Evidence

Question 1

Ways to make a Proffer

Answer 1

1) proponent may examine the witness before the court and have the answers reported on the record
2) statement from counsel as to what the testimony would be
3) statement written by examining counsel describing the answers the proposed witness would give if permitted to testify
4) proponent of evidence may intro a written statement of the witness’s testimony signed by the witness and offered as a part of the record

Question 2

effective proffer

Answer 2

enables a trial judge to make informed decisions and create a clear record that an appellate court can review to determine whether there was reversible error in excluding the testimony

Question 3

Luce v. United States

Answer 3

to claim improper impeachment, ∆ must have testified at trial

Question 4

Ohler v. United States

Answer 4

Since ∆ preemptively brought up his own prior conviction, he could not claim error on appeal

Question 5

104(a) standard

Answer 5

judge decides whether the fact is more likely than not (preponderance of the evidence)

Question 6

104(b) standard

Answer 6

whether a reasonable juror could believe the fact exists

Question 7

Huddleston v. United States

Answer 7

court simply examines evidence in a case and decides whether a jury could reasonably find the conditional fact by a preponderance of the evidence (fact exists more likely than not)

Question 8

test for relevance

Answer 8

evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action

Question 9

probative evidence

Answer 9

1) assuming that the issue the evidence is offered to prove is material, is the evidence logically probative of that issue?
2) does the evidence tend to prove that issue?
3) does the evidence tend to make the material proposition more likely true or untrue than it would without the evidence?

Question 10

order of proof

Answer 10

1) π presents case and all evidence first, rests
2) ∆ presents case in chief and affirmative defenses
3) π may rebut
4) ∆ may rebut

Question 11

scope of CX and DX

Answer 11

scope of CX should not go beyond subject matter in DX
re-DX may only respond to issues raised on Re-CX
re-CX may only respond to issues raised on Re-DX
on CX, you may only ask witness about things they said on DX and questions about credibility/bias

Question 12

direct evidence

Answer 12

evidence that directly proves a fact without inference or presumption, which in itself, if true, conclusively proves that fact

Question 13

burden of production analysis

Answer 13

1) what evidence did the π offer for each element?
2) could a reasonable juror find for the π for each of the elements? if so, π met burden of production
3) when ∆ offers a defense, did ∆ meet the same burden of production? if not, π can move for JMOL on that defense

Question 14

In re Winship

Answer 14

proving a ∆’s guilt must be done so by a reasonable doubt; also applies to juveniles

Question 15

permissive inference

Answer 15

does not require jury instruction

Question 16

conclusive presumption

Answer 16

cannot be rebutted by contrary evidence
ex: some states hold that a child under a certain age cannot commit a crime

Question 17

what happens if presumptions conflict?

Answer 17

the judge shall apply the presumption that is founded on the better considerations of policy or logic

Question 18

adjudicative fact

Answer 18

a fact in dispute; bring in expert or credible source
the court shall take notice of adjudicative facts if requested by a party and supplied w/ necessary info; trial court then weighs sufficiency of the data by determining whether the fact put fort for judicial notice is one not subject to reasonable dispute

Question 19

301 Presumptions in civil cases

Answer 19

party against whom a presumption is directed has burden of producing evidence/going forward to rebut that presumption

Question 20

presumption analysis

Answer 20

1) is there a basic fact and a presumed fact?
2) is there a rational connection bw the basic fact and presumed fact? (rational connection= more likely than not)
3) if presumed fact rationally streams from basic fact, then instruct the jury that if they find the basic fact, then they may find for the presumed fact.

