Evidence

Question 1

Limiting Instruction Rule

Answer 1

Rule 105. Limiting Evidence That is not Admissible Against Other Parties or for Other Purposes: if the court admits evidence that is admissible against a party or for a purpose- but not against another party or for another purpose- the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Question 2

Rule 402. General Admissibility of Relevant Evidence

Answer 2

Relevant evidence is admissible unless any of the following provides otherwise:
- The US Constitution
- A federal statute
- These rules; or
- Other rules prescribed by the Supreme Court.
Irrelevant Evidence is not Admissible.

Question 3

What is the test for relevant evidence?

Answer 3

Rule 401: Test for Relevant Evidence.
Evidence is relevant if:
(a) It has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.

Question 4

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.

Answer 4

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
- unfair prejudice (most common)
- confusing the issues, misleading the jury
- undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 5

Old Chief

Answer 5

The presence of a stipulation may affect the balance of unfair prejudice and probative value under 403.
The Old Chief ruling includes 3 significant points related to 403 generally and to the specific effect of stipulations under that rule:
1) The court noted that 403’s balancing test requires the court to evaluate unfair prejudice and probative value in the context of the full evidentiary record. The availability of alternative evidence, including stipulations, affects the 403 balance.
2) The court observed that with respect to most elements of a crime, the prosecution can choose to present detailed evidence rather than accepting a defendant’s offer to stipulate.
3) Court concluded that the calculus differs in the special context of the felon-in-possession statute. The statute itself does not distinguish among previous crimes; conviction of any felony bars the defendant from gun possession. The probative value of introducing evidence of the nature of the previous crimes, therefore, is low.

Question 6

Rule 407. Subsequent Remedial Measures

Answer 6

When measures are taken that would have made an earlier injury or harm less likely to occur, the evidence of the subsequent measures is not admissible to prove:
- negligence
- culpable conduct
- a defect in a product or its design; or
- a need for a warning or instruction.

Question 7

Can the court admit evidence of subsequent remedial measures for other purposes than those listed in 407?

Answer 7

Yes! For example it can be admitted for:
- impeachment or
- if disputed - proving ownership, control, or the feasibility of precautionary measures.

Question 8

When is a remedial measure subsequent?

Answer 8

407 applies only to measures that are taken “after an earlier injury or harm.” Therefore, the rule shields only measures taken after the injury itself.

Question 9

FRE 407

Answer 9

Makes subsequent (taken after injury/harm) remedial measures inadmissible… IF offered to prove liability or fault… BUT NOT if offered for any other purpose like impeachment or if disputed, ownership, control, feasibility…

Question 10

FRE 408 Civil Compromise Offers & Negotiations

Answer 10

This rule applies only to civil cases. This rule makes statements by any party said while trying to resolve a case and any conduct while they are in some sort of settlement conversation inadmissible to prove liability, impeach, etc.

Question 11

Limitations set by FRE 408

Answer 11

1) you have to have a disputed claim… if parties are agreeing about liability and fault then what is there to worry about.
2) has to be some concrete attempts to settle the case and both have to understand that that is what is happening…
3) 408 only applies when the statements and conduct are offered to prove the validity or amount of the claim or dispute the validity or amount of the claim or to impeach by prior inconsistent statement.

Question 12

408 & criminal cases

Answer 12

408 states that in most criminal trials, neither the prosecutor nor the accused may introduce evidence from prior civil settlement negotiations for any of the purposes prohibited by 408.

Question 13

408(a)(2): the “Martha Stewart” exception

Answer 13

An exception for settlement discussions held during a civil regulatory, investigative, or enforcement action conducted by a gov agency. These are quasi-criminal proceedings and 408 allows parties to introduce evidence from these settlement discussions in a subsequent criminal prosecution.

Question 14

Can you shelter pre-existing evidence by dragging it into a settlement meeting?

Answer 14

No!

Question 15

Rule 409 - Medical Expenses

Answer 15

Excludes evidence of offers to pay medical expenses, as well as payment of those expenses, when offered to prove liability. This rule encourages individuals and organizations to pay medical expenses for people who have been injured.

Question 16

What under FRE 409 is inadmissible to prove liability for an injury?

Answer 16

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury.

Question 17

What are similar expenses under FRE 409?

Answer 17

Courts have construed “similar expenses” to include fees for all kinds of medical treatment and physical rehabilitation, but the rule does not encompass offers to pay lost wages, repair an automobile, or compensate an injured party for other types of economic or property damage.

Question 18

What does Rule 410 do? - Criminal Plea Bargaining

Answer 18

This rule excludes plea bargaining evidence. It does not exclude evidence of final guilty pleas entered as the result of plea bargain. A final plea bargain yields a conviction, which is a matter of public record.

