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Evidence > Evidence-Outline > Flashcards

Evidence-Outline Flashcards

1
Q

What is Character

A

Character Evidence = Propensity Evidence
How an individual presents himself or herself to the community.
* e.g., evidence that a person is honest or dishonest, or violent or peaceful are character evidence.

“Character” is something internal to a person that tells us something about the person’s morality. Having a disease does not speak to a person’s morality.

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2
Q

FRE 404(a)(1) Character Evidence

A

A defendant’s character is not admissible to prove that on a particular occasion he/she acted in accordance with the character or trait.

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3
Q

Exception #1 to Character Evidence 405(b)

A

By Specific Instances of Conduct: 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.
Examples:
1. Defamation
2. Negligent Entrustment
3. Entrapment
4. Divorce/Custody

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4
Q

Exception #2 to Character 404 (a)(2)(A)

A

Mercy Rule. ONLY CRIMINAL.

Accused may introduce evidence of his/her GOOD CHARACTER to show his/her innocence of the alleged crime. Defendant must go first ALWAYS; not the prosecution.

Prosecution may respond by showing the bad character of the accused by:
1) cross-examining the character witness (including whether he knows of or has heard of specific instances of the D’s misconduct )
Or
2) Calling qualified witness to testify Defendant’s bad reputation, or give their opinion as to Defendant’s character.

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5
Q

Exception #3 Character

A

404(a)(2)(B) Defendant offers evidence about the victim’s pertinent character. ONLY CRIMINAL.

1-Defendant has the option of offering reputation or opinion evidence as to the bad character of the victim when such evidence is relevant to prove the defendant’s innocence.

2-Prosecution may offer evidence to rebut it; and offer evidence of the defendant’s same trait (specific instances of misconduct are not allowed).

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6
Q

Exception #4 Character 404 (b)

A

Other Crimes, Wrongs or Acts

Evidence of any other Crime, Wrong, or Act evidence may be admissible for another purpose, such as proving:
* Motive
* Opportunity
* Intent
* Preparation
* Plan
* Knowledge
* Identity (it wasn’t me)
* Absence of mistake, or
* Lack of accident

Only admissible or allowed so long one of those are in controversy. If it’s not an issue at trial, can’t use it.

CRIMINAL AND CIVIL

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7
Q

Mimic Rule on criminal case 404(c)

A

Notice is required. Prosecutor must:
1. provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
2. do so before trial-or during trial if the court, for good cause, excuses lack of pretrial notice.

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8
Q

Requirements for 404(b)

A

1) must be relevant
(2) crime, wrong or act that was committed by the same person.

Additional factors:
(3) temporal proximity-more recent = greater probative value
(4) similarity of facts- must be “sufficiently similar.”

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9
Q

FRE 406 Habit

A

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.

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10
Q

Magic Words for Habit

A
  1. Always
  2. Automatically, semi automatically
  3. Regularly
  4. Without fail
  5. Invariably
  6. Habitually
  7. Routinely
  8. Involuntarily
  9. Customarily
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11
Q

FRE 412(a) “Rape Shield Rule”

A

Evidence offered to prove that a victim engaged in other sexual behavior; or evidence offered to prove a victim’s sexual predisposition is not admissible in a civil or criminal proceeding involving alleged sexual misconduct.

  • Victim’s past sexual conduct. You can talk about the event as it happens, contemporaneously, not the past.
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12
Q

Exceptions to Rape Shield Rule

A

Criminal Case:
1. if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence.
2. if offered by the defendant to prove consent or if offered by the prosecutor; or
3. exclusion of evidence would violate the defendant’s constitutional rights.

Civil Case:
Admissible if probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

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13
Q

FRE 413 (a) Similar Crimes in Sexual-Assault Cases

A

In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant

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14
Q

Difference between FRE 412 and FRE 413

A

412 is for Victim, 413 is for Defendant

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15
Q

FRE 414 Similar Crimes in Child-Molestation Cases

A

In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, if relevant.

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16
Q

FRE 415 Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

A

In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

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17
Q

FRE 607 Who may impeach a witness

A

Any party, including the party that called the witness, may attack the witnesses’ credibility.

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18
Q

FRE 608 A Witness’s Character for Truthfulness or Untruthfulness

A

(a) A witness credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible ONLY after the witness’s character has been attacked.

You can’t bolster witness credibility until it has been attacked

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19
Q

What is Anti-bolstering?

