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Board Cert 2024 > Evidence > Flashcards

Evidence Flashcards

(89 cards)

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1
Q

Corpus delicti in certain sex cases

A

State must prove by preponderance of evidence sufficient corroborating evidence establishes trustworthiness

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2
Q

Rule of completeness

A

-Avoid misleading with parts of something
-Fairness and context
-Doesn’t apply if statement or recording is not admitted (can cross)

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3
Q

403

A

Relevance—1st issue always—does it tend to prove a fact and is it material

Balancing test: probative value substantially outweighed by risk of prejudice

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4
Q

Character evidence

A

Generally not admissible to prove action conformed with particular occasion

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5
Q

Exceptions to character evidence being inadmissible

A

-D can offer as to D’s pertinent trait (State can rebut)
-D can offer V’s pertinent trait (but not sex assault AV)
-Murders—self defense—state can present peacefulness of V
In federal court only: if D offers V pertinent trait, prosecution can offer same for D

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6
Q

What character evidence can always be admitted for impeachment?

A

Reputation for truthfulness okay AND prior convictions dishonesty and felonies

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7
Q

Rules on hearsay at restitution hearing

A

Allowed with minimal indicia of reliability

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8
Q

What must an objection be to preserve the issue

A

Specific and contemporaneous

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9
Q

Do objections need to be renewed at trial

A

Not if there was a definitive clear pretrial ruling. Including mts!

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10
Q

How to preserve excluded evidence or testimony

A

Proffer or other offer of proof

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11
Q

Federal vs Florida: preservation of issue and preemptively rebutting it

A

Federal you waive it, Florida you don’t if prior ruling was unequivocal

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12
Q

Standard for rulings on pretrial admissibility motions like daubert

A

Preponderance generally

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13
Q

Do the rules of evidence apply when judge is making pretrial admissibility ruling

A

No—hearsay can be used to determine unavailability or other similar examples

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14
Q

When must a MTS hearing be held outside the presence of the jury

A

If a MTS confession or if defendant will testify in other MTS and requests it

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15
Q

What type of evidence does the rule of completeness apply to

A

Documents and recordings only not testimony or oral conversations !

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16
Q

Rule of completeness and defendants statements

A

Can cross examine if the state brings up part even if otherwise inadmissible

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17
Q

What things must be judicially noticed

A

Laws, decisions, rules of court (federal doesn’t enumerate things)

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18
Q

Procedure for permissive judicial notice items

A

Request it, give time to object, provide necessary info then it’s required!

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19
Q

What must be shown with regards to lost evidence for it to be a due process violation

A

Bad faith by the state and actual prejudice

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20
Q

Video tape testimony child or ID

A

Substantial likelihood for moderate emotional or Mental distress from testifying in open court or witness unavailable
case specific findings needed

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21
Q

When to object to accuracy of transcript of recording?

A

Pretrial! Waived if wait until trial because judge must conduct hearing and make a ruling

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22
Q

Stipulations by the defense

A

Generally don’t have to be accepted BUT convicted felon does. 403 applies still and can force the state to agree!

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23
Q

Pre arrest test refusal admissible?

A

Only if told of adverse consequences!

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24
Q

When is similar fact evidence of other crimes, wrongs or acts admissible?

A

To prove material fact at issue including: Motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident
ONLY inadmissible if solely to prove bad character or propensity

