CMR: Evidence Flashcards
(138 cards)
1
Q
What is evidence law?
A
A system of rules and standards that regulate the admission of proof (evidence) in a court proceeding
2
Q
What law governs evidence law?
A
The Federal Rules of Evidence
3
Q
When do the Federal Rules of Evidence apply in court proceedings?
A
In all civil and criminal federal proceedings
4
Q
What are the exceptions to the FRE’s applicability?
A
- The court’s determination of a preliminary question of fact relating to admissibility
- Any grand jury proceedings
- Other miscellaneous proceedings, including those involving sentencing, extradition, bail, and probation
5
Q
When is evidence relevant?
A
If it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence
6
Q
What are the elements of relevance?
A
- Materiality
- Probativeness
7
Q
What is materiality?
A
The proposition must be “of consequence” in the case
8
Q
What is probativeness?
A
The evidence has “any” tendency to make the proposition more or less likely in the case
9
Q
What is the standard balancing test under Rule 403?
A
A judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following considerations:
- Unfair prejudice
- Confusing the issues
- Misleading the jury
- Undue delay
- Waste of time
- Cumulative evidence
10
Q
What is the general rule for inadmissibility of evidence?
A
If evidence involves some time, event, or person other than that involved in the present case
11
Q
What is the rule for admission of a plaintiff’s accident history?
A
Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim
12
Q
What are the exceptions to the rule for admission of a plaintiff’s accident history?
A
- Evidence that a plaintiff has made a previous similar false claim
- Evidence that a plaintiff previously injured the same part of their body
13
Q
What is the rule for admission of similar accidents or injuries caused by the same event or condition?
A
Other accidents involving the defendant are inadmissible because they merely show the defendant’s general character for carelessness
14
Q
What are the exceptions to the rule for admission of similar accidents or injuries caused by the same event or condition?
A
When evidence of prior accidents or injuries caused by the same event or condition occur under substantially similar circumstances, it is admissible to prove:
- The existence of a dangerous condition
- The dangerous condition was the cause of the present injury
- The defendant had notice of the dangerous condition
15
Q
What is the rule for admission of the absence of similar accidents?
A
Evidence of the absence of complaints is admissible to show the defendant’s lack of knowledge of the dangerous condition
16
Q
What is the rule for admission of previous similar acts?
A
Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case
17
Q
What is the rule for admission of sales of similar property?
A
Evidence of sales of similar personal or real property around the same time period is admissible to prove the property’s value
18
Q
What is the exception to the rule for admission of sales of similar property?
A
Prices quoted in mere offers to purchase similar personal or real property are generally inadmissible
19
Q
When is it possible to rebut a claim of impossibility?
A
The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut a claim of impossibility
20
Q
What is the rule for admission of habit and business routine evidence?
A
Evidence of a person’s habit or an organization’s business routine is admissible as circumstantial evidence that the person or organization acted in accordance with the habit or business routine on the occasion at issue in the case
21
Q
What is habit evidence?
A
A person’s regular response to a specific set of circumstances
22
Q
What are the two defining characteristics of habit evidence?
A
- Frequency of conduct
- Particularity of circumstances
23
Q
What is character evidence?
A
Evidence of a person’s general disposition or propensity with respect to general traits that is generally not admissible to prove how a person acted during the events of the case
24
Q
What is the rule for admission of industry custom?
A
Evidence as to how others in the same trade or industry have acted in the recent past may be offered as evidence of the appropriate standard of care in the trade or industry
25
What is the rule for admission of **liability insurance**?
Evidence of a party's insurance against liability is not admissible to show whether the party **acted negligently**
26
What are the **exceptions** to the rule for admission of liability insurance?
1. To prove ownership or control
2. To impeach a witness
3. To show an admission of liability
27
What is the rule for admission of **subsequent remedial measures**?
Evidence of repairs or other precautionary measures made following an injury is not admissible to prove:
1. Negligence
2. Culpable conduct
3. Defects in a product or its design
4. Need for a warning or an instruction
28
What are the **exceptions** to the rule for admission or subsequent remedial measures?
1. To prove ownership or control
2. To rebut a claim that a precaution was not feasible
3. To prove that the opposing party has destroyed evidence
29
What is the rule for admission of **civil settlements and settlement negotiations**?
