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2 - Evidence > Full Set > Flashcards

Full Set Flashcards

1
Q

How to notify court of challenge to evidence admission.

A

ev admitted - objection/motion to strike

ev excluded - offer of proof on the record (explanation of the relevance & admissibility of the ev made on the record)

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2
Q

Exceptions for notifying the court of challenge to evidence decision.

A

Plain error rule - errors that affect substantial rights are grounds for reversal even if no objection/offer of proof was made

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3
Q

IL v Fed objection to ev

A

IL - even if court makes an ev ruling before trial, party must RENEW objection or offer proof at trial to preserve issue on appeal, in Fed ct once you’ve done it once it doesn’t have to be done again

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4
Q

Rule 105

A

limited admissibility - ev may be admissible for one purpose but not for another, court must limit ev to its proper scope & instruct jury accordingly

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5
Q

Rule 106

A

Rule of Completeness - if one party introduces part of a document or recording the other party may introduce relevant portions of the document or recording (or even another) to provide context - this is true even if it would otherwise be inadmissible

*also known as the open door doctrine

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6
Q

Judicial Notice Doctrine

A

court’s acceptance of fact as true w/o requiring formal proof, not going to be reasonably disputed

MUST - if party requests & provides necessary info
MAY - at its own discretion, just not against crim D

may be taken anytime including on appeal

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7
Q

adjudicative facts

A

judicial notice only applies to adjudicative facts - otherwise have to be proven & decided by jury

  • generally known w/in territorial jurisdiction of court
  • accurately and readily be determined by sources whose accuracy cannot reasonably be questioned
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8
Q

Legislative facts

A

court sometimes acts like leg, facts the court takes into consideration when determining what legal rule to apply or how to interpret the law

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9
Q

Judicial notice of the law

A

not judicial notice - but when the court explains to jury what the law is

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10
Q

effect of judicial notice IMPORTANT

A

in a civil case, if the court does take judicial notice, the court will instruct the jury that it is BOUND to accept the fact as conclusive. however in a criminal case the jury members must be instructed that they MAY accept any judicially noticed fact as conclusive

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11
Q

order of evidence

A
  1. P’s case-in-cheif
  2. D’s case
  3. P can rubut

order of presentation of witness follows the same

courts & judges may call witnesses

cross after other side direct & limited to scope of direct

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12
Q

Exceptions for leading questions

A
  1. cross
  2. elicit preliminary background info not in dispute
  3. child or ifirmity
  4. hostile witness

*IL only allowed to “witnesses id-ed w/ an adverse party” (not nec all hostile witnesses)

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13
Q

compound questions

A

not permitted

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14
Q

facts not in evidence

A

not permitted

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15
Q

argumentative questions

A

not permitted

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16
Q

calls for conclusion

A

not permitted

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17
Q

asked and answered

A

not permitted

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18
Q

When can witnesses be excluded?

A

upon request of either party to prevent them from hearing the testimony of others

OR when court decides on its own

parties, party whose presences is essential to the presentation of the case, or a witness whose presence is permitted by law CANNOT be excluded

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19
Q

burden of production

A

party must come forward with evidence sufficient to support a finding (to get to a jury) on a particular issue, or risk summary j on that issue

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20
Q

burden of persuasion

A

party must persuade the trier of fact that it has met each element of the case

Civil - preponderance of the evidence
Criminal - beyond a reasonable doubt

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21
Q

what do presumptions do?

A

shift the burden of production

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22
Q

rebuttable presumption

A

proving something indirectly

upon proof of prelim facts, jury told to accept presumed fact, shifts burden of production to opposing party, if counterproof introduced - presumption eliminated

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23
Q

conclusive or irrebuttable presumptions

A

rules of law or legal consequences of proving a certain thing (e.g., a child under the age of 4 cannot form criminal intent)

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24
Q

Rule 402

A

all relevant ev is admissible, unless excluded by specific rule (must be relevant to be admissible)

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25
Q

relevant evidence threshold

A

tendency to make any fact of consequence more or less probably than it would be without the evidence

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26
Q

relevance components

A
  1. material

2. probative

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27
Q

direct evidence

A

identical to the factual proposition it is offered to prove

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28
Q

circumstantial evidence

A

circumstances from which we can draw conclusions

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29
Q

rule 403

A

exclusion of relevant evidence - court - if probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of tim, or needless presentation of cumulative evidence

