Evidence midterms Flashcards
1
Q
______: A way to avoid rules of evidence. Simply an agreement between parties. [All parties must agree]
Ex: Parties ____ that the murder occurred on elm street.
A
Stipulation
2
Q
What rule is JN?
A
201
3
Q
Can the court take JN on its own?
A
Yes
4
Q
JN governs ____ facts.
A
Adjudicative facts only
5
Q
The court may [discretionary] JN a fact that is not subject to ___ between the parties.
A
dispute
6
Q
When may a court take JN?
A
Anytime during the proceeding
7
Q
JN jury instructions:
1. Civil
2. Criminal
A
- Accept fact as conclusive
- May accept fact as conclusive
8
Q
Do both parties have to agree for the court to take JN?
A
No.
9
Q
- ____ facts: Facts relevant to a specific case.
- _____ facts: Facts that explain reasoning behind law.
A
- Adjudicative
- Legislative
10
Q
FRE 201: Judicial Notice:
Court may JN a fact that is…
1.
2.
A
- Generally known
- OR can be proven by sources whose accuracy cant be questioned. [almanac, tide table, google]
11
Q
T/F) If the fact is disputed between parties, the court can’t JN.
A
True
12
Q
Opening rule that should be considered for all rules and your exam response opening statement…
A
FRE 102 Purpose
13
Q
FRE 102 Purpose:
These rules should be construed so as to administer every proceeding ______, eliminate undue expense, promote ______ ____, and to ascertain the truth / _______ determination.
A
FRE 102 Purpose:
1. Fairly
2. Evidence law
3. Just determination
14
Q
General description of the goals of FRE 102?
A
- Ascertain truth / just determination
- Promote evidence law
- Eliminate expenses
- Rules construed to administer every proceeding fairly
15
Q
Relevance:
401 =
402 =
403 =
A
401 = Relevant evidence
402 = Admissibility of RE
403 = Exclusion of RE
16
Q
401 test?
A
Evidence is relevant if it has a tendency to make a fact more or less probable and is of consequence to the action.
17
Q
402: Admissible unless:
A
- SC rule
- Constitution
- Violate these rules
- Irrelevant
18
Q
403 test?
A
Relevant evidence may come in if the PV is not ‘substantially outweighed’ by risk of UF prejudice, undue delay, confusing issues, misleading jury.
19
Q
403 presumption is what?
A
RE is coming in.
20
Q
What is UF Prejudice?
A
Tendency to promote improper decision, typically an emotional one.
21
Q
How best to object to evidence?
A
- Objection
- Cite 401 (relevance)
- Fallback argument, cite 403 (even if relevant…)
22
Q
What other factor should be considered during 403 balancing for relevant evidence?
A
Availability of alternate evidence that may be less prejudicial. [Old Chief]
23
Q
FRE 105
A
Jury limiting instructions
24
Q
Specialized rules:
407 =
408 =
409 =
410 =
411 =
A
407 = Remedial
408 = Compromise offers
409 = Medical expenses
410 = Criminal plea deals
411 = Liability insurance
25
Remedial measures are NOT admissible to prove negligence or defect.
When is it admissible?
1. Disputed ownership
2. Disputed feasibility
26
Public policy reason for 407:
Encourage parties to take remedial steps without fear of reprisal or being seen as admission of guilt.
27
Does 407 apply to past unrelated accidents?
No. Only subsequent remedial actions.
28
407:
If owner says remedial measures were not 'necessary' is this grounds for admission?
No. Exceptions are 'ownership' or 'feasibility' disputes.
29
FRE ____ : Evidence of statements made in furnishing, or promising valuable consideration in compromising or attempting to compromise the claim not admissible.
FRE Compromise offers
30
When are compromise offers admissible?
1. Bias
2. Prejudice
3. Obstructing justice
31
Public policy behind 408?
Encourage settlements without fear of later reprisal.
32
FRE _____ Serves to exclude evidence of offering to pay for medical and similar expenses in an effort to encourage humanitarian aid. It is designed to ensure that acts of kindness and offers of assistance are not misinterpreted as admissions of guilt or liability in a legal context.
FRE 409 Offer to pay Medical expenses
33
409 prohibitions?
