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F23 > Evidence > Flashcards

Evidence Flashcards

(100 cards)

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1
Q

Scope (FRE)

A

i. FRE applies to proceedings in US courts

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2
Q

Ruling on evidence

A

i. To preserve a claim for error, evidence must affect:
1. Substantial right
2. Objections must be:
a. Timely
b. Specific
ii. If evidence excluded, objecting party must:
1. Offer proof
2. Unless apparent from context

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3
Q

Preliminary questions

A

i. FRE do not apply, except privilege

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4
Q

Limiting instructions

A

i. Restrict evidence to proper scope and inform the jury

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5
Q

Completeness

A

i. At the time of introduction, court may require admission of other part that in fairness should be considered at the same time

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6
Q

Relevance

A

i. Tendency to make a factor more or less probable
ii. Relates to fact of consequence

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7
Q

Judicial notice

A

i. Court may judicially notice a fact that is not subject to reasonable dispute
1. Generally known within jurisdiction
2. If party requests and
3. Court supplied with necessary information
ii. In civil case
1. Just must accept fact as conclusive
iii. In criminal case
1. Jury may or may not accept fact as conclusive

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8
Q

Admissibility of relevant evidence

A

i. Relevant evidence admissible unless rules provide otherwise
1. Constitution
2. Federal statute
3. FRE
4. Other rules of USSC
ii. Irrelevant evidence inadmissible

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9
Q

Excluding relevant evidence

A

a. Probative value substantially outweighed by
i. Risk of:
1. Unfair prejudice
2. Confusing the issues
3. Misleading the jury
4. Undue delay
5. Wasting time
6. Needlessly presenting cumulative evidence

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10
Q

Subsequent remedial measures

A

i. Inadmissible to prove:
1. Negligence
2. Culpable conduct
3. Defect
4. Need for warning or instruction
ii. Admissible, if disputed, for:
1. Impeachment
2. Proof of ownership
3. Proof of control
4. Proof of feasibility of precautionary measures

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11
Q

Compromise and offers to compromise

A

i. Inadmissible to show validity of claim
1. Offers to compromise
2. Conduct or statement made during compromise negotiations
ii. Admissible
1. Other purposes

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12
Q

Offers to pay medical expenses

A

i. Inadmissible, if offered to prove liability:
1. Paying or offering to pay medical expenses

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13
Q

Criminal plea bargaining

A

i. Inadmissible against defendant
1. Withdrawn guilty plea
2. No contest plea
3. Statements made during those proceedings
4. Statements made during plea negotiations
ii. Admissible
1. Final judgments
iii. Exceptions
1. Completeness
2. Perjury or false statement

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14
Q

Sex offense (victim)

A

i. Inadmissible
1. Victim engaged in sexual behavior
2. Victim’s sexual predispositions
ii. Exceptions
1. Criminal
a. Physical evidence if offered to prove someone other than defendant committed act
b. Specific instances of sexual behavior between victim and defendant if offered to prove consent
c. Evidence whose exclusion would violate constitutional right
2. Civil
a. Victim’s sexual behavior
b. Victim’s sexual predisposition
i. If probative value substantially outweighs unfair prejudice

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15
Q

Sexual assault (similar crimes)

A

i. Admissible for any purpose in criminal cases if:
1. Defendant is accused of sexual assault

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16
Q

Child molestation (similar crimes)

A

i. Admissible for any purpose in criminal cases if:
1. Defendant is accused of child molestation

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17
Q

Sex offenses (civil cases)

A

i. Admissible for any purpose in civil case if:
1. Defendant is accused of sexual assault or child molestation

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18
Q

Privilege (general)

A

i. Common law governs unless limited by:
1. U.S. Constitution
2. Federal statute
3. Supreme Court

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19
Q

Attorney-client privilege and work product (waiver)

A

i. Federal
1. Waiver if
a. Intentional
b. Same subject matter
c. Ought in fairness to be considered together
2. Not waiver if
a. Inadvertent
b. Reasonable steps to prevent disclosure
c. Reasonable steps to rectify error
ii. State
1. Not waiver if
a. Not waiver in federal court
b. Not waiver under law where disclosure made
iii. Court order
1. Court may order privilege not waived
iv. Binding
1. Agreement on effect of disclosure only binding on parties to agreement

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20
Q

Crime-fraud exception

A

i. Exception to attorney-client privilege
ii. Attorney’s services obtained to further a future crime or fraud

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21
Q

Adverse spousal testimony

A

i. No limited to communications
ii. Covers events before or during marriage
iii. Only requirement is spouses are married at time of testimony
iv. Privilege must be invoked by testifying party and cannot bar testimony

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22
Q

Confidential spousal communications

A

i. Confidential communication during marriage
ii. Both spouses hold privilege
iii. Exceptions: crime-fraud, legal proceedings, crimes against spouse
iv. Privilege can be invoked after marriage but must concern communication during marriage (not before or after)