Question 19

Does rule 410 exclude evidence from both civil and criminal trials?

Answer 19

Yes, while the evidence protected by rule 410 arises in criminal prosecutions, the rule bars admission of this evidence in either civil or criminal trials.

Question 20

What type of party does rule 410 bar admission against?

Answer 20

a defendant who made a plea or participated in plea discussions. However, a defendant could still introduce evidence from that process against others.

Question 21

What evidence is inadmissible under rule 410?

Answer 21

1) a guilty plea that was later withdrawn
2) a nolo contendere plea (where a defendant allows the court to assume guilty for purposes of sentencing, but does not admit guilt for other purposes).
3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or comparable state procedure
4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Question 22

Rule 410(b) - exceptions

Answer 22

the court may admit a statement described in 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement (a) under oath, (b) on the record, and (c) with counsel present.

Question 23

What are plea discussions? (410)

Answer 23

the rule defines “plea discussions” as one that occurs “with an attorney for the prosecuting authority.”

Question 24

How have a majority of courts analyzed ambiguous situations of determining plea discussions under 410?

Answer 24

they use a two-tier approach to analyze these situations. Under this approach, a plea discussion occurs if:
(a) the defendant displayed “an actual subjective expectation to negotiate a plea” and
(b) that expectation was “reasonable given the totality of the objective circumstances.”

Question 25

What does Rule 411 deal with?

Answer 25

Liability insurance! Under Rule 411, evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

Question 26

Under 411, can the court admit evidence of liability insurance or lack of liability insurance to prove other purposes aside from whether the person acted negligently or otherwise wrongfully?

Answer 26

Yes, the court may admit this evidence for another purpose such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Question 27

Is health care a form of “liability insurance”?

Answer 27

NOPE! disability, life, and many other types of insurance also fall outside the “liability” category.

Question 28

What are examples of liability insurance?

Answer 28

car insurance & medical malpractice insurance

Question 29

What are the differences between plea bargaining and confessing?

Answer 29

plea bargaining happens with prosecutors whereas confessing often can happen with police officers. When talking to police officers, you may accidentally confess… unless the judge decides that it was objectively reasonable that they thought they were plea bargaining, this would be confessing. Statements to police are almost never going to be protected by 410.

Question 30

When does 410 apply?

Answer 30

when the other party tries to bring into a criminal or civil case information that was from a guilty plea that was not finalized.

Question 31

What rules deal with qualifying a witness to testify?

Answer 31

To testify in court, a witness must be (1) competent (Rules 601, 605, and 606); (2) have personal knowledge (602); and (3) take an oath or affirmation (603). If an interpreter is necessary, the rules also provide for qualification of that person (604).

Question 32

What rules deal with how witnesses testify?

Answer 32

FRE 603, 604, 611, 612, 614, and 615.

Question 33

How do lawyer’s impeach witnesses?

Answer 33

FRE 607, 608, 609, 610, and 613.

Question 34

What were the common law four “capacities” needed to testify?

Answer 34

1) perception (602)
2) memory (602)
3) narration (611)
4) ability to understand and appreciate the nature and obligation of an oath (basically understand the penalty for lying) (603)

Question 35

Can you be deficient in the four capacities and be deemed competent to stand trial?

Answer 35

you can be deficient but can’t completely lack one of these abilities.

Question 36

Rule 601. Competency to Testify in General

Answer 36

Every person is competent to be a witness unless these rules provide otherwise…But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Question 37

Can judges who preside over a case testify as a witness?

Answer 37

Rule 605 says that the judge who presides over a case cannot also testify as a witness, because the roles of testifying and presiding are incompatible. This rule also prohibits the judge from offering commentary from the bench that amounts to testimony.

Question 38

Does rule 605 also apply to the judge’s law clerks and other employees?

Answer 38

Yes!

Question 39

Can a juror testify as a witness before the other jurors at the trial?

Answer 39

Rule 606 says that at the trial, a juror may not testify as a witness before the other jurors at the trial… if a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

Question 40

Do the FREs prohibit a lawyer from testifying on behalf of the party they represent?

Answer 40

No. However, the ethical rules discourage lawyers from testifying in cases in which they represent a party, and lawyers rarely take the stand in cases where they appear as counsel.

Question 41

Does a witness need to have personal knowledge?

Answer 41

Yes! Rule 602 states that a witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

Question 42

May evidence to prove personal knowledge under 602 consistent of the witness’s own testimony?

Answer 42

Yes it may.

Question 43

Does 602 apply to expert testimony?

Answer 43

Nope! the final sentence of Rule 602 notes the connection between this rule and Rule 703, which governs opinion testimony by experts.

Question 44

What rule governs oaths and affirmations in federal court?

