Evidence Flashcards
(92 cards)
1
Q
What questions do the jury and judge decide respectively?
A
The jury decides questions of fact , and the judge decides questions of law (admissibility, whether there is a privilege, whether a witness is qualified).
2
Q
When MUST a jduge conduct a preliminary hearing outside the presence of the jury?
A
- admissibility of a confession in a criminal trial;
- D in a criminal case is a witness and makes that request; and
- the interests of justice otherwise require (unfair prejudice to a party)
3
Q
What is required for an evidenctiary ruling to be reversed on appeal?
A
- A substantial right of a party has been affected (i.e. not harmless error); and
- The judge was notified of the mistake at trial and given a chance to correct it?
4
Q
How do you preserve an evidentiary issue for appeal if the court admitted evidence it should have excluded?
A
Object and explain why the evidence should have been excluded.
5
Q
How do you preserve an evidentiary issue for appeal if the court excluded evidence it should have admitted?
A
Offer of proof - explain to the court what the evidence would have been and why it should have been admitted.
6
Q
What is Rule 105?
A
Limited Admissibility - upon request of the objective party, judge will give jury a limiting instruction is the evidence is admissible for one purpose but not for another purpose.
7
Q
What is the Rule of Completness (Rule 106)?
A
If a party introduces part of a written statement, the o pposing party can introduce other portions of it that are necessary to put the admitted portion into perspection, even if those portions might otherwise be inadmissible.
8
Q
What is Judicial Notice?
A
When a fact is not subject to a reasonable dispute, the court can instruct the jury to accept the fact as proven. Facts not subject to a reasonable dispute are
1. facts generally known within the territorial jurisdiction of th court; or
2. facts accurately and readily determined by sources whose accuracy cannot reasonably be questioned.
9
Q
What is the difference between judicial notice in a civil vs. criminal case?
A
In a civil case, the judge can instruct the jury it MUST accept the facts as true, but in a criminal case the court can only instruct the jury htat it MAY find the fact true.
10
Q
What is the Plain Error Rule?
A
When an error is obvious on its face, an appellate court will sometimes reverse to prevent the miscarriage of justice, even if no notice was made at trial.
11
Q
Can a judge call and question witnesses?
A
Yes! but, all parties can crosse examine those witnesses and every party should have an opporutnity to object outside the hearing of the jury.
12
Q
What is the scope of cross examination?
A
Limited to the scope of direct examination or to credibility question BUT courts may permit a broader inquiry.
13
Q
What are the “improper” questions?
A
- compound questions
- facts not in evidence
- argumentantive questions
- questions calling for inappropriate conclusions – asks a conclusion the witness is not qualified to make
- repetitive questions – UNLESS witness has not answered the question
14
Q
When MUST witnesses be excluded?
A
Upon request of either party to prevent the witness from hearing the testimony of others.
15
Q
When may wistness NOT be excluded?
A
- A witnesss who is essential to the presentation of the case (i.e. expert witness)
- A person, such as a crime victim, who is permitted by law to remain in the courtroom; or
- a party in the case.
16
Q
What is the Burden of Production?
A
A party must produce enough evidence to get the issue to the jury.
17
Q
What is the Burden of Persuasion?
A
A party must convince the jury to decide the case in its favor.
18
Q
What does a rebuttable presumption do?
A
Shifts the burden of production on a particular issue, but not the burden of persuasion.
19
Q
What is the Destruction of Evidence Presumption?
A
If a party destorys evidence, there is a presumption that it would have been adverse to that party.
20
Q
When are leading questions permitted on direct examination?
A
- To elicit preliminary background information not in dispute;
- The witness has troule communicating due to age or infirmity; or
- When you call a hostile witness or adverse party
21
Q
What does it mean to say evidence is “relevant”?
A
Evidence is relevant if it makes a fact in issue more or less likely than it would be without the evidence. In otherwords, if it is both material and probative.
22
Q
What is Rule 403?
A
The court has the discretion to exclude relevant evidence if certain risks of prejudice substantially outweigh its probtive value/
Risks - confusion of the issues, unfair prejudice, misleading the jury, waste of time
NOTE: rule favors admissiblity. PV must be substantially outweighed by the risks.
23
Q
What is Relevance Conditioned on Fact? (Rule 104(b))
A
Arises when relevance of evidence hinges on some fact that is best for the jury. In these cases, courts will simply admit the evidence on the condition that the jury will decide the preliminary fact latter.