A

Bolstering occurs when the proponent offers evidence solely to convince the fact finder that a particular witness or source of evidence is worthy of credit when the credibility of that witness or source has not been attacked

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20
Q

Rule 608. A Witness’s Character for Truthfulness or Untruthfulness

(b)Specific Instances of Conduct.

A

Except criminal conviction for Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
1. the witness; or
2. another witness whose character the witness being cross-examined has testified about.

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21
Q

Impeachment: What does specific instances of conduct include?

A
  • Specific instances of conduct with credibility: lying, cheating, filing false application, and other such acts. Theft is not.
  • Only intrinsic evidence allowed = evidence being given when witness is on the stand.
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22
Q

FRE 803(21) Hearsay Exception for character evidence

A

A reputation among a person’s associates or in the community concerning the person’s character.
Statement about another person’s character-then it comes in through hearsay exception

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23
Q

FRE 609 Impeachment by Evidence of a Criminal Conviction

A
  1. Where the witness is NOT a defendant-evidence must be admitted in both civil and criminal cases, subject to FRE 403
  2. Where the witness is a defendant, evidence must be admitted in a criminal case only, subject to FRE 403.
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24
Q

FRE 609(b) Limit on Using the Evidence After 10 Years

A

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Felonies and other convictions related to truthfulness or untruthfulness-admissible

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25
Q

What is Bias

A

Bias is a term used in the “common law of evidence” to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’[s] like, dislike, or fear of a party, or by the witness’[s] self-interest.

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26
Q

True or False: bias is always admissible

A

True. Bias is always admissible. Includes interest, motive, intolerance, jealousy, prejudice, animus, vindictiveness, malice. To show bias you need to show the grounds of it. Bias is always relevant.

Bias may always be proved with extrinsic evidence, subject to rule 403.

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27
Q

FRE 613(b) Witness’s Prior Statement

A

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only 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. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

  • Can only be used for impeachment.
  • When the inconsistent statement is not given under oath (801)(d) we go here.
  • 613(b) allows extrinsic evidence.
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28
Q

What is a statement under rule 613?

A
  1. Oral statement
  2. Written statement
  3. Silence
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29
Q

FRE 806 Attacking and Supporting the Declarant’s Credibility

A

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

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30
Q

Competency of Witness

A

Capacity of witness to understand from truth and lies, to tell the truth. Needs to have personal knowledge of what he/she is testifying about.

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31
Q

Habit v. Character

A
  1. Habit person’s regular response the same way such as is almost involuntary.
  2. Companies regular response to a situation such as is almost involuntary, same way, same time, always.
  3. Character is generalized description of one’s disposition, or of one’s disposition in respect to a general trait such as honesty, temperance, or peacefulness.
  4. Admissibility of relevant evidence of habit and routine practice is not admissibility of evidence of “character.”
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32
Q

Character v. Credibility

A

Credibility-special type of character evidence

When character evidence is offered to show the credibility of a witness, either to impeach or rehabilitate

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33
Q

FRE 601 Competency to Testify in General

A

601-Everybody is competent to be a witness unless the rules says otherwise. Presumption: anyone can testify.

In civil case: state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

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34
Q

FRE 602 Need for Personal Knowledge

A

witness may testify on a matter the witness has knowledge about. “laying the foundation”. This rule does not apply to witness expert testimony under Rule 703.

Five senses: touch, scent, taste, hear, sight

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35
Q

Rule 603. Oath or Affirmation to Testify Truthfully

A

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

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36
Q

Spousal Incompetency Doctrine

A

Keeps everything the Non testifying spouse knows out of trial, including pre-marriage facts. Requires valid marriage at time of trial. Only witness spouse hold the privilege. Applies only in criminal cases.

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37
Q

Spousal privilege aka marital privilege/confidential marital communication privilege

A

Prohibits testimony by either spouse that would reveal a confidential communication between them. Statement must have been made while the parties were married. Either spouse holds the privilege, not just the witness. Survives termination of marriage by death or divorce. Applies to both criminal and civil.

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38
Q

FRE 605 Judge’s Competency as a Witness

A

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

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39
Q

FRE 606 Juror’s Competency as a Witness
(a) At the Trial.

A

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.

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40
Q

FRE 606 Juror’s Competency as a Witness
(b) During an Inquiry into the Validity of a Verdict or Indictment.

A

During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.

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41
Q

Exception to 606(b) What can a juror testify about?

