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Bar > Evidence > Flashcards

Evidence Flashcards

1
Q

When do FRE not apply?

A
  1. preliminary questions of admissibility
  2. grand jury proceedings
  3. other miscellaneous proceedings (sentencing, bail, probation)
  4. state law applies to privilege in diversity cases
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2
Q

What is relevant evidence?

A

Something that has any tendency to make a fact of consequence more or less likely

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3
Q

Exceptions to “all relevant evidence admissible”

A
  1. Rule 403 discretion (covers prior similar occurrences)

2. other FRE (public policy, character

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4
Q

Rule 403

A

Probative value is substantially outweighed by 1/6:

  1. unfair
  2. confusing
  3. misleading
  4. delay
  5. waste of time
  6. repetitive
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5
Q

Allowances to Prior Similar Occurrences (9)

A
  1. P’s accident history (false claims or same bodily injury)
  2. Anyone’s similar accident (same condition under substantially similar circumstances brought to prove existence, causation, or notice)
  3. absence of similar accidents (knowledge)
  4. previous similar acts (intent)
  5. sale of similar property
  6. rebuttal of impossibility claim
  7. causation
  8. habit (frequency and particularity of circumstances)
  9. industry custom
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6
Q

Public policy exceptions to relevancy (5)

A
  1. liability insurance (negligence)
  2. subsequent remedial measures (negligence)
  3. civil settlements and negotiations (amount of validity of claim, impeachment by PIS or contradiction- not in crim)
  4. plea discussions (anything but actual guilty plea)
  5. offers to pay medical expenses (liability)
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7
Q

3 purposes of character evidence

A
  1. prove trait where it’s essential element
  2. serve as circumstantial evidence of propensity
  3. prove untruthfulness as impeachment method
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8
Q

3 ways to bring character evidence

A

specific acts, reputation, opinion

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9
Q

3 times character trait is in issue

A

defamation, negligent hiring, child custody

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10
Q

Rules for D’s character evidence in criminal case (3)

A
  1. only reputation or opinion
  2. pertinent and personal
  3. initiated by D
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11
Q

How can P attack D’s character in criminal case using character evidence?

A
  1. cannot offer but can rebut if D open door
  2. cross examine D’s witness- Did You Know questions about specific acts, no extrinsic evidence
  3. call a witness and examine using reputation or opinion
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12
Q

How can P attack V’s character in criminal case?

A
  1. reputation or opinion after D open the door
  2. not in sex assault or homicide cases
  3. V’s good character or D’s bad character for same trait
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13
Q

How can P attack V’s character in homicide case?

A

propensity for peacefulness if D claims self-defense

opens door to D to prove peacefulness

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14
Q

How to attack V’s character for sexual behavior in civil sex assault cases?

A

V’s past sexual behavior inadmissible unless reverse 403 satisfied

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15
Q

403 and Reverse 403

A

403- probative value outweighed by pragmatic considerations

reverse- Probative value substantially outweighs risk of unfair prejudice

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16
Q

How can V’s prior sexual behavior be used as character evidence in criminal sex assault case? (2)

A
  1. to prove someone else is source of physical evidence

2. evidence of sexual behavior between V and D (P for any reason, D to prove consent)

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17
Q

Character evidence used to prove propensity- can it be used?

A

Not in civil cases by any party, except bad sexual acts

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18
Q

character evidence of specific bad acts inadmissible unless:

A
  1. non-propensity purpose (MIMIC) that was contested first
    (motive, intent, absence of mistake, identity, common plan)
  2. sexual bad act, even to show propensity, with notice
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19
Q

If specific bad acts are brought as character evidence for non-propensity purpose, how can it be proven?

A

in any way as long as sufficient to support jury finding that it occurred, is relevant, and there is notice in criminal case

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20
Q

Writing used as evidence must pass (4) requirements

A
  1. Relevant
  2. Authenticated
  3. BER
  4. Hearsay
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21
Q

Methods of proving authentication for writings/records to satisfy sufficiency for jury finding of genuineness

A

opponent’s admission, eyewitness testimony, handwriting verification, ancient documents at least 20 years old, reply letter doctrine, familiar witness proves accuracy of photos and videos, accuracy of X-rays proven without tampering, identification of voice

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22
Q

What are the 8 self-authenticating docs?

A

official sealed docs, official publication, certified copy of public records, newspaper, trade inscription, notarized docs, commercial paper, business records (notice and opportunity)

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23
Q

What is BER?

A

If a writing created legal rights, or a witness’s knowledge comes from it, and terms of writing are material, the original (or duplicate) document must be produced, unless satisfactory excuse.
Does not apply if witness can testify about the facts from personal knowledge.

