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Employment Law > Evidence > Flashcards

Evidence Flashcards

1
Q

What are the stated purposes of the Federal Rules of Evidence?

A

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. FRE 102

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2
Q

What must a party do to preserve a claim of error when the court admits certain evidence?

A

The party must, on the record, object to or move to strike the evidence and state the specific ground (unless it’s apparent from the context). FRE 103.

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3
Q

What must a party do to preserve a claim of error when the court refuses to admit certain evidence?

A

A party must inform the court of the substance of the evidence that it planned to submit through an offer of proof, unless the substance is apparent from the context. FRE 103.

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4
Q

Once the court definitely rules on the record on a piece of evidence - either at trial or before trial - does a party have to renew an objection or offer of proof to the evidence to preserve a claim of error for appeal?

A

No. FRE 103.

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5
Q

A party may claim error in a ruling to admit or exclude evidence only if the error affects a [ ] of the party.

A

substantial right. FRE 103

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6
Q

In what circumstances can a court take judicial notice of a fact?

A

The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

FRE 201

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7
Q

When can a court take judicial notice of a fact?

A

At any stage of the proceeding. FRE 201

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8
Q

In a civil case, what must the court instruct the jury relating to a fact that has been judicially noticed?

A

The court must instruct the jury to accept the fact as conclusive. FRE 201

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9
Q

What’s the test for relevant evidence?

A

Evidence is relevant if: (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 in determining the action. FRE 401

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10
Q

Relevant evidence is admissible unless…

A

any of the following provides otherwise:

the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court. FRE 402

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11
Q

Is irrelevant evidence admissible?

A

No. FRE 402 (“Irrelevant evidence is not admissible.”)

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12
Q

What happens if the relevance of a piece of evidence depends on whether another fact exists?

A

Proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. FRE 104(b)

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13
Q

The court may exclude relevant evidence if XX is YY by a danger of one or more of the following: …

A

*its probative value
*substantially outweighed
*unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

FRE 403

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14
Q

What is a court most likely to rule that a piece of evidence would cause “unfair prejudice?”

A

It would cause the jury to have an emotional reaction.

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15
Q

What are some topics that the Federal Rules of Evidence (i.e., Congress) have determined are inadmissible as a matter of law?

A

Subsequent remedial measures (FRE 407); settlement offers (FRE 408); offers to pay medical and similar expenses (FRE 409); proof of insurance (FRE 411); a guilty plea that was withdrawn/a no contest plea (FRE 410)

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16
Q

For what purposes can a court admit evidence of a subsequent remedial measure (i.e., a measure that would have made an earlier injury or harm less likely to occur)?

A

*Impeachment;
*If disputed, proving ownership, control, or the feasibility of precautionary measures
*Could be other purposes - not an exhaustive list.

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17
Q

For what purposes can a court admit evidence of a settlement offer?

A

Proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort obstruct a criminal investigation or prosecution. FRE 408(b)

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18
Q

For what purposes can a court admit evidence that a party has insurance coverage for a claim?

A

Proving a witness’s bias or prejudice or proving agency, ownership, or control.

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19
Q

In a civil case, what evidence is not admissible against a defendant who made a criminal plea deal or participated in plea discussions?

A
  • a guilty plea that was later withdrawn;
  • a no contest plea;
  • a statement made during a proceeding under a guilty plea that was later withdrawn or a no contest plea;
  • a statement made during plea discussions with the prosecution if the discussions didn’t result in a guilty plea or resulted in a later-withdrawn guilty plea. FRE 410.
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20
Q

What is the rule regarding character evidence in a civil case?

A

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. FRE 404.

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21
Q

What is the general rule regarding evidence of a crime, wrong, or other act in a civil case?

A

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. FRE 404.

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22
Q

What are some permitted uses for evidence of a crime, wrong, or other act in a civil case?

A

This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. FRE 404.

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23
Q

What is the general rule regarding evidence of a person’s habit or an organization’s routine practice?

A

It may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. FRE 406.

