Evidence Flashcards
(100 cards)
1
Q
What are the types of specialized relevance?
A
1) Subsequent Remedial Measures
2) Offers of Compromise
3) Payment of Medical Expenses
4) Criminal Plea Discussions
5) Liability Insurance
2
Q
What purposes are prohibited in subsequent remedial measures?
A
1) Negligence
2) Culpable conduct
3) Defects in product or design
4) Need for warning or instruction
3
Q
What purposes are permitted in subsequent remedial measures?
A
1) Impeachment
OR IF DISPUTED
2) Ownership
3) Control
4) Feasibility of precautionary measures
4
Q
What are important distinctions of subsequent remedial measures?
A
Does NOT apply to PAST remedial measures (comes in only if disputed) = admissible
Third-party remedial measures = admissible
5
Q
What purposes are prohibited in offers of compromise?
A
1) Compromise or attempt to compromise a disputed claim
2) Conduct or statements in negotiations to prove or disprove the validity or amount of disputed claim
6
Q
What purposes are permitted for offers of compromise?
A
1) Criminal cases if a party to the negotiations was a governmental unit
2) Proving witness bias
3) Lack of undue delay
4) Efforts to obstruct criminal investigation
7
Q
What are important distinctions of offers of compromise?
A
ONLY applies if the conduct or statements occurred during the actual compromise negotiations/settlements & ONLY if disputed
8
Q
What purposes are prohibited for payment of medical expenses?
A
Offer of payment for medical expenses to prove liability
9
Q
What purposes are permitted for payment of medical expenses?
A
Statements made surrounding the offer or payment
10
Q
What is an important distinction of payment of medical expenses?
A
Do NOT have to be in dispute
11
Q
What is purpose are prohibited for criminal plea discussions?
A
1) Guilty plea later withdrawn
2) Nolo contendere plea
3) Statements in plea proceedings
4) Statements in plea proceedings with the prosecutor or agent
12
Q
What purposes are permitted for criminal plea discussion?
A
1) To complete a partial account of plea discussions
2) In a perjury prosecution if a statement is under oath, on record, and in the counsel’s presence
13
Q
What purposes are prohibited in liability insurance?
A
1) To prove whether a person acted negligently
2) To prove whether a person acted wrongfully
14
Q
What purposes are permitted for liability insurance?
A
1) Witness’s bias or prejudice
2) Agency
3) Ownership
4) Control
15
Q
What purposes are prohibited in character evidence?
A
A person’s character or character trait to prove that person acted in accordance
16
Q
What purposes are prohibited to show prior bad acts in character evidence?
A
Another crime, wrong, or act is to show on a particular occasion the person acted in accordance with the character
17
Q
What purposes are permitted for prior bad acts in character evidence?
A
Motive
Intent
Mistake
Identity
Common scheme or plan
+ knowledge, preparation, plan, opportunity
18
Q
What is an important distinction of prior bad acts?
A
+Modus operandi = signature crime if IDENTITY is at issue
19
Q
What purposes are permitted for proof of defendant’s or victim’s character?
A
1) Pertinent character of criminal defendant offered by accused
2) Pertinent character of the victim offered by the defendant
3) Peaceful character of homicide victim offered by prosecutor to rebut
4) Character of a witness
20
Q
What is an important distinction of character evidence of proof of a defendant’s or victim’s character?
A
Only allowed if the defendant “opens the door” i.e. allowing positive character witness OR testifying in their defense
Only allowed in criminal cases
21
Q
What are permitted methods of proving character?
A
1) Opinion or reputation evidence
2) Element of claim or defense can explicitly involve someone’s character (negligence/defamation/fraud)
3) Relevant specific instances on cross-examination
22
Q
When is evidence of habit permitted and prohibited?
A
Permitted - person’s habit or organization’s routine to prove that acted in accordance
Prohibited - if used as an inference about a person’s character
23
Q
When is a victim’s sexual behavior or predisposition permitted?
A
1) To prove a source of semen or injury
2) Proof of prior sexual behavior with the accused (consent)
3) When constitutionally required
24
Q
When is a victim’s sexual behavior or predisposition prohibited?
A
1) Prove the victim engaged in other sexual behavior
2) Prove a victim’s sexual predisposition
25
When is reputation evidence admissible to show a victim's sexual behavior or predisposition?
