Evidence Flashcards
1
Q
what can prior testimony of a witness be used for
A
Impeachment AND substantive evidence
2
Q
Can judgement from a criminal case be introduced as evidence in a subsequent civil trial?
A
No b/c inadmissible hearsay
3
Q
Is a dog alerting to a package admissible as evidence
A
Yes, as substantive evidence that package has illegal drugs
4
Q
What forms of a evidence can a defendant use to show evidence of his good character?
A
Reputation or opinion
5
Q
For preliminary issues about admissibility of experts or their qualifications do hearsay rules apply?
A
No
6
Q
When can felony convictions come in
A
Only if the probative value outweighs the prejudicial effect
But if the felony is about a false statement or dishonestly, it can always be admitted
7
Q
Non hearsay uses for out of court statements
A
To prove a verbal act, contract, threat
To show effect on recipient
To prove state of mind
Evidence of identity
to Impeach/rehabilitate
8
Q
When are specific instances of conduct admissible. (I.e. prior bad acts)
A
On cross examination
and for NON- propensity purposes = MIMIC
Motive, intent, absence of mistake, identity, common plan
9
Q
when do you not need to produced the original
A
The original is lost/destroyed and not by proponent in bad faith
The original can’t be obtained
10
Q
3 ways tangible evidence like a murder weapon can be admitted
A
personal knowledge, testimony of distinctive markings, chain of custody
11
Q
what is the requirement for evidence to be relevant
A
If it has any tendency to make a fact more or less probable
12
Q
When may work product be subject to discovery
A
if the party seeking it demonstrates
1) substantial need
2) can’t get info by any other means without significant hardship
13
Q
When is character evidence admissible in civil cases
A
If character is at issue- i.e child custody, negligent entrustment, defamation.
Than can be proved with R, O, SI
14
Q
what is the excited utterance hearsay exception
A
A statement made about a startling even while under stress or excitement of event can be admitted
15
Q
What is the present sense impression hearsay exception
A
A DESCRIPTION of an event immediately when happening or immediately after can be admitted
16
Q
What std of proof applies to the AUTHENTICATION of tangible evidence
A
Just sufficient evidence to support the finding that it is what they say it is
17
Q
Three requirements to admit a record under the business records hearsay exception
A
- record kept in course of regular business
- making of record was regular practice
- record made at or near time by someone with knowledge
18
Q
2 questions to ask of expert witness testimony
A
- is subject matter scientific, technical or specialized knowledge
- will it help trier of fact understand evidence or determine a fact in issue?
19
Q
Confrontation clause requirements for out of court statements to be admitted
A
- Declarant is unavailable
- defendant must have had prior opportunity to cross examine declarant
20
Q
how can evidence of prior conviction come in
A
admission of witness on direct or cross or with extrinsic evidence
21
Q
2 requirements that must be met for conviction to be used to impeach if conviction is > 10 yrs old
A
- probative value substantially outweighs prejudicial effect
- gave other party reasonable written notice of intent to use evidence
22
Q
categories of witnesses that CAN NOT BE EXCLUDED from courtroom
A
a party
person’s whose presence is essential to party’s presentation of case
victims
23
Q
Hearsay exceptions that only apply when DECLARANT IS UNAVAILABLE
A
Former testimony
dying declaration
statement against interest
24
Q
when can the prosecution offer evidence of a victim’s good character in a criminal case?
A
- when D has introduced evidence of V’s bad character
- to provide evidence victim is peaceful in homicide case to rebut evidence victim was first aggressor
25
Plain error rule
Error that is obvious to reviewing court, if it affects a substantive right, it is grounds for reversal even if no objection is made
26
Do FRE rules of evidence apply to grand jury proceedings? or bail hearings?
NO
27
4 requirements for recorded recollection hearsay exception?
1. record is on a matter the w once knew about
2. witness made record when matter was fresh in mind
3. Record accurately reflects witness's knowledge
4. witness states she can't recall well enough to testify even after consulting the record on the stand.
