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Charleston Law 2L > Evidence FINALS > Flashcards

Evidence FINALS Flashcards

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1
Q

What rule is JN?

A

201

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2
Q

[JN]
Civil =
Criminal =

A
  1. Must accept as conclusive
  2. May or may not accept as conclusive
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3
Q

Per 401, evidence is relevant if…

A

it has a tendency to make a fact more or less probable and that fact is of consequence.

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4
Q

Per 402, relevant evidence is admissible unless…

A
  1. conflict with rules
  2. conflict with SC
  3. conflict with law
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5
Q

Are polygraph results admissible?

A

Nope

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6
Q

________ relevance 104(b): When the relevance of evidence depends on whether a fact exists… the court may admit the proposed evidence on the condition that the proof be introduced later.

A

Conditional Relevance

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7
Q

403 test?

A

May exclude relevant evidence if its PB is substantially outweighed by UF prejudice.

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8
Q

Does the availability of alternate evidence lower the probative value of evidence? [Considering 403]

A

Yes! Old Chief.

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9
Q

What rule is limiting instructions?

A

FRE 105

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10
Q

What rule is subsequent remedial measures?

A

FRE 407

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11
Q

Evidence of remedial measures after an injury has occurred is not admissible. We want to encourage this behavior.

A

FRE 407. Generally true, unless admitting [when disputed] to show ownership or feasibility.

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12
Q

FRE ___ Liability Insurance

A

FRE 411

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13
Q

Evidence that a person was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

A

FRE 411

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14
Q

When may the court admit 411 evidence?

A

To prove W bias, prejudice, ownership, control.

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15
Q

FRE 404 (A)

A

Evidence of person’s character or character trait is not admissible to prove that person now acted in accordance with that character.

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16
Q

404 (B)

A

Evidence of other crime, wrong, act, not admissible to show person now acted in accordance with that character.

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17
Q

When is 404 (b) other crimes, wrongs, acts admissible?

A

To prove another non-character purpose, such as Motive, Intent, prep. plan, knowledge, identity, absence of mistake, lack of accident.

IE: When “inextricably intertwined” with the case at bar.

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18
Q

What rules for sexual assault cases?

A

413-415

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19
Q

T/F) In a criminal case, in which ∆ is accused of sex assault or child molestation, the court may admit evidence that ∆ committed prior such acts.

A

True!

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20
Q

Reason behind 413-415?

A

Bolster the victim’s testimony and b/c sex offenders have high recidivism rate.

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21
Q

T/F) ∆ in a criminal case may offer evidence of his pertinent traits. If true, what word is important?

A

True. Must be PERTINENT trait.

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22
Q

In a criminal case, if ∆ offers evidence of his alleged good and pertinent character traits? What can you do for the State?

A

Over evidence to rebut it.

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23
Q

Can a ∆ offer evidence of a victim’s pertinent trait? What if the victim was from sexual assault?

A

Yes.

If sex assault: Admissible when:
1. to prove not source of injury
2. to show consent

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24
Q

If ∆ offers evidence of victim’s trait, what can P do?

A

Offer evidence to rebut it

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25
Q

When can the prosecution offer evidence of victim’s trait of peacefulness?

A

In homicide case to rebut evidence that victim was first aggressor.

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26
Q

[Character]
FRE ___ says what can be admitted and ____ says how it is admitted.

A

FRE 404
FRE 405

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27
Q

405
(A)
(B)

A

A = Reputation or opinion testimony [P can CX with SPX instances]

B = If character trait is essential element, may use specific instances.

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28
Q

405 (A)?

A

If character trait admissible, can come in through reputation or opinion testimony. Prosecution can use SPX INST to rebut.

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29
Q

405 (B)?

A

If character trait is essential to charged crime, may now use specific instances of conduct.

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30
Q

Examples of crimes where character trait is essential to charged crime?

A

Defamation
Child custody
Entrapment

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31
Q

________ to call into question the veracity [truthfulness] of a W, by means of evidence adduced for such purpose.

A

Impeachment

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32
Q

2 overarching modes of impeachment?

A
  1. character based - “he’s lying now, he’s also generally a liar.”
  2. non-character - “he’s lying now, although he’s not generally a liar.”
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33
Q

Character impeachment tools?

A

608 & 609

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34
Q

Non-character impeachment tools?

A

Conflicting evidence contradiction

Inconsistent statement contradiction

Evidence of bias

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35
Q

FRE ____ Character for untruthfulness

A

FRE 608

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36
Q

608 (A) says witness credibility may be attacked/supported how?

A

Reputation or Opinion testimony. Supporting W credibility must adhere to Ordering Principle.

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37
Q

608 (A) When is evidence of truthful character admissible to support W credibility?

A

Only when it has first been attached.

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38
Q

______ principle: Pertinent to 608 (a), evidence of truthful character can come in only after character has been attached.

A

Ordering Principle

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39
Q

608 applies to character for ________ only.

A

Untruthfulness

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40
Q

[608 (b)]
Is extrinsic evidence admissible to prove specific instances of witness conduct to attack truthful character?

A

No. The court may allow them to be inquired into if they are probative of truthful character.

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41
Q

[608 (b)]
When may the court allow SPX conduct, as related to truthfulness, to be inquired into?

A

Only if probative of W character for truthfulness.

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42
Q

608 (b)?

A

Except for a criminal conviction under Rule 609, extrinsic evidence not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.

Court may, on cross-examination, allow them to be inquired into if probative of character for truthfulness.

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43
Q

What rule for impeachment with past convictions?

A

FRE 609

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44
Q

Is extrinsic evidence allowed for 609?

A

Yes, the only exception to 608 (b).

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45
Q

609
[A1]
(a)
(b)

A

[A1] Felonies, Criminal
(a) Not ∆
(b) ∆

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46
Q

609 [A1]
(a) test?

A

May come in [presumption coming in] unless PV is substantially outweighed by UF prejudice. [Regular 403]

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47
Q

609 [A1]
(b) test?

A

[Reverse 403] Not coming in unless PV outweighs UF prejudice.

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48
Q

609 test for evidence older than 10 years?

A

[Super reverse 403] Can come in if PV substantially outweighs UF prejudice risk.

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49
Q

What rule is expert testimony?

A

702

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50
Q

702 requirements?

A
  1. Qualified in field
  2. Proper topic [shouldn’t be ordinary things]
  3. proper basis [data reasonably relied on in field]
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51
Q

What is improper topic for an expert?

A
  1. One of common knowledge
  2. Opinions on law
  3. Opinions on W credibility
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52
Q

Expert giving opinion on law. Proper?

A

No.

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53
Q

Expert giving opinion on W credibility? Proper?

A

NO

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54
Q

What rule is lay opinion?

A

701

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55
Q

Lay witness provides opinion testimony on what?

A
  1. Personal Knowledge
  2. Not Scientific shit
  3. Helpful to jury
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56
Q

Do we need an expert to speak to sounds/spelling of words?

A

No.

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57
Q

Expert can testify to a persons mental capacity and also testify that said person is guilty by reason of that mental capacity. [T/F]

A

False. overreach.

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58
Q

What is the true test for allowing expert testimony?

A

Whether experts have peculiar knowledge or experience to help the jury in determining questions at issue.

