Massive Deck Flashcards
Two requirements for valid objection
(1) must be timely; (2) state specific legal grounds
Why would you file a motion in limine?
To get evidence in or out before proceedings begin.
Does a party need to renew an objection of offer of proof to preserve a claim of error for appeal?
An objection need not be renewed at trial if the judge makes a “definitive ruling” on a pretrial motion.
Evidence is relevant if:
Rule?
(1) It has any tendency to make a fact more or less probable than it would be without the evidence
AND
(2) the fact is of consequence determining the action
Rule 401 - Test for Relevant Evidence
Facts of Consequence
Evidence doesn’t necessarily have to prove the fact; may instead prove a link in a chain - like motive by inference by proving intent
Relevant evidence is admissible unless any of these provides otherwise (4)
Rule?
- US Const.
- Federal statute
- Rule of Evidence
- Other rules proscribed by SCOTUS
Rule 402 - General Admissibility of Relevant Evidence
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of: (6)
Rule?
- unfair prejudice
- confusing issues
- misleading the jury
- undue delay
- wasting time
- needlessly presenting cumulative evidence
Rule 403
Is a person’s character or character trait admissible to prove that on a particular occasion the person acted in accordance with the character or trait?
Rule?
No.
Rule 404(a)(1) - Prohibited Uses.
Can a defendant offer evidence of the defendant’s pertinent trait?
If evidence is admitted, can the prosecutor offer evidence to rebut it?
Rule?
Yes for both.
Rule 404(a)(2)(A)
FRE 403
“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Wording leans towards admissibility.
What is Direct Evidence?
Evidence that, if accepted as genuine or believed to be true, necessarily establishes the point trying to be proven.
Ex: C saw A running from the scene - circumstantial evidence that A killed B, direct evidence that A ran from the scene.
What is Circumstantial Evidence?
The conclusion does not necessarily follow the underlying premises, though at least they support it.
Requirements:
- have to believe witness.
- have to infer what the witness is telling us.
When evidence is admissible as to one party for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall do what?
Rule 105
Restrict the evidence to its proper scope instruct the jury accordingly.
- limited instruction will reduce the unfair prejudice.
What is hearsay?
Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted.
Define “Statement” according to Rule 801(a).
(1) An oral or written assertion
(2) nonverbal conduct of a person, it it is intended by the person as an assertion.
Define “Declarant” according to Rule 801(b).
A person who makes a statement.
Rule 802 - Hearsay Rule.
Hearsay is not admissible except under these rules or by SCOTUS or Acts of Congress.
According to Rule 803, what statements are not excluded by the hearsay rule regardless of the availability of the declarant?
(1) Present sense impression
(2) Excited Utterance
What is “present sense impression”?
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
What is “excited utterance”?
A statement relating to a startling event or condition.
According to Rule 804, what exceptions to hearsay exists when the declarant is unavailable?
(1) Former testimony
(2) Statement under belief of imminent death
(3) Statement against interest
(4) Statement of Personal or Family History
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability
Hearsay Problem
As proof that B lacked testamentary capacity in April, evidence that several times in March he told friends that he was Woody Allen.
NOT HEARSAY.
Matter asserted - that he is Woody Allen, not his testamentary capacity
Trying to prove B lack testamentary capacity
Hearsay Problem
As proof that C assumed that risk of accident on account of faulty brakes in riding in D’s car, D’s testimony that “I told C before he got in that something was wrong with my brakes.”
NOT HEARSAY
Matter asserted - “I told C before in got in that something was wrong with my brakes.”
Trying to prove - C knew of risk of faulty brakes - effect on listener (notice)
Relevant even if statement is false
Hearsay Problem
In E’s personal injury suit, as proof that F was an agent of defendant All-Cure Drugstore, E’s testimony that F said, “I’m awfully sorry, I was running an errand for my employer All-Cure Drugstore.”
HEARSAY
Matter asserted - “I’m awfully sorry, I was running an errand for my employer All-Cure Drugstore.”