28
In a CIVIL case, if the court tells the jury to take judicial notice of something the jury ___ accept the fact as proven
MUST
29
In a criminal case, if the ct tells the jury to take judicial notice of something, the jury ___ accept the fact as proven
MAY
30
How do you refresh a witness's reocllection
Show them a document or report, witness looks at document, remembers, puts document aside and then testifies
31
When you are refreshing a witness's recollection does the document become evidence?
NO. and the witness can't read from it
32
what is the burden of production
A party must produce enough evidence to get the issue to the jury
33
What is the burden of persuasion
a party must convince the jury to decide the case in its favor
34
is the standard in civil cases
preponderance of evidence
35
What does a rebuttable presumption do
Shifts the burden of production on a particular issue
36
If info is ___ it is admissible unless excluded by a particular rule
relevant
37
define relevance
Makes a fact in issue more likely than it would be without the evidence.
38
when can relevant evidence be excluded
If the probative value is substantially outweighed by the risk of unfair prejudice, misleading the jury, confusion of the issues or waste of time
39
What is the general rule about character evidence
you are not allowed to use character evidence to show action in conformity with a particular character trait b/c too prejudicial
40
when character evidence is admissible, what type of evidence can be used
Only reputation and opinion
41
What type of cases is character evidence allowed
Only when character is an issue- in civil cases like child custody, negligent entrustment
42
Can prior bad acts of sexual assault or child molestation be introduced
Yes
43
In criminal cases when can the defendant introduce character evidence
1. to show his good character (R & O)
2. in homicide or assault cases- to show V's bad character (violence)
44
what are the only two types of evidence that a defendant can use to show he is honest or peaceful or a good person
Reputation and opinion
45
If the D presents evidence he is an honest/peaceful/good person, what can the Prosecution do?
Rebut the D's claims by attacking the D's character- can cross examine witnesses and ask about specific acts from the past
46
In a homicide case, if the D is claiming the victim was violent, what can the prosecution do?
introduce evidence that the victim was not violent but only with reputation and opinion evidence
AND show that the Defendant is VIOLENT
47
What are the situations where a defendant's prior crimes or bad acts can be introduces NOT FOR PROPENSITY BUT FOR THESE OTHER PURPOSES
MIMIC
Motive
Intent
Absence of Mistake
Identity
Common Plan/scheme
48
Can habit evidence of an organization be admitted
Yes
49
3 ways to impeach a witness
1. bad character for truthfulness
2. bias (including taking plea deal)
3. sensory competence
50
How can a witness's character for truthfulness or untruthfulness be attacked
1. character witnesses saying he is dishonest- thru R & O
2. in cross examination - thru specific incidents
3. any misdemeanor or felony involving false statements/dishonesty
4. felony convictions <10 yrs old unless too prejudicial
51
When can you impeach with a crime >10 yrs old
only if the probative value of the conviction substantially outweighs its prejudicial effect
and the opposition was given advance notice
52
If the person was pardoned can the conviction be used to impeach?
NO
53
Can you use prior inconsistent statements to impeach
Yes- can be provide with extrinsic evidence
but only if witness is given opportunity to explain
DECLARANT MUST BE TESTIFYING AT TRIAL
54
Ways to rehab a witness
1. give witness chance to explain
2. use prior consistent statements
3. bolster character with R & O evidence of truthfulness
55
Can an expert testify about a witness's credibility
No
56
What is the daubert test?
to qualify an expert witness
1. expert must be qualified by knowledge, skill, experience, training or education
2. expert must base his testimony on sufficient facts or data
3. expert must use reliable principles and methods
4. expert must apply the principles and methods reliably to the facts of the case
57
Can experts express an opinion on the ultimate issue in cases
Yes
58
Can experts testify as to whether the defendant had the mens rea for any element of the crime
No
59
What is allowed as a basis for experts opinion
personal observation, evidence presented at trial, info reasonably relied on by other experts in that field and may include facts otherwise inadmissible at trial
60
ways to authenticate tangible evidence
1. personal knowledge
2. distinctive markings
3. chain of evidence
61
what is the best evidence rule
No describing the document unless you really need to if the contents of the document are in question
62
attorney client priviledge
protects confidential communication b/ client and lawyer if the communication was for the purpose of securing legal advice.