Offering to pay medical expenses not admissible as evidence.
34
FRE _____ evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
FRE 410: Guilty pleas in criminal cases
35
410 exception?
Statement was made falsely. [Perjury]
36
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.
FRE 411
37
FRE 411 exception?
1. Showing bias
2. Prejudice
3. Proving ownership / control
38
What rule is character evidence?
404
39
Define 404
Evidence of person character or character trait not admissible to show that, on particular occasion, person acted in accordance with that trait.
40
What does 404 worry about?
Convicting an innocent person based on past character.
41
404 A2A: Also known as reverse 404B
In criminal cases, ∆ may introduce evidence of character or character trait. If he does so, P may offer same evidence and/or evidence to rebut it.
42
T/F) character is never an issue in criminal prosecution the ∆ chooses to make it one
True
43
What's the 404 homicide exception?
P may offer evidence of victim character to rebut evidence that victim was the aggressor.
44
After 404 evidence deemed admissible, what other rules should be applied?
1. 403 balancing
2. 105 jury instruction
45
404 Part II: Crimes, wrongs, acts: Evidence of past crime, wrongs, acts not admissible to show person acted in accordance with.
Except when?
Motive [Common plan]
Opportunity
Plan
Knowledge
Identity [Modus Operandi]
A lack of accident
46
In a criminal case, must the P provide notice to ∆ of 404 crime/act admissibility b4 it comes in?
Yes, so they have fair chance to meet it.
47
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]
Common Plan
48
1. What is common plan used to show?
2. What is MO used to show?
1. Motive
2. Identity
49
A prosecution for illegally manufacturing drugs, might introduce evidence that ∆ recently robbed a warehouse to steal a barrel of the ingredient methylamine. This could be admissible to show ∆s scheme to produce methamphetamine.
MO or CP?
Common plan
50
[Signature] 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.
Modus Operandi
51
T/F) MO is always the same. IE: Robber who wears ‘Scream’ Ghostface mask and only kills teenagers in their family homes.
True
52
Doctrine of ______ : 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.
Chances
53
What rule is 'Method of proving character?'
405
54
405 allows proving character how?
1. Reputation or opinion by witness with personal knowledge of ∆
2. CX can raise specific instances
55
406: T/F) The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness
True
56
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.
104B: Conditional Relevance
57
Non-character impeachment methods:
1.
2.
3.
1. Contradiction w/ other evidence
2. Prior inconsistent statements
3. Evidence of bias
58
Character impeachment methods:
1.
2.
1. SPX instances (608b)
2. Prior criminal conv (609)
59
Rule 607?
Any party, including the party who called the witness, may attack the witness credibility.
60
608
A)
B)
A) Reputation / opinion
B) SPX Instances
61
608 A?
Witness credibility may be attacked by testimony about witness reputation for truthfulness
62
Witness credibility may be attacked by testimony about witness reputation for truthfulness
608 A
63
Is extrinsic evidence admissible to prove spx instances of witness conduct? Exceptions?
No. Only in criminal conviction 609 instances.
64
# 608 Witness Character for truthfulness
The court may allow, on cross, for P to inquire into specific instances of witness conduct if probative of what?
Witness truthfulness
65
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness. [T/F]
True
66
Who may impeach? [607]
Anyone, including the party who called the witness.
67
General ways to impeach witness? [non-character]
1. Prior inconsistent statements
2. Contradictory evidence
3. Show the witness is biased
68
Character based impeachment?
1. 608
2. 609
69
Under CX for 608, if the witness gives answer P thinks is a lie, can P dig deeper into the answer?
No. "No trial within a trial."
70
"No trial within a trial." What rule does the pertain to?
608Witness Character for truthfulness (B): P probing into SPX instances of witness conduct related to truthfulness for impeachment.
71
Under 608A, when can witness character be rehabilitated?
Only when it has first been attacked. [Ordering Principle.]
72
609A (1)
(A)
(B)
(1) felonies
(A) not accused [403 test]
(B) accused [Reverse 403 test]
73
609A(1)
(A) Not accused: What's the test?
May come in if Probative value is not 'substantially' outweighed by risk of UF prejudice.
74
609A(1)
(B)Accused test?