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30
Q

relevance conditioned on fact

A

occasionally, ev relevance is conditioned on some preliminary fact

courts let the jury decide which way it will go

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31
Q

character evidence definition

A

propensity evidence/propensity argument - low threshold

any doc or testimony offered to prove that a person acted in a particular way on particular occasion, based on character

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32
Q

character evidence in civil

A

generally inadmissible, only admissible when ESSENTIAL element of the case

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33
Q

types of character evidence

A
    1. reputation evidence - witness has a reputation for acting in a certain way
    1. opinion testimony - witness feels that the party has a particular character trait
      1. prior bad acts - testimony that proves that a party acted badly in a prior situation

*generally admissible

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34
Q

character evidence in criminal (defendant)

A

only reputation and opinion permitted

D’s character - he can introduce evidence (only opinion & rep) of his own good behavior as inconsistent w/ the crime, but this opens the door for the prosecution (who can only use opinion & rep)

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35
Q

character evidence in criminal (victim)

A

D can bring this - show propensity for violence, but then prosecution can do the same for victim and D

IL - prosecution may NOT cross character witnesses testifying about other witness w/ specific instances of conduct of the D or victim

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36
Q

prior bad acts evidence

A

not admissible to show propensity, but may be otherwise relevant, e.g.: MIMIC

Motive, 
Intent, 
absence of Mistake, 
Identify, 
Common plan or scheme
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37
Q

habit evidence

A

permissible to argue particular regular habit as way of arguing that she acted in conformity therewith on particular occasion

hint: “always,” “every day,” NOT “usually”

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38
Q

witness competence requirements

A
  1. personal knowledge (of matter)
  2. oath
  3. understands the truthfulness obligation
39
Q

restrictions on competence (judges)

A
  • judge can’t testify in a trial the preside (if personal knowledge, then recuse)
40
Q

restrictions on competence (jurors)

A
  • NOT as to any matter or statement occurring during the course of deliberations, or to the effect of anything upon that juror’s mind that influenced their vote
  • MAY:
    extraneous prejudicial info brought to jurors attention
    whether outside influence
    whether clerical error in entering verdict
41
Q

dead man statutes

A

no fed

IL - person sues or defends as personal rep of dead. no person may testify as to conversations with dead unless testifying on behalf of rep, dep admitted or certain employment based claims

42
Q

when prior crime can be used to impeach

A

RULE 609

felonies: serious crimes w/in past 10y + punishable >1y; probative value v prejudicial effect
- witness - substantially outweighed by its prej
- crim D - only used if prosecutor can show the probative value outweighs prej

crimes of dishonesty: criminal or civil, w/in 10y of conviction

  • no juvenile adjudications
  • no details, just fact of conviction
43
Q

impeachment by prior inconsistent statements

A

X or through extrinsic ev
IL - witness MUST be first afforded opportunity to explain or deny statement (same as in Fed)

opposing party gets chance to examine

44
Q

impeachment by bias

A

interest by a witness in the outcome of the case

Not in Fed rules, but SCOTUS CL

On X or extrinsic ev

45
Q

impeachment by sensory competence

A

most common

deficiency in capacities to percieve, recall or relate info

46
Q

impeachment by hearsay declarany

A

b/c declarant is basically a witness

47
Q

rehabilitating a witness after impeachment

A
  1. chance to explain or clarify
  2. if accused of prior inconsistent statements (intro that witness made same statement before bribe or threat)
  3. if truthfulness - then character evidence
48
Q

present recollection refreshed

A

it’s cool - show docs or things, adverse party can see/inspect & may introduce into ev

49
Q

past recollection recorded

A

hearsay exception - if you want to read a document your witness wrote in the past, special elements must be shown under the hearsay exception

50
Q

types of opinion testimony

A
  1. lay witness

2. expert witness

51
Q

lay witness opinion testimony

A

in general not supposed to give opinion, just facts

BUT if

  1. rationally based on perception of witness
  2. helpful to a clear undersatnding of witness’ testimony &
  3. not based on scientific, technical or specialized knowledge
52
Q

expert witness opinion testimony elements

A

court determines that

  1. some scientific, technical, or specialized knowledge
  2. will be helpful to trier of fact
53
Q

expert testimony tests

A

Frye
Accepted
Daubert

54
Q

Frye expert witness test

A

used in IL

55
Q

accepted expert witness test

A

only admissible if the theory, principle or process is generally accepted in the scientific community