A

Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

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42
Q

What is extraneous under 606(b)?

A

extraneous prejudicial information generally means newspaper accounts, internet searches, or unofficial visits by a juror to the relevant location.

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43
Q

What is Judicial Notice

A

A court recognition of a commonly known and certain fact without the need for a party to provide proof for it.

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44
Q

Facts that may be judicially noticed:

A
  1. Generally known within the trial court’s territorial jurisdiction.
  2. Can be accurately determined by sources that cannot be reasonably questioned.
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45
Q

Judicial Notice in civil trials

A

Requires court to instruct the jury that it MUST accept a noticed fact as conclusive.

46
Q

Judicial Notice in criminal trials

A

Requires court to instruct the jury that it MAY or MAY NOT accept a noticed fact as conclusive.

47
Q

What is a conclusive fact?

A

Fact that cannot be refuted in any case.

48
Q

What is a permissible fact?

A

Fact that is assumed true until a person proves otherwise.

49
Q

FRE 901- Authenticating or Identifying Evidence

A

Proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

50
Q

How can evidence be authenticated:

A
  1. Testimony of witness with knowledge
  2. Non-expert opinion on handwriting
  3. Comparison by trier or expert witness-comparison by the trier of fact or by expert witnesses with specimens which have been authenticated
  4. Distinctive characteristic and the like-appearance contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances ex. Email records.
  5. Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
  6. Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
    (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

  1. Evidence About Public Records. Evidence that:
    A) a document was recorded or filed in a public office as authorized by law; or
    (B) a purported public record or statement is from the office where items of this kind are kept.
  2. Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
    (A) is in a condition that creates no suspicion about its authenticity;
    (B) was in a place where, if authentic, it would likely be; and
    (C) is at least 20 years old when offered.
51
Q

FRE 902- Evidence that is Self-Authenticating

A

Evidence is presumed to be genuine and therefore require no extrinsic proof. No proof is required.

52
Q

Who is the ultimate decision maker for the authentication concept?

A

The jury is the ultimate decision maker for the authentication concept; the judge determines only whether the proponent of evidence has produced information adequate to support a jury finding of authenticity.

53
Q

Best Evidence Rule

A

Original document required. The rule only applies when the proponent is attempting to prove the contents of a writing, recording or photograph. (Photographs include “still photographs, x-ray films, video tapes, and motion pictures). Best evidence is a rare exception.

54
Q

Hearsay Exception: Duration of Conspiracy

A

Begins: when two or more people establish an agreement to carry out a crime.

During: If speaker intends the statement to advance some aspect of the conspiracy.

Ends: When fruits of the crime have been disposed of or the conspirators are arrested.

55
Q

Hearsay within Hearsay

A

Occurs when someone recites statements of another within a statement that is itself hearsay.

Example: medical record

56
Q

Hearsay Exception: Witness/Declarant (types)

A

Declarant must be in court and subject to cross-examination.

  1. Prior inconsistent statement.
  2. Prior Consistent statement.
  3. Identifies a person as someone declarant perceived earlier.
57
Q

Reasons for Declarant’s Unavailability

A
  1. Privilege
  2. Refusal
  3. Can’t recall
  4. Death or Illness
  5. Unable to procure testimony

CRUPID

58
Q

Hearsay Exception: Opposing Party Statement (types)

A

Spokesperson
Party’s own statement
Employee/Authorized Agent
Adoptive Statements
Co-conspirator

59
Q

Hearsay Exception: Dying Declaration

A

Criminal + Unavailable

In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances. Statements must relate to impending death.

60
Q

What is probative value?

A

Evidence is relevant or not relevant. The more weight, the more probative it is.

61
Q

FRE 401: Relevance

A

To be relevant:
1. Evidence must make a fact more or less probable, and
2. that fact must be a “fact of consequence”

…meaning that the fact you are proving with the evidence must matter to the legal proceeding

62
Q

What is hearsay?

A

An out of court statement offered to prove the truth of the matter asserted.

*can include conduct if intended as assertion
*can include writing

63
Q

Hearsay Exception: Consistent Statments

A

Must be in court + subject to cross examination

Can be offered to:
1. rebut improper motive to testify
2. rehabilitate declarant’s credibiilty when attacked on other ground.
*don’t need to be under oath

Example: Prior consistent statement inadmissible if receiving incentive before first statement.

Prior consistent statement admissible if receiving incentive after first statement.