Trying to prove F is an agent of the defendant.
Hearsay Problem
As proof that G stole a car, evidence that police stopped him and that his girlfriend H falsely stated at that time, “This car belongs to my brother.”
NOT HEARSAY
Matter asserted - “This car belongs to my brother.”
Trying to prove G stole the car.
It gives probative value b/c gf lied which implies guilt - prosecutor is offering statement for its falsity and allows us to make an inference gf is covering up for G.
OR, it is considered a non-assertive conduct of lying so we don’t have a statement, so we are looking at conduct, not speech
Hearsay Problem
As proof that H was frightened when J brandished a plastic pistol and demanded cash, evidence that H began sweating and shaking.
NOT HEARSAY
nonverbal conduct that was not intended to be an assertion/statement
nothing to suggest he intended this conduct
Hearsay Problem
As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M 10 minutes later, coupled w/ M’s testimony that it was “just past midnight when L told me that she saw K enter.”
NOT HEARSAY
L testifies she “saw” K enter (see-do rule)
- L’s words to M are not offered to prove the matter asserted; we need the statement to reference the point in which K entered the building
M didn’t see K enter the building
Trying to prove K entered the building about midnight
Hearsay Problem
As proof that N committed the robbery w/ which he is charged, testimony from bystander O that “I picked N out of the lineup as the one who did it.”
HEARSAY - nonverbal conduct intended to be an assertion (pointing)
Matter asserted - “I picked N out of the lineup as the one who did it.”
Trying to prove N committed the robbery
Declarant is O
Hearsay Problem
As proof that P and Q had never met before, evidence that Q said to P on parting after a short conversation: “Very nice to meet you”
Most likely NOT HEARSAY
statement is really saying “I just met you” so it is being offered to prove they had just met. However, Prof. says this is a close call and isn’t being offered to prove it was nice to meet him, etc.
- -a social convention that indicated it was the first time they met.
- matter asserted: “very nice to meet you”
- trying to prove P and Q never met before
Hearsay Problem
As proof that R was unusually accomplished in French, evidence that in her first year of college she was accepted into a fourth-year course.
NOT HEARSAY
– nonverbal conduct not intended to be an assertion
– (but Tatham case would say it was hearsay—sea captain’s conduct impliedly asserts)
–In TX, it would be hear say only if the conduct is intended as a substitute for speech
–matter asserted: first year of college she was accepted into a fourth-year course, not paperwork, no out of court statement
–trying to prove: R was unusually accomplished in French
–SEEDO aka boatercycle
Hearsay Problem
As proof that defendant S participated in a criminal venture under duress, evidence that co-participant T told him, “We will kill you if you don’t help us.
NOT HEARSAY
Matter asserted - “We will kill you if you don’t help us.”
Trying to prove - S was under duress when he acted criminally - effect on the listener
- No independent legal significance b/c the mere speaking of the words do not amount to duress
- effect on the listener statement. About whether the listener believed that they would kill - It is not if they would have killed him or not
- offering to prove that S believed him
Hearsay Problem
As proof that U favored increasing the penalties for drunk driving, evidence that she joined an organization entitled Mothers Against Drunk Driving, coupled w/ proof that the principal aim of the organization is to increase such penalties.
NOT HEARSAY
- nonverbal conduct not intended as a statement
- could argue that it is hearsay though by saying that joining a single issue organization is a statement
Matter asserted - not enough here to mean it is an assertion.
Hearsay Problem
As proof that defendant V owned a .32 caliber pistol, testimony by a police officer that when he asked V’s father W whether V owned such a pistol, W went to a drawer in the house where he and V lived, pulled out a .32 caliber pistol, and handed it to the officer.
HEARSAY
Matter asserted - W was asked about the pistol and W pulled out the pistol
Trying to prove V owned a pistol
Declarant - W, the father. All he does is go to the draw and pull out the gun. But this is assertive conduct.
