed in civil cases except in:

A

1) defamation
2) negligent entrustment/hiring
3) child custody

All forms reputation/opinion/specific conduct is all alllowed

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54
Q

for character evidence, specific conduct can only come in

A

1) on cross
2) when element of a claim in civil case (defamation, negligent entrustment, etc)

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55
Q

valid non propensity purposes:

A

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

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56
Q

if the prosecution wants to use a non propensity purpose, what needs to happen

A

prosecution needs to give notice. D does not need to ask for it.

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57
Q

D’s similar misconduct in sex-crime cases are admissible for..

A

any relevant purpose (even to show propensity) in civil or crim case involving alleged sexual assault or child molestation

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58
Q

when you see a writing, think of what 3 issues

A

1) authentication
2) BER
3) hearsay

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59
Q

Methods of authentication:

A
  1. opponents admission
    2) eye witness testimony of someone with knowledge
  2. handwriting verifications
  3. expert opinion on handwriting
  4. jury comparison of the handwriting
60
Q

a lay witness can testify to authenticate handwriting if

A

they had prior knowledge of the handwriting

61
Q

ancient documents can be authenticated if

A

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
Q

reply letter authentication doctrine

A

Doc can be authenticated by evidence that it was written in response to a communication sent to the alleged author

63
Q

how to authenticate photos and videos

A

must be identified as a fair and accurate representation of the facts depicted

64
Q

does the creator of the photo or video need to testify to authenticate

A

no

65
Q

for an unattended camera, how to authenticate something that the camera captured

A

Photo/video admissible if camera was properly operating and photo/video came from that camera

66
Q

how to authenticate X-rays/electrocardiograms

A

Must be shown that the process is accurate, machine in working order, and operator was qualified to operate it
(custodial chain)

67
Q

self-authenticating docs

A
  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
Q

how to authenticate oral statements

A

Authentication as to the identity of the speaker is req’d

69
Q

how to authenticate someones voice

A

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
Q

how to authenticate statement made during phone convos

A

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
Q

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)

A

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
Q

exceptions to BER

A

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
Q

What is the completeness doctrine for the BER

A

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
Q

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?

A
  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
Q

how to authenticate tangible objects

A
  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
Q

witness competency req’s

A

1) personal knowledge
2) oath or affirmation to testify truthfully (comply with oath req)

77
Q

insane ppl are competent to testify if

A

competent if understand obligation and has capacity to tell truth

78
Q

who may not testify as a witness

A

presiding judge only

79
Q

jurors are generally not competent to testify about deliberations or matters effecting their vote, but they may testify as to

A

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
Q

dead mans acts - what is it and what cases does it apply to

A

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
Q

leading questions are only allowed

A

on cross, not direct (but exceptions)

82
Q

Leading Q’s permitted on direct when:

A

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
Q

what types of Q’s and answers can be stricken on cross

A
  1. misleading
  2. compound
  3. lack foundation
  4. nonresponsive
84
Q

refreshed recollection (rule)

A

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
Q

adverse party options after refreshed recollection

A

1) Have writing produced
2) cross examine witness about t
3) introduce relevant portions into evidence

86
Q

if the witness refreshed their memory before taking the stand, an adverse party is

A

entitled to the same 3 options only if the court decides that is what justice requires

87
Q

In a criminal case, if the prosecution fails to produce or deliver a writing as ordered for refreshed recollection, the judge must

A

strike the witness’s testimony and if justice requires, declare mistrial

88
Q

recorded recollection only allows

A

the writing to be READ into evidence

89
Q

when can the writing be actually offered into evidence under recorded recollection

A

only if it is offered as an exhibit by adverse party

90
Q

what type of record can be used for recorded recollection?

A

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
Q

lay witness opinion testimony admissible if

A
  1. Rationally based on witness’s perception
  2. Helpful
  3. Not based on specialized knowledge (not scientific, technical, knowledge)
92
Q

a lay witness cannot give an opinion as to whether they/someone else

A

acted as an agent or whether a contract was made (legal conclusions that require specialized knowledge)

93
Q

expert testimony req’s

A
  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
Q

Experts need a proper factual basis to testify, what are the three ways this can be met

A

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
Q

if you want to admit your experts facts and data into evidence, what needs to happen

A

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
Q

remember, the court is the gatekeeper with experts. What are the 4 daubert factors that are considered in determining whether to admit expert testimony?

A

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
Q

learned treatise doc hearsay exception - three steps (admissible if)

A

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
Q

what is a learned treatise

A

periodical, treatise, pamplet

99
Q

expert opinion on ultimate issue is generally admissible except when

A

concerning D’s mental state in criminal case

100
Q

remember that upon request of excluding a witness a witness from the courtroom…..

A

the judge must exclude them.