[Reverse 403] Not coming in unless probative value outweighs risk of UF prejudice.
75
What test is also associated with the reverse 403?
Jones test
76
Jones test factors?
1. Impeachment value of crime [Violent = N, truth related = Y]
2. Time passed [long time = n, good behavior = n]
3. Similarity of crime [Similar = no]
4. Centrality of testimony/credibility
77
609A(2)
Convictions of any crime related to false statements & dishonesty. Automatically comes in.
78
Non truth related misdemeanor?
Not coming in.
79
Conviction older than 10 years? What is the test?
[Super reverse 403] Not coming in unless PV substantially outweighs risk of UF prejudice.
80
Juvenile convictions?
Generally not admissible.
81
Pardons?
Admissible unless pardon was based on showing of innocence.
82
Pending appeals for 609 consideration?
Does not affect admissibility
83
Appealing on 609 grounds?
1. If ∆ introduced then no. Must allow P to get first crack at it.
84
Public policy behind 408?
Public policy favors the voluntary settlement of disputes.
85
407 is inadmissible to show ____ or _____ conduct.
407 can't be used to show negligence or culpable conduct.
86
Does casualty insurance fall under the scope of 411?
No.
87
Is 'unfair surprise' grounds for exclusion under 403?
No.
88
The defendant was charged with aggravated assault. The defendant did not testify at trial; however, he sought to offer opinion evidence of his good character for truth and veracity. Allowed? What rule?
Reverse 404. The evidence should be excluded though because ∆ is introducing character that is NOT 'pertinent' to the charged crime.
89
Keyword for reverse 404 application? [∆ trying to introduce character evidence as a shield in criminal trial.]
It must be 'pertinent' to the charged crime.
90
Generally, character evidence is not admissible. When is it?
1. Criminal reverse 404 ∆ application
2. When character is central issue in case:
a. negligence coa
b. defamation
c. child custody
91
What type of cases put character on pedestal as a central issue in the case?
1. Negligence
2. Child custody
3. Defamation
92
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. Whats the exceptions?
1. ∆s in criminal trial open door
2. Character is central issue, such as negligence, defamation, child custody.
93
T/F) In a civil case, evidence of character to prove the conduct of a person in the litigated event is generally not admissible.
Any exception for civil case?
1. When character is central issue [negligence, defamation, child custody cases]
94
Character evidence as proof of conduct in the litigated event is not admissible in a civil case unless character....
Is central to the case / directly at issue.
95
Is extrinsic evidence of unconvicted bad acts admissible to show witness has bad character for truthfulness?
No. FRE 608B
96
T/F) extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.
Any exceptions?
True. 608B) On cross, court may allow them to be inquired into.
97
T/F) Evidence of unconvicted bad acts is generally inadmissible.
Any exceptions?
True. If relevant, may be admissible to 1)attack witness credibility or 2) show bias.
98
When are unconvicted crimes admissible?
1)Attack witness credibility and;
2) Show bias
99
If a witness denies he was the one convicted, the prosecution must establish the fact of conviction and that the witness was in fact the person convicted through extrinsic evidence. [T/F]
True
100
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?
False
101
Surprise and waste of time are trial concerns balanced against probative value under Rule 403. True or False?
False
102
Rule 404(b)(2) lists all of the other purposes for which other crimes, wrongs, or other acts evidence is admissible. True or False?
False. This is not an exhaustive list.
103
T/F) When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
What rule?
405 (b)Methods of Proving character: Specific Instances (TRUE)
104
Character forms an essential element in a litigation alleging negligent hiring and evidence of specific instances of conduct is admissible to prove character when character is an essential element. True or False?
True
105
On cross-examination of a character witness whether testifying in the form of reputation or opinion, inquiry is allowable into relevant specific instances of conduct. True or False?
True
106
The accused may offer evidence of a pertinent trait of his character through reputation testimony and specific instances of conduct. True or False?
False
107
In a criminal case in which the defendant is accused of child molestation, evidence of other crimes, wrongs, or acts committed by the defendant is admissible to prove the character of the defendant in order to show action in conformity therewith. True or False?