Hearsay Problem
As proof that it was raining at 10am, proof that X said at that time, “it should stop raining in the next hour.”
HEARSAY
Offered to prove that is is raining by asserting it should stop which means it currently is.
Matter asserted - “it should stop raining in the next hour
Trying to prove it was raining at 10am
Hearsay Problem
As proof that officer Y acted in good faith in arresting Z, offered by Y in defending against the claim brought by Z for violation of his rights, evidence that the prosecuting attorney told Y “you have probable cause to arrest Z.”
NOT HEARSAY - effect on the listener
Matter asserted - the prosecuting attorney told Y “you have probable cause to arrest Z.”
Trying to prove Y acted in good faith.
Out of court declarant - prosecuting attorney.
Hearsay Problem
As proof that St. John’s beat Georgetown in basketball, evidence that A, who had bet on Georgetown, paid off his debt.
NOT HEARSAY
-nonverbal conduct not intended as an assertion
–Wright v. Tatham says paying off a debt is conduct that implies an assertion that St. John beat Georgetown
–In Texas, this would not be hearsay to the extent that this is a verbal assertion.-this is wrong, gill did it, he is a fuck up. - typed by Gill
–Texas follows Tatum in regards to verbal assertions- this is wrong, gill did it, he is a fuck up
Hearsay Problem
As proof that B had committed a prior bank robbery, evidence that she was prosecuted for that crime and that a jury had found her guilty.
HEARSAY
Matter asserted - B was prosecuted for robbery and jury found her guilty
Trying to prove B committed a prior robbery
- The jury is the declarant
Hearsay Problem
As proof that C went to New Orleans on Tuesday, evidence that on Monday he said, “Tomorrow I’m going to New Orleans.”
HEARSAY
Matter asserted: “Tomorrow I’m going to New Orleans.”
Trying to prove: C went to New Orleans on Tuesday (the next day)
- The fact that you intend to do something doesn’t mean you will—it is probative only if it is true to prove the matter asserted
- Probative value: he actually asserts he will go to New Orleans
- Common human experience: people often do things they intend to do.
Hearsay Problem
As proof that his brakes were bad, evidence that D said, “I think I ought to reline my brakes before anybody drives the car.”
HERRRSAY
Matter asserted: “I think I ought to reline my brakes before anybody drives the car.”
Trying to prove: that his brakes were bad
- Like Oblique statement; oblique way of saying his brakes are bad
- OR could be like Shirchev’s statement b/c what he thinks is circumstantially relevant to show something is wrong with the brakes
- Direct verbal assertion and offering to prove brakes are bad
- Declarant: D
Hearsay Problem
As proof that E was selling pornographic literature, evidence that he received a letter from F enclosing a check and saying in substance “please send me that dirty book.”
NOT HEARSAY
- not trying to assert anything
- Argument for not hearsay: relevancy b/c the proof that E sells dirty books and flows from F’s belief that he sell them
- More of a conduct of placing an order for argument for Not hearsay—placing an order looks like an offer and acceptance and so it seems to have an independent legal significance
(could be either hearsay or not but better argument is not)
Declarant: F
Hearsay Problem
As proof that G knew H, evidence that G had in his cellphone directory H’s name and H’s phone number.
NOT HEARSAY
- Non assertive act of putting numbers in the phone
- Would only have his name and phone number if he knew him
- Knowledge gained in only one way of meeting someone
Hearsay Problem
As proof of the manner in which J was injured in the workplace, evidence of a videotape in which J reenacts the events that led to her injury, offered in proof by J.
HEARSAY
- Conduct intended to be an assertion
- The reenactment makes the video a statement (even if there’s no sound)
Matter asserted - this is how the accident happened
Trying to prove this is how the accident happened
Hearsay Problem
As proof that K did not have permission to drive the car to Sacramento, evidence that owner L had told K “not to drive it out of San Francisco.”