Civil cases - reputation admissible if a victim has put it in controversy
26
What are the exceptions to the character evidence rule
Similar Crimes in Sexual Assault and Child Molestation (criminal & civil)
27
When is reputation or opinion evidence for impeachment permitted for character for untruthfulness?
Opinion or reputation evidence for truthfulness or untruthfulness but only if the witness’s character has been attacked
28
When is specific instances of conduct for impeachment prohibited?
Extrinsic evidence (any source outside of testimony) of specific instances of conduct in order to attach or support the witness’s character for truthfulness
29
What are specific instances of conduct permitted for impeachment purposes?
On cross-examination any party can offer evidence of specific instance of conduct probative character for untruthfulness & stuck with answer on cross-examination
30
When are prior convictions prohibited for impeachment purposes?
1) 10 year ban from date of release (release of incarceration)
2) Pardon / annulment
3) Juvenile adjudication
4) Theft crimes
31
When are prior convictions permitted for impeachment purposes?
1) Felonies (punishable by more than 1 year incarceration)
2) Crimes of dishonesty within 10 years (perjury, criminal fraud, embezzlement, forgery, counterfeiting)
32
What are the balancing tests applicable for prior convictions for impeachment purposes?
1) Witness is NOT defendant = 403 - unfair prejudice substantially outweighs probative value – may be excluded
2) Criminal defendant AS witness = probative value outweighs unfair prejudice - must be admitted
3) Any witness - Crime older than ten years = probative value substantially outweighs unfair prejudice – must be admitted
4) Crimes of dishonesty within 10 years - no balancing test = automatically comes in
33
What are the four basic categories of hearsay exceptions/exclusions?
801(d)(1): Past Statement of a Testifying Witness
801(d)(2): Opposing Parties’ Statements
803: Exceptions applicable regardless of the declarant’s availability
804: Exceptions applicable only if the declarant is unavailable
34
What are the elements of prior inconsistent statements offered substantively for hearsay?
1) Declarant-witness testifies at trial or hearing
2) Declarant-witness is subject to cross-examination
3) Statement is inconsistent with the witness’s live testimony
4) Statement was made under penalty of perjury at the trial hearing, other proceeding, or deposition
35
What are the elements of prior inconsistent statements for hearsay?
1) Declarant-witness testifies at trial or hearing
2) Declarant-witness is subject to cross-examination
3) The statement is inconsistent with the witness’s live testimony
4) The statement if offered “to rebut an express or implied charge that declarant recently fabricated evidence or “to rehabilitate the declarant’s credibility”
36
What are the elements of statements of identification?
1) Declarant-witness testifies at trial or hearing
2) Declarant-witness is subject to cross-examination
3) Statement identified the person after the witness perceived that person
37
What are the kinds of past statements of a testifying witness?
1) Prior Inconsistent Statement Offered Substantively
2) Prior Inconsistent Statement
3) Statements of identification
38
What are the kinds of opposing party statements?
1) Simple Party Admissions
2) Adoptive Admissions
3) Vicarious Admissions: Authorized Statements
4) Vicarious Admissions: Agency Statements
5) Co-conspirators
39
What is a simple party admission?
Statement is offered against an opposing party and was made by the party in an individual or representative capacity
40
What is an adoptive admission?
Statement is offered against an opposing party and is the one the party manifested or adopted or believed to be true
41
What are the elements of silence as an adoptive admission?
1) Adopted state was heard and understood by the party against whom its offered
2) The party was at liberty to respond
3) The circumstances naturally called for a response
4) The party failed to respond
42
What are vicarious admissions: authorized statements?
The statement is offered against an opposing party and was made by a person whom the party authorized to make a statement on the subject
43
What are the elements of vicarious admissions for agency statements?
1) Speaker must be an agent or employee of the party
2) The statement must relate to a matter within the scope of agency or employment
3) Statement must have been made during the relationship
44
What are the elements of a co-conspirators statements?
1) Existence of a conspiracy
2) Defendant is a member of the conspiracy
3) The statement was made during the existence of the conspiracy
4) Statement was made in furtherance of the conspiracy
45
What are the types of hearsay exceptions regardless of a declarant's availability?