Answer 44

Rule 603!

Question 45

Rule 603

Answer 45

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress the duty on the witness’s conscience.

Question 46

What happens if a witness refuses to make an oath or affirmation that satisfies 603?

Answer 46

the judge will exclude the witness’s testimony.

Question 47

What does rule 604 require of interpreters?

Answer 47

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

Question 48

What is the order in which parties take turns examining a witness at trial?

Answer 48

1) direct examination by the attorney who called the witness
2) cross-examination by the attorney for the other parties
3) redirect examination by the attorney who called the witness, if necessary
4) Recross examination by attorneys for other parties, if necessary
5) additional rounds of redirect and recross (although these are rare).

Question 49

What is the scope of cross-examination under rule 611(b)?

Answer 49

cross examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

Question 50

What does rule 611(c) state about leading questions?

Answer 50

leading questions should not used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(i) on cross-examination; and
(ii) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Question 51

What is a leading question?

Answer 51

a question that suggests an answer to the witness; it “leads” the witness to that answer.

Question 52

While 611 restricts the use of leading questions on direct, the rule gives judges discretion to allow leading questions when they are “necessary to develop the witness’s testimony.” What are the 4 contexts in which judges most often allow attorneys to lead witnesses on direct?

Answer 52

1) to establish pedigree info (educational background and occupation)
2) to direct a witness’s attention to a relevant place and time.
3) to help a witness who is hesitant, confused, or has trouble recalling.
4) hostile witnesses (leading questions are appropriate on direct when a party calls a witness who is likely to resist the party’s position).

Question 53

How does cross examination differ from direct examination?

Answer 53

1) leading questions are allowed, (however, if the attorney is questioning a friendly witness on cross, the judge may not allow the attorney to use leading questions as freely) and
2) the cross-examiner may ask questions only about issues covered during the direct examination. (however, 611(b) does give judges discretion to expand the scope of cross)

Question 54

Are questions related to impeachment always fair game on cross-examination?

Answer 54

Yes, regardless of the subject matter of the direct testimony or the number of questions the witness was asked on direct.

Question 55

What rule governs the court’s calling or examining of a witness?

Answer 55

Rule 614:
(a) the court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
(b) the court may examine a witness regardless of who calls the witness.
(c) a party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

Question 56

What rule deals with excluding witnesses?

Answer 56

Rule 615 states that “at a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person.
(b) an officer or employee of a party that is not a natural person, after being designated as a party’s representative by its attorney
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.

Question 57

What are the steps to refreshing recollection (FRE 612)

Answer 57

1) witness testifies that they can’t recall something
2) ask, “would reviewing x help refresh your recollection?”
3) witness must answer “yes” or at least “maybe.”
4) show refreshing item to adverse party.
5) ask to approach witness with item
6) show the item to the witness; “Please review this and let me know when you have finished.”
7) ask witness, “does that refresh your recollection?” and then take the item back.
8) if the witness says yes,
9) re-ask the original question and have witness answer.

Question 58

Can you impeach your own witness?

Answer 58

Yes, under FRE 607 both you and opposing counsel can impeach your witness. If you think the other side is going to impeach your witness, it could be good to ask those questions ahead of time so it doesn’t look like you’ve hidden that evidence.

Question 59

Can an adverse party introduce a writing used for refreshment into evidence even if the writing would not otherwise be admissible?

Answer 59

Yes, 612 trumps other rules of evidence when an adverse party invokes it; the rule gives the adverse party the right to introduce the writing for the limited purpose of assessing the witness’s credibility.

Question 60

Which FREs create impeachment methods for attorneys?

Answer 60

1) 608 discusses how to attack a witness’s character for credibility.
2) 609 describes when a witness’s prior criminal convictions are admissible to impeach them; and
3) 610 forbids an attorney from impeaching a witness because of their religious beliefs or opinions.
4) 607 allows parties to impeach any witness including one of their own.
[this list seems incomplete]

Question 61

Under FRE 613, can an attorney surprise witnesses by asking them without warning about prior inconsistent statements?

Answer 61

Yes, FRE 613(a) states that when examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

Question 62

When is extrinsic evidence of a witness’s prior inconsistenct statement admissible under 613(b)?

Answer 62

• if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or
• if justice so requires.

Question 63

4 main questions to ask for FRE 613

Answer 63

1) does the prior inconsistent statement pertain to a matter of consequence or a collateral matter? (of consequence means it is capable of changing the outcome of the proceeding).
2) how can a witness’s prior inconsistent statement be brought before the trier of fact?
3) when and how can a witness’s prior inconsistent statement be proven by “extrinsic” evidence?
4) What is evidence of the prior inconsistent statement offered to prove?