64
Q

Hearsay Exemption: Knowledge/Notice

A

Statements to prove a person’s knowledge of the existence of a fact are not hearsay.

Example: A statement describing a problem may be admissible to show a defendant had notice of unsafe conditions.

65
Q

FRE 409: Offers to pay medical and similar expenses

A

Evidence of furnishing, promising to pay, or offering to pay medical expenses resulting from an injury is not admissible to prove liability for the injury.

Exceptions:
1. Admission of Fact
2. Damages

66
Q

FRE 106: Rule of Completeness

A

Rule allows otherwise inadmissible parts of documents or statements to be introduced if they will allow full understanding of the portions that are otherwise properly admitted.

67
Q

Rule 403: Excluding Relevant Evidence

A

Relevant evidence must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, undue delay, confusion of the issues or misleading the jury.

Unfairly prejudicial evidence MAY be excluded, not that it must!

68
Q

Social Policy Relevancy Rules 407-411

A

Pleas
Liability Insurance
Offers and Negotiations
Medical & Similar Expenses
Subsequent Remedial Measures

69
Q

FRE 407: Subsequent Remedial Measures

A

When measures are taken that would have made an earlier injury or harm less likely to occur, 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.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

70
Q

FRE 408 Compromise Offers and Negotiations

A

Evidence of statements made while negotiating settlements are not admissible.

Exceptions:
1. To show ownership or control
2. Impeachment
3. Establish motive/bias
4. Part of an admission

For this rule remember 2 steps:
1. Is there a claim?
2. Did the defendant disputed the claim as to liability or amount? If yes to both; inadmissible.

71
Q

FRE 410: Pleas

A

Evidence of plea negotiations are not admissible. Also include statements during negotiations.

*Must happen with a government attorney, state attorney, prosecutor.

Negotiations with police officers are admissible.

72
Q

FRE 411: Liability Insurance

A

Inadmissible to show negligence or ability to pay. Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. Nor is it admissible to show ability to pay.

Exceptions:
Part of admission
Ownership and control
Witness bias or prejudice
Impeachment

73
Q

In 2014, the United States prosecuted Money Man (“MM”) in federal court for insider trading. The prosecution alleged that MM received a tip from two doctors about the success of a new Alzheimer’s drug in clinical trials and advised his firm to purchase stock in the drug producers resulting in $276 million in profits.
MM moved to exclude evidence that he fainted when approached by FBI agents outside his home on November 8, 2011, approximately a year before his arrest. MM fainted after agents told him that they wanted to talk with him about his insider trading activities at his firm. MM was quickly revived and suffered no lasting effects. The prosecution argues that evidence of MM’s fainting is relevant to his guilt. MM argues it is not. What result?

A

Court ruled it was relevant because of the sequence of actions. Tend to show he is aware of something wrong; consciousness of guilt. Commonwealth v Warren may dispute it.

74
Q

Ann was driving towards a stoplight. As she entered the intersection, she was struck from the right by Dan. Riding in the front seat with Ann was Sally. After the impact, Will came up to Ann’s car to ask if the two ladies were all right. Ann looked at Will and said, “But, the other guy (Dan) ran the light.” Will looked back and said, “Yes, I know, because I saw him run the light, also.” Will left to go check on Dan. In a few minutes Will came back and told Ann and Sally that Dan had told him (Will) that he (Dan) was talking on his cell phone and because he was not looking at the light as he approached the intersection, he (Dan) had no idea what color the light was. Will also said that Dan said that he (Dan) was driving home after celebrating with friends at the Orlando beer festival. A blood alcohol test did not reveal any alcohol in Dan’s blood. Assume that Sally (passenger) sues Dan for personal injuries in a jurisdiction that follows the Federal Rules of Evidence. Sally wants to have Will testify about Dan’s celebration at the Orlando beer festival. Dan objects on relevance grounds. Discuss whether the objection will be sustained or overruled, and why.

Assume that Ann sues Dan for personal injuries. Ann wants to have Will testify that Dan told him that he (Dan) was talking on his cell phone and because he was not looking at the light as he approached the intersection, he (Dan) had no idea what color the light was. Dan objects on relevance grounds. Discuss whether the objection will be sustained or overruled, and why.

A
  1. Objection sustained. Not relevant.
  2. Objection overruled. Relevant.
75
Q

Barbie is suing Ken for injuries arising from a car accident, claiming a back injury. At trial, she wishes to testify that before the accident she had never had any problems with her back. Is Barbie’s proposed testimony admissible?