Evidence of a compromise (settlement) or an offer to compromise a civil claim is not admissible in any case:
1. To prove or disprove the validity or amount of a disputed claim
2. To impeach a witness by prior inconsistent statement or contradiction
30
What is the **exception** to the rule for admission of civil settlements or settlement negotiations?
Evidence of settlement is admissible to impeach a witness on the ground of **bias**
31
When does the public policy exclusion for settlements and negotiations apply?
If there was a claim or some indication that a party was going to make a claim
32
What are the elements of a **disputed claim**?
The claim must have been in dispute as to:
1. Liability
2. Amount
33
What is the rule for admission of civil disputes with a **government authority**?
Conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered in a **criminal case**
34
What is the rule for admissions of **plea discussions**?
In any **criminal or civil case**, evidence when offered against the defendant who made the plea or participated in the discussions is inadmissible in the following circumstances:
1. Offers to plead guilty
2. Withdrawn guilty pleas
3. Actual pleas of nolo contendere (no contest)
4. Statements of fact made during any of the above plea discussions
35
What is the **exception** to the rule for admission of plea discussions?
An actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party
36
What is the rule for admission of payments of and offers to pay **medical expenses**?
Evidence that a party has paid or offered to pay an injured person's medical, hospital, or similar expenses is inadmissible to **prove liability** for the injury
37
What is the **exception** to the rule for admission of payments of and offers to pay medical expenses?
**Admissions of fact** accompanying such payments and offers are admissible
38
When can character evidence be admissible as **substantive** evidence?
1. To prove a person's character in the rare situation where their character is directly in issue in the case
2. To serve as circumstantial evidence of how a person probably acted during the events of the case
39
When can character evidence be admissible as **impeachment** evidence?
To prove a witness's bad character for truthfulness
40
What are the **methods** to admit character evidence?
1. Evidence of the person's specific acts
2. Opinion testimony of a witness who knows the person
3. Testimony as to the person's general reputation in the community
41
When is the defendant's character admissible in a **criminal case**?
The defendant is permitted to **introduce** evidence of their own good character to prove their innocence, then the prosecution can rebut with evidence of the defendant's bad character
42
How can a defendant prove their own **good character** in a criminal case?
A character witness for the defendant may testify as to the defendant's reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant
43
What actions can be taken by the **prosecution** once the defendant has introduced character evidence?
1. Cross-examine the defendant's character witness regarding the basis for their testimony by asking questions about specific acts of the defendant that show the defendant's bad character for the pertinent trait
2. Call its own character witnesses to provide reputation or opinion testimony about the defendant's bad character for the pertinent trait
44
When is evidence of the victim's character admissible in a **criminal case**?
1. The defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant's innocence, such as for a claim of **self-defense**
2. The prosecution may introduce evidence of any kind regardless of whether the defendant has introduced character evidence of the victim in a **homicide** case in which the defendant pleads **self-defense**
45
How can the prosecution **rebut** evidence of the victim's bad character introduced by the defendant?
Reputation or opinion evidence of the victim's good character or the defendant's bad character for the pertinent trait
46
What is the rule for admission of the victim's character in cases involving alleged **sexual misconduct**?
Evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible in any civil or criminal proceeding
47
What are the **exceptions** to the rule for admission of the victim's character in **criminal** cases involving alleged sexual misconduct?
1. Specific instances of a victim's sexual behavior are admissible to prove that someone other than the defendant is the **source** of semen, injury, or other physical evidence
2. Specific instances of sexual behavior between the victim and the **defendant** are admissible by the prosecution for any reason and by the defendant to prove consent
48
What are the **exceptions** to the rule for admission of the victim's character in **civil** cases involving alleged sexual misconduct?
Evidence of the alleged victim's sexual behavior is admissible if it is not excluded by any other rule and its probative value **substantially outweighs** the danger of harm to the victim and of unfair prejudice to any party
49
What is the rule for admission of character evidence in **civil cases**?
Character evidence is generally inadmissible to prove **conduct in conformity** regardless if which party seeks to introduce it
50
What is the **exception** to the rule for admission of character evidence in civil cases?
When proof of a person's character, as a matter of substantive law, is an **essential element** of a claim or defense, such as in the following cases:
1. Defamation
2. Negligent hiring or entrustment
3. Child custody
51
What is the rule for admission of other **misconduct** for non-character purposes?
