Federal Evidence Flashcards
When is evidence relevant?
If it has any tendency to make any fact of consequence more or less probable.
What are the limitations on relevance?
(1) Logical relevance is not equal to probative value, (2) Courts have the discretion to exclude evidence likely to be more unfairly prejudicial or confusing than probative, (3) Public policy excludes certain types of evidence.
What is FRE 403?
A court has discretion to exclude relevant evidence if the probative value is substantially outweighed by (1) danger of unfair prejudice, (2) confusion of issue, (3) misleading the jury, (4) undue delay, or (5) waste of time.
What types of evidence are likely to be excluded despite being relevant?
(1) Emotionally disturbing, (2) repetitive or confusing, (3) admissible for one purpose, but inadmissible for another.
What is the test for exclusion?
To exclude relevant evidence, probative value must be substantially outweighed by danger of unfair prejudice.
What types of evidence are not subject to judicial discretion?
Impeachment evidence based on prior convictions for crimes involving false statements.
How must evidentiary hearings be conducted?
Admissibility must be done outside the presence of a jury.
What types of evidence are excluded as a matter of public policy?
(1) Liability insurance, (2) subsequent remedial measures, (3) settlements, (4) offers to settle, (5) plea bargaining, and (6) offers to pay or payment of medical expenses.
When can be liability insurance be introduced?
Never to prove fault or ability to damages, but may be admissible to prove ownership, control, motive, or similar.
What is the limit on subsequent remedial measures?
Evidence of repairs or other remedial measures after an injury are inadmissible to prove fault, defect, or inadequate warning, however, it may be introduced to show either (1) a rebuttal of an infeasibility defense or (2) ownership or control.
What is the nature of statements made during compromise or settlement negotiations?
Compromises, settlement offers, and related statements including factual admissions are inadmissible to prove liability or fault.
What is necessary for a settlement offer?
(1) Initiation of litigation, (2) unambiguous intent to negotiate by both parties.
When are criminal pleas inadmissible?
Pleas, offers to plea, and other related are inadmissible, however, if a plea is later accepted it may be admitted.
What statements are admissible from offers to pay medical expenses?
Any statements relating to factual admissions are admissible. Offers to pay medical expenses in exchange for liability release are inadmissible.
What are inadmissible purposes for offers to pay medical expenses?
Offers to pay medical expenses may not be used to prove liability.
What is the general rule on similar occurrences?
Similar occurrences are generally inadmissible as irrelevant and unfairly prejudicial
When are similar occurrences admissible?
(1) Causation, (2) prior accidents if demonstrating: (a) pattern of fraudulent claims or (b) pre-existing conditions, (3) intent or absence of mistake, (4) rebut an impossibility defense, (5) value (similar transactions), (6) industry custom, (7) business routine.
When are habits admissible?
Habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion.
What may show habit?
(1) highly specific conduct and frequently repeated acts or (2) regular or instinctual conduct.
What is the general rule for character evidence?
Character evidence is generally admissible to show propensity to commit a crime.
When is character evidence admissible?
(1) Character is an essential element of a claim or defense, (2) prior acts of sexual assault or child molestation in cases for similar claims.
What are some cases where character is at issue?
Defamation and child custody.
How is impeachment different from character evidence?
Impeachment only applies to the credibility of the witness. Substantive character evidence is subject to greater restrictions that impeachment.
When is character evidence admissible for showing good character in criminal cases?
A defendant may introduce evidence of good character if the evidence is pertinent to the charged crime.
What is the effect of a defendant introducing good character evidence?
The prosecution may then rebut.
How may a defendant introduce character evidence for their good character?
Defendants may call a witness to testify only on (1) reputation or (2) opinion. A witness may not introduce specific instances.
How may the prosecution rebut good character evidence introduced by the defendant.
(1) The prosecution may cross-examine the defendant’s character witness and ask about specific instances of misconduct or prior arrests or (2) call a witness to testify to Defendant’s bad pertinent character trait.
When may the prosecution introduce character traits about the defendant?
(1) Sexual assault or child molestation, including specific acts, (2) to rebut a defendant’s introduction of evidence about the character of a victim with evidence of the same bad character trait.
What character evidence is admissible on direct examination?
Reputation and opinion is admissible, specific instances are not.
What character evidence is admissible on cross-examination?
Reputation, opinion, and specific instances of conduct.
When can a victim’s character trait be introduced?