Question 21

presumptions in criminal cases

Answer 21

DO NOT APPLY 301; only presumptions in a criminal case are permissive inferences and if the presumed fact establishes guilt, is an element of the offense, or negates a defense, its existence must be proved beyond a reasonable doubt

Question 22

County Court of Ulster County v. Allen

Answer 22

the fact that the jury was permitted to rely on a permissive presumption does not violate DP as long as there is a rational connection bw the presumption and evidence presented

Question 23

403 standard

Answer 23

evidence can be excluded if its probative value is substantially outweighed by danger of unfair prejudice…

Question 24

Old Chief v. United States

Answer 24

full nature/extent of ∆’s conviction not admissible when statute just requires a prior conviction. the probative value of the full nature/extent of conviction is substantially outweighed by unfair prejudice

Question 25

404(a) general character evidence rule

Answer 25

character evidence is not admissible to show someone acted in conformity w/ his character (personality or behavior trait)

Question 26

404(a)(1) character of the accused

Answer 26

∆ in criminal case can introduce favorable character evidence about himself prosecutor can offer character evidence about ∆ if ∆ offers character evidence about the victim

Question 27

404(b) prior wrongs and acts

Answer 27

prior acts can be offered if relevant to prove something other than character such as specialized knowledge or modus operandi

Question 28

404(a)(2) character of the victim

Answer 28

-∆ in a criminal case can offer evidence of a pertinent trait of the alleged victim (common in self-defense) -prosecutor can offer rebuttal character evidence about the victim if ∆ offers evidence about the character of the victim -in homicide case, prosecution can offer character evidence about victim if ∆ offers evidence that the victim was the aggressor even if ∆ does not offer character evidence about the victim

Question 29

405(a) DX

Answer 29

when character evidence is admissible, reputation or opinion evidence may be used to prove character. on DX these are only ways to prove character (specific instances of conduct are inadmissible on DX)

Question 30

405(a) CX

Answer 30

after a character witness testifies on DX, the other side may CX the character witness about specific instances of conduct. Questions may be about the person about whom the witness testified or the witness herself

Question 31

412(a) general rule

Answer 31

evidence of past sexual behavior or sexual predisposition of the victim is inadmissible

Question 32

412(b) exceptions to sexual predisposition rule

Answer 32

412(b)(1)(A) evidence of past sexual conduct of victim is admissible to show physical evidence came from sex with someone else 412(b)(1)(B) evidence of past sex w/ accused is admissible to show consent 412(b)(1)(C) evidence of past sexual behavior of victim is admissible if constitutionally required (victim is lying about having sex w/ ∆ bc she doesn't want to upset living situation)

Question 33

406 general rule

Answer 33

past conduct can be introduced to show someone acted in the same way as he has in the past if the past conduct was so routine it amounted to a habit; this prior conduct is not viewed as character evidence - also covers routine practices of businesses

Question 34

608(a) DX

Answer 34

credibility of a witness may be attacked by opinion or reputation evidence. if the character of the witness for truthfulness is attacked, the other side can offer character evidence of truthfulness

Question 35

608(b) CX

Answer 35

the character of a witness for truthfulness may be attacked on CX by asking questions about specific instances of conduct by the witness

Question 36

Extrinsic Evidence Rule 608

Answer 36

EE cannot be offered to prove specific instances of conduct of the witness in order to show the witness has a character for untruthfulness (exception for criminal convictions); only applies to Qs about truthfulness/untruthfulness, not Qs about facts or bias

Question 37

608(b) addresses the admissibility of specific instances of conduct as opposed to opinion/reputation only in the narrow instance where:

Answer 37

1) purpose of the evidence is to impeach or enhance the witness's credibility by proving the witness's conduct indicates his character for truthfulness/untruthfulness 2) the conduct in Q is actually probative of truthfulness or untruthfulness and is not too remote in time 3) the conduct in Q did not result in a conviction 4) the inquiry into the conduct takes place during CX

Question 38

609 General rule

Answer 38

under some circumstances, the character for truthfulness of witnesses can be attacked by proving the witness has been convicted of a crime

Question 39

609(a)(1)(A) Witnesses other than the accused

Answer 39

a witness other than the accused in a criminal case can be impeached with evidence that he committed a felony subject to 403

Question 40

609(a)(1)(B) The accused as witness

Answer 40

if the accused in a criminal case is the witness, he can be impeached by prior felony conviction only if the probative value for untruthfulness outweighs the prejudicial effect