56
Q

Daubert expert witness test

A

used in Fed court

  1. be qualified
  2. opinion based on sufficient facts or data
  3. apply principles and methods reliably to the facts of the case

not more lenient than accepted test

57
Q

on what must expert witness’s testimony be based

A
  1. personal observation
  2. facts made known at trial
  3. facts not known personally but supplied to her outside the courtroom so long as they are reasonably relied on by experts in the field

could otherwise violate rules of evidence

58
Q

expert witnesses & ultimate issues

A

can only testify on ultimate issues

but CANNOT testify as to whether a criminal D had the requisite mental state of any element of a crime or defense

59
Q

authenticating tangible evidence definition & threshold question

A

non-testimonial - documents & real ev

is there evidence sufficient to support a finding taht the thing is what its proponent claims it is? (not a preponderance of the evidence standard)

60
Q

authenticating real evidence (tangible)

A

RULE 901

  1. personal knowledge (familiarity with the object)
  2. distinctive markings
  3. chain of custody
61
Q

authenticating documentary evidence (tangible)

A
  1. stipulation & discovery
  2. personal knowledge, unique identifiers, or distinctive characteristics
  3. handwriting verification
  4. authentication of ancient documents
  5. reply letter doctrine
  6. self-authenticating documents
62
Q

authenticating documentary evidence - handwriting verification

A
  1. comparison by expert or trier of fact OR

2. lay witness w/ personal knowledge of claimed author’s handwriting

63
Q

authenticating documentary evidence - authentication of ancient documents

A
  1. 20y or more
  2. condition doesn’t create suspicion as to authenticity
  3. found in a place where it would have been if authentic
64
Q

authenticating documentary evidence - reply letter doctrine

A

so long as it’s unlikely that it was written by someone other than the recipient of the first letter

65
Q

authenticating documentary evidence - self-authenticating documents

A

public docs, official publications, newspapers, trade inscriptions, notarized docs, commercial paper, business records

66
Q

authenticating oral statements

A

voice ID - anyone who heard the voice at any time

tele conversations - caller can recognize, ev that speaker knew those facts, ev that caller dialed the number of speaker’s and speaker ID-ed himself, caller phoned a business and spoke with a person who answered about business regularly conducted over the phone

67
Q

best evidence rule

A

original doc or copy (so long as genuine question as to authenticity & would be unfair to admit the duplicate) to prove contents of doc when writing is at issue, i.e.,

  1. doc is used as proof of event happening
  2. doc has a legal effect
  3. witness is testifying based on facts learned from the doc
68
Q

exceptions to best evidence rule

A

when other evidence regarding its content is admissible

  1. unavailability (lost/destroyed, can’t get by available judicial process, when party against whom it would be introduced has a copy, doc relates to a collateral matter)
  2. public records (b/c can never get original)
  3. voluminous writings (summary will do, with full in record)
  4. admission by a party
69
Q

exceptions to parole evidence rule

A
  1. clarify ambiguity
  2. prove some trade, custom, or course of dealing
  3. show fraud, duress, mistake, or some illegal purpose
  4. show that consideration has or has
    not been paid
70
Q

privileges genearl

A

not in federal rules, just CL principles

MUST be confidential communication

71
Q

waiving privileges

A
  1. failing to timely assert
  2. voluntarily disclose to someone not protected by privilege
  3. explicitly or contractually waives
72
Q

spousal privileges

A

spousal immunity - can’t be compelled in criminal trial if married at time of trial

confidential marital communications - can be invoked after divorce & used in civil and criminal cases

73
Q

attorney client privilege requirements and exception

A
  1. confidential communication between
  2. client and lawyer for purposes of
  3. obtaining legal advice/services

doesn’t apply to future crime or fraud or disputes between attorney and client

74
Q

work product doctrine

A

prepared by attny in anticipation of lit

only w/ substantial need can it be compelled

MENTAL impressions and strategies of CORE work-product always protected

75
Q

other privileges

A 
physician-patient privilege
psychotherapist-patient privilege
5th am
priest-clergy
accountant-client
journalist or reporter w/ sources
goven't privileges (informants ID, etc.)
state secret privilege
other IL (rape and violence victims to counselors, union agents, voting, presence of interpreter
76
Q

when evidence is more prejudicial than prob (policy exclusions) - can’t be used to show L