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24
Q

Can the court admit evidence of a person’s habit or an organization’s routine practice if it’s uncorroborated and there is no eyewitness?

A

Yes - the jury may admit this evidence regardless of whether it’s corroborated or whether there was an eyewitness. FRE 406.

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25
Q

In general, who is competent to testify as a witness?

A

Every person is competent to be a witness unless the Federal Rules of Evidence provide otherwise. FRE 601.

26
Q

A witness may testify to a matter only if…

A

Evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. FRE 602.

27
Q

Is a witness’s own testimony sufficient to establish that the witness has personal knowledge of the matter?

A

Yes. FRE 602.

28
Q

During an inquiry into the validity of a verdict, what is a juror permitted to testify about?

A
  • Whether extraneous prejudicial information was improperly brought to the jury’s attention;
  • an outside influence was improperly brought to bear on any juror; or
  • a mistake was made in entering the verdict on the verdict form. FRE 606.
29
Q

Which party is permitted to attack a witness’s credibility?

A

Any party, including the party that called the witness. FRE 607.

30
Q

If a party attacks or supports a witness’s credibility, what type of testimony can be offered?

A
  • testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or
  • testimony in the form of an opinion about that character. FRE 608
31
Q

What must occur before evidence of a witness’s truthful character is admissible?

A

Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. FRE 608.

32
Q

When is extrinsic evidence not admissible to prove specific instances of a witness’s conduct?

A

To attack or support the witness’s character for truthfulness. FRE 608.

33
Q

When can a party inquire into specific instances of a witness’s conduct?

A

The court may, on cross examination, allow specific instances of a witness’s conduct to be inquired into if they are probative of the character for truthfulness or untruthfulness of the witness or another witness whose character the witness being cross-examined has testified about.

34
Q

When is evidence of a witness’s religious beliefs or opinions admissible to attack a witness’s credibility?

A

Never. FRE 610.

35
Q

In a civil case, what’s the rule of admissibility for attacking a witness’s character for truthfulness by evidence of a criminal convictionof a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year?

A

The evidence must be admitted, subject to FRE 403, in a civil case in which the witness is not a defendant. FRE 609.

36
Q

What’s the rule of admissibility for purposes of attacking a witness’s character for truthfulness by evidence of a criminal convictionfor a crime that required proof of a dishonest act or false statement?

A

The evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness’s admitting - a dishonest act or false statement; the punishment for the crime doesn’t matter. FRE 609.

37
Q

What’s the rule of admissibility for a criminal conviction that occurred more 10 years ago or more than 10 years have passed since the person was released from confinement (whichever is later)?

A

Evidence of the conviction is admissible only if its probative value substantially outweighs its prejudicial effect, and the proponent gives the adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. FRE 609.

38
Q

Under what circumstances is evidence of a conviction not admissible?

A

The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated and the person has not been convicted of a later crime punishable by death or imprisonment of more than a year, or the conviction has been subject of a pardon annulment, or other equivalent procedure based on a finding of innocence. FRE 609.

39
Q

Are juvenile convictions admissible in civil cases?

A

No. FRE 609(d)

40
Q

What options does an adverse party have when a witness uses a writing to refresh memory while testifying or before testifying?

A

An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. FRE 612.

41
Q

When questioning a witness about the witness’s prior statement, does the party have to show it or disclose its contents to the witness? To the opposing lawyer?

A

No; yes, upon request. FRE 613.

42
Q

What’s the definition of hearsay?

A

An out of court statement offered to prove the truth of the matter asserted in the statement by the declarant. FRE 801.

43
Q

For purposes of the hearsay rule, what qualifies as a “statement”?

A

A person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. FRE 801.

44
Q

Is hearsay admissible?

A

No - hearsay is not admissible unless a federal statute, the FRE, or other rules prescribed by the Supreme Court provides otherwise. FRE 802.

45
Q

Is hearsay within hearsay admissible?

A

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. FRE 805.

46
Q

If a hearsay statement has been admitted into evidence, can the declarant’s credibility be attacked?