Neither the lawyer nor the client can be forced to testify
63
Will an UNKNOWN secret eavesdropper destroy attorney client priviledge
No
64
Are underlying facts or evidence protected by attorney client priviledge
NO
65
for corporations in federal court, who does the attorney client privilege protect
any communications made by an employee about matters within the scope of employment for purposes of seeking legal advice.
Fed its use "nature of communication /subject matter" test
66
What is the work product doctrine
documents prepared by a LAWYER in anticipation of litigation are protected
67
When can the opposing party get some types of work product
1. if the party can demonstrate a substantial need for the info AND
2. if they show it can't otherwise be obtained without undue hardship
68
Is physician patient priviledge protected under FRE
NO. but recognized by many states so watch for it in a conflict of law question. Just be for purpose of obtaining medical treatment
69
When does therapist patient priviledge not apply
for a court ordered exam or part of commitment hearing
70
Does the 5th am right against self incrimination apply to corportations
NO
71
does the 5th am right against self incrimination apply to blood samples, voice samples, breathalyzer
No
72
What does the confidential marital communication priviledge protect
communications made between spouses in confidence when married
Survives after marriage
Held by both spouses
73
What does the spousal immunity privilege protect
One spouse can refuse to testify against the other in a CRIMINAL trial.
Must be currently married
Covers testimony about anything- before or during marriage
74
When do the spousal privileges NOT apply
When one spouse is suing the other OR when one spouse is charged with a crime against the other
75
can subsequent remedial measures be offered into evidence to prove negligence
No
but they can be used to prove ownership, control
76
is a settlement offer admissible to prove liability
NO but it can be admissible to prove bias.
77
Can offers to pay medical expenses be admitted to prove liability
NO but statements or conduct accompanying the offer may be admissible
78
are plea negotiations admissible
NO. Nothing said in plea process is admissible
79
when is evidence of a victim's past sexual conduct admissible
In a CRIMINAL case, only to show defendant is not source of sexual evidence or to show victim's past sexual conduct to prove consent
80
what is hearsay
An out of court statement offered to prove the truth of the matter asserted. I.e when the defendant is acting like a witness
81
Common NON hearsay uses of out of court statements
verbal act
effect on listener
state of mind
prior statements (if made under oath and declarant is at trial)
party admissions
82
What is the requirement to use a prior inconsistent statement as evidence
If it was UNDER oath at a hearing, trial or deposition- it is admissible as substantive evidence
It is always admissible to impeach.
BUT WITNESS must TESTIFY AND BE SUBJECT TO CROSS EX.
83
How can prior consistent statements be used
AS SUBSTANTIVE EVIDENCE AND TO REHAB a witness
84
How can prior statements of identification be admitted
DECLARANT MUST TESTIFY as a witness and be subject to cross x
85
What is an admission of a party opponent
ANYTHING THE OPPOSING PARTY SAID can be used against them.
Also stuff they adopted as their own or vicarious statements thru their employees or agents
86
can statements made by co-conspirators be admitted
Yes if made in furtherance of the conspiracy
87
If the declarant is UNAVAILABLE, what hearsay exceptions can be used
1. former testimony under oath
2. dying declarations- must believe you are dying, statement about cause of death. Only in homicide or civil case, don't have to die
3. statement against interest- $ interest, civil, penal interest
88
What is the present sense hearsay exception?
statement made while the person was perceiving the event and statement DESCRIBES OR EXPLAINS THE EVENT
89
what is the excited utterance hearsay exception
Statement made relating to startling event while person is still under stress of event
90
What is the state of mind hearsay exception
statement of person's then existing mental, physical, emotional condition- including intent.