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25
When can prosecution enter evidence of accused’s past character?
Only to rebut what’s been introduced by defense—not in case in chief!
26
General crime info admissible?
Inadmissible: not unusual to not find a gun in armed robbery; common for drug dealers to hand out contact info
27
How can defense introduce character evidence?
ONLY by reputation
28
When is character of the victim admissible
When it’s a material issue: usually character for aggression in self defense claim Can be rebutted by prosecution ONLY after being attacked
29
If defense attacks victim’s character, can prosecution introduce same of the defendant?
ONLY in federal, not florida
30
When can specific acts be admissible as evidence?
1. Essential element of a charge, claim, or defense For example: violent or aggressive behavior AND defendant knew about it—relevant to show reasonableness of acting in self defense
31
When can past consensual sexual activity of the AV be admitted in a sex case?
1. If it proves D wasn’t the source of a disease, semen, injury, etc 2. Pattern of conduct so similar that it’s relevant to the issue of consent MUST be addressed in an in camera hearing
32
“Williams Rule” evidence in Federal cases test
1. Determine if similar fact evidence is relevant to an issue other than character 2. Apply a 403 balancing test
33
Williams Rule considerations for admissibility in Florida
1. Does it go to a material fact? 2. 403 balancing test—including strength of other evidence, if defense is vigorously disputing the fact, emotional impact, how closely it resembles crime charged, time nexus also **Clear and convincing standard** higher than federal standard
34
When can Williams Rule be used to prove identity
When there’s a unique modus operandi—must be very clearly unique
35
Williams Rule and intent
Doesn’t need to be that similar—scheme or plan to commit similar crimes IF intent is an element or material element
36
Motive and Williams Rule evidence
Doesn’t have to be similar: for example, evidence that AV had publicly embarrassed D would be relevant to show motive for committing violent act against the AV
37
Sex victims and Williams rule standard
Can be considered for any matter to which its relevant—no substantial similarity requirement—including propensity to commit the charged act
38
Can a witness testifying about reputation evidence be cross examined on specific acts?
Yes, to go to credibility of the character witness—for example, peaceful reputation can be crossed on if they heard the def had committed specific acts of violence Counsel needs good faith belief that specific thing occurred though
39
Opinion evidence as it relates to character evidence
ONLY in Federal—general opinion not specific acts unless on cross
40
Is custom admissible in criminal court?
No!
41
Two step analysis for statement made during plea negotiations
1. Did the D exhibit actual subjective expectaton to negotiate a plea at the time 2. Was that expectation reasonable given totality of the circumstances?
42
Can plea negotiation statements admissible as impeachment?
No—only perjury and false statement type charges
43
What does the holder of a privilege have the right to do?
1. Refuse to disclose 2. Prevent others from disclosing Contents of privileged communication
44
Which privileges are excluded from child abuse and vulnerable adult reporting?
Attorney/client and clergy
45
Who does the attorney client privilege belong to
The client! But attorney can claim it in client’s absense
46
Florida privileges recognized
1. Lawyer client 2. Psychotherapist 3. Sexual assault victim/counselor 4. DV Advocate 5. Husband wife 6. Clergy 7. Accountant 8. Journalist 9. Trade secret
47
Federal privileges recognized
Not enumerated—common law
48
How can the state get around accident report privilege
If any indication that required to give info, must advise of Miranda! Also doesn’t apply to spontaneous statements—meant to be for giving accurate info to law enforcement for report
49
Crawford and confrontation clause
1. Is it testimonial? 2. The declarant is unavailable 3. D lacked prior opportunity for cross
50
Federal attorney client privilege and clients identity and payment of fees
Not communication and not protected
51
When can attorney client privilege be waived
Only if the client waives it —generally when waived for one thing, waived for all communication
52
Who can assert work product privilege
Either client or attorney can assert it (Different from attorney client privilege)
53
Husband wife privilege in Florida
Spouse can prevent other spouse from disclosing confidential communications made during marriage. Doesn’t apply in criminal if one is victim or property of the other or child of the other. Or defendant can disclose.
54
Federal marital privilege
Same as Florida PLUS if witness is married to accused at trial, can refuse to testify completely—not just about confidential items
55
Does death or dissolution of marriage affect spousal privilege
Nothing privileged after it but doesn’t destroy privileged communications during a valid marriage
56
Competence to testify requirements
Burden on party objecting to show: 1. Understands nature and obligation to testify 2. Can understand duty to tell the truth
57
6 ways to impeach
