Practice Set 2 Flashcards
What types of evidence related to guilty pleas are not admissible against a civil or criminal defendant under FRE 410?
- Withdrawn guilty pleas
- No contest pleas
- Statements negotiating pleas
- Statements made during plea proceeding
When can statements made during pleas be admissible?
- When statements were already admitted + fairness requires rest to be admitted
- Defendant waives protection
What is an adoptive admission?
Statement of another person that a party expressly or impliedly adopts as his own
When is silence an adoptive admission?
- Present + heard + understood the statement;
- Ability + opportunity to deny the statement; AND
- Reasonable person similarly situated would have denied
When are juvenile adjudications admissible for impeaching truthfulness?
- Non-defendant witness
- Criminal case
- Would’ve been admissible if adult conviction
- Evidence necessary determine guilt / innocence
When are juvenile adjudications not admissible for impeaching truthfulness?
- Civil case
2. Against criminal defendant
When is a recorded recollection not hearsay under 803(5)?
- Matter the witness once knew but can’t remember
- Record made by the witness when the matter was fresh in memory; AND
- Accurately reflects the witness’s knowledge.
Distinguish confidential marital communication and spousal privilege
Confidential marital communications pertains to statements made b/w spouses during marriage
Spousal privilege pertains to spouses testifying against each other on the witness stand
What type of evidence is admissible if character is an essential element?
- Reputation
- Opinion
- Specific instances
When is the 804(b)(1) former testimony of an unavailable witness admissible?
- Given under oath
2. Other party had motive + opportunity to cross-examine
When is subsequent remedial measures admissible in general?
- Impeachment
- Ownership / control of cause of harm
- Feasibility of precautionary measures
When can extrinsic evidence of a witness’ prior inconsistent statement be introduced?
When (1) the witness is given the opportunity to explain or deny the statement, AND (2) the opposing party is given the opportunity to examine the witness about it
What are the elements of a dying declaration?
- Believes death is imminent
2. Pertains to circumstances that made death imminent
What makes the crime fraud exception defeat attorney client privilege?
The client’s knowledge that the communication is being used for criminal or fraudulent purpose - the attorney’s knowledge is irrelevant
What rules are used in federal diversity actions?
- Generally the FRE
2. State law if state substantive law is determinative of the claim or defense