  1. Q
  2. Scientific qualifications & expertise helpful to jury/court
  3. Reliable principles & methods
  4. Test. based on Suff. facs & data
  5. Analysis
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59
Q

Who is the gatekeeper for expert testimony per 702?

A

The judge

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60
Q

Per 702, the Judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. [T/F]

A

True

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61
Q

_________ rule: Judge must determine under 104(a), whether evidence is “scientific knowledge” that will assist trier of fact.

Judge determines evidence admissibility/privilege/witness competency under this FRE rule.

A

104(a) & Daubert rule

“That is relevant and reliable”

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62
Q

Daubert factors?
1.
2.
3.
4.

A
  1. Whether theory can be tested / has been
  2. Peer reviewed?
  3. Errors?
  4. General acceptance in community
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63
Q

701 =
702 =
703 =

A

1 = Lay witness
2 = Expert uses facts RR
3 = Expert aware of event or observed it

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64
Q

T/F) If experts in that field would reasonably rely on such facts /data to form opinion, they need not be admissible for the opinion to be admitted. [IE: Opinion can come in even if facts cant]

A

True per 703, basis of Expert Testimony

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65
Q

703: When can you bring in [inadmissible] facts / data that expert opinion is based on? IE: What is the balancing test?

A

When PV substantially outweighs prejudicial effect. [Super reverse 403]

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66
Q

Is there any restriction on adverse party asking expert about facts underlying opinion?

A

Nope

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67
Q

If inadmissible underlying facts being offered by proponent of expert W?

A

Super reverse 403

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68
Q

What’s the 1st question asked for expert testimony consideration?

A

Is it proper topic for expert?

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69
Q

FIrst questions when considering expert W?

A
  1. Qualified?
  2. Proper topic? [not common knowledge]
  3. Proper basis? [Type of data experts rely on]
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70
Q

T/F) Expert testimony used to connect facts to a defendant but may not be used to establish the facts themselves if the facts are understandable by a lay juror.

A

True. Expert should be giving info on the data, not connecting that data to a ∆.

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71
Q

[Basis of expert opinion]
Opinion must be based on data that is…

A

Sufficient facts and data.

If Hearsay = “reasonably relied upon” by those experts in making their decisions.

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72
Q

If otherwise inadmissible facts come in for expert testimony b/c it passed super reverse 403… what else can help?

A

Limiting instruction

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73
Q

[Experts]

_________ test: The scientific principles underlying expert testimony must be sufficiently established to have gained general acceptance in the particular field to which it belongs. This test remains the standard in several states.

A

Frye

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74
Q

The ___ ____ rule requires that originals of writings, recordings or photographs be submitted. The original rationale for the rule was the prevention of fraud in days before electronic copying became common

A

Best evidence rule

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75
Q

When does BER permit secondary evidence?

A

If the loss of original was not in bad faith or intentional.

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76
Q

The ___ ___ rule applies to situations where a party is trying to prove the contents of a document, recording or photo.

A

BE rule

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77
Q

Does the BE rule apply to first hand testimony about events witness personally observed?

A

No.

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78
Q

Only objection you can make to an exhibit admission?

A

“Authentication” objection

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79
Q

FRE ____ : The requirement of authentication ID as a condition precedent to admissibility is satisfied if = evidence sufficient to support a finding that the matter in question is what its proponent claims

A

901: Authenticating evidence

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80
Q

A way to avoid rules of evidence. Simply an agreement between parties. All parties must agree.

A

Stipulation

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81
Q

Can the court take JN on its own?

A

Yes

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82
Q

JN governs ____ facts only.

A

Adjudicative

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83
Q

______ facts: Facts relevant to a specific case.

A

Adjudicative

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84
Q

Court may take JN on a fact that is
1
2

A
  1. Generally known or;
  2. Can be proven by sources whose accuracy cant be questioned.
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85
Q

T/F) If a fact is disputed between parties, the court may not take JN.

A

True

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86
Q

What is UF prejudice?

A

The tendency to promote an improper decision, typically an emotional one.

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87
Q

407 =
408 =
409 =
410 =
411 =

A

407 = Remedial measures
408 = Compromise offers
409 = Offer to pay medical
410 = Pleas
411 = Liability insurance

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88
Q

When is 407 admissible?

A
  1. Prove ownership
  2. Remedial measures feasibility

[When disputed]

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89
Q

Does 407 apply to past unrelated accidents?

A

No

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90
Q

When are compromise offers admissible?

A
  1. Bias
  2. Prejudice
  3. Obstructing justice
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91
Q

What does 404 worry about?

A

Convicting an innocent person based on past character.

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92
Q

T/F) character is never an issue in criminal prosecution the ∆ chooses to make it one.

A

True

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93
Q

In a criminal case, must the P provide notice to ∆ of 404 crime/act admissibility b4 it comes in?

A

Yes, so they have chance to “Meet” it.

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94
Q

Events that are inextricably related to the crime charged. Shows a larger criminal scheme of which the charged crime is only a portion. [Horizontal sequence of events leading to the crime

A

Common Plan.

Also, all of MOPKIA must be shown to be “II” to come in.

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95
Q

Common plan =
Modus Operandi =

A

Motive
Identity

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96
Q

Literally means ‘method of working.’ Refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of same wrongdoer.

A

Modus Operandi

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97
Q

T/F) MO is always the same. IE: Robber who wears ‘Scream’ Ghostface mask and only kills teenagers in their family homes.

A

True

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98
Q

What rule is the METHOD for proving character?

A

405

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99
Q

405 allows proving character how?

A

(A) Opinion / reputation testimony & (B) CX

EE only admissible if central to charged crime.

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100
Q

406: T/F) The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness

A

True

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101
Q

What rule?
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

A

104 (b)

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102
Q

608 (A) and (B)?

A

(A) Reputation / opinion & (B) SPX Instances

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103
Q

Who may impeach? 607.

A

Any party, including the party who called the W.

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104
Q

Under CX for 608, if the witness gives answer P thinks is a lie, can P dig deeper into the answer?

A

No. No trial within a trial.

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105
Q

Under 608A, when can witness character be rehabilitated?

A

Only when first attacked. Ordering principle.

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106
Q

609A(1)(A) Not accused: What’s the test?

A
  1. May come in unless PV substantially outweighed by UF prejudice
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107
Q

609A(1)
(B)Accused test?

A

Not coming in unless PV outweighs risk of UF prejudice. Reverse 403

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108
Q

What test is also associated with the reverse 403?

A

Jones test

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109
Q

Jones test factors?

A

[ (1) Impeachment value of crime. If violent = N, truth related = Y, (2) Time passed, long time = n, good behavior = n, (3) Similarity of crime, if similar = no, (4) Centrality of testimony/credibility

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110
Q

609A(2)?

A

Convictions of any crime related to false statements & dishonesty. Automatically comes in.

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111
Q

Non truth related misdemeanor.

A

Not coming in.

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112
Q

Conviction older than 10 years?

A

Super reverse 403. Not coming in unless PV substantially outweighs UF prejudice.

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113
Q

Juvenile convictions?

A

Not coming in.

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114
Q

Pardons?

A

Admissible unless pardon was based on showing of innocence.

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115
Q

Pending appeals for 609 considerations?

A

Does not affect admissibility.

