Federal Rules of Evidence Flashcards

Question

Rule 609

Answer 1

Using a Criminal Conviction to Impeach a Witness: conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement. (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: (1) it is offered in a criminal case; (2) the adjudication was of a witness other than the defendant; (3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and (4) admitting the evidence is necessary to fairly determine guilt or innocence. (e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Answer 2

* Applies to felony convictions less than 10 years old * Any witness other than the Defendant in a Criminal Case * Felony Convictions must be admitted subject to Rule 403 (tilts towards admission)

Answer 3

*Applies to felony convictions less than 10 years old * Witness on the stand is a defendant in a criminal case * Altered 403 Test: Admitted if the probative value OUTWEIGHS the prejudicial effect to defendant (a little more protection to defendants)

Answer 4

Crimes Involving Lying: * Applies to any Crime, felony or misdemeanor, less than 10 years old. * Elements require proving/admitting dishonest fact or false statement * MUST be admitted Ex. Perjury, Embezzlement, Fraud, Counterfeiting

Answer 5

Old Convictions: * Applies to convictions more than 10 years since conviction or since final release from custody (parole time doesn't count because it isn't custody) * Probative Value substantially outweighs the prejudicial effect * Proponent must give advanced notice to opposing side

Answer 6

If anyone wants to pardon/annul/give a certificate of Rehabilitation: *Based on Innocence=May not be used *Not Innocent= Only admissible if witness convicts another felony after the pardon

Answer 7

Juvenile Adjudications: 1) Admissible to Impeach ONLY in Criminal Cases 2) ONLY admissible against Witness NEVER Defendant 3) If Committed as an adult the offense would be a felony 4) Admission is NECESSARY to fairly determine guilt or innocence

Answer 8

Appeals | -May tell the jury conviction is on appeal

Answer 9

Evidence is NOT admissible under Rule 403 if its unfair prejudicial effect substantially outweighs its probative value.

Answer 10

1) Whether the statement was Unilateral or occurred during bilateral discussions 2) Whether either party made a concrete offer 3) Whether attorneys were involved in the discussions 4) Whether the parties used phrases like "without prejudice" that are commonly used during settlement discussions

Answer 11

Offers to Pay Medical and Similar Expenses: Policy: Allows potential defendants to pay medical expenses without worrying about plaintiffs using evidence of those payments against them at trial to prove liability.

Answer 12

Liability Insurance: Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. *Encourages organizations and individuals to obtain liability insurance

Answer 13

Every person is competent to be a witness UNLESS the rules provide otherwise...

Answer 14

At the trial a juror may not testify as a witness before the other jurors at trial...if a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence.

Answer 15

Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

Answer 16

Oath or Affirmation to Testify Truthfully

Answer 17

Interpreter: | An interpreter must be QUALIFIED and must give an oath or affirmation to make a true translation.

Answer 18

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Answer 19

1) To establish pedigree information 2) To direct a witness's attention to a relevant place and time 3) To help a witness who is hesitant, confused, or had trouble recalling 4) Hostile Witnesses

Answer 20

(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness. (b) Examining. The court may examine a witness regardless of who calls the witness. (c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

Answer 21

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: (a) a party who is a natural person; (b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney; (c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or (d) a person authorized by statute to be present.

Answer 22

Writing Used to Refresh a Witness: (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial. ***Writing may be a journal entry, a scribble on a napkin, photograph, audio tape, etc.

Answer 23

1) Establish the Witness does not recall the answer 2) Describe the writing she wishes to use to refresh the witness and ask if the witness thinks the writing would help. Ask to approach the witness. 3) Show the writing to the witness, ask them to review silently. 4) Ask if the writing has refreshed the witness, the witness should answer yes. Re-ask original questions and continue. 5) The attorney must be sure to give the OP a copy of the writing.

Answer 24

1) The rule only allows general reputation or opinion evidence of character not testimony giving specific instances of conduct related to a witness's truthfulness 2) Character witnesses may only offer reputation or opinion evidence related to truthfulness/untruthfulness 3) A party may introduce evidence of a witness's truthful character ONLY AFTER that character has been attacked. ***Only used to assess the credibility of a witness NOT guilt or innocence.

Answer 25

Cross-Examining the Character Witness: Allows parties to ask character witnesses on cross-exam about specific instances of a "fact witness's" behavior. The Opposing party may ask about specifics NOT the side who called the character witness. The cross-examining attorney may NOT offer extrinsic evidence.

Answer 26

Religious Beliefs & Impeachment: Rule 610 prohibits parties from using a witness's religious beliefs to attack the witness's credibility (or to enhance credibility). The rule does not exclude evidence of religious beliefs when they pertain to matters other than credibility (ie. bias, damages, motive, etc.)

