Evidence Flashcards
(163 cards)
1
Q
What makes evidence logically relevant?
A
Evidence is relevant if:
- tendency to make a fact more or less probable than it would be without the evidence AND
- that fact is of consequence in determining the action (CLEARLY UNDERSTAND)
2
Q
How is relevant evidence excluded?
A
403: probative value substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulate evidence.
3
Q
What is the balancing rule from 403?
A
Evidence, even if relevant, will be excluded if the danger of unfair prejudice substantially outweighs its probative value
4
Q
A jurisdiction defines receiving stolen property as (i) receiving control of stolen property, (ii) with the knowledge that the property is stolen, and (iii) with the intent to permanently deprive the owner of the property. A defendant, charged with receiving stolen property after the police found a stolen television in his home, denied that he knew it was stolen. On cross-examination, the prosecutor asked the defendant, “Didn’t you also previously buy a stolen stereo from the same man who sold you this television?” The defendant’s attorney immediately objected.
What is the strongest basis for the defense attorney’s objection?
A
The probative value of the prosecutor’s question is substantially outweighed by the danger of unfair prejudice.
5
Q
what is the mercy rule and what are its boundaries?
A
Criminal D may bring evidence that character is inconsistent with the crime charged (peacefulness vs battery)
But only reputation or opinion, NOT specific incidents (because then we get a collateral trial about that incident)
6
Q
Limits of the mercy rule
A
May only introduce evidence re: reputation (general community) or opinion (one person’s opinion) but CANNOT say why, cannot bring up specific incident (because no trials over some collateral matter!)
7
Q
What is reputation testimony?
A
reputation testimony – testimony by someone sufficiently familiar with the defendant’s reputation among associates or in the community
8
Q
What is opinion testimony?
A
opinion testimony – testimony sharing an opinion on the defendant’s character that is based on personal knowledge and familiarity with the defendant
9
Q
What effect does it have when a victim’s lawyers brings evidence that the V did not have a character trait (like violent)?
A
Then it opens the door to the defense introducing evidence regarding the same trait in the defendant
10
Q
What does Rule 404 say about a criminal defendant’s use of his own character evidence?
A
May introduce evidence that character is inconsistent with crime charged, but not via specific incidents, only reputation or opinion.
11
Q
What does 404 say about a criminal D who introduces evidence of V’s character?
A
May do so if it is relevant’s to D’s asserted defense. Like: V had a violent tendency too.
12
Q
What does 608 say about when a witness’ truthfulness has been questioned?
A
W’s character for truthfulness can be rehabilitated only after it has been attached. Opinion or reputation testimony is allowed.
13
Q
What can prosecution do after D has called a witness who testifies to D’s peaceful etc. character?
A
Prosecution may XE the W re: a specific act that D committed that relates to the trait OR
Call another witness to provide reputation or opinion testimony about the D’s corresponding bad trait (“no he is not peaceful!!! He’s violent!”)
14
Q
Can a L “go fishing” with a witness on a hunch about D’s or W’s past bad behavior?
A
No hunche! L must act in good faith re: past bad acts, no questions based on hunches. That’s trickery.
15
Q
When may a witness be impeached with a conviction other than for dishonesty?
A
Under FRE 609, a witness may be impeached by attacking his/her character for truthfulness with evidence that the witness has been convicted of a felony in the last 10 years. But when the witness is a criminal defendant, such evidence is admissible only if the court finds that the probative value of the conviction outweighs its prejudicial effects
16
Q
When may evidence of a crim D’s prior bad acts be admitted?
A
Not for propensity, but is admissible IF
- relevant
- noncharacter: MIMIC
- like all evidence: subject to 403
17
Q
recite the 403 test
when can it be used
A
, a court may exclude relevant evidence if its probative value is substantially outweighed by certain dangers such as unfair prejudice
CAN be used on ALL EVIDENCE even if otherwise admissible
18
Q
Under what circumstances may any witness be impeached with evidence of a prior conviction?
A
If the conviction was for a crime of dishonesty and occurred within the last 10 years. Then the 403 test does not apply.
19
Q
What are valid bases to challenge a witness’s competence to testify?
A
- jugdge or juror cannot testify
- age, mental impairment, intox IF NOT able to recall and narrate the occurrence and appreciates the importance of truth
20
Q
What must a court evaluate re: admissibility if a child is called to restful
A
Every person, including a child, is generally presumed competent to be a witness until proven otherwise. But if a child’s competency is questioned, then the court must evaluate the child’s:
intelligence
ability to differentiate between truth and falsehood and
understanding of the importance of telling the truth.
If the child is unable to understand the requirement to tell the truth, the child is incompetent to be a witness.
21
Q
How to authenticate Ancient Document and data compilations
A
- At least 20 years old when offered
- condition creates no suspicion about authenticity AND
- was in place where authentic document would likely be
22
Q
How to authenticate public record
A
Must show: Record was recorded or filed in public office as authorized by law or in office where that type of item is kept
23
Q
How to authenticate a reply letter
A
- Document written in response to communication AND
- contents make it unlikely response was written by someone other than recipient of first communication
24
Q
How to authenticate handwriting
A
- Comparison – expert witness or trier of fact compares authenticated against disputed handwriting (or fingerprints, hair, cloth fibers) or
- Non-expert opinion – witness with personal knowledge of authentic handwriting not acquired for litigation gives opinion on disputed handwriting
25
Self-athuetnticatinig documents
- Public documents with official's signature & authorized by official or seal
- Certified copies of public records & records of regularly conducted activities
- Newspapers, periodicals & official publications
- Documents with trade inscription
- Acknowledged documents
- Commercial papers, including signature & related documents
26
When must an item of evidence be authenticated?