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116
Q

FRE ____ 602. All testimony and evidence at trial must be based on a witness’s [personal knowledge.] Guessing or speculating about things is prohibited, and repeating second-hand things other people have told you (Hearsay) is generally banned with its own list of exceptions.

A

602: Personal knowledge

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117
Q

May 602 PK evidence requirement be based on your W’s own testimony?

A

Yes!

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118
Q

_______ To testify at all, a witness must be competent. All are presumed competent unless a rule provides otherwise.

A

601: Competency to testify

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119
Q

_______ Must be rationally based on witness’s own perception, not on scientific or specialized knowledge, and must be helpful to a fact at issue.

A

[701] Lay witness opinion testimony

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120
Q

Rule 701?

A

Lay witness opinion testimony

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121
Q

Rule 601?

A

Competency to testify

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122
Q

Rule 602?

A

W Personal Knowledge

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123
Q

What lowers the probative value of evidence?

A

Old Chief [alternate evidence]

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124
Q

When can we admit 411 evidence?

A

Ownership, control, bias, prejudice.

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125
Q

404 character exceptions applies to ____ cases.

A

Criminal cases

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126
Q

If character evidence is coming in for criminal case? What’s your duty as the prosecutor?

A

Give ∆s time to meet it. [Notice]

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127
Q

Criminal homicide case. You are bringing in traits of alleged victim. What can ∆ do?

A

Evidence of victim’s traits for peacefulness.

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128
Q

When you get approval to bring in character evidence, how does it come in?

A

I can use a witness to bring it in through Opinion or reputation testimony. SPX instances can be inquired into on CX. [405]

Extrinsic evidence is never admissible UNLESS central to charged crime. [negligence, entrapment, defamation, child custody]

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129
Q

When is 407 evidence admissible?

A

Only –when disputed–to show ownership or feasibility.

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130
Q

T/F) 407 can be admissible to prove culpability or general negligence.

A

Never.

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131
Q

Compromise negotiations are only admissible to show what?

A

Obstruction of justice, bias, prejudice, etc.

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132
Q

Withdrawn guilty pleas are sometimes admissible. [T/F]

A

No. Never.

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133
Q

Are offers to plead guilty / nolo contendere admissible?

A

No sir.

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134
Q

When defense counselor argues that client VonD acted in self defense when he brutally murdered Shaquille, what door is opened in the Federal rules of Evidence pursuant to FRE 404 (a) (2) (C)?

A

Offer evidence of Shaquille’s traits for peacefulness.

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135
Q

Is impeaching a witness permissible with criminal convictions?

A

Yes. 609.

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136
Q

Under___________ , a trial court may admit all scientific testimony or evidence that is “not only relevant, but reliable.”
B/C of this rule, a trial court now acts as a gate keeper for what evidence is coming in, and what is not.

A

Daubert rule – as defined by Professor Zisk.

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137
Q

Who may impeach?

A

Anybody. 607

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138
Q

When can you show victim’s sexual traits in civil trial?

A

Super reverse 403 and notice to victim at least 14 days before trial.

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139
Q

When can you show victim’s traits in sex assault trial?

A

To show (1) not source of injury and (2) consent.

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140
Q

410: When are withdrawn and nolo contendere pleas admissible?

A

It was perjury

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141
Q

410: What type of pleas not admissible?

A

Withdrawn pleas, nolo contendere.

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142
Q

UF Prejudice defined?

A

Tendency to suggest an improper decision, typically an emotional one.

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143
Q

When relevance of evidence depends on whether or not a fact exists — the court may admit the evidence on the ______ that fact is proved later.

A

Condition

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144
Q

“Motive” exception used to show

A

Intent

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145
Q

What’s a good way to know if character is really an issue/central to the case in such a way to permit character evidence?

A

If the law requires proof of character to charge it.

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146
Q

How would you, generally, impeach a witness?

A

Prior inconsistent statement questioning, contradictory evidence

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147
Q

Rule 404(b)(2) lists all of the other purposes for which other crimes, wrongs, or other acts evidence is admissible. True or False?

A

False, not an exhaustive list.

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148
Q

The fact that the crime for which an accused was convicted is identical to the crime for which he is on trial makes it more likely that the trial court will permit the prior conviction to be used to impeach. True or False.

A

False.

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149
Q

What if ∆ denies his conviction?

A

I can now introduce extrinsic evidence for the state.

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150
Q

∆ charged with assault. ∆ attempts to bring in evidence of his character for truthfulness. What do you do?

A

Object, this is not permissible. ∆s can only bring in character evidence that is ‘pertinent.’

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151
Q

Is ‘unfair surprise’ grounds for exclusion under 403 analysis?

A

No

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152
Q

T/F) Casualty insurance falls under the scope of 411?

A

False

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153
Q

∆ wants to appeal on 609 grounds. Can he?

A

If ∆ introduced the prior conviction to jump the prosecutor’s bullet, then no, ∆ has lost that right to appeal.

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154
Q

404 MOPKIA exception goes ___ the box while Sex assault exceptions and Criminal ∆ exceptions go ____ it.

A

MOPKIA = around box
SEX ASSAULT = through it
CRIM ∆ = through it

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155
Q

What is hearsay?
1.
2.

A
  1. Declarant made outside trial
  2. Offered into evidence to prove TOMA
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156
Q

[Hearsay]
What is a “statement?”

A

A persons oral, written, or non-verbal ‘assertion’ on a matter. [It must be intended as an assertion.]

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157
Q

[Hearsay]
What is a ‘declarant?’

A

The person who made the out of court statement/assertion.

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158
Q

T/F) Assertions are express only.

A

False. Can be implied and non-verbal.

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159
Q

W testifies that he saw the captain, before leaving port, make a careful inspection of the ship.

Hearsay?

A

No. The Captain’s conduct was not an assertion.

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160
Q

Hearsay example:

Amidst a mad cow disease outbreak, the public feared that the disease could be passed to humans through beef. The Agricultural Minister, in front of the press, ate a hamburger and said, “This is delicious.” He also gave his four-year-old daughter a bite.

A

TOMA

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161
Q

____ ____ hearsay exclusion: A statement offered against an opposing party and:

a) was made by the opp. party
b) is one the party believed to be true
c) or was made by party’s coconspirator during furtherance of conspirator

A

Party opponent

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162
Q

A statement made by the party’s coconspirator during and in furtherance of conspiracy is what?

A

Party Opponent hearsay exclusion

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163
Q

Party opponent rules in civil case?

A

Both sides can introduce the others statements

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164
Q

Party opponent rules in criminal case?

A

Only the state can introduce party opponent statements

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165
Q

[Hearsay]
___ ___ exclusion: NOT hearsay when declarant testifies & subject to CX on prior statements.

A

Testifying declarant exclusion

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166
Q

1 category of testifying declarant exclusions?

A
  1. Prior statement is inconsistent with declarant’s testimony and was given at a trial/hearing/deposition. [Impeach]
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167
Q

2nd category of testifying declarant exclusion?

A
  1. Prior statement is consistent with testimony [used to bolster W credibility or rehabilitate it]
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168
Q

3rd category of testifying declarant exclusion?