Evidence of a person's other crimes, wrongs, or acts is generally inadmissible if offered solely for the purpose of proving conduct in conformity or propensity
52
What are the **exceptions** to the rule for admission of other misconduct for non-character purposes?
Evidence of a person's other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the charged crime, including:
1. Motive
2. Intent
3. Absence of mistake or accident
4. Identity
5. Common plan or scheme
53
What are the **requirements** for admissibility of other misconduct for non-character purposes?
There must be sufficient evidence to support a jury finding that the defendant committed the other misconduct subject to the standard balancing test under Rule 403
54
What is the **notice requirement** in criminal cases for admissibility of other misconduct for non-character purposes?
The prosecutor must provide **reasonable notice** in writing with articulation of its non-propensity purpose to the defendant of this type of evidence that the prosecutor intends to offer at trial
55
What is the **exception** to the rule for admissibility of the defendant's similar misconduct in **sex-crime cases**?
Evidence of a defendant's other acts of sexual assault or child molestation is admissible in any **criminal or civil case** where the defendant is accused of committing an act of sexual assault or child molestation, but it must be disclosed at least 15 days before trial to the defendant
56
What is the rule for admission of **writings and spoken statements**?
A writing or any secondary evidence of its content will not be received in evidence unless the writing is **authenticated** with proof sufficient to support a jury finding of genuineness
57
What are the **methods** of authentication?
Parties may admit the genuineness of a document by the pleadings, by stipulation, or by other evidence, such as:
1. Evidence that the party against whom it is offered has either admitted or acted upon its authenticity
2. Testimony of anyone who saw it executed or heard it acknowledged to prove authenticity
3. Evidence that the maker's handwriting is genuine by the opinion of a familiar lay witness or by an expert or fact-finder's opinion based on a comparison with the alleged writer's handwriting
4. Evidence that it was written in response to a communication sent to the alleged author
58
What are the **elements** of authentication of an **ancient document**?
Evidence that it is at least 20 years old when offered into evidence, it is in a condition that creates no suspicion as to authenticity, and it was found in a place where such writing would likely be located
59
What are the **elements** of authentication of **photographs and videos**?
Photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a **fair and accurate** representation of those facts
60
What is the **exception** to the authentication of photographs and videos?
If it was taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that the camera was **properly operating at the relevant time** and that the photograph or video was downloaded or developed from film obtained from that camera
61
What are the **elements** of authentication for x-ray pictures?
It must be shown that the process used is accurate, the machine was in working order and the operator was qualified to operate it
62
What are the **methods** of authentication of **oral statements**?
Authentication as to the **identity** of the speaker is required when a statement is admissible only if said by a particular person
63
How is **voice identification** authenticated?
A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying at the trial
64
How are **telephone conversations** authenticated?
Statements made during a telephone conversation can be authenticated by any party to the call who testifies that:
1. They recognized the other party's voice
2. The speaker had knowledge of certain facts that only a particular person would have based on the call
3. They called a particular person's number and a voice answered as that person or that person's residence
4. They called a business and talked with the person answering the phone about matters relevant to the business
65
What are the types of **self-authenticating documents**?
Extrinsic evidence of authenticity is not required for the following writings:
1. Domestic public documents bearing a seal and similar official foreign public documents
2. Official publications
3. Certified copies of public records or private records on file in a public office
4. Newspapers and periodicals
5. Trade inscriptions and labels
6. Acknowledged (notarized) documents
7. Commercial paper and related documents
8. Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection
66
What is the **Best Evidence Rule**?
Also known as the “original document rule,” it proves the content of a writing, recording, or photograph through the production of the **original writing** if the terms of the writing are material to the case
67
When is **secondary evidence** admissible to prove the contents of a writing, recording, or photograph?
Only if the proponent provides a **satisfactory excuse** for the absence of the original writing
68
When does the Best Evidence Rule apply?
1. Where the writing is a **legally operative or dispositive instrument**
2. Where the knowledge of a witness concerning a fact results from **having read** it in the writing
69
When does the Best Evidence Rule not apply?
Where the witness has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing
70
What is an **original** writing?
The writing itself or any counterpart that is intended by the person executing it to have the same effect as an original writing
71
What is a **duplicate** writing?