Question 63

When is evidence of a person’s character trait not admissible?

Answer 63

FRE 401(a)(1): evidence of a person’s character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character trait.

Question 64

May a court allow questions relating to a witness’s character for truthfulness?

Answer 64

FRE 608(b)(1):
1) on cross examination
2) “May” ask a testifying witness
3) about specific instances of conduct?
4) involving untruthfulness/dishonesty
5) must have a good faith belief
6) cannot be proven by extrinsic evidence.

Question 65

Under 608(b)(1) can you disprove a witness that denies something with extrinsic evidence.

Answer 65

NOPE! If a witness denies something, that is it. You cannot disprove them with extrinsic evidence.

Question 66

Which rules are exceptions to 404(a)(1) that pertain solely to testifying witnesses, and only to the character of those witnesses for truthfulness?

Answer 66

FRE 608 and FRE 609

Question 67

Do FRE 608 and 609 apply in both civil and criminal cases?

Answer 67

Yes!

Question 68

4 important points about FRE 608(b)

Answer 68

1) a party may ask a witness about “specific instances of conduct” on cross-examination to suggest that a witness has an untruthful character.
2) Attorneys must limit these questions to actions that are “probative of the witness’s character for truthfulness or untruthfulness.”
3) The judge has discretion to prevent questions cross-examining a witness about specific acts that reveal untruthful character; rule 608(b) states that the court “may allow” these questions.
4) Rule 608(b) bars proof of these specific instances by extrinsic evidence.

Question 69

What does rule 609 apply to?

Answer 69

FRE 609(a): the rules under 609 apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction.

Question 70

When does Rule 609 not apply?

Answer 70

FRE 609 does not apply when a party attempts to introduce a criminal conviction for a reason other than suggesting that a witness has untruthful character.

Question 71

FRE 609(a)(1)

Answer 71

For a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
- must be admitted, subject to rule 403, (in a civil case or a criminal case in which the witness is not the defendant.)
- must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant.

Question 72

When does 609(b) apply? & when is that evidence admissible?

Answer 72

FRE 609(b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later.
Evidence of the conviction is admissible only if:
1) Its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Question 73

What are the 3 special barriers to using convictions that are more than 10 years old?

Answer 73

1) the party seeking to use the conviction must give the adverse party reasonable written notice.
2) the judge must find specific facts and circumstances supporting the conviction’s probative value.
3) the judge must determine that the probative value of the conviction “substantially outweighs its prejudicial effect.” (reverse 403).

Question 74

When is evidence of a conviction not admissible under 609(c)?

Answer 74

If:
(1) the conviction has been subject of a pardon, annulment, certificate of rehabilitation, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year;
or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Question 75

When is evidence of juvenile adjudication admissible under FRE 609(d)?

Answer 75

If:
(1) it is offered in a criminal case
(2) the adjudication was of a witness other than the defendant
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.

Question 76

Is a conviction that satisfies 609 admissible even if an appeal is pending?

Answer 76

Yes under 609(e) a conviction is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Question 77

What does Rule 608(a) allow?

Answer 77

FRE 608(a) allows for character witnesses to be called to either testify to one’s untrustworthy character or to testify that they are a truthful person.

Question 78

What are 3 important caveats to FRE 608(a)?

Answer 78

1) the rule only allows general reputation or opinion evidence of character, not testimony giving specific instances of conduct related to a witness’s truthfulness or deceit.
2) Just as parties may cross-examine witnesses only on acts related to to their character for truthfulness or untruthfulness, not on other types of acts, character witnesses may only offer reputation or opinion evidence about another witness’s character for truthfulness or untruthfulness.
3) a party may introduce evidence of a witness’s truthful character only after that character has been attacked.

Question 79

May character witnesses offered under Rule 608(a) give specific examples of the fact witness’s untruthful behavior?

Answer 79

Nope! Also- apart from introducing evidence of criminal convictions, the party may not offer extrinsic evidence, such as documents or testimony from other witnesses, to show specific instances of a fact witness’s untruthfulness.

Question 80

Once a fact witness’s character for truthfulness has been attacked, how may a party introduce evidence to show the witness’s truthful character?

Answer 80

There are 3 primary forms of such evidence:
1) explanation of any extenuating circumstances related to specific incidents of untruthfulness raised by the opponent during cross-examination. The party usually elicits these details from the fact witness on redirect examination.
2) Explanation of any extenuating circumstances related to prior convictions. These facts are usually elicited on redirect.
3) Introduction of reputation or opinion evidence suggesting a character for truthfulness. The party offers this testimony through a rebuttal character witness.

Question 81

Does 608(b)(2) allows parties to ask character witnesses on cross-examination about specific instances of a fact witness’s behavior?

