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Property Midterm > Evidence Final Flashcards > Flashcards

Evidence Final Flashcards

1
Q

When are objections kept out?

A

If they are not made timely at the earliest reasonable opportunity and given underlying reason unless plain error

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2
Q

What is an offer of proof?

A

When a lawyer states the details of the excluded evidence

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3
Q

What is plain error?

A

When the ruling presents a plain error and a substantial right is affected

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4
Q

What preliminary questions do judges decide?

A

Whether a witness is qualified, whether a privilege exists and whether evidence is admissible

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5
Q

What preliminary questions are left for the jury?

A

Whether an eyewitness is credible, whether the relevancy of certain evidence hinges on whether a certain condition occurred

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6
Q

General competency reasons to disqualify a witness

A
  1. Mental capacity
  2. Religious belief or the lack thereof
  3. Criminal convictions
  4. Infancy
  5. Parties of the case
  6. Spouses of parties
  7. Accomplices
  8. Other interested persons
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7
Q

Requirements of competency

A
  1. Oath
  2. Perceived something
  3. Bridge of temporal gap (be able to recall)
  4. Be able to communicate
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8
Q

What is the Dead Man’s Statutes?

A

Prevents a party with an interest in a civil case from testifying about conversations or transactions with a deceased person.

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9
Q

When may a juror testify?

A
  1. Extraneous prejudicial information was improperly brought to the jury’s attention (evidence not subject to cross-examination or the rules of evidence)
  2. There was an outside influence (external pressure or influence on the jury from an outside source such as threats, bribes, or coercion)
  3. A mistake was made in entering the verdict on the verdict form
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10
Q

What is the scope of cross-examination?

A

The subject matter of the direct and matters affecting the witness’s credibility

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11
Q

When should the court allow leading questions?

A
  1. On cross-examination and
  2. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party (hostile witness)
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12
Q

When can you also use leading questions on direct beside on a hostile witness?

A
  1. Preliminary matters
  2. Hostile/ unwilling witnesses
  3. Adverse party
  4. Witness identified with an adverse party
  5. Forgetful witnesses or frightened witnesses
  6. Child witnesses
  7. Potentially biased parties
  8. Adults with communication problems
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13
Q

When can you not exclude a witness?

A
  1. A party who is a natural person
  2. An officer/employee of a party that is not a natural person, after being designated as the party’s representative by its attorney (corporations)
  3. A person whose presence a party shows to be essential to presenting the party’s claim or defense (FBI agent/investigator)
  4. A person authorized by statute to be present (Victims)
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14
Q

What are the types of judicial notice?

A
  1. Adjudicative facts (who, what, when, where of the case) (if reasonable dispute -> no judicial notice)
  2. Legislative facts (relevant to legal reasoning) (truths that don’t change from case to case) (judge decision)
  3. Basic facts (non-evidence facts needed to understand and evaluate adjudicative facts)
  4. Law
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15
Q

Can you take judicial notice for the first time during appeal?

A

Yes, if it’s NOT an adjudicative fact. If it’s a legislative fact or a fact that is at reasonable dispute if not an adjudicative fact.

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16
Q

What is the burden of production?

A

When a party must meet this certain burden by providing sufficient evidence to create a fact question so that the jury may determine this fact question (must fill the unicorn box that sits by the judge)

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17
Q

What is the burden of persuasion?

A

When you have to persuade the jury based on the size of the box (preponderance of evidence (small), clear and convincing evidence (medium), and beyond a reasonable doubt (large))

In criminal cases burden on the prosecution
In civil case, judge decides who has the burden

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18
Q

What is a presumption?

A

Basic fact –> Presumption (the person benefitting from the basic fact has the burden of persuasion and going forward (production))

NOTE: Criminal cases will never allow presumptions for an element of the crime.