1) Present Sense Impression
2) Excited Utterances
3) Statements Concerning State of Mind or Physical Condition
4) Statements Made for Medical Treatment or Diagnosis
5) Recorded Recollection
6) Records of regularly conducted
7) Public Records and Reports
8) Residual Catch all
46
What are the elements of a present sense impression?
1) An event or condition occurs
2) The statements describes that event or condition
3) The statement is made while the declarant perceives it or immediately thereafter
47
What is the timing, scope, and focus of a present sense impression?
Timing: Statement occurs at the same time as event/condition or immediately thereafter
Scope: Limited to description no analysis
Focus: Timing of statement
48
What are the elements of excited utterances?
1) A startling event or condition occurs
2) Statement relates to the condition that event or condition
3) The declarant was under the stress of excitement caused by the event or condition when she made the statement
49
What is the timing, scope, and focus of excited utterances?
Timing: Statement occurs while the declarant is under the stress of excitement
Scope: Must relate to event; can include analysis
Focus: Emotional state of the declarant
50
What are the elements of statements concerning state of mind?
1) Statement concerns the declarant’s then-existing state of mind or physical condition
2) Statement does not include of memory or belief if offered to prove the fact remembered
3) Unless the statement of memory or belief relates to the validity of the terms of the declarant’s will
51
What are the elements for statements made for medical diagnosis or treatment?
1) Statement concerns the declarant’s then-existing state of mind or physical condition
2) Statement does not include of memory or belief if offered to prove the fact remembered
3) Unless the statement of memory or belief relates to the validity of the terms of the declarant’s will
52
What are the important distinctions statement made for medical diagnosis and treatment?
1) No limit on who makes the statement or to whom the statement is made
2) Statement of diagnosis is not within the exception
3) Exceptions only covers statements for the purpose of obtaining a medical diagnosis not all statement to medical personnel
53
What are the elements of a recorded recollection?
1) The writing is a record of facts about which the witness once had knowledge
2) The witness now have insufficient recollection to testify as to those facts
3) The writing was made or adopted by the witness
4) At a time when the matter was fresh in their memory
5) The writing accurately reflects that prior knowledge
54
What are the elements of regularly conducted activity?
1) Record is made at or near the time of the event it describes
2) By someone with knowledge of the event
3) The record is kept in the course of regularly conducted activity
4) It was the business’s regular practice to make the record
5) Conditions are proved by custodian or records or certification
55
What are the elements of public records and reports?
1) Records setting forth the activities of an office or agency
2) Matters observed pursuant to duty imposed by law (no police records for criminal cases)
3) Findings resulting from an investigation pursuant to legal authority
56
What are the elements of the residual "catch-all" exception?
1) Evidence is supported by “sufficient guarantees of trustiworthiness”
2) Evidence is more probative on the point which it is offered than any other evidence the proponent can obtain through reasonable efforts
3) Proponent provides reasonable notice of intent to offer a statement under the exception
57
What are additional elements found in the residual "catch-all" provision?
Necessity + Trustworthiness
No motive to lie
Deterrent effect of detection or fear of punishment
Statement is made under such publicity that an error would be determined
58
What are the types of exceptions when the declarant is unavailable?
1) Past Testimony
2) Dying Declarations
3) Statements Against Interest
4) Forfeiture by Wrongdoing
59
What are the elements of past testimony?
1) Declarant is unavailable
2) Declarant testified at prior hearing or deposition
3) The party against whom the state is offered had opportunity to examine the declarant at the prior hearing or deposition
4) The party had a motive to examine the declarant at the prior hearing or deposition that is similar to the motive it has in the instant proceeding
60
What are the elements of a dying declaration?
1) Declarant is unavailable
2) This is a homicide prosecution or any civil action
3) The statement was made while the declarant believed their death was imminent
4) The statement concerns the cause or circumstances of what the declarant believes to be their impending death
61
What are the factors used to determine motive in past testimony?
1) The type of proceeding in which the testimony is given
2) Trial strategy
3) Potential financial penalties or stakes
4) Number of issues and parties
62
What are important distinctions about dying declarations?
State of mind key: declarant must be conscious of “swift and certain doom”
Personal knowledge required
63
What are the elements of statements against interest?