Prior to submission at evidence. This can be done in the trial, like asking Officer Reyes to say this is his body cam, then asking to submit.
27
To what sort of document does the Best Evidence Rule apply?
When proving the contents of a doc which a witness relies upon or whose contents are at issue. If undisputed, photocopy is fine.
28
Under the Best Evidence Rule, in what way can other evidence be used to prove the contents of a contested document?
- ORIGINAL LOST. originals lost or destroyed (not by proponent's bad faith); not attainable by judicial process; opponent had original, knew it was required & failed to produce OR content not closely related to controlling issue.
ADMISSION. opposing party in testimony, depo, written stmt confirms contents of doc
PUBLIC RECORD: certf. copy, copy w/ comparison testimony, other evidence if above is not easily obtainable.
29
What is the Best Evidence Rule and when does it apply?
“no describing documents instead of showing them to us, at least if it really makes a difference, unless you really need to, and duplicates are usually fine”
“document” include film, x-ray, photo, writing
Limits testimony about what was in a document: Show us the document (or a reliable copy)!
Duplicates (mechanized, accurate) are fine unless there is some Q about reliability of copy or reason we need original
Rule is only implicated in two narrow situations:
1. when a witness is relying on the document while testifying, or
2. when the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute, a will in a probate action).
30
When is evidence of a remedial measure inadmissible?
If it was done AFTER the cause of action incident occurred and is being used to prove negligence or other culpable conduct, product defect, need for warning or instruction.
IS admissible to prove that precautionary measures feasible, person did think they owned the danger sidewalk, or to impeach witness
31
Does evidence generated by a dog or automated machine fall under the hearsay exception?
No, though it is admissible, it does not fall under the exception because it's not a person's assertion and therefore is not hearsay.
32
The must a remedial measure be undertaken to be excluded?
Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured. A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.
33
When is a statement by an unavailable declarant-witness admissible?
OOC stmt admissible as substantive evidence if (1) the declarant testifies and is subject to cross-examination at trial and (2) the declarant's statement satisfies any of the following criteria:
1. it is INCONSISTENT with the declarant's testimony and was given under penalty of perjury at a trial, hearing, deposition, or other proceeding
2. it is CONSISTENT with the declarant's testimony and offered to (1) rebut an allegation that the declarant recently fabricated that testimony or has testified due to recent improper influence or (2) rehabilitate the declarant's credibility when attacked on other grounds or
it identifies a person as someone the declarant perceived earlier.
34
What is the hearsay exception for a judgment of a previous conviction?
May introduce judgment of a previous conviction if:
1. entered after trial or guilty plea
2. felony (punishable by \>11y ordeaht)
3. admitted to prove any fact essential to judgment ANNNNS
4. judgment was against D, when offered by prosecutor in crime case for purpose other than impeachment
35
May a defendant introduce their acquittal in a criminal trial as evidence of innocence of that crime in a later trial?
there is no exception for judgments of acquittal because they do not establish innocence—they merely establish that the prosecution failed to meet its burden of proof.
36
Is a photocopy considered a reliable duplicate under the BER?
yep sure is
37
What is a prior inconsistent statement?
a past statement that is contrary to a witness's present testimony.
38
Is a prior inconsistent statement admissible to prove the truth of the matter in the statement (i.e. as substantive evidence?
Generally not admissible because it is hearsay, UNLESS (not hearsay) IF
- stmt given under penalty of perjury at a proceeding AND
- delcarant of statement testifies and is subject to XE at current trial
39
When may a witness (not D) be questioned about his plea deal related to the case?
A witness can be impeached (i.e., discredited) with evidence of self-interest or bias that may motivate the witness to testify falsely—e.g., benefits received in exchange for testimony. Since such evidence bears on the witness's credibility, it can be raised on cross-examination or introduced extrinsically through other sources
40
Does a jury ever decide whether evidence is admissible?
No, that takes away the whole point, dumbass--and admissibility is a question of law.
41
What happens when a factual question (was the witness excited when he exclaimed) that must be decided when it decides what is admissible?
The judge decides both the question of fact and the issue of admissibility
42
Does the rules of evidence apply to arguments over admissibility?
No, they don't--infinite regress. That's why we holding ev. hearings outside the presence of the jury.
43
Who decides whether a witness is credible and how seriously their testimony should be taken?
credibility and weight of testimony are jury questions
44
Can you appeal a case based on an evidentiary mistake?
1. If you preserve the error by objecting a trial, give judge a chance to fix: objection or offer of proof works
(unless plain error, obvious on face, prevent miscarriage of justice--rare)
2. ALSO mistake must not be harmless error--must change outcome
45
What does Rule 105 say about admitting evidence that has both legitimate and illegitimate use?
You can request the judge give the jury a limiting instruction on using the evidence in a certain way only. (if it works against you)
46
What does Rule 106 say about completeness?
If opponent introduces part of written statement, you may introduce other parts if necessary to give balanced view of the document. Can so it right then, don't have to wait until your case. Can introduce the rest even if otherwise would be inadmissible.
47
What is the judicial notice doctrine?
Judge can tell jury that an adjudicative fact they'd otherwise have to decide is a given.
