Last Push Evdence Flashcards
What is the general rule regarding character evidence in civil cases?
Character evidence is generally inadmissible to prove conduct in conformity.
When is character evidence admissible in civil cases?
When proof of a person’s character is an essential element of a claim or defense.
In which types of civil cases is character considered ‘directly in issue’?
- Defamation cases where truth is a defense
- Negligent hiring or entrustment cases
- Child custody cases
What forms of character evidence are admissible when character is directly in issue?
All forms of character evidence: reputation, opinion, and specific acts.
What is the general rule regarding the admissibility of other misconduct evidence?
Evidence of other crimes, wrongs, or acts is generally inadmissible if offered solely to prove conduct in conformity.
What is MIMIC evidence?
Evidence of a person’s other crimes, wrongs, or acts that is admissible if relevant to some issue other than their character or propensity.
What are some non-character purposes for offering evidence of other misconduct?
- Motive
- Intent
- Absence of mistake or accident
- Identity
- Common plan or scheme
Fill in the blank: In civil cases, character evidence is generally ________ to prove conduct in conformity.
inadmissible
True or False: Evidence of a person’s other misconduct can be offered solely to suggest they are more likely to commit the charged crime.
False
In child custody cases, what aspect of character is at issue?
Parents’ character
In negligent hiring cases, what aspect of character is at issue?
Hired/entrusted person’s character
What is a method for impeaching a witness?
Using hearsay declarant
What can a witness’s character be impeached for?
Truthfulness and self-interest bias
What must be specified to impeach a declarant?
Instance of conduct involving bad act or criminal conviction of felony or dishonesty
What types of testimony can be used regarding a declarant’s truthfulness?
- Reputation testimony
- Opinion testimony
What is a method for impeaching a witness regarding partiality?
Showing bias to a party
What constitutes a specific contradiction in witness testimony?
Inconsistent statement
What type of evidence can contradict testimony on a material issue?
Direct evidence
What is admissible regardless of when a statement occurred?
Evidence directly contradicting testimony
When can a declarant’s credibility be attacked?
When a hearsay statement is admitted under hearsay exceptions or exclusions
How can a declarant’s credibility be supported or attacked?
Using methods for impeaching a witness
True or False: A declarant’s inconsistent statement can be used for impeachment.
True
What is a key difference between a witness’s and a declarant’s inconsistent statements?
A declarant’s inconsistent statement can be used even if it occurred after the hearsay statement
What cannot be used as substantive evidence to prove negligence?
A bystander’s hearsay statement
What rule governs the attacking of a declarant’s credibility?
Fed. R. Evid. 806
Fill in the blank: When a hearsay statement is admitted, the declarant’s credibility may be _______.
attacked
What is a requirement for a statement to be admissible under hearsay exceptions?
Must fall within an exclusion or exception to the hearsay rule
What methods can be used to impeach a witness’s character for truthfulness under FRE 608?
A party may attack a witness’s character for truthfulness through:
* reputation or opinion testimony
* specific instances of conduct (SICs)
What is reputation or opinion testimony in the context of witness impeachment?
Reputation or opinion testimony is introduced extrinsically, meaning from a source other than the witness’s own testimony.
Can specific instances of conduct (SICs) involving felony convictions be introduced extrinsically or intrinsically?
Yes, a SIC that involves a conviction for a felony or crime of dishonesty can be introduced extrinsically or intrinsically.
How must a specific instance of conduct (SIC) involving a bad act be introduced?
A SIC involving a bad act may only be introduced intrinsically.
True or False: A defendant can call their own witness to testify about a plaintiff’s witness’s bad act.
False
What does FRE stand for?
Federal Rules of Evidence
Fill in the blank: Under Federal Rule of Evidence 608, a party may attack a witness’s character for truthfulness through reputation or opinion testimony or _______.
[specific instances of conduct (SICs)]
What is the educational objective regarding attacking a witness’s character for truthfulness?
A party may attack a witness’s character for truthfulness through reputation or opinion testimony or specific instances of conduct (SICs).
