Restack ROE + Case Law Flashcards
803(5)
Recorded recollection -
A) is on a matter the witness once knew about but now cannot recall
B) was made/adopted by the witness when the matter was fresh in witness’ memory
C) accurately reflects witness’ knowledge
May be entered on the record, but can only be admitted as an exhibit by adverse party
803(3)
Then-existing mental, emotional or physical condition
A statement of declarant’s then-existing mental state (motive, intent, or plan), emotional, sensory or physical condition (mental feeling, pain, body health), but NOT statements of memory or belief of facts remembered
803(1)
Present sense impression
Statement describing/explaining event or condition made while or immediately after the declarant perceived it
401
Relevant evidence
Relevant if
a) tendency to make a fact more on less probably than without the evidence
b) it is a fact of consequence in determining action
803(4)
Statement made for medical diagnosis/treatment -
A) is made for or is pertinent to medical diagnosis/treatment
B) describes medical history, symptoms, sensations, inception or cause
404 (a)
Character evidence
1) not admissible to prove that on a particular occasion, person acted in accordance with trait
2) Exceptions:
a - defendant may offer evidence of defendant’s pertinent trait, P may rebut during their CIC
b - defendant may offer evidence of alleged victim’s pertinent trait, P may rebut or offer same trait for defendant
c - in homicide, P may offer evidence of alleged victim’s peacefulness to argue D was first aggressor
403
Excluding relevant evidence
May exclude relevant evidence is probative value is substantially outweighed by:
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay
- wasting time
- needlessly providing cumulative evidence
803(6)
Records of a regularly conducted activity -
A) record was made by or the near the time by someone with knowledge
B) the record was kept in the course of regularly conducted activity of a business, organization, etc
C) making the record was a regular practice of the activity
D) information and foundation is being provided by the custodian or other qualified witness
E) neither the source of information nor the circumstances of preparation indicate a lack of trustworthiness
405
Methods of proving character
a) by reputation or opinion
- character (if admissible) may be proved by reputation or opinion
b) by specific instances of conduct
- only on X
- only when character trait is pertinent to charge/claim/defense
703
Bases of expert testimony
May base opinion on facts and data they have been made aware of/personally observed
Those underlying facts and data need not be admissible for opinion to be elicited, but can only be brought out under 403 restrictions
702
Testimony by expert witness
a) scientific, technical, or specialized knowledge will aid the trier of fact to understand evidence/fact in issue
b) testimony is based on sufficient facts and data
c) testimony is a product or reliable principles and methods
d) witness reliably applied principles and methods to the facts
602
Need for personal knowledge
Witness may not testify to a matter unless they have personal knowledge of it
608
Witness’ character for truthfulness or untruthfulness
a) Reputation/Opinion Evidence
- credibility may be attacked/supported by evidence of reputation of (un)truthful character, or as an opinion
- cannot enter truthful character unless attacked
b) Specific instances of conduct
- not allowed to prove character EXCEPT on X when it is probative to character of witness, or other witness whose character present-witness discussed
801
Hearsay is an out-of-court statement being elicited for the truth of the matter asserted
(d)(1) On X, Witness’ prior statement used in impeachment process is not hearsay
(d)(2) Opposing party statement
a - made by party in individual or representative capacity
b - party manifested or believed it to be true
c - made by authorized persons of party
d - made by party’s agent/employee during the scope of that relationship
e - made by co-conspirator in furtherance of conspiracy
701
Opinion testimony by lay witness
Only allowed if -
a) rationally based in witness’ perception
b) helpful to understand witness’ testimony/fact in issue
c) not based in specialized, technical knowledge
Richards v. Mississippi BBQ
703 does not allow experts to testify in a manner that simply summarized inadmissible hearsay without relating it to some specialized knowledge
803(2)
Excited Utterance
Statement relating to startling event or condition, made while declarant was under the stress of the excitement that cause it
609
Impeachment by criminal conviction
a) For a crime that was punishable by death/imprisonment >1 year:
- must be admitted, pending 403, in civil OR criminal where witness IS NOT the defendant
- must be admitted, pending 403, in ONLY criminal where witness IS defendant
For any other crime:
Admissible only if element of convicted crime required proving a dishonest act/false statement
b) If more than 10 years passed, admissible only if:
- 403
- proponent gives adverse party reasonable written notice
c) Not admissible if conviction has been subject of pardon, annulment, certificate or rehabilitation
d) Juvenile adjudication admissible if
- criminal case
- witness is not the defendant
- adult conviction would be admissible to attack credibility
- evidence is necessary to determine guilt/innocence
e) Allowed even if appeal is pending
704
Opinion on ultimate issue
1) Not automatically objectionable
2) Exception - in a criminal case, expert cannot offer opinion on whether defendant had the mental state that constitutes an element of the crime
Kane Software Co. v. Mars Investigations
Experts cannot be used as weapons in trial by ambush or surprise
Expert reports must contain complete statement of all opinions and basis, facts and data, and qualifications. experts may not testify on direct/redirect about opinions not in their report.
However, expert is free to answer questions beyond the scope during cross examination
406
Habit or routine practice
Evidence of person’s habit/organization’s routine practice admissible to prove that on a particular occasion, they acted in accordance with habit/routine
705
Disclosing underlying facts/data in expert opinion
An expert may state an opinion with reasoning without first testifying to underlying facts and data. Can be crossed on it
404 (b)
Crimes, wrongs, and other acts
1) not admissible to prove a person’s character in order to show propensity
2) allowed in criminal case to prove motive, opportunity, intent, preparation, plan, knowledge, identity, lack of mistake, lack of accidence
America’s Best Cookie v. International House of Waffles
Hearsay includes out-of-court statements by a witness who is on the stand or by other person who will be testifying in a trial
802
Hearsay not admissible
Tarot Readers Association of Midlands v. Merrill Dow
In assessing 702(c) (reliability of methods), judges may consider if theory has been/can be tested, any peer reviews, publications, known error rate, etc.
While relevant, this factors ARE NOT dispositive. Determination made on totality of circumstances