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23
Q

Psychotherapist privilege

A

i. Exception
1. Patient’s mental condition at issue/commitment proceeding, or communication a result of court-ordered exam

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24
Q

Other privileges

A

i. Sexual assault counselor privilege
ii. Physician patient privilege (state only)
iii. Official information
iv. Domestic violence victim-counselor privilege
v. Journalist immunity (state only)

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25
Competency
i. (Almost) everyone is competent
26
Personal knowledge
i. Witness may testify only if they had personal knowledge
27
Oath
i. Witness must give an oath or affirmation to testify truthfully ii. In any form that impresses that duty on witness’s conscience
28
Interpreters
i. Qualified ii. Under oath
29
Judge's competency as witness
i. May not testify
30
Juror's competency as witness
i. May not testify unless: 1. During an inquiry into the validity of verdict a. Not allowed i. Testimony about deliberations ii. Testimony about effect of anything on juror’s vote iii. Testimony about juror’s mental processes b. Allowed i. Testimony about extraneous prejudicial information ii. Testimony about outside influence affecting juror iii. Testimony about mistake made entering verdict
31
Mode and order of calling witnesses and presenting evidence
i. Court may exercise reasonable control as to: 1. Promote effectiveness 2. Avoid wasting time 3. Protect witnesses from harassment ii. Scope of cross examination 1. Only topics discussed on direct iii. Leading questions 1. Not allowed on direct 2. Allowed on cross and with hostile witnesses
32
Refreshing recollection
i. When a witness uses writing to refresh memory 1. While testifying 2. Before testifying, if justice so requires ii. Adverse party entitled to: 1. Have writing produced, 2. Inspect writing, 3. Delete unrelated matter, and 4. Introduce relevant portions into evidence
33
Calling witness
i. Calling 1. Court may call witness 2. Parties entitled to cross ii. Examining 1. Court may examine witness iii. Objections 1. Party may object to court’s calling or examining of witness
34
Excluding witnesses
i. At party’s request unless: 1. Party to case 2. Attorneys to case 3. Persons essential to presenting party’s claim 4. Person authorized by statute to be present
35
Lay opinions
i. If not testifying as an expert, testimony must be: 1. Rationally based on witness’s perception; 2. Helpful to understanding testimony or fact at issue; and 3. Not based on scientific, technical, other specialized knowledge
36
Expert opinions
i. Expert may testify if: 1. Expert’s scientific, technical, or other specialized knowledge will help trier of fact to understand evidence or facts at issue; 2. Testimony based on sufficient facts or data; 3. Testimony is the product of reliable principles and methods; and 4. Expert has reliably applied principles and methods to facts of case
37
Bases of an expert
i. Expert may base an opinion on facts or data: 1. Personally observed 2. Need not be admissible if reasonably relied on by experts in particular field ii. If inadmissible 1. Facts or data can only be introduced if: a. Probative value b. Substantially outweighs c. Prejudicial effect
38
Opinion on an ultimate issue
i. Not objectionable just because it addresses ultimate issue ii. Exception 1. In criminal case 2. Expert witness may not testify to mental state 3. If it constitutes element of the crime
39
Disclosing facts or data underlying an expert
i. Expert may: 1. State opinion 2. And give reasons for it 3. Without first testifying to underlying facts or data
40
Court-appointed expert witness
i. On motion or on its own, court may appoint experts 1. Experts must: a. Advise parties of findings b. Be deposed c. Testify d. Be cross examined ii. Parties may still call their own experts
41
Authenticating or identifying evidence
i. Proponent must produce evidence supporting finding that 1. Item is what proponent claims it is ii. Examples 1. Testimony of witness with knowledge 2. Nonexpert opinion about handwriting 3. Comparison by an expert witness or tier of fact 4. Distinctive characteristics 5. Opinion about voice 6. Evidence about a telephone conversation 7. Evidence about public records 8. Evidence about documents or data complications 9. Evidence about a process or system 10. Methods provided by statute
42
Evidence that is self-authenticating
i. Examples 1. Domestic public documents (signed and sealed) 2. Domestic public documents (not sealed but signed and certified) 3. Foreign public documents 4. Certified copies of public records 5. Official publications 6. Newspapers and periodicals 7. Trade inscriptions 8. Acknowledged documents 9. Commercial paper and related documents 10. Presumptions under a federal statute 11. Certified domestic records of a regularly conducted activity 12. Certified foreign records of a regularly conducted activity 13. Certified records generated by an electronic process or system 14. Certified data copied from an electronic device, storage medium, or file
43
Writing (best evidence)
a. Letters, words, or numbers set down in any form
44
Recording (best evidence)
