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FRE Flashcards

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1
Q

Similar occurrences

A

Where evidence is admissible even though it involves a different place, time, event, or person not involved in litigation.

Often used for complicated issues of causation.

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2
Q

Prior Accident Claims

A

P’s prior accidents or claims are not admissible

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3
Q

Exception to prior accident claims rule

A
  1. Where the there is a common scheme or fraud

2. Where it is relevant on the issue of damage to P.

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4
Q

Rebuttal evidence

A

Allowable to rebut an impossibility

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5
Q

Comprable sale to establish value

A

Sale prices admissible if:

  1. Same general description (kind)
  2. Same relevant time period (time)
  3. Same general geographic area (place)
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6
Q

Habit evidence

A

Relevant to show that a person acted in the same way on the occasion in question.

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7
Q

What is habit?

A
  1. Specific detailed conduct
  2. Recurrence

The language “always” “instinctively” “invariably” “automatically”

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8
Q

Business routine

A

Habit evidence for businesses.

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9
Q

Industrial or trade custom

A

admissible as non-conclusive evidence on standard of care.

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10
Q

Liability insurance

A

Not admissible to show person acted negligently, wrongfully, or their ability to pay.

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11
Q

Exceptions to admission of liability insurance

A
  1. To show ownership or control

2. To impeach credibility of witness by showing interest or bias.

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12
Q

Subsequent remedial measures

A

Not admissible to show:

  1. Negligence
  2. Culpable conduct
  3. A defect in a product
  4. A defect in product design
  5. A need for a warning.
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13
Q

Subsequent remedial measures can be used to show:

A
  1. ownership or control

2. impeachment - feasibility of precautionary measures.

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14
Q

Settlements

A

Not admissible to prove fault, liability or amount of damage.

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15
Q

Settlement exclusion includes what 5 things?

A
  1. Actual compromises
  2. Offers to compromise
  3. Offers to plead guilty in a criminal case
  4. Withdrawn pleas of guilty
  5. Please of nolo contendere

ANY ‘meaningful settlement talk’

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16
Q

Limitations on settlement exclusion

A
  1. There must be a CLAIM.

2. The claim must be disputed as to either liability or amount

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17
Q

Offers to pay medical expenses

A

Not admissible - even though it’s not a settlement offer. UNLESS the offer accompanies a naked offer to pay hospital or medical expenses.

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18
Q

Purposes of Character Evidence

A
  1. Character is directly in issue
  2. Character as circumstantial evidence of a person’s conduct at the time of litigated event.
  3. Character to impeach the credibility of a witness.
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19
Q

Character evidence in civil cases

A

No character evidence in civil cases UNLESS the character of the party is itself a material issue in the case.
(ex. defamation)

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20
Q

Sixth Amendment Right to Confrontation

Statements will not be admitted EVEN IF they fit a hearsay exception when (4 factors):

A
  1. Offered against the accused in a criminal case, AND
  2. Declarant is unavailable for trial, AND
  3. Statement was testimonial, AND
  4. Accused had no opportunity to cross.
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21
Q

“Exception” to 6th Amendment Right to Confrontation

A

When the prosecution demonstrates that D has prevented the declarant from testifying at trial because of D’s wrongdoing.

Only applies when D INTENDS to prevent testimony.

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22
Q

Testimonial

A

A statement that a reasonable declarant will be used in the prosecution or investigation of a crime.

(Includes forensic lab reports on fingerprints, drugs, etc.)

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23
Q

5 Considerations in determining whether statements are testimonial

A
  1. Motive of declarant.
  2. Motive of interrogator
  3. Temporal element
  4. ID of person eliciting the statement (cop or family member?)
  5. Degree, amount, circumstances, and location of police interrogation.
24
Q

Prior acts of misconduct admissible to show:

A
  1. Motive
  2. Intent
  3. Opportunity
  4. Preparation
  5. Plan
  6. Knowledge
  7. Identity
  8. Absence of mistake
25
Q

Judicial notice is appropriate when:

A

when the fact is INDISPUTABLE or can be verified through scientific principles.

26
Q

Judicial notice: Criminal Cases

A

judicial notice is not conclusive – jury is not required to conclude that that fact has been established.

27
Q

Judicial notice: Civil Cases

A

Fact is presumptively established.

28
Q

2 things a judge, not a jury, gets to decide:

A
  1. Judge gets to decide who testifies as an expert.

2. Judge gets to decide whether OOC statement was a hearsay exception.

29
Q

What may be used to refresh recollection?

A

ANYTHING.

30
Q

What must you do if you want to use a document to refresh a witness?