A. No, because the evidence is irrelevant.
B. No, because Barbie’s pain could have been caused by factors arising after the accident, such as an injury in Barbie land.
C. Yes, because it is probative evidence of Barbie’s injury.
D. Yes, because other factors may have contributed to her injury.

A

C. Yes, because it is probative evidence of Barbie’s injury.

Tends to prove that if she didn’t have back problems before there is a close connection between the accident and the injury.

76
Q

In a rape prosecution assume the accused proffers evidence tending to show that the alleged victim consented. At common law, rape was defined as carnal knowledge of a woman, by a man who was not her husband, and without her consent. The prosecution objects on the basis of relevance. Objection will be?

A. Overruled, consent is not a material element of rape.
B. Overruled, lack of consent is an element of common law rape, the evidence relates to a consequential fact.
C. Sustained, the evidence is not material.
D. Sustained, the evidence is not relevant.

A

B. Overruled, lack of consent is an element of common law rape, the evidence relates to a consequential fact.

77
Q

Hearsay Exemption: State of Mind

A

Statements to show a person’s state of mind are not hearsay.

78
Q

Hearsay Exemption: Impeachment

A

Attacking witness credibility is not hearsay.

79
Q

Hearsay Exemption: Verbal Acts

A

Statements that have legal independent value are not hearsay

80
Q

Hearsay Exemption: Effect on the Listener

A

Statements used to show or explain someone’s actions or reactions are not hearsay.

81
Q

FRE 801 Hearsay Exemption: Adoptive Statements

A

Those inferred from silence or a failure to respond in circumstances that call for a response. A party may adopt a statement of a third person by failing to deny or correct the truth of the statement in circumstances where it would be natural to respond by denying or correcting the statement.

82
Q

FRE 801 Hearsay Exemption: Employee/Authorized Agent

A

Statement is not hearsay if it is offered against an opposing party and was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.

  • Does not require personal knowledge or the authority to speak on behalf of the principal.
83
Q

FRE 801 Hearsay Exemption: Co-Conspirator

A

A statement not hearsay if it is offered against a party and is a statement by a co-conspirator of such party during the course and in furtherance of the conspiracy.

  • Statements must be made while the conspiracy was active, that is, after it was formed and before it ended.
84
Q

FRE 801 Hearsay Exemption: Spokesperson

A

If a party authorized someone to make an out-of-court statement, that statement is not hearsay if offered against the party.

Ex. Lawyers, Expert witnesses

85
Q

FRE 801 Hearsay Exemption: Declarant/Witness Statement

A

Must be in present in court + Subject to cross-examination

  • Prior Inconsistent Statement
    Prior statement given under oath subject to penalty of perjury at trial, hearing, or other proceeding, or in deposition.
  • Prior Consistent Statements
    Statement is consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Consistent statement offered for this purpose is admissible only when made before the alleged motive or fabrication.
  • Statements identifying a person
    Statement is one of identification of a person made after perceiving him. Photo id’s are ok. Prior identification doesn’t need to have been made at a formal proceeding or under oath.
86
Q

FRE 803: Then-existing mental physical and emotional condition

A

Witness statements that include motive, plan, intent, pain, bodily health are admissible.
* Does not include statements from memory or belief to prove the fact remembered unless it relates to the validity or terms of a will.
* Victim statements relevant when: self-defense, accidental health; suicide.

87
Q

FRE 803: Excited Utterances

A

Statements by declarant under stress or excitement due to a startling event.

88
Q

FRE 803: Medical Treatment and Diagnosis

A

Statement related to medical diagnosis or treatment that describes medical history, past or present sensations, including inception or general cause.
* Does not include statements of fault.
* Does not include physicians’ statements, BUT physician can write down what patient says.

89
Q

FRE 803: Present Sense

A

Statements by declarant that describes an event as it is happening or immediately thereafter.
* Must describe or explain the event, not merely articulate the significance of what happened.

