Evidence Final Outline

Question 1

What do the the FRE not apply to?

Answer 1

The court’s determination or preliminary questions of fact governing admissibility; grandy jury proceedings; and criminal proceedings for search/arrest warrants, extraditions, preliminary proceedings, bail, sentencing, probation hearings

Question 2

How is a evidence ruling challenged?

Answer 2

Objection if the evidence is admitted
Offer of proof if the evidence is excluded

Question 3

What is plain error?

Answer 3

An error is obvious to the court when it affects a substantial right and is ground to reversal even without a challenge.

Question 4

What is the completeness rule?

Answer 4

When evidence is only partially introduced, an adverse party may compel introduction of an omitted portion to help explain the admitted portion.

Question 5

Judicial Notice

Answer 5

The court’s acceptance of a fact as true without requiring formal proof

Adjudicative facts (facts heard by the jury) can be judicially notice when they are not subject to reasonable dispute because:
1) they are generally known within the community, or
2) they can be accurately and readily determined from reliable sources

Question 6

How is the jury instructed about judicially noticed facts?

Answer 6

In civil cases they are instructed to accept the noticed fact as conclusive

In criminal cases the jury is instructed that it may or may not accept the judicially noticed facts as conclusive

Question 7

When are leading questions allowed on direct examination?

Answer 7

When used to develop testimony (background info), when the witness is hostile, or when the witness struggles to communicate (could be a very young or old witness)

Question 8

Which witnesses are not excluded from the court room?

Answer 8

Natural persons who are parties

Individuals designated by lawyer to represent non-natural person parties

Persons essential to a parties presentation of the case

Persons permitted by statute (i.e. victims)

Question 9

Burden of proof

Answer 9

Production - Must produce legally sufficient evidence for each element of a claim such that a reasonable trier of fact could infer the fact has been proven (prima facie)

Persuasion
Civil: Preponderance of the evidence; sometimes clear and convincing

Criminal: Beyond a reasonable doubt

Question 10

Presumptions

Answer 10

Rebuttable - shifts the burden of production to the opposing part but if they “burst the bubble” then there is no longer a preclusive effect and jury may or may not accept the presumption. If bubble isn’t burst in a civil case the jury must accept the presumption

Conclusive: Irrebuttable presumption that can’t be challenged

Question 11

What presumption is created by the destruction of evidence?

Answer 11

Creates a presumption that the evidence is unfavorable if:
1. It was destroyed intentionally
2. It is relevant
3. the alleged victim acted with due diligence regarding the destroyed evidence

Question 12

Relevance

Answer 12

Generally all relevant evidence is admissible unless excluded by rule, statute, or the constitution.

Evidence is relative if it tends to make a fact more or less likely than it would be without the evidence (probative) and the fact is one of consequence in determining the action (material)

Question 13

Rule 403

Answer 13

Relevant evidence is excluded if the probative value is substantially outweighed by unfair prejudice, (delay/wasting time, confusion the issue, misleading the jury, or the needless presentation of cumulative evidence)

Question 14

Direct/circumstantial evidence

Answer 14

Direct evidence is identical to the factual proposition it is offered to prove

Circumstantial evidence is indirect proof of a factual proposition through inference from collateral facts.

Question 15

Character evidence in civil cases

Answer 15

Generally inadmissible unless character is an essential element of a claim or defense (defamation, negligent hiring, child custody)

Question 16

Character evidence in criminal cases

Answer 16

Prosecutor is not permitted to introduce D’s bad character to prove D has propensity to commit crimes

D is permitted to introduce evidence of his good character or a victim’s bad character so long as it is pertinent to the crime charged/defense, must be by reputation or opinion

Once D “opens the door” the prosecutor can rebut and show D’s bad character or the victim’s good character. If D shows character of victim prosecutor can rebut buying showing victims good character or D’s bad character.

Prosecutor may also show victim had a trait peacefulness to rebut evidence that they were the first aggressor in a criminal homicide case

Question 17

Methods for proving character and impeachment

Answer 17

Character evidence must be proven by reputation or opinion but specific acts can be inquired into on cross-examination of a character witness. No extrinsic evidence allowed.

Character evidence of a witness’s untruthfulness/truthfulness is admissible for impeachment. Done by reputation/opinion and specific acts inquired into on cross. No extrinsic evidence permitted.

Evidence of truthfulness is only permitted when a witness’s character for truthfulness has been attacked.

