Evidence (Final w/ Critical Pass) Flashcards
(1) What is the scope of the FRE?
(2) What are some examples where FRE does not apply?
(1) FRE applies to all criminal and civil cases including bankruptcy proceedings
(2) FRE does not apply to preliminary determinations by the judge, grand jury, probation/sentencing hearings, bail hearings, or other proceedings exempted by Congress
What is the appellate review process for the admittance/exclusion of evidence?
Courts will look to whether there was (1) prejudical error and (2) whether a proper objection or offer of proof was made
Prejudicial error: Goes beyond harmless error; had the evidence been admitted/excluded, there would have been a different verdict
Proper Objection (exclusion): Should be timely (before witness answers question) and reason stated for objection and evidence being excluded; if not timely, attorney can make motion to strike or judge can reverse if it is obvious that there was a miscarriage of justice
Offer of Proof (admittance): Outside of the jury’s presence, attorney gives an explanation why the evidence should be admitted through their own statements, documents, witness testimony, or affidavit
What is the Preliminary Questions process under FRE 104?
Under FRE 104, the proponet has the burden of proof to show why evidence is admissible/inadmissible.
Judge then makes determination through PPOE if the evidence is admissible/inadmissible (evidence is more likely than not admissible or >50%)
What is Conditional Relevance?
Evidence is conditionally relevant if it depends on the existence of another fact.
Judge may provisionally admit the evidence on the assumption that a foundation will be laid later for the fact if a reasonable jury could make a factual determination based on the evidence before it
(1) What is a Limiting Instruction?
(2) Procedure of Limiting Instruction?
(1) LI is where a judge informs the jury that they should consider a piece of evidence for a specific purpose and avoid considering it for any other purpose.
(2) Procedure: Must be requested by the party; judge then explains to jury what purpose the evidence should be considered for and that it should not be considered for any other purpose
What is the Doctrine of Completeness? Policy?
(1) If one party offers a writing or recored statement or part thereof;
(2) The adverse party may offer a different part of that same writing or recored statement or a completely different writing/recorded statement if;
(3) The judge determines that in fairness the evidence ought to be considered at the same time
Policy: We do not want to mislead the jury about contents of writing/recordings so they don’t take things out of context
What is Judicial Notice?
JN is a substitute for evidence where courts will accept certain facts as true without the formal presentation of evidence. Court’s make take JN on their own or upon formal request from either party.
(1) What type of facts can courts take JN of?
(2) What type of facts can courts not take JN of?
(1) Adjudicative Facts: (i) Those generally known within the territorial jurisdiction, also known as a notorious fact and (ii) facts that are capable of verification by a source that is not subject to reasonable dispute, also known as a manifest fact
What is a Legislative Fact?
Legislative facts are facts that courts cannot take JN of. These are typically used by courts to make policy determinations or for statutory interpretation.
When MAY the court take JN?
Courts MAY take JN with/without request from parties on matters regarding:
* Local geography
* Laws of foreign nations
* Municipal agencies
* Regulations of private agencies
When MUST the court take JN?
Courts MUST take JN upon timely request from either party if they provide sufficient information to the fact that they want to be judicially noticed
Courts MUST take JN REGARDLESS OF REQUEST on matters regarding (1) federal/state law and (2) indisputable facts and scientific propositions
When is the jury instruction process for JN?
(1) In CIVIL CASES, jury MUST take judicially noticed fact as conclusive
(2) In CRIMINAL CASES, courts MAY take judicially noticed fact as conclusive
Can a presiding judge testify at their own trial?
No. A presiding judge is never permitted to testify at their own trial.
Can judges use their own general knowledge to take judicial notice?
No. Courts cannot base judicial notice on something that they have personal knowledge about but the territorial community may not know generally.
What is the test for Relevance Evidence?
Under FRE 401, evidence is relevant if it meet the two-pronged test of Logical Relevance and Legal Relevance.
Logical Relevance, also known as the PV Test, is whether the evidence has a tendency to make a fact more or less probable than it would be without the evidence.
Legal Relevance is whether the evidence legally relates to a fact of consequence in the matter.
When is relevant evidence preempted?