An exact copy of an original writing made by mechanical means that is admissible to the same extent as an original writing unless:
1. The circumstances make it unfair to admit the duplicate writing
2. A genuine question is raised about the authenticity of the original writing
72
What are the applicable **excuses** for not producing an original writing?
1. Loss or destruction of the original writing, unless it was done in bad faith
2. Failure to obtain the original writing by any available judicial process, usually in possession of a third party outside the court's jurisdiction, despite reasonable efforts
3. Possession by an adversary who, after due notice, fails to produce the original writing
73
What are the **purposes** of the applicable excuses to not producing an original writing?
A party may prove the contents of a writing by any type of secondary evidence
74
What are the **exceptions** to the Best Evidence Rule?
1. Summaries of voluminous records
2. Certified public records
3. Collateral writings to the litigated issue
4. Testimony or written admission of the other party
75
What is the **jury's role** in determining preliminary questions of fact under the Best Evidence Rule?
1. Whether the original writing ever existed
2. Whether a writing produced at trial is an original writing
3. Whether the evidence offered correctly reflects the contents of the original writing
76
What is **real** evidence?
Actual physical evidence addressed directly to the jury that can be direct, circumstantial, original, or demonstrative evidence
77
What are the **requirements** for the admissibility of real evidence?
The object must be identified as what the proponent claims it to be, either by testimony of a witness that they recognize the object or by evidence that the object has been held in a substantially unbroken chain of possession, and shown to be in substantially the same condition at trial
78
What is the **standard of proof** for real evidence?
The proof must be **sufficient to support a jury finding** of genuineness
79
What are some particular types of real evidence?
1. Reproductions and explanatory real evidence
2. Maps, charts, and models authenticated by testimonial evidence
3. Demonstrations or experiments performed under conditions that are substantially similar to those attending the original event
4. Exhibition of injuries
5. Jury view of the scene of the charged crime
80
How can a witness be established as **competent**?
While witnesses are generally presumed to be competent, they must pass tests of **basic reliability** to establish it with two limitations:
1. The witness has personal knowledge of the matter at issue in the trial
2. The witness must give an oath or affirmation to provide truthful testimony
81
How have the Federal Rules of Evidence modified the common law regarding witness disqualifications?
1. By removing the witness disqualifications for lack of religious belief, conviction of a crime, and interest in the lawsuit
2. By making the competency of a child dependent on the capacity and intelligence of that particular child
3. By allowing an insane person to testify if they understand the obligation to speak truthfully and accurately
82
How have the Federal Rules of Evidence modified the common law for judge and juror witnesses?
The presiding judge and jurors are incompetent to testify as witnesses at the current trial, and jurors are generally prohibited from testifying about what occurred during deliberations or about anything that may have affected their vote
83
When may a **juror** testify as a competent witness?
1. Whether any extraneous prejudicial information was improperly brought to the jury's attention
2. Whether any outside influence was improperly brought to bear on any juror
3. Whether there is a mistake on the verdict form
4. Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a **criminal** defendant
84
What are “Dead Man Acts”?
In a **civil** case, an interested person (or their predecessors in interest) is incompetent to testify as to a personal transaction or communication with a deceased person, when such testimony is offered against the representative or successors in interest of that deceased person
85
Who is an **interested** person?
A person who stands to gain or lose by the judgment or if the judgment may be used for or against them in a subsequent action
86
What is the judge's role in the questioning of witnesses?
By ultimately having discretion, they must exercise **reasonable control** over the examination of witnesses in order to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment
87
What is a **leading** question?
Questions that suggest the desired answer, which are generally allowed only on **cross examination** of witnesses
88
What are the **exceptions** to leading questions?
Questions that are allowed on **direct examination** in the following circumstances:
1. To elicit preliminary or introductory matter
2. To help the witness respond because of loss of memory, immaturity, or physical or mental weakness
3. To question a hostile witness, an adverse party, or a witness affiliated with an adverse party
89
What is the applicable scope of **cross examination**?
A party has a right to cross-examine **any opposing witness**, as long as its scope is frequently a matter of judicial discretion
90
What are the **limitations** of cross examination?
1. The scope of direct examination, including all reasonable inferences that may be drawn from it
2. The matters that test the credibility of the witness
91
What are **improper** questions or answers?
1. Questions that are misleading, compound, argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative or speculative answer, or assume facts not in evidence
2. Answers that lack foundation and are non-responsive to questions
92
What is the rule for using documents to aid oral testimony?