Answer 27

Rule of Completeness Rule 106 establishes the rule of completeness, if one party introduces part of a document, the rule allows the opponent to immediately introduce other portions "that in fairness ought to be considered at the same time" as the first portion. 4 Important aspects of Rule 106: 1) Allows a party to introduce qualifying portions of a writing/recorded statement as soon as the opponent offers the first portion. 2) Applies only to writings and recorded statements (not all forms of evidence) 3) May be used to introduce whole writings or recordings 4) The rule uses a fairness principle; it admits portions of writings or recorded statements "that in fairness ought to be considered at the same time" as those offered by the opponent (flexible standard)

Answer 28

Character Traits: Internal, we can't see character traits directly but people seem to possess traits that incline them to act in particular ways Reputation: External, it reflects what other people think about an individual. Reputation is not always a reliable guide to character. Actions: Since we cannot see character, we deduce it from an individual's actions. In the courtroom, therefore, reputation and specific acts often appear as circumstantial evidence of character. In general Rule 404 (a) (1) Prohibits Character Propensity Evidence

Answer 29

1) Proof of a Witness's propensity to lie or tell the truth - Rules 608 & 609 - Depends on the notion of propensity 2) Proof of Conduct by Propensity - Jurors likely overestimate the value of propensity evidence - Rule 404 (a) bars most attempts to prove conduct by propensity 3) Proof of Character or Reputation as Elements - Some crimes, civil claims or defenses require proof of character or reputation to establish an element of that claim or defense. - Rule 405 allows this evidence. 4) Proof of Other Acts for Non-Propensity Purposes - Evidence of a Person's actions can establish facts other than character and can support inferences other than one based on propensity - When parties offer evidence of an action for a purpose other than to prove character propensity, Rule 404 (b) often allows for that evidence.

Answer 30

In few instances a person's character may be the element of the claim or defense. Rule 402 states that all relevant evidence is admissible unless otherwise provided, and evidence used to prove an element of the case easily meets the relevance definition of Rule 401.

Answer 31

When a person's character 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. 4 Categories of cases that account for almost every lawsuit in which Character is an element: 1) Defamation 2) Child Custody Cases 3) Entrapment Defense 4) Negligent Entrustment Claims

Answer 32

Rule 404 (a) (1) Broadly prohibits the use of character evidence when offered to show propensity.

Answer 33

Establishes a series of exceptions to the rule against using character evidence to prove particular conduct through propensity reasoning.

Answer 34

If a criminal defendant believes that proof of his good character, or an alleged victim's bad one, would help defend his innocence, then the mercy rule weighs in favor of the defendant presenting the evidence.

Answer 35

4 Key Points: 1) Exceptions only apply in Criminal Cases 2) Only allows proof of PERTINENT Character Traits 3) 404 (a)(2) allows proof of both the Defendant and the victim's character 4) The subsections distinguish between when the defendant may introduce these types of evidence and when the prosecutor may do so.

Answer 36

Defendant's Limits: 1) Evidence must relate to pertinent character trait 2) Evidence must comply with Rule 412 Rape Shield Law Prosecutor's Permitted Responses: 1) If defendant offers character evidence about himself, the prosecutor may rebut that evidence with proof that the defendant lacks that trait and holds the opposite one. 2) If defendant introduces character evidence about the alleged victim, the prosecutor may rebut by showing the victim lacked that trait or held the opposite one. 3) In a homicide case, the prosecutor may offer evidence that the deceased victim was a peaceful person in response to any evidence that the deceased was the first aggressor.

Answer 37

Ex. Violent Character for homicide Aversion to risk for gambling prosecution Honest character for fraud

Answer 38

Evidence of a crime/wrong/other act MAY be admissible for a purpose other than character, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Ex. Man hires prostitutes Jury interpretation- Man has a lawbreaking character and propensity to break the law Jury interpretation-The prostitutes knew the man therefore they are likely to accurately identify him (information that the man hired the prostitutes is not barred for proving this point but may lead the jury to conclude the former point) Conclusion by the jury: Therefore, the man was likely to be the one who robbed the prostitute's customers. Evidence that litigants offer under Rule 404(b) is relevant for AT LEAST two purposes: Knowledge/Intent/Motive/Etc. AND Propensity. In deciding whether the unfair prejudice of the propensity inference substantially outweighs the probative value of the permissible purpose, the trial judge will turn to Rule 403 (balancing test). Judge should give limiting instructions to the jury if evidence is admitted.

Answer 39

Conditions: 1) Identity must be at issue 2) there must be strong similarities between the charged and other crimes

Answer 40

Habit 3 Points: 1) The rule does not define "habit" or "routine practice" 2) Allows admission of habit evidence regardless of whether it is corroborated or whether there was an eye witness. (Existence of habit may be a question of credibility) 3) The Rule is silent about how to prove habit. Why is habit evidence admissible? Tends to be morally neutral Higher probative value than propensity evidence Ex. Individual always brushes, flosses then takes vitamins/ I always order a vanilla latte in the morning/ the mechanic always changes the oil in the same order and manner

Answer 41

Rape Shield Law Rule 412 restricts the kind of evidence that can be introduced in sexual assault cases. 3 Parts of Rule 412: a) Declares a general prohibition against using evidence of an alleged victim's past sexual behavior or sexual reputation. b) Recognizes several exceptions to the general rule c) Establishes procedural guidelines to protect privacy while judges determine the admissibility of evidence under the exceptions.