When there is no reasonable dispute over the fact:
"That year July 4th was a Friday" don't need to have a witness show a calendar
"Austin is west of Houston"
Civil "you are instructed to find that SFO is further south than Oakland"
Criminal: can never direct a jury to find anything. Can say "may find that NY is north of DC"
48
what is an offer of proof?
It's the term for an objection made to exclude evidence that the court is including.
49
Mya the court call and question witnesses?
yes, but then everyone gets to XE them
And every party can object outside of hearing of jury
50
Can you repeat a question of a witness?
Only if they have not already answered it
51
Will a witness be excluded from the courtroom?
If you request it and
they don't have a right to be there (like a crime victim, party, or witness essential to the presentation of the case, like investigating police officer)
52
Two parts of burden of proof
1. burden of production: enough evidence to get to a jury
2. burden of persuasion: convincing the jury that your case it right)
53
What does a presumption do?
Shifts the burden of production to a different party
but NOT the burden of persuasion
EX: prove someone got a letter. They can just refuse to answer
So we say: P1 says they mailed, photo of stamp, correct mail
P2 then has burden of production to show they did not-- can't just stonewall. If can't judge may tell jury to presume the letter arrived because P2 could not show anything to the contrary.
54
What is the presumption when someone seems to have destroyed evidence?
Presume the evidence would have been adverse to you
55
What is an irrebuttable presumption?
It's not like burden of production etc.--
Irrebuttable presumption is just a rule of law, often created by statute
regular burden-shifting of presumption is of rebuttable presumptions--"we will assume A unless defendant can show something otherwise" "okay now he showed us otherwise so prosecution has to show something different"
56
Is 403 titled in favor of admission or exclusion?
Tilted in favor of admission of evidence. Evidence to be admitted unless there is very low probative value compared to a substantial risk of problems: confusion, delay, unfair prejudice, etc.
Not used a lot! Sometimes used with cumulative evidence. "We have lots of evidence he was in NYC on the day, we don't need to hear he may have been at a furry convention"
57
104b--if gonna be clear to jury if evidence is relevant or not based on another fact, what?
Let the jury decide--they can ignore the evidence if the other judgment makes it not relevant
58
Character evidence rule encourages or discourages character evidence to show action in conformity with the crime? "Believe he murdered the V because he's a murderer" "he drove careflfessly because he's a careless man"
Character evidence rule generally prohibits evidence admitted to show that the D has a character to do a certain crime.
"bank robbers gonna rob banks"
WHY?
-too prejudicial, not that probative (sometimes people stop), we aren't sure how well character evidence works)
Character evidence is considered to have low probative value and be highly prejudicial. A douchey person isn't necessarily a cimrinal. Etc.
WITH EXCEPTIONS. --narrow. only prove through reputation and opinion testimony
59
How do you prove a character trait, in the exceptions to the ban on character evidence?
-reputation (general in community)
-opinion (general opinion about you from one person, up to "is he a violent man")
CANNOT USE SPECIFIC EXAMPLES because we don't want a collateral trial
DIFFERENT: if character is an issue in the case, like defamation or child custody, so not about propensity (in rare civil cases, not criminal)
60
When can you make a propensity argument?
1. CIVIL. Almost never do propensity in civil cases (unless char trait is relevant in case, like defamation)
a. sex crimes and child abuse: prosecutor or civil P can introduce evidence of prior acts
b. R608 truthfulness propensity
2. CRIMINAL cases can sometimes.
a. General, Pros not allowed to introduce trait of D (he has 5 theft convictions)
b. Mercy rule: Crim D can introduce his own trait in defense: he cannot be guilty of battery, he is super chill. He can't have embezzled, he's super honest, talk to all these people. Criminal Ds get extra latitude. D cannot bring specific acts, just opinion. HOWEVER Pros. can XE witness and then ASK about specific incidents, but can't say anything other than yes or no. "are you aware that D hit hit mom 2 years ago?" "Yes" not arguing. Do not have to prove, but have to have good faith about the incidents. No side trials.
BUT THIS OPENS THE DOOR, the prosecution then can rebut the evidence D introduced: D is violent! Here's a witness! His opinion is this is a violent man! But can't do incidents UNLESS in XE on D's witness where he can ask about specific incidents from the past.
c. D may introduce evidence of pertinent character trait on part of V. (Happens when arguing that purported victim started it, etc.) "This V is very violent!" Rare that the character of the victim is relevant.
If D goes after the victim:
i. Prosecutor can introduce evidence that V is not violent. Only reputation, no specific acts.
ii. Can ALSO bring evidence that D has same trait that he accused victim of having. (no specific acts)
608 (404 points to this): character for truthfulness to impeach a witness who is being untruthful (yes, it's a propensity argument, ONLY allowed for a LIARRRRR)
61
When can bring evidence of past crimes or wrongs?
when it's another use than propensity: MIMIC
**Motive**. You killed A because he knew you used to beat B?
**Intent**. not conduct
**Mistake** (absence of it): makes no sense that this happened a million times, could not be mistake
**Identity**: M.O. if you have a certain way of acting that shows it's you. Like here is your weird speech patter you used that last time you killed someone.
Common scheme or plan
When you want this, court uses 403 test
If they allow it in, can ask for a 105 limiting instruction
62
What is the different between propensity evidence (restricted) and habit evidence?