A witness cannot read their testimony from a prepared memorandum, but must testify on the basis of their **current recollection**
93
What is the rule for **refreshing recollection**?
A witness may use any writing or object for the purpose of refreshing their present recollection
94
What are the safeguards against abusing the rule for refreshing recollection?
The adverse party is entitled to have the writing produced at trial, to cross-examine the witness about the writing, and to introduce portions of the writing relating to the witness's testimony into evidence if the witness refreshed their memory **while on the stand**
95
What are the safeguard against the failure to produce or deliver a writing used for refreshing recollection?
In a **criminal** case, if the **prosecution** fails to produce or deliver a writing, the judge must strike the witness's testimony and potentially declare a mistrial
96
What is the rule for **recorded recollections**?
When a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after refreshing their memory, the record itself may be **read into evidence** with a properly laid foundation
97
How can a properly laid **foundation** be established for recorded recollections?
1. The witness has **insufficient recollection** to testify fully and accurately
2. The witness had personal knowledge of the facts in the record when it was made
3. The record was made by the witness or under their direction, or it was adopted by the witness
4. The record was made when the matter was **fresh** in the witness's mind
5. The record accurately reflects the witness's knowledge and the witness vouches for the accuracy of the record
98
What are the **requirements** for opinion testimony by lay witnesses?
Opinions by lay witnesses are generally inadmissible, except when they are:
1. Rationally based on a **witness's perception**
2. Helpful to a clear understanding of a witness's testimony or to a determination of a fact in issue at the trial
3. Not based on scientific, technical, or other specialized knowledge
99
What are the situations where opinions by lay witnesses are admissible?
1. The general appearance or condition of a person
2. The state of emotion of a person
3. A matter involving sense recognition
4. A voice or handwriting identification
5. The speed of a moving object
6. The value of a witness's own services or property
7. the rational or irrational nature of another's conduct
8. A person's intoxication
100
What are the situations where opinions by lay witnesses are not admissible?
1. Whether a witness or someone else acted as an agent
2. Whether a contract was made between two parties
101
What are the **requirements** for opinion testimony by expert witnesses?
1. The subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact
2. The opinion must be based on sufficient facts or data
3. The opinion must be the product of reliable principles and methods
4. The expert must have reliably applied the principles and methods to the facts of the case
102
What are the **qualifications** necessary for expert witnesses?
The witness must possess special knowledge, skill, experience, training, or education, and the expert's opinion must be supported by a proper factual basis based on any of these sources of information:
1. Facts based on the expert's own **personal observation**
2. Facts made known to the expert **at trial**
3. Facts not known personally, but supplied to the expert outside the courtroom and of a type **reasonably relied upon by other experts**
103
What are the principal **factors** used by federal courts to determine the reliability of expert testimony?
1. Testing of principle or methodology
2. Rate of error
3. Acceptance by experts in the same discipline
4. Peer review and publication
104
What are the **limitations** to using a **learned treatise** during expert testimony?
1. The treatise must be established as **reliable authority** by the testimony of the expert on the stand, the testimony of another expert, or judicial notice
2. The excerpt must be used in the **context** of expert testimony
3. The excerpt is **read into evidence** but cannot be an exhibit
105
Can an expert witness render an **ultimate** opinion?
Generally, it is permissible as to the ultimate issue in the case, except in a **criminal** case in which the defendant's mental state constitutes an element of the crime or defense
106
How may a court appoint an expert witness?
With **broad discretion**, the court may appoint any expert who consents to act and is informed of their duties as well as receive reasonable compensation according to the court
107
What are the **obligations** to the parties by a court-appointed expert witness?
1. The expert must advise the parties of any findings they make about the case
2. The parties may depose the expert, call the expert as a witness, or cross-examine the expert
108
When should witnesses be excluded or sequestered during a trial?
Based on a party's request or on their own volition, the trial judge must order witnesses excluded from the courtroom, but cannot exclude the following persons:
1. A party or designated officer or employee of a party
2. A person whose presence is essential to the presentation of a party's claim or defense
3. A person statutorily authorized to be present
109
When should witnesses be called or examined by the court?
The court may examine a party's witness or call its own witness, but each party is entitled to cross-examine that witness and can object to the court's witness at the that time or at the next available opportunity outside the presence of the jury
110
What is **impeachment**?