Answer 42

1) Applies to Civil and Criminal Proceedings 2) Applies only to trials involving sexual misconduct 3) Bars both types of evidence rape defendants previously offered to show propensity: Specific acts (other sexual behavior) and of reputation or general character (sexual predisposition) 4) Broadly bars evidence of sexual behavior or predisposition regardless of the purpose for which the litigant offers evidence.

Answer 43

A) Criminal Cases - Evidence of specific instances of victim's behavior if offered to prove that someone other than the defendant was the source of the semen/injury or other PHYSICAL EVIDENCE - Evidence of specific Instances of the Victim's behavior with respect to the person accused of sexual misconduct if offered by the defendant to prove consent or if offered by the prosecutor; and - Evidence whose exclusion would violate the defendant's constitutional rights B) Civil Cases -The court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its 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.

Answer 44

Procedures 1) A party intending to offer this evidence must give notice to the court, opposing counsel, and the alleged victim 14 days before trial. 2) The court must hold a secret, sealed proceeding involving both parties and the alleged victim in order to determine whether the evidence is admissible.

Answer 45

The use of Character evidence to prove a defendant's tendency to commit sexual assault or child molestation: Rule 413- Allows prosecutors to introduce evidence of other sexual assaults committed by the defendant for ANY purpose. Rule 414- Allows prosecutors to introduce evidence of other child molestations committed by the defendant for ANY purpose. Rule 415-Allows the same evidence and propensity reasoning in Civil cases involving sexual assault or child molestation. Flaw: Since most sexual assault and child molestation cases are prosecuted in state court, the new federal rules apply primarily to crimes charged on Native American Reservations.

Answer 46

Propensity in Sexual Assault & Child Molestation Cases: 1) The rules apply only in criminal cases in which the defendant is currently being charged with sexual assault or child molestation. 2) 1 Type of Evidence: Defendant committed prior sexual assault/child molestation. 3) Admissible for ANY purpose, INCLUDING propensity No time limit, though judge may invoke Rule 403 Defendant need not be convicted for prior offenses Only a minority of state courts have embraced Rules 413-415

Answer 47

Rule 104 establishes a process for resolving disputed issues, both legal and factual, that relate to admissibility of evidence rather than disposition of the undergoing charges or claims. Under Rule 104 (a) A judge may decide the factual issue when it does not affect relevance. [Questions of Law that determine whether the evidence is relevant] Under Rule 104 (b) Juries should resolve this type of factual dispute. [Questions of Fact that determine whether the evidence is relevant] Rule 104 is silent about standard of Proof - Supreme Court Ruled a preponderance standard applies to all preliminary factual issues - Judges usually place the burden of proof on the party offering evidence *Rule 403's concern for confusion, delay and unfair prejudice may affect a judge's fact finding decisions under both Rules 104(a) and 104 (b)

Answer 48

The Rule Against Hearsay Not admissible unless provided otherwise by a federal statute or these rules or other rules prescribed by the Supreme Court.

Answer 49

Rule 801 (c) Hearsay means a statement that: 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the TRUTH of the MATTER ASSERTED in the statement. ***All out of court statements are hearsay when offered to prove the truth of the matter asserted, even if a witness quotes her own out of your statement, that statement is hearsay. Rule 403 Balance tilts in favor of admissibility for statements introduced for other purposes.

Answer 50

- Conduct is a statement when the actor intends to communicate something via the conduct - May be oral or in writing - May be through actions (ie. pointing or nodding) Rule 801 (a)

Answer 51

1) Some hearsay statements are more RELIABLE than others | 2) Some hearsay statements are more NEEDED than others

Answer 52

1) 801 (d) "Not Hearsay - Prior statements by witnesses - Statements made by opposing parties 2) 804 : 5 Exceptions - Apply only if the declarant is unavailable to testify in court - Rely heavily on the need for the declarant's statement 3) 803: 23 Exceptions - Apply whether or not the declarant is available to testify - High indica of reliability 4) 807: Allows courts to admit some statements that fall outside the other 30 exceptions but have similar grantees of trustworthiness. - Used infrequently.