A
  1. Prior statement identifies a person as someone the declarant perceived earlier. [ID the scum bag]
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169
Q

3 categories of testifying declarant exclusion? Prior statements are…

A
  1. Consistent [Impeach]
  2. Inconsistent [bolster]
  3. ID purposes [ID purp]
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170
Q

T/F) In a criminal case, only the state can introduce ∆s statements under “party opponent.”

A

True!

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171
Q

Party opponent categories?

A
  1. Made by opposing party /agent
  2. Person authorized to make that statement for party
  3. Believed to be true
  4. Occurred during relationship with party
  5. Conspirator in furtherance of conspiracy
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172
Q

Prior inconsistent statements: Is there a requirement that the declarant was subject to CX at the prior trial/hearing/deposition?

A

No, just that declarant is subject to CX at current hearing.

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173
Q

Prior consistent statements: Purpose?

A

To rebut attacks on W & [bolster] the W testimony.

174
Q

“The Federal Rule of Evidence allows a consistent, out-of-court statement made by a witness to be used in court to argue against a charge of a lie or improper motive. “

A

Tome v. United States

175
Q

2 types of evidence that are NOT hearsay? IE: They are not listed as exceptions to the rule b/c they are not hearsay at all.

A
  1. Party Opponent
  2. Testifying declarant
176
Q

Hearsay EXCEPTIONS list?

A
  1. Present sense/effectList. & excited utterance
  2. THEN existing condition
  3. Medical diagnosis statements
  4. Recorded Recollection
  5. Business records
177
Q

NOT hearsay?

A
  1. party opponent
  2. Testifying declarant
178
Q

__________ A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

A

Present sense impression hearsay exception

179
Q

________ A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

A

Excited Utterance hearsay exception

180
Q

________ 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)

A

Then existing

181
Q

Does [Then existing] hearsay exception include a statement of memory or belief to prove the fact remembered or believed?

A

No unless related to validity of declarants will.

182
Q

[Hearsay exception]

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

A

Recorded recollection

183
Q

Victim bit by a dog. Later tells someone about that night. Can this come in under hearsay exceptions, maybe excited utterance for example?

A

No. Too much time has passed.

184
Q

___ ___ hearsay exception: Record made:
A) At time of event
B) Kept in ordinary course of business.
C) Opponent cannot show record lacks trustworthiness

***Record must be made by someone within the organization.

A

Business record hearsay exception

185
Q

Declarant unavailable hearsay exception categories?

A

Unavailable if:
1. Refuses to testify
2. Exempt from testimony
3. Can’t recall at testimony
4. illness
5. Death

186
Q

In all criminal prosecutions, the accused shall enjoy the right to be confronted with the W against him.

A

Confrontation clause [6th Amendment]

187
Q

Confrontation clause applies to who?

A

Criminal ∆s only

188
Q

The rule of law in this case is that statements from witnesses who aren’t at the trial can only be used if the person who made the statement can’t be there and the defendant had a chance to question them before.

A

Crawford

189
Q

Under Crawford, can you use W statements when W isn’t at trial against the ∆.

A

No. Violation of CC of the 6th amendment.

190
Q

T/F) Statements given to police are not considered testimonial and don’t fall under the Confrontation Clause if they are made during an ongoing emergency to help the police.

A

True. If made during ongoing emergency, Crawford does not apply.

191
Q

T/F) Statements made outside of court to people who aren’t police officers aren’t automatically left out of evidence because of the Confrontation Clause

A

True b/c these are not “testimonial.” Crawford looks to bar only testimonial statements.

192
Q

General sort of Qs not barred by Crawford? [Crawford focuses on stopping testimonial statements]

A
  1. Not offered to prove TOMA [not hearsay]
  2. Declarant unavailable – but ∆ already had option to CX
  3. Non testimonial statements [made to 911 / med. persons, etc.]
193
Q

Not barred by crawford?

A
  1. Not offered to prove TOMA
  2. Testifying declarant
  3. Non-testimonial statements
  4. ∆ already had option to CX
194
Q

____ doctrine: when there are two defendant’s in a criminal case who are tried together and one of them has a confession that implicates both of them, the CC is violated.

A

Bruton

195
Q

The rule of this case is that if one person who is on trial said something that makes another person on trial look guilty, it’s not fair to use that statement against the second person.

A

Bruton

196
Q

Is Bruton violated if the statement is so redacted that it eliminates mention of anyone else?

A

Maybe not.

197
Q

_____ process: In all criminal prosecutions, the accused shall enjoy the right to have… ___ process for obtaining witnesses in his favor.

A

Compulsory process

198
Q

The right to _________ process is a fundamental right of due process, guaranteed by the Sixth Amendment of the United States Constitution. It gives criminal defendants the right to: Call for evidence, Compel witnesses in their favor, and Present their own case at trial

A

Compulsory process

199
Q

Under 701 Lay opinions, W who is not expert limited to what in his testimony?

A
  1. Opinion on events rationally perceived
  2. Not based on scientific shit
200
Q

703 requires that expert bases his opinion on facts or data that…

A

Expert has been made aware of or personally observed.

201
Q

703 =

A
  1. Expert made aware of or
  2. Personally observed
202
Q

702 requires that expert testimony be based on…

A

sufficient facts or data [RR on by experts in the field]

203
Q

The _________ rule is a legal principle that holds an original of a document as superior evidence. The rule specifies that secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists and can be obtained.

A

Best evidence rule

204
Q

Per 901 authentication, proponent must do what to authenticate their evidence?

A

Produce evidence sufficient to authenticate the evidence.

205
Q

Daubert =

A

Relevant & Reliable evidence is admissible.

206
Q

Daubert test factors?

A
  1. Tested?
  2. Errors?
  3. Peer reviewed?
  4. Community acceptance?
207
Q

702 =
703 =

A

702 = Based on sufficient facts / data [RR]
703 = Made aware of / personally observed

208
Q

702 commands that expert testimony be based on…

A

sufficient facts & data [reasonably relied on by experts in field]

209
Q

703 commands that expert be….

A

made aware of or personally observed events

210
Q

If experts RR on those facts/data, they need not be admissible for expert to based testimony on them. [T/F]

IE: Experts can rely on hearsay

A

True

211
Q

Experts can base their testimony on hearsay thats not admissible so long as….

A

that evidence is RR on by by experts in the field.

  1. Adverse party can freely inquire into those facts.
  2. Proponent = super reverse 403
212
Q

If expert testimony is relying on inadmissible hearsay, how can proponent get that hearsay into court?

A

Super reverse 403

213
Q

Do we use experts to judge credibility of a W?

A

No. Never.

214
Q

Can expert testimony be based on prior testimony?

A

Yes

215
Q

Can expert testimony be based on evidence introduced at trial?

A

Yes

216
Q

T/F) Expert testimony may NOT be based only on lay W testimony.

A

False

217
Q

If the subject matter is such that scientific, technical, or other specialized knowledge is required to render an opinion, _______ testimony is admissible and appropriate.

A

Expert. No lay W.

218
Q

Can expert base an opinion on facts supplied to him outside the courtroom?

A

Yes.

219
Q

FRE 501?

A

Privilege in general

220
Q

______ testimonial privilege, also known as spousal immunity, is the right of a spouse to not testify against their spouse in criminal proceedings:

A

Spousal testimonal privilege

221
Q

Purpose of 501 spouse privilege?