Answer 81

Yes! While the party who calls the character witness may not ask about specific instances, the lawyer on cross-examination can! However, parties cannot offer extrinsic evidence of that conduct.

Question 82

Can parties use a witness’s religious beliefs to attack the witness’s credibility?

Answer 82

Nope! Rule 610 prohibits parties from using a witness’s religious beliefs to attack the witness’s credibility. The rule also bars parties from using religious beliefs to enhance credibility.

Question 83

Can evidence of one’s religious beliefs be offered for other purposes aside from attacking or supporting the witness’s credibility?

Answer 83

Yes! Evidence of one’s religious beliefs can be offered for other purposes. Such evidence can be offered when relevant to other matters.

Question 84

What are 3 ways to introduce evidence of untruthful character of a witness?

Answer 84

1) FRE 608(b)(1): on cross exam, ask the fact witness about specific instances of untruthful behavior
2) FRE 609: confront the fact witness with a prior criminal conviction
3) FRE 608(a): call a character witness to testify by way of opinion or reputation regarding the fact witness’s character for untruthfulness.

Question 85

How does FRE 608(a) work?

Answer 85

1) attacking party must go first. No “bolstering” permitted.
2) character witness’s testimony on direct may ONLY be in the form of reputation and/or opinion. NEVER specific acts.
3) MUST lay a foundation that character witness has sufficient knowledge to express opinion and/or relate reputation.

Question 86

What constitutes an attack on one’s character for truthfulness?

Answer 86

1) on cross, the witness is questioned about a specific instance of untruthful character.
2) on cross, the witness is questioned about a criminal conviction
3) opposing party presents reputation and/or opinion evidence from a character witness regarding the fact witness’s untruthful character.

Question 87

What is the rule of completeness?

Answer 87

FRE 106: If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other party - or any other writing or recorded statement - that in fairness ought to be considered at the same time.

Question 88

When does FRE 106 allow a party to introduce qualifying portions of a writing or recorded statement?

Answer 88

as soon as the opponent offers the first portion.

Question 89

Does FRE 106 apply to oral conversations, photographs, and physical objects?

Answer 89

NOPE! FRE 106 applies to only writings and recorded statements; it does not apply to other forms of evidence.

Question 90

Can court use 403 and 611 to develop a similar completeness principle for oral statements?

Answer 90

Yes!

Question 91

4 categories of “character evidence”

Answer 91

1) evidence of witness’s character for truthfulness [FRE 608, 609]
2) evidence of anyone’s propensity to act in a certain way on a particular occasion, based on their character or past acts [mostly barred by FRE 404(a)(1)]
3) evidence relevant to someone’s character, when that person’s character is an essential element of a charge, claim or defense [FRE 405(b)]
4) Evidence of past acts which may suggest a character trial, but which are not offered to prove propensity [FRE 404(b)].

Question 92

FRE 405

Answer 92

(a) When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion… on cross examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) when a person’s character or character trait is an essential element of a charge, claim, or defense, the character trait may also be proved by relevant specific instances of the person’s conduct.

Question 93

What types of cases have the person’s character trait as the subject of a case?

Answer 93

1) Defamation (libel, slander)
2) Child Custody Cases
3) Entrapment cases
4) Negligent entrustment cases

Question 94

What rule bars character evidence when used to prove propensity?

Answer 94

Rule 404(a)(1): Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Question 95

Is some character evidence to prove propensity in criminal cases allowed?

Answer 95

Yes, FRE 404(a)(2) allows some character evidence to prove propensity in criminal cases.

Question 96

what are the 3 critical points of FRE 404(a)(2)?

Answer 96

1) must be a criminal case
2) defendant must be first (prosecution can’t start the fight)
3) character trait must be pertinent

Question 97

How does 404(a)(2) work?

Answer 97

1) defendant offers evidence of own pertinent trait, prosecutor may rebut ONLY with evidence that defendant has opposite of that same trait [404(a)(2)(A)]
2) If defendant offers evidence of victim’s pertinent trait, prosecutor may rebut with BOTH evidence that victim has opposite of that trait AND that defendant possess that same trait ascribed to victim [404(a)(2)(B)]
3) in homicide cases, if defendant offers any evidence that victim was first aggressor, prosecutor can respond with evidence that victim had peaceful, nonviolent character [404(a)(2)(C)].

Question 98

What does FRE 404(b) do?

Answer 98

404(b) exceptions to general bar against propensity evidence of prior acts when offered to prove something other than propensity.

Question 99

How to figure out whether evidence of a prior act is offered to prove something other than propensity.

Answer 99

The vital question is what the evidence is being offered to prove…
are they trying to prove the person has a particular character trait and acted in accordance with it?
or are they trying to prove something else?