Discrediting a witness
111
What is the rule for **bolstering** a witness?
A party is generally not permitted to bolster or accredit the testimony of their witness until the witness has been impeached
112
What are the **exceptions** to the rule for bolstering a witness?
In certain cases, a party may offer evidence that the witness made a timely complaint or a prior statement of identification (which is also substantive evidence)
113
Who is allowed to impeach a witness?
A witness may be impeached by any party, including the party that called them
114
What are the **methods** of impeachment?
1. Cross-examination
2. Extrinsic evidence
115
What **methods** involve impeaching a witness with facts that are specific to the current case?
1. Prior inconsistent statements
2. Bias
3. Sensory deficiencies
4. Contradiction
116
What **methods** involve impeaching a witness with their general bad character for truthfulness?
1. Opinion or reputation evidence
2. Prior convictions
3. Bad acts
117
What is the rule for **prior inconsistent statements**?
A party may show that the witness has, on another occasion, made statements inconsistent with their present testimony
118
When are prior inconsistent statements admissible as substantive evidence?
When a testifying witness's prior inconsistent statement was made under oath at a prior proceeding
119
What is the standard for using **extrinsic evidence** to prove prior inconsistent statements?
A proper foundation must be laid and the statement must be relevant to some issue in the case
120
When can extrinsic evidence be introduced to prove prior inconsistent statements?
When the witness is given an opportunity to explain or deny the statement, and the adverse party is given an opportunity to examine the witness about the statement
121
What are the **exceptions** to the standard for using extrinsic evidence to prove prior inconsistent statements?
1. If the statement is an opposing party's statement
2. If the statement is used to impeach a hearsay declarant
3. If justice requires it
122
What is the rule for **bias or interest**?
Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie
123
What is the majority's approach for using **extrinsic evidence** to show bias or interest?
Before a witness can be impeached, they must first be asked about the facts that show bias or interest on cross-examination
124
What is the rule for **sensory deficiencies**?
A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that:
1. Their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts
2. They had no knowledge of the facts to which they testified
125
What is the rule for impeachment by **contradiction**?
The cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination
126
When is **extrinsic evidence** allowed for impeachment by contradiction?
When the contradictory fact is not a collateral fact
127
What is the rule for **opinion or reputation evidence** of untruthfulness?
A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness to suggest that they were not telling the truth while on the stand
128
What is the rule for **convictions**?
A witness may be impeached by proof of a conviction for certain crimes
129
What are the type of **crimes** allowed to impeach a witness?
1. Any crime, felony or misdemeanor, requiring an act of **dishonesty** or false statement with no discretion to exclude by the trial judge
2. A felony that does not involve dishonesty or false statement with discretion to exclude by the trial judge
130
What is the **balancing test** to admit evidence of prior felonies that do not involve dishonesty or false statements?
1. When the witness is a **criminal defendant**, the court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect
2. When the witness is for any other case, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect
131
What is the general rule for **remoteness** for convictions?
If more than **10 years** have elapsed since the date of conviction or the date of release from confinement (whichever is later), it is inadmissible
132
What is the effect of a **pardon** on convictions?
A conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure, and either:
1. The pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony
2. The pardon was based on innocence
133
What is the rule for **bad acts** involving untruthfulness?
A witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of truthfulness, but no extrinsic evidence is admissible to prove it
134
What is the rule for impeachment on a **collateral matter**?
It prohibits a party from proving the statement untrue by either extrinsic evidence or by a prior inconsistent statement
135
How can a **hearsay declarant** be impeached at a trial?
By any of the impeachment methods, even without being given the opportunity to explain or deny a prior inconsistent statement
136
What is the rule for **rehabilitating** an impeached witness?
1. The witness on redirect may explain or clarify facts brought out on cross-examination
2. The witness can use opinion or reputation evidence by other witnesses about their character for truthfulness
3. The witness can introduce their prior consistent statement
137
What are the **methods** to introduce a prior consistent statement for an impeached witness?
1. If the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut the evidence
2. If the testimony of the witness has been impeached on some other ground, a prior consistent statement made by the witness can be introduced if it has the tendency to rehabilitate the witness
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What is the **effect** of introducing a prior consistent statement?
It is also admissible as substantive evidence