Answer 53

Grantees a Criminal Defendant the right to be confronted with the witnesses against him. Crawford v. Washington

Answer 54

Exempts some prior statements by witnesses from the hearsay ban. Usually when a party attempts to introduce a witness's prior statement instead of asking the witness to testify directly, it is because the witness cannot/will not make the statement on the stand

Answer 55

1) Declarant MUST testify at the trial | 2) The declarant must be subject to cross-examination on the statement

Answer 56

Rule 801 (d)(1)(a) differs from Rule 613, under 613 statements are not offered to prove the truth of the matter asserted but to bolster credibility. Because 801 (d)(1)(a) statements are used for their content the rule imposes strict requirements.

Answer 57

Present Sense Impressions (describe events as they unfold) Conditions: 1) Only applies to descriptions or explanations of an event (not to complex analyses or interpretations) 2) Declarant must make the statement while perceiving the event or immediately after the event

Answer 58

Excited Utterances: Responses to a startling event. Conditions: 1) Declarant must speak while excited by a startling event (excitement must be great enough that the particular declarant would have had difficulty formulating a lie while speaking) 2) The excited utterance must relate to the startling event - No specific time limit for excitement, depends on the facts of the case and the individual

Answer 59

State of Mind: Assumes that on balance, a declarant's expression of his state of mind is sufficiently reliable to admit into evidence. Key point: The exception only covers statements about the declarant's "then existing" state of mind 4 Types of Internal States the Declarant may Describe: - Emotional - Sensory - Physical Condition - State of Mind ***Statements of memory or belief are NOT admissible under this exception when offered to prove the fact remembered or believed***

Answer 60

Medical Treatment: Admits out of court statements made to obtain medical diagnosis or treatment Applies whether or not the declarant is available for testimony & rests on 3 Requirements: 1) Statement must be made for medical diagnosis or treatment 2) Statements must be reasonably pertinent to diagnosis or treatment (courts construe this quite broadly) 3) Statements must fit within one of three categories listed by the rule: - Accounts of medical history - Descriptions of past/present symptoms or sensations - Reports about the inception of the condition or its "general cause" ***The rule sometimes applies to a declarant who is not the party seeking treatment, especially if the patient is a child or is too sick to speak for himself***

Answer 61

Most courts assume the rule applies to statements made seeking treatment/diagnosis to psychologists and psychiatrists as well. New trend in a minority of Courts: In a series of child abuse cases, some courts found the perpetrator's identity pertinent to treatment and thus admissible under the rule for 2 reasons: 1) Treatment of a patient suffering regular, ongoing abuse may include separation of patient from the abuser (identity necessary) 2) Effective psychological treatment of an abuse victim may require the doctor to know who caused the abuse. Different psychological states lead and stem from varying sources of abuse.

Answer 62

Recorded Recollection Allows admission of "recorded recollections' under specified circumstances. Admissibility of Recorded Recollection: 1) The out of court statement must appear in a record. 2) Witness testifying must be the declarant who made the record or a person who saw the record and agreed it was true. 3) Declarant/Witness must testify that she once knew about the information contained in the record and that she made or adopted the record when she had that knowledge. 4) The record must have been made/adopted when her knowledge was "fresh" (different lengths of time depending on the person/scenario). 5) Must testify that at the time the record was made/adopted, she knew that it accurately reflected the knowledge she had. 6) Witness must no longer recall the information contained in the record "well enough to testify fully and accurately". (ie. Direct testimony is not available) ***Judges have construed the rules reference to record broadly to include audiotapes and other media***

Answer 63

Hearsay within Hearsay Multiple levels of hearsay are admissible as long as each layer fits within an exception. ***If the embedded statement is offered to prove something OTHER than the truth of the matter asserted, than it is not hearsay***

Answer 64

Business Records Admits nearly every document that an organization generates in the ordinary course of business. Applies whether or not the declarant is available to testify. Key elements 1) applies to any record 2) Builds upon Rule 602's personal knowledge requirement (requires information to be recorded at or near the time that the data arose) 3) Organization must have made the record in the course of a regularly conducted business activity and must have a regular practice of keeping such records/ 4) A qualified witness must introduce the record into evidence. 5) Caveat: A business record is not admissible if the course of information or method or circumstances of preparation indicate a lack of trustworthiness. - The opponent of evidence offered as a business record bears the burden of showing that the record lacks trustworthiness. 6) Business is defined broadly. ***Courts tend to find that documents prepared in anticipation of litigation are too untrustworthy to qualify as business records***

Answer 65

Hearsay exception: Public records Admits 3 categories of Public Records 1) Activities of a Public Office ex. People hired, fired, money spent, meetings held 2) Observations of a public office ex. Annual rainfall, weather, travelers passing a check point *Caveat: i) Only applies to matters the agency has a duty to report ii) Excludes all records of observations made by law enforcement personnel when offered in a criminal case iii) Results of Public Investigations *Significant aspects: i)Not admissible against a defendant in a criminal case ii) Factual findings interpreted to include opinions and conclusions of the investigator as well as underlying facts iii) Investigation must have been legally authorized * Admits evidence regardless of a declarant's availability * Allows the opponent to attack the admissibility of any public record on the ground that the record lacks "trustworthiness".