Only the defendant can “open the door” by introducing evidence of victim’s character to prove conduct. Especially in a homicide case with self-defense.
How does the rape shield apply in civil cases?
(1) Probative value substantially outweighs unfair prejudice; and (2) In the case of reputation evidence, plaintiff puts her reputation at issue in some way.
What is the rape shield? 🔀
Reputation and opinion evidence of victim is inadmissible. Evidence to prove sexual behavior is only allowed if (1) a third party is the source of injury or DNA or (2) prior acts of consensual intercourse between victim and defendant.
What is the procedure for introducing evidence of prior sexual conduct for victims?
Parties must disclose intent to offer evidence, describe its purpose, and notify the victim 14 days before trial.
What is the general rule on introducing the specific conduct of the defendant?
In civil & criminal cases specific instances of defendant’s bad conduct are generally in admissible unless introduced for an independent purpose.
What are the common non-character uses of prior acts that are admissible?
(1) Motive, (2) Intent, (3) Mistake, (4) Identity, (5) Common plan or scheme.
When prior acts are admissible, what role is discretion?
All prior acts are subject to FRE 403 balancing.
Who may impeach a witness?
Any party may impeach a witness even if they called the witness.
What are the 7 methods of impeachment?
(1) Contradiction, (2) prior inconsistent statement, (3) bias or interest, (4) sensory deficiencies, (5) reputation and/or opinion, (6) prior acts of misconduct, (7) prior criminal conviction.
What is the rule on extrinsic evidence for impeachment?
Extrinsic evidence may be used to support reputation or opinion, but prior acts may not be supported by extrinsic evidence.
When may evidence be introduced to witness credibility?
After credibility has first been attacked unless a prior consistent statement if the statement was made before they had a motive to lie.
What is extrinsic evidence?
Any evidence other than a witnesses testimony at the current proceeding.
What is the predominant form of extrinsic evidence?
A prior out-of-court statement. Extrinsic evidence may be introduced to show contradictory facts if it is meant to impeach a witness on a material non-collateral [relevant] matter.
What is a collateral matter?
A fact not material to issues in the case. Any evidence that is not directly material, but relates to a witnesses statement it is a collateral matter.
When may extrinsic evidence be introduced to support a collateral matter?
Never.
What is a contradiction?
Any evidence may be used to show witnesses has made contradictory statements on material issues.
What is a prior inconsistent statement?
Any statement made by the witness out of court.
How may a prior inconsistent statement get introduced?
May be established through cross-examination or extrinsic evidence.
What is required to introduce inconsistent statements?
(1) Foundation, (2) non-collateral, (3) opportunity to explain or deny.
When is an otherwise hearsay statement admissible?
If it is used solely for impeachment purposes on a non-collateral matter, but not for the truth of the matter asserted.
What may a prior inconsistent statement be used for if it is not hearsay or in an exception?
It may be considered for any purpose.
How can bias be established for impeachment?
Must be established through (1) cross-exam or (2) extrinsic evidence with a foundation.
What is the foundation requirement for introducing evidence of impeachment?
The witness must have the opportunity to be questioned on cross-exam regarding facts or interest so as to have an opportunity to deny or explain.
When may a witness be impeached by prior misconduct?
On any cross-exam about any prior misconduct probative of truthfulness.
What misconduct counts as probative of truthfulness?
(1) Lying, (2) fraud, (3) deceit, (4) misrepresentation, or (5) perjury.
What extrinsic evidence of misconduct is permitted?
No evidence is permitted. The witness may only be asked and the interrogator must accept the answer.
What testimony is admissible for impeachment?
A witness may be impeached or rehabilitated by the testimony of another witness’s testimony of their reputation for honesty in the community.
When may a witness-defendant be impeached by a prior conviction?
(1) If the conviction is under 10 years, (2) involves acts of dishonesty, or (3) a felony where the probative value outweighs prejudicial effect.
When may a non-defendant witness be impeached by a prior conviction?
(1) If under 10 years, (2) felonies, or (3) crimes of dishonest.
If a prior conviction is over 10 years when may it be admitted to impeach?
(1) Probative value substantially outweighs unfair prejudice, and (2) adverse party is given advance notice, (3) any felony or any conviction involving acts of dishonesty.
What makes a witness competent to testify?
(1) Personal knowledge, (2) adequate memory, (3) capacity to communicate, and (4) sincerity.
How is sincerity conveyed and guarded?
The witness takes an oath or affirmation to tell the truth.