a. Letters, words, or numbers recorded in any form
45
Photograph (best evidence)
a. Photographic image stored in any form
46
Original (best evidence)
a. Writing or recording itself b. Printout (if electronic) c. Negative or print (if photo)
47
Requirement of original (best evidence)
1. Required to prove content unless rules provide otherwise
48
Admissibility of duplicates (best evidence)
1. Admissible to same extent as original unless: a. Genuine question about original’s authenticity b. Unfair to admit duplicate
49
Admissibility of other evidence of content (best evidence)
1. Original not required if: a. Originals lost or destroyed (not be proponent in bad faith) b. Originals cannot be obtained through judicial process c. Party against whom original would be offered had control, was put on notice, and failed to produce it d. Evidence is not closely related to controlling issue
50
Copies of public records to prove content (best evidence)
1. Admissible if: a. Record otherwise admissible or b. Copy certified or testified to be correct by witness who compared copy with original 2. If no copy exists, use other evidence
51
Summaries to prove content (best evidence)
1. Summary, chart, or calculation admissible if: a. Voluminous data b. That cannot be conveniently examined by court
52
Testimony or statement of party to prove content
1. Admissible in form of: a. Testimony b. Deposition c. Written statement of party against whom evidence is offered
53
Functions of court and jury (best evidence)
1. Court a. Usually decides 2. Jury a. Decides: i. Whether evidence ever existed ii. Whether what is produced at trial is original iii. Whether other evidence accurately reflects content
54
Applicability of rules
i. FRE apply to: 1. Courts and judges 2. Cases and proceedings 3. Exceptions a. Grand jury b. Extradition c. Preliminary examinations d. Warrant e. Sentencing f. Probation g. Bail ii. Rules of privilege always apply
55
Reputation or opinion evidence (impeachment)
i. Admissible 1. Witness’s reputation for truthfulness a. Opinion testimony b. After the witness’s character has been attacked
56
Specific instances of conduct (impeachment)
i. Extrinsic evidence not admissible to prove 1. Specific instances of conduct to attack truthfulness ii. On cross examination 1. Inquiry allowed if: a. Probative of witness’s character for truthfulness of: i. Witness ii. Another witness whose character the witness testified about
57
Prior criminal conviction
i. Attacks on truthfulness admissible if: 1. Crime punishable by more than one year in prison 2. Probative value outweighs prejudicial effect ii. All attacks admitted if: 1. Element of crime requires proving dishonest act iii. Convictions 10 years or older: 1. Probative blue substantially outweighs prejudicial effect 2. Opposing party receives written notice iv. Inadmissible 1. Pardoned based on fining of: a. Rehabilitation b. Innocence v. Juvenile adjudication admissible if: 1. Offered in criminal case about witness other than defendant 2. Adult conviction for same crime would be admissible 3. Admission necessary for fair trial
58
Religious beliefs
i. Inadmissible 1. Witness’s religious beliefs or opinions if used to attack or support credibility
59
Prior statement
i. Extrinsic evidence only admissible if: 1. Witness given opportunity to explain or deny 2. Adverse party allowed to cross examine
60
Character evidence
i. Inadmissible 1. Character evidence ii. Admissible 1. Criminal cases a. Defendant can: i. Offer evidence of defendant or victim’s pertinent trait b. Prosecution can: i. Rebut evidence ii. Introduce evidence of defendant’s same trait 2. Homicide cases a. Prosecutor can: i. Offer evidence of victim’s peacefulness to rebut evidence they were first aggressor 3. Generally admissible when character is essential element
61
Other crimes, wrongs, or acts
i. Character admissible for other purposes 1. Proving motive 2. Opportunity 3. Intent 4. Preparation 5. Plan 6. Knowledge 7. Identity 8. Absence of mistake 9. Lack of accident
62
Methods of proving character
i. On direct 1. Reputation 2. Opinion ii. On cross examination 1. Specific instances of conduct
63
Habit; routine practice
i. Admissible to prove: 1. On particular occasion they acted in accordance with habit or routine ii. No corroboration required
64
Hearsay
i. Out of court statement being introduced for the truth of the matter asserted
65
Exclusions from hearsay
1. Prior inconsistent statements 2. Prior consistent statements 3. Prior identifications
66
Prior inconsistent statements (hearsay exclusions)
1. Under penalty of perjury 2. At trial, hearing, proceeding, or deposition
67
Prior consistent statements (hearsay exclusions)
1. To rebut express or implied charge that the statement was fabricated; or acted with improper motive while testifying 2. To rehabilitate declarant’s credibility when attacked
68
Statements by opposing parties
i. Direct admissions ii. Adopted statements 1. Adopted or believed to be true iii. Vicarious admissions 1. Within scope of relationship 2. While relationship existed iv. Authorized admissions v. Coconspirator admissions 1. During conspiracy 2. In furtherance of conspiracy
69
Adopted statements
1. Adopted or believed to be true