Answer 66

It must meet 803 (8)'s requirements for admission.

Answer 67

The court should consider: The timeliness of the investigation The special skill or experience of the official conducting the investigation Whether a hearing was held by the public agency prior to the report being made; and whether the motivation of the public agency is suspect

Answer 68

Absence of business or public records ex. List of cars towed by local towing company, defendant's license plate not listed 803 (7) 1) Proponent must show that the records containing the omission are kept in accordance with rule 803(6) 2) The party must show that the absence relates to a matter about which the business regularly kept records 803 (10) The requirements for introducing evidence about the absence of a public record: Proponent must show that the absent record relates to a matter for which the public office regularly kept a record. 2 Ways to prove non-existence: 1) Party may call a witness to testify that a diligent search was made and no record was found 2) Party may present a certified document from the agency pursuant to Rule 902, attesting that a diligent search failed to yield the particular document

Answer 69

Statements in Ancient Documents Document that have been in existence since before January 1, 1998 The party offering the document must establish its authenticity

Answer 70

Market Reports and Similar Commercial Publications Applies to directories and lists that the general public uses, as well as specialized tabulations that members of an occupation may rely on. 2 Components: 1) Document must be one of market quotations, lists, directories or other compilations 2) Party offering evidence must show it is generally relied on by public or particular occupation.

Answer 71

Learned Treatises 4 Significant Points: 1) Allows parties to introduce learned treatises only in connection with an expert's testimony 2) Statements from a learned treaties "may be read into evidence but not received as an exhibit" 3) Proponent of a learned treatise to establish its reliable authority in one of the following routes: a) Expert witness may confirm reliability in the field b) Another expert witness may establish that fact c) Judge may take judicial notice of the treatise's authoritativeness 4) Encompasses learned treaties in almost any field of study

Answer 72

Rule 804 (a) 1) Privilige 2) Refusal to Testify 3) Lack of Memory (real of feigned) 4) Death, Physical Illness, Mental illness 5) Absence i) Party must use any reasonable means, in addition to serving a subpoena to persuade the declarant to attend trial ii) Proponent must use reasonable means to take the declarant's deposition if the declarant will not attend the trial *Wrongdoing Caveat: The party offering the witness's out of court statement cannot cause the unavailability of a witness through wrongful means.

Answer 73

Hearsay Exception: Former Testimony ***Must show the declarant is unavailable*** 4 additional Requirements: 1) Prior testimony must have been given at trial/hearing/deposition -Need not have occurred as part of the same lawsuit 2) The opposing party must have had an opportunity to question the declarant in the prior trial or other proceeding -opposing need not have conducted cross-exam (or direct or cross or redirect) but simply had the opportunity to do so. 3) The opposing party's motive in questioning the declarant in the prior hearing must have been similar to the motive the opposing party would have in cross-examining the declarant in the current trial. 4) In a criminal case, the party with the opportunity to question the declarant in the prior hearing must have been the same party as the opposing party in the current case. *In civil cases, the requirement is not as strict*

Answer 74

1) The type of proceeding in which the testimony was given 2) Trial Strategy 3) The Potential Penalties or Financial Stakes 4) The Number of Issues and Parties

Answer 75

Hearsay Exception: Dying Declarations Recognizes a hearsay exception for dying declarations BUT limits the exception in several ways 1) Only in Civil Cases or Homicide Prosecutions 2) Dying Declarations are ONLY admissible if they concern the cause or circumstances of the declarant's death 3) The declarant must believe that death is imminent 4) Declarant must be unable to testify *The party offering the dying declaration must prove the belief that death was imminent (and that the declarant knew) by a preponderance of evidence

Answer 76

Hearsay Exception: Statement Against Interest 5 Important Parts: 1) Declarant must be UNAVAILABLE 2) Statement must be against the declarant's interest when the statement is made 3) 3 ways the statement can be against a declarant's interest: i) Contrary to her proprietary or pecuniary interest ii) Render invalid a claim she has against another person iii) Expose the declarant to civil or criminal liability 4) An objective standard governs the court's determination of whether a statement was sufficiently against the declarant's interest 5) Any statement that exposes the declarant to criminal liability is admissible in a criminal case only when corroborating circumstances clearly indicate the statement's trustworthiness.

Answer 77

1) Whether the declarant had pled guilty before making the statement or was still exposed to prosecution (that is how far against the declarant's interest the statement was at the time) 2) The declarant's motive in making the statement and whether there was a reason for the declarant to lie. 3) Whether the declarant repeated the statement and did so consistently 4) The party or parties to whom the statement was made 5) The relationship of the declarant with the accused; and 6) The nature and strength of independent evidence relevant to the conduct in question *Trial Judge determines trustworthiness under Rule 104 (a) offering party must prove trustworthiness by a preponderance of the evidence.