90
Q

FRE 803: Business Records

A
  1. Record made or transmitted at or near time by someone with knowledge.
  2. Record kept in the course of regular activity of business.
  3. Making record was a regular business practice.
  4. Custodian of records or qualified witness testifies.
  5. Opponent doesn’t show source of untrustworthiness.
91
Q

FRE 803: Recorded Recollection

A
  1. Record on matter witness knew about.
  2. Witness cannot recall testifying fully and accurately.
  3. Record was made or adopted by witness while it was fresh in his/her memory.
  4. Record reflects witness knowledge.
  • Only admitted to jury by opponent.
  • Only read relevant portion to jury, not entire document.
92
Q

FRE 612: Recollection Refreshed

A
  • Non-hearsay. Solely to jog witness memory.
  • When witness can’t remember, he/she may look at record, record is taken away, witness testifies based on memory.
    o Cannot be entered as exhibit or read to jury by proponent.
93
Q

FRE 803: Absence of Records

A
  1. Evidence that a matter is not included in a record is admitted to prove the matter did not occur or exist.
  2. Record was kept for a matter of that kind.
  3. Opponent doesn’t show source of untrustworthiness.
94
Q

FRE 803: Public Records

A
  1. Document prepared by public official.
  2. Record must appear unaltered (no original necessary).
  3. Record concerns data collected by a government employee.
  4. Source of information is trustworthy.
    * Does not include police report.
    * Does not include statements by private citizens unless there’s a different exception.
95
Q

Hillmon Doctrine

A

Statement of intent (i.e. state of mind) can be circumstantial evidence to prove subsequent conduct. If you said intending to do X tomorrow, statement can be used as circumstantial evidence that you did do X the next day.

96
Q

FRE 804: Dying Declaration

A

Declarant MUST be unavailable
1. Statements must be made under belief of impending dead.
2. Must relate to circumstances of impending death.

In criminal case: Declarant must be dead! It has to be a homicide.

97
Q

FRE 804: Against Interest

A

Declarant MUST be unavailable

A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to declarant’s proprietary, penal or pecuniary interests.

98
Q

FRE 804: Former Testimony

A

Declarant MUST be unavailable

Testimony that:
1. Was given as a witness/hearing/deposition, and
2. Is offered against a party who had (or in a civil case, whose predecessor in interest) had an opportunity and similar motive to develop it by direct, cross or redirect examination.

99
Q

FRE 804: Forfeiture by Wrongdoing

A

Declarant MUST be unavailable

Defendant forfeits the right for the witness to be there. A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing declarant’s unavailability as a witness and did so intending that result.

100
Q

FRE 807: Residual Exception

A
  1. the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and
  2. it is more probative on the point for which it is offered than any other
    evidence that the proponent can obtain through reasonable efforts.
101
Q

Confrontation Clause

A

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

Applies:
* Criminal Case
* Testimonial Statements
* Declarant unavailable for cross-examination
* Defendant had no opportunity to cross-examine declarant about the statement on an earlier occasion.

102
Q

Hearsay Exception: Judgment of a Previous Conviction

A

Allows evidence of a final judgment of conviction if:

A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea

B) the conviction was for a crime punishable by death or by imprisonment for more than a year;

C) the evidence is admitted to prove any fact essential to the judgment; and

D) When offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant

103
Q

Racial Bias: No Impeachment Rule

A

A criminal defendant could submit evidence otherwise prohibited by the “no impeachment rule” to show that racial animus tainted the verdict.

104
Q

What is the No Impeachment Rule

A

FRE 606: Juror’s Competency as Witness

105
Q

FRE 701: Opinion Testimony by lay witness

A

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

106
Q

FRE 702: Testimony by Expert Witness

A

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 the proponent demonstrates to the court that it is more likely than not that:
* 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;
* The testimony is based on sufficient facts or data;
* The testimony is the product of reliable principles and methods; and
* The expert’s testimony opinion reflects a reliable application of the principles and methos to the facts of the case.

107
Q

Daubert Test

A

The Daubert test examines a scientific methodology’s
(1) testing or testability,
(2) peer review and publication,
(3) known or potential error rates, (4) general acceptance in the scientific community, and
(5) whether the methodology was developed independently or specifically for litigation.

3 R’s: Relevant, Reliable, Reviewable

108
Q

Test for nonscientific expert testimony

A
  1. Qualifications of the expert are sufficient.
  2. Subject Matter of expert’s testimony is reliable.
109
Q

FRE 703: Bases of an expert

A

The information, facts, or data the expert is relying on must be:
* A type reasonably relied upon by experts in the subject/field, and
* The expert cannot serve as a conduit for purposes of getting into evidence otherwise inadmissible hearsay.

110
Q

FRE 704: Opinion on an Ultimate Issue

A

In General, an opinion is not objectionable just because it embraces an ultimate issue.

Exception: In criminal case, expert witness must NOT state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.

Evidence (4 decks)

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