What type of specific instance of conduct (SIC) can be introduced through the attacked witness’s own testimony?
A SIC involving a conviction for a felony or crime of dishonesty.
In the context of witness impeachment, what is the difference between extrinsic and intrinsic evidence?
Extrinsic evidence comes from a source other than the witness’s own testimony, while intrinsic evidence comes from the witness’s own testimony.
What options does an adverse party have if a witness uses a writing to refresh their memory while on the stand?
An adverse party is entitled to:
* Have the writing produced at trial
* Cross-examine the witness about the writing
* Introduce portions of the writing relating to the witness’s testimony into evidence
These options are available to ensure fairness and transparency in the legal process.
Under what condition can an adverse party access a writing if the witness refreshed their memory before taking the stand?
An adverse party can access the writing only if the court decides that justice requires it
This emphasizes the court’s discretion in determining the necessity of producing the writing.
What happens if the prosecution fails to produce or deliver a writing as ordered in a criminal case?
The judge must strike the witness’s testimony and, if justice requires, declare a mistrial
This rule aims to uphold the integrity of the judicial process.
What discretion does a judge have if the defense or a party in a civil case fails to comply with an order to produce a writing?
The judge has more discretion and can issue ‘any appropriate order’
This allows for flexibility in handling non-compliance in civil cases compared to criminal cases.
What are the first four methods of impeachment?
- Prior inconsistent statements
- Bias
- Sensory deficiencies
- Contradiction
What do impeachment methods 1-4 focus on?
Impeaching a witness with facts that are specific to the current case
What are the methods 5-7 of impeachment?
- Opinion or reputation evidence of untruthfulness
- Prior convictions
- Bad acts
What do impeachment methods 5-7 focus on?
Impeaching a witness with their general bad character for truthfulness
Fill in the blank: Impeachment methods 1-4 involve impeaching a witness with _______.
facts that are specific to the current case
Fill in the blank: Impeachment methods 5-7 involve impeaching a witness with their _______.
general bad character for truthfulness
What is required before introducing extrinsic evidence to prove a prior inconsistent statement?
The witness must be given an opportunity to explain or deny the statement, and the adverse party must be given an opportunity to examine the witness about the statement.
What are the exceptions to the foundation requirement for extrinsic evidence?
The foundation requirement does not apply if the prior inconsistent statement is an opposing party’s statement.
What does evidence of a witness being biased indicate?
It tends to show that the witness has a motive to lie.
Does the Federal Rules specifically address impeachment with bias?
No, much is left to the court’s discretion.
What is the majority rule regarding impeachment by extrinsic evidence of bias or interest?
Before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on cross-examination.
True or False: The court has discretion to allow extrinsic evidence even if the witness admits bias.
True
Fill in the blank: The foundation requirement for extrinsic evidence does not apply if the prior inconsistent statement is an _______.
[opposing party’s statement]
Can the presiding judge testify as a witness?
No, the presiding judge may not testify as a witness.
Are jurors allowed to testify before the jury they are sitting in?
No, jurors are incompetent to testify before the jury in which they are sitting.
What is generally prohibited for jurors during an inquiry into the validity of a verdict?
Jurors are generally prohibited from testifying about what occurred during deliberations or anything that may have affected their vote.
What types of testimony are jurors allowed to provide during an inquiry into a verdict?
- Whether any extraneous prejudicial information was improperly brought to the jury’s attention
- Whether any outside influence was improperly brought to bear on any juror
- Whether there is a mistake on the verdict form
- Whether any juror made a clear statement relying on racial stereotypes or animus to convict
Why is juror testimony regarding racial stereotypes or animus allowed?
To determine whether the defendant’s 6th Amendment right to a jury trial was violated.
True or False: Every comment indicating racial bias qualifies for juror testimony.
False, not every comment indicating racial bias will qualify.
What must the court find for a juror’s racial animus to be considered significant?
The court must find that racial animus was a significant motivating factor in the juror’s vote to convict.