Answer 78

Hearsay Exception: Forfeiture Admits hearsay against a party that intentionally and wrongfully procured witness's unavailability. Aims to prevent wrongdoers from profiting from their misconduct. 3 Requirements: 1) The declarant must be UNAVAILABLE 2) The opposing party must have wrongfully CAUSED or ACQUIESCED in the declarant's unavailability 3) The opposing party must have intended to make the declarant unavailable 4) The wrongful conduct in fact caused the unavailability SLIMY BEHAVIOR IS NOT ENOUGH

Answer 79

Rule 807 Residual Exception: Gives judges flexibility to admit hearsay that falls outside of standing exceptions. 6 Conditions to gain admission: 1) The statement must not be specifically covered by a hearsay exception in Rule 803 or 804 2) Statement must have Circumstantial gurantees of trustworthiness that are equivalent to those found in the enumerated exceptions of Rules 803 & 804 3) Statement must offer evidence of material fact 4) The proffered hearsay must be more probative of the information it conveys than any other evidence that the proponent can obtain through reasonable efforts 5) The trial judge must find that admitting the statement will best serve the purposes of these rules and the interests of justice - Means very little in practice 6) The Proponent of a statement must inform the opposing party of her intent to use the statement, the details of the statement, and the name and the address of the declarant. The proponent must give "reasonable notice" so the opposing party may prepare a response.

Answer 80

Attacking a Declarant's Credibility Under rule 806 parties can impeach declarants with article VI tools, whether or not the declarant appears as a witness. 6 Points to Note about Rule 806: 1) Applies to all hearsay statements admitted under an exception including statements covered by Rule 801 2) Allows a party to attack the declarant's credibility by introducing any evidence that would be admissible if the declarant had testified as a witness 3) If declarant's credibility is attacked, the other party may rehabilitate the declarant in any way allowed with witnesses 4) Allows a party to present a declarant's inconsistent statements without giving the declarant an opportunity to explain or deny inconsistencies 5) Allows any party to impeach a hearsay declarant 6) The opposing party is allowed to call the declarant as a witness and cross-examine.

Answer 81

Judicial Notice Rule 201 allows judges to recognize facts that are "not subject to reasonable dispute". -Adjudicative Fact: A fact that helps prove the element of a specific case. 1) Must not be subject to reasonable dispute 2) Must be either generally known within the court's jurisdiction, OR must be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.

Answer 82

* Civil Cases: Judges MUST instruct the jury to accept the noticed fact as conclusive * Criminal Cases: The court must instruct the jury that it MAY OR MAY NOT accept the noticed fact as conclusive =Judicially noticed facts bind the jury in civil cases, but not in criminal ones.

Answer 83

Lay Opinions Allows non-experts to testify as to opinions under 3 conditions: 1) Opinion must be rationally based on the witness's perception 2) The lay opinion must help the fact finder 3) The lay opinion must be non-technical -Lay witnesses may use reasonable inferences from their own experience -Before a lay witness gives an opinion based on particular knowledge, he must lay a foundation establishing that he has information required to form the opinion.

Answer 84

Judges, not a closed circuit of experts determine the reliability of expert testimony. The judge relies upon a variety of factors that include, but are not limited to, general acceptance.

Answer 85

What subjects are appropriate for expert testimony, 6 Principles: 1) Court must find the witness qualifies as an expert before the witness offers an opinion on technical or scientific matters. 2) Defines expert testimony as "a witness who offers scientific, technical or other specialized knowledge" 3) Expert testimony must help the trier of fact 4) Testimony must rest on sufficient facts or data 5) Testimony must be the product of reliable principles and methods 6) The witness must have reliably applied the principles and methods to the facts of the case

Answer 86

1) The prosecutor may introduce non-testimonial hearsay as long as statements comply with hearsay rules. 2) The prosecutor may introduce testimonial hearsay if statements comply with the hearsay rules and the declarant is available as a witness. 3) If the hearsay statement IS TESTIMONIAL and the DECLARANT IS UNAVAILABLE AT TRIAL, the prosecutor may offer the statement ONLY IF the defendant had a PRIOR OPPORTUNITY TO CROSS EXAMINE THE DECLARANT

Answer 87

A criminal defendant has the right to cross examine any person who makes a testimonial statement against him.

Answer 88

Testimonial Statement is a "solemn declaration or affirmation made for the purpose of establishing or proving some fact; made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; have a primary purpose of creating an out of court substitute for trial testimony.

Answer 89

1) Dying Declarations | 2) Forfeiture by Wrong Doing

Answer 90

Out of court statements made to persons other than law enforcement officers are not excluded from admission into evidence by the confrontation clause. Primary Purpose Test If the primary purpose of the conversation eliciting the statement is to create a testimonial statement to substitute for trial testimony, the statement is within the scope of the confrontation clause.