1) Declarant is unavailable
2) Statement is one that a reasonable person would only make it believed to be true when made
It was so contrary to the declarant’s financial/property interest
It had so great a tendency to invalidate the declarant’s claim against someone else
It exposed the declarant to civil or criminal liability
3) If offered in a criminal case against penal interest it is supported by corroborating circumstances that clearly indicate trustworthiness
64
What are the elements of forfeiture by wrongdoing?
1) Declarant is unavailable
2) The party wrongfully cause (or acquiesced in wrongfully causing) the declarant’s unavailability
3) The party intended to cause the declarant’s unavailability
65
What are the questions you ask before analyzing an evidence question?
1) What evidence is being considered?
2) For what purpose is the evidence being offered?
3) Who is offering the evidence?
4) Civil or criminal trial?
66
What is probativeness?
Any tendency to make a fact more or less probable
67
What is materiality?
The fact is of consequence to the pending action
68
What is the 403 balancing test?
A court may exclude relevent evidence if it substantially outweighed by a danger of one or more
1) Unfair prejudice
2) Confusing the issues
3) Misleading the jury
4) Undue delay
5) Wasting time
69
What is the test for relevance?
Does evidence have any tendency to affect the probability of the existence of a material fact?
70
What is the difference between General preliminary questions and conditional relevance?
general preliminary questions - The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.
conditional relevance - ould a reasonable jury find that this fact exists by the preponderance of the evidence?
71
What is the basic test for admissibility?
1) Is the evidence relevant?
2) Is the evidence excluded by another rule or law?
3) Is the probative value substantially outweighed by risk or unfair prejudice, undue delay, jury confusion?
72
What are the Gordon factors and when do they apply?
Any witness
1) Nature of the crime: violent crimes are less probative of truthfulness; this factor weighs against admission
2) Time of conviction and subsequent history
3) Similarity between offenses: Similarity of the convictions weighs against admission
4) Importance of defendant's testimony: The more important the testimony, the more reluctant the court should be to admit conviction
5) Centrality of credibility: If defendant's testimony is important, so is credibility
73
What are factors for child competency?
1) Capacity to perceive and remember events
2) Capacity to communicate events intelligibly
3) Understanding the difference between truth and lie, obligation to tell the truth
4) Capacity to respond intelligibly to questions on cross
74
What is hearsay?
An out of court statement offered for the truth of the matter asserted offered by the declarant
75
What are non-typical examples of hearsay?
1) Nonverbal conduct
2) Reenactments
3) Indirect / implied assertions
76
What are non-hearsay categories?
1) Statements offered to prove the effect on the listener
2) Verbal acts or legally operative words– words that constitute legal acts or have legal consequences (examples: “I will kill you” = threat or “I accept” = legally operative, or "Thank you"(no truth or falsity in that statement)
3) Inconsistent statements offered to impeach
4) Non-assertive words or conduct
5) Circumstantial evidence of state of mind
A direct state of mind is hearsay to prove intent/motive/other state of mind (Example: “I hate Joe to prove the speaker had animus towards Joe)
Statements that only indirectly show state of mind may be non-hearsay (Example: “Joe is a thief” to prove speaker had animus towards Joe)
6) Circumstantial proof of knowledge
Only available in unusual circumstances
7) To show words were spoken
77
What is the basic hearsay analysis?
1) Is an out of court statement being offered?
2) Is it being offered to prove the truth of the matter asserted?
3) Does an exception or exclusion apply?
78
What are causes of unavailability?
1) Privilege - 804(a)(1)
2) Refusal to testify - 804(a)(2)
3) Lack of memory - 804(a)(3)
4) Death or then-existing infirmity - 804(a)(4)
5) Absence - 804(a)(5)
79
Where are there no confrontation clause issues?
No Confrontation Clause Issues:
1) Statement is not being offered for its truth (Non-hearsay)
2) Civil cases, or statement is offered against the prosecution
3) The declarant testifies
4) The statement was made under oath and the defendant had the opportunity for cross-examination
5) Statements admitted by forfeiture
80
When is testimony evidence barred?
1) The declarant testifies
OR the declarant is unavailable AND the defendant had prior opportunity to cross
81
What is testimonial?
