Evidence (from GOAT) Flashcards
offers of proof is basically telling the judge (1) what the evidence is, (2) an explination of how the evi relates to case itself, and (3) args supporting its ___
admissibility
Sometimes the court takes judicial notice of facts generally known in the jurisdiction or facts that NO ONE is arguing about from accurate, ____ sources
unquestionable
ei., farmers almanac, historical facts, geographic facts
are mandatory presumpmtions allowed in criminal cases?
NOPE
b/ in crim case you are PRESUMED innocent. So the prosecution must prove each and every little baby element of this crime
juducial notice in crim cases = jury CANNTO ACCEPT
judicial notice in civil case = ___
mandatory
can a judget let in circumstancial evidence?
sure
judge determines admissibility of evi, juries determine credibility and ___ of witness testimony
reliability
can juries testify about the deliberation?
NO - not in crim or civil cases. Jurors cannot testify about the delibrations that took place to get a verdict or idictment
the ___ has the burden of proving every element of the offense
state
So if one side shows the damn mail was properly addressed, stamped, and sent out… it is then presumed to be ___ by the other side.
recieved
Remember: The Appellate court will NOT overturn a judge on abuse of discretion grounds unless he acted ____ or irrationally.
arbitrarily
Let’s talk about the basics of cross examination and some things that may come up on F24:
for teh SCOPE of cross - you can only ask about matters _______ of the direct examination OR things that test the witness’s credibiliby (bias, perception, ____)
within the scope
memory
It doesn’t matter. ____ is always relevant and can always be brought up, even if it’s not within the scope of the earlier questioning.
imepachment
Goat-Note: Remember, a party themselves (like the defendant) doesn’t have the right to be present for ___ parts of the trial (like when the lawyers go back and argue a quick in limine motion)… just the important parts in front of the jury.
ALL
Impeachment is simply casting an adverse reflection on the ___ of a witness
VERACITY
can you impeach a witness by extrinsic evidence?
YES
like calling on other witnesses or brining in docs to show witness is lying
in a civil trial, they can use your prior silence to imepach you and the jusry can draw adveerse inferences based on your pre-trial silence
BUT in crim cases, you have the right to remain silent, so POST-MIRANDA, post-arrest silence ____ be commented on or used to impeach
CANNOT
Anyway, you can impeach with prior convictions
But whether or not we can impeach depends on three things:
- The amount of time passed
- ____
- And whether our witness is the defendant or not
What type of crime it is
Final-Note: Federal law governs issues of privilege in federal court. But in diversity cases, they use the ___ privilege laws =)
state
Mindfuck Concept #2: Normally, as we said before, prior inconsistent statements are only brought in to impeach. However, when they are from an opposing party they can also be brought in _____ and be considered for their truth.
substantively
Mindfuck Concept #1: Normally the prior inconsistent statement is just allowed in for impeachment… however it can be allowed in substantively (meaning the jury can consider it for it’s truth as well, not just for it’s ability to show the witness a liar) when it is given __at a prior formal hearing, proceeding, trial or deposition.
under oath
There are two times when the prior inconsistent statement can be brought in both to impeach and as substantive evidence.
- when the statement was made udner oath of some sort
- deposition
- formal hearing
- trial - if it is from the opposing party it can be brought in substantilly and be consdiered for its truth
over 10 years old crime = ____
under 10 Defendant’s non-dishonest crime =
under 10 year non-dishonest crime of Witness = don’t waste juries time
substantial
probative
But what about… bad stuff people weren’t arrested for? Can we impeach with prior bad acts?
That’s a good question.
You can bring in specific bad acts which involve untruthfulness (things like lying and deceit, NOT prior arrests) as kind of a “shots fired” question on cross only
But you can’t go into it after you fire your shot
I could say to a witness on cross-examination who was talking shit “Isn’t is true that you… lied on your college application?”
SHOTS FIRED.
If the witness says “no” … I can’t then bring in EXTRINSIC evidence to prove he did lie (like documents or witnesses)
Because then we’d have a goddamn TRIAL within a TRIAL
Okay so if a witness has a bias or interest in the case… they can be impeached on that at any time. The most common bias or interest situations the MBE highlights are having a ____ interest at play, or a personal vendetta against someone they are testifying about, or they are afraid of abuse from their husband, etc.
financial
for prior inconsistent statements, they are usually NOT available as substantive evidence because they are almost always OOC statement and thus hearsay
BUT if we want to impeach someone with extrinisic evidence of a prior inconsistent statement,
the witness MUST be given an opp to _____ or ___ that statement
explain or deny
Mindfuck exception #1: You can impeach a hearsay declarant with a prior inconsistent statement without giving them a ____
chance to explain or deny
Mindfuck Exception #2: If a prior inconsistent statement is from an opposing party, no opportunity to explain or deny is needed. It will get in as an ___automatically.
opposing party admission
Mindfuck Exception #3: If the court finds in the _____ that the prior inconsistent statement should get in without an opportunity to explain or deny from the witness, it gets in.
interest of justice
an expert may NOT state an opinion as to whether the accused did or did not have the _____ at issue in a CRIMINAL CASE
BUT in a CIVIL CASE a psychiatrist can testify about a mental state as long as the expert is qualified and its based on specialized knowledge and sufficent data + helpful to trier of fact
mental state
are there any constituional prohibitions against testimony obtained under hypnosis?
no
under FRE 1101(c) rules on privilege apply to ALL STAGES of a case, including grand jury proceedings
Someone is charged with arson of their own house… is evidence that they fully insured it beforehand relevant?
oh yeah
spousal privilege is about testifying. Marial communications is about ____ communications
private
spousal immunity applies in _____ ONLY and says that a witness-souse cannot be forced to testify against a defendant spouse in a criminal case to any communications made between the two DURING or BEFORE their marriage
criminal cases
the spousal immunity privlege ends upon ___
the spousal immunity covers all information learned DURING and BEFORE the marriage
divorce
the spousal testimonial privlege is the “faithful lover” privlege.Remeber that the spouse CAN testify if they want to, but if they are a FAITHFUL LOVER they do ___ have to
not
the marital communications privilege applies in _____cases and says that one spouse may NOT, even if they want to testify to any CONFIDENTIAL COMMUNICATIONS between the couple during a valid marriage unelss the other spouse WAIVES it
criminal and civil
does the marital communciations privlege say alive even after the marriage ends?
yes!!