Question 100

What is FRE 406?

Answer 100

evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Question 101

What does habit mean in the FREs?

Answer 101

habit refers to specific, repeated responses to a particular situation or stimulus. In other words, habit means an individual who is placed in a particular situation will respond over and over again with the same specific behavior.

Question 102

What are prohibited uses of a victim’s sexual behavior or predisposition? FRE 412

Answer 102

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
1) evidence offered to prove that a victim engaged in other sexual behavior; or
2) evidence offered to prove a victim’s sexual predisposition.

Question 103

4 important points regarding FRE 412(a)

Answer 103

1) the rule encompasses both civil and criminal proceedings
2) in both civil and criminal context, rule 412 applies only to trials “involving alleged sexual misconduct”
3) 412 bars both types of evidence that rape defendants previously offered to show propensity: it prohibits evidence of specific acts AND of reputation or general character.
4) the rule broadly bars evidence of sexual behavior or predisposition regardless of the purpose for which a litigant offers that evidence.

Question 104

What are the exceptions to 412(a) that are provided in 412(b) for criminal cases?

Answer 104

412(b)(1): the court may admit the following in a criminal case
(A) specific instances of alleged victim’s sexual behavior if offered to prove that someone other than the defendant was the source of physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct if offered by the defendant to prove consent or if offered by the prosecutor;
(C) evidence whose exclusion would violate the defendant’s constitutional rights.

Question 105

What are the exceptions to 412(a) that are provided in 412(b) for civil cases?

Answer 105

FRE 412(b)(2): in a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger:
(A) of harm to any victim and
(B) of unfair prejudice to any party
(C) the court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

Question 106

Does rule 412 apply to sexual harassment suits even when the plaintiff claims no sexual assault or other physical contact?

Answer 106

Yes!

Question 107

Are FREs 413, 414, and 415 exceptions to 404(a)’s prohibition of character evidence?

Answer 107

Yes! These rules allow the use of character evidence to prove a defendant’s tendency to commit sexual assault or child molestation.

Question 108

What does FRE 413 allow?

Answer 108

FRE 413 allows prosecutors to introduce evidence of other sexual assaults committed by the defendant and use that evidence for any purpose, including to suggest that the defendant has a propensity to commit sexual assaults.

Question 109

What does FRE 414 do?

Answer 109

achieves same result as FRE 413 for prosecutions for child molestation.

Question 110

What does FRE 415 do?

Answer 110

Allows the same evidence as FRE 413 & 414 and propensity reasoning in civil cases involving sexual assault or child molestation.

Question 111

When does FRE 104(a) apply?

Answer 111

applies when evidence offered is unquestionably relevant, but the resolution of a legal issue or the application or a policy-based exclusion determines admissibility.
Must find by a preponderance of the evidence.

Question 112

When does FRE 104(b) apply?

Answer 112

When the evidence is relevant only if some disputed fact is true, then admissibility depends on whether there is a sufficient (prima facie) showing of that fact.
Must find that a rational jury could conclude by a preponderance of the evidence.

Question 113

What does judicial notice apply to?

Answer 113

Judicial notice applies to things that advances a party’s case - adjudicative facts

Question 114

What are legislative facts?

Answer 114

general observations appellate courts and legislatures make in opinions and bills to justify policy decisions and enactments. These don’t relate to the specific cases or specific facts of a case, for example:
- “Interstate travel is common in the U.S.”
- “Guns are widely available in the United States.”

Question 115

What are adjudicative facts?

Answer 115

facts related to the present case which the parties want to prove to help meet their burden of proof or to undermine the opposing party’s case, for example:
- “Mt. Rainier is in the State of Washington”
- “It was raining in Seattle on April 15, 2019”

Question 116

What are facts subject to judicial notice under FRE 201(b)?

Answer 116

“Adjudicative” facts which are not subject to reasonable dispute because:
1) they are generally known in the court’s jurisdiction, or;
2) they can be readily determined by sources whose accuracy cannot be reasonably questioned.

Question 117

When can courts take judicial notice under FRE 201(c)?

Answer 117

1) MAY do it whenever they want, if it’s an adjudicative fact not subject to reasonable dispute.
2) MUST do it if it is an adjudicative fact and a party requests it and supplies with judge with sources whose accuracy cannot be reasonably questioned.

Question 118

What is the effect of judicial notice in civil vs criminal cases?

Answer 118

Civil cases: judicially noticed facts are conclusively proven
Criminal cases: jury may accept or reject judicially noticed facts.
(this works similarly for stipulations)

Question 119

What are stipulations?

Answer 119

agreements between lawyers in the case that they do not want to fight about something.
Parties can agree that a fact is not in dispute, even if that fact is not properly the subject of judicial notice.