70
Vicarious admissions
1. Within scope of relationship 2. While relationship existed
71
Coconspirator admissions
1. During conspiracy 2. In furtherance of conspiracy
72
Present sense impression (hearsay exception)
i. Statement describing or explaining event ii. Made while or immediately after declarant perceived it
73
Excited utterance (hearsay exception)
i. Statement relating to startling event ii. Made while declarant was under stress of excitement
74
State of mind (hearsay exception)
i. Statement of then-existing state of mind 1. Motive 2. Intent 3. Plan ii. Statement of emotional, sensory, or physical condition 1. Mental feeling 2. Pain 3. Bodily health iii. Exception 1. Statement of memory or belief to prove fact remembered or believed unless it related to declarant’s will
75
Medical treatment (hearsay exception)
i. Made for medical diagnosis or treatment ii. Reasonably pertinent iii. Describes medical history, past or present sensations, inception, or cause
76
Recorded recollection (hearsay exception)
i. Record that witness once knew about but cannot recall ii. Made or adopted by witness when matter was fresh iii. Accurately reflects witness’s knowledge
77
Business records (hearsay exception)
i. Record was made at or near time ii. By someone with knowledge iii. Kept in course of regularly conducted business activities iv. Part of regular practice v. Presented by custodian, qualified witness, certification vi. No lack of trustworthiness
78
Absence of business record (hearsay exception)
i. If admitted to prove matter did not occur ii. Regularly kept iii. No lack of trustworthiness
79
Public records (hearsay exception)
i. Record sets out office’s activities ii. Observed during duties 1. Not from law enforcement officials iii. Legally authorized investigation iv. No lack of trustworthiness
80
Absence of public records (hearsay exception)
i. If admitted to prove matter did not occur ii. Regularly kept iii. Notice in criminal cases
81
Ancient documents (hearsay exception)
i. Document prepared before 1998 ii. Authenticity established
82
Market reports (hearsay exception)
i. Market reports ii. Lists iii. Directories iv. Other compilations v. Generally relied on by public
83
Learned treatises, periodicals, or pamphlets (hearsay exception)
i. Presented to expert ii. Established as reliable authority by expert
84
Criteria for being unavailable
1. Privilege 2. Refusal to testify 3. Does not recall 4. Not present due to death or other condition 5. Otherwise absent 6. Proponent must make reasonable effort to procure
85
Former testimony (hearsay exclusion)
1. Given during trial, hearing, or deposition 2. Party had opportunity and motive to develop 3. Predecessor in interest must have similar opportunity and motive in civil case
86
Statement under belief of imminent death
1. In homicide or civil case 2. While declarant believed death was imminent 3. About cause of circumstances
87
Statement against interest
1. Reasonable person would have made statement only if they believed true because: a. So contrary to declarant’s interest b. Invalidated declarant’s claim c. Exposed them to liability
88
Statement offered against a party that wrongfully caused declarant's unavailability
1. Statement offered against party that 2. Wrongfully caused or acquiesced in wrongfully causing unavailability 3. Did so intending that result
89
Hearsay within hearsay
i. Each part must conform with exception to rule
90
Attacking and supporting the declarant
i. Declarant’s credibility may be attacked and supported by any piece of evidence that would be admitted if he were a witness 1. Inconsistent statement 2. Specific contradiction 3. Show bias (FRE 411; 407; 409) 4. Attack for truthfulness 5. FRE 403
91
Residual exception
i. The following is not excluded by the rule against hearsay 1. If not admissible under FRE 803 or 804 2. Statement is trustworthy a. Factors i. Under oath ii. Firsthand knowledge iii. Statement recanted iv. Corroborated by other evidence v. Subject to cross examination 3. More probative than any other evidence that proponent can obtain through reason efforts ii. Notice 1. Reasonable notice to adverse party
92
Crawford (issue spotting)
1. Criminal cases only 2. Hearsay 3. Protects accused, not prosecution 4. Ability to cross examine
93
Testimonial evidence (confrontation clause)
1. Testimonial a. Primary purpose for criminal prosecution 2. Nontestimonial a. Primary purpose for addressing ongoing emergency
94
Hammon v. Indiana (confrontation clause)
1. Police responding to call about domestic violence
95
Davis v. Washington (confrontation clause)
1. 911 call about domestic violence
96
Michigan v. Bryant (confrontation clause)
1. Wounded victim identifying assailant
97
Ohio v. Clark (confrontation clause)
1. Child discloses alleged abuse to teacher
98
Williams v. Illinois (confrontation clause)
1. Test not personally prepared by expert offered for another purpose
99
Convictions 10 years or older
1. Probative value substantially outweighs prejudicial effect 2. Opposing party receives written notice
100
Crawford v. Washington (confrontation clause)
1. Recording gathered by police regarding an alleged stabbing

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