Question 18

Prior Bad Acts

Answer 18

Not admissible to show propensity but can be used to show Motive, Intent, absence of Mistake, Identity, Common plan

Must give notice to a criminal D before trial in writing

Question 19

Can specific acts on cross be inquired into on a hunch without actual knowledge that the act occurred?

Answer 19

No, they must be inquired into in good-faith. Even if the hunch would prove to be true.

Question 20

Habit evidence

Answer 20

Evidence of a person or organizations routine is admissible to show they acted in accordance with a habit when the routine constitutes a semi-automatic response

Question 21

Competence

Answer 21

A witness is competent if they have personal knowledge and take an oath to testify truthfully

Question 22

When can juror testify after the trial

Answer 22

When extraneous prejudicial information was brought to jury, there was an improper outside influence, a clerical error was made, or juror made clear statement they relied on racial stereotypes

Question 23

Previous convictions for impeachment

Answer 23

Any crime involving dishonesty can be used

Any felony can be used but if witness is criminal D then probative value must outweigh prejudice

If conviction is ten years old than must give notice and probative value must substantially outweigh prejudice

Question 24

Pardon/appeal/juvenile adjudications

Answer 24

For impeachment conviction that has been pardon is not admissible but one on appeal is.

Juvenile convictions are not allowed to impeach D but can be used to impeach another witness in a criminal case if an adult conviction for that offense is admissible and it is necessary to determine guilt or innocence

Question 25

Prior inconsistent statement

Answer 25

Can be used to impeach and extrinsic evidence is allowed if witness has chance to explain (opportunity not required for opposing party statements or hearsay declarants)

A prior consistent statement can be used to rebut

Question 26

Opinion Testimony of Lay witness

Answer 26

Admissible if rationally based on the perception of the witness and helpful to a clear understanding of the witness’s testimony or a fact in issue, not based on scientific, specialized, or technical knowledge.

Question 27

Opinion of expert

Answer 27

Must be scientific, technical, or specialized knowledge that helps a trier of fact determine a fact at issue

Question 28

Requirements for expert witness

Answer 28

1. Qualfied as an expert by knowledge, skills, experience, or training/education
2. Testimony is based on sufficient facts/data
3. Testimony is product of reliable principles and methods
4. Testimony reflects application of principles/methods to facts of case and
5. Reasonable degree of certainty

Expert may not say whether criminal D had requisite mental state

Opinions based on inadmissible facts are admissible if experts in the field would also reasonably rely on those facts

underlying facts may be relayed to jury if probative value substantially outweighs prejudice

Question 29

Authentication

Answer 29

All tangible evidence must be authenticated with sufficient evidence to support finding that the thing is what the proponent claims it is.

Question 30

Best evidence rule

Answer 30

An original document must be used to prove contents of writing when contents are at issue or witness is relying on contents (as opposed to describing the document)

Duplicates are ok if there is no question as to authenticity. Handwritten copy is not a duplicate

Question 31

Confidential Communications

Answer 31

Privilege destroyed when overheard unless no knowledge of 3rd party’s presence or 3rd party is necessary to assist in communication

Question 32

Spousal privilege

Answer 32

Married person can’t be compelled to testify against spouse in criminal case

Expires upon divorce

Witness-spouse holds privilege and can waive it

Question 33

Confidential marital communications

Answer 33

Applies in civil/criminal cases to communications made during marriage

Held by both spouses

*neither this or spousal privilege applies when one spouse sues the other or is charged with a crime against the other or the children of either

Question 34

Attorney-client privilege

Answer 34

Client holds privilege

Confidential communications for the purpose of obtaining legal advice extends to employees abot matters within corporate duties for the purpose of obtaining legal advice

Exceptions:
crime-fraud when client knows or should know

Dispute between client and attorney

Dispute between parties who claim through the same deceased client

Communications between co-clients no adverse

Question 35

Work product

Answer 35

Work product is privileged but a party can obtain it if they show substantial need and cannot get it by other means without undue hardship (can’t ever get mental impression)

*subject to the crime fraud exception

Question 36

Patient-doctor privilege

Answer 36

Only applies in diversity cases if state law has one but federal courts do recognize psychotherapist-patient privilege

Question 37

What is excluded based on public policy grounds

Answer 37

Subsequent remedial measures made after P was injured
(doesn’t apply if made before P’s injury and can be used to show control if disputed)

Compromise offers and negotiations
(but allowed in subsequent criminal case with governmental agency acting in regulatory/investigative manner)