Statements like "she said I hate my boss". I intend to kill her. I am in pain.
91
what is past recollection recorded hearsay exception
if witness can't remember to testify about something, witness can read the record to jury if the it is something the witness HAD knowledge of, it was prepared by the witness at the time, it accurately reflects witness's knowledge and witness has insufficient memory to testify fully even after consulting writing on the stand
92
Can police reports be introduced into evidence under public record hearsay exception
NO. b/c the police officer must show up and be cross examined about what happened
93
How can learned treatises be used
To impeach expert witness and as substantive evidence (actual proof)
94
What does the confrontation clause/6th amendment require
1. criminal d's have a right to be confronted with their witnesses against them
2. testimonial statements can only be admitted a/ criminal D if the person is now unavailable and D had prior opportunity to cross examine them.
Statements made to get help are NOT testimonial - i.e 911 calls, statements to police
95
how can habit evidence be used
To prove action in conformity with habit
96
Can bias be used to exclude witness testimony
No, just as a way to impeach
97
Is an affidavit admissible under the former testimony exception?
No bc the other party had no opportunity to cross examine
98
For the marital communication privilege- if one spouse says something to another while married, can the defendant spouse prevent the wife from testifying
Yes
99
If business records are prepared ONLY in anticipation of litigation can they be admitted under the business record hearsay exception
No
100
For a statement for diagnosis or treatment exception to hearsay, if it says "Dan stabbed me" what part is admissible
The stabbed part is admissible b/c it is made for diagnosis or treatment but the WHO stabbed you part is NOT
101
When is extrinsic evidence admissible to impeach a witness
Only if the impeached witness is given the opportunity to explain/deny it and the party can cross examinee the witness about it
102
is a summary of non-expert/lay witness testimony required to be given to other party
NO
103
when a hearsay declarant is at trial, can they be impeached with evidence that the declarant's statement was motivated by bias
Yes- they are treated like the declarant
104
Can evidence of witness's prior acts of untruthfulness be introduced with extrinsic evidence?
No- only thru their testimony
105
Can felony crime convictions involving dishonestly be introduced thru extrinsic evidence
Yes, or by their testimony
106
if one party uses a writing to refresh recollection for testimony can the other party introduce parts of that writing into evidence to impeach
YES
107
do you need to give the other party advance notice that you are introducing notarized documents
NO
108
Can you enter past CIVIL judgements to prove an issue`
NO
109
Can you enter past criminal judgments to prove and issue
Yes
110
Can a treatise be admitted into evidence
No but sections can be read into evidence
111
Can you use a handwriting expert to determine if handwriting is authentic
Yes
112
Can a trial judge consider hearsay when deciding questions of admissibility of other evidence
Yes
113
What does the inadvertent disclosure doctrine cover
STuff protected by WORK PRODUCT doctrine
114
In a motion for summary judgement, can a judge consider an affidavit and if so, under what conditions
Yes, can consider affidavit but it must be admissible under rules of evidence
115
To use a conviction of a past crime to impeach when the crime does not involve fraud or dishonesty what must the crime involve
crime must be punishable by death or imprisonment > 1 year. I.e a felony.
116
Can you enter a non-testifying co-defendant's confession into evidence against other conspirator?
No b/c violates confrontation clause- only would be ok if he testifies
117
For identification of phone calls, is self-identification by the caller sufficient?
NO.
Good way of authenticating a phone call is when the speaker has knowledge of certain facts only a particular person would have
118
Can voice recordings made while event is happening be played for jury?
Yes- as present sense impression and recorded recollection
119
exceptions to A-c priviledge
statements made to enable commission of crime/fraud
statements relevant to dispute between attorney and client
statements made between former co-clients who are now adverse
120
IN a criminal trial, who qualifies as a party opponent for "statement of party opponent" exception
Only the defendant- bc criminal trials are 'the state v mr. xyz' - the victim is NOT a party
121
dying declarations can only be used in...