1) "Solemn declarations made for the purpose of proving some fact"
2) Formalized testimonial material
3) Statements made with "the primary purpose of assisting in a prosecution"
82
What is not testimonial?
1) Casual and offhand remarks
2) Co-conspirators' statements (during and in furtherance of a conspiracy)
3) Business records (unless they are testimonial...)
4) Statements made with the primary purpose of assisting in an “ongoing emergency”
83
What are the Daubert factors?
1) Has the theory been or can it be tested?;
2) Has the theory been subject to publication and/or peer review?;
3) The technique known error rate;
4) The existence and maintenance of standards controlling the technique's operation; and
5) The degree of acceptance in the scientific community (Fyre)
6) FIT - does it really help the trier of fact?
84
What are the proper sources of facts and data for expert testimony?
1) Firsthand knowledge
2) Facts or data learned at trial (i.e. admitted evidence)
3) Inadmissible fact or data if they are of a type reasonably relied upon experts in the field - may not be disclosed to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect
85
What are the basic questions for an expert analysis?
1) Are they an expert?
2) Would this testimony assist the jury?
3) Does this opinion rest on proper data? (personal knowledge, facts or data learned at trial?
4) Is it reliable? Daubert factors
86
What are the three recognized federal privileges?
only protects confidential communications
1) Attorney-client
2) Clergy-penitent
3) Psychotherapist-patient
87
What makes evidence unfairly prejudicial?
1) Leads jury to give improper weight to a piece of evidence or confuse its meaning
2) Distracts the jury from the real issue and induces them to decide the case on an improper basis
3) Admissible for one purpose but not another - danger that jury will use evidence for impermissible use
88
How are the methods of proving character allowed?
- Only opinion and reputation testimony allowed on direct examination
- Relevant specific instances allowed on cross-examination
89
What is impeachment by contradiction?
Common law Hitchcock doctrine prohibits extrinsic evidence to contradict a witness on a collateral matter
Collateral matter - something that does not have independent probative value (i.e. witnesses or documents that don't matter for the actual merits of the case)
90
What is authentication?
1) Proponent of evidence must show that it really is what they say it is
2) "Laying foundation" the process of demonstrating that evidence is what you say it is
3) Standard of proof: evidence "sufficient to support a finding that the item is what the proponent claims it is"
4) Opponent can present evidence that the evidence is not authentic even after it's admitted
91
When is secondary evidence permitted?
1) Originals are lost or destroyed, not by the proponent and not in bad faith;
2) Originals cannot be obtained by the judicial process;
3) The party against whom it is being offered controls it and was put on notice to bring it to trial, but doesn't or;
4) The writing is not closely related to a controlling issue
92
What is layperson opinion testimony limited to?
1) Rationally based on witness's perception
2) Helpful to clearly understanding the witness's testimony or to determining a fact in issue and
3) Not based on scientific, technical, or other specialized knowledge with the scope of Rule 702
93
What is the foundation for expert testimony?
Witness must be qualified;
Testimony must be on a proper topic;
Opinion must be supported by a proper factual basis;
Opinion must be based on reliable principles, reliably applied to the facts; and
Testimony must survive Rule 403
94
What are improper topics for expert testimony?
1) Matters of common knowledge
2) Legal opinions and certain opinion on "ultimate issue"
3) Credibility of witnesses
4) Accuracy of eyewitness identification
95
How is an expert qualified?
A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion
96
What are the three exceptions to federal privileges?
1) Attorney-client (survives the client's death)
2) Clergy-penitent
3) Psychotherapist-patient
97
What are the elements of inadvertent disclosure?
1) Disclosure was inadvertent
2) The party took reasonable steps to prevent disclosure
2) The party took reasonable steps to rectify the errors
98
What is the different between the two martial privileges?
1) Spousal testimonial privilege - privilege not to testify against your spouse
2) Marital confidences privilege - confidential communications between spouses
99
Where does spousal testimonial privilege apply?
1) Criminal cases
2) Witness can assert
3) Does the privilege survive the marriage? No
4) Rationale: to protect sanctity of marriage
100
Where does martial confidences apply?
1) Both criminal/civil cases
2) Both spouses can assert privilege
3) This privilege does survive the marriage (as long as they were made while they were married)
4) Rationale: Protecting privacy and encouraging free communication