True
108
T/F) Extrinsic evidence with respect to specific acts of conduct of the principal witness not resulting in a conviction is not admissible
True
109
404 Character evidence: What are the general exceptions for ∆ introducing evidence in criminal trial:
1.
2.
Homicide exception:
1. ∆ may offer evidence of his own character
2. ∆ may offer evidence of alleged victims character
[For both P may then admit evidence to rebut it]
Homicide exception: P may offer evidence of witness traits for peacefulness if ∆ claimed victim was aggressor.
110
Defense counsel's choice to "draw the sting" by
having the defendant admit the charge, which he knew would be brought up anyway,
prevents him from using the evidence as a ground for appeal. [T/F]
True
111
What does "draw the sting" mean?
D counsel chooses to introduce 609 evidence on direct instead of letting P get to it first.
Beware: You lose appeal rights in this manner.
112
Does 404 only apply to witnesses and ∆?
For your exam, apply it to FUCKING EVERYONE.
113
What's a great way to impeach a witness?
Go after them for bias or credibility. Bring up past events/current events or facts that show they may be biased toward the ∆ or have poor credibility to speak on the matter.
114
∆ denies your question about prior conviction? Now what.
Bring in extrinsic evidence.
115
Is having a disease [epilepsy] character evidence?
No. Character must speak to a persons internal morality, which a disease does not. Proper character would be alcoholism, carelessness, frugality, etc.
116
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?
Ask "does the Law require proof of character to charge the ∆?"
117
∆ charged with fraud. ∆ calls witness to testify to his trait of peacefulness. Permissible?
No, ∆ may introduce 'pertinent' character evidence only. Peacefulness is NOT pertinent to fraud.
118
413-415 allows for admission of prior child molestation evidence. Does it require it? Does it just come in without any balancing?
1. Evidence may come in.
2. Subject to 403 balancing, always.
119
Can CX probe into specific instances of conduct when ∆ brings in character evidence to impeach/refute this evidence?
Yes. 405(A) allows CX to inquire into specific instances of conduct.
120
Whats the purpose of impeaching ∆s witness on CX by asking specific instances of ∆ conduct?
To show that the witness lacks adequate information on which to base her testimony.
121
T/F) 404 A2(B) allows a ∆ to introduce pertinent traits of the victim in a criminal trial as a part of the ∆ defense.
True, subject to 405 which says it can only be reputation or opinion testimony. Once this door is opened, same as A2(A) Prosecution can now offer evidence to rebut it.
122
404A2A =
404A2B =
404A2C =
A = ∆ pertinent traits
B = Victim pertinent traits
C = ∆ claims victim 1st aggressor = P may rebut by offering evidence of victims peacefulness
123
404A2C =
If ∆ claims the victim was 1st aggressor, P may now rebut by offering evidence of victim's peacefulness.
124
As character evidence, motive is used to show what usually?
Intent
125
Notice in criminal cases. What is required of the Prosecution?
1. 'reasonable' notice [so ∆ has time to meet it]
2. Explain permitted purpose
3. In writing [unless the court excuses pretrial notice]
126
T/F) Written notice not required when court excuses pretrial notice.
True
127
T/F) On CX of character witness, the court can allow inquiry into relevant specific instances of conduct when ∆ has introduced character evidence.
What rule allows?
True. 405(A)
128
Does an 'acquittal' preclude the admissibility of "other acts" evidence?
No.
129
Can 'subsequent acts' be introduced under "other acts."
Yes.
130
Methods of proving character: Generally, only by reputation or opinion testimony when that evidence is admissible.
When can it come in as specific acts / instances of conduct?
When the character is an essential element of the charged crime ONLY.
131
Define 102
These rules shall be construed, so as to ADMINISTER every proceeding fairly, eliminate undue delay & expense, promote evidence law, ascertain the truth, and SECURE a just determination.
132
What is 104(B)?
Conditional Relevance
133
Meaning of Conditional relevance?
When relevance of evidence depends on whether or not a fact exists --- the court may admit the evidence on CONDITION that fact is proved later.
134
Define 401
Evidence is relevant if it has a tendency to make a fact more or less probable & is of consequence to the action.
135
Define 403
Relevant evidence may come in "if it's probative value is not substantially outweighed by risk of UF prejudice, undue delay & expense, misleading the jury, confusing the issues, cumulative evidence.
