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FRE Flashcards

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1
Q

Standard used in determining whether an item has been properly authenticated

A

Court (not jury) determines:

Whether there is sufficient evidence to support a finding that the items are what the party claims them to be

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2
Q

104(b)

A

Court––not jury––determines any preliminary question about whether:

  1. Witness is qualified
  2. Privilege exists
  3. Evidence is admissible
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3
Q

103

A

Preserving a Claim of Error

Party who wishes to preserve right to challenge the admission of E on appeal must, on the record:

  1. Timely object or move to strike; and
  2. Unless apparent from context, state the specific ground for the objection or motion to strike

THEN –> if ruling excludes E, party can make an offer of proof to preserve the claim for appeal

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4
Q

When is use of Extrinsic E for impeachment allowed?

A
  1. W has a change to explain or deny
  2. OP can question W about statement on redx,recx

Cannot use extrinsic E after witness is off the stand!!

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5
Q

When is a PIS admissible as substantive E and not just impeachment E

A

When a hrsy exception/exclusion applies!!

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6
Q

Intrinsic E

A

questioning the W about their T

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7
Q

Extrinsic E

A

introduce E outside of W’s T to contradict what they said

Can only be used if W can explain/deny!
Only admissible if hrsy exception/exclusion applies

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8
Q

803(3)

A

Then existing mental, emotional, or physcial condition
- motive, intent, plan
- fear, bodily health

*this is forward/present looking; does not apply to past statements

“i did not want to commit that crime” post-arrest

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9
Q

Does a statement of memory or belief qualify under 803(3)

A

No, this is a reflection on prior event or belief

Inadmissible unless related to DC’s will

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10
Q

In a diveristy jdx case, does federal or state law regarding privilege apply?

A

State Law applies

Fed CL applies to all other claims in fed court (ie, fed Q)

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11
Q

Who decides if E is admissinble

A

104

Judge

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12
Q

Who decides weight + credibility of E

A

Jury

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13
Q

Preserving a claim of error

A

103

ruling affects a substantial right of a party, party must:

E is admitted –> Object

E is excluded –> offer of proof

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14
Q

Plain error

A

error that is obvious to a reviewing court

If a plain error affects a substantial right –> grounds for reversal (even w/o challenge)

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15
Q

Rule of Completeness

A

106

If a party only partially introduces an E, the OP can compel the intro of the omitted portion to help explain the admitted E

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16
Q

Judicial Notice

A

Court’s acceptance of a fact as true w/o requiring formal proof

Adjudicative facts – if the fact is generally known in the community; can easily be ascertained

if civil case, jury takes fact as conclusive; criminal, then jury can disregard

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17
Q

Instructing the jury –judicial notice

A

Civil case – jury must be intruscted to accept the noticed judicial fact as conclusive

Criminal case –jury must be intscted that they MAY OR MAY NOT accept the fact as conclusive

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18
Q

Who has control over the order of the witnesses/presentation of a case?

A

Judiciary – this is to be as effective as possible

611, court has broad discretion to exercise reasonable control over the mode & order of W

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19
Q

Can the judiciary question or call a witness

A

YES

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20
Q

Scope of CX

A
  • scope of dx
  • witness credibiltity
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21
Q

Scope of RDX and RCX

A

scope is up to the court’s discretion

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22
Q

Motion to strike

A

if a W’s answer is improper, then only the examining counsel can move to strike

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23
Q

Sequestration (exclusion) of Witnesses

A

615

At party’s request (or on own initiative), court must exclude/sequester the Ws

EXCEPT FOR:
1. party who is a natural person

  1. officer/employee of a party that is a corp
  2. person’s whose presence is essential (expert)
  3. persons permitted by law (ie victim)
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24
Q

Types of Burdens

A

Persuasion
- civil –POE
- criminal – BRD

Production –must produce enough E for each element of a claim

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25
Q

Destruction of E

A

raises a rebuttable presumption that the E would be unfavorable to the destroying party IF OP establishes

  1. destruction intentional
  2. E is relevant
  3. alleged V acted w/ due diligence as to the destroyed E
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26
Q