1. Prior inconsistent statement 2. Showing of bias 3. Character trait for untruthfulness 4. Certain crimes 5. Defect in capacity to observe, remember or recount matters to which they testify 6. Introduce facts that are different from testimony
58
Can Miranda violation statement be used as prior inconsistent statement
Yes if it was given voluntary
59
When can silence be used to impeach
Only pre arrest, pre Miranda silence—post arrest, pre Miranda silence can’t be and post Miranda cannot be!
60
How to impeach with character for truthfulness
In Florida, reputation only! In federal, opinions can be used but need to lay foundation
61
Withholds and impeachment
Not admissible for that purpose
62
Federal impeachment with convictions
Can go into details of crimes—403 balancing test used there for felony convictions
63
What’s allowed on re-direct
Only matters discussed on cross
64
When can you admit the prior inconsistent statement into evidence?
If they deny it, don’t remember making it or do not distinctly admit to it
65
When can lay witness offer opinion testimony?
If can’t communicate testimony without it and it doesn’t require special knowledge, skill, experience, or training
66
Daubert requirements
1. Based on sufficient facts or data 2. Based on reliable principles and methods 3. Expert has applied the principles and methods reliably to the facts
67
Daubert standard for court to decide if factors are met
Preponderance of the evidence
68
When can opinion for ultimate issue come in
No to guilt or innocence; ok for expert to say sexual assault if not identifying assailant; ok for expert to say homicide was cause of death
69
Hearsay definition
Statement, other than one made by declarant while testifying offered to prove the truth of the matter asserted
70
Are prior inconsistent statements admissible as substantive evidence?
Yes, if given under oath
71
Are prior consistent statements an exclusion or exception
Exclusion
72
Hearsay exceptions—declarant availability immaterial
1. Spontaneous Statement/Present sense impression 2. Excited Utterance 3. Existing mental, emotional, or physical condition 4. Medical diagnosis or treatment 5. Recorded recollections 6. Business records 7. Absence of business record entry 8. Public records 9. Vital Statistics 10. Absence of public record 11. Records of religious organizations 12. Marriage, baptismal and similar certificates 13. Family records 14. Records about interest in property 15. Statements affecting an interest inn property 16. Ancient documets 17. Market reports 18. Admissions 19. Reputation about family history 20. Reputation concerning boundaries or general history 21. Reputation of character 22. Former testimony 23. Child hearsay 24. Elderly person or disabled adult
73
Statements of then existing mental or emotional condition
Must show a feeling or something “I am happy I gave him a car vs I gave him a car 2 years ago”
74
Foundation for business records
1. Made by person with knowledge 2. Opinion and diagnosis—still need other admissibility like Daubert if applicable 3. Near time of event—can’t make it long after for reliability **Still think about Crawford—things like lab report for litigation!**
75
Medical records exception and diagnosis
Admissible BUT not everything is admissible without expert testifying—403 test too
76
Years for ancient documents hearsay exception
20 years
77
Corpus in sex and money laundering cases
Separate hearing outside jury—must find trustworthiness preponderance of the evidence MEMORIALIZED STATEMENTS ONLY FOR SEX CASES
78
Co-conspirator exception to hearsay and crawford
Confrontation clause typically not implicated.
79
Foundation for co-conspirator statements
Preponderance of the evidence: 1. Both person making statement and defendant were members of conspiracy 2. Made during the course of the conspiracy 3. Made in furtherance of the conspiracy
80
Can the co-conspirator’s statement be used to determine foundation?
Federal, yes! Not in Florida—must be separate.
81
James Hearing
Hearing to determine if co-conspirators statements will come in Federal court only
82
Child hearsay requirements
Child abuse or child sex case under 16! Trustworthiness, reliability hearing and the child must testify or bee found unavailable 10 days notice
83
Catch all hearsay exception
Only in federal!
84
Hearsay exceptions—declarant unavailable only
1. Former testimony 2. Dying declaration 3. Statement against interest 4. Personal or family history by declarant 5. Person caused unavailability
85
When can a witness be found to be unavailable?
1. Privilege 2. Refusal to testify 3. Lack of memory 4. Death or illness 5. Absence Prosecution has to make more of an effort to
86
What can come in under dying declaration?
Only statements surrounding the cause of impending death or circumstances surrounding impending death
87
Statement against interest vs Statements by adverse party
Admission doesn’t require unavailability. Statements of non-party may be admissible under unavailable option
88
Authentication of public records
Just a seal or certified copies are self authenticating or judicial notice
89
Silent witness rule
Image from security footage with no authentication if judge finds it to be reliable

Board Cert 2024 (8 decks)

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