24
Q
What is character evidence?
A
Prohbits the argument that a person acted in conformity with a certain trait or has propensity. Character evidence CANNOT be used to prove propensity, but can be used for some other relevant issue (i.e. when character is at issue in the case).
25
If character evidence is admissible, how can it be proved?
Only through opinion or reputation testimony. NOT through specific bad acts.
26
When can character evidence be used for propensity argument?
1. Impeachment
2. In civil cases involving child molestation or sexual assualt, the plainff my introduce evidence of the defendant's
3. in criminal cases:
a. Defendant may introduce pertinent trait of their own character, but this opens the door for th eprosecutor to rebut
b. Victim's Character -- Defendant may bring evidence of victim's pertinent character trait, but this opens the door for prosecution to show defendant has the same character
27
When can evidence of a defendant's past crimes or bad acts be introduced?
When it is not used for propensity but for some other purpose. MIMIC.
Motice
Intent
Mistake
Identity
Common Plan or Scheme
28
When is a witness competent to testify?
If they have (1) personal knowledge of the matter about which they are going to testify and (2) are willing to make an oath to tell the truth.
29
Under the FRE, when is a child competent to testify?
If thye have personal knowledge and are matrue enough to understand the obligation to tell the truth and are willing to promise to do so.
30
What can a juror NOTE testify as a wtiness to about the validity of a jury verdict or indictment?
1. any statement made during jury deliberations
2. any incident that occured during deliberations
3. The effect of anything upon the juror's mind
31
What are the exceptions when a juror may testify after a trial?
1. extraneous, prejudicial information was improperly brought to the jury's attentin
2. an outside influence was improperly brought to beear on a juror
3. a clerical or technical error made the entering the verdict ontot he verdict form
4. a juror made a clear statement that he relied on racial stereotypes or animus in convicting a defendant.
32
What are the three basic ways to impeach a witness's credibility?
1. show the witness is dishonest
2. bias
3. sensory competence
33
To be admissible, what must a lay witnesses testiomny be?
It must be based on the perception of the witness and helpful to a clear undeerstanding of the witness's testimony or the determination of a fact in the case.
34
When can an expert offer an opinion or conclusion?
If the subject matter is scientific, technical, or other specialized information and it will help the trier of fact understand thee vidence or determine a fact in issue.
35
What is the four-part Daubert test?
1. Be qualified by knowledge, skill, experience, training or education;
2. Base their testimony on sufficient facts or data;
3. Base their testimony on reliable principes and methods;
4. Apply the principles and methods reliably to the facts of the case.
36
What can an expert base their opinion on?
1. Personal observation
2. Evidence presented at trial
3. Information reasonably relied upon by experts in that particular field
37
What does it mean if evidence is "authenticated"
It means that there is sufficient evidence to support a finding that the thing is what it is claimed to be. The jury will still decide if it is actually authentic.
38
How can you authenticate real evidence?
1. personal knowledge
2. Distincitve features or marks
3. chain of custody
39
How are ancient documents authenticated?
1. at least twenty yeras old
2. in a condition unikely to create suspicion; and
3. found in a place where such documents would be if they were authentic
40
What is the "Reply Letter Doctrine"?
Authenticates evidence that was written in response to another letter.
41
How can handwirting be authenticated?
1. expert testimony or jury comparing it to a known sample
2. lay witness with personal knowledge of the handwriting from before the current litigation
42
What documents are self-authenticating?
1. public documents bearing a governmental seal
2. certified copies of public records
3. official publicatoins issued by public authority
4. trade inscriptions
5. notarized documents
6. commercial paper
43
How can a voice be authenticated?
By any person who has heard the voice at any time.
44
How can telephone conversations be authenticated?
1. caller recognied speaker's voice
2. speaker knew information that only a particular person would know
3. caller dialed the number believed to be the speakers and the speaker identified themselves upon answering the phone
4. the caller dialed a business and spoke with a person who answered questions about business regularly conducted over the phone.
45
What triggers the best evidence rule?
If a witness describes what a document says.
46
What does the best evidence rule do?
It limits the ability to present other evidence of the contents of a document when the contents are at issue.
No witness testimony about hte contents when you could just produce the actual document.
47
When will a document be considered unavaiabled such that you may introduce other evidence of its contents?