Relevance

A

401–402

E is relevant if it is probative and material

All relevant E is admissible, unless:
1. excluded by specific law/rule/constitution
2. fails 403 – prob substantially outweighed by unfair prejudice

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27
Q

403

A
  1. probative value
  2. substantially outweighed
  3. by unfair prejudice

unfair prejudice:
- misleading
- confusing
- undue delay
- wasting time

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28
Q

Character Evidence

A

Usually inadmissible; offered to show that D acted in conformity therewith

29
Q

When is CE admissible in a civil case

A

character is an essential element of claim/defense

E can be SIC or reputation/opinion

  • defamation;
  • neg hiring/firing/entrustment;
  • child custody
30
Q

CE in Crim Cases – D’s character

A

π –CE not allowed

∆–allowed to introduce E of “good character” to show inconsistency w/ crime –> BUT must be pertinent to the crime charged + must be via reputation or opinion
- ∆ opens the door –> π can rebut

31
Q

CE in Crim Cases – V’s character

A

∆ – D can introduce reputation/opinion E of V’s character when relevant
- E of V’s sexual conduct is v limited

π – can rebut once ∆ has introduced bad E

32
Q

How to prove CE?

A

reputation

opinion

33
Q

Impeaching w/ CE

A

CE of a W’s untruthfulness is admissible to impeach a W

34
Q

CE offered for other reasons, bad acts

A

404(b)(2) MIMIC

Admissible to show:
- Motive
- Intent
- absence of Mistake
- Identity
- Common plan

When ∆ askes, π must give notice

35
Q

When can SIC be used on CX

A

Character W can be asked about SIC committed by the person about whom W is testing

36
Q

SIC in a crim case

A

SIC not admissible to show ∆’s propensity

When character is an essential element of crime/defense –> relevant SIC can be introduced

37
Q

Habit

A

406

E of a person/org’s routine practice is admissible to prove they acted in accordance w/ that practice on a particular occasion!!

TIP: needs to be “semi-automatic”

Do not need corroboration

38
Q

Competence

A

person w/ knowledge is competent

no min age

mental abilities affect credibility; not competence

39
Q

Impeachment – overview

A
  1. challenge
  2. to a W’s testimony
  3. based on:
    - character for untruthfulness
    - bias
    - ability to perceive or T accurately
    - contradictory prior statement
    - another W
40
Q

Witness’s Character for Truthfulness

A
  1. Cannot bolster W credibility unless truthful character is directly attached
  2. Can attack via reputation/opinion
  3. SIC is generally not allowed!!
    - on CX, can use SIC, but once you get an answer, you have to accept it!!
41
Q

Impeachment –Criminal Conviction

A

Can use conviction to impeach W’s character for truthfulness

42
Q

Conviction Involving Dishonesty/False Statement

A

can always use to impeach a W for any conviction

43
Q

Conviction NOT Involving Dishonesty/False Statement

A

admissible to impeach only if:
(a) crime punishable by death; or
(b) imprisonment of 1+ years

If W is ∆ –> admissible if prob value outweighs the prejudicial effect on that ∆ (NOTICE, does not need to be substantially outweighed)

Other W –> generally admissible

44
Q

Conviction or Release After 10 Years

A

Admissible if:

  1. passes 403
  2. reasonable written notice of intent to use
45
Q

When is a conviction NOT admissible

A

when subject to a pardon, annulment, or other action based on a finding of innocence

pending appeal does not prevent impeachment

46
Q

Juvenile Adjudication – Impeachment

A

not admissible to impeach ∆

Can impeach other Ws if an adult conviction for that offense would be admissible + admitting it is necessary to determine guilt/innocence

47
Q

Prior Inconsistent Statement –Impeachment

A

PIS can be used to impeach if inconsistent w/ W’s T

Extrinsic E is ONLY ALLOWED if the W has a chance to explain/deny and OP can examine the W about it

48
Q

Impeachment of a HRSY DC

A

Credibility of a DC can be attached by any E admissible if DC has testified as a W

If DC called as a W –> can be CX’d

49
Q

How to rehabilitate a W

A
  • explain/clarify on RDX
  • offer opinion/reputation E of W’s truthfulness (only if character attached on that ground)
  • Offer PCS to rebut express/implied charge that W lied due to improper motive
50
Q

Can you use religious belief to impech

A

NO

51
Q

Can you impeach on collateral issues

A

If you want to use Extrinsic E, then NO

52
Q

Present Recollection Refreshed

A
  1. W states cannot remember
  2. Ask if anything will jot their memory
  3. Give W doc/object that will help
  4. Take doc/object back
  5. Re ask the Q

E is not admissible, unless OP enters it!