Under FRE 402, relevant evidnce is admissible unless it is preempeted by the (1) US Constitution, (2) federal statute, (3) FRE, or (4) any other rule articulated by SCOTUS.
When is relevant evidence excluded?
Under FRE 403, relevant evidence can be excluded at the discretion of the court if its PV is substantially outweighed by the danger of any of the counterweights enumated in 403 including unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste of time
What is an evidentiary hearing?
Courts will conduct a hearing on whether evidence is admissible or inadmissible. This must be done outside the presence of the jury.
What is Unfair Prejudice for purposes of FRE 403?
Unfair Prejudice is the type of evidence that has a tendency to give unfair or preemptive weight to the jury. This is typically seen when the evidence being put forth could be emotionally disturbing to the jury or confusing.
What are the 403 counterweights?
CUMWUD
Confusing the issues
Undue delay
Misleading the jury
Wasting time
Unduly cumulative
Danger of unfair prejudice
What is a Subsequent Remedial Measure?
Evidence of repair or other remedial measures taken are not admissible to show negligence, fault, defect, or inadequate warnings.
SRM are admissible to show ownership, control, or if there is a dispute of feaseability.
What is a Compromise Offer or Negotiation?
Evidence of an offer to settle a claim and any accompanying statements are inadmissible to prove or disprove the validity or amount of a disputed claim.
May be introduced to show: bias, negating a contention or undue delay, or providing an effort to obstruct a criminal investigation
What is an Offer to Pay Medical or Similar Expenses?
Offers to pay medical, hospital, or other related expenses are not admissible to show liability for the injury.
Accompanying statements are admissible, unlike compromise offers.
What is the policy exclusionof Pleas, Plea Discussions, and Related Statements?
In a civil or criminal case evidence of a (1) withdrawn guilty plea, (2) no-contest plea, (3) statements from proceedings that resulted in a withdrawn guilty plea or no-contest plea, or (4) statements made during a plea discussions with the prosecuting attorney that did not result in a guilty plea or did result in a withdrawn guilty plea are not admissible for any purpose against the ∆ made/participated in the plea/plea discussions.
Exception: Perjury trials or statement of completeness (if another statement is made during the same plea negotiations or proceeding was introduced and fairness dictates that the jury should hear them together
What is the policy exclusion for liability insurance?
Evidence that a party was covered or not covered by liability insurance is not admissible to show that they acted negligently, wrongfully, or the ability to pay damages.
Pretty much admissible for everything else (e.g., bias, ownership, control, etc.)
How does the court deal with prior similar occurances?
More often than not inadmissible because they are irrelevant or unfairly prejudicial.
Could be admissible for other purposes: intent, absence of mistake, value, industry custom, etc.
What is Habit or Routine Evidence?
A person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion.
Must be: (1) Highly specific and (2) frequently repeated; look for regular or instinctive conduct
Example: Evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at that time.
What is the deal with Character Evidence in Civil Cases?
Evidence of a person’s character is often inadmissible in a civil case to show that they acted in conformity with their character on a specific occasion.
Exceptions:
(1)** Character is at issue**: essential element of a claim/defense (e.g., defamation) [opinion/reputation/specific acts]
(2) Prior acts of sexual assault or child molestation in cases for similar clases [π must disclose intent to offer at least 15 days before trial]
What is the deal with Character Evidence of ∆ in a Criminal Case?
Mercy Rule
(1) In a criminal case;
(2) The ∆ may provide evidence of a character trait;
(3) that is pertinent to the crime at issue
(4) But once the ∆ opens the door to this evidence on their character trait, the prosecution can rebut it with their own witness testifying to ∆’s bad character (limited to the trait in question) or cross-examining the ∆’s witness with knowledge of specific instances of ∆’s misconduct or prior arrests
What the deal with the Victim’s Character in Criminal Cases?
∆ may introduce opinion/reputation evidence of victim’s character when the asserted defense makes it relevant. Once ∆ does, prosecution may rebut and offer evidence of the same character trait.
Example: ∆ is on trial for murder and claimed self-defense; introduced evidence to show that the victim was violent in order to show that he was the first aggressor. Prosecution then allowed to rebut with evidence that the ∆ was violent