In civil cases only, if a presumption is against you, then you now have the burden of going forward (the burden of persuasion does not shift)

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19
Q

Ways to attack a presumption

A
  1. Attack evidence in the basic fact
  2. Attack the presumed fact
  3. Both
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20
Q

Bursting Bubble v. Morgan presumption views

A

Morgan: Shifts both the burden of production and the burden of persuasion to the opposing party. The presumption remains until the party rebutting it convinces the trier of fact that it should not apply (would have to prove the person is still alive, not just some evidence of their being alive) (objection only overcome if opposing party persuades the judge or jury)
Bursting Bubble: Only shifts the burden of production. Once that opposing party produces any competent evidence that contradicts the presumption, the presumption “bursts” and disappears entirely from the case.

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21
Q

What is the relevance flow chart?

A

Is it relevant –> Is it excluded by prejudice > probative value

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22
Q

When is evidence relevant?

A

If:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence and
(b) the fact is of value in determining the action

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23
Q

The trial judge has discretion to exclude evidence if the probative value is substantially outweighed by:

A
  1. Unfair prejudice
  2. Confusion as to issue
  3. Misleading jury
  4. Undue delay
  5. Needless cumulative evidence
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24
Q

What must you consider when there is a character trait evidence issue:

A
  1. The method used to prove the character’s trait
  2. The purpose why the character evidence is offered
  3. The type of case (criminal v. civil)
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25
Q

What methods for proving character can be used if trying to prove an essential element (character is an element of the crime)?

A

You can use all 3 in both civil and criminal cases (in criminal though, character generally is never an essential element, unlike in civil cases such as child custody disputes)

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26
Q

What is general propensity?

A

Good therefore good or bad therefore bad

27
Q

What character evidence can the prosecution use?

A

The prosecutor can only rebut the character evidence (the door has to be swung open)

However, if the defendant calls a witness to attack the character of the victim, then the prosecutor can attack the character of the defendant

28
Q

What is the character evidence homicide exception?

A

If the defendant puts into evidence that the victim was the 1st aggressor (self-defense), the prosecution can rebut such evidence with character evidence that the victim was peaceful (Opinion or reputation)

29
Q

Character or habit analysis flowchart

A

Look at notes

30
Q

What is a habit?

A

A regular response to a repeated specific situation (includes routine business practices)

Freely admitted

31
Q

The 9 categories of impeachment

A
  1. Perception/ Personal Knowledge (non-collateral)
  2. Memory (non-collateral)
  3. Mental capacity (non-collateral)
  4. Bias, prejudice, interest, and corruption (non-collateral)
  5. Prior criminal convictions (non-collateral)
  6. Prior non-conviction acts bearing on truthful/untruthfulness (collateral)
  7. Prior inconsistent statements (could be collateral or non-collateral if a significant part of the case)
  8. Opinion and/or reputation evidence of character (collateral)
  9. Contradiction (non-collateral)
32
Q

Collateral v. non-collateral evidence

A

Collateral: Stuck with the answer
Non-collateral: Can be proved up and has important independent significance

33
Q

When can prior non-conviction acts be used?

A
  1. Triat court has exercised its discretion and allows such evidence
  2. Used on cross-examination
  3. Concerns character of truthfulness or untruthfulness
  4. Good faith basis to ask the question exists
34
Q

Impeachment by prior criminal convictions flowchart

A

Look at notes

35
Q

How do you repair a witness’s credibility?

A
  1. Explanation by impeached witness
  2. Prior consistent statements
  3. Character evidence of truthfulness (cannot be used unless sufficiently attacked and the door is open) (Can use OR to prove untruthfulness because put at issue when taking stand)
36
Q

When can you use character evidence of truthfulness?

A

Not until after the witness’ truthfulness has first been attacked

37
Q

When does the best evidence rule apply?

A
  1. Applies to writings, recordings, and photographs
  2. Applies if you are attempting to prove the content of the writing, recording, or photograph
38
Q

When is a duplicate allowed under the best evidence rule?