A

To preserve harmony within the family

222
Q

T/F) Spousal privilege usually only applies in civil cases.

A

False, usually only applies in criminal cases.

223
Q

Spousal privilege bars _______ testimony only. IE: W spouse may be forced to testify if it is helpful.

A

Adversarial

224
Q

Does spousal testimonial privilege include pre-marriage events?

A

No.

225
Q

General exception for spousal testimonial privilege?

A

Exception for intra-marriage crimes.

226
Q

T?F) What spouses say to each other during marriage is privileged.

A

True

227
Q

What consent is required to waive martial privilege?

A

Mutual consent of both

228
Q

Martial privilege applies only to civil cases. [T/F]

A

False. The privilege of spouses applies to criminal and civil.

229
Q

T/F) Martial privilege applies even if one spouse is not a party to the action.

A

True

230
Q

Exclusions [NOT] hearsay?

A
  1. Party opponent
  2. Testifying declarant
231
Q

Hearsay exceptions?

A
  1. Present sense & Excited Utterance
  2. THEN existing SOM
  3. Medical D
  4. Recorded recollection
  5. Business records
232
Q

Under Crawford when is hearsay inadmissible?

A

Offered by P against D when W is not there.

233
Q

Does 201 govern legislative facts?

A

No.

234
Q

Can court take JN at any stage of proceeding?

A

Yes.

235
Q

403 decisions are reviewed as ___ of ___.

A

Abuse of discretion.

236
Q

403, who is the burden on with regard to the evidence coming in?

A

The burden is on the party trying to exclude it.

237
Q

T/F) Under 403, the party trying to bring in the evidence has burden of proof.

A

False

238
Q

403 does not set up a fair fight. It is weighed in favor of admission /exclusion.

A

Admission. Burden is on party trying to keep it out.

239
Q

T/F) 411 applies to both liability and casualty insurance.

A

False. Casualty insurance is not included.

240
Q

Is the state “required” to accept stipulations?

A

Nope.

241
Q

Jury ________ : Juries are presumed to follow the letter of the law. But they may not.

A

Jury nullification

242
Q

Alternate evidence is on the ______ side of the scale.

A

Probative side of the scale

243
Q

Flight evidence factors?
1.
2.

A
  1. Attempts to flee
  2. B/C guilty conscience
    &
  3. Conscience guilt must = actual guilt
244
Q

_____ flight evidence: Courts routinely exclude because of the many reasons someone might not flee. IE: Aggravating charges, want to be caught, you accept that you will be caught anyways.

A

Non-flight evidence

245
Q

Purpose of 407?

A

Encourage remedial steps without fear of reprisal.

246
Q

408 purpose?

A

Encourage settlements without fear of reprisal + courtroom efficiency.

247
Q

T/F) Character is never an issue in criminal cases unless the ∆ chooses to make it one.

A

True

248
Q

___________ : The tendency to act in a certain way or the fact that someone is likely to behave in a particular way.

A

Propensity

249
Q

If evidence is offered to show conformity to propensity?

A

No

250
Q

If ∆ does not deny his involvement in the crime, which MOPKIA have you lost?

A

Identity

251
Q

Generally, this concerns events that are inextricably related to the crime charged. Shows a larger criminal scheme of which the crime charged is only a portion. [Jesse Pinkman]

A

Common Plan

252
Q

Common plan is relevant to show the ________ for the charged crime.

A

Motive

253
Q

This establishes identity by showing specific way in which ∆ commits a crime vs CP where prior acts don’t show a pattern but instead show why the current crime was committed.

A

MO

254
Q

Reverse 404 [∆ brings in character] is a double standard benefiting who?

A

The ∆!

255
Q

Why is ∆ offered more leeway in bringing in 404 evidence than the state?

A

Higher chance that when we do it the jury will punish the ∆ for the uncharged crime.

256
Q

Can ∆ use 404 [acts] reverse for any reason?

A

No, it must come in under a non-propensity reason.

257
Q

T/F) 404 also applies to witnesses.

A

True

258
Q

This Doctrine allows a prosecutor to admit evidence of prior “accidents” that can persuade a jury that prior incidents are so similar that it is very improbable that the case at bar is actually accidental. The doctrine of chances was first developed by English courts in the case Rex v. Smith, 11 Cr.

A

Doctrine of Chances

259
Q

Under this theory, as the # of incidents of an out-of-the-ordinary event increases in relation to a particular ∆, the objective probability increases that the charged act and/or the prior occurrences were not result of natural causes.

A

Doctrine of Chances

260
Q

Under this doctrine, more accidents = less likely accident.

A

Doctrine of Chances

261
Q

FRES ___ - ____ : These rules enacted in congress supersede restrictive nature of the FRE. Namely, other uncharged crimes relating to rape or molestation of minors is now plainly admissible. [Good]

A

FRE 413-415

262
Q

If ∆ calls W to testify to his good character. What’s your next move?
1.
2.

A
  1. Call Ws to provide contradictory testimony.
  2. CX his witness – only to test their knowledge of ∆ and refute evidence of ∆ good character.
  3. Prior convictions on CX on Direct. [Silver bullet] “Are you aware?”
263
Q

As a prosecutor, whats your “best” move when ∆ opens the door, bringing in W who testify he is of good moral character?

A
  1. CX his witness to test their knowledge of ∆
  2. Bring my own W with contradictory testimony
  3. Offer prior convictions through direct questioning of ∆s W. “Are you aware?” [Silver Bullet]
264
Q

Under 404, whens the only time you, as prosector, can raise character SPX instances?

A

Only on cross of ∆s character W who has testified to ∆s good character or to test their knowledge of ∆.

265
Q

∆ has opened the door. You have a few options but, whats the “silver bullet?”

A
  1. On direct or CX examination of character W, “are you aware of ∆s past conviction for xyz?”
266
Q

Which case showed that prosecutor can introduce 609 when ∆ opened the door?

A

Virgin Islands v. Roldan

267
Q

Rule of this case is “Evidence of other crimes used to prove identity is admissible if there is a high degree of similarity between the crimes, such as bomb making.”

A

US v. Trenkler

268
Q

MOPKIA exceptions essentially mean that the disputed evidence must be ___ ___ to the facts of the case for admission.

A

Inextricably intertwined

269
Q

When are MOPKIA exceptions inextricably intertwined?
1.
2.

A
  1. Forms part of transaction
  2. Necessary for P to establish narrative
270
Q

What’s a great way for the State to argue MOPKIA exceptions are “inextricably intertwined” evidence?

A
  1. Part of same transaction
  2. ** to establish your narrative**
271
Q

T/F) Evidence of a witness religious beliefs or opinions is not admissible to attack or support the witness credibility.

A

True. FRE 610

272
Q

FRE 610?

A

Religious beliefs or opinions

273
Q

607 =
608 =
609 =

A

607 = Who may impeach
608 = Character for truthfulness
609 = Past convictions

274
Q

608 allows reputation and opinion testimony regarding character for truthfulness. When does it allow CX of specific instances?

A

When probative for truthfulness

275
Q

608 is for bolstering or attacking WHO exactly?

A

The witness

276
Q

Under 608, W character can only be rehabilitated when?