Civil cases and homicide cases
122
Does there need to be a separate hearing before allowing a demonstration or experiment in court
NO
123
How to start an evidence essay, is the evidence relevant
Evidence is ADMISSIBLE if it is relevant. It is relevant if it makes any fact more or less probable and it is material to the question at hand
124
Public safety exception to the miranda requirement
Police can question a potential suspect about weapons they have if the public's safety is at risk- without violating miranda
125
How can past recollections recorded (the actual recording or writing) be used at trial
It can be read by the witness to the jury but not admitted as an exhibit into evidence
126
If electronic evidence is not preserved but should have been..
If the party intentionally didn't preserve it--> ct can presume ESI was unfavorable and instruct jury or dismiss action/enter default
If party did not intentionally deprive---> ct may order measure no greater than necessary to cure prejudice
127
standard for authenticating evidence
sufficiency to prove that is what they said it is
128
to forfeit a hearsay or confrontation clause objection
defendant must have CAUSED declarant's unavailability with the intent to make they unavailable to testify
129
When is the only time you can introduce prior CONSISTENT statements
after your credibility has been attacked or you are trying to rebut charge of lying
130
hospital patient records- what hearsay exception
business record exception
131
if valid federal law addresses the issue (like FRCP rule) then apply what-
- ie appeals timeline is procedural or substantive
Federal rule
Appeals timeline is procedural
132
Does a government informant's identity need to be revealed?
No, the govt informant privilege protects the govt from being compelled to disclose the identity of informants.
The priviledge does not apply if the defense can show the identity of informant is critical to the establishment of a defense or essential to a fair determination of the case
133
under 6th amendment, must have ___ verdict to convict and --- jurors
unanimous and 6 in state ct or 12 in fed
134
Family records excluded from hearsay- examples
family bible, genealogy, family chart... once authenticated, it can be used as substantive evidence to prove truth of matter
135
Can you impeach a witness with MISDEAMEAnors or felony convictions involving a false statement
Yes- either
136
Does Habit evidence need to be cooberated
NO
137
If the plaintiff or defendant makes an out of court statement that is being used against them, is it admissible
YES- as party admission, NON hearsay
138
How is statement against interest diff from party admission
Statement against interest is made by a DECLARANT WHO IS NOT AVAILABLE at trial who said something against their interest and must have known it was against their interest when they said it.
Party admission is made by a party to the lawsuit, available at trial... and can be ANYTHING they said not necessarily something against interest.
Note- statement against interest is rarely the correct answer
139
A woman sued her sister for injuries from car crash in sister's car. The woman wants to testify that after accident, sister said to her "I shouldn't have been looking at my phone when driving"
Is it admissible?
Yes, b/c non hearsay (party admission/statement by party opponent)
LOOK at who made the statement and see if they are the opposite party in the lawsuit
140
elements of dying declaration (4)
1- person thought he was dying
2- statement is about cause of his death
3- person is unavailable to testify
4- evidence used in HOMICIDE Or CIVIL CASE
141
A prior inconsistent statement can always be used to impeach a witness, when can it also be used as substantive evidence
If it was made under oath at a trial, hearing or deposition,
and if the declarant is testifying at trial and subject to cross-x about ht statement
i.e the witness is CURRENTLY UNDER OATH AND HIS PRIOR STATEMENT WAS UNDER OATH
142
Difference between when character evidence is available for use in civil vs criminal cases
For civil cases= only for negligent entrustment, defamation and child custody cases. When character is at issue. Can us R, O and SI
For criminal cases, D MUST OPEN THE DOOR AND TALK ABOUT HIS CHARACTER OR CHARACTER OF VICTIM FIRST !!! and can use R and O. Prosecutor can then use R, O and SI
143
Prior sexual misconduct of a VICTIM- in a civil case
Not usable unless probative value SUBSTANTIALLY OUTWEIGHS the danger of harm or unfair prejudice
144
Can a person authenticate a voice even if if they acquired familiarity with the voice solely for the purpose of litigation
Yes
145
To authenticate a photograph, do you need the person who took the picture
No- anyone who has personal knowledge of the scene can authenticate it.