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24
Q

When are duplicates not allowed under BER?

A

circumstances make it unfair or genuine question of authenticity is raised

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25
Q

What are acceptable excuses for BER? (3)

A

loss or destruction
no judicial process can obtain
in possession of adversary

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26
Q

Exceptions to BER that don’t require excuse (4)

A
  1. voluminous records- summary ok
  2. certified public records- copy ok
  3. writing is minor issue in case
  4. OP testifies about contents first
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27
Q

What makes a witness disqualified?

A
  1. children, as determine by judge
  2. insane people, if no capacity and no understanding of obligation
  3. judges and jurors
  4. State Dead Man Act
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28
Q

What are the limited things a juror may testify about in an inquiry into the jury’s verdict? (4)

A

Only as to:

  1. use of prejudicial info
  2. undue influence
  3. mistake
  4. clear statements of racial stereotypes as motivating factor to convict criminal D
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29
Q

What is a Dead Man Act?

A

State law that prohibits an interested person from testifying about communication with deceased

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30
Q

When are leading questions allowed? (4)

A

1, cross examination

  1. on direct, for preliminary matter
  2. on direct, when witness needs help
  3. on direct, when witness is hostile
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31
Q

What are improper questions for witness examination?

A

Misleading, compounding, argumentative, conclusory, cumulative, unduly harassing, speculative, assume facts not in evidence

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32
Q

What are improper answers in witness examination? (2)

A

lack foundation, non-responsive

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33
Q

Under Refreshing and Recorded Recollection rules, what are the adverse party’s safeguards?

A

If witness has writing on stand- produce it at trial, cross examine witness about it, introduce relevant parts into evidence
If witness reads before taking stand- no options unless justice requires

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34
Q

If an adverse party requests production of writing used in Refreshing or Recorded Recollection and party fails to produce, what happens?

A

criminal case- judge MUST order to strike testimony

civil case- MAY issue any appropriate order

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35
Q

How to lay a proper foundation for admitting a record into evidence for the Recorded Recollection rule?

A

Witness has personal knowledge of facts in a record, record was made by witness when facts were fresh, witness vouched for accuracy at the time it was made, and witness now has insufficient recollection of facts

36
Q

What are the requirements of opinion testimony by a lay witness? (3)

A
  1. necessary or helpful to clear understanding
  2. rationally based on witness’s perception
  3. not based on specialized knowledge
37
Q

In what situations is opinion testimony by a lay witness admissible?

A 
® General appearance or condition of person
® State of emotion
® Matters involving sense recognition
® Voice or handwriting identification 
® Speed of a moving object
® Value of W's services or property
® Rationality of another's conduct
® Person's intoxication
38
Q

In what situations is opinion testimony by a lay witness inadmissible?

A

about agency or contract formation

39
Q

What are the requirements of opinion testimony by an expert witness? (5)

A
  1. necessary or helpful
  2. specialized knowledge
  3. based on sufficient data (not speculation)
  4. product of reliable methods (TRAP factors)
  5. reliably applied to case
40
Q

What is considered a proper factual basis upon which expert opinion testimony must be based? (3)

A
  1. facts from personal observation
  2. facts made known to expert at trial
  3. facts supplied outside court and reasonably relied on by experts (don’t have to be admissible but must satisfy reverse 403 if must be disclosed on cross)
41
Q

How can a learned treatise be used as evidence?

A

Allowed through hearsay exception if used in context of expert testimony and not entered as an exhibit

42
Q

May an expert render an opinion about an ultimate issue in a case?

A

Yes, except for opinion about mental state in criminal case where D’s mental state is an element

43
Q

When MUST a judge exclude a witness?

A

If a party request it, unless the witness is a party/rep, is essential, or is authorized by statute

44
Q

May one impeach a witness about a statement made about a collateral matter?

A

No.

45
Q

Methods of impeaching a witness about facts specific to current case (4)

A

PIS, Bias, Sensory deficiencies, contradiction

46
Q

Methods of impeaching a witness about general bad character for untruthfulness (3)

A

Opinion or reputation character evidence, prior convictions, bad acts

47
Q

May one impeach a witness using PIS through cross examination?

A

Yes, and through extrinsic as long as foundation is made

48
Q

How to lay a foundation for impeaching a witness using PIS through extrinsic evidence

A

If the witness was given an opportunity to explain it and the adverse party is given an opportunity to examine the witness about it, at any point.

49
Q

When is a foundation not required for impeaching a witness using a PIS through extrinsic evidence? (3)

A
  1. PIS is OP’s statement
  2. PIS made by a hearsay declarant and is impeaching the declarant
  3. justice requires dispensation
50
Q

May a judge allow evidence when bias was admitted?