A

When it has first been attacked. [Ordering Principle]

277
Q

608 allows specific instances on CX when probative of truthfulness. What if W gives answer you don’t like?

A

Stuck with it. No trial within a trial.

278
Q

Test to introduce alleged victim’s sexual traits in civil trial?

A

2 week notice and super reverse 403.

279
Q

Only time juvenile conviction admissible?

A

Criminal case where W is not the ∆.

280
Q

Are active appeals a bar to 609?

A

No.

281
Q

609 is used to impeach who exactly?

A

The Witness& the ∆ if he is bold enough to testify.

282
Q

Can 609 be used to impeach the ∆ directly?

A

If he dares to take the witness box, yes.

283
Q

T/F) Under 609, any crime involving dishonesty is coming in.

A

True

284
Q

Under 609, are non-truth related misdemeanors coming in?

A

No.

285
Q

Impeaching a W with felony conviction test.

A

403

286
Q

Impeaching ∆ who testifies with conviction test.

A

Reverse 403

287
Q

Jones factors?
1.
2.
3.
4.

A
  1. Impeachment value [similar = no]
  2. Time passed [good behavior = no]
  3. Important to ∆ testimony?
  4. Centrality of credibility
288
Q

Committed 1960, released 1963, recommitted 1967, released 1978. What date?

A

1978

289
Q

Hearsay defined?

A

Out of court statement offered to prove truth of matter asserted.

290
Q

Is machine generated statements hearsay?

A

No! Computers don’t make assertions.

291
Q

T/F) A statement is not hearsay if it is being offered to show the effect of the words spoken on the listener.

A

True. Effect on listener.

292
Q

If a witness has insufficient recollection to testify fully and accurately, a record of memorandum of witness prior statements may be admitted.

A

Recorded recollection

293
Q

Rule 601?

A

Competency: Every person is deemed competent to testify unless these rules provide otherwise.

294
Q

Rule 602 commands that…

A

…W must have PERSONAL KNOWLEDGE.

295
Q

T/F) To satisfy 602, evidence to prove personal knowledge may consist of the witness own testimony.

A

True!

296
Q

Rule 602 prevents lay witnesses from speculating about events or relating stories told to them by others.

Does it allow dreams?

A

No. Dreams do not satisfy personal knowledge.

297
Q

Rule 701?

A

Lay Opinion testimony by W

298
Q

Rule 701 commands that lay witness testimony must be limited to…

A
  1. Rationally based testimony
  2. No scientific shit
  3. Helpful to jury
299
Q

701 requirements?

A
  1. Rationally based
  2. No Scientific shit
  3. Helpful to jury
300
Q

702 commands.
1.
2.
3.

A
  1. Q & using facts RR
  2. PB
  3. PT
301
Q

702) Can we satisfy “qualified” requirement with experience? Or limited to formal training?

A

Both may qualify an expert.

302
Q

702) Expert qualifications can come from experience or otherwise. [T/F]

A

True

303
Q

702) Expert testimony on issues of law is not admissible since it is the judge’s responsibility to instruct the jurors on the law, not the witness. [T/F]

A

True

304
Q

In a ______________ case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

A

Criminal

305
Q

T/F) In sex abuse cases, an expert may testify as to whether he believes the victim’s story about abuse.

A

False. Must stick to Exp. script.

  1. Facts RR
  2. PT
  3. PB

* no opinions on law or W credibility*

306
Q

704) An opinion is not objectionable just because it embraces an ultimate issue. Exceptions?

A

Experts doing this in criminal cases. Big no no. These matters for triers of fact alone.

307
Q

Scenario
1. Expert testifies to W skill.
2. Expert testifies to W Mens Rea b/c of skill level.

Which proper?

A

One

308
Q

T/F) Experts should never testify as to a persons “intent.”

A

True!

309
Q

Expert proper topic?
1. Matters of common knwldge.
2. Opinions on law
3. Opinions on cred.
4. Opinions on eyewitness ID

A

No to all.

310
Q

When judges considers expert admissibility under 104(a), what will she look at?

A

Daubert:
1. Test?
2. Errors?
3. Peer reviewed?
4. Community acceptance?

311
Q

After 702, who are the gatekeepers for expert evidence admission?

A

Judges with the Daubert test.

312
Q

When do underlying [inadmissible/hearsay] facts that expert RR on come in?

A

When proponent wants it and clears super reverse 403.

On CX, adverse party is free to inquire into them.

313
Q

T/F) No restriction on adverse party asking expert about hearsay facts that expert RR on.

What is proponent wants to bring em in?

A

True

Super reverse 403

314
Q

Experts
1. Qualified
2. Proper basis =
3. Proper topic =

A
  1. PB = Underlying facts the sort reasonably relied on by experts?
  2. PT = not common shit
315
Q

Proper basis =

A

Underlying facts the sort reasonably relied on by experts?

316
Q

Proper topic =

A

Not common shit

317
Q

Downside to daubert?

A

Medical field. IE: New ideas / diets that are correct [Paleo & Carnivore] are cut out by scientific dogma.

318
Q

BER
To authenticate exhibit, the party offering the exhibit into evidence must present _____ _____ to support a finding that the exhibit is what the party claims it to be.

A

“Sufficient evidence”

319
Q

When are settlement negotiations admissible?

A

Undue delay
bias
prejudice

320
Q

The accused in a criminal case may introduce evidence of a __________ character trait because it may tend to show that he did not commit the crime charged.

A

Pertinent trait

321
Q

The general rule is that evidence of character traits is inadmissible in a civil case to prove that a party acted in conformity with those traits on a particular occasion. [T/F]

A

True

322
Q

When is character evidence admissible in civil trials?

A

When central to charged crime

323
Q

When must you give ∆ notice when brining in 404B evidence?

A

Criminal case only.

324
Q

What does 410 prohibit?

A

Settlement talk, withdrawn guilty pleas, & nolo contendere plea. NC means not pleading guilty but also not disputing charges.

325
Q

When is 411 admissible?

A

Bias, prejudice, or to show ownership or control.

[Life insurance, Casualty insurance]

326
Q

Offers of settlements and statements made in the context of such negotiations are not admissible. [T/F]

A

True

327
Q

T/F) Evidence of compromises or offers to compromise is inadmissible to prove or disprove the validity or amount of a disputed claim.

A

True. It need not be formal setting either. This can be something said from your hospital bed.

328
Q

[T/F] In a civil case, evidence of character to prove the conduct of a person in the litigated event is generally not admissible.

If true, why?

A

True. This 404 exception applies to criminal cases!

329
Q

∆ “opening the door” applies to __________ cases only.

A

Criminal

330
Q

“Opening the door” 404 exception is there for ∆s in criminal cases.

When is the only time civil ∆s can open the door.

A

If character is central to the charged crime.

331
Q

T/F) Evidence of insurance coverage (particularly where it is life insurance on the life of a homicide victim) is relevant and admissible for other purposes.

A

True, such as showing motive. Not barred by 411.

332
Q

T/F) Evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest.

A

True

333
Q

T/F) Impeachment may bring into evidence matters that would usually not be allowed, such as insurance coverage, because it goes to the credibility of the witness, rather than the liability of the defendant.

A

True.

334
Q

T/F) An attorney is not bound by a defendant’s denial of a conviction and may prove it by extrinsic evidence.