NOT HEARSAY
- words of independent legal significance b/c it limits the scope of the permission so it makes a verbal act
- OR could be the effect on the listener: what K had thought of the permission allowed
- A grant of permission is evidence of independent legal significance
Hearsay Problem
As proof that tenant L terminated his month-to-month tenancy effective November 1, evidence that L sent owner M a letter in September that stated: “October will be my last month as tenant. I am vacating by November 1.”
NOT HEARSAY
- Independent legal significance (notice of termination of a month to month lease)
- It is a verbal act
- Independent legal significance can be verbal or written depending on what the law requires
Hearsay Problem
As proof that the stairs in Bloomingdeal’s Department store were adequately lighted, testimony by the floor manager that in 6 years several customers had complained that they were a long hard climb but no one had mentioned any lighting problem.
NOT HEARSAY
- Conduct instead of speech (non-complaint)
- Offered to prove the absence of complaint by implying there was nothing to complain about (declarants are the people that never spoke - no assertion)
- Non-complaint is hearsay ONLY if it intended to assert something (ex. a written survey)
- Matter asserted: customers complied it is hard to climb
- Not offering this for the truth of the matter asserted. The absence of complaint is not a statement. We’d have to say it’s non-conduct.
- It’s conduct from which we are inferring that nothing went wrong and the lighting was adequate.
This means it’s not hearsay.
Hearsay Problem
As proof that N had been in the law library before, evidence that on entering the library she said to the attendant, “May I please have the key to the locked cage in the basement, so I can look at Starkie on Evidence?” coupled with proof that in fact that book is shelved in a locked cage at that location.
NOT HEARSAY
- Matter asserted: “May I please have the key to the locked cage in the basement, so I can look at Starkie on Evidence?”
- Trying to prove: that N knew that the book was in the basement, suggesting she had experience in getting the book
- Like paper mache man problem—offered as circumstantial evidence of her knowledge and experience
- Most probable explanation is that she had experience of this knowledge.
- The words were spoken indicating her state of knowledge
Hearsay Problem
As proof that the hit-and-run driver drove a Porsche, testimony that the logo on the rear of the vehicle in question read “Porsche.”
NOT HEARSAY (verbal objects)—logo speaks for itself
- Could argue that it is hearsay though because it says “Porsche”
- Recall identifications based on national brands
- Could be Hearsay as an assertion, saying that it read “Porsche”
Hearsay problem
On the question whether tenant O had paid his rent for the month of April, testimony that in handing landlord P a check in the appropriate amount O said to P, “This is for the April rent.”
NOT HEARSAY
- Independent legal significance
- Performing within contract
Hearsay Problem
On the issue set in question 27, testimony that on day after giving the check to P, O was heard to say “I paid my rent for April.”
HEARSAY
- No words of independent legal significance
- Has nothing to do with contract b/c he is telling his friend after the fact of performing the contract
Matter asserted: “I paid my rent for April.”
Trying to prove: she paid her rent
Hearsay Problem
As proof that Q’s boyfriend R was Q’s assailant, Q’s statement to a nurse in the hospital emergency room, “for god’s sakes don’t let my boyfriend R near me!”
—NOT HEARSAY (Probably!).
- The statement is that R should not be near Q. The matter asserted is that Q’s boyfriend R was Q’s assailant. The statement is made to prove the matter asserted, therefore it is not hearsay.
- Matter asserted: “for god’s sakes don’t let my boyfriend R near me!”
- Trying to prove: Q’s boyfriend R was Q’s assailant
- Probably not a verbal act of legal significance
Hearsay Problem
As proof that the train had come from the west, testimony by eyewitness S that she pointed in the direction of the train when she heard it coming, coupled w/ testimony by a police officer present at the scene that the direction in which T pointed was west.
NOT HEARSAY
- Nonverbal conduct was intended as a statement
- Would be hearsay if the probative worth is in it asserting a fact
- See-Do rule
- -live non hearsay testimony of what was going on—not introducing it as her out of court statement, but saying that she saw the train and she pointed, then officer can say that he saw T pointing towards the West. Therefore neither one is talking of the out of court statements.