Habit evidence is routine, automatic, specific. Not “he is violent” but yes “he takes the same route to work every morning”
Distinguish; how specific and focused is the evidence?
63
Habit evidence is…
a person’s particular routine reaction to a specific set of circumstances
admissible to prove CONFORMING conduct
can include organizations habits
is at least sometimes admissible in criminal trial
64
MIMIC evidence can get it evidence of \_\_\_\_\_\_\_\_\_\_\_\_\_
prior bad acts
65
who can testify?
- anyone with personal knowledge of something relevant to case
- is willing to swear to tell the truth (and can understand what truth means, competency)
(comes states have special rules, like min age)
(some states have deadman's statute: limit ability to testify re: event w/ dead person)
66
juror cannot testify…under 606b
regarding what happened in deliberation.
finality: don't want people digging into jury verdicts
EXCEPTIONs: if extraneous prejudicial info, or outside influence made its way to jury, or racial animus affecting conviction, or there was an error (like on form)
67
3 categories of impeachment of witness
1. **Bias**
1. some reason to lie or shade the facts (old CL rule, could not testify)
1. relationship w/ party
2. financial interest in case
3. deal with prosecution to testify
2. **Sensory incompetence** (mistaken because--see, hear, into, fatigue, memory, line of sight)
3. **Prior inconsistent statement**
No rules on 1-2 specifically, but these are the most common methods of impeachment
68
Ways to impeach a witness
- character for truthfulness. R608-09. CANNOT do prior occasions of dishonesty EXCEPT ON CROSS
- sensory problems
- bias
- introduce prior convictions
- prior inconsistent statements
69
When you can ask a witness about prior dishonest acts NARROW
Character for truthfulness. R608-09.
CANNOT do prior occasions of dishonesty EXCEPT ON CROSS
character witness: reputation or opinion ONLY NO specific incidents EXCEPT ON CROSS
CROSS EXAMINE CHARACTER WITNESS: can “inquire into specific incidents of prior dishonesty”
if probative of honesty or dishonesty (court can tell you)
“isn't it true that you lied on a job application 2 years ago”
“isn't it true that you stole money from you employer” Must have a reasonable good faith basis for Q.
HOWEVER you have to take their answer. If they deny it, can't challenge that.
(However, judge will know it's true because you just had to prove it to him, and will remind W he is under oath)
70
When/how can you impeach a W with prior convictions
**1. Crimes of dishonesty**: perjury, fraud, embezzle: crimes that required proof of dishonesty or false statement to be convicted
**2. Felony convictions** (because if you committed a serious crime you're probably willing to lie under oath)
\* Most Ws: need to show 403: UNLESS some risk of prejudice that substantially outweighs probative value
\* Defendant as W: higher threshold: reverse 403: admissible ONLY IF probative value substantially outweighs risk of prejudicial effect
FOR ALL CRIMES AND WITNESSES: if conviction is older than 10y, must pass reverse 403.
cannot be used for impeachment if pardoned (innocence finding) or rehabilitation certificate
71
How to use prior inconsistent statements
W: the car was blue
Me on XE: DIdn't you tell your mother 3 weeks ago that the car was red?
Can use ANY prior inconsistent statement
Can prove with extrinsic evidence (another witness says that) SO LONG as witness has chance to explain inconsistency
72
How to impeach a hearsay declarant
When an OOC statement is admissible under a hearsay exception
Ex: “How do you know that car was speeding if you are blind?”
“My brother in law said the car was speeding when it swiped him”
Here, the hearsay declarant is acting like a witness. Can be impeached same as any other witness: bias, perception, etc. It's hard to do (that's why we don't like hearsay).
73
What to do after the other side impeaches your witness?
REHABILITATION
You get to talk to your witness again to restore credibility!
1. chance to explain (because they just got a bunch of leading questions)
2. prior CONSISTENT statement (consistent with testimony)
3. Bolstering. witnesses bolstering credibility IF character for truthfulness has been attacked
74
Does a prior inconsistent statement need to be sworn to be introduced as evidence?
NOPE
but if you are going introduce evidence of the prior inconsistent statement (like someone who heard them say it) then the witness has to be around to get back on the stand and refute or explain the statement
75
when may you introduce a crime involving dishonesty?
A **conviction** for a crime involving dishonesty is admissible to impeach **any** witness.
BUT
if the conviction is over 10y old then reverse 403: its probative value must substantially outweigh prejudice effect
76
What if a witness says “he seemed angry”?
This is an opinion
Lay opinion is admissible IF:
- based on witness' own common sense perceptions AND
- helpful to a clear understanding of the facts
Ex: speed of vehicle, person's emotion
-[implicit: Not based on purported specialized knowledge] unless been qualified as expert
77
Who may offer opinions or conclusions without being based on in-person perception of case?
Experts! Scientific, tech knowledge
NO expert testimony on witness credibility.
78
Can expert offer testimony on the ultimate issue in a case?
generally yes. If useful.
Expert: “I believe that the doctor fell short of standard of care” “I believe the design was faulty”
EXCEPTION: no testimony re: defendant's mens rea of any crime or defense
EXCEPTION: credibility of any witness
79
on what may expert base opinion?
- personal observation of something in case
- evidence presented at trial
-info of a type reasonably relied up on by experts in that field, even if not admissible at trial
may only tell jury about that info unless court thinks jury needs to hear about it
80
may the court appoint an expert witness?
When expert is called by court:
each party may depose, see papers ahead of time, and cross examine expert
81
How to get evidence admitted
1. personal knowledge testimony
2. distinctive markings testimony
3. chain of custody (like for random drug bag) testimony
4. stipulation with other side (but can also add testimony)
82
ancient documents authentication
- at least 20y old
- found in a place where such a doc would be if authentic
- nothing suspicious about it, looks the way it should for that type of doc
83
reply letter doctrine
when a witness says they can verify a letter because it was clearly written in response to one they wrote
84
handwriting authentication
1. lay witness with personal knowledge of this handwriting NOT obtained in prep for litigation
2. jury compares to known sample
3. handwriting expert testimony
85
self authenticating documents
902. not likely to encounter on bar exam:
certain docs are so unlikely to be fake that their presence in that form is enough to at least get it to the jury
public records under seal,
86
ways to authenticate phone conversation
The caller recognized the speaker’s voice.
The speaker knew facts that only a particular person would know.
The caller dialed a business and spoke to a person about business regularly conducted over the phone.
NOT that a judge decided caller was verified
87
If the contents of a document are at issue….
The Best Evidence Rule limits your ability to have a witness come describe them unless you really need to…
- original unobtainable (and you didn't destroy it)
- other side had it, knew it would be an issue at trial, isn't producing it
88
If you can't get the original of a public record to bring to court…
you can bring a certified copy instead
(weird because now you can bring a duplicate of others documents, so you need to get a certified copy only for a public record, but that's an artifact of when accurate duplicates were hard to get)
89
What if documents are far too voluminous to bring copies and show them?
Exception to best evidence rule: can have someone summarize them in testimony, like in a chart.
Can be attacked on XE
90
Parol Evidence Rule in Evidence
Excludes evidence that would change terms of a written K
If K is completely integrated, contains all of the agreement
If completely integrated: no evidence of things not in K (except see below\_
If partially integrated: can only introduce E if it does not contradict K, but can add to it
CAN ALWAYS INTRODUCE:
Custom of trade or course of dealing
Show fraud, mistake, illegal purpose
Absence or presence of consideration
91
When does the Best Evidence Rule apply?
It applies when the contents of a writing are at issue.
It applies when the document has legal effect.
It applies when a witness relies on the document while testifying.
It DOES NOT APPLY any time a party attempts to introduce a copy of a document.
92
Exceptions to the Best Evidence Rule
(like when yo don't need to intro the doc to support testimony re: the doc)
The original has been lost or destroyed through no one’s fault.
The original cannot be obtained by any judicial process.
The party against whom the document is introduced had control of the original and knew that it was going to at issue at trial.
doc is basically not important enough to trigger the BER
93
What is covered by atty-C privilege?
Confidential (does not count eavesdroppers)
communication (only teh communication itself, not underlying facts)
made for seeking legal advice
94
how to waive AC privilege
- failure to object
- explicitly, by K
- voluntary disclosure
- L CANNOT do it by revealing info (unless you, acting as agent, are careless)
95
how about corporate AC privilege
Corporation does have priviilege
Upjohn: any manager communicating re: legal advice to L
96
if purpose of getting advice was to help with crime or fraud--
exception to AC privilege
97
can you disclose fights with you and C if you are fighting about the bill or similar, is that covered by AC privilege?
not covered--self serving but fair
98
doc-patient privilege
not in fed law, but common in state. similar to AC privilege
99
therapist/social worker-patient privilege
is recognized in fed law
not work if: waiver, dispute, illegal, etc.
ALSO no privilege in court ordered exam and commitment proceeding
100
5th amendment privilege
- applies only to individuals
- does not apply to past statements, diary, etc.
- applies only to testimony--not breathalyzers, SFSTs, etc.
101
spousal privileges (2)
**-spousal immunity**. Cannot be forced to testify against spouse. Does not survive divorce. Does not mostly count in crime against spouse or kids.
**-spousal comm privilege**. Comms made between spouse while married in reliance on sanctity of marriage. Works even after divorce. Does not apply
-exists in fed system
102
liability insurance exception
existence of liability insurance is not admissible to prove negligence or wrongdoing
is admissible to show ownership or other stuff, tho
| (also because people will use it to say D is insured, he can pay fine)
103
subsequent remedial measures
evidence of this is NOT admissible
IF it was done after the Incident that led to suit
104
settlement offers or negotiations…
not allowed to prove validity or amount of a disputed claim
NOT EVEN as prior inconsistent statement!
CANNOT BE WAIVED by either party--can't talk about your own behavior!
105
offers to pay medical expenses…
are not admissible to show guilt re: injury
if you do or say other things in that admit your liability when that happens, might be admissible
106
information and things you say around plea negotiations…
are not admissible in court!
107
rape shield law
evidence of victim's past sexual conduct or predisposition is not admissible in a rape case
rare circumstances:
show D was source of physical evidence (she banged someone else that night)
past conduct w/ D is admissible to show consent
OR if victim opens the door by saying “I never!”, be able to get curative admission
basically where it would be so unfair that it would be unC
civil: past behavior or predisptation: reverse 403
reputation evidence re: sexuality: ONLY IF victim brings it up
108
How about the rape defsandatns' past sexual conduct?
Congress added rules that propensity for sexual behavior via past conduct can be introduced to show propensity
ONLY FOR SEX ASSAULT DEFENDANTS
109
“I asked my brother who did it, and he pointed at Bob”--is this hearsay?
YES pointing is assertive conduct.
110
trying to decide if someone was killed on impact in a car accident. testify: I heard him yell “I'm alive” as the car was burning. is that hearsay?
No. because it's not being used to show truth of what he said--he could yell anything and it would show he was alive after impact
111
if an issue is whether a non-witness person committed perjury, can you introduce their statements?
Yes. Not hearsay because we are not using it to prove what they said. Using it to prove they previously committed perjury
112
need to show that police knew about gunman. can I admit a call someone heard that said “he is shooting!”
Yes, because we are not using to show that he was shooting. We have video of that. We are using it to show police knew about the shooter at the time of the call
113
what is hearsay within hearsay
need an exception or exclusion for EVERY LEVEL
Witness says he read a letter: “dear brother, yesterday Mom told me the red car was speeding”
114
NOT hearsay (definitional exclusions)--prior statements
WITNESS IS AVAILABLE:
_certain_ prior statements of testifying witnesses _subject to XE_
1. inconsistent statements made under oath at deposition, hearing or trial-can be for truth of statement
2. consistent statements used for witness rehabilitation
3. prior statements of idenitifcation--ID person after perceiving them (like police lineup
4. opposing party's statement (though need not testify if criminal D)
1. co-conspirator's statment in furtherance of conspiracy
2. agent's statement in course of duty
3. adoption by silence if meets criteria
115
NOT HEARSAY- opponent's statments (party)
GIANT HOLE==prosecutors love
ANYTHING the opponent said (exception to hearsay, could get under something)
including responsive/adoptive admissions “did you rob that bank” “yes I did”
can sometimes adopt by silence, but rare to use it
heard and understood, could respond, reasonable person would deny=admission
cannot complain if other side uses your owns statement against you.
You're there, explain is yourself.
116
adoption by silence
if D does it, not hearsay:
if you heard and understood, could respond, and a reasonable person would deny it =admission
117
adoption of agent's statements
party admissions doctrine--your agent says stuff that can be imputed to you as an opposing party
118
co-conspirators statement admissibility
admissible only to statements in furtherance of the conspiracy
admissible against you as if you said them under non-hearsay giant hole
of statements of opposing party
119
To meet category of exclusions: on non-hearsay, court must decide:
was there agency, scope of employment, was there a conspiracy? How does it decide?
Court must decide based on something other than the “hearsay” pure statement--
will look to other acts to decide
120
how to show declarant is unavailable as witness
- exempted by privilege
- refuses to testify (maybe in trouble for it)
- no memory of subject/statement
- absent, can't be subpoenaed, like dead
CANNOT claim this if you rendered them unavailable
121
what can you introduce of an unavalbel witness' statements
IF DECLARANT UNAVAILABLE
• former testimony (under oath) IF other side had opp. and motive to XE under oath
(ex: had partial trial, mistrial, then witness dies before second trial, testimony is admissible)
**• dying declarations**. believed death imminent AND statement relates to their death, admissible in homicide or civil case. NOT in other criminal (no “my brother committed fraud” tore admissible).
**• statement against interest**. $, criminal, harm in lawsuit such that reasonable person wold not say it if not true (unless subject decl to crime liability that exonerates another person) W says “my buddy Danny confessed to this crime, let D go!” admit this only if circumstances indicate it is reliable.
**• statement personal or family history** (I am D's son--technically that is hearsay). If your dad is at issue, then you have to show the person who told you who your dad is, or show your mom is not available)
**• forfeiture by misconduct**: if you render a witness unavailable, then all their statements come in!
122
Can you admit evidence of a fresh juvenile felony conviction to attack a witness' character for truthfulness?
NEVER in a civil case
evidence of a **juvenile conviction** is **never admissible** in a **civil case** to attack a witness's character for truthfulness. The policy underlying this rule is that juvenile adjudications lack the precision and general probative value of criminal convictions. This is generally attributed to the informality of juvenile proceedings, the diminished amount of proof required for juvenile adjudications, and other departures from accepted standards for criminal trials.
123
when can you introduce extrinsic evidence (say, a prior OOOC statement in contradiction or another witness saying he's lying)
to impeach a witness?
A witness may be **impeached** (i.e., discredited) by evidence that directly **contradicts** the witness's testimony on a material issue. This can be done through both:
* intrinsic evidence – testimony elicited from the witness sought to be discredited *and*
* extrinsic evidence – evidence from any source other than the witness's own testimony.
124
rule oof completeness
The **rule of completeness** applies when a party introduces **all or part** of a writing or **recorded statement**. It allows an adverse party to then introduce **any other part** of that writing or recorded statement (or another writing or recorded statement) that **in fairness** should be **considered at the same time**. This rule allows for the admission of statements that _are otherwise inadmissible_ to ensure a fair understanding of the previously admitted statement. But those statements must be **explanatory of** OR **relevant to** the previously admitted statement.
125
When can a child testify as a witness?
A child-witness is presumed competent to testify so long as the child can (1) recall and narrate his/her impressions of the occurrence at issue and (2) understand the difference between the truth and a lie and the importance of telling the truth.
126
when can a witness read aloud her written account of an event in controversy admissible evidence?
* contains information witness once knew but cannot recall well enough to testify fully & accurately
* was made or adopted by witness when matter was fresh in his/her mind *and*
* accurately reflects witness's knowledge at time record was made
* ONLY ADMITTED INTO EVIDENCE (meaning a jury can read it) if offered by adverse party
127
does the presence in court of a witness mean you can admit her hearsay statement (including documents)
NO
being present is not a basis to admit a witness's hearsay statement. Instead, the statement must fall under a hearsay exclusion or exception—e.g., the recorded recollection exception.
128
when can a recorded recollection be admitted into evidence?
But the record can only be received as an *exhibit* if it is then offered by an adverse party.
129
what plea bargaining statements or pleas are not allowed to be introduced at a later trial?
410 **bars** evidence of the following in **civil and criminal cases**:
- **withdrawn guilty pleas**
* *-**nolo contendere pleas
- statements made during plea proceedings *and*
* -***statements made during plea negotiations** with the prosecution that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.
EXCEPTIONS: for rule of completeness, if other side introduces a statement from plea proceeding and they should be considered together. Also, admissible if current trial is for perjury and the statement was made under oath, on record, with counsel present.
130
what is the majority and the minority rule about spousal privilege re: testifying?
Majority: one spouse can prevent the other from testifyng
minority: only the testifying spouse can assert the privilege
131
what 2 privileges make up spousal privilege and when do they apply?
[Spousal privilege](https://www.themisbar.com/learners/31015) comprises two distinct privileges—
1. spousal immunity and
2. the marital-communications privilege.
Spousal immunity **does not apply in civil cases.**
132
the former testimony exception to hearsay
the former testimony exception allows an unavailable declarant's **former testimony** to be admitted if:
the testimony was given at a **trial**, hearing, or deposition in the current case or a different proceeding that involved **similar parties and issues** *and*
the party against whom the testimony is offered had an **opportunity** and similar motive to develop that testimony through **direct or cross-examination** of the declarant.
133
when may you intriduce a witness' prior inconsistent statement?
generally, a prior inconsistent statement is inadmissible hearsay unless subject to an exception.
**It may be used to impeach a witness on a material issue** even when it is not admissible substantively. A party may impeach the witness with the statement by:
-examining the witness about the statement OR
- introducing the statement through [extrinsic evidence](https://www.themisbar.com/learners/26203) IF
1. the witness has an opportunity to **explain or deny**—and the opposing party has the opportunity to **question the witness** about—the statement or
2. justice so requires.
134
is a forgery arrest without a conviction a “prior bad act”
NO. an arrest might be a mistake and is not misconduct in itself
135
What does the Fed Rules of Evidence say about which law to follow re: presumptions in a diversity case?
when **state law supplies** the **rule of decision** for a claim or defense (i.e., in diversity cases such as this one), the court should **apply state law** to determine the **effect** of a presumption on the claim or defense.
136
is an architectural model subject to the Best Evidenc Rule
no. it only applies to documents, which includes video, audio and photos. A lot of evidence is too big to bring into a courtroom
137
Does the Best Evidence Rule bar evidence of a document that was destroyed so cannot be produced
One exception to the best evidence rule allows other evidence of a document's content (e.g., testimony) to be introduced if the proponent establishes that all of the originals were lost or destroyed through no bad faith of the proponent.
138
what 3 things may a juror testify about in order to overturn a verdict on appeal?
* **extraneous prejudicial information** brought to the jury's attention
* an **outside influence** improperly brought to bear on a juror *or*
* a **mistake** made in **entering the verdict** onto the verdict form.
139
when is extrinsic evidence allowed to impeach a witness?
**extrinsic evidence** (e.g., the police report) is **admissible only if** the impeached witness has the **opportunity to explain or deny**—and the **adverse party can examine** the witness about—the inconsistent statement (or if justice so requires).
140
can a criminal D waive his right to exclude what he said during a plea bargain meetings?
Yes, so long as the waiver was knowing and voluntary
141
when may you introduce a witness' (nonD) prior inconsistent statement not just for impeachment, but for the truth of the statement?
prior inconsistent statements generally hearsay, thus not admissible for their truth (but may be for impeachment) UNLESS they fall under a hearsay exception.
NOT hearsay if 2 things:
- prior statement given under penalty of prudery at proceeding AND
- **declarant testifies** is a witness that can be XE at CURRENT trial
142
when can a prior inconsistent statement be introduced to impeach?
-if it shows up in current testimony
-if from elsewhere: W must get opportunity to explain or deny AND
opposing party gets to examine W about statement
143
when can a recorded recollection be used to refresh memory?
A party may use a writing to **refresh a witness's recollection** when
(1) the witness **once had personal knowledge** of a fact or event but is now **unable to recall** it *and*
(2) the writing will help the witness recall that information.
144
what rights does the other side have re: a document sued to refresh recollection?
After it's consulted for memory, the **adverse party may** then:
1. have the writing **produced for inspection**
**2. cross-examine** the witness about the writing *and*
**3. introduce** into evidence **any portion** of the writing that **relates to the witness's testimony**—e.g., to impeach the witness **(Choice A)**. But to be introduced for its substance, it MUST FALL INTO A HEARSAY EXCEPTION
145
man says “X did it” as he lay laying. Defense claims he was too delirious to know he was dying, so this is not under the Dying Declarations exception and should be suppressed. Man's wife said he said something else supporting him being too delirious, which would exclude his statement, but all agree his statement to her is privileged.
How would court decide whether to allow the statement?
Court must decide evidentiary issues outside the presence of the jury. In that, it is may hear anything EXCEPT what is privileged. So here, the judge must hear arguments about the statement outside the hearing of the jury, and cannot hear the wife's privileged information.
146
When must an evidentiary hearing me done outside the presence of the jury?
PQs of fact
- related to whether evidence is admissible, a privilege exists, or a witness is qualified. Any hearing on these matters must be conducted outside the jury's presence if
(1) the matter involves the admissibility of a confession,
(2) a defendant in a criminal case is a witness and so requests, or
(3) justice so requires.
147
when can you introduce evidence of a defendant's insurance =?
vidence that a party was (or was not) covered by **liability insurance** is ***not*** **admissible** as **substantive proof** of negligence or wrongdoing
148
when may a witness talk about specific instances of bad conduct?
**SICs** can **_always_** be introduced **intrinsically** (i.e., by questioning the witness about the SIC).
But they can only be introduced **extrinsically**(i.e., from other sources) if the SIC relates to a **criminal conviction** for a felony or crime of dishonesty.
149
who bears the burden of showing that evidence is/is not admissible?
At least with the 403 and similar tests, The party opposing admission
150
what is the test for admitting a felony conviction less than 10 years old against for a defendant's witness?
Civil case: defendant must show that **probative value** is ***substantially*** **outweighed** by its **prejudicial effect (403) (err on side of admission)**
**Criminal case: prejudicial effect is substantially outweighed by probative value (reverse 403) (err on side of exclusion)**
**because criminal defendants get more leeway**
higher std also for convictions more than 10y old
151
what statement fall under the 801d2 exception?
a party's admissions, offered against him for their truth, are not hearsay when:
(A) his or her own statement, in an individual or representative capacity;
(B) a statement that the party has manifested an adoption of or a belief in its truth;
(C) a statement by someone authorized by the party to make it;
(D) a statement by the party’s agent or servant about a matter within the scope of agency or employment, made during the existence of the relationship; or
(E) a statement by the party’s co-conspirator during and in furtherance of the conspiracy.
152
ways to authenticate a physical object for admission into evidence
| (includes photos, x-rays)
-testimony by witness with personal knowledge of object
(or that reproduction depicts original object)
-Comparison of object or writing against authenticated specimen by expert or trier of fact
-Testimony on object's appearance, contents, substance, internal patterns, or other distinctive characteristics
-chain of custody
-x-rays, ekgs: testimony that machine was working right, etc.
153
what documents are self authenticating
* Public documents with official's signature & certification by second official or seal
* Certified copies of public records & records of regularly conducted activities
* Newspapers, periodicals & official publications
* Documents with trade inscription
* Acknowledged documents
* Commercial paper with signature & related documents
154
how to authenticate something that documents something that could not be seen by naked eye (EKG, x-ray, speed radar)
a physical representation of something that could not otherwise be seen requires proof that (1) the process for creating the evidence was accurate, (2) the machine that produced the evidence was working properly, and (3) the operator of the machine was qualified to operate it.
155
wtf is a dead man's statute
If A is in a lawsuit with B's estate, A can't testify about communciations with B before he died if that testimony would be adverse to B
ead man's statute, which prevents a party in a civil case from testifying about a communication with a decedent whose estate is also a party when that communication would be adverse to the estate
156
when may a photocopy NOT be put into evidence instead of an original
a **duplicate** (i.e., photocopy) is **admissible** to the **same extent** as the **original** and without the need to explain the unavailability of the original, unless:
* a genuine question is raised about the original's authenticity *or*
* the circumstances make it unfair to admit the duplicate.
157
when can you introduce former testimony?
* declarant is unavailable AND
* was given at trial, hearing, or deposition in current case or different proceeding that involved similar parties & issues AND
* is offered against party who had opportunity & similar motive to develop testimony by direct or cross-examination
158
what evidence may a judge consider when deciding whether to allow evidence to go to the jury?
the **judge must first determine** whether that **evidence can be presented** to the jury. If that involves judgments of fact, the judge can make those judgments, and may use any relevant evidence even if inadmissible EXCEPT PRIVILEGED EVIDENCE
159
Must the jury accept a judicially noticed fact as conclusive (true)?
Yes if it's a civil case, either way if it's a criminal case
160
qualifications for a judicially noticed fact
a court to take **judicial notice**—on its own initiative or upon a party's request—of any [adjudicative fact](https://www.themisbar.com/learners/35555)that is **not subject to reasonable dispute** because it:
1. is **generally known** within the territorial jurisdiction of the trial court OR
2. can be **accurately and readily determined** from sources whose accuracy cannot reasonably be questioned.
161
when is a party banned from introducing evidence of settlement negotiations or settlements?
when that evidence is offered to:
* **prove or disprove** the validity or amount of a **disputed claim** OR
* **impeach** by a **prior inconsistent statement** or contradiction.
* THIS INCLUDES if the party offering was not a part to the settlement
162
spousal vs martial communications privileges
spousal: during “active” marriage, spouse cannot be forced to testify in a CRIMINAL case against spouse re: any matter that occurred during/before marriage
marital communications: lasts forever, spouse can be prevented from testifying in CIVIL/CRIMINAL re: confidential communications between spouses during the marriage
163
when are property records admissible under a hearsay exception?
Record of document that purports to affect property interest is admissible if:
* record admitted to prove content of original recorded document, along with signing & delivery by each purported signee
* record kept in public office *and*
* statute authorizes recording such documents in that office
ALSO, may be SELF-AUTHENTICATING IF SIGNED AND SEALED OR CERTIFIED OFFICIAL DOC