Question 120

What are the 3 requirements for “Lay” opinions under FRE 701?

Answer 120

1) must be based on the witness’s own perception (FRE 602, personal knowledge)
2) the opinion must be helpful to the jury (FRE 401-402, relevance)
3) the opinion can’t rest on scientific, technical or specialized knowledge, but may rest to some extent on every experiences in the witness’s life (FRE 701-702).

Question 121

Must expert testimony be based on reliable principles and methodologies?

Answer 121

Yes

Question 122

How to determine reliability of expert testimony?

Answer 122

Daubert Test:
In determining reliability, courts should consider (among other things):
1) whether the theory or technique underlying the expert’s testimony has been tested;
2) whether the theory or technique has been subject to peer review and publication;
3) the technique’s known or potential error rate;
4) whether standards exist controlling the technique’s application
5) whether the theory or technique has been generally accepted in the relevant scientific community.

Question 123

What is the rule that governs expert testimony?

Answer 123

FRE 702

Question 124

What are the requirements for expert testimony under 702?

Answer 124

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(A) THE EXPERT’S SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE WILL HELP THE TRIER OF FACT TO UNDERSTAND THE EVIDENCE OR TO DETERMINE A FACT IN ISSUE;
(B) The testimony is based on sufficient facts or data;
(C) The testimony is the product of reliable principles and methods; and
(D) The expert has reliably applied the principles and methods to the facts of the case.

Question 125

What are the 4 steps to lay foundation for experts and their testimony?

Answer 125

1) Qualify the witness as an expert to testify based upon scientific, technical or specialized knowledge, education, skill, training or experience (FRE 702)
2) Demonstrate that the proposed testimony of the expert is based upon valid science or methodology, such that it is “reliable” (FRE 702 and Daubert)
3) Demonstrate that the expert used accepted, reliable techniques to apply the scientific theory, technical or specialized knowledge (etc.) to the facts of this case (FRE 702 and Daubert)
4) Show that the expert’s testimony will be helpful to the jury in determining some fact of consequence in the case (the “fit” requirement of FRE 702, relevance under FRE 401, and balancing under FRE 403.)

Question 126

What are things only experts get to do?

Answer 126

1) Despite exclusion order under FRE 615, experts may remain in court and observe the testimony of other witnesses if experts in the field reasonably rely on such testimony in forming opinions.
2) Certify books and other reference materials as “Learned Treatises” under FRE 803(18).
3) Testify to opinions and conclusions not based solely on their own perceptions and personal knowledge, but also on hearsay and other inadmissible evidence - if experts in the field “reasonably rely on such information in rendering opinions.” (FRE 703, 705)
4) Be asked and answer hypothetical questions based on evidence presented at trial (FRE 611, Common Law).

Question 127

May you elicit an expert’s opinion without first eliciting the facts and/or data upon which that opinion is based?

Answer 127

Yes, under FRE 705

Question 128

When can facts and/or data relied upon by an expert in forming an opinion be admitted?

Answer 128

If the facts and/or data relied upon the expert in forming an opinion are otherwise inadmissible, the proponent of the testimony may only disclose the facts and/or data to the jury if the probative value in helping the jury evaluate the expert’s opinion substantially outweighs the prejudicial effect. (FRE 703, FRE 105).

Question 129

May an expert be required to disclose facts or data on cross examination?

Answer 129

Yes under 705

Question 130

What does absolute vs qualified immunity mean?

Answer 130

Absolute means they can only be waived if the person that holds it waived it.
Qualified privileges are privileges that allow the opposing party to compel someone to reveal information if they are able to make an adequate showing.

Question 131

Who can waive a privilege?

Answer 131

only a person who controls the privilege can waive it.

Question 132

Do privileges apply even when other FRE’s don’t?

Answer 132

Yes

Question 133

what does implied waiver mean?

Answer 133

something someone does that waives privilege…
Sometimes people make mistakes. Happens during discovery when sending something that was confidential. There are ways to fix that if you fix it quickly but it is important to be really careful about that.

Question 134

What are the basics of Attorney/Client Privilege?

Answer 134

1) A/C privilege protects communications, not independently existing facts or objects
2) Protects communications made in “confidence”
3) Protects communications by the client and the lawyer, for the purpose of obtaining and providing legal advice, legal services, representation, etc.
4) Crime-fraud exception
5) Client controls the privilege; attorney can and should assert.

Question 135

Does an attorney need to know the client was using them to commit a crime in order for the crime-fraud exception to apply?

Answer 135

Nope

Question 136

Are people who work for the attorney also covered by the privilege?

Answer 136

Yes

Question 137

What are the basics of work product doctrine?