A

True

335
Q

Must you give notice to adverse party when brining in conviction?

A

Yes

336
Q

Is it necessary to call the attention of a witness to a conviction prior to introducing evidence of the conviction?

A

No.

337
Q

For impeachment by prior consistent/inconsistent statements of witness, must you lay foundation first?

A

Yes

338
Q

When can you impeach a witness with specific instances of their conduct?

A

When it is probative of their untruthfulness. 608 (b)

339
Q

The Federal Rules permit inquiry on cross-examination of a witness into a specific instance of that witness’s conduct that is _________ of the witness’s character for truthfulness.

A

Probative of witness character for truthfulness.

340
Q

T/F) After a plea deal is [accepted] it is now admissible.

A

True. 410 bars on withdrawn deals and NC.

341
Q

Generally, 608 bars extrinsic evidence to impeach a witness. It promotes cross into specific instances if probative of untruthfulness.

Exception for brining in EE?

A

If it goes to Bias. Bias trumps all.

342
Q

_____ trumps most rules here.

A

Bias

343
Q

When are prior inconsistent statements admissible to impeach? [Hearsay exception]

A

When W was previously able to explain or deny. [Foundation on CX]

344
Q

Prior Inconsistent statement hearsay exception, which is admissible for impeachment purposes. What is required?

A

Witness must have opportunity to explain or deny.

345
Q

Under that exception, declarations of the ∆s mental state are admissible as circumstantial evidence to show subsequent acts of the declarant in conformity with that intent.

A

Present state of mind

346
Q

____ _____ hearsay exception is where a record about a matter about which the witness once had knowledge but now has insufficient recollection.

A

Recorded recollection

347
Q

This rule applies to any statement made by a party and offered against that party. Such a statement need not have been against interest at the time it was made. It’s a fancy word for “admission” which occurred outside court.

[Such as driver after accident apologizing to other driver]

A

Party Opponent

348
Q

Under the former testimony exception to the hearsay rule, the testimony of a now unavailable witness given at another hearing is admissible in a subsequent trial as long as….

A

The witness was previously subject to cross examination.

349
Q

Can an experts opinion be based on evidence introduced at trial?

A

Yes

350
Q

Also adhering to 602, hearsay W must testify to things of personal knowledge.

Except sometimes. Which one?

A

Party opponent statement

351
Q

Is a recorded statement to the police by an unavailable witness admissible at trial?

A

No. This is testimonial and you have a right to confront said person. [Crawford]

352
Q

When is opinion not helpful to the jury?

A
  1. usurps the judge
  2. Jury didn’t need expert
  3. tells jury what verdict to reach
353
Q

When is topic improper?

A
  1. Not scientific
  2. Opinion on law
  3. Opinion on credibility
  4. Opinion on eyewitness ID
354
Q

Is opinions on eyewitness ID proper topic?

A

Only when it helps jury evaluate the merits of State’s ID evidence.

355
Q

Is opinions on W credibility proper topic?

A

No. Expert may define W actions only [why they behave that way] and let the jury decide.

356
Q

Is opinions on law or ultimate issue proper topic?

A

No

357
Q

Is it proper topic for expert to testify on “sounds and spellings” of words?

A

No, matter of common knowledge

358
Q

Expert witnesses may translate coded language for jury, but the testimony must be ACTUAL translation, not just partisan spin. [T/F]

A

True, W who is qualified as expert may translate coded language.

359
Q

Experts can not give opinions on law unless…

A

unless expert has been brought in to give opinion on foreign law.

360
Q

[Opinions on ultimate issue]

Which is proper?
1. Did T have capacity to make a will?

  1. Did T have sufficient capacity to know nature and extent of his property and natural objects of his bounty, etc.
A
  1. No
  2. Yes
361
Q

Expert opinion proper?
Expert = medical

  1. Opinion that ∆ Doc conduct fell below national standard of care.
  2. Opinion that ∆ Docs standard of care is described in detail, leaving to jury to analyze those facts to reach a conclusion.
A

2 is proper

362
Q

What was the issue in State v. Batangan? [Hawaii SC]

A

Expert testified that he believed the child. This is improper. He should have testified as to how a child acts when they have been abused and left analysis to the jury.

363
Q

Expert Testimony in one case regarding eyewitness testimony was proper because it was helpful to the jury to understand problems with eyewitness ID from memory

A

People v. McDonald

364
Q

T/F) Expert testimony about how reliable eyewitness identification is can be used in court if it helps the jury understand the identification better [Conneticut Supreme Court]

A

True

365
Q

The true test of admissibility of expert testimony is whether the experts have any _____ _____ or experience, not _______ to the word. which aids the court or jury in determining _____ ___ ______.

A
  1. Peculiar knowledge
  2. not common
  3. question at issue
366
Q

The true test of expert testimony is if they have what?

A

Peculiar knowledge, not common to this world, that is helpful to the court / jury in determining question at issue.

367
Q

Define the true test for expert admissibility.

A

“Whether the expert has peculiar knowledge, not common to this world, that is helpful to court/jury in determining the question at issue.”

368
Q

Ultimately, noting the many court variances, when is eyewitness ID expert analysis admissible?

A

Aids the jury in evaluating the state’s ID evidence.

369
Q

In general, opinion on ultimate issue is not objectionable except sometimes…

A

Except in a criminal case. Experts can’t state opinions on whether ∆ had or didn’t have Mens Rea.

370
Q

704(b)?

A

No opinions by experts on criminal ∆ Mens Rea.

371
Q

T/F) 704(b) allows testimony supporting an inference that the ∆ did / did not have mens rea.

A

True only if expert does not draw ultimate inference or conclusion that he had it.

372
Q

702 requires what of expert?

A
  1. Qualified
  2. Helpful to jury
  3. Suff. F/D [HearS=RR]
  4. Reliable P&M
  5. analysis
373
Q

PT =

A

Scientific shit

374
Q

PB =

A

Sufficient facts and data. If hearsay, it is the sort RR on by expert community.

375
Q

T/F) Experts can rely on hearsay

A

True

376
Q

Not proper topic?

A
  1. N Scientific shit
  2. O law [except foreign]
  3. O cred
  4. EW ID [except understand state evidence]
  5. O on ultimate issue
377
Q

PB
If experts in the field RR on the facts/data that form basis of opinion, they need NOT be admissible for opinion to be admitted. [T/F]

A

True. Permissive for expert opinion to be based on hearsay if hearsay is RR by expert community.

378
Q

[T/F] Experts can rely on hearsay.

A

True if hearsay is sort of evidence RR by experts in the community.

379
Q

When can proponent disclose hearsay facts that expert relied on to the jury?

A

Super reverse 403

380
Q

Knowledge requirement for facts/data relied on by expert?

A
  1. Perceived / made aware of b4 or at trial.
  2. If hearsay, must be RR by experts in field.
381
Q

On CX, can an expert testify about underlying hearsay facts?

A

Yes, no restrictions on adverse party CX. For proponent of testimony, super reverse 403.

382
Q

T/F) experts can base their opinions on facts that might not be allowed in court, like hearsay, if other experts in their field also use them.

A

True

383
Q

T/F) If admissible, hearsay used by expert can represent a loophole to the confrontation clause.

A

True, if it helps the jury to evaluate the experts opinion, not used for TOMA.