A

It is admissible unless a genuine question is raised about the original authenticity or the circumstances make it unfair to admit the duplicate

39
Q

Exceptions where original documents do not need to be produced:

A
  1. Original lost or destroyed
  2. Original not obtainable
  3. Original in possession of opponent
  4. Collateral matters
40
Q

Can you use summaries under the best evidence doctrine?

A

Yes but if the original is requested you must disclose it

41
Q

Best evidence doctrine flowchart

A

a. Is the rule implicated?
I. Only implicated if trying to prove the content in a writing, recording, or photo
II. Not about if content is probative.

b. If trying to prove content, then implicates the rule
I. Normally a photocopy is admittable unless called into question
II. Right to inspect and see originals

c. Other exceptions
I. Lost
II. Destroyed
III. Not at own fault
IV. Admission of writing by other side
V. Can put summaries and charts of ample material but need to let other side see documents.

42
Q

How is tangible evidence proved for authenticity?

A
  1. Witness testimony, based upon identifying characteristics of the tangible item, or
  2. Chain of custody evidence

NOTE: Need testimony of the person who discovered the evidence, though some other people’s testimonies are not as important (original linkage usually always required)

43
Q

What are some examples of evidence that satisfies the tangible evidence foundation requirement?

A
  1. Testimony of a witness with knowledge
  2. Non-expert opinion about handwriting
  3. Comparison by an expert witness for the trier of fact
  4. Distinctive characteristics and the like (or writing and such, such as using exclamation points and slang)
  5. Opinion about a voice
  6. Evidence about a telephone conversation (need to identify the voice besides just them saying their name)
  7. Evidence about public records
  8. Evidence about ancient documents or data compilations
  9. Evidence about a process or system
  10. Methods provided by a statute or rule
44
Q

What is hearsay?

A

A statement (an assertion) offered for the truth of the matter asserted not otherwise excluded under 801(d)

45
Q

Statements not offered for the truth of the matter asserted that are not hearsay:

A
  1. Impeachment
  2. Effect on the listener (reaction or reasonableness of someone)
  3. Independent legal significance (contracts, etc.)
  4. Verbal objects or markers
  5. State of mind (I am the bishop of Guam! can be used to show craziness)
  6. Evidence of memory, knowledge, or belief
46
Q

What are the requirements for circumstantial evidence of memory, knowledge, or belief?

A
  1. Need independent evidence of unique or unusual facts
  2. Statment made by out of court declarant describing the same event, and must be similar to this unique or unusual facts
  3. Circumstances suggest that the declarant would not have known such facts unless he/she experienced the facts
47
Q

Can lies be hearsay?

A

No, because how can you offer truth of the matter asserted if not true

48
Q

What two things are not considered hearsay?

A
  1. Declarant prior statements
  2. Opposing party’s statements
49
Q

FRE requirements for “not hearsay” for declarant’s prior statements

A
  1. Must be cross-examinable
  2. Must be inconsistent with present testimony
  3. Must have been given under oath at trial, hearing, or other proceedings or in a deposition
50
Q

Requirements for “not hearsay” for a statement offered to rebut fabrication or improper motive:

A
  1. Declarant testifies and is subject to cross
  2. Statment is consistent with the current testimony
  3. Tome decions makes clear that to fit within this rule, the statement must be made before the alleged fabrication came into existence

A consistent, out-of-court statement made by a witness is admissible to rebut a charge of a fabrication or improper motive, but only if made before the motive to fabricate arose (and witness open to cross-examination)

51
Q

Step-by-Step Hearsay Analysis:

A
  1. Determine if Evidence Meets the Definition of Hearsay (Rule 801(c)):
    Does the evidence involve:
    Statement (oral, written, or assertive conduct)?
    Out-of-court statement?
    Offered for the truth of the matter asserted?
  2. If the Evidence Does NOT Meet the Definition of Hearsay:
    It is not hearsay and may be used for non-hearsay purposes, subject to other exclusions. Examples:
    Evidence not offered for the truth of the matter asserted.
    Non-assertive behavior used to prove a fact is not hearsay.
  3. If the Evidence Meets the Definition of Hearsay (Rule 801(c)):
    Check if it qualifies as non-hearsay under Rule 801(d).
  4. Non-Hearsay Under Rule 801(d):
    The evidence may be used for substantive purposes if it is:
    An inconsistent statement under 801(d)(1)(A).
    A consistent statement under 801(d)(1)(B).
    An identification under 801(d)(1)(C).
    An admission by a party-opponent under 801(d)(2).
  5. If the Evidence is Hearsay Under Rule 801(c) and NOT Non-Hearsay Under Rule 801(d):
    It is excluded under Rule 802, unless a hearsay exception applies.
  6. Check for Hearsay Exceptions:
    Common exceptions include:
    Rule 803: Exceptions regardless of declarant’s availability.
    Rule 804: Exceptions requiring the declarant to be unavailable.
    Rule 807: Residual exception.
52
Q

What are the hearsay exceptions?

A
  1. Present sense impression (any event or condition, statement used to describe or explain the event, made while perceiving or immediately after)
  2. Excited utterances (startling event or condition, statement related to the startling event, and made while the declarant is under the stress of excitement caused by the event)
  3. State of mind (Current intent of the declarant to act as evidence that the declarant acted upon that intent) (A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)) (Used to show current or future conduct NOT PAST unless will)
  4. Statements made for medical treatment (statement must be made for medical treatment or diagnostics, and must describe medical history (past or present))
  5. Recorded recollection (existence of memo or record that concerns a matter about which the witness once had knowledge, that correctly reflects such knowledge, that the witness made or adopted or recorded while fresh in their memory, and the witness has insufficient recollection to enable the witness to testify fully and accurately)
  6. Business records (regularly conducted business activity, regular practice to keep the records, made at or near the time of the event, and the record is made by someone with personal knowledge or someone passed that knowledge along)
  7. Public Records (needs to set out the office activities, a matter observed while under a legal duty to report, or factual findings from a legally authorized investigation, AND the opponent does not show that the source of information indicates a lack of trustworthiness)
  8. Ancient documents
  9. Statements in learned treatises, periodicals, or pamphlets (brought to attention or relied on by expert witness on direct and the publication is established as a reliable authority)
53
Q

What are the criteria for being unavailable as a witness?

A
  1. Privilege applies
  2. The witness refuses to testify
  3. The witness doesn’t remember the subject matter
  4. The witness cannot be present (death or severe illness)
  5. The witness is absent from the trial, and the proponent has not been able to procure the witness

For (1)-(3), the witness may still have to testify regarding other subject matter

54
Q

Exceptions for unavailability of witness

A
  1. Former testimony (witness is unavailable at trial, former testimony from prior hearing, trial, deposition, etc., and opposing party had the opportunity and similar motive to cross-examine the declarant) (ACTUAL cross is not required)
  2. Statements under the belief of imminent death (can only be used in civil or homicide cases)
  3. Statements against interest (statement by a witness that is unavailable, who speaks against the declarant’s interest, and must be within the declarant’s personal knowledge)
  4. Statements of personal or family history
  5. Statements offered against a party that wrongfully caused the declarant’s unavailability
55
Q

What is the residual exception for hearsay?

A

5 requirements that statements:
1. Make sense and are trustworthy
2. Material
3. More probative than any other evidence through reasonable efforts
4. Best serve the purpose of these rules and justice
5. Notice of statement