Answer 91

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: How to qualify and expert: 1) Attorney who called the expert lays a foundation for the witness's expertise by asking questions about the witness's credentials and qualifications 2) Opposing Counsel may void dire the witness - OC may ask the witness questions in order to test his credentials - OC decides whether to object to the witness's certification as an expert 3) Judge rules on the motion to certify the witness ***Parties may shorten the process by stipulating the witness is an expert. An expert witness's qualifications must match the testimony she offers.

Answer 92

The Evidentiary Rules confer at least 4 special powers on expert witnesses compared to lay witnesses: 1) If the expert's testimony requires knowledge of other trial testimony, the expert may remain in the courtroom even if the judge excludes other witnesses under Rule 615. 2) Experts are the only witnesses who can certify documents as learned treatises under Rule 803 (18). 3) Experts may state conclusions based on their special training or experience. 4) Experts do NOT have to base their opinions exclusively on personal observations. Experts may rely on a wide range of data (including information such as hearsay evidence that is not admissible in court).

Answer 93

Limits on Opinion & Expert Testimony 704 (a) declares that testimony is not objectionable just because it embraces an ULTIMATE ISSUE. -However, judges retain significant authority under Rule 403, and 701-702 to restrict testimony that treads too far on the fact finder's role. 704 (b) In a criminal case, an 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. Those matters are for the trier of fact alone.

Answer 94

1) Experts may only describe general findings about eyewitness testimony 2) Most courts allow expert testimony about eyewitness reliability only when circumstances suggest that an eyewitness is less reliable than usual.