384
Q

____ test is the old standard which says underlying facts need only be [sufficiently established] to gain [general acceptance.]

Minority test in some states.

A

Frye test

385
Q

Who has burden of passing Daubert?

A

Proponent

386
Q

Old 702?
New 702?

A

Old:
1. Q
2. PT
3. PB
_______________
New:
1. Q
2. Qs helpful to trier of fact
3. Sufficient facts/data
4. Reliable principles / methods & applied to case

387
Q

New 702 test?

A
  1. Qualified in field
  2. Qualifications helpful to trier of fact
  3. Sufficient facts & data
  4. Reliable principles & methods which are applied to case at bar.
388
Q

Define the new 702 test.

A
  1. Expert Q in field
  2. Qualifications helpful to trier of fact.
  3. Sufficient facts and data [if hearsay, RR]
  4. Reliable principles & methods that are applied to case.
389
Q

901) Requirement of authentication as condition precedent to admission is satisfied by what?

A

Evidence sufficient to support finding that the matter in Q is what proponent claims.

[Evidence sufficient]

390
Q

901) Can “evidence sufficient” requirement of proponent be satisfied by W testimony?

A

Yes if they personally witness it. If not, must have original or duplicate.

391
Q

901 “sufficient evidence” is essentially what other rule?

A

Conditional relevance.

392
Q

901 requires satisfying FRE ___

A

104 (b)

393
Q

[901]
____ ____ theory: Evidence admitted upon proof of the reliability of the process which produced the photo / video tape.

A

Silent witness theory

394
Q

[901]

______ testimony: a W testifies that, based upon his personal knowledge, the tape is accurate regarding portrayel of incidents reflected there.

A

Pictorial testimony

395
Q

How to authenticate a video tape?

A
  1. Pictorial testimony [Cashier from robbery]
  2. Silent witness [W not available]
396
Q

1003) Duplicates are admissible to the same extent as originals unless…
1.
2.

A
  1. genuine Q as to authenticity
  2. Unfair
397
Q

1003) The rule requires that the duplicate be produced in same manner as original. Why?

A

To bar litigants from present “human recollections” of original.

398
Q

At an evidentiary hearing on the admissibility of the drawings, the district court ruled that the reconstructions were not admissible under the best-evidence rule. The court found that the unavailability of the original drawings was due to Seiler’s bad faith

A

Seiler v. Lucasfilm

399
Q

T/F) Under the best-evidence rule, a proponent seeking to prove the contents of documentary evidence must produce the original of the document. Recreations of the document are not sufficient.

A

True. Seiler v. Lucasfilm

400
Q

General exception to BER / authentication requirements?

A

An exception to the rule exists if the original writing is unavailable through no fault of the proponent. [Lucasfilm]

401
Q

Other exceptions to BER? IE: When can you use a duplicate?

A
  1. Lost not in bad faith
  2. Adverse party has original [put on notice, fails to produce]
  3. Document/photo is NOT closely related to controlling issue.
402
Q

The best-evidence rule says that a person can’t talk about what’s written or recorded somewhere unless they have the original or they saw what happened. [T/F]

A

True

403
Q

Per BER, if a person is to talk about original, they must…

A

possess the original or have seen what happened. [US v. Bennett]

404
Q

The court said no, a person can’t just talk about what’s written or recorded somewhere. They need the original or a printout of it or have personally seen it.

A

US v. Bennett

405
Q

Classes of Federal privileges?

A
  1. ACP
  2. Therapist-patient
  3. Husband-wife
  4. Informant
  5. Clergymen
406
Q

T/F) A spouse can choose to testify against their partner in court.

A

True since TRAMMEL overturned Hawkins.

407
Q

Can one spouse stop another from testifying?

A

No, only the spouse who is testifying can decide whether to use the marital privilege. [Trammel, heroine case wife testified for lighter sentence]

408
Q

Hawkins standard?

A

Both spouses must consent. This was changed in Trammel v. US.

409
Q

Trammel test?

A

Privilege is held by the witness-spouse only and a defendant-spouse may not independently invoke the privilege.

410
Q

Trammel balancing test?

A

Adversarial spousal testimony [vs] need for probative evidence in pursuit of justice

411
Q

____ abuse / neglect is an exception to Husband-wife privilege.

A

Child abuse. Must report.

412
Q

T/F) conversations between a patient and their psychotherapist, which are for diagnosing or treating emotional or mental conditions, are private and usually can’t be used in court.

A

True

413
Q

T/F) therapy sessions with social workers are also protected, because social workers provide similar services to psychotherapists but at a lower cost.

A

True

414
Q

T/F) In the corporate context, the attorney-client privilege applies not only to those high-level employees who have the authority to act on the legal advice of the attorney, but also to any of those employees who provide information to the attorney so that he may give such legal advice.

A

True

415
Q

T/F) The attorney-client privilege is not terminated by the death of the client, even when the need for the protected material is important to criminal litigation.

A

True

416
Q

Common Law Informants / news persons generally privileged from revealing info… except when?

A

Established by C&C evidence:

  1. Privilege knowingly waived
  2. Or material is relevant to controversy
  3. cannot be obtained by alt. means
  4. Necessary to proper presentation of case.
417
Q

Is there privilege for reports in grand jury context?

A

No.

418
Q

General requirement for confession to priest to be protected?

A

Must be in the ‘formal’ religious context / setting.

419
Q

T/F) No priests or rabbi shall be required to disclose confidential information.

A

True. Unless waived by party who is favored by the rule or the confession was not made in formal setting.

420
Q

Cases?
H-W privilege =
Therapist priv. =
Priest priv. =

A
  1. Trammel
  2. Jafee
  3. Morales
421
Q

________ : If information produced in discovery is subject to privilege the party making he claim may notify any party that received the info of the claim and basis for it.

A

Clawback

422
Q

After clawback notification

A

Promptly return
Sequester
destroy
notify court
etc.

423
Q

Does clawback protect you if you have been lax about your privilege?

A

No

424
Q

T/F) ACP/Clawback is absolute - it cant be overcome by a showing of need like WPD.

A

True

425
Q

ACP exceptions?

A
  1. Crime fraud
  2. Death / substantial bodily harm [discretionary]
426
Q

[Authentication]

T/F) Any person can testify to the authenticity of another’s signature as long as that witness has seen the person’s signature and can express an opinion regarding its authenticity.

A

True

427
Q

[Authentication]
T/F) Any person familiar with an alleged speaker’s voice may authenticate a recording of the voice by giving an opinion as to its identity.

A

True

428
Q

One method of authentication is _________ testimony, in which a witness may authenticate the object by testifying that it is what the proponent claims it is.

A

Recognition testimony

429
Q

BER process in court
1.
2.

A
  1. MUST supply the original first.
  2. May use secondary evidence if original not lost in bad faith.
430
Q

Under Federal Rule of Evidence 901(b), an _______ witness or the trier of fact can determine the genuineness of a writing by comparing the questioned writing with another writing proved to be genuine.

A

Expert witness only

431
Q

T/F) Any lay witness who is familiar with the signature of a person may testify as to his opinion as to its genuineness.

A

True. There are limits. Lay witness cannot then begin to compare & contrast writings.

Charleston Law 2L (23 decks)

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