A

Yes. The declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. FRE 806.

47
Q

An opposing party’s statement is not hearsay. What’s required to establish an opposing party’s statement?

A

The statement is offered against an opposing party and:

  1. was made by the party in an individual or representative capacity;
  2. is one the party manifested that it adopted or believed to be true;
  3. was made by a person whom the party authorized to make a statement on the subject;
  4. was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
  5. was made by the party’s coconspirator during and in furtherance of the conspiracy. FRE 801.
48
Q

What two values justify most exceptions to the hearsay rule?

A
  1. Necessity: need the testimony and it would be worse to exclude it even though it is hearsay; and
  2. Reliability/trustworthiness: the hearsay statement comes to use under specific circumstances that make it extremely trustworthy.
49
Q

What elements are necessary to establish that a prior statement of a witness is not hearsay?

A

The declarant testifies and is subject to cross examination about a prior statement and the statement:

  1. is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
  2. is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
  3. identifies a person as someone the declarant perceived earlier.

FRE 801(d)(1)

50
Q

What types of statements are not excluded by the rule against hearsay if the declarant is unavailable as a witness?

A
  1. Former testimony that was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one and which is now offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect examination.
  2. Statement under belief of imminent death.
  3. Statement against interest
  4. Statement of personal or family history
  5. Statement against a party who wrongfully caused the declarant’s unavailability

FRE 804

51
Q

Which types of statements are not excluded by the rule against hearsay regardless of whether the declarant is available as a witness?

A
  1. Present sense impression
  2. Excited utterance
  3. Then-existing mental, emotional, or physical condition
  4. Statement made for medical diagnosis or treatment
  5. Recorded recollection
  6. Records of a regularly conducted activity
  7. Absence of a record of a regularly conducted activity
  8. Public records
  9. Public records of vital statistics
  10. Absence of a public record

FRE 803

52
Q

What’s a present sense impression?

A

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

53
Q

What’s an excited utterance?

A

A statement relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused.

54
Q

What’s a recorded recollection?

A

A record that:

  1. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
  2. was made or adopted by the witness when the matter was fresh in the witness’s memory; and
  3. accurately reflects the witness’s knowledge.
55
Q

Can a recorded recollection be received into evidence as an exhibit?

A

If admitted, the recorded recollection may be read into evidence but may be received as an exhibit only if offered by an adverse party.

56
Q

What’s the residual exception to the rule against hearsay?

A

A hearsay statement is not barred by the rule against hearsay even if the statement is not specifically covered by a hearsay exception if:

  1. the statement has equivalent circumstantial guarantees of trustworthiness;
  2. it is offered as evidence of a material fact;
  3. it is more probative on the point for which it’s offered than any other evidence that the proponent can obtain through reasonable efforts; and
  4. admitting it will best serve the purposes of the FRE and the purposes of justice.

However, the statement is only admissible if, before the trial or hearing, the proponent gives the adverse party reasonable notice of the intent to offer the statement and its particulars so that the party has a fair opportunity to meet it.

57
Q

What’s required for a lay witness to offer opinion testimony?

A

Opinion testimony from a non-expert is limited to:

  1. rationally based on the witness’s perception;
  2. helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
  3. not based on scientific, technical, or other specialized knowledge within the scope of FRE 702.

FRE 701.

58
Q

What’s required for a witness to testify as an expert?

A

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  1. It will help the trier of fact to understand the evidence or determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.

FRE 702.

59
Q

The trial judge functions as a gatekeeper to keep “junk science” out of the courtroom. To that end, what are the two basic requirements for expert testimony?

A
  1. Reliability; and
  2. Relevance.

Daubert - (SCOTUS 1993)

60
Q

What information can an expert base his or her opinion on in a case?

A

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. FRE 703.

61
Q

Can an expert state an opinion and give the reasons for it without first testifying as to the underlying facts or data?

A

Yes. But the expert may be required to disclose those facts or data on cross-examination. FRE 705.

Employment Law (11 decks)

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