A

Yes.

51
Q

May one use extrinsic evidence to impeach a witness on grounds of bias?

A

In some states, a foundation is needed- witness must be asked about it on cross
not addressed in FRE

52
Q

By what methods may one use sensory deficiencies as grounds for impeaching a witness? Is a foundation required?

A

using extrinsic or cross, no foundation needed

53
Q

By what methods may one use contradiction as grounds for impeaching a witness?

A

on cross, to show testimony was mistaken, can use extrinsic evidence if it’s significant fact

54
Q

How may one impeach a witness on grounds of character of untruthfulness?

A

Calling a character witness who brings testimony of reputation or opinion

55
Q

May one impeach a witness on grounds of prior convictions? What types of crimes?

A

Yes, any crime narrowly involving dishonesty allowed without discretion. Must be a conviction. Crimes that do not involve dishonesty may be excluded if balancing tests are satisfied.

56
Q

What are the balancing tests for excluding evidence of prior convictions that do not involve dishonesty, as a method of impeachment?

A

If witness is criminal defendant: If not shown that probative value outweighs prejudicial effect (reverse 403)
Other witnesses: If probative value is substantially outweighed by prejudicial effect (403)

57
Q

May one use a prior conviction of over 10 years ago to impeach a witness?

A

No, unless extraordinary circumstances and satisfies 403 and notice

58
Q

May one use a pardoned conviction to impeach a witness?

A

Not if the pardon is based on rehab and there was not subsequent felony, or if pardon was based on innocence

59
Q

May one use a juvenile conviction to impeach a witness?

A

Generally not, unless judge uses discretion in criminal case. May only do so if the witness is not the defendant, it would be admissible for an adult, and it’s necessary to determine verdict

60
Q

May one use a constitutionally defective prior conviction to impeach a witness?

A

Not for any purpose

61
Q

Is a foundation needed to introduce evidence of prior conviction to impeach a witness through extrinsic evidence?

A

No

62
Q

What kind of bad acts are allowed to be used to impeach a witness?

A

Only those that involve untruthfulness, and there is good faith to believe witness committed it. May only be used on cross, no extrinsic allowed.

63
Q

How to impeach a hearsay declarant?

A

Any impeachment methods that would be admissible for a witness. Declarant may be called as a witness.

64
Q

What are ways to rehabilitate an impeached witness? (3)

A
  1. clarify on direct
  2. character evidence (reputation and opinion) about truthfulness
  3. prior consistent statement- allowed in 2 situations
65
Q

What are 2 situations in which prior consistent statements may be used to rehabilitate a witness?

A
  1. If witness was attacked by a motive to lie and the statement came before the motive
  2. If witness was attacked by any other ground and the statement makes them look more credible
66
Q

Definition of hearsay

A

statement or non-verbal assertion made by a human outside of this trial that is offered for the truth of the matter asserted

67
Q

Statutory non-hearsay exclusions (2)

A
  1. prior statements of a testifying witness (4 types)

2. statements by or attributable to opposing party (3 common types)

68
Q

What are the 4 types of prior statements of a declarant-witness that are excluded from hearsay?

A
  1. identification
  2. inconsistent statement given under oath
  3. consistent statement offered to rebut a charge that DW has a motive to lie that was made before the motive
  4. consistent statement offered to rehabilitate DW’s credibility after it was impeached on grounds other than untruthfulness
69
Q

What are 3 common opposing party statements that are excluded from hearsay?

A
  1. judicial and extra-judicial statements (inconclusive statements made informally)
  2. Adoptive statements (acquiesced or impliedly adopted through silence without denying)
  3. Vicarious statements (made by someone with a sufficient relationship to DW)
70
Q

5 hearsay exceptions where declarant must be unavailable

A
  1. Former testimony
  2. statement against interest
  3. dying declaration
  4. statement of personal or family history
  5. statement against party procuring declarant’s unavailability
71
Q

How to use Former Testimony hearsay exception

A

Declarant is unavailable, previous statement made under oath, opposing party had opportunity to develop testimony previously (an opposing party was a party in a former action involving the same subject matter)

72
Q

How to use Statement Against Interest hearsay exception

A

Statement made by unavailable declarant, against a major interest at the time it was made, with personal knowledge, being aware it was against their interest, and would not have been made by a reasonable person unless believed to be true

73
Q

How to use Dying Declaration hearsay exception

A

Unavailable declarant made a statement believing death was imminent, concerning circumstances of death, from first-hand knowledge, and it’s a civil case or criminal homicide case