Plea negotiations
(exceptions: subsequent perjury cases or if statement made during plea is admitted and fairness requires)

Liability insurance

Sexual conduct

Question 38

Rape shield law

Answer 38

Evidence of victims sexual behavior is not admissible except

In criminal cases when source of injury is disputed, to show consent with defendant, or would otherwise violate D’s constitutional rights

Allowed in civil cases when probative value substantially outweighs prejudice

Defendant’s conduct is allowed to prove any relevant matter

Question 39

What is excluded from the definition of hearsay

Answer 39

When a witness testifies:

1. Prior inconsistent statement made under oath
2. Prior consistent statement to rebut bias/fabrication made before reason to fabricate
3. Prior statements of identification

Question 40

What is excluded from hearsay whether witness testifies or not

Answer 40

Opposing parties statement

Question 41

What types of opposing parties statements are not hearsay

Answer 41

Express statements

Judicial admissions

Vicarious statements by agents, authorized speakers, and co-conspirators during or in furtherance of the conspiracy

adoptive admissions when the person understood the statement, had the ability to deny it, and didn’t deny it when a reasonable person would

Question 42

What do vicarious statements require for them to be attributed to a party opponent?

Answer 42

Corroborating evidence must be used to show the the existence and scope of the relationship and the existence and participation in a conspiracy. The statement can be considered but can’t be used alone to show a relationship or conspiracy.

Question 43

What hearsay exceptions are available only when a witness is not available?

Answer 43

1. Dying Declaration (must be about cause of death and must believe death is imminent)
2. Former testimony if current opposing party had similar motive and opportunity to cross examine
3. Statement against interest. Must provide corroborating evidence of trustworthiness if statement exposes declarant to criminal liability and is offered in a criminal case.
4. Statement of personal or family history
5. Any statement against a party that caused the witness’s unavailability

Question 44

Present sense impression

Answer 44

Hearsay exception

Statement explaining or describing an event as one is perceiving it or immediately after.

Question 45

Excited utterance

Answer 45

803 exception to hearsay

Statement about startling condition while declarant is under the stress of excitement it caused

Question 46

Then-Existing Mental, Emotional, or Physical Condition.

Answer 46

803 exception to hearsay

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), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 47

Statement made for medical treatment/diagnosis

Answer 47

A statement about medical history or past/present symptoms is not hearsay if made for the purpose of treatment or diagnosis. Doesn’t include saying who is at fault.

Doesn’t have to be made to a doctor or made by the patient

Question 48

Recorded recollection

Answer 48

Not hearsay if on a matter the witness once knew, made when the matter was fresh in the witness’s mind, reflects the witness’s knowledge, and the witness can not remember it after reviewing the record

Question 49

Business records

Answer 49

An exception to hearsay if the record is made in the regular course of business, it is regular practice to make the record, and it is made at or near the time by someone with knowledge.

Question 50

Public records

Answer 50

Hearsay exception involving records of a public agency that set out the activities of the office, observations of a person with a duty to report, and factual findings of legally authorized investigations

Does not apply against a criminal defendant if it is a police report

Question 51

Learned treatises

Answer 51

statement in treatise, periodical or pamphlet not excluded as hearsay if expert
witness relied on statement during direct/cross, and publication is reliable authority

Question 52

Judgment of previous conviction

Answer 52

Not hearsay if entered after trial or guilty plea, conviction was for a crime punishable by more than 1 year imprisonment or death, evidence is offered to prove a fact essential to the judgement

If offered by a prosecutor for any reason other than impeachment the judgment must be against the defendant

Question 53

Confrontation clause

Answer 53

If declarant is unavailable then their testimonial statement is only admissible against a criminal defendant if D had prior opportunity to cross examine them.

Statement is testimonial if a reasonable declarant would conclude that it would be available at a later trial. Likewise, the fact that a prosecutor intends to introduce the statement into evidence, rather than use it to support an expert’s opinion, is evidence that such statement is testimonial.

Public emergency exception

Question 54

Surrogate expert witness and confrontation clause

Answer 54

When an expert who created a testimonial report is unavailable, the Confrontation Clause prohibits the introduction of the report via a “surrogate” expert because the defendant is entitled to cross-examine the declarant regarding the declarant’s knowledge and methods. A surrogate may be used when the prosecution can establish that the surrogate has some personal knowledge that the declarant’s statements are accurate.