136
In context of 403, what is UF prejudice?
The tendency to suggest an improper decision, typically an emotional one.
137
In context of 403, is "surprise" grounds for exclusion?
No.
138
Define 404:
Exceptions:
1.
2.
3.
Evidence of character or character trait not admissible to show ∆ acted in accordance with character or character trait.
Exceptions: ∆ in Criminal trial
1. Pertinent character traits
2. Pertinent victim traits
3. P can rebut that victim was first aggressor
139
Define 404: Other crimes, wrongs, acts
Exceptions:
Notice:
Evidence of other crimes, wrongs, or acts not admissible to show ∆ acted in accordance with them.
Exceptions: MOPKIIA
Notice: In criminal case, P must give ∆ notice coming in so ∆ has chance to met it. Must be in writing and state grounds for coming in.
140
Define 405: Methods of proving character
A) Reputation or Opinion
B) Specific Instances on CX
141
Define 405A:
When evidence of person trait or act is admissible, may be proved by reputation or opinion testimony.
AND, On CX of witness, probing into specific instances allowed. [Evidence of SPX INST not allowed yet]
142
Define 405B:
When persons character or character trait is central to charged crime, character trait may be proved by specific instances of conduct.
143
Define 406:
Eyewitness?
Evidence of persons habit or organizations routine may be admitted to show that person or organization acted in accordance with that habit.
May be admitted regardless of eyewitness corroboration.
144
407 remedial measures NOT admissible to show:
Negligence, culpability, defect.
145
407 remedial measures NOT admissible to show:
Negligence, culpability, defect.
146
407 remedial measures ARE admissible to show disputed:
Feasibility, ownership.
147
408: When are compromise offers admissible:
To show bias, prejudice, attempt to obstruct justice.
148
410: What type of pleas not admissible?
Withdrawn pleas, nolo contendere plea, or any statements related to these.
149
410: What type of pleas not admissible?
Withdrawn pleas, nolo contendere pleas, statements related to these.
150
410: Are guilty pleas admissilbe?
Yes. Only withdrawn pleas and nolo contendere pleas not admissible.
151
410: When are withdrawn and nolo contendere pleas admissible?
To show that it was false. [Perjury exception]
152
Define 411:
Evidence that person was or was not insured against liability is not admissible to prove negligence.
153
Define 411:
Evidence that person was or was not insured not admissilbe to show person was negligent or acted wrongfully.
154
411 exceptions for liability insurance?
To show bias, prejudice, proving ownership.
155
411 exceptions?
bias
prejudice
ownership
control
156
412 =
413 =
414 =
412 = Victim's trait
413 = Other sexual assault crimes
414 = Children
157
412: When is victims sexual traits admissible in criminal trial?
1. Show ∆ not source of injury, seman, etc.
2. Show sex was consented.
3. Evidence whose exclusion would violate const. rights.
158
When can you show victim's sexual traits in criminal trial?
1. ∆ not source of injury
2. Victim consented
3. avoid const. violations to ∆
159
When can you show victim's sexual traits in civil trial?
1.Court holds hearing on it and runs the super reverse 403 test.
2. Notify victim
3. hearing at least 14 days b4 trial.
160
412 victim traits exceptions
1. Criminal
2. Civil
1. ∆ not cause of injury, sex was consented, Const. vios.
2. Super reverse 403 hearing 14 days before trial and notify victim.
161
Define 413 [same applies to 414]
Evidence of any other sexual assault may be admitted.
P must notify ∆.
Subject to 403 balance even though admissible.
162
Define 607
Who may impeach a witness: Any party, including the party who called the witness may attack witness credibility.
163
What is 608?
Witness Character for truthfulness or untruthfulness
164
608
A
B
A) Witness character may be supported or attached by reputation or opinion testimony of witness character for truthfulness.
B) Court may allow CX to inquire into specific instances.
165
Is extrinsic evidence -- excluding 609 evidence -- admissible to impeach witness character for truthfulness?
No. Court may only CX to inquire only into specific instances.
166
Evidence of bias is sufficient to get around prohibitions of 404 character evidence to impeach a witness. [T/F]
True
167