74
Q

How to use Statement of Personal or Family History hearsay exception

A

A statement made by an unavailable declarant about a family matter by someone intimately associated with it who has personal knowledge

75
Q

How to use the Statement Offered Against Party procuring Declarant’s Unavailability hearsay exception

A

Statement of unavailable person admissible against party who caused the unavailability through an intentional wrongdoing to stop the declarant from testifying

76
Q

14 types of hearsay exceptions for which unavailable is immaterial

A
  1. excited utterance
  2. present sense impression
  3. present state of mind
  4. medical diagnosis or treatment
  5. business records
  6. official records
  7. recorded recollection
  8. learned treatise
  9. ancient documents
  10. docs affecting property interest
  11. reputation character evidence
  12. family records
  13. market reports
  14. residual catch-all (trustworthy, necessary, and notice)
77
Q

What types of statements will be excluded under Confrontation Clause?

A

Statements that are testimonial (more formally documented) in nature that are offered against a defendant in a criminal case when the declarant is unavailable and there was no opportunity to cross examine the declarant

78
Q

6 federally recognized privileges

A
  1. attorney-client
  2. spousal immunity (criminal only)
  3. marital confidential communications
  4. therapist-client
  5. clergy-penitent
  6. governmental

(MASCOT)
plus:
constitutional 5th amendment- against self-incrimination

79
Q

common state-recognized privileges (use in federal ct diversity cases) (3)

A

(JAP)
physician-patient
accountant-client
professional journalist

80
Q

4 exceptions to attorney-client privilege

A
  1. services were obtained to aid in crime
  2. legal services are at issue
  3. relevant to breach of duty in malpractice
  4. relevant to issue between parties claiming through a deceased client
81
Q

How to waive undisclosed part of disclosed material covered by attorney-client privilege (3)

A

Waiver of disclosed part is intentional, they are about same subject matter, and should be considered together to avoid unfairness

82
Q

Exceptions to physician-patient privilege (state law majority rule) (4)

A
  1. patient puts physical condition in issue
  2. services were sought to aid in wrongdoing
  3. relevant to breach of duty in medmal case
  4. waived through contract
83
Q

When do spousal immunity privilege and spousal communication privilege not apply? (3)

A
  1. communication in furtherance of crime
  2. legal action between spouses
  3. spouse is charged with crime committed against the other
84
Q

MEE Character Evidence

A

(1) If it is a types of case in which trait is essential to claim- everything allowed
(2) If for propensity: depends if criminal or civil

Criminal cases:

If it is sexual of D- specific acts allowed
If it is to show propensity/conformity of D-
-can be about D if in reputation or opinion form,
if initiated by D, pertinent and personal (bring character
witness or cross examine P’s witness with Did You
Know questions)
-Bad acts only allowed for non-character purpose (MIMIC),
relevant, notice
If it is about V-
-only after D opens the door of self-defense
(peacefulness trait)
- in sex assault case, past sexual history only allowed if
for physical evidence, or consensual behavior between
D and V

Civil cases:

propensity- generally never allowed
sex acts of D allowed for propensity (specific acts)
non-character purpose allowed
victim’s sexual history allowed if satisfies reverse 403

(3) If it is to impeach on character for truthfulness:
-opinions or reputation allowed for untruthfulness, and
for truthfulness if it’s attacked
-prior convictions- dishonest crimes allowed, non-
dishonest crimes may be excluded in criminal case if
unfair to D (reverse 403), all crimes of over 10 years ago
not allowed unless extraordinary circumstances,
juvenile/constitutionally defective/pardoned generally
inadmissible
-bad acts- about a witness, no extrinsic evidence, judge
may preclude if unfair

85
Q

MEE Hearsay

A

(1) Does it satisfy hearsay definition and relevant?

(2) Is it excluded?
- Is the declarant testifying as a witness? If it’s about
identification, inconsistent formal statement, or
rebutting a accusation of fabrication- allowed
- Is it the declarant a party opponent? (Or if it’s an
adoptive/vicarious admission)- allowed

(3) Is it excepted?
- Is the declarant unavailable? (Frank Sinatra Doesn’t
Pick Popcorn)- allowed
-Is it a type of spontaneous statement (EU, PS, medical)
or business/document/record? (all the other
exceptions)- allowed

(4) Can it fit into the catch- all? (strictly necessary, notice,
sufficiently trustworthy) - allowed

(5) is it barred by CC? (declarant unavailable and testimonial)

86
Q

MEE Privileges

A

If it’s a diversity case- apply state law (usually includes MASCOT and JAP)

If federal q case- this is federal law:

6 privileges (MASCOT)
5th amendment- self-incrimination

Bar (12 decks)

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