1. the original has been lost or destoryed, unless done by the proponent in bad faith
2. the original cannot be obtained by any judicial process
3. the party against whom the document is introduced had control of the original and knew it was going to be at issue at trial
48
When can a duplicate not be used under the best evidence rule?
If there is a genuine question about hte authenticity of the original.
49
What are the exceptions to the BER ?
1. unavailable
2. public records
3. voluminour writings - can use a summary, but originals or duplicates must be made available for inspection by the other party
4. admission by a party
50
What is the attorney-client privilege?
Protects confidential communication between a client and a lawyer for hte purposes of securing legal advice/
51
What is the attorney-client privilege waived?
1. failure to assert the privilege in a timely manner
2. voluntary disclosure of the information
3. express waiver, even by contract
4. failure to take precaution (i.e. careless conduct) on the part of the lawyer
52
What are the exceptions to the AC privilege?
1. Future fraud or crime exception - communication is for purposes of gettting help with what the client knew or reasonably should have known is a crime or fraud
2. Dispute between the lawyer and the client
53
What is the work-product doctrine?
Protects documents prepared by a lawyer in anticipation of litigation?
54
When can some types of work product be obtained by the opposing party?
If the party can demonstrate a substantial need for the information and show that it cannot otherwise be obtained without undue hardship.
BUT core work product (reveals attorney's trial tactices, conclusionsm theories of case, etc.) cannot be obtained.
55
What is the physician-patient privilege?
Not federally recognized, but recognized in many states.
Protects statements made by a patient to a doctor for the purposes of obtaining medical treatment
56
What are the exceptions to the patient-physician privilege?
1. Information was for reasons other than treatment
2. the communication was made from some illegal purpose
3. a dispute exists between the doctor and patient
4. the patient agreed to waive the privilege
57
What is they Psychotherapist-Patient privielge?
Applies to confidential communications between a patient and a psychiatrist, psychologist, or licensed social worker for the purpose of treatment.
58
What are the exceptions to the psychoterapist-patient privilege?
DOes not apply if hte communication was:
1. The result of a court-ordered exam; or
2. taken as part of a commitment preceeding
59
What is the 5th Amendement Protection against self incrimination?
Prevents a witness from being required to give incriminating testimony against himself.
60
What are the two spousal privileges?
1. Confidential Marital Communications
2. Spousal Immunity
61
What is Confidential Marital Communication Privielge?
Protects communications made between spouses in confidence in reliance on the sanctity of marriage. Held by both spouses and survives hte marriage.
62
What is spousal immunity?
Gives a spouse the right to testify in a criminal case against hte other spouse if they are currently married.
63
When do spousal privileges not apply?
1. one spouse is suing the other; or
2. one spouse is charged with a crime against the other spouse or the children of etiher of them.
64
What are the public policy exclusions?
1. liability insurance - not admissible to prove negligence or wrongdoing
2. subsequent remedial measures - not admissible to prove negligence, culpable conduct, defective product or design, or an inadequate warning
3. settlment offers or negotiations - not admissible to prove validity or amount of a disputed claim
4. offers to pay medical expenses - not admissible to prove liability
5 plea negotiations
65
What is the exception to the Rape Shield Laws in criminal cases.
Evidence of victims past sexual conduct is admissible to show
1. defendant was not source of physican evidence
2. show victim's past sexual conduct with the defendant to show consent
3. if exclusion would be unconstitutional
66
What are the exceptions to the Rape Shiel laws in civil cases?
1. evidence of victim's past sexual conduct or predisposition is admissible only if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
2. evidence of reputaiton is admissible if victim brings it up.
67
What is the definition of hearsay?
An out of court statement offered to prove the truth of the matter asserted.
68
What is an out of court statement?
Spoken, written, or assertive nonverba conduct.
69
What are common non-hearsay uses of out of court statements?
1. Verbal acts of independent significance
2. Effect on the listener
3. state of mind
70
What happens when there is hearsay within hearsay?
Each level of hearsay needs to be cleared (either an eception or exclusion) for the statement to be admissible.
71
What things are not hearsay?
1. Certain prior statements of testifying witnesses (prior inconsistent statements, prior consistent statements, prior statements of identification)
2. Statements against a party oppoent
72
When is a prior inconsistent statement not hearsay?
itr was made under oath at a trial, hearing, or deposition.
73
When is a declarant considered "unavailable" for hearsay purposes?