101
Q

but the judge must NOT exclude, even if requested:

A

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
Q

a court can call their own witnesses and examine the parties witnesses. but, what are the parties entitled to do?

A

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
Q

remember that if impeaching a hearsay declarant with a prior inconsistent statement, what happens?

A

they do not need an opportunity to explain

104
Q

basic def of hearsay

A

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
Q

a statement for hearsay purposes needs to be made by

A

a person! not like what a radar gun said.

106
Q

common purposes that look like hearsay but are not

A

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
Q

test for knowing whether something is being offered for its truth

A

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
Q

hearsay exemptions that apply to testifying witness subject to cross

A

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
Q

statements against party opponent exemptions

A

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
Q

a statement by an employee/agent can cause the employer to be vicariously liable if:

A

(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
Q

remember that for the hearsay exemptions for statements by agents / conspiracy, what needs to be proven

A

1) scope of employment
2) statement made during and in furtherance of conspiracy

112
Q

declarant unavailable exceptions

A

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
Q

Declarant unavailable exceptions:

A

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
Q

remember that the dying declarations exception only applies in what types of cases

A

homicide cases and civil cases

115
Q

always applicable exceptions:

A

1) exciting utterance
2) present sense impression
3) then-existing mental condition
4) statement made for medical diagnosis/treatment
5) reputation concerning character

116
Q

doc hearsay exceptions

A

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
Q

dont forget one last hearsay exception

A

residual - catch all.

118
Q

CC only protects ___ statements

A

testimonial

119
Q

non testimonial vs. testimonial statements for CC

A

To aid in ongoing emergency == non testimonial
To provide info for later prosecution == testimonial

120
Q

New: under the CC, a hearsay statement will not be admitted where:

A

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
Q

what 3 things are testimonial and cannot be admitted unless defendant had an opportunity to cross-examine the author of the report

A

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
Q

hearsay rules and other exclusionary rules of evidence cannot be applied where the application would…

A

violate DP and deprive the accused of their right to fair trial or deny their right to compulsory process

123
Q

federally recognized privileges

A

AC priv
Spousal testimonial privilege
Confidential marital communications privilege
psychotherapist/Social worker
Clergy pentient
Governmental privilege

124
Q

federal courts dont recognize what 3 privileges

A

Physician patient privilege
prof journalist
accountant/client

125
Q

remember that federal courts will apply the privilege law of the state in…

A

diversity cases – so physician patient may be recognized

126
Q

waiver of privilege can be what 3 things

A

Failure to claim priv
Voluntary disclosure by privileged holder
Contractual waiver

127
Q

does an eavesdropper destroy a privilege

A

no

128
Q

elements of AC privilege

A

Confidential communications
Between Attorney and client (and eithers representative)
During professional legal consultation

129
Q

exceptions to AC priv

A

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
Q

where an attorney acts for both parties in a transaction, no privilege can be invoked…

A

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
Q

elements of physician patient privilege

A

1) prof relationship existed
2) info acquired for purposes of diagnosis or treatment, and
3) the info necessary for diagnosis or treatment

132
Q

exceptions to physician patient privilege

A

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
Q

social workers/patient privilege/psychotherapist elements

A
  1. Client intends the communication to be confidential; and
  2. Communication is made to facilitate therapy or social work
134
Q

A person whose spouse is a D in a criminal case cannot be:

A

Called as a witness by the prosecution, or
Compelled to testify against his spouse in a criminal proceeding

spousal testimonial privilege

135
Q

spousal testimonial privilege only applies in

A

crim cases

136
Q

marital communications privilege applies in

A

civil or criminal cases

137
Q

who can invoke the spousal testimonial privilege

A

only the witness spouse (party spouse cannot prevent the witness spouse from testifying)

138
Q

the spousal testimonial privilege can only be claimed..

A

during the marriage but covers info learned before and during the marriage

139
Q

judicial notice

A

courts ability to recognize a fact as true without formal presentation of evidence

140
Q

facts appropriate for judicial notice:

A

1) generally known within trial court’s jdx
2) can be accurately and readily determined from sources that cannot reasonably be questioned

141
Q

effect of judicially noticed facts/laws in civil and criminal cases

A

Civil — jury must take judicially-noticed facts as conclusive
Criminal — jury may take judicially-noticed facts as conclusive, but is not required to

142
Q

judicial notice is only required for ____ facts

A

adjudicative facts - facts related to case

143
Q

what marital privilege survives marriage

A

confidential marital communications (but still only covers statements made during marriage)

144
Q

neither marital privilege applies in these situations:

A

1) joint crime / fraud
2) legal actions between spouses
3) spouse charged with crime against other spouse or either spouses kids

145
Q

which marriage privilege applies in only crim? what about civil and crim?

A

Only crim: spousal testimonial privilege
Civil and crim: confidential marital privilege

Bar (13 decks)

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