53
Q

Past Recorded Recollection

A

803(5)

  1. W cannot remember
  2. After showing them doc/memo, still cannot remember
  3. Can read relevant portion into record

NOT admitted into E, unless OP offers it

54
Q

Lay Witness

A

701

  1. rationally based on W’s perception
  2. helpful to clear understanding of W’s T
  3. Not based on scientific, technical, or specialized knowledge
55
Q

Expert W

A

702

W who is qualified by knowledge, skill, experience, training, education––can T in the form of opinion if:

  1. based on sufficient facts & data
  2. based on reliable principles & methods
  3. Principles & methods applied reliably to facts in case
  4. will help trier of the fact
56
Q

Ultimate Issue

A

704

Civil – not automatically objectionable

Crim – Expert CANNOT state an opinion about whether ∆had the requisite mental state

57
Q

Bases of Expert Opinion

A

703

can base on inadmissible facts if:
- normally would rely on it in the field
- made aware of
- personally observed

58
Q

When is a lawyer prohibited from paying a witness to…

A

prohibited when

  1. payment is more than necessary for travel/work
  2. contingent on result
  3. otherwise prohibited by law
59
Q

When can an expert be paid

A

appearance fee
travel allowance

60
Q

Which witnesses can testify about an 803(6) that are NOT the custodian

A

Any witness w/ personal knowledge

61
Q

Do the FRE apply to GJ proceedings/

A

NO, only way to keep info out is if it is privileged

62
Q

When are negotiations re settlement inadmissible

A
  1. to prove content
  2. to impeach via PIS

NOTE: you can use the settlements to impeach via bias

63
Q

Public Records Exception

A

Public record that sets out:

  1. activities of a public office/agency;
  2. matters observed pursuant to a legal duty to report––excluding observations of PO in criminal cases; OR
  3. factual findings from authorized investigation offered in a (1) civil case or (2) against govt in criminal case

NOTE: Statements of TPs in the reports are NOT admissible here!!

64
Q

When do the FRE not apply?

A

Preliminary Question determiantions
GJ proceedings
Bail & other release hearings
Probation/Parole
Sentencing hearings
Search/arrest warrant determiantions
Preliminary examinations in crim cases

65
Q

When is a W unavailable

A
  • Privilege
  • Refuses to T
  • Lapse of Memory
  • Dead or ill
  • Cannot be found
66
Q

804 Exceptions

A

W needs to be unavailable:

  • Former T
  • Dying Declaration
  • Statement against interest
  • Personal/family history
  • Offered against a party that wrongfully caused absence
67
Q

801(d)(2)(e) – Coconspirator

A

Statement needs to be made in futherance of conspiracy––it needs to be made while trying to commit crime

If statement was said to TP outside of actively committing crime, that does not apply
- Here, if the statement is incriminating, and W is unavailable, then look at Statement against interest

68
Q

How to impeach with PIS

A

Intrinsic E – CX the W about the statement

Extrinsic E –can use EE if:
(1) W has opp to explain/deny
(2) OP can question the W

69
Q

HYPO: During ∆ case, ∆’s GF said ∆ was with her. π cx’d her with a PIS that she told PO he was not with her till late at night. She denies it. She gets off stand. During rebuttal, π calls PO to T that GF said ∆ was with her in the morning. Is this allowed

A

YES, only an impeachment E

Allowed bc the EE requirement is satisfied since she was crossed on it, so now π can rebut with EE

Note: I think you cannot rebut with SIC but can with PIS

UBE (14 decks)

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