If the declarant is:
1. exempt from testifying on grounds of privilege
2. refuse to testify
3. lack memory of the subject matter
4. is dead or too ill
5. is absent and cannot be subpoenaed or otherwise made available.
74
What are the unavailable declarant exceptions to hearsay?
1. former testimony
2. dying declarations
3. statements against interest
4. statements of personal or family history
5. forfeiture by misconduct
75
When is former testimony of an unavailable declarant admissible?
If the former testimony was given by an unavialable witness under oath at a prior hearing or deposition AND the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct or cross-examination at the prior trial, deposition, or hearing.
NOTE: grand jury testimony can't come in under this exception
76
When are dying declarations of an unavailable declarant admissible?
If the individual believed they were dying, belived their death was imminent, and the statement relates to the cause or circumstnaces of the death.
AND it is being offered in a homicide case or a civil case.
77
When is a statement against interest of an unavailable declarant admissible?
If, at the time it was made, the statement was against the declarant's pecuniary, proprietary, civil, or penal interest, such that a reasonable person would not have made the statement unless it were true.
78
What hearsay exceptions do not require a declarant to be unavailable?
1. present sense impression
2. excited utterance
3. state of mind
4. statements made for purpsoes of medical diagnosis or treatment
5. past recollection recorded
4. business records
5. public records
6. learned treatises
7. records of vital statistices
8. records of religious organizations
9. marriage and baptismal certificates, or other family records
10. statemets in ancient documents
11. market reports and commercial publications
12. reputation
79
When is a present sense impression admissislbe?
If the statement was made while the declarant was perceiving event, or immediately thereafter.
80
When is an excited utterance admissislbe?
If the statement relates to a startling event or condition and was made while the declarant was still under the stress of excitement caused by the event or condition
81
When is state of mind hearsay admissislbe?
When the statement relates to a declarant's then existing physical, mental, or emotional condition.
OR
A statement of intent used to prove action in conformity with that intent.
82
When is a statement made for purposes of medical diagnosis or treatment admissislbe?
When the statement describes a declarant's medical history or past or present symptoms, or even the cause of the injury, if pertinent to medical treatment or diagnosis.
Doesn't have to be made directly to the doctor AND doesn't necessarily have to be made by the patient.
83
When is a past recollection recorded admissislbe?
When the witness has inadequate memory to testify about a matter for which the record exsists and
(1) the record concerns a matter about which the witness once had knowledge
(2) the record was prepared or adopted by the witness when the matter was fresh
(3) the record accurately reflects the witness's knowledge
(4) the witness testifeis he has insufficient memory of the event to testify fully and accurately (even after consulting the writing while on the stand)
Statement can be read to the jury, BUT not offered as evidence. BUT other party may introduce to the jury.
84
When is a business record admissislbe?
If the record or writing of an act or event was made in the course of a regularly conducted business activity and was made
(1) at or near the time of the event it records;
(2) by a person with knowledge of the event and under a duty to report it (or trasmitted by such a person); and
(3) as part of the regular practice of the business that made that kind of record
NOTE: records prepared in anticipation of litigation are NOT admissible. And courts may exclude evidence if it indicates a lack of trustworthiness
85
When is a public record admissislbe?
Certain public records of public agents and administrators may be admissible if they set forth activities, observations, and factual findings.
UNLESS they indicate a lack of trustwrothiness.
86
When are police reports admissible?
Admissible public records in civil cases and against the government in criminal cases.
BUT NOT against a criminal defendant. Officer needs to actually testify and be cross-examined.
87
When is a learned treatises admissislbe?
When it is used as substantive evidence once it is established as a relaible uathority, an expert releid on it, or it was used to cross-examine an expert.
88
When is a judgment of a previous conviction admissislbe?
Admissible to prove any fact that was essential to the judgment.
89
When is reputation exception to hearsay admissislbe?
There is a hearsay exception for reputation or character of a person available in narrow circumstances when the reputation/character evidence is admissible.
90
What does the confrontation clause require?
Confrontation clause requries in criminal cases that state witnesses face the defendants they are accusing.
91
When is the confrontation clause implicated?
When an out of court statement that is testimonial, i.e. made with the primary purpose of asceratining criminal past conduct, then the Confrontation Clause is permitted.
92
When can testimonial statements be admitted against a criminal defendant?
The declarant is now ; and
The defendant had a prior opportunity to cross-examine that declarant.
NOTE: Staetments made for purposes of getting help (emergency doctrine) should not be considered testimonial.