A
  1. If you use a document to refresh the recollection of the witness it must be made available to opposing counsel – then SHE may introduce it into evidence and you have no objection.
31
Q

3 types of character evidence

A
  1. Reputation Evidence
  2. Opinion Evidence
  3. Specific Acts (prior crimes, reckless behavior, charity, etc.)
32
Q

Criminal Trial: Propensity Evidence

A
  1. Prosecutor cannot introduce any evidence of the D’s bad character if the purpose of the evidence is to show that he probably acted in conformity with his bad character, the same away again, and committed the crime charged.
33
Q

Criminal Trial: Good Character Evidence

A
  1. D is allowed to present evidence of prior good character traits to show that he acted in conformity of his good character and did not commit the crime.

Specific acts are not allowed!

34
Q

If D presents evidence of good character then…

A

P is allowed to introduce evidence of D’s bad character.

a. P can present reputation or opinion evidence to establish bad character.
b. P can also ask D’s character witness if they have ‘Heard…’ crimes of the D

35
Q

When may prior acts be used?

MIMIC

A

If P is introducing evidence of the prior crime OTHER THAN THE propensity purpose – then the rule on character evidence will NOT keep out prior crime. Prior crime could still be excluded if the probative value is substantially outweighed by the prejudice.a. Motive

b. Identity
c. Mistake, absence of
d. Intent
e. Common scheme

36
Q

If D chooses to testify…

A

His character for honesty is immediately in question and P can bring character evidence to show he is not honest.

37
Q

Character Evidence in Civil Cases

A

Generally NOT ALLOWED

38
Q

5 ways to impeach credibility

A
  1. Prior inconsistent statement
  2. Bias or Motive to Misrepresent
  3. Prior Conviction
  4. Specific acts
  5. Bad reputation
39
Q

Prior inconsistent statement

A

Show that witness has made inconsistent statements on a prior occasion with some material part of present testimony. Destroy the credibility of a witness.
a. If prior statement was given under oath at a prior trial or deposition – then the statement is admissible to impeach AND as substantive evidence – if not then the statement is just coming in to impeach.

40
Q

Bias or motive to misrepresent

A

Always material. Always allowed.

a. Extrinsic evidence is allowed if the witness denies the bias or motive to misrepresent.

41
Q

Prior Conviction

A

a. Dishonesty or false statement? It is always material. It is always admissible, whether it’s a felony or a misdemeanor.
i. No discretion on the part of the judge.
b. If it’s a serious crime punishable by more than one year in jail – can use it to impeach but the tr. judge has discretion on whether or not to exclude it.
c. Too remote if more than 10 years have passed from the date of release for the confinement of the conviction. Not usable.

42
Q

Specific acts of misconduct

A

bear on truthfulness/untruthfulness.

a. Prior bad acts, not convictions.
b. If witness denies the specific act → NO extrinsic evidence is allowed.

43
Q

Bad reputation in the community for truth

A

This may be proven by extrinsic evidence.

44
Q

Character evidence in a criminal case

A

In a criminal case D must open the door. This is where D offers evidence of good character by rep. or opinion and P may rebut.

45
Q

Admissions

A

Statement made or act done that amounts to a prior acknowledgement by one of the parties to an action of one of the relevant facts.

46
Q

Materiality

A

concerns whether the disputed fact is at issue in the case.

47
Q

Probativeness

A

concerns whether the evidence makes the existence of the fact more probable than it would be without the evidence.

48
Q

Proximity

A

refers to how close in time the evidence is to the events at issue in the case.

When testimony or exhibit evidence that relates to a time, event, or person other than the time, event, or person directly involved in the controversy being litigated is offered, courts often consider the evidence’s proximity in time to the events in question when determining its relevance.

49
Q

Burden of Producing evidence

A

is the burden of introducing sufficient evidence to avoid judgment against her as a matter of LAW.

50
Q

Burden of persuasion

A

determination by jury.

51
Q

A writing may be authenticated by: (3 things)

A
  1. Evidence that the party against whom it is offered has either admitted its authenticity or acted upon the writing as authentic.
  2. circumstantial evidence. For example, the rules for ancient documents and reply letters involve authentication by circumstantial evidence. Any proof tending in reason to establish genuineness is sufficient.
  3. Evidence of the genuineness of the handwriting of the maker.
52
Q

Real evidence may be authenticated by: (2 ways)

A
  1. Recognition testimony—i.e., a witness’s testimony that the object is what the proponent claims it is.
  2. Establishing a chain of custody
53
Q

Easily tampered with evidence must be authenticated by:

A

the proponent of the object must show that it has been held in a substantially unbroken chain of possession but does not need to negate all possibilities of substitution or tampering.

54
Q

Original Evidence Refers to:

A

real evidence that has some connection with the transaction that is in question at the trial.

An alleged murder weapon is an example of original evidence.

55
Q

Circumstantial evidence is:

A

evidence proved as a basis for an inference that other facts are true.

56
Q

Demonstrative evidence refers to:

A

real evidence that is prepared, such as sketches or models that are made to be shown to the trier of fact.

57
Q

The standard of proof for authenticating a document is proof:

A

sufficient to support a jury finding of genuineness, i.e., enough evidence to support a jury finding that the document is what the proponent claims it is.

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