146
ONLY USE MIMIC WHEN?
you want to enter a past bad act into evidence
147
which hearsay exception allows out of court statements in that describes an emergency as it is occurring
Present SENSE IMPRESSION
148
list hearsay exceptions
excited utterance, present sense impression, statement for the purpose of med diagnosis or treatment, business records, recollection recorded, statement against interest (declarant must be unavailable), dying declaration (declarant must be unavailable)
149
list hearsay exclusions- not hearsay
prior statement of identification, opposition party's statement/admission
150
7 ways to impeach a witnesscw
1. prior inconsistent statements
2. bias
3. conviction of crime
4. acts probative of truthfulness
5. reputation or opinion for untruthfulness
6. sensory deficiencies
8. contradiction
151
can investigating officer remain in courtroom
yes
152
if evidence meets a hearsay exception, can it be used as substantive evidence
YES. (and of course to impeach also)
153
in a CIVIL action for battery is character evidence admissible?
NO. double check that it is a CIVIL action though- defamation, child custody, negligent entrustment, negligent hiring- only those cases can you admit character evidence through R, O and SPECIFIC ACTS!!!!
154
is taking cheek swab ok for arrestees for routine booking
yes
155
genealogy chart admissible as?
substantive evidence NOT recorded recollection
156
statements made during settlement negotiations can't be used at trial but they can be used to show
Bias or prejudice
157
how to start any evidence essay
All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence (probative) and the fact is of consequence in determining the action (material). Then show how each piece of contested evidence is relevant but still is or isn't admissible b/c of whatever
158
if a compromise offer/settlement offer is made months before the plaintiff files a complaint, is it admissible
Yes because it was made before any disputed claim so it does not fall under compromise/settlement offer rule
159
in a criminal case, a jury instruction that shifts the burden of disproving an element to the defendant is what
Not allowed
160
Does business record exception apply to illegal activity records
Yes- i.e ledger of drug sales. And anyone with person knowledge can vouch for the business record- i.e lay foundation
161
Can a trial court judge determine which witness testifies first
Yes- broad discretion over order of witnesses
162
Do the rules of evidence apply to grand jury proceedings
NO
163
situations where the rules of evidence DO NOT apply
- grand jury proceedings
- warrant/arrest/search warrant determinations
-parole hearings
-probation revocation hearings
-bail hearings
-extradition hearings
-prelims in Crim cases
164
can statements made in civil case negotiations between private parties be later used as substantive evidence in criminal trial
No but they can be used to prove bias OR if they were made between one party and a govt agency they can be used in later criminal trial
165
Can report by fire Marshall be admitted as public record
Yes, but watch for hearsay comments within the report
166
immunity against civil suits against prosecutors
A prosecutor is absolutely immune from civil liability for damages resulting from his prosecutorial acts unless it is clear that the prosecutor did not have jurisdiction. Can act with malice, that's ok. Can present false testimony, that's ok
Can be sued for damages for actions outside the prosecutor's role
167
are arson reports testimonial for the purpose of confrontation clause
Yes because it is the functional equivalent of what an arson investigator would provide at trial as testimony. And if the creator of arson report is not available to be cross examined, it can not be admitted... even if other expert arson investigator is available.
168
arson reports- against criminal defendants
Can only be entered into evidence by the plaintiff NOT by the government against a criminal defendant. Public record and businesss record exception can not be used by the prosecution
169
if someone is sworn and certified as an expert, can they then be subject to cross ex about their qualifications as an expert
yes
170
can prior acts of child molestation be admissible even if they weren't convicted or formally charged
Yes if the misconduct is proven by a preponderance of the evidence
171
Do evidence rules apply to pretrial motion hearings
No
172
does a prior statement for a witness have to be in writing
NO
173
prior acts of sexual assault or sexual molestation can be used for what
To show propensity to commit charged sexual assault
174