A
  1. liability insurance
  2. subsequent remedial measure
  3. offers to pay medical expenses
  4. settlement offers or negotiations
  5. plea negotiations
  6. past sexual conduct of victims (except if other sperm or prior relationship)
  7. ev of prior sexual assault is allowed
77
Q

hearsay definition

A
  1. out of court statement intended
  2. to assert/offer to prove
  3. the truth of the matter stated
78
Q

non hearsay uses of out of court statemetns

A

when it looks like hearsay but is not being used to prove the matter asserted

  1. verbal act or legally operative fact (if statement is offered to prove that a statement was made, and therefore an act completed it is admissible)
  2. effect on listener
  3. state of mind
79
Q

double hearsay

A

both levels have to fit an exception

80
Q

4 Hearsay exceptions

A
  1. prior statements of testifying witnesses
  2. party admissions
  3. declarant unavailable
81
Q

prior statements of testifying witnesses (Hearsay exception) - 3 kinds

A
  1. prior inconsistent statements
  2. prior consistent statements
  3. prior statement of ID
82
Q

party admissions (Hearsay exception)

A

anything from a prior civil case
prosecution can use anything D said in criminal hearing and guilty pleas in civil or criminal

adoptive admissions - someone else said it, but they then admitted it, silence can sometimes work

vicarious admissions (through agents)

co-conspirators

preliminary questions to determine co-conspirators (can’t bootstrap tho!)

83
Q

declarant unavailable (Hearsay exception) - defintion

A
  1. declarant exempt
  2. declarant refuses to testify
  3. declarant lacks memory
  4. dead or ill
  5. absent and can’t be made present
84
Q

prior inconsistent statements excuse for hearsay loopholes

A

to impeach & proof of what is asserted

  1. not made under oath - only for impeachment
  2. made under oath - admissible

IL - only in criminal cases, but can be used to impeach if made under oath, acknowledged under oath, signed by declarant

85
Q

prior consistent statements excuse for hearsay loopholes

A

to rebut an express or implied charge of recent fabrication
to rehabilitate
doesn’t have to be under oath
statement must have been made before the alleged proper motive arose

in IL ONLY to impeach

86
Q

prior ID statements excuse for hearsay loopholes

A

if declarant is now testifying at trial (like a line up)

not in IL

87
Q

declarant unavailable (Hearsay exception) - exemptions

A
  1. former testimony
  2. dying declarations
  3. statements against interest
  4. statements of personal or family history
  5. declarant unavailable due to party’s wrongdoing
88
Q

declarant unavailable (Hearsay exception) - exemption, former testimony

A

okay if there is effectively a way for opposing party to have X (facts w/similar opportunity and motive)

89
Q

declarant unavailable (Hearsay exception) - exemption, dying declarations

A

is dying or believes death is imminent and pertains to the cause of death

90
Q

declarant unavailable (Hearsay exception) - exemption, statements against interest

A

difference between party admission

  • don’t apply to parties
  • only if declarant is unavailable
  • no against interest requirement
91
Q

declarant unavailable (Hearsay exception) - exemption, statements of personal or family history

A

obvious

92
Q

declarant unavailable (Hearsay exception) - exemption, declarant unavailable due to party’s wrongdoing

A

the door is open

93
Q

no threshold showing that declarant is unavailable hearsay exception - exemptions

A
  1. present sense impression (not in IL)
  2. excited utterance (IL) - under the stress & relates to event
  3. statements of mind, hearsay statement must be in present tense
  4. statements made for purposes of medical diagnosis or treatment, if made to med professional
  5. past recollection recorded (witness once had knowledge about matter, record prepared by witness, accurately reflects witness’s knowledge, witness states that she has insufficient recollection)
  6. business records (part of regular practice in making record and by person with knowledge)
  7. public records (description/activities of agency, observations of those under duty to report, conclusions of legal investigations – last two can’t be used if law enforcement)
  8. learned treatises (if reliable authority & expert relied on it)
  9. judgment of previous conviction
  10. prior statements in child sex abuse cases
  11. residual (catch all if not unreliable and would serve justice)
  12. bunches of other stuff

this is not the same as present recollection refreshed

94
Q

hearsay evidence restrictions

A

6th a - right to confront witnesses

14th a - if it would affect due process

2 - Evidence (2 decks)

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