Answer 95

``` Privilige in General: Most common-Right against self incrimination Attorney-client privilege Work Product Privilege Spousal Privilege Psycotherapist-Patient Privilege Clergy-Communicant Privilege ```

Answer 96

NOT Codified by congress however, the proposed rule that the advisory committee sent to congress in 1972 provides a useful foundation. 2 Overlapping Commitments to Maintain Client Confidence: 1) Professional Obligation to Keep Information Confidential 2) Evidentiary Privilege - Covers only Confidential communications made to obtain legal services

Answer 97

Who: Client may claim privilege and lawyer may claim ONLY on behalf of the client When: In any context (trial/pretrial/discovery/etc) What: Confidential communications made for the purpose of facilitating the rendition of professional legal services to the client How strong?: Absolute 3 Exceptions 1) In furtherance of a crime of fraud 2) Breach of duty by lawyer or client ex. to defend against a malpractice action 3) Joint Clients - Any client may disclose confidential communications that occurred during the representation.

Answer 98

1) Client -Upjohn Factors: Employees speak about matters within the scope of their duties Control Group Test: Narrower than Upjohn, it includes only corporate officers authorized to act on advice given by the company's attorney 2) Attorney - Any person authorized to practice law or who the client reasonably believes is authorized to practice law - Secretaries/Paralegals/translators fall within scope 3) Communication Protects communications by the client to the lawyer and the lawyer to the client. -Any writings which came into existence independent of the attorney client interactions are NOT privileged. 4) Confidentiality - The privilege only protects communications that the client and attorney make in confidence 5)Purpose Only protects communications made for the purpose of obtaining legal services ***Crime-fraud exception applies if 1) the client is committing or intending to commit a fraud or crime and 2) the attorney-client communications are in furtherance of that alleged fraud or crime ***waiver: client may expressly or inadvertently waive the privilege by sharing part of a confidential communication to a 3rd party

Answer 99

Protects all work that either the attorney or client does independently to prepare for trial. Broader than attorney-client privilege Federal Rules of Civil Procedure 26 (b)(3) Federal Rules of Criminal Procedure 16 (a) (2) and (b)(2) 2 Important limitations: 1) Only protects products prepared in anticipation of litigation 2) When work product consists solely of facts about the dispute the privilege is qualified: Opposing party may obtain access to this type of work product by demonstrating "substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means"

Answer 100

Not Codified in the evidentiary rules but the Supreme Court has formally approved 4 of 5 Privileges: 1) Spousal Testimony Privilege 2) The Marital Communications Privilege 3) Psycho-Therapist Patient Privilege 4) Executive Privilege 5) Clergy-Communicant Privilege

Answer 101

1) Only arises when a spouse is a criminal defendant or target of a grand jury investigation 2) Other spouse may refuse to testify against the target spouse 3) Does NOT apply in Civil Proceedings 4) Applies ONLY during the life of the marriage 5) While spouses remain married, the privilege applies, even to information that one of the spouses obtained before marriage 5) Witness Spouse controls the Privilege and may waive

Answer 102

Protects Confidential Communications between two spouses 1) Applies to all stages of Judicial Proceedings, Criminal & Civil 2) Protects Marital Confidences even after the marriage ends 3) Both spouses control the communication Privilege and neither may waive without the other's consent 4) ONLY protects communications made DURING the life of the marriage 5) Only protects communications one spouse makes to the other in confidence 6) Only Protects communications between spouses (not observations) Exceptions: Neither spouse may assert the communications privilege if: 1) One spouse commits a crime against the other spouse or against a child in their custody; or 2) The spouses jointly commit a crime

Answer 103

Broad Privilege * Applies to licensed social workers, psychiatrists, psychotherapists * Applies only to communications that a patient makes to a licensed therapist for the purpose of diagnosis or treatment of a mental or emotional problem * Circuits split on "Dangerous patient exception" * Patient may waive the psychotherapist privilege if he puts his mental condition in issue during trial: - broader view: Party waives ANYTIME he puts his mental or emotional condition at issue during trial - narrower view: a party does not waive the privilege unless she places the privileged communication at issue (ie. calling therapist to the stand to testify)

Answer 104

Protects Confidential Communications between the President and close advisors 2 Levels of Executive Privilege: 1) Most Protected Level: Shelters military, diplomatic and national security secrets-ABSOLUTE 2) Protects the president's more generalized interest in confidentiality. Discussions are presumptively privileged but an opponent can overcome the privilege by making a sufficient showing of need-Qualified

Answer 105

Covers: 1) Communications 2) Made in Confidence 3) By a Person seeking spiritual Counseling 4) To a member of the Clergy Communicant Controls the Privilege In some states clergy members must report instances of child abuse even if they receive that information during spiritual counseling.

Answer 106

5th Amendment An individual can invoke the 5th amendment Privilege at any stage during a civil or criminal proceeding if she believes her answer could be used against her in a criminal trial If D chooses to testify, she waives her 5th amendment rights and the prosecutor may attempt to elicit incriminating information on cross-exam When invoked-Absolute Prosecutor can overcome the privilege by granting a witness immunity for her testimony: * Use Immunity: Guarantees the witness that the prosecutor will not use anything she say, or any information derived from those statements in any future prosecution * Transactional Immunity: Prosecutor grantees that he will not prosecute the witness for any wrongdoing that she mentions in her testimony, even if the prosecutor obtains independent evidence of that wrongdoing. 5th AMENDMENT ONLY APPLIES TO PEOPLE NOT CORPORATIONS!

Answer 107

General Standards for Authentication 2 Important Concepts: 1) Threshold for establishing authentication is low 2) Provides a common-sense definition of Authenticity by requiring the party to show it is what the proponent claims it is 2 Categories of evidence 1) Requires extrinsic information to be authenticated 2) Evidence that is self-authenticating

Answer 108

Evidence that is Self-Authenticating 14 Categories Comprehensive

Answer 109

Subscribing Witness' Testimony | Necessary to authenticate a writing only if required by law

Answer 110

Best Evidence When a party relies upon a writing, recording or photograph to PROVE THE CONTENT OF THAT DOCUMENT, Article X requires the party to introduce the ORIGINAL DOCUMENT.

Answer 111

The Best Evidence Rule Applies only to writings, recording and photographs (categories defined broadly)

Answer 112

Offered to Prove Content

Answer 113

Requirement of an original (in some cases several versions of a document might count as an original)

Answer 114

Identifies that types of copies/duplicates of an original that are particularly reliable

Answer 115

Limits on the use of Duplicates: i) Court will reject the duplicate if its use would be unfair ii) Requires use of original writing/recording/photo if a party challenges the authenticity of the original

Answer 116

Exceptions An original is not required and other evidence of the content of a writing, recording or photo is admissible if: a) All originals are lost or destroyed and not by the proponent acting in bad faith b) An original cannot be obtained by any available judicial process c) the party against whom the original would be offered had control of the original, wa at that time put on notice that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or d) the writing, recording or photograph is not closely related to the controlling issue

Answer 117

Proof by Admission | If opponent admits contents of writing/photo/etc then the party does not have to produce the original document

Answer 118

Public Records Eases the burden of proving content of public record 3 Avenues: 1) Introduction of certified copy under rule 902 (4) 2) Testimony by a witness who has compared copy to original 3) Other evidence when 1 of the first 2 methods is not obtainable by reasonable diligence

Answer 119

Allows parties to introduce summaries of writings/recordings/etc. that cannot be conveniently examined in court.

Answer 120

The Role of the Jury The rule forbids jurors from testifying about most things that were said, done or even thought about during the jury deliberations. 4 Important Limits on this protection: 1) Does not come into play until after the jury reaches a verdict 2) The rule allows a juror to testify about "extraneous prejudicial information" -existence rather than effect of external information 3) Allows jurors to testify about whether they made a clerical error when transferring the verdict onto the verdict form 4) In a criminal case in which the defendant was found guilty, the 6th amendment's grantee of a fair and impartial jury will override 606 (b) in one circumstance: When a juror's statement indicates she acted out of racial stereotypes or animus. -Offhand comment does not trigger the exception, however, the convicted Defendant must show that "one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict.