Evidence MBE Flashcards
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What facts are subject to judicial notice?
facts that are not subject to reasonable dispute because they are either
(i) generally known within the territorial jurisdiction of the trial court, or
(ii) capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned
What are the four requirements to admit a record under the recorded recollection hearsay exception?
- Made by the witness near the time of the event
- The witness’s memory cannot be revived
- It is about something that the witness once had knowledge of
- There is sufficient evidence that the record was accurate when made
The party offering the evidence ordinarily bears the burden to persuade the judge by a
preponderance of the evidence
What is the plain error rule?
A plain error is one that is obvious to the reviewing court and if it affects a substantial right is grounds for reversal, even if no objection was made
Explain the completeness doctrine
When a party introduces part of a statement, an adverse party may compel the introduction of an omitted portion of the statement if, in fairness, it should be considered at the same time
- such as when the omitted portion explains or clarifies the admitted portion
- The adverse party may do so over a hearsay objection
What are the exceptions to not asking leading questions in direct examination?
when necessary to develop the witness’s testimony
(i) preliminary background matters
(ii) hostile witnesses, and
(iii) minors or those with difficulty communicating.
Distinguish between the pendency of an appeal of a conviction and a pardon for impeachment purposes
If pardoned –> not admissible as a conviction because it has been pardoned
If an appeal is pending –> conviction is admissile along with evidence of the pendency is also admissible
When does the intentional destruction of evidence raise a rebuttable presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence?
the alleged victim must establish that:
(i) The destruction was INTENTIONAL;
(ii) The destroyed evidence was RELEVANT to the issue about which the party seeks such inference; and
(iii) The alleged victim acted with DUE DILLIGENCE as to the destroyed evidence
To what proceedings do the Federal Rules of Evidence not apply?
- preliminary question of fact governing admissibility;
- Grand jury proceedings; and
- Criminal proceedings for:
(a) issuance of a search or arrest warrant or a criminal summons;
(b) A preliminary examination in a criminal case;
(c) Extradition or rendition;
(d) Consideration of bail or other release;
(e) Sentencing; and
(f) Granting or revoking probation or supervised release.
What requirements must be met for the opinion of a lay witness to be admissible?
opinion must be:
(i) Rationally based on the perception of the witness; and
(ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue
What five hearsay exceptions only apply when the hearsay declarant is unavailable?
(1) Former testimony;
(2) Dying declaration;
(3) Statement against interest;
(4) Statement of personal or family history;
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability
When must a preliminary hearing on admissibility be conducted outside the presence of the jury?
- on the admissibility of a confession
- when the defendant in a criminal trial is a witness and so requests it, or
- when justice requires it.
What is the dead man statute?
In civil cases, a party with a** financial interest** in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case.
How can handwritting be authenticated?
- An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine; or
- A lay witness with personal knowledge of the claimed author’s handwriting may authenticate the handwriting, as long as the witness did not become familiar with the handwriting for the purposes of the current litigation
When may the prosecution offer evidence of an alleged victim’s good character in a criminal case?
The prosecution can offer:
(i) Rebuttal evidence of a victim’s good character when the defendant has introduced evidence of the victim’s bad character; and
(ii) Evidence of the victim’s character trait for peacefulness in homicide cases to rebut evidence that the victim was the first aggressor
When can evidence that a criminal defendant committed another sexual assault be admitted?
Always to prove any relevant matter if the case has to do with a sex crime or conspiracy thereof
What four categories of witnesses may not be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?
(i) A party who is a natural person;
(ii) An officer or employee of a party that is not a natural person if that officer or employee has been designated as the party’s representative by its attorney;
(iii) Any person whose presence is essential to a party’s presentation of its case; and
(iv) A person whose presence is permitted by statute (e.g., victims).
What two requirements must be met to use a conviction as impeachment evidence if more than 10 years have elapsed since the latter of the conviction or release from confinement?
when
(i) Its probative value substantially outweighs its prejudicial effect; and
(ii) The proponent gives the adverse party reasonable written notice of intent to use the evidence.
What is the “bursting bubble” approach to burden shifting?
A rebuttable presumption no longer has a preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding. If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally.
Describe the manner of proof used for admitting convictions to impeach a witness
- admission cross examination of the witness
- extrinsic evidence
List 4 examples of preliminary questions of admissibility that a judge, rather than a jury, would determine
the admissibility of evidence;whether a privilege exists; whether a person is qualified to be a witness; whether an exception hearsay applies
What two elements do the Confrontation Clause of the Sixth Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?
(i) The declarant must be unavailable; and
(ii) The defendant must have had a prior opportunity to cross-examine the declarant.
What two questions must the court ask to determine whether the subject matter of an expert’s proposed testimony is proper?
(i) Is the subject matter scientific, technical, or other specialized knowledge, (i.e., reliability assessment); and
(ii) Will it help the trier of fact understand the evidence or determine a fact in issue (i.e., relevance assessment).
What are the three requirements for the business records hearsay exception?
- Record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
- The making of the record was a regular practice of that activity; and
- The record was made at or near the time by someone with knowledge or transmitted by ssuch a person
What standard of proof applies to the authentication of tangible evidence?
Sufficient evidence (lower standard than preponderance of the evidence)
What is the present sense impressione exception to hearsay?
A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it
What is the excited utternace exception to hearsay?
A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused
How may a party to a telephone conversation authenticate a voice belonged to a particular person in that conversation?
By testifying that:
(i) The caller RECOGNIZED the speaker’s voice;
(ii) The speaker KNEW facts that only a particular person would know;
(iii) The caller dialed a NUMBER believed to be the speaker’s, and the speaker IDENTIFIED himself upon answering; or
(iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.
What does the best evidence rule require, and what are its exceptions?
the best evidence rule requires that the original document be produced to prove its contents, if
(1) the contents of a document are at issue, or (2) a witness is relying on the contents of the document,
unless:
1. Originals
* LOST OR DESTORYED or
* * not by the proponent acting in bad faith;
* UNOBTAINABLE by any available judicial process;
2. The party against whom the original would be offered (a) had control of the original, (b) was on notice that the original would be the subject of proof, and (c) failed to produce it at the trial or hearing; or
3. The document is not closely related to a controlling issue.
When may a witness be impeached by evidence of a juvenile adjudication?
When the witness is NOT the defendant but ONLY IF:
(i) it is offered in a criminal case,
(ii) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(iii) admitting the evidence is necessary to fairly determine guilt or innocence
Is evidence of a juvenille adjudication admissible against a defendant for impeachment?
NO
What are three ways in which tangible evidence may be authenticated?
By testimony of
* 1. personal knowledge of the object or
* 2. of its distinctive characteristics; or
3. By chain of custody when a physical object that could easily be tampered with or confused with a similar item
When is evidence relevant?
Evidence is relevant if:
(i) It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative); and
(ii) The fact is of consequence in determining the action (i.e., material).
When may “work product” be subject to discovery?
Seeking party
(i) Demonstrates a SUBSTANTIAL NEED for the information; and
(ii) Cannot obtain the information by any other means without UNDUE HARDSHIP
Mental impressions are never discoverable
When is character evidence admissible in civil cases, and in what forms?
When it is an essential element of a claim or defense
if admissible in civil case –> may be proved by reputation, opinion, and specific instances of a person’s conduct
What are three instances in which specific acts are admissible in criminal cases?
- essential element of a charged crime (or of a defense) and a defendant offers specific acts inconsistent with the crime;
- For non-propensity purposes (e.g., “MIMIC” evidence
- When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying
What are five non-hearsay uses for out-of-court statements?
(1) To prove that the statement was made (i.e., as legally operative fact);
(2) To show the effect on the recipient;
(3) As circumstantial evidence of the declarant’s state of mind;
(4) As circumstantial evidence of identity; or
(5) Solely to impeach or rehabilitate
When is a statement against interest a valid hearsay exception?
If the statement:
(i) Was against the declarant’s interest at the time it was made; and
(ii) Would not have been made by a reasonable person unless he believed it to be true.
What is the balancing test when determining whether a testifying criminal defendant can be impeached with a conviction not involving dishonesty?
only if its probative value outweighs the prejudicial effect to that defendant (Reverse 403)
Statements made during settlement offers are inadmissable for
In regular cases
(i) To prove or disprove the validity or amount of a disputed claim; or
(ii) For impeachment by a prior inconsistent statement or contradiction
Medical
(i) not admisisble to prove liabiltiy for injuries
A court may exclude relevant evidence when its probative value
is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless cumulation of evidence
May a court admit evidence when the relevance of that evidence depends upon whether a fact exists?
Yes, the court may admit the evidence on the condition that proof of its relevance is later introduced
When a defendant wants to introduce character evidence of a pertinent trait, what is the proper form?
reputation testimony – testimony by someone sufficiently familiar with the defendant’s reputation among associates or in the community or
opinion testimony – testimony sharing an opinion on the defendant’s character that is based on personal knowledge and familiarity with the defendant.
CANNOT introduce specific acts
Once the defendant’s character witness has testified, the prosecution may:
● cross-examine the witness about a specific act committed by the defendant that relates to the trait in question or
● call another witness to provide reputation or opinion testimony on the defendant’s corresponding bad-character trait.
The FRE 403 balancing test renders relevant evidence inadmissible if
its probative value is substantially outweighed by the danger of unfair prejudice
Unfair prejudice > PV
A felony conviction that occurred within the previous 10 years is admissible against a criminal defendant for impeachment purposes if
its probative value outweighs its prejudicial effect on the defendant (reverse 403)
Unfair prejudice < PV
What does the best evidence rule require? When does the rule apply?
that the original document or a reliable duplicate be produced to prove the contents of a writing
It applies only when a witness is relying on the document when testifying or the contents of the document are at issue
A declarant’s prior statement that identifies a person as someone the declarant perceived earlier is nonhearsay
if the declarant testifies and is subject to cross-examination about the statement
Is there a hearsay exception for a judgment of acquittal?
NO. there is one for judgment of a conviction
Final judgment of conviction admissible if:
- entered after trial or guilty plea
- crime punishable by death or imprisonment of more than one year
- admitted to prove any fact essential to judgment and
- against defendant, when offered by prosecutor in criminal case for purpose other than impeachmen