- Her pointing amounts to a statement here. Pointing the direction indicated. Meaning that it would be hearsay if offered for the truth of the matter asserted.
- The fact that she is in court shows that it was not hearsay
- Not her testimony is not repeating the out of court statement. instead of repeating, she is doing see do rule
- She pointed west is see do; thus, no hearsay
- we are not relying on her in court statement
- This is the same thing as a reference point or MARKER - we can link these two bits of testimony through see do not
Hearsay Problem
As proof that HiTechCorp was a bad credit risk, evidence that Din & Broodstreet gives HiTechCorp a poor credit rating.
HEARSAY
- Matter asserted: Din & Broodstreet gave HiTech a poor credit rating
- Trying to prove: HiTech is a bad credit risk
- Could possibly use the business record exception if offering the credit report as evidence of bad credit rating.
Hearsay Problem
As proof that BankWest acted reasonably in refusing to refinance HiTechCorp’s debt, evidence that Din & Broodstreet gives HiTechCorp a poor credit rating.
NOT HEARSAY
- Matter asserted: HiTechCorp is in bad credit
- Trying to prove: BankWest believed this and reasonably refused to refinance them, regardless if the statement was false
- The fact that din and brood street is dependable on the effect of the listener, not to prove the matter asserted.
Hearsay Problem
As proof that U was seriously ill, evidence that he was being kept in the intensive-care unit of the hospital.
NOT HEARSAY
- No statement, it is pure conduct not intended as an assertion
- If a note from a doctor sending U to the ICU were used, there would be a hearsay issue, but this case is only conduct.
Hearsay Problem
As proof that V is an honest man, evidence that he handed the store clerk a $10 bill for a $7 purchase and, on receiving a $10 bill and three ones from the clerk in change, V returned the $10 bill and said, “I think you’ve made a mistake here.”
NOT HEARSAY
- Matter asserted: “I think you’ve made a mistake here.” - clerk made a mistake
- Trying to prove: V is an honest man—have to take matter asserted is true before we can say he was an honest man
- Can also say it is conduct, the returning of the money. This conduct was not intended as an assertion. Isn’t it sort of saying it gave you too much money?
Hearsay Problem
As proof that W is a violent man, testimony that he is reputed in his community to be such.
HEARSAY
- Matter asserted: community thinks W is violent
- Trying to prove W is violent
- Declarant: the community is making an assertion
- EXCEPTION that allows you to bring in reputation (803.21)
According Rule 801 (d)(1)(A), a prior statement by a witness is “not hearsay” if what 3 conditions are met?
(1) The witness must now be cross-examinable about the prior statement
(2) The statement must be “inconsistent” with the present testimony
(3) The statement must have been made under oath in a “trial” or “other proceeding” or “deposition”
According to the ruling in State v. Smith, does a sworn affidavit given in a law enforcement investigation satisfy Rule 801(d)(1)(A)’s “other proceedings”?
Yes, if there is sufficient reliability in the facts and circumstances surrounding the prior statement
Can a statement to the grand jury come in as a prior inconsistent statement under 801 (d) even though there is no cross examination at a grand jury proceeding?
Yes, as long as there is oath and proceeding
Can two statements be deemed inconsistent if one is very general and the other very specific?
Yes
When discussing statements of a party opponent, is it ok to say “statement of a party”?
No - she is a sneaking ho and will try to trick us
- Statement has to be offered by the party opponent
Name the 5 types of admissions of a party opponent.
(1) A party’s own statement
(2) Adoptive admission
(3) Statement of a party’s agent authorized to speak for the party
(4) Statement of party’s agent speaking within the scope of employment
(5) Co-conspirators’ statement
According to the ruling in Doyle v. Ohio, may a post-Miranda silence be used to impeach a witness?
Noooope