56
Q

Constitutional Issue flowchart

A

XVI. Hearsay Flow for 6th Amendment
a. Is it hearsay? [801(c)]
i. Statement made out of court
1. Oral, written, or assertive conduct
ii. Made out of court
iii. Offered for the Truth of matter asserted
iv. But not hearsay under 801(d)? [not typically a Crawford problem]
1. Declarant-witness’s prior statements
a. Prior inconsistent statements
b. Prior consistent statements
c. Prior identifications
2. An opposing party’s statement

b. Is it hearsay subject to exception?
i. 803[testimonial here a lot]
1. Probably unlike the business record issue (regular, regular, at personal knowledge)
ii. 804
iii. 807

c. Is a criminal case?
i. Yes – worry about defendant
ii. No – journey ends

d. Is hearsay being used against criminal defendant
i. Prosecutor ends – worries. Go to next question
ii. Criminal defendant uses – journey ends

e. Is it testimonial? [declarant acting as a witness]
i. Yes – then can use statement if satisfy the 6th amendment
1. If the statement is testimonial, you can fix the problem by satisfying the confrontation
a. Putting the witness on the stand
b. Cross exam
c. By way of stipulation
d. Is it a dying declaration? Carved out
e. If you had intent to silence – you waive ability to confront
ii. No - don’t worry about 6th amendment problem

57
Q

What are the two main questions to ask for constitutional issues?

A

a. (1) Is this a criminal case? 6th Amendment applies to criminal cases.

b. (2) If yes, is hearsay being used against a criminal defendant?
i. If no -> 6th Amendment does not apply
ii. If yes -> then we need to see if it’s really triggered the Sixth Amendment
1. If triggered we need to determine if it can be solved

c. If the answer to both is yes, then you must worry about the 6th amendment

58
Q

What is considered testimonial?

A
  1. Gathering information to use at trial
  2. Statement is used to further legal proceedings
  3. Statements that you would reasonably expect to be used by the prosecution
  4. Intention of the declarant
  5. Intention of the person receiving the statement
59
Q

Who can be an expert witness?

A

A person with suitable training or education can be an expert even if he is not a specialist or not renowned, and even if he lacks a certification or expertise

60
Q

What must the expert witness do?

A
  1. Help the trier of fact
  2. Be relevant
  3. Be reliable
61
Q

What are the Daubert challenges to decide whether expert testimony comes in?

A
  1. General Standard for Expert Testimony:
    Expert testimony is admissible if:
    The expert is qualified.
    The testimony will assist the jury in understanding evidence or determining facts.
  2. Scientific Knowledge Requirements:
    The court must determine if the expert’s reasoning is:
    Scientifically valid, and
    Applicable to the facts of the case (Rule 104(a)).
  3. Core Requirements:
    The scientific evidence must rest on a reliable foundation.
    The evidence must be relevant (helpful to the jury) and applied reliably to the facts of the case.
    The evidence is subject to scrutiny under Rules 403 (balancing) and 703 (reasonable reliance by an expert witness and balancing if not).
  4. Factors for Assessing Reliability:
    Testability: Can the theory or technique be tested or objectively challenged?
    Peer Review: Has the theory or technique been subject to peer review and publication?
    Error Rate: Is there a known or potential error rate for the theory or technique?
    General Acceptance: Has the theory or technique received general acceptance in the relevant field? (Derived from the Frye test, now just one factor.)
    Independence from Litigation: Does the testimony naturally arise from the expert’s independent research, or was it created solely for the litigation?
    Foundation of Conclusion: Is the expert’s conclusion supported by justified reasoning, not speculation?
    Consideration of Alternatives: Has the expert accounted for alternative explanations?
    Professional Care: Is the testimony prepared with the same care the expert would use in non-litigation professional work?
    Field Reliability: Does the expert’s field typically produce reliable results for this type of opinion?
  5. Key Principle:
    No single factor is dispositive. The court must consider all relevant factors collectively.
62
Q

Duty of confidentiality v. attorney-client privilege

A

Confidentiality: Anything not generally known or the client would not want others to know
Attorney-Client: Communication by client seeking legal advice and made in confidence (doesn’t apply to facts)

63
Q

What are the two types of spousal privilege?

A
  1. Privilege of spousal testimony (applies ONLY in criminal cases; witness spouse holds the testimonial privilege)
  2. Spousal communication confidence privilege: Applies in both types of cases and must be married at the time of the communication)

Property Midterm (3 decks)

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