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Board Cert 2024 > Evidence > Flashcards

Evidence Flashcards

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
Q

When can prosecution enter evidence of accused’s past character?

A

Only to rebut what’s been introduced by defense—not in case in chief!

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26
Q

General crime info admissible?

A

Inadmissible: not unusual to not find a gun in armed robbery; common for drug dealers to hand out contact info

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27
Q

How can defense introduce character evidence?

A

ONLY by reputation

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28
Q

When is character of the victim admissible

A

When it’s a material issue: usually character for aggression in self defense claim
Can be rebutted by prosecution ONLY after being attacked

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29
Q

If defense attacks victim’s character, can prosecution introduce same of the defendant?

A

ONLY in federal, not florida

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30
Q

When can specific acts be admissible as evidence?

A
  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
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31
Q

When can past consensual sexual activity of the AV be admitted in a sex case?

A
  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
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32
Q

“Williams Rule” evidence in Federal cases test

A
  1. Determine if similar fact evidence is relevant to an issue other than character
  2. Apply a 403 balancing test
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33
Q

Williams Rule considerations for admissibility in Florida

A
  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
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34
Q

When can Williams Rule be used to prove identity

A

When there’s a unique modus operandi—must be very clearly unique

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35
Q

Williams Rule and intent

A

Doesn’t need to be that similar—scheme or plan to commit similar crimes IF intent is an element or material element

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36
Q

Motive and Williams Rule evidence

A

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
Q

Sex victims and Williams rule standard

A

Can be considered for any matter to which its relevant—no substantial similarity requirement—including propensity to commit the charged act

38
Q

Can a witness testifying about reputation evidence be cross examined on specific acts?

A

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
Q

Opinion evidence as it relates to character evidence

A

ONLY in Federal—general opinion not specific acts unless on cross

40
Q

Is custom admissible in criminal court?

A

No!

41
Q

Two step analysis for statement made during plea negotiations

A
  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
Q

Can plea negotiation statements admissible as impeachment?

A

No—only perjury and false statement type charges

43
Q

What does the holder of a privilege have the right to do?

A
  1. Refuse to disclose
  2. Prevent others from disclosing
    Contents of privileged communication
44
Q

Which privileges are excluded from child abuse and vulnerable adult reporting?

A

Attorney/client and clergy

45
Q

Who does the attorney client privilege belong to

A

The client! But attorney can claim it in client’s absense

46
Q

Florida privileges recognized

A
  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
Q

Federal privileges recognized

A

Not enumerated—common law

48
Q

How can the state get around accident report privilege

A

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
Q

Crawford and confrontation clause

A
  1. Is it testimonial?
  2. The declarant is unavailable
  3. D lacked prior opportunity for cross
50
Q

Federal attorney client privilege and clients identity and payment of fees

A

Not communication and not protected

51
Q

When can attorney client privilege be waived

A

Only if the client waives it —generally when waived for one thing, waived for all communication

52
Q

Who can assert work product privilege

A

Either client or attorney can assert it (Different from attorney client privilege)

53
Q

Husband wife privilege in Florida

A

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
Q

Federal marital privilege

A

Same as Florida PLUS if witness is married to accused at trial, can refuse to testify completely—not just about confidential items

55
Q

Does death or dissolution of marriage affect spousal privilege

A

Nothing privileged after it but doesn’t destroy privileged communications during a valid marriage

56
Q

Competence to testify requirements

A

Burden on party objecting to show:
1. Understands nature and obligation to testify
2. Can understand duty to tell the truth

57
Q

6 ways to impeach

A
  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
Q

Can Miranda violation statement be used as prior inconsistent statement

A

Yes if it was given voluntary

59
Q

When can silence be used to impeach

A

Only pre arrest, pre Miranda silence—post arrest, pre Miranda silence can’t be and post Miranda cannot be!

60
Q

How to impeach with character for truthfulness

A

In Florida, reputation only! In federal, opinions can be used but need to lay foundation

61
Q

Withholds and impeachment

A

Not admissible for that purpose

62
Q

Federal impeachment with convictions

A

Can go into details of crimes—403 balancing test used there for felony convictions

63
Q

What’s allowed on re-direct

A

Only matters discussed on cross

64
Q

When can you admit the prior inconsistent statement into evidence?

A

If they deny it, don’t remember making it or do not distinctly admit to it

65
Q

When can lay witness offer opinion testimony?

A

If can’t communicate testimony without it and it doesn’t require special knowledge, skill, experience, or training

66
Q

Daubert requirements

A
  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
Q

Daubert standard for court to decide if factors are met

A

Preponderance of the evidence

68
Q

When can opinion for ultimate issue come in

A

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
Q

Hearsay definition

A

Statement, other than one made by declarant while testifying offered to prove the truth of the matter asserted

70
Q

Are prior inconsistent statements admissible as substantive evidence?

A

Yes, if given under oath

71
Q

Are prior consistent statements an exclusion or exception

A

Exclusion

72
Q

Hearsay exceptions—declarant availability immaterial

A
  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
Q

Statements of then existing mental or emotional condition

A

Must show a feeling or something “I am happy I gave him a car vs I gave him a car 2 years ago”

74
Q

Foundation for business records

A
  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
Q

Medical records exception and diagnosis

A

Admissible BUT not everything is admissible without expert testifying—403 test too

76
Q

Years for ancient documents hearsay exception

A

20 years

77
Q

Corpus in sex and money laundering cases

A

Separate hearing outside jury—must find trustworthiness preponderance of the evidence
MEMORIALIZED STATEMENTS ONLY FOR SEX CASES

78
Q

Co-conspirator exception to hearsay and crawford

A

Confrontation clause typically not implicated.

79
Q

Foundation for co-conspirator statements

A

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
Q

Can the co-conspirator’s statement be used to determine foundation?

A

Federal, yes! Not in Florida—must be separate.

81
Q

James Hearing

A

Hearing to determine if co-conspirators statements will come in Federal court only

82
Q

Child hearsay requirements

A

Child abuse or child sex case under 16!
Trustworthiness, reliability hearing and the child must testify or bee found unavailable
10 days notice

83
Q

Catch all hearsay exception

A

Only in federal!

84
Q

Hearsay exceptions—declarant unavailable only

A
  1. Former testimony
  2. Dying declaration
  3. Statement against interest
  4. Personal or family history by declarant
  5. Person caused unavailability
85
Q

When can a witness be found to be unavailable?

A
  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
Q

What can come in under dying declaration?

A

Only statements surrounding the cause of impending death or circumstances surrounding impending death

87
Q

Statement against interest vs Statements by adverse party

A

Admission doesn’t require unavailability. Statements of non-party may be admissible under unavailable option

88
Q

Authentication of public records

A

Just a seal or certified copies are self authenticating or judicial notice

89
Q

Silent witness rule

A

Image from security footage with no authentication if judge finds it to be reliable

Board Cert 2024 (8 decks)

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