Answer 137

1) Protected by absolute privilege:
Attorney’s mental impressions, conclusions, opinions, legal theories and analysis
2) Protected by qualified privilege:
Factual complications and summaries

Question 138

In a corporate setting, when is a communication covered by absolute a/c privilege under Upjohn?

Answer 138

1) An employee of the corporation
2) Is directed to speak
3) Confidentially
4) To the corporation’s lawyers
5) About a matter within the scope of that employee’s duties
6) For the purpose of obtaining legal advice for the corporation and/or to prepare for litigation

Question 139

Who can waive a/c privilege in a corporate setting?

Answer 139

only the “control group” can waive… the control group consists of CEO and other higher ups.

Question 140

What is “use immunity”?

Answer 140

Prosecutors can offer immunity to get rid of someone’s criminal liability as a way to motivate them to testify. Basically when this immunity is given, the prosecutors can’t use what they say against them.

Question 141

fifth amendment

Answer 141

“No person shall be compelled in any criminal case to be a witness against himself…”

Question 142

What is spousal testimonial privilege?

Answer 142

spouses can’t be compelled to testify against their spouse in a criminal case or criminal grand jury.

Question 143

What is marital communications privilege?

Answer 143

allows spouses to keep confidential communications secret

Question 144

When does spousal testimonial privilege apply?

Answer 144

only in criminal cases when one spouse is a defendant or grand jury target.

Question 145

who controls the spousal testimonial privilege?

Answer 145

witness-spouse controls the privilege

Question 146

how long does spousal testimonial privilege last?

Answer 146

only lasts while the marriage lasts

Question 147

What are the exceptions for spousal testimonial privilege?

Answer 147

when it is a crime by one spouse against another, against a child in their care and, in many courts crimes jointly committed by the spouses.

Question 148

When does the marital communications privilege apply?

Answer 148

applies in both civil and criminal cases and applies whether either spouse is a party or not

Question 149

how long does marital communications privilege survive?

Answer 149

Survives past the end of the marriage

Question 150

who controls the marital communications privilege?

Answer 150

both spouses

Question 151

What is covered under the marital communications privilege

Answer 151

communication must have occurred during the marriage and have been made in confidence. It covers only communications and not observations.

Question 152

Is saying something around kids who are old enough to understand in confidence?

Answer 152

Nope

Question 153

What are the exceptions to marital communications privilege?

Answer 153

crimes by one spouse against another, a child in their care, and in most courts crimes jointly committed by the spouses.

Question 154

What rules govern authentication?

Answer 154

901-902

Question 155

Authentication: FRE 901-902 in simple terms

Answer 155

If you want to introduce some item into evidence (physical object, document, photo, video, etc.), you must make a prima facie showing that is is what it purports to be (FRE 901). If the evidence passed through a number of hands before being presented in court, you will have to establish a “chain of custody.”
There is a closed list of things that are self-authenticating (FRE 902). You do not need to know this list for the exam.

Question 156

What is the burden for authentication?

Answer 156

prima facie - a low burden- basically someone with personal knowledge has to say it is what they say it is.

Question 157

What rules govern the best evidence rule?

Answer 157

1001-1004

Question 158

Best Evidence Rule: FRE 1001-1004 in simple terms

Answer 158

1) If you want to prove the content of a writing, recording, photo, or video, produce the writing, recording, photo or video in court so everyone can judge for themselves what it says or shows (FRE 1001-1002).
2) Duplicates of writings, recordings, photos and videos are admissible as long as there is no genuine question raised about the authenticity of the item or it would be otherwise unfair to admit the duplicate. If there is a genuine question raised or if it would be unfair to use a duplicate, get the original (FRE 1003)
3) In rare circumstances, you don’t have to produce a writing, recording, photo or video to prove content (FRE 1004)

Question 159

What rule prohibits a juror from testifying as a witness in the same case in which the juror serves?

Answer 159

606(a)

Question 159

What rule bars inquiry into jurors’ mental processes, communications with other jurors, and other aspects of the jury’s deliberations through juror testimony

Answer 159

FRE 606(b)

Question 160

important points of 606(b)

Answer 160

1) Applies AFTER the jury renders a verdict
2) Restricts only testimony from JURORS
3) Bars inquiry into jurors’ MENTAL PROCESSES, COMMUNICATIONS WITH OTHER JURORS, AND OTHER ASPECTS OF THE JURY’S DELIBERATIONS.

Question 161

What are exceptions to 606(b) provided in 606(b)(2)?

Answer 161

EXTRANEOUS prejudicial information brought to the jury’s attention
Improper OUTSIDE INFLUENCE
MISTAKE in entering verdict

Question 162

Under 609(c) is evidence that the accused committed a crime as a juvenile ever admissible?

Answer 162

Nope