Question 41

609(a)(2) All witnesses

Answer 41

prior conviction admissible if proving the elements of the crime require proving dishonesty or a false statement

Question 42

Harris v. New York

Answer 42

statements made by a suspect who didn't receive Miranda warnings may still be used against him as impeachment by inconsistent statement

Question 43

Doyle v. Ohio

Answer 43

prosecution's use of a ∆'s post-Miranda silence violates DP

Question 44

Fletcher v. Weir

Answer 44

DP not denied when prosecution uses ∆'s silence when Miranda warnings were not read

Question 45

Authentication

Answer 45

1) witness needs personal knowledge 2) is the evidence sufficient for a reasonable juror to believe the evidence is what the witness purports it to be?

Question 46

601 Competence

Answer 46

presumption that everyone is competent to be a witness

Question 47

602 Personal Knowledge

Answer 47

prohibits a witness from testifying about matters not within their personal knowledge, witness may not testify about events which she did not personally observe basis of knowledge should be at time of trial

Question 48

701 opinion testimony

Answer 48

generally, witnesses are to state facts and not give inferences/opinions unless the facts need to be presented by giving the inferences and conclusions so their proper force will be understood by the jury requires a balancing of raw observations and inferences

Question 49

Daubert and factors

Answer 49

- an expert's scientific knowledge does not have to be generally accepted factors 1) can it be/has it been tested? 2)has the theory/technique been subject to peer review and publication? 3) potential rate of error? 4) general or widespread acceptance?

Question 50

Kumho Tire Co. v. Carmichael

Answer 50

Daubert factors apply to all expert testimony not just scientific, but all technical and other specialized testimony

Question 51

611 Scope of CX

Answer 51

1) within scope of DX 2) matters affecting the witness's credibility 3)as if on DX (may not ask leading Qs); allows opposing counsel to Q adverse witness as their own

Question 52

801(d)(1)(A) Out of court declarant present

Answer 52

- consistent out of court statement made by witness is admissible to rebut charge of fabrication or improper motive, but only if the statement was made before the motive to lie arose

Question 53

804(b)(1) out of court declarant not present

Answer 53

-not present but was CX-ed or someone had opportunity to CX -GJ testimony not applicable -if motive to CX is the same as it was at pre-trial and in trial the statements are admissible even though counsel didn't CX

Question 54

801(d)(1)(B) motive to lie

Answer 54

1) when did motive to lie arise? 2) when was the statement made? a prior consistent statement in response to a charge with a motive to lie can be brought in before the motive to lie arose

Question 55

801(d)(2)(E) Coconspirator exception

Answer 55

1) must show a conspiracy 2) conspiracy is ongoing 3) statement was made by a coconspirator 4) statement must be made in furtherance of the conspiracy (help carry out the goals of the conspiracy)

Question 56

Crawford Doctrine

Answer 56

if ∆ had no opportunity to CX a witness before/during trial--> testimonial evidence cannot be admitted

Question 57

Forfeiture by Wrongdoing

Answer 57

if ∆ does something to prevent the witness from testifying, he loses confrontation right. Even if statements are testimonial, those out of court statements by victim/witness may still be admitted if ∆ more likely than not silenced/caused the witness's absence

Question 58

confidential husband-wife privilege

Answer 58

presumption of confidential communication if married at time of communication; a spouse doesn't have to testify against the other unless: joint participant in crime or spouse threatens the other

Question 59

testimonial privilege

Answer 59

must be married at time of trial

Question 60

Trammel v. United States

Answer 60

a spouse may voluntarily testify against spouse if she chooses

Question 61

Upjohn Co v. United States

Answer 61

in corporations, attorney client privilege applies to all employees, even lower level ones who provide factual information to attorneys so attorneys can provide sound legal advice

Question 62

Jaffee v. Redmond

Answer 62

patient-psychotherapist privilege

Question 63

Nixon v. United States

Answer 63

Executive privilege is a qualified privilege, must state the specific basis for privileged information; if something is relevant in a